Constitutional law
CONSTITUTIONAL LAW 1 – CASES AND MATERIALS
CONSTITUTIONAL LAW I
CASES AND MATERIALS
KHAGESH GAUTAM
© KHAGESH GAUTAM | 2014
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CONSTITUTIONAL LAW 1 – CASES AND MATERIALS
TABLE OF CONTENTS
UNIT 1 – THE CONCEPT OF STATE (ARTICLE 12) ................................................................................... 5
RAJASTHAN STATE ELECTRICITY BOARD V. MOHAN LAL ............................................................. 5
R. D. SHETTY V. INT’L AIRPORT AUTHORITY OF INDIA ............................................................... 10
AJAY HASIA V. KHALID MUJIB .................................................................................................... 19
DALCO ENGINEERING V. S. P. PADHYE ....................................................................................... 29
PRADEEP KUMAR BISWAS V. INDIAN INSTITUTE OF CHEMICAL BIOLOGY ................................... 36
UNIT 2 – FUNDAMENTAL RIGHTS COMPLIANCE REVIEW (ARTICLE 13) .............................................. 52
KESHAVA MADHAVA MENON V. STATE OF BOMBAY .................................................................. 52
STATE OF GUJARAT V. SHRI AMBIKA MILLS ............................................................................... 66
UNIT 3 – EQUALITY CLAUSE (ARTICLE 14) ......................................................................................... 76
DOCTRINE OF REASONABLE CLASSIFICATION ..................................................................................... 76
STATE OF WEST BENGAL V. ANWAR ALI SARKAR ...................................................................... 76
DOCTRINE OF ARBITRARINESS ......................................................................................................... 112
NATURAL RESOURCES ALLOCATION, IN RE SPECIAL REFERENCE NO. 1 OF 2012 ..................... 112
UNIT 4 – AFFIRMATIVE ACTION (ARTICLES 15 AND 16) .................................................................... 135
RESERVATION IN EDUCATIONAL INSTITUTIONS ................................................................................. 135
STATE OF MADRAS V. CHAMPAKAM DORAIRAJAN .................................................................... 135
RESERVATION IN GOVERNMENT EMPLOYMENT ................................................................................. 139
STATE OF KERALA V. N. M. THOMAS ........................................................................................ 139
INDRA SAWHNEY V. UNION OF INDIA ........................................................................................ 151
UNIT 5 – FUNDAMENTAL FREEDOMS (ARTICLE 19)........................................................................... 190
POLITICAL SPEECH ......................................................................................................................... 190
ROMESH THAPAR V. STATE OF MADRAS ................................................................................... 190
BRIJ BHUSHAN V. STATE OF DELHI ........................................................................................... 194
FREEDOM OF THE PRESS ................................................................................................................ 195
BENNETT COLEMAN & CO. V. UNION OF INDIA ......................................................................... 195
REASONABLE RESTRICTIONS ON FREEDOM OF SPEECH .................................................................... 207
K. A. ABBAS V. UNION OF INDIA ............................................................................................... 207
AJAY GOSWAMI V. UNION OF INDIA .......................................................................................... 224
FREEDOM OF OCCUPATION ............................................................................................................ 235
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CHINTAMAN RAO V. STATE OF MADHYA PRADESH................................................................... 235
TMA PAI V. STATE OF KARNATAKA ......................................................................................... 237
FREEDOM OF MOVEMENT ............................................................................................................... 246
DR. N. B. KHARE V. STATE OF DELHI ........................................................................................ 246
FREEDOM TO FORM ASSOCIATIONS OR UNIONS ............................................................................... 252
STATE OF MADRAS V. V. G. ROW.............................................................................................. 252
JAMAAT-E-ISLAMI HIND V. UNION OF INDIA ............................................................................. 259
UNIT 6 – RIGHTS OF THE ACCUSED IN CRIMINAL TRIALS (ARTICLE 20) ............................................ 271
PROTECTION AGAINST SELF INCRIMINATION .................................................................................... 271
STATE OF BOMBAY V. KATHI KALU OGHAD ............................................................................. 271
SELVI V. STATE OF KARNATAKA ............................................................................................... 285
UNIT 7 – PREVENTIVE DETENTION (ARTICLE 22) .............................................................................. 318
A. K. GOPALAN V. STATE OF MADRAS ...................................................................................... 318
UNIT 8 – LIFE AND PERSONAL LIBERTY (ARTICLE 21) ...................................................................... 365
PROCEDURE ESTABLISHED BY LAW ................................................................................................. 365
A. K. GOPALAN V. STATE OF MADRAS ...................................................................................... 365
MANEKA GANDHI V. UNION OF INDIA ....................................................................................... 382
LIFE AND PERSONAL LIBERTY.......................................................................................................... 392
FRANSCIS CORALIE MULLIN V. ADMINISTRATOR, UNION TERRITORY OF DELHI ...................... 392
OLGA TELLIS V. BOMBAY MUNICIPAL CORPORATION .............................................................. 400
UNIT 9 – RIGHT TO EDUCATION (ARTICLE 21A) ............................................................................... 417
SOCIETY FOR UNAIDED PRIVATE SCHOOLS V. UNION OF INDIA................................................. 417
UNIT 10 – RELIGIOUS FREEDOM (ARTICLES 25, 26, 27 & 28)............................................................ 447
DOCTRINE OF ESSENTIAL PRACTICES .............................................................................................. 447
COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS V. SWAMIAR OF SHIRUR ............................ 447
ACHARYA JAGDISHWARANAND AVADHUTA V. COMMISSIONER OF POLICE, CALCUTTA ........... 464
BIJOE EMMANUEL V. STATE OF KERALA ................................................................................... 469
SEPARATION OF RELIGION AND STATE ............................................................................................. 475
P. M. BHARGAVA V. UNIVERSITY GRANTS COMMISSION .......................................................... 475
PRAFULL GORADIA V. UNION OF INDIA ..................................................................................... 482
UNIT 11 – MINORITY RIGHTS (ARTICLES 29 AND 30) ........................................................................ 485
S. AZEEZ BASHA V. UNION OF INDIA ......................................................................................... 485
DAYANAND ANGLO VEDIC COLLEGE V. COLLEV. STATE OF PUNJAB ........................................ 496
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TMA PAI FOUNDATION V. STATE OF KARNATAKA ................................................................... 505
UNIT 12 – FUNDAMENTAL RIGHTS AND THE DOCTRINE BASIC STRUCTURE ..................................... 525
DOCTRINE OF BASIC STRUCUTRE .................................................................................................... 525
KESAVANANDA BHARTI V. UNION OF INDIA ............................................................................. 525
HARMONY BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES OF STATE POLICY ............ 550
MINERVA MILLS V. UNION OF INDIA ......................................................................................... 550
UNIT 13 – PUBLIC INTEREST LITIGATION .......................................................................................... 563
BANDHUA MUKTI MORCHA V. UNION OF INDIA ........................................................................ 563
VINEET NARAIN V. UNION OF INDIA .......................................................................................... 585
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UNIT 1 – THE CONCEPT OF STATE (ARTICLE 12)
RAJASTHAN STATE ELECTRICITY BOARD V. MOHAN LAL
AIR 1967 SC 1857
Decided On: April 3, 1967
BENCH – CHIEF JUSTICE K. SUBBA RAO, JUSTICES J. C. SHAH, J. M. SHELAT, V. BHARGAVA
& G. K. MITTER
JUSTICE BHARGAVA (FOR THE CHIEF JUSTICE, JUSTICES SHELAT, MITTER AND HIMSELF,
MAJORITY OPINION)
The appellant in this appeal is Electricity Board of Rajasthan Jaipur (hereinafter referred to as "the Board") a body corporate constituted on 1st July 1957, under the Electricity (Supply)
Act, 1948 (No. 54 of 1948). Before the constitution of the Board the supply of electricity in the State of Rajasthan was being controlled directly by a department of the State Government named as the Electrical and Mechanical Department. Respondent No. 1 Mohan Lal as well as respondents 4 to 14 were all permanent employees of the State Government holding posts of
Foremen in the Electrical and Mechanical Department. On the constitution of the Board the services of most the employees including all these respondents were provisionally placed at the disposal of the Board by a notification issued by the Government on 12th February, 1958 purporting to exercise its power under section 78A of Act 54 of 1948.
In this notification a direction was included that the Board was to frame its own new grades and service conditions under its regulations and the employees whose service were transferred to the Board were to exercise option either to accept these new grades and service conditions or to continue in their existing grades and service conditions except in regards to conduct and disciplinary rules or to obtain relief from Government service by claiming pension or gratuity as might be admissible on abolition of post under the Rajasthan Service
Rules. The Board however did not frame any new grades and service conditions at least up to the time that the present litigation arose.
Respondent No. 1 was however deputed by the State Government by its order dated 27th
January, 1960 after having worked under the Board for a period of about two years to the
Public Works Department of the Government On 10th August, 1960 an order was made by the
Government addressed to the Secretary of the Board indicating that respondent no. 1 as well as respondent no. 4 to 14 were to be treated as on deputation to the Board. On 24th November,
1962 the Public Work Department passed an order reverting respondent no. 1 to his parent department with effect from 1st December, 1962 but the period of deputation was later extended till 25th July, 1963. On 11th July, 1963 he was actually reverted to the Board from the Public Works Department and the Board issued orders posting respondents no. 1 as a
Foreman. In the interval while respondent No. 1 was working in the Public Works Department respondent 4 to 14 had been promoted by the Board as Assistant Engineers while respondent no. 1 was promoted to work as Assistant Engineer in the Public Works Department. On his reversion, respondent no. 1 claimed that he was also entitled to be promoted as Assistant
Engineer under the Board because some of the other respondents promoted were junior to him and in the alternative that in any case he was entitled to be considered for promotion.
This request made by him to the Board as well as to the State Government was turned down and thereupon respondent no. 1 filed a petition under Article 226 and 227 of the
Constitution in the High Court of Rajasthan. Respondent no. 1 claimed that he was entitled to equality of treatment with respondent 4 to 14 and inasmuch as he had not been considered for
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promotion with them by the Board, the Board had acted in violation of Article 14 and 16 of the Constitution. The Board contested the petition on two grounds. The first ground was that respondent no. 1 had never become a permanent servant of the Board and never held any substantive post under it so that he could not claim to be considered for promotion with respondents 4 to 14. The second ground was that the Board could not be held to be "State " as defined in Article 12 of the Constitution and consequently no direction could be issued to the
Board by the High Court under Art 226 or 227 of the Constitution on the basis that the action of the Board had violated Article 14 and 16 of the Constitution. The High Court rejected both these ground accepted the plea of respondent no. 1 and quashed the order of promotion of respondents 4 to 14 and issued a direction to the Board to consider promotions afresh after taking into account the claims of respondent no. 1. The Board has now come up in appeal to this Court by Special leave against this order of the High Court. Apart from the Board the
State of Rajasthan and the Chief Engineer & Technical Member of the Rajasthan State
Electricity Board Jaipur were also impleaded as opposite parties in the writ petition and they are respondents 2 and 3 in this appeal.
… [Arguments of counsel on the first ground have been omitted] …
On the second point that the Board cannot be held to be "State" within its meaning in
Art. 12 of the Constitution, Mr. Desai urged that, on the face of it, the Board could not be held to be covered by the authorities named therein, viz., the Government and Parliament of India and the Government and the Legislature of each of the States and local authorities, and the expression "other authorities", if read ejusdem generis with those named, cannot cover the
Board which is a body corporate having a separate existence and has been constituted primarily for the purpose of carrying on commercial activities. In support of his proposition that the expression "other authorities" should be interpreted ejusdem generis, he relied on a decision of the Madras High Court in University of Madras v. Shantha Bai, AIR 1954 Mad.
67. The High Court, considering the question whether a University can be held to be local or other authority as defined in Art. 12, held:
"These words must be construed 'ejusdem generis ' with Government or
Legislature, and, so construed, can only mean authorities exercising governmental functions. They would not include persons natural or juristic who cannot be regarded as instrumentalities of the Government. The University of
Madras is a body corporate created by Madras Act VII of 1923. It is not charged with the execution of any governmental functions; its purpose is purely to promote education. Though section 44 of the Act provides for financial contribution by the local Government, the University is authorised to raise its own funds of income from fees, endowments and the like. It is a State-aided institution, but it is not maintained by the State."
In B. W. Devadas v. Selection Committee for Admission of Students to the Karnatak
Engineering College, AIR 1964 Mys. 6, the High Court of Mysore similarly held:
"The term 'authority ' in the ordinary dictionary sense may comprise not merely a person or a group of persons exercising governmental power, but also any person or group of persons who, by virtue of their position in relation to other person or persons, may be able to impose their will upon that other person or persons. But there is an essential difference between a political association of persons called 'the State ' giving rise to political power connoted by the well-known expression 'imperative law ' and a non-political association of persons for other purposes by contract, consent or similar type of mutual understanding related to the common object of persons so associating themselves together giving rise to a power which operates not in the manner in which imperative law
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operates, but by virtue of its acceptance by such associating persons based upon contract, consent or mutual understanding."
Proceeding further, the Court held:
"The term 'authorities ' occurring in Art. 12 could only mean a person or a group of persons who exercise the legislative or executive functions of a State or through whom or through the instrumentality of whom the
State exercises its legislative or executive power."
The latest case on the point cited by Mr. Desai is the decision of the Punjab High Court in Krishan Gopal Ram Chand Sharma v. Punjab University, AIR 1966 P&H 34 where the decision given in the case of University of Madras, AIR 1954 Mad. 67 was followed and the principle laid down therein was approved and applied. On the basis of these decisions, and the principles laid down therein, it was urged that an examination of the provisions of the
Electricity Supply Act will show that the Board is an autonomous body which cannot be held to be functioning as an agent of the Executive Government and, consequently, it should be held that it is not "State" within the meaning of Art. 12 of the Constitution.
In our opinion, the High Courts fell into an error in applying the principle of ejusdem generis when interpreting the expression "other authorities" in Art. 12 of the Constitution, as they overlooked the basic principle of interpretation that, to invoke the application of ejusdem generis rule, there must be a distinct genus or category running through the bodies already named. Craies on Statute Law summarises the principle as follows:"The ejusdem generis rule is one to be applied with caution and not pushed too far... To invoke the application of the ejusdem generis rule there must be a distinct genus or category. The specific words must apply not to different objects of a widely differing character but to something which can be called a class or kind of objects. Where this is lacking, the rule cannot apply, but the mention of a single species does not constitute a genus."
Maxwell in his book on 'Interpretation of Statutes ' explained the principle by saying:
"But the general word which follows particular and specific words of the same nature as itself takes its meaning from them, and is presumed to be restricted to the same genus as those words.... Unless there is a genus or category, there is no room for the application of the ejusdem generis doctrine." In United Towns Electric Co., Ltd, v. Attorney-General for Newfoundland, (1939) 1 All
E.R. 423, the Privy Council held that, in their opinion, there is no room for the application of the principle of ejusdem generis in the absence of any mention of a genus, since the mention of a single species – for example, water rates - does not constitute a genus. In Art. 12 of the
Constitution, the bodies specifically named are the Executive Governments of the Union and the States, the Legislature of the Union and the States, and local authorities. We are unable to find any common genus running through these named bodies, nor can these bodies be placed in case single on any rational basis. The doctrine of ejusdem generis could not therefore, be applied to the interpretation of the expression "other authorities" in this article.
The meaning of the word "authority" given in Webster 's Third New International
Dictionary, which can be applicable, is "a public administrative agency or corporation having quasi-governmental powers and authorised to administer a revenue-producing public enterprise." This dictionary meaning of the word "authority" is clearly wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasi-governmental functions. The expression "other authorities" is wide enough to include within it every authority created by a statute and functioning within the territory of India, or
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under the control of the Government of India; and we do not see any reason to narrow down this meaning in the context in which the words "other authorities" are used in Art. 12 of the
Constitution.
In Ujjam Bai v. State of Uttar Pradesh, [1963] 1 SCR 778, Ayyangar, J., interpreting the words "other authorities" in Art. 12 held:
"Again, Art. 12 winds up the list of authorities falling within the definition by referring to 'other authorities within the territory of India which cannot obviously be read as ejusdem generis with either the
Government and the Legislatures or local authorities. The words are of wide amplitude and capable of comprehending every authority created under a statute and functioning within the territory of India or under the control of the Government of India. There is no characterisation of the nature of the 'authority ' in this residuary clause an consequently it must include every type of authority set up under a statute for the purpose of administering laws enacted by the Parliament or by the State including those vested with the duty to make decisions in order to implement those laws." In K. S. Ramamurthi Reddiar v. Chief Commissioner, Pondicherry, [1964] 1 SCR
656, this Court, dealing with Art. 12, held:
"Further, all local or other authorities within the territory of India include all authorities within the territory of India whether under the control of the Government of India or the Governments of various States and even autonomous authorities which may not be under the control of the
Government at all."
These decisions of the Court support our view that the expression "other authorities" in
Art. 12 will include all constitutional or statutory authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purpose of carrying on commercial activities. Under the Constitution, the State is itself envisaged as having the right to carry on trade or business as mentioned in Art, 19(1)(g). In Part IV, the
State has been given the same meaning as in Art. 12 and one of the Directive Principles laid down in Art. 46 is that the State shall promote with special care the educational and economic interests of the weaker sections of the people. The State, as defined in Art. 12, is thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people. The State, as constituted by our Constitution, is further specifically empowered under Art. 298 to carry on any trade or business. The circumstance that the Board under the Electricity Supply Act is required to carry on some activities of the nature of trade or commerce does not, therefore, give any indication that the Board must be excluded from the scope of the word "State" as used in Art. 12. On the other hand, there are provisions in the Electricity Supply Act which clearly show that the powers conferred on the
Board include power to give directions, the disobedience of which is punishable as a criminal offence. In [these] circumstances, we do not consider it at all necessary to examine the cases cited by Mr. Desai to urge before us that the Board cannot be held to be an agent or instrument of the Government. The Board was clearly an authority to which the provisions of Part III of the Constitution were applicable.
We have already held earlier that, in dealing with the case of respondent No. 1, the Board did not treat him on terms of equality with respondents Nos. 4 to 14 and did not afford to him the opportunity for being considered for promotion to which he was entitled on that basis. The
High Court was, therefore, right in allowing the petition of respondent No. 1. The appeal is dismissed with costs.
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JUSTICE SHAH (FOR HIMSELF, PARTLY CONCURRING)
I agree with the order proposed by Bhargava, J.
The Board is an authority invested by statute with certain sovereign powers of the State.
It has the power of promoting coordinated development, generation, supply and distribution of electricity and for that purpose to make, alter, amend and carry out schemes under Ch. V of the Electricity (Supply) Act, 1948, to engage in certain incidental undertakings; to organise and carry out power and hydraulic surveys; to conduct investigation for the improvement of the methods of transmission; to close down generating stations; to compulsorily purchase generating stations, undertakings, mains and transmission lines; to place wires, poles, brackets, appliances, apparatus, etc; to fix grid tariff; to issue directions for securing the maximum economy and efficiency in the operation of electricity undertakings; to make rules and regulations for carrying out the purposes of the Act; and to issue directions under certain provisions of the Act and to enforce compliance with those directions. The Board is also invested by statute with extensive powers of control over electricity undertakings. The power to make rules and regulations and to administer the Act is in substance the sovereign power of the State delegated to the Board. The Board is, in my judgment, "other authority" within the meaning of Art. 12 of the Constitution.
I am unable, however, to agree that every constitutional or statutory authority on whom powers are conferred by law is "other authority" within the meaning of Art. 12. The expression
"authority" in its etymological sense means a body invested with power to command or give an ultimate decision, or enforce obedience, or having a legal right to command and be obeyed.
The expression "State" is defined in Art. 12 for the purpose of Part III of the Constitution.
Article 13 prohibits the State from making any legislative or executive direction which takes away or abridges the rights conferred by Part III and declares any law or executive direction in contravention of the injunction void to the extent of such contravention. In determining what the expression "other authority" in Art. 12 connotes, regard must be had not only to the sweep of fundamental rights over the power of the authority, but also to the restrictions which may be imposed upon the exercise of certain fundamental rights (e.g., those declared by
Art. 19) by the authority. Fundamental rights within their allotted fields transcend the legislative and executive power of the sovereign authority. But some of the important fundamental rights are liable to be circumscribed by the imposition of reasonable restrictions by the State. The true content of the expression "other authority" in Art. 12 must be determined in the light of this dual phase of fundamental rights. In considering whether a statutory or constitutional body is an authority within the meaning of Art. 12, it would be necessary to bear in mind not only whether against the authority, fundamental rights in terms absolute are intended to be enforced, but also whether it was intended by the Constitution-makers that the authority was invested with the sovereign power to impose restrictions on very important and basic fundamental freedoms.
In my judgment, authorities constitutional or statutory invested with power by law but not sharing the sovereign power do not fall within the expression "State" as defined in Art. 12.
Those authorities which are invested with sovereign power i.e., power to make rules or regulations and to administer or enforce them to the detriment of citizens and others fall within the definition of "State" in Art. 12, and constitutional or statutory bodies which do not share that sovereign power of the State are not, in my judgment, "State" within the meaning of
Art. 12 of the Constitution.
Appeal dismissed.
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R. D. SHETTY V. INT’L AIRPORT AUTHORITY OF INDIA
AIR 1979 SC 1628, (1979) 3 SCC 489
Decided On: May 4, 1979
BENCH – JUSTICES P. N. BHAGWATI, V. D. TULZAPURKAR & R. S. PATHAK
JUSTICE P. N. BHAGWATI (FOR THE COURT)
This appeal by special leave raises interesting questions of law in the area of public law.
What are the constitutional obligations on the State when it takes action in exercise of its statutory or executive power? Is the State entitled to deal with its property in any manner it likes or award a contract to any person it chooses without any constitutional limitations upon it? What are the parameters of its statutory or executive power in the matter of awarding a contract or dealing with its property? These questions fell in the sphere of both administrative law and constitutional law and they assume special significance in a modern welfare State which is committed to egalitarian values and dedicated to the rule of law. But these questions cannot be decided in the abstract. They can be determined only against the back-ground of facts and hence we shall proceed to State the facts giving rise to the appeal.
On or about 3rd January, 1977 a notice inviting tenders for putting up and running a second class restaurant and two snack bars at the International Airport at Bombay was issued by the
1st respondent which is a corporate body constituted under the International Airport Authority
Act, 43 of 1971. The notice stated in the clearest terms in paragraph (1) that "Sealed tenders in the prescribed form are hereby invited from Registered IInd Class Hoteliers having at least
5 years ' experience for putting up and running a IInd Class Restaurant and two snack bars at this Airport for a period of 3 years". The 'latest point of time upto which the tenders could be submitted to the 1st respondent was stipulated in Paragraph 7 of the notice to be 12 p.m. on
25th January, 1977 and it was provided that the tenders would be opened on the same date at
12.30 hours. Paragraph (8) of the notice made it clear that "the acceptance of the tender will rest with the Airport Director who does not bind himself to accept any tender and reserves to himself the right to reject all or any of the tenders received without assigning any reasons therefore." There were six tenders received by the 1st respondent in response to the notice and one of them was from the 4th respondents of offering a licence fee of Rs. 6666.66 per month, and the others were from Cafe Mahim, Central Catering Service, one A.S. Irani, Cafe Seaside and Cafe Excelsior offering progressively decreasing licence fee very much lower than that offered by the 4th respondents. The tenders were opened in the office of the Airport Director at 12.30 p.m. on 25th January, 1977 and at that time the 4th respondents were represented by their sole proprietor Kurnaria. A.S. Irani was present on behalf of himself, Cafe Mahim, Cafe
Seaside and Cafe Excelsior and there was one representative of Central Catering Service.
The tenders of Cafe Mahim, Central Catering Service, Cafe Seaside and Cafe Excelsior were not complete since they were not accompanied by the respective income tax certificates, affidavits of immovable property and solvency certificates, as required by Clause (9) of the terms and conditions of the tender form. The tender of A.S. Irani was also not complete as it was not accompanied by an affidavit of immovable property held by him and solvency certificates. The only tender which was complete and fully complied with the terms and conditions of the tender form was that of the 4th respondents and the offer contained in that tender was also the highest amongst all the tenders. Now it is necessary to point out at this stage that while submitting their tender the 4th respondents had pointed out in their letter dated
24th January, 1977 addressed to the Airport Director that they had 10 years ' experience in catering to reputed commercial houses, training centers, banks and factories and that they were
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also doing considerable outdoor catering work for various institutions. This letter showed that the 4th respondents had experience only of running canteens and not restaurants and it appeared that they did not satisfy the description of "registered IInd Class Hotelier having at least 5 years ' experience" as set out in paragraph (1) of the notice inviting tenders. The Airport
Officer, therefore, by his letter dated 15th February, 1977 requested the 4th respondents to inform by return of post whether they were a "registered IInd Class Hotelier having at least 5 years’ experience" and to produce documentary evidence in this respect within 7 days.
The 4th respondents pointed out to the Airport Officer by their letter dated 22nd February,
1977 that they had, in addition to what was set out in their earlier letter dated 24th January,
1977, experience of running canteens for Phillips India Ltd. and Indian Oil Corporation and moreover, they held Eating House Licence granted by the Bombay Municipal Corporation since 1973 and had thus experience of 10 years in the catering line. It appears that before this letter of the 4th respondents could reach Airport Officer, another letter dated 22nd February,
1977 was addressed by the Airport Officer once again requesting the 4th respondents to produce documentary evidence to show if they were "a registered IInd Class Hotelier having at least 5 years’ experience". The 4th respondents thereupon addressed another letter dated 26th
February, 1977 to the Director pointing out that they had considerable experience of catering for various reputed commercial houses, clubs, messes and banks and they also held an Eating
House Catering Establishment (Canteen) Licence, as also a licence issued under the
Prevention of Food Adulteration Act.
The 4th respondents stated that their sole proprietor Kumaria had started his career in catering line in the year 1962 at Hotel Janpath, Delhi and gradually risen to his present position and that he had accordingly "experience equivalent to that of a IInd Class or even 1st Class hotelier." This position was reiterated by the 4th respondents in a further letter dated 3rd March,
1977 addressed to the Director. This information given by the 4th respondents appeared to satisfy the 1st respondent and by a letter dated 19th April, 1977 the 1st respondent accepted the tender of the 4th respondents on the terms and conditions set out in that letter. The 4th respondents accepted these terms and conditions by their letter dated 23rd April, 1977 and deposited with the 1st respondent by way of security a sum of Rs. 39,999.96 in the form of fixed Deposit Receipts in favour of the 1st respondent and paid to the 1st respondent a sum of
Rs. 6666.66 representing licence fee for one month and other amounts representing water, electricity and conservancy charges. The 4th respondents thereafter executed and handed over to the 1st respondent an agreement in the form attached to the tender on 1st May, 1977. The 4th respondents also got prepared furniture, counters and showcases as also uniforms for the staff, purchased inter alia deep freezers, water coolers, electrical appliances, ice cream cabinets, espreings and also engaged the necessary staff for the purpose of running the restaurant and the two snack bars. But the 1st respondent could not hand over possession of the requisite sites to the 4th respondents, since A.S. Irani was running his restaurant and snack bars on these sites under a previous contract with the 1st respondent and though that contract had come to an end,
A.S. Irani did not deliver possession of these sites to the 1st respondent. The 4th respondents repeatedly requested the 1st respondent and the Airport Director who is the 2nd respondent in the appeal, to hand over possession of the sites and pointed out to them that the 4th respondents were incurring losses by reason of delay in delivery of possession, but on account of the intransigence of A.S. Irani the 1st respondent could not arrange to hand over possession of the sites to the 4th respondents.
Meanwhile one K.S. Irani who owned Cafe Excelsior filed Suit No. 6544 of 1977 in the
City Civil Court, Bombay against the respondents challenging the decision of the 1st respondent to accept the tender of the 4th respondents and took out a notice of motion for restraining the 1st respondent from taking any further steps pursuant to the acceptance of the
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tender. K.S. Irani obtained an ad-interim injunction against the respondents but after hearing the respondents, the City Civil Court vacated the ad-interim injunction and dismissed the notice of motion by an order dated 10th October, 1977. An appeal was preferred by K.S. Irani against this order, but the appeal was dismissed by the High Court on 19th October, 1977.
Immediately thereafter, on the same day, the 1st respondent handed over possession of two sites to the 4th respondents and the 4th respondents proceeded to set up snack bars on the two sites and started business of catering at the two snack bars. These two sites handed over to the
4th respondents were different from the sites occupied by A.S. Irani, because A.S. Irani refused to vacate the sites in his occupation. So far as the site for the restaurant was concerned, the 1st respondent could not hand over the possession of it to the 4th respondents presumably because there was no other appropriate site available other than the one occupied by A.S. Irani. Since
A.S. Irani refused to hand over possession of the sites occupied by him to the 1st respondent, even though his contract had come to an end, and continued to carry on the business of running the restaurant and the snack bars on these sites, the 1st respondent was constrained to file suit
No. 8032 of 1977 against A.S. Irani in the City Civil Court at Bombay and in that suit, an injunction was obtained by the 1st respondent restraining A.S. Irani from running or conducting the restaurant and the snack bars or from entering the premises save and except for winding up the restaurant and der granting the injunction, but the appeal was rejected and ultimately a petition for special leave to appeal to this Court was also turned down on 31st
July, 1978.
This was, however, not to be the end of the travails of the 4th respondents, for, as soon as the appeal preferred by K.S. Irani against the order dismissing his notice of motion was rejected by the High Court on 19th October, 1977, A.S. Irani filed another suit being suit No.
8161 of 1977 in the City Civil Court, Bombay on 24th October, 1977 seeking mandatory injunction for removal of the two snack bars put up by the 4th respondents. This was one more attempt by A.S. Irani to prevent the 4th respondents from obtaining the benefit of the contract awarded to them by the 1st respondent. He, however, did not succeed in obtaining ad-interim injunction and we are told that the notice of motion taken out by him is still pending in the
City Civil Court.
It will thus be seen that A.S. Irani failed in his attempts to prevent the 4th respondents from obtaining the contract and enjoying its benefit. The 4th respondents put up two snack bars on the sites provided by the 1st respondent and started running the two snack bars from 19th
October, 1977. The restaurant however, could not be put up on account of the inability of the
1st respondent to provide appropriate site to the 4th respondents and, therefore, the licence fee for the two snack bars had to be settled and it was fixed at Rs. 4,500/- per month by mutual agreement between the parties. But it seems that the 4th respondents were not destined to be left in peace to run the two snack bars and soon after the dismissal of the appeal of A.S. Irani on 19th October, 1977 and the failure of A.S. Irani to obtain an ad-interim mandatory injunction in the suit filed by him against the 1st and the 4th respondents, the appellant filed writ petition No. 1582 of 1977 in the High Court of Bombay challenging the decision of the
1st respondent to accept the tender of the 4th respondents. The writ petition was moved before a Single Judge of the High Court on 8th November, 1977 after giving prior notice to the respondents and after hearing the parties, the learned Single Judge summarily rejected the writ petition. The appellant preferred an appeal to the Division Bench of the High Court against the order rejecting the writ petition and on notice being issued by the Division Bench, the 1st and the 4th respondents filed their respective affidavits in reply showing cause against the admission of the appeal. The Division Bench after considering the affidavits and hearing the parties rejected the appeal in limine on 21st February, 1978. The appellant thereupon filed a petition for special leave to appeal to this Court and since it was felt that the questions raised in the appeal were of seminal importance, this Court granted special leave and decided to hear
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the appeal at an early date after giving a further [opportunity to the] parties to file their respective affidavits. That is how the appeal has now come before us for final hearing with full and adequate material placed before us on behalf of both the parties.
The main contention urged on behalf of the appellant was that in paragraph (1) of the notice inviting tenders the 1st respondent had stipulated a condition of eligibility by providing that a person submitting a tender must be a "registered IInd class Hotelier having at least 5 years’ experience." This was a condition of eligibility to be satisfied by every person submitting a tender and if in case of [a] person, this condition was not satisfied, his tender was ineligible for being considered. The 1st respondent, being a State within the meaning of
Article 12 of the Constitution or in any event a public authority, was bound to give effect to the condition of eligibility set up by it and was not entitled to depart from it at its own sweet will without rational justification. The 4th respondents had experience of catering only in canteens and did not have 5 years ' experience of running a IInd class hotel or restaurant and hence they did not satisfy the condition of eligibility and yet the 1st respondent accepted the tender submitted by them. This was clearly in violation of the standard or norm of eligibility set up by the 1st respondent and the action of the 1st respondent in accepting the tender of the
4th respondents was clearly invalid. Such a departure from the standard or norm of eligibility had the effect of denying equal opportunity to the appellant and others of submitting their tenders and being considered for entering into contract for putting up and running the restaurant and two snack bars. The appellant too was not a registered 2nd class hotelier with 5 years ' experience and was in the same position as the 4th respondents vis-a-vis this condition of eligibility and he also could have submitted his tender and entered the field of consideration for award of the contract, but he did not do so because of this condition of eligibility which he admittedly did not satisfy. The action of the 1st respondent in accepting the tender of the 4th respondents had, therefore, opportunity in the matter of consideration for award of the contract and hence it was unconstitutional as being in violation of the equality clause.
… [Arguments of parties and discussion on interpretation of terms on which tender was to be awarded has been omitted]… To-day the Government, is a welfare State, is the regulator and dispenser of special services and provider of a large number of benefits, including jobs contracts, licences, quotas, mineral rights etc. The Government pours forth wealth, money, benefits, services, contracts, quotas and licences. The valuables dispensed by Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional forms of wealth.
These valuables which derive from relationships to Government are of many kinds. They comprise social security benefits, cash grants for political sufferers and the whole scheme of
State and local welfare. Then again, thousands of people are employed in the State and the
Central Governments and local authorities. Licences are required before one can engage in many kinds of business or work. The power of giving licences means power to withhold them and this gives control to the Government or to the agents of Government on the lives of many people. Many individuals and many more businesses enjoy largess in the form of Government contracts. These contracts often resemble subsidies. It is virtually impossible to lose money on them and many enterprises are set up primarily to do business with Government.
Government owns and controls hundreds of acres of public land valuable for mining and other purposes. These resources are available for utilisation by private corporations and individuals by way of lease or licence. All these mean growth in the Government largess and with the increasing magnitude and range of governmental functions as we move closer to a welfare
State, more and more of our wealth consists of these new forms. Some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges. Page 13 of 610
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But on that account, can it be said that they do not enjoy any legal protection? Can they be regarded as gratuity furnished by the State so that the State may withhold, grant or revoke it at its pleasure? Is the position of the Government in this respect the same as that of a private giver? We do not think so. The law has not been slow to recognise the importance of this new kind of wealth and the need to protect individual interest in it and with that end in view, it has developed new forms of protection. Some interests in Government largess, formerly regarded as privileges, have been recognised as rights while others have been given legal protection not only by forging procedural safeguards but also by confining/structuring and checking
Government discretion in the matter of grant of such largess. The discretion of the
Government has been held to be not unlimited in that the Government cannot give or withhold largess in its arbitrary discretion or at its sweet will. It is insisted, as pointed out by Prof. Reich in an especially stimulating article on "The New Property" in 73 Yale Law Journal 733, "that
Government action be based on standards that are not arbitrary or unauthorised." "The
Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith. The Government is still the Government when it acts in the matter of granting largess and it cannot act arbitrarily. It does not stand in the same position as a private individual.
We agree with the observations of Mathew, J., in V. Punnan Thomas v. State of Kerala,
AIR 1969 Ker. 81 that:
"The Government is not and should not be as free as an individual in selecting the recepients for its largess. Whatever its activity, the
Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic
Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal".
The same point was made by this Court in Erusian Equipment and Chemicals Ltd. v. State of West Bengal, [1975] 2 SCR 674 where the question was whether black-listing of a person without giving him an opportunity to be heard was bad? Ray, C.J., speaking on behalf of himself and his colleagues on the Bench pointed out that black-listing of a person not only affects his reputation which is in Poundian terms an interest both of personality and substance, but also denies him equality in the matter of entering into contract with the Government and it cannot, therefore, be supported without fair hearing. It was argued for the Government that no person has a right to enter into contractual relationship with the Government and the
Government, like any other private individual, has the absolute right to enter into contract with anyone it pleases. But the Court, speaking through the learned Chief Justice, responded that the Government is not like a private individual who can pick and choose the person with whom it will deal, but the Government is still a Government when it enters into contract or when it is administering largess and it cannot, without adequate reason, exclude any person from dealing with it or take away largess arbitrarily. The learned Chief Justice said that when the
Government is trading with the public, "the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions. The activities of the
Government have a public element and, therefore, there should be fairness and equality. The
State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure." This proposition would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in
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conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts, quotas, licences etc., must be confined and structured by rational, relevant and nondiscriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. Now, it is obvious that the Government which represents the executive authority of the
State, may act through the instrumentality or agency of natural persons or it may employ the instrumentality or agency of juridical persons to carry out its functions. In the early days, when the Government had limited functions, it could operate effectively through natural persons constituting its civil service and they were found adequate to discharge governmental functions, which were of traditional vintage. But as the tasks of the Government multiplied with the advent of the welfare State, it began to be increasingly felt that the framework of civil service was not sufficient to handle the new tasks which were often of specialised and highly technical character. The inadequacy of the civil service to deal with these new problems came to be realised and it became necessary to force a new instrumentality or administrative device for handling these new problems. It was in these circumstances and with a view to supplying this administrative need that the public corporation came into being as the third arm of the
Government.
As early as 1819 the Supreme Court of the United States in McCullough v. Maryland, 4
Wheat 315 held that the Congress has power to charter corporations as incidental to or in aid of governmental functions and, as pointed out by Mathew, J., in Sukhdev v. Bhagat Ram
(supra) such federal corporations would ex-hypothesi be agencies of the Government. In Great
Britain too, the policy of public administration through separate corporations was gradually evolved and the conduct of basic industries through giant corporations has now become a permanent feature of public life. So far as India is concerned, the genesis of the emergence, of corporations as instrumentalities or agencies of Government is to be found in the
Government of India Resolution on Industrial Policy dated 6th April, 1948 where it was stated inter alia that "management of State enterprises will as a rule be through the medium of public corporation under the statutory control of the Central Government who will assume such powers as may be necessary to ensure this." It was in pursuance of the policy envisaged in this and subsequent resolutions on Industrial Policy that corporations were created by Government for setting up and management of public enterprises and carrying out other public functions.
Ordinarily these functions could have been carried out by Government departmentally through its service personnel, but the instrumentality or agency of the corporations was resorted to in these cases having regard to the nature of the task to be performed. The corporations acting as instrumentality or agency of Government would obviously be subject to the same limitations in the field of constitutional and administrative law as Government itself, though in the eye of the law, they would be distinct and independent legal entities.
If Government acting through its officers is subject to certain constitutional and public law limitations, it must follow a fortiori that Government acting through the instrumentality or agency of corporations should equally be subject to the same limitations. But the question is how to determine whether a corporation is acting as instrumentality or agency of
Government. It is a question not entirely free from difficulty.
A corporation may be created in one of two ways. It may be either established by statute or incorporated under a law such as the Companies Act 1956 or the Societies Registration Act
1860. Where a Corporation is wholly controlled by Government not only in its policy making
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but also in carrying out the functions entrusted to it by the law establishing it or by the Charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of
Government. But ordinarily where a corporation is established by statute, it is autonomous in its working, subject only to a provision, often times made, that it shall be bound by any directions that may be issued from time to time by Government in respect of policy matters.
So also a corporation incorporated under law is managed by a board of directors or committee of management in accordance with the provisions of the statute under which it is incorporated.
When does such a corporation become an instrumentality or agency of Government? Is the holding of the entire share capital of the Corporation by Government enough or is it necessary that in addition, there should be a certain amount of direct control exercised by Government and, if so, what should be the nature of such control? Should the functions which the corporation is charged to carry out possess any particular characteristic or feature, or is the nature of the functions immaterial? Now, one thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. But, as is quite often the case, a corporation established by statute may have no shares or shareholders, in which case it would be a relevant factor to consider whether the administration is in the hands of a board of directors appointed by Government, though this consideration also may not be determinative, because even where the directors are appointed by Government, they may be completely free from governmental control in the discharge of their functions. What then are the tests to determine whether a corporation established by statute or incorporated under law is an instrumentality or agency of Government? It is not possible to formulate an all-inclusive or exhaustive test which would adequately answer this question. There is no cut and dried formula, which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those which are not.
The analogy of the concept of State action as developed in the United States may not, however, be altogether out of place while considering this question. The decisions of the court in the United States seem to suggest that a private agency, if supported by extraordinary assistance given by the State, may be subject to the same constitutional limitations as the State.
Of course, it may be pointed out that "the State 's general common law and statutory structure under which its people carry on their private affairs, own property and contract, each enjoying equality in terms of legal capacity, is not such State assistance as would transform private conduct into State action". But if extensive and unusual financial assistance is given and the purpose of the Government in giving such assistance coincides with the purpose for which the corporation is expected to use the assistance and such purpose is of public character, it may be a relevant circumstance supporting an inference that the corporation is an instrumentality or agency of Government.
The leading case on the subject in the United States is Kerr v. Eneck Pratt Free
Library 149 F.d. 212. The Library system in question in this case was established by private donation in 1882, but by 1944, 99 per cent of the system 's budget was supplied by the city, title to the library property was held by the city, employees were paid by the city payroll officer and a high degree of budget control was exercised or available to the city government.
On these facts the Court of Appeal required the trustees managing the system to abandon a discriminatory admission policy for its library training courses. It will be seen that in this case there was considerable amount of State control of the library system in addition to extensive financial assistance and it is difficult to say whether, in the absence of such control it would have been possible to say that the action of the trustees constituted State action. Thomas P.
Lewis has expressed the opinion in his article on "The meaning of State Action" (60 Columbia
Law Review 1083) that in this case "it is extremely unlikely that absence of public control would have changed the result as long as 99% of the budget of a nominally private institution
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was provided by government. Such extensive governmental support should be sufficient identification with the Government to subject the institution to the provisions of the Fourteenth
Amendment".
It may, therefore, be possible to say that where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. But where financial assistance is not so extensive, it may not by itself, without anything more, render the corporation an instrumentality or agency of government, for there are many private institutions which are in receipt of financial assistance from the State and merely on that account, they cannot be classified as State agencies. Equally a mere finding of some control by the State would not be determinative of the question "since a State has considerable measure of control under its police power over all types of business operations". But “a finding of State financial support plus an unusual degree of control over the management and policies might lead one to characterise an operation as State action" vide Sukhdev v. Bhagatram, AIR 1975 SC
1331.So also the existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality. It may also be a relevant factor to consider whether the corporation enjoys monopoly status which is State conferred or State protected.
There can be little doubt that State conferred or State protected monopoly status would be highly relevant in assessing the aggregate weight of the corporation 's ties to the State. Vide the observations of Douglas, J., in Jackson v. Metropolitan Edison Co. 419 U.S. 345.
There is also another factor which may be regarded as having a bearing on this issue and it is whether the operation of the corporation is an important public function. It has been held in the United States in a number of cases that the concept of private action must yield to a conception of State action where public functions are being performed. Vide Arthur S. Miller,
"The Constitutional Law of the Security State" 10 SLR 620. It was pointed out by Douglas, J., in Evans v. Newton, 382 U.S. 296 that "when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State". Of course, with the growth of the welfare State, it is very difficult to define what functions are governmental and what are not, because, as pointed out by Villmer, L.J., in Pfizer v. Ministry of Health [1964] 1 Ch. 614 there has been, since midVictorian times, "a revolution in political thought and a totally different conception prevails today as to what is and what is not within the functions of Government". Douglas, J., also observed to the same effect in New York v. United States 326 U.S. 572: "A State 's project is as much a legitimate governmental activity whether it is traditional or akin to private enterprise, or conducted for profit." Cf. Helvering v. Gerhardt 304 U.S. 405.
A State may deem it as essential to its economy that it own and operate a railroad, a mill, or an irrigation system as it does to own and operate bridges, street lights, or a sewage disposal plant. What might have been viewed in an earlier day as an improvident or even dangerous extension of state activities may today be deemed indispensable. It may be noted that besides the so called traditional functions, the modern State operates a multitude of public enterprises and discharges a host of other public functions. If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. This is precisely what was pointed out by Mathew, J., in Sukhdev v. Bhagatram (supra) where the learned Judge said that "institutions engaged in matters of high public interest or performing public functions are by virtue pf the nature of the functions performed government agencies. Activities which are too fundamental to the society are by definition too important not to be considered government functions."
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This was one of the principal tests applied by the United States Supreme Court in Marsh
v. Alabama 326 U.S. 501 for holding that a corporation which owned a Company town was subject to the same constitutional limitations as the State. This case involved the prosecution of Marsh, a member of the Jehovah’s Witnesses sect, under a state trespass statute for refusing to leave the side walk of the company town where she was distributing her religious pamphlets. She was fined $ 5/- and aggrieved by her conviction she carried the matter right upto the Supreme Court contending successfully that by reason of the action of the corporation her religious liberty had been denied. The Supreme Court held that administration of private property such as a town, though privately carried on, was, nevertheless, in the nature of a public function and that the private rights of the corporation must, therefore, be exercised within constitutional limitations and the conviction for trespass was reversed. The dominant theme of the majority opinion written by Mr. Justice Black was that the property of the corporation used as a town not recognisably different from other towns, lost its identification as purely private property. It was said that a town may be privately owned and managed but that does not necessarily allow the corporation to treat it as if it was wholly in the private sector and the exercise of constitutionally protected rights on the public street of a company town could not be denied by the owner. "The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.... Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation". Mr. Justice
Frankfurter, concurring, reduced the case to simpler terms. He found in the realm of civil liberties the need to treat a town, private or not, as a town. The function exercised by the corporation was in the nature of municipal function and it was, therefore, subject to the constitutional limitations placed upon State action.
We find that the same test of public or governmental character of the function was applied by the Supreme Court of the United States in Evans v. Newton (supra) and Smith v.
Allwight 321 U.S. 649. But the decisions show that even this test of public or governmental character of the function is not easy of application and does not invariably lead to the correct inference because the range of governmental activity is broad and varied and merely because an activity may be such as may legitimately be carried on by Government, it does not mean that a corporation, which is otherwise a private entity, would be an instrumentality or agency of Government by reason of carrying on such activity. In fact, it is difficult to distinguish between governmental functions and non-governmental functions. Perhaps the distinction between governmental and non-governmental functions is not valid any more in a social welfare State where the laissez faire is an outmoded concept and Herbert Spencer 's social static 's has no place. The contrast is rather between governmental activities which are private and private activities which are governmental. (Mathew, J. Sukhdev v. Bhagatram (supra) at
p. 652). But the public nature of the function, if impregnated with governmental character
"tied or entwined with Government" or fortified by some other additional factor, may render the corporation an instrumentality or agency of Government. Specifically, if a department of
Government is transferred to a corporation, it would be a strong factor supportive of this inference. It will thus be seen that there are several factors which may have to be considered in determining whether a corporation is an agency or instrumentality of Government. We have referred to some of these factors and they may be summarised as under: whether there is any financial assistance given by the State, and if so, what is the magnitude of such assistance whether there is any other form of assistance, given by the State, and if so, whether it is of the usual kind or it is extraordinary, whether there is any control of the management and policies
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of the corporation by the State and what is the nature and extent of such control, whether the corporation enjoys State conferred or State protected monopoly status and whether the functions carried out by the corporation are public functions closely related to governmental functions. This particularisation of relevant factors is however not exhaustive and by its very nature it cannot be, because with increasing assumption of new tasks, growing complexities of management and administration and the necessity of continuing adjustment in relations between the corporation and Government calling for flexibility, adapt ability and innovative skills, it is not possible to make an exhaustive enumeration of the tests which would invariably and in all cases provide an unfailing answer to the question whether a corporation is governmental instrumentality or agency. Moreover even amongst these factors which we have described, no one single factor will yield a satisfactory answer to the question and the court will have to consider the cumulative effect of these various factors and arrive at its decision on the basis of a particularised inquiry into the facts and circumstances of each case. "The dispositive question in any state action case," as pointed out by Douglas, J., in Jackson v.
Metropolitan Edison Company (supra) "is not whether any single fact or relationship presents a sufficient degree of state involvement, but rather whether the aggregate of all relevant factors compels a finding of state responsibility." It is not enough to examine seriatim each of the factors upon which a corporation is claimed to be an instrumentality or agency of Government and to dismiss each individually as being insufficient to support a finding of that effect. It is the aggregate or cumulative affect of all the relevant factors that is controlling.
Now, obviously where a corporation is an instrumentality or agency of Government, it would, in the exercise of its power or discretion, be subject to the same constitutional or public law limitations as Government. The rule inhibiting arbitrary action by Government which we have discussed above must apply equally where such corporation is dealing with the public, whether by way of giving jobs or entering into contracts or otherwise, and it cannot act arbitrarily and enter into relationship with any person it likes at its sweet will, but its action must be in conformity with some principle which meets the test of reason and relevance.
… [Discussion on Article 14 and Non-Arbitrariness in State Action has been omitted] …
We accordingly dismiss the appeal and confirm the order of the High Court rejecting the writ petition. But in the circumstances of the case there will be no order as to costs throughout.
AJAY HASIA V. KHALID MUJIB
AIR 1981 SC 487, (1981) 1 SCC 722
Decided On: November 13, 1980
BENCH – CHIEF JUSTICE Y. V. CHANDRACHUD, JUSTICES P. N. BHAGWATI, V. R. KRISHNA
IYER, S. M. FAZAL ALI & A. D. KOSHAL
JUSTICE BHAGWATI (FOR THE COURT)
These writ petitions under Article 32 of the Constitution challenge the validity of the admissions made to the Regional Engineering College, Srinagar for the academic year 197980.
The Regional Engineering College, Srinagar (hereinafter referred to as the College) is one of the fifteen Engineering Colleges in the country sponsored by the Government of India. The
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College is established and its administration and management are carried on by a Society registered under the Jammu and Kashmir Registration of Societies Act, 1898. The
Memorandum of Association of the Society in Clause 3 sets out the objects for which the
Society is incorporated and they include amongst other things establishment of the college with a view to providing instruction and research in such branches of engineering and technology as the college may think fit and for the advancement of learning and knowledge in such branches. Vide Sub-clause (i). The Society is empowered by Clause 3 Sub-clause (ii) of the Memorandum of Association to make rules for the conduct of the affairs of the Society and to add to, amend, vary or rescind them from time to time with the approval of the
Government of Jammu and Kashmir State (hereinafter referred to as the State Government) and the Central Government. Clause 3 Sub-clause (iii) of the Memorandum of Association confers power on the Society to acquire and hold property in the name of the State
Government. Sub-clause (v) of Clause 3 of the Memorandum of Association contemplates that monies for running the college would be provided by the State and Central Governments and Sub-clause (vi) requires the Society to deposit all monies credited to its fund in such banks or to invest them in such manner as the Society may, with the approval of the State
Government decide. The accounts of the Society as certified by a duly appointed auditor are mandatorily required by Sub-clause (ix) of Clause 3 of the Memorandum of Association to be forwarded annually to the State and Central Governments. Clause 6 of the Memorandum of
Association empowers the State Government to appoint one or more persons to review the working and progress of the Society, or the college and to hold inquiries into the affairs thereof and to make a report and on receipt of any such report, the State Government has power, with the approval of the Central Government, to take such action and issue such directions as it may consider necessary in respect of any of the matters dealt with in the report and the Society or the College, as the case may be, is bound to comply with such directions. There is a provision made in Clause 7 of the Memorandum of Association that in case the Society or the college is not functioning properly, the State Government will have the power to take over the administration and assets of the college with the prior approval of the Central Government.
The founding members of the Society are enumerated in Clause 9 of the Memorandum of
Association and they are the Chairman to be appointed by the State Government with the approval of the Central Government, two representatives of the State Government, one representative of the Central Government, two representatives of the All India Council for
Technical Education to be nominated by the northern Regional Committee, one representative of the University of Jammu and Kashmir, one non-official representative of each of the
Punjab, Rajasthan, U.P. and Jammu and Kashmir States to be appointed by the respective
Governments in consultation with the Central Government and the Principal who shall also be the ex-officio Secretary.
The Rules of the Society are also important as they throw light on the nature of the Society.
Rule 3 Clause (i) reiterates the composition of the Society as set out in Clause 9 of the
Memorandum of Association and Clause (ii) of that Rule provides that the State and the
Central Governments may by mutual consultation at any time appoint any other person or persons to be member or members of the Society. Rule 6 vests the general superintendence, direction and control of the affairs and its income and property in the governing body of the
Society which is called the Board of Governors. Rule 7 lays down the Constitution of the
Board of Governors by providing that it shall consist of the Chief Minister of the State
Government as Chairman and the following as members: Three nominees of the State
Government, three nominees of the Central Government, one representative of the All India
Council for Technical Education, Vice-Chancellor of the University of Jammu and Kashmir, two industrialists/technologists in the region to be nominated by the State Government, one nominee of the Indian Institute of Technology in the region, one nominee of the University
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Grants Commission two representatives of the Faculty of the College and the Principal of the college as ex-officio member-Secretary. The State Government is empowered by Rule 10 to remove any member of the Society other than a member representing the State or Central
Government from the membership of the Society with the approval of the Central
Government. Clause (iv) of Rule 15 confers power on the Board to make bye-laws for admission of students to various courses and Clause (xiv) of that Rule empowers the Board to delegate to a committee or to the Chairman such of its powers for the conduct of its business as it may deem fit, subject to the condition that the action taken by the committee of the
Chairman shall be reported for confirmation at the next meeting of the Board. Clause (xv) of
Rule; 15 provides that the Board shall have power to consider and pass resolution on the annual report, the annual accounts and other financial estimates of the college, but the annual report and the annual accounts together with the resolution passed thereon are required to be submitted to the State and the Central Governments. The Society is empowered by Rule 24,
Clause (i) to alter, extend or abridge any purpose or purposes for which it is established, subject to the prior approval of the State and the Central Governments and Clause (ii) of Rule
24 provides that the Rules may be altered by a Resolution passed by a majority of 2/3rd of the members present at the meeting of the Society, but such alteration shall be with the approval of the State and the Central Governments.
Pursuant to Clause (iv) of Rule 15 of the Rules, the Board of Governors laid down the procedure for admission of students to various courses in the college by a Resolution dated
4th June, 1974. We are not directly concerned with the admission procedure laid down by this
Resolution save and except that under this Resolution admissions to the candidates belonging to the State of Jammu and Kashmir were to be given on the basis of comparative merit to be determined by holding a written entrance test and a viva voce examination and the marks allocated for the written test in the subjects of English, Physics, Chemistry and Mathematics were 100, while for viva voce examination, the marks allocated were 50 divided as follows:
(i) General Knowledge and Awareness-15; (ii) Broad understanding of Specific Phenomenon15; (iii) Extra-curricular activities-10 and (iv) General Personality Trait-10, making up in the aggregate-50. The admissions to the college were governed by the procedure laid down in this
Resolution until the academic year 1979-80, when the procedure was slightly changed and it was decided that out of 250 seats, which were available for admission, 50% of the seats shall be reserved for candidates belonging to the Jammu & Kashmir State and the remaining 50% for candidates belonging to other States, including 15 seats reserved for certain categories of students. So far as the seats reserved for candidates belonging to States other than Jammu &
Kashmir were concerned, certain reservations were made for candidates belonging to
Scheduled Castes and Scheduled Tribes and sons and wards of defence personnel killed or disabled during hostilities and it was provided that "inter se merit will be determined on the basis of marks secured in the subjects of English, Physics, Chemistry and Mathematics only".
The provision made with regard to seats reserved for candidates belonging to Jammu &
Kashmir State was that "apart from 2 seats reserved for the sons and daughters of the permanent college employees, reservations shall be made in accordance with the Orders of
Jammu and Kashmir Government for admission to technical institutions and the seats shall be filled up on the basis of comparative merit as determined under the following scheme, both for seats to be filled on open merit and for reserved seats in each category separately; (1) marks for written test-100 and (2) marks for viva voce examination-50, marking up in the aggregate-150. It was not mentioned expressly that the marks for the written test shall be in the subjects of Physics, English, Chemistry and Mathematics nor were the factors to be taken into account in the viva voce examination and the allocation of marks for such factors indicated specifically in the admission procedure laid down for the academic year 1979-80,
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but we were told and this was not disputed on behalf of the petitioners in any of the writ petitions, that the subjects in which the written test was held were English, Physics, Chemistry and Mathematics and the marks at the viva voce examination were allocated under the same four heads and in the same manner as in, the case of admissions under the procedure laid down in the Resolution dated 4th June, 1974.
In or about April 1979, the college issued a notice inviting applications for admission to the first semester of the B.E. course in various branches of engineering and the notice set out the above admission procedure to be followed in granting admissions for the academic year
1979-80. The petitioners in the writ petitions before us applied for admission to the first semester of the B.E. course in one or the other branch of engineering and they appeared in the written test which was held on 16th and 17th June, 1979. The petitioners were thereafter required to appear before a Committee consisting of three persons for viva voce test and they were interviewed by the Committee. The case of the petitioners was that the interview of each of them did not last for more than 2 or 3 minutes per candidate on an average and the only questions which were asked to them were formal questions relating to their parentage and residence and hardly any question was asked which would be relevant to any of the tour factors for which marks were allocated at the viva voce examination. When the admissions were announced, the petitioners found that though they had obtained very good marks in the qualifying examination, they had not been able to secure admission to the college because the marks awarded to them at the viva voce examination were very low and candidates who had much less marks at the qualifying examination, had succeeded in obtaining very high marks at the viva voce examination and thereby managed to secure admission in preference to the petitioners. The petitioners filed before us a chart showing by way of comparison the marks obtained by the petitioners on the one hand and some of the successful candidates on the other at the qualifying examination, in the written test and at the viva voce examination. This chart shows beyond doubt that the successful candidates whose marks are given in the chart had obtained fairly low marks at the qualifying examination as also in the written test, but they had been able to score over the petitioners only on account of very high marks obtained by them at the viva voce examination. The petitioners feeling aggrieved by this mode of selection filed the present writ petitions challenging the validity of the admissions made to the college on various grounds. Some of these grounds stand concluded by the recent decision of this
Court in Nishi Maghu v. State of Jammu & Kashmir, [1980] 3 SCR 1253 and they were therefore not pressed before us. Of the other grounds, only one was canvassed before us and we shall examine it in some detail.
But before we proceed to consider the merits of this ground of challenge, we must dispose of a preliminary objection raised on behalf of the respondents against the maintainability of the writ petition. The respondents contended that the college is run by society which is not a corporation created by a statute but is a society registered under the Jammu & Kashmir
Societies Registration Act, 1898 and it is therefore not an 'authority ' within the meaning of
Article 12 of the Constitution and no writ petition can be maintained against it, nor can any complaint be made that it has acted arbitrarily in the matter of granting admissions and violated the equality clause of the Constitution.
Now it is obvious that the only ground on which the validity of the admissions to the college can be assailed is that the society adopted an arbitrary procedure for selecting candidates for admission to the college and this resulted in denial of equality to the petitioners in the matter of admission violative of Article 14 of the Constitution. It would appear that prima facie protection against infraction of Article 14 is available only against the State and complaint of arbitrariness and denial of equality can therefore be sustained against the society only if the society can be shown to be State for the purpose of Article 14. Now 'State ' is defined
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in Article 12 to include inter alia the Government of India and the Government of each of the
States and all local or other authorities within the territory of India or under the control of the
Government of India and the question therefore is whether the Society can be said to be 'State ' within the meaning of this definition. Obviously the Society cannot be equated with the
Government of India or the Government of any State nor can it be said to be a local authority and therefore, it must come within the expression "other authorities" if it is to fall within the definition of 'State '. That immediately leads us to a consideration of the question as to what are the "other authorities" contemplated in the definition of 'State ' in Article 13.
While considering this question it is necessary to bear in mind that an authority falling within the expression "other authorities" is, by reason of its inclusion within the definition of 'State ' in Article 12, subject to the same constitutional limitations as the Government and is equally bound by the basic obligation to obey the constitutional mandate of the Fundamental
Rights enshrined in Part III of the Constitution. We must therefore give such an interpretation to the expression "other authorities" as will not stultify the operation and reach of the fundamental rights by enabling the Government to its obligation in relation to the Fundamental
Rights by setting up an authority to act as its instrumentality or agency for carrying out its functions. Where constitutional fundamentals vital to the maintenance of human rights are at stake, functional realism and not facial cosmetics must be the diagnostic tool, for constitutional law must seek the substance and not the form.
Now it is obvious that the Government may act through the instrumentality or agency of natural persons or it may employ the instrumentality or agency of juridical persons to carry out its functions. In the early days when the Government had limited functions, it could operate effectively through natural persons constituting its civil service and they were found adequate to discharge governmental functions which were of traditional vintage. But as the tasks of the Government multiplied with the advent of the welfare State, it began to be increasingly felt that the frame work of civil service was not sufficient to handle the new tasks which were often specialised and highly technical in character and which called for flexibility of approach and quick decision making. The inadequacy of the civil service to deal with these new problems came to be realised and it became necessary to forge a new instrumentality or administrative device for handling these new problems. It was in these circumstances and with a view to supplying this administrative need that the corporation came into being as the third arm of the Government and over the years it has been increasingly utilised by the Government for setting up and running public enterprises and carrying out other public functions.
Today with increasing assumption by the Government of commercial ventures and economic projects, the corporation has become an effective legal contrivance in the hands of the Government for carrying out its activities, for it is found that this legal facility of corporate instrument provides considerable flexibility and elasticity and facilitates proper and efficient management with professional skills and on business principles and it is blissfully free from
"departmental rigidity, slow motion procedure and hierarchy of officers". The Government in many of its commercial ventures and public enterprises is resorting to more and more frequently to this resourceful legal contrivance of a corporation because it has many practical advantages and at the same time does not involve the slightest diminution in its ownership and control of the undertaking. In such cases "the true owner is the State, the real operator is the
State and the effective controllorate is the State and accountability for its actions to the community and to Parliament is of the State."
It is undoubtedly true that the corporation is a distinct juristic entity with a corporate structure of its own and it carries on its functions on business principles with a certain amount of autonomy which is necessary as well as useful from the point of view of effective business management, but behind the formal ownership which is cast in the corporate mould, the reality
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is very much the deeply pervasive presence of the Government. It is really the Government which acts through the instrumentality or agency of the corporation and the juristic veil of corporate personality worn for the purpose of convenience of management and administration cannot be allowed to obliterate the true nature of the reality behind which is the Government.
Now it is obvious that if a corporation is an instrumentality or agency of the Government, it must be subject to the same limitations in the field of constitutional law as the Government itself, though in the eye of the law it would be a distinct and independent legal entity.
If the Government acting through its officers is subject to certain constitutional limitations, it must follow a fortiorari that the Government acting through the instrumentality or agency of a corporation should equally be subject to the same limitations. If such a corporation were to be free from the basic obligation to obey the Fundamental Rights, it would lead to considerable erosion of the efficiency of the Fundamental Rights, for in that event the
Government would be enabled to over-ride the Fundamental Rights by adopting the stratagem of carrying out its functions through the instrumentality or agency of a corporation, while retaining control over it. The Fundamental Rights would then be reduced to little more than an idle dream or a promise of unreality. It must be remembered that the Fundamental Rights are constitutional guarantees given to the people of India and are not merely paper hopes or fleeting promises and so long as they find a place in the Constitution, they should not be allowed to be emasculated in their application by a narrow and constricted judicial interpretation. The courts should be anxious to enlarge the scope and width of the Fundamental
Rights by bringing within their sweep every authority which is an instrumentality or agency of the Government or through the corporate personality of which the Government is acting, so as to subject the Government in all its myriad activities, whether through natural persons or through corporate entities, to the basic obligation of the Fundamental Rights.
The constitutional philosophy of a democratic socialist republic requires the Government to undertake a multitude of socio-economic operations and the Government, having regard to the practical advantages of functioning through the legal device of a corporation, embarks on myriad commercial and economic activities by resorting to the instrumentality or agency of a corporation, but this contrivance of carrying on such activities through a corporation cannot exonerate the Government from implicit obedience to the Fundamental Rights. To use the corporate methodology is not to liberate the Government from its basic obligation to respect the Fundamental Rights and not to over-ride them. The mantle of a corporation may be adopted in order to free the Government from the inevitable constraints of red-tapism and slow motion but by doing so, the Government cannot be allowed to play truant with the basic human rights. Otherwise it would be the easiest thing for the government to assign to a plurality of corporations almost every State business such as Post and Telegraph, TV and
Radio, Rail Road and Telephones-in short every economic activity-and thereby cheat the people of India out of the Fundamental Rights guaranteed to them. That would be a mockery of the Constitution and nothing short of treachery and breach of faith with the people of India, because, though apparently the corporation will be carrying out these functions, it will in truth and reality be the Government which will be controlling the corporation and carrying out these functions through the instrumentality or agency of the corporation. We cannot by a process of judicial construction allow the Fundamental Rights to be rendered futile and meaningless and thereby wipe out Chapter III from the Constitution. That would be contrary to the constitutional faith of the post-Menka Gandhi era. It is the Fundamental Rights which along with the Directive Principles constitute the life force of the Constitution and they must be quickened into effective action by meaningful and purposive interpretation. If a corporation is found to be a mere agency or surrogate of the Government, "in fact owned by the
Government, in truth controlled by the government and in effect an incarnation of the government," the court must not allow the enforcement of Fundamental Rights to be frustrated
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by taking the view that it is not the government and therefore not subject to the constitutional limitations. We are clearly of the view that where a corporation is an instrumentality or agency of the government, it must be held to be an 'authority ' within the meaning of Article 12 and hence subject to the same basic obligation to obey the Fundamental Rights as the government.
We may point out that this very question as to when a corporation can be regarded as an 'authority ' within the meaning of Article 12 arose for consideration before this Court in R.D.
Shetty v. International Airport Authority of India, [1979] 1 S.C.R.1042 There, in a unanimous judgment of three Judges delivered by one of us (Bhagwati, J) this Court pointed out:
So far as India is concerned, the genesis of the emergence of corporations as instrumentalities or agencies of Government is to be found in the
Government of India Resolution on Industrial Policy dated 6th April,
1948 where it was stated inter alia that "management of State enterprises will as a rule be through the medium of public corporation under the statutory control of the Central Government who will assume such powers as may be necessary to ensure this." It was in pursuance of the policy envisaged in this and subsequent resolutions on Industrial policy that corporations were created by Government for setting up and management of public enterprises and carrying out other public functions. Ordinarily these functions could have been carried out by
Government departmentally through its service personnel but the instrumentality or agency of the corporation was resorted to in these cases having regard to the nature of the task to be performed. The corporations acting as instrumentality or agency of Government would obviously be subject to the same limitations in the field of constitutional and administrative law as Government itself, though in the eye of the law, they would be distinct and independent legal entities. If Government acting through its officers is subject to certain constitutional and public law limitations, it must follow a fortiori that Government acting through instrumentality or agency of corporations should equally be subject to the same limitations.
The Court then addressed itself to the question as to how to determine whether a corporation is acting as an instrumentality or agency of the Government and dealing with that question, observed: A corporation may be created in one of two ways. It may be either established by statute or incorporated under a law such as the Companies
Act 1956 or the Societies Registration Act 1860. Where a Corporation is wholly controlled by Government not only in its policy making but also in carrying out the functions entrusted to it by the law establishing it or by the Charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of Government. But ordinarily where a corporation is established by statute, it is autonomous in its working, subject only to a provision, often times made, that it shall be bound by any directions that may be issued from time to time by Government in respect of policy matters. So also a corporation incorporated under law is managed by a board of directors or committee of management in accordance with the provisions of the statute under which it is incorporated. When does such a corporation become an instrumentality or agency of Government? Is the holding of the entire share capital of the Corporation by Government enough or is it necessary that in addition there should be a certain amount of direct control exercised by
Government and, if so what should be the nature of such control? Should the functions which the Corporation is charged to carry out possess any particular characteristic or feature, or is the nature of the functions immaterial? Now, one thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of
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Government. But, as is quite often the case, a corporation established by statute may have no shares or shareholders, in which case it would be a relevant factor to consider whether the administration is in the hands of a board of directors appointed by Government though this consideration also may not be determinative, because even where the directors are appointed by Government, they may be completely free from governmental control in the discharge of their functions. What then are tests to determine whether a corporation established by statute or incorporated under law is an instrumentality or agency of Government?
It is not possible to formulate an inclusive or exhaustive test which would adequately answer this question. There is no cut and dried formula, which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those which are not.
The Court then proceeded to indicate the different tests, apart from ownership of the entire share capital:
...if extensive and unusual financial assistance is given and the purpose of the
Government in giving such assistance coincides with the purpose for which the corporation is expected to ' use the assistance and such purpose is of public character, it may be a relevant circumstance supporting an inference that the corporation is an instrumentality or agency of Government.... It may therefore be possible to say that where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character....
But a finding of State financial support plus an unusual degree of control over the management and policies might lead one to characterise an operation as State action-Vide Sukhdev v. Bhagatram … So also the existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality. It may also be a relevant factor to consider whether the corporation enjoys monopoly status which is State conferred or State protected. There can be little doubt that State conferred or State protected monopoly status would be highly relevant in assessing the aggregate weight of the corporation 's ties to the State.
There is also another factor which may be regarded as having a bearing on this issue and it is whether the operation of the corporation is an important public function. It has been held in the United States in a number of cases that the concept of private action must yield to a conception of State action where public functions are being performed. Vide Arthur S. Miller:
"The Constitutional Law of the Security State" (10 Stanford Law Review 620 at 664).
It may be noted that besides the so-called traditional functions, the modern state operates as multitude of public enterprises and discharges a host of other public functions. If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. This is precisely what was pointed out by Mathew, J., in Sukhdev v.
Bhagatram (supra) where the learned Judge said that "institutions engaged in matters of high public interest of performing public functions are by virtue of the nature of the functions performed government agencies. Activities which are too fundamental to the society are by definition too important not to be considered government functions.
The court however proceeded to point out with reference to the last functional test:
...the decisions show that even this test of public or governmental character of the function is not easy of application and does not invariably lead to the correct inference because the range of governmental activity is broad and varied and merely because an activity may be such as may legitimately be carried on by Government, it does not mean that a corporation, which is otherwise a private entity, would
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be an instrumentality or agency of Government by reason of carrying on such activity. In fact, it is difficult to distinguish between governmental functions and non-governmental functions. Perhaps the distinction between governmental and non-governmental functions is not valid any more in a social welfare State where the laissez faire is an outmoded concept and Herbert Spencer 's social statics has no place. The contrast is rather between governmental activities which are private and private activities which are governmental. [Mathew, J. Sukhdev v. Bhagatram
(supra) at p. 652]. But the public nature of the function, if impregnated with governmental character or "tied or entwined with Government" or fortified by some other additional factor, may render the corporation an instrumentality or agency of Government. Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of the inference.
These observations of the court in the International Airport Authority 's case (supra) have our full approval.
The tests for determining as to when a corporation can be said to be a instrumentality or agency of Government may now be called out from the judgment in the International Airport
Authority 's case. These tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression "other authorities", it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the International Airport Authority 's case as follows:
(1) One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.
(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.
(3) It may also be a relevant factor...whether the corporation enjoys monopoly status which is the State conferred or State protected.
(4) Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.
(5) If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.
(6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government.
If on a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of government, it would, as pointed out in the International Airport
Authority 's case, be an 'authority ' and, therefore, 'State ' within the meaning of the expression in Article 12.
………
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We may point out that it is immaterial for this purpose whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the
Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The corporation may be a statutory corporation created by a statute or it may be a Government Company or a company formed under the Companies Act, 1956 or it may be a society registered under the Societies
Registration Act, 1860 or any other similar statute. Whatever be its genetical origin, it would be an "authority" within the meaning of Article 12 if it is an instrumentality or agency of the
Government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression "authority" in Article 12.
It is also necessary to add that merely because a juristic entity may be an "authority" and therefore "State" within the meaning of Article 12, it may not be elevated to the position of
"State" for the purpose of Articles 309, 310 and 311 which find a place in Part XIV. The definition of "State" in Article 12 which includes an "authority" within the territory of India or under the control of the Government of India is limited in its application only to Part III and by virtue of Article 36, to Part IV. It does not extend to the other provisions of the
Constitution and hence a juristic entity which may be "State" for the purpose of Parts III and
IV would not be so for the purpose of Part XIV or any other provision of the Constitution.
That is why the decisions of this Court in S. L. Aggarwal v. Hindustan Steel Ltd. [1970] 3
S.C.R. 365 and other cases involving the applicability of Article 311 have no relevance to the issue before us.
………
It is in the light of this discussion that we must now proceed to examine whether the
Society in the present case is an "authority" falling within the definition of "State" in
Article 12. Is it an instrumentality or agency of the Government? The answer must obviously be in the affirmative if we have regard to the Memorandum of Association and the Rules of the Society. The composition of the Society is dominated by the representatives appointed by the Central Government and the Governments of Jammu & Kashmir, Punjab, Rajasthan and
Uttar Pradesh with the approval of the Central Government. The monies required for running the college are provided entirely by the Central Government and the Government of Jammu
& Kashmir and even if any other monies are to be received by the Society, it can be done only with the approval of the State and the Central Governments. The Rules to be made by the
Society are also required to have the prior approval of the State and the Central Governments and the accounts of the Society have also to be submitted to both the Governments for their scrutiny and satisfaction. The Society is also to comply with all such directions as may be issued by the State Government with the approval of the Central Government in respect of any matters dealt with in the report of the Reviewing Committee. The control of the State and the Central Governments is indeed so deep and pervasive that no immovable property of the
Society can be disposed of in any manner without the approval of both the Governments. The
State and the Central Governments have even the power to appoint any other person or persons to be members of the Society and any member of the Society other than a member representing the State or the Central Government can be removed from the membership of the Society by the State Government with the approval of the Central Government. The Board of Governors, which is in charge of general superintendence, direction and control of the affairs of Society and of its income and property is also largely controlled by nominies of the State and the
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Central Governments. It will thus be seen that the State Government and by reason of the provision for approval, the Central Government also, have full control of the working of the
Society and it would not be incorrect to say that the Society is merely a projection of the State and the Central Governments and to use the words of Ray, C.J. in Sukhdev Singh 's case
(supra), the voice is that of the State and the Central Governments and the hands are also of the State and the Central Governments. We must, therefore, hold that the Society is an instrumentality or agency of the State and the Central Governments and it is an 'authority ' within the meaning of Article 12.
… [Discussion on Article 14 and non arbitrariness in State Action has been omitted] …
DALCO ENGINEERING V. S. P. PADHYE
AIR 2010 SC 1576, (2010) 4 SCC 378
Decided On: March 31, 2010
BENCH – JUSTICES R. V. RAVEENDRAN, R. M. LODHA & C. K. PRASAD
JUSTICE RAVEENDRAN (FOR THE COURT)
… [One Mr. S. P. Padhye was in employment of a private limited company (incorporated under the Companies Act, 1956) for more than 20 years. The private company terminated the employment of Padhye because he had become deaf. Padhye approached the Disability Commissioner alleging that when he joined the service, he was fit and able and the hearing impairment that he had acquired was acquired during the period of service, thus, instead of terminating his employment, he should have been given alternate employment of a suitable nature. The Disability Commissioner found in favor of Padhye and suggested that the private company to re-employ Padhye. The company rejected the suggestion.
Padhye then approached the High Court arguing that the Commissioner should have made an order under Section 47 of the Person with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 (‘the 1995 Act’) and accordingly prayed that the the private company should be directed to re-employ him in a suitable post. The High Court allowed the Writ Petition and held that the private company was an ‘establishment’ as defined in Section 2(k) of the 1995 Act.
The private company brought the case to the Supreme Court arguing that they do not fall with the scope of an ‘establishment’ as defined in Section 2(k) of the 1995 Act. Article 12 of the Constitution and the doctrine of the Court on the point was then used to interpret provisions of the 1995 Act to decide whether a private company could come within the scope of an ‘establishment’ as defined therein.] …
Questions for decision
4. The employee relies on Section 47 which provides that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. Section 47 of the Act is extracted below:
47. Non-discrimination in Government employment.--(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:
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Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
(2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.
The term "establishment" employed in Section 47 is defined in Section 2(k) of the
Act as follows:
2. Definitions.--In this Act, unless the context otherwise requires, xxxxx
(k) "establishment" means a corporation established by or under a Central,
Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in
Section 617 of the Companies Act 1956 (1 of 1956) and includes Departments of a Government;
The question is, having regard to the definition of the word `establishment ' of
Section 2(k) of the Act, whether the requirement relating to non-discrimination of employees acquiring a disability during the course of service, embodied in Section 47, is to be complied with only by authorities falling within the definition of State (as defined in Article 12 of the
Constitution), or even by private employers. This leads us to the following two questions:
(i) Whether a company incorporated under the Companies Act (other than a Government company as defined in Section 617 of the Companies Act, 1956) is an "establishment" as defined in Section 2(k) of the Act?
(ii) Whether the respondent in the first case and the appellant in the second case are entitled to claim any relief with reference to Section 47 of the Act?
Re: Question (i)
Let us examine the meaning of the crucial word `establishment ' used in Sub-section (1) of
Section 47 of the Act. The definition of the word `establishment ' in Section2(k), when analyzed, shows that it is an exhaustive definition, and covers the following categories of employers: (i) a corporation established by or under a Central, Provincial, or State Act;
(ii) an authority or a body owned or controlled or aided by the Government;
(iii) a local authority;
(iv) a Government company as defined in Section 617 of the Companies Act, 1956; and
(v) Departments of a Government.
It is not in dispute that the employers in these two cases are companies incorporated under the Companies Act, 1956 which do not fall under categories (ii) to (v) specified in
Section 2(k) of the Act.
The employee contends that a company incorporated under the Companies Act is a
Corporation falling under the first category enumerated in Section 2(k), that is `Corporation established by or under a Central, Provincial or State Act ', on the following reasoning : that a corporation refers to a company; that Companies Act is a Central Act; and that therefore a company incorporated and registered under the Companies Act is a Corporation established
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under a Central Act. He contends that the use of the words "by or under" is crucial. According to him, `a corporation established by an Act ' would refer to a corporation brought into existence by an Act; and a `corporation established under an Act ' would refer to a company incorporated under the Companies Act. On the other hand, the employer contends that the term `Corporation established by or under a Central, Provincial or State Act ' refers to a statutory Corporation which is brought into existence by a statute, or under a statute and does not include a company which is registered under the Companies Act. It is submitted that
Companies Act merely facilitates and lays down the procedure for incorporation of a company which, when incorporated, will be governed by the provisions of the said Act and therefore, a company registered under the Companies Act, is not a corporation established under an Act.
The words "a Corporation established by or under a Central, Provincial or State Act" is a standard term used in several enactments to denote a statutory corporation established or brought into existence by or under statute. For example, it is used in Sub-clause (b) of
Clause Twelfth of Section 21 of the Indian Penal Code (`IPC ' for short) and Section 2(c)(iii) of the Prevention of Corruption Act, 1988 (`PC Act ' for short). Both these statutes provide that a person in the service of a `Corporation established by or under a Central, Provincial or
State Act ' is a public servant. The Prevention of Damage to Public Property Act, 1984 defines
`public property ' as meaning any property owned by, or in the possession of, or under the control of (i) the Central Government (ii) any state government; or (iii) any local authority; or
(iv) any corporation established by, or under, a Central, Provincial or State Act; or (v) any company as defined in Section 617 of the Companies Act, 1956; or (vi) any institution, concern or undertaking which the Central Government may, by notification in the Official
Gazette, specify in that behalf provided that the Central Government shall not specify any institution, concern or undertaking under that sub- clause unless such institution, concern or undertaking is financed wholly or substantially by funds provided directly or indirectly by the
Central Government or by one or more State Governments, or partly by the Central
Government and partly by one or more State Governments. Thus the term is always used to denote certain categories of authorities which are `State ' as contrasted from non-statutory companies which do not fall under the ambit of `State '.
9. The meaning of the term came up for consideration in S.S. Dhanoa v. Municipal
Corporation, Delhi, 1981 (3) SCC 431 with reference to Section 21 of IPC. This Court held:
Clause Twelfth does not use the words "body corporate", and the question is whether the expression "corporation" contained therein, taken in collocation of the words "established by or under a Central, Provincial or State Act" would bring within its sweep a cooperative society. Indubitably, the Cooperative Store Limited is not a corporation established by a Central or State Act. The crux of the matter is whether the word 'under ' occurring in Clause Twelfth of Section 21 of the Indian
Penal Code makes a difference. Does the mere act of incorporation of a body or society under a Central or a State Act make it a corporation within the meaning of Clause Twelfth of Section 21. In our opinion, the expression 'corporation ' must, in the context, mean a corporation created by the Legislature and not a body or society brought into existence by an act of a group of individuals. A cooperative society is, therefore, not a corporation established by or under an Act of the
Central or State Legislature.
A corporation is an artificial being created by law having a legal entity entirely separate and distinct from the individuals who compose it with the capacity of continuous existence and succession, notwithstanding changes in its membership.... The term 'corporation ' is, therefore, wide enough to include private corporations. But, in the context of Clause Twelfth of Section21 of the Indian
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Corporation, in its widest sense, may mean any association of individuals entitled to act as an individual. But that certainly is not the sense in which it is used here. Corporation established by or under an Act of Legislature can only mean a body corporate which owes its existence, and not merely its corporate status, to the Act. For example, a Municipality, a Zilla Parishad or a Gram Panchayat owes its existence and status to an Act of Legislature. On the other hand, an association of persons constituting themselves into a Company under the Companies Act or a Society under the Societies Registration Act owes its existence not to the Act of
Legislature but to acts of parties though, it may owe its status as a body corporate to an Act of Legislature.
There is a distinction between a corporation established by or under an Act and a body incorporated under an Act. The distinction was brought out by this Court in Sukhdev Singh v. Bhagatram, (1975) 1 SCC 421. It was observed:
A company incorporated under the Companies Act is not created by the
Companies Act but comes into existence in accordance with the provisions of the
Act.
There is thus a well-marked distinction between a body created by a statute and a body which, after coming into existence, is governed in accordance with the provisions of a statute.
(emphasis supplied)
In Executive Committee of Vaish Degree College v. Lakshmi Narain, 1976 (2) SCC 58, this Court explained the position further:
In other words the position seems to be that the institution concerned must owe its very existence to a statute which would be the fountainhead of its powers. The question in such case to be asked is, if there is no statute, would the institution have any legal existence. If the answer is in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body.
(emphasis supplied)
A `company ' is not `established ' under the Companies Act. An incorporated company does not `owe ' its existence to the Companies Act. An incorporated company is formed by the act of any seven or more persons (or two or more persons for a private company) associated for any lawful purpose subscribing their names to a Memorandum of Association and by complying with the requirements of the Companies Act in respect of registration. Therefore, a `company ' is incorporated and registered under the Companies Act and not established under the Companies Act. Per contra, the Companies Act itself establishes the National Company
Law Tribunal and National Company Law Appellate Tribunal, and those two statutory authorities owe their existence to the Companies Act.
Where the definition of `establishment ' uses the term `a corporation established by or under an Act ', the emphasis should be on the word `established ' in addition to the words `by or under '. The word `established ' refers to coming into existence by virtue of an enactment. It does not refer to a company, which, when it comes into existence, is governed in accordance with the provisions of the Companies Act. But then, what is the difference between
`established by a central Act ' and `established under a central Act '?
The difference is best explained by some illustrations. A corporation is established by an
Act, where the Act itself establishes the corporation. For example, Section 3 of State Bank of
India Act, 1955 provides that a Bank to be called the State Bank of India shall be constituted to carry on the business of banking. Section 3 of Life Insurance Corporation Act, 1956 provides that with effect from such date as the Central Government may by notification in the
Official Gazette appoint, there shall be established a corporation called the Life Insurance
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Corporation of India. State Bank of India and Life Insurance Corporation of India are two examples of corporations established by "a Central Act". We may next refer to the State
Financial Corporation Act, 1951 which provides for establishment of various Financial
Corporations under that Act. Section 3 of that Act relates to establishment of State Financial
Corporations and provides that the State Government may, by notification in the Official
Gazette establish a Financial Corporation for the State under such name as may be specified in the notification and such Financial Corporation shall be a body corporate by the name notified. Thus, a State Financial Corporation is established under a central Act. Therefore, when the words "by and under an Act" are preceded by the words "established", it is clear that the reference is to a corporation established, that it is brought into existence, by an Act or under an Act. In short, the term refers to a statutory corporation as contrasted from a nonstatutory corporation incorporated or registered under the Companies Act.
There is indication in the definition of `establishment ' itself, which clearly establishes that all companies incorporated under the Companies Act are not establishments. The enumeration of establishments in the definition of `establishment ' specifically includes "a Government
Company as defined in Section 617 of the Companies Act, 1956". This shows that the legislature, took pains to include in the definition of `establishment ' only one category of companies incorporated under the Companies Act, that is the `Government Companies ' as defined in Section 617 of the Companies Act. If, as contended by the employee, all Companies incorporated under the Companies Act are to be considered as `establishments ' for the purposes of Section 2(k), the definition would have simply and clearly stated that `a company incorporated or registered under the Companies Act, 1956 ' which would have included a
Government company defined under Section 617 of the Companies Act, 1956. The inclusion of only a specific category of companies incorporated under the Companies Act, 1956 within the definition of `establishment ' necessarily and impliedly excludes all other types of companies registered under the Companies Act, 1956, from the definition of `establishment '.
It is clear that the legislative intent was to apply Section 47 of the Act only to such establishments as were specifically defined as `establishment ' under Section 2(k) of the Act and not to other establishments. The legislative intent was to define `establishment ' so as to be synonymous with the definition of `State ' under Article 12 of the Constitution of India.
Private employers, whether individuals, partnerships, proprietary concerns or companies
(other than Government companies) are clearly excluded from the `establishments ' to which
Section 47 of the Act will apply.
There is yet another indication in Section 47, that private employers are excluded. The caption/ marginal note of Section 47 describes the purport of the section as non-discrimination in Government employment. The word `government ' is used in the caption, broadly to refer to
`State ' as defined in Article 12 of the Constitution. If the intention of the legislature was to prevent discrimination of persons with disabilities in any kind of employment, the marginal note would have simply described the provision as `non-discrimination in employment ' and
Sub-section (1) of Section 47 would have simply used the word `any employer ' instead of using the word `establishment ' and then taking care to define the word `establishment '. The non-use of the words `any employer ', and `any employment ' and specific use of the words
`Government employment ' and `establishment ' (as defined), demonstrates the clear legislative intent to apply the provisions of Section 47 only to employment under the State and not to employment under others. While the marginal note may not control the meaning of the body of the section, it usually gives a safe indication of the purport of the section to the extent possible. Be that as it may.
The learned Counsel for the employee submitted that the decision in Dhanoa was rendered with reference to a penal statute; and that words or terms in such statutes are used in a
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restrictive and strict sense. He contended that definition of words and terms in a penal statute will not provide a safe guide to interpret the same words employed in socio-economic legislations. He further contended that the terms used in a socio-economic statute like
Disabilities Act, providing for full participation and equality, for people with disabilities and to remove any discrimination against them vis-à-vis non- disabled persons, should be interpreted liberally. He submitted that any interpretation of the term `a corporation established by or under a central, provincial or state Act ' with reference to the Penal Code should not therefore be imported for understanding the meaning of that term when used in the
Act. He referred to and relied upon the Statement of Objects and Reasons of the Act which states that India as a signatory to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region, enacted the Statute to provide for the following:
(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-à-vis non-disabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities; (v) to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and
(vi) to make special provision of the integration of persons with disabilities into the social mainstream.
He submitted that keeping the said objects in view, the term `establishment ' should be extended to all corporations incorporated under the Companies Act 1956, irrespective of whether they are in the public sector or private sector. He also relied upon the following principle of contextual interpretation enunciated by this Court in Reserve Bank of India v.
Peerless General Finance and Investment Co. Ltd., 1987 (1) SCC 424:
Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say is the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. The interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.
He next relied upon the principle that words in a social welfare legislation should receive liberal and broad interpretation, stated by this Court in Workman of American Express
International Banking Corporation v. Management of American Express International
Banking Corporation, 1985 (4) SCC 71:
The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and human rights legislation are not to be put in Procrustean beds or shrunk to Liliputian
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dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognized and reduced. Judges ought to be more concerned with the `colour ', the `content ' and the `context ' of such statutes (we have borrowed the words from Lord
Wilberforce 's opinion in Prenn v. Simmonds 1971 (3) All ER 237). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. In one of the cases cited before us, that is, Surendra Kumar Verma v. Central Government Industrial Tribunal-cumLabour Court, (1981) 1 SCR 789, we had occasion to say, Semantic luxuries are misplaced in the interpretation of "bread and butter" statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions.
He next relied upon the following observations in Kunal Singh v. Union of India, 2003 (4)
SCC 524, where this Court, referring to the very section under consideration, observed thus:
Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service. We agree that the socio-economic legislations should be interpreted liberally. It is also true that Courts should adopt different yardsticks and measures for interpreting socioeconomic statutes, as compared to penal statutes, and taxing statutes. But a caveat. The courts cannot obviously expand the application of a provision in a socio-economic legislation by judicial interpretation, to levels unintended by the legislature, or in a manner which militates against the provisions of the statute itself or against any constitutional limitations. In this case, there is a clear indication in the statute, that the benefit is intended to be restricted to a particular class of employees, that is employees of enumerated establishments (which fall within the scope of ‘state’ under Article 12). Express limitations placed by the socio-economic statute cannot be ignored, so as to include in its application, those who are clearly excluded by such statute itself. We should not lose sight of the fact that the words "corporation established by or under a Central, Provincial or State Act" is a term used in several enactments, intended to convey a standard meaning. It is not a term which has any special significance or meaning in the context of the Disabilities Act or any other socio-economic legislations. It is a term used in various enactments, to refer to statutory corporations as contrasted from nonstatutory companies. Any interpretation of the said term, to include private sector, will not only amount to overruling the clear enunciation in Dhanoa which has held the field for nearly three decades, but more importantly lead to the erasure of the distinction maintained in the
Constitution between statutory corporations which are `state ' and non-statutory bodies and corporations, for purposes of enforcement of fundamental rights. The interpretation put forth by the employee would make employees of all companies, public servants, amenable to punishment under the provisions of Indian Penal Code and Prevention of Corruption Act; and would also result in all non-statutory companies and private sector companies being included in the definition of ‘State’ thereby requiring them to comply with the requirements of nondiscrimination, equality in employment, reservations etc.
The appellant next contended that the scheme of the Act, does not confine its applicability to government or statutory corporations. Reference is invited to some provisions of the Act to
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contend that obligations/duties/ responsibilities are fixed with reference to persons with disabilities, on establishments other than those falling under Section 2(k) of the Act. It was submitted that Section 39 casts an obligation on all educational institutions, to reserve not less than three percent of the seats for persons with disabilities. In fact, it is not so. Though, the marginal note of Section 29 uses the words `all educational institutions ' with reference to reservation of seats for persons with disabilities, the section makes it clear that only government educational institutions and educational institutions receiving aid from the government shall reserve not less than three percent seats for persons with disabilities. It is well recognized that an aided private school would be included within the definition of ‘State’ in regard to its acts and functions as an instrumentality of the State. Therefore, care is taken to apply the provisions of the Act to only educational institutions belonging to the government or receiving aid from the government and not to unaided private educational institutions.
Further, Section 39 of the Act, does not use the word ‘establishment’.
Reference is next made to the Section 44 which requires non-discrimination in transport.
This section requires establishments in the transport sector to take special measures (within the limits of their economic capacity) to permit easy access to persons with disabilities. The employee contends that this would mean that all establishments whether statutory corporations falling under the definition of Section 2(k) of the Act or non-statuary corporations, or even individuals operating in the transport sector should comply with Section 44 of the Act. We do not propose to consider whether Section 44 applies to non-statutory corporations in the transport sector, as that issue does not arise in this case. Further the use of the words "within the limits of their economic capacity" makes it virtually directory. Be that as it may.
Re : Question (ii)
As the appellant in CA No. 1886/2007 and the third respondent in CA No. 1858/2007, are not establishments, within the meaning of that expression in Section 2(k) of the Act,
Section 47 of the Act will not apply. In so far the CA No. 1858 of 2007, there is an additional factor. Third respondent therein was not the employer of any persons with disability.
Therefore, in that case, the entire question is academic. In neither of the cases, any relief can be granted under Section 47 of the Act.
Therefore CA No. 1886 of 2007 is allowed and CA No. 1858 of 2007 is dismissed resulting in the dismissal of the respective writ petitions. This will not come in the way of employee of any private company, who has been terminated on the ground of disability, seeking or enforcing any right available under any other statute, in accordance with the law.
PRADEEP KUMAR BISWAS V. INDIAN INSTITUTE OF CHEMICAL BIOLOGY
(2002) 5 SCC 111
Decided On: April 16, 2002
BENCH – CHIEF JUSTICE S. P. BHARUCHA, JUSTICES S. M. QUADRI, R. C. LAHOTI, N. S.
HEGDE, D. RAJU, RUMA PAL & ARIJIT PASAYAT
JUSTICE RUMA PAL (FOR THE CHIEF JUSTICE, JUSTICES QUADRI, HEGDE, PASAYAT AND
HERSELF, MAJORITY OPINION)
In 1972 Sabhajit Tewary, a Junior Stenographer with the Council of Scientific and
Industrial Research (CSIR) filed a write petition under Article 32 of the Constitution claiming parity of remuneration with the stenographers who were newly recruited to the CSIR. His
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claim was based on Article 14 of the Constitution. A Bench of five judges of this Court denied him the benefit of that Article because they held in Sabhajit Tewari v. Union of India that the writ application was not maintainable against CSIR as it was not an "authority" within the meaning of Article 12 of the Constitution. The correctness of the decision is before us for reconsideration.
The immediate cause for such re-consideration is a writ application filed by the appellant in Calcutta High Court challenging the termination of their services by the respondent no. 1 which is a unit of CSIR. They prayed for an interim order before the learned Single Judge.
That was refused by the Court on the prima view that the writ application was itself not maintainable against the respondent no. 1. The appeal was also dismissed in view of the decision of this Court in Sabhajit Tewary 's case.
Challenging the order of the Calcutta High Court, the appellants filed an appeal by way of special leave before this Court. On 5th August, 1986 a Bench of two Judges of this Court referred the matter to a Constitution Bench being of the view that the decision in Sabhajit
Tewary required re-consideration "having regard to the pronouncement of this Court in several subsequent decisions in respect of several other institutes of similar nature set up by the Union of India".
The questions therefore before us are – is the CSIR a State within the meaning of
Article 12 of the Constitution and if it is should this Court reverse a decision which has stood for over a quarter of a century?
The Constitution has to an extent defined the word 'State ' in Article 12 itself as including:
"the Government and Parliament of India and the Government and the Legislature of each of the State and all local or other authorities within the territory of India or under thecontrol of the Government of India".
That an 'inclusive ' definition is generally not exhaustive is a statement of the obvious and as far as Article 12 is concerned, has been so held by this Court. The words 'State ' and 'Authority ' used in Article 12 therefore remain, to use the words of Cardozo, among "the great generalities of the Constitution" the content of which has been and continues to be supplied by Courts from time to time.
It would be a practical impossibility and an unnecessary exercise to note each of the multitude of decisions on the point. It is enough for our present purposes to merely note that the decisions may be categorized broadly into those which express an arrow and those that express a more liberal view and to consider some decisions of this Court as illustrative of this apparent divergence. In the ultimate analysis the difference may perhaps be attributable to different stages in the history of the development of the law by judicial decisions on the subject. But before considering the decisions in must be emphasized that the significance of
Article 12 lies in the fact that it occurs in Part III of the Constitution which deals with fundamental rights. The various Articles in Part-III have placed responsibilities and obligations on the 'State ' vis-à-vis the individual to ensure constitutional protection of the individual 's rights against the state, including the right to equality under Article 14 and equality of opportunity in matters of public employment under Article 16 and most importantly the right to enforce all or any of the fundamental rights against the 'State ' as defined in Article 12 either under Article 32 by this Court or under Article 226 by the High
Courts by issuance of writs or directions or orders.
The range and scope of Article 14 and consequently Article 16 have widened by a process of judicial interpretation so that the right to equality now not only means the right not to be
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discriminated against but also protection against any arbitrary or irrational act of the State. It has been said that:
"Article 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment".
Keeping pace with this broad approach to the concept of equality under Article 14 and 16,
Courts have whenever possible, sought to curb an arbitrary exercise of power against individuals by 'centers of power ', and there was correspondingly an expansion in the judicial definition of 'State ' in Article 12.
Initially the definition of State was treated as exhaustive and confined to the authorities or those which could be read ejusdem generis with the authorities mentioned in the definition of Article 12 itself. The next stage was reached when the definition of 'State ' came to be understood with reference to the remedies available against it. For example, historically, a writ of mandamus was available for enforcement of statutory duties or duties of a public nature.
Thus a statutory corporation, with regulations farmed by such Corporation pursuant to statutory powers was considered a State, and the public duty was limited to those which were created by statute.
The decision of the Constitution Bench of this Court in Rajasthan Electricity Board
v. Mohan Lal is illustrative of this. The question there was whether the Electricity Board – which was a Corporation constituted under a statute primarily for the purpose of carrying on commercial activities could come within the definition of 'State ' in Article 12. After considering earlier decisions, it was said:
"These decisions of the Court support our view that the expression "other authorities" in Article 12 will include all constitutional or statutory authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purpose of carrying on commercial activities".
It followed that since a Company incorporated under the Companies Act is not formed statutorily and is not subject to any statutory duty vis-à-vis an individual, it was excluded from the preview of 'State '. In Praga Tools Corporation v. Shri C. A. Imanual where the question was whether an application under Article 226 for issuance of a writ of mandamus would lie impugning an agreement arrived at between a Company and its workmen, the Court held that:
"....there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty. The High Court, therefore, was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lie against the company".
By 1975 Mathew, J. in Sukhdev Singh v. Bhagatram noted that the concept of "State" in
Article 12 had undergone "drastic changes in recent year". The question in that case was whether the Oil and Natural Gas Commission, the Industrial Finance Corporation and the Life
Insurance Corporation each of which were public corporations set up by statutes were authorities and therefore within the definition of State in Article 12. The Court affirmed the decision in Rajasthan State Electricity Board v. MohanLal (supra) and held that the Court could compel compliance of statutory rules. But the majority view expressed by A.N. Ray,
C.J. also indicated that the concept would include a public authority which:
"is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private profit. Such an authority is not precluded from making profit for the public benefit".
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The use of the alternative is significant. The Court scrutinised the history of the formation of the three Corporations, the financial support given by the Central Government, the utilization of the finances so provided, the nature of service rendered and noted that despite the fact that each of the Corporations on profits earned by it nevertheless the structure of each of the Corporation showed that the three Corporations represented the 'voice and hands ' of the
Central Government. The Court came to the conclusion that although the employees of the three Corporations were not servants of the Union or the State, "these statutory bodies are 'authorities ' within the meaning of Article 12 of the Constitution".
Mathew J in his concurring judgment went further and propounded a view which presaged the subsequent developments in the law. He said:
"A state is an abstract entity. It can only act through the instrumentality or agency of natural or juridical persons. Therefore, there is nothing strange in the notion of the state acting through a corporation and making it an agency or instrumentality of the State… "
For identifying such an agency or instrumentality he propounded four indicia:
(1) "A finding of the state financial support plus an unusual degree of control over the management and policies might lead one to characterize an operation as state action." (2) "Another factor which might be considered is whether the operation is an important public function."
(3) "The combination of state aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a state agency.
If a given function is of such pubic importance and so closely related to a governmental functions as to be classified as a government agency, then even the presence or absence of state financial aid might be irrelevant in making a finding of state action. If the function does not fall within such a description then mere addition of state money would not influence the conclusion."
(4) "The ultimate question which is relevant for our purpose is whether such a corporation is an agency or instrumentality of the government for carrying on a business for the benefit of the public. In other words, the question is, for whose benefit was the corporation carrying on the business?"
Sabhajit Tewary was decided by the same Bench on the same day as Sukhdev
Singh (supra). The contentions of the employee was the CSIR is an agency of the Central
Government on the basis of the CSIR Rules which, it was argued, showed that the Government controlled the functioning of CSIR in all its aspect. The submission was somewhat cursorily negatived by this Court on the ground that all this:
… "will not establish anything more than the fact that the Government takes special care that the promotion, guidance and co-operation of scientific and
Industrial Research, the institution and financing of specific researches, establishment or development and assistance to special institutions or departments of the existing institutions for scientific study of problems affecting particular industry in a trade, the utilisation of the result of the researches conducted under the auspices of the Council towards the development of industries in the country are carried out in a responsible manner."
Although the Court noted that it was the Government which was taking the "special care" nevertheless the writ petition was dismissed ostensibly because the Court factored into its decision two premises:
i) "The society does not have a statutory character like the Oil and Natural Gas
Commission or the Life Insurance Corporation or Industrial Finance Corporation.
It is a Society incorporated in accordance with the provisions of the Society 's
Registration Act", and
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ii) "This Court has held in Praga Tools Corporation v. C. A. Imanual, Heavy
Engineering Mazdoor Union v. State of Bihar, and in S. L. Agarwal v. Hindustan
Steel Ltd. that the Praga Tools Corporation, Heavy Engineering Mazdoor Union and Hindustan Steel Ltd. are all companies incorporated under the Companies Act and the employees of these companies do not enjoy the protection available to
Government servants as contemplated in Article 311. The Companies were held in these cases to have independent existence of the Government and by the law relating to corporations. These could not be held to be departments of the
Government".
With respect, we are of the view that both the premises were not really relevant and in fact contrary to the 'voice ' and 'hands ' approach in Sukhdev Singh. Besides reliance by the
Court on decisions pertaining to Article 311 which is contained in Part XIV of the Constitution was inapposite. What was under consideration was Article 12 which by definition is limited to Part III and by virtue of Article 36 to Part IV of the Constitution. As said by another
Constitution Bench later in this context:
"Merely because a juristic entity may be an "authority" and therefore "State" within the meaning of Article 12, it may not be elevated to the position of "State" for the purpose of Articles 309, 310 and 311 which find a place in Part XIV. The definition of "State" in Article 12 which includes an "authority" within the territory of India or under the control of the Government of India is (sic) in its application only to Part III and by virtue of Article 36, to Part IV: it does not extend to the other provisions of the Constitution and hence a juristic entity which may be "State" for the purpose of Parts III and IV would not be so for the purpose of Part XIV or any other provision of the Constitution. This is why the decisions of this Court in S. L. Aggarwal v. Hindustan Steel Ltd., and other cases involving the applicability of Article 311 have no relevance to the issue before us".
Normally, a precedent like Sabhajit Tewary which has stood for a length of time should not be reversed, however erroneous the reasoning if it has stood unquestioned, without its reasoning being 'distinguished ' out of all recognition by subsequent decisions and if the principles enunciated in the earlier decision can stand consistently and be reconciled with subsequent decisions of this Court, same equally authoritative. In our view Sabhajit
Tewary fulfills both conditions.
Side-stepping the majority approach in Sabhajit Tewary, the 'drastic changes ' in the perception of 'State ' heralded in Sukhdev Singh by Mathew, J and the tests formulated by him were affirmed and amplified in R. D. Shetty v. International Airport Authority of India.
Although the International Airport Authority of India is a statutory corporation and therefore within the accepted connotation of State, the Bench of three Judges developed the concept of
State. The rationale for the approach was the one adopted Mathew J in Sukhdev Singh:
"In the early days, when the Government had limited functions, it could operate effectively through natural persons constituting its civil service and they were found adequate to discharge governmental functions, which were of traditional vintage. But as the tasks of the Government multiplied with the advent of the welfare State, it began to be increasingly felt that the frame work of civil service was not sufficient to handle the new tasks which were often of specialised and highly technical character. The inadequacy of the civil service to deal with these new problems came to be realized and it became necessary to forge a new instrumentality or administrative device for handling these new problems. It was in these circumstances and with a view to supplying this administrative need that the public corporation came into being as the third arm on the Government".
From this perspective, the logical sequitur is that it really does not matter what guise the
State adopts for this purpose, whether by a Corporation established by statute or incorporated under a law such as the Companies Act or formed under the Societies Registration Act, 1860.
Neither the form of the Corporation, nor its ostensible autonomy would take away from its
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character as 'State ' and its constitutional accountability under Part III vis-à-vis the individual if it were in fact acting as an instrumentality or agency of Government.
As far as Sabhajit Tewary was concerned it was explained and distinguished in R. D.
Shetty saying:
"The Court no doubt took the view on the basis of facts relevant to the constitution and functioning of the Council that it was not an 'authority ', but we do not find any discussion in this case as to what are the features which must be present before a corporation can be regarded as an 'authority ' within the meaning of Article 12.
This decision does not lay down any principle or test for the purpose of determining when a corporation can be said to be an 'authority '. If at all any test can be gleaned from the decision, it is whether the Corporation is 'really an agency of the Government '. The Court seemed to hold on the facts that the Council was not an agency of the Government and was, therefore, not an 'authority '".
The tests propounded by Mathew, J in Sukhdev Singh were elaborated in R. D. Shetty and were re-formulated two years later by a Constitution Bench in Ajay Hasia v. Khalid Mujib.
What may have been technically characterised as obiter dicta in Sukhdev Singh and R. D.
Shetty (since in both cases the "authority" in fact involved was a statutory corporation), formed the ratio decidendi of Ajay Hasia. The case itself dealt with a challenge under Article 32 to admissions made to a college established and administered by a Society registered under the
Jammu & Kashmir Registration of Societies Act 1898. The contention of the Society was that even if there were an arbitrary procedure followed for selecting candidates for admission, and that this may have resulted in denial of equality to the petitioners in the matter of admission in violation of Article 14, nevertheless Article 14 was not available to the petitioners because the Society was not a State within Article 12.
The Court recognised that:
"Obviously the Society cannot be equated with the Government of India or the
Government of any State nor can it be said to be a local authority and therefore, it must come within the expression "other authorities" if it is to fall within the definition of 'State ' ".
But it said that:
"The courts should be anxious to enlarge the scope and width of the Fundamental
Rights by bringing within their sweep every authority which is an instrumentality or agency of the government or through the corporate personality of which the government is acting, so as to subject the government in all its myriad activities, whether through natural persons or through corporate entities, to the basic obligation of the Fundamental Rights".
It was made clear that the genesis of the corporation was immaterial and that:
"The concept of instrumentality or agency of the government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the government so as to come within the meaning of the expression "authority" in
Article 12".
R. D. Shetty was noted and quoted with approval in extenso and the tests propounded for determining as to when a corporation can be said to be an instrumentality or agency of the
Government therein were culled out and summarised as follows:
(1) One thing is clear that if the entire share capital of the corporation is held by
Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.
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(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.
(3) It may also be a relevant factor.....whether the corporation enjoys monopoly status which is State conferred or State protected.
(4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality.
(5) If the functions of the corporation are of public importance and closely related a governmental functions it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.
(6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government.
In dealing with Sabhajit Tewary the Court in Ajay Hasia noted that since Sabhajit
Tewary was a decision given by a Bench of Five Judges of this Court it was undoubtedly binding. The Court read Sabhajit Tewary as implicitly assenting to the proposition that CSIR could have been an instrumentality of agency of the Government even though it was a
Registered Society and limited the decision to the facts of the case. It held that the Court in Sabhajit Tewari:
"did not rest its conclusion on the ground that the council was a society registered under the Societies Registration Act, 1860, but proceeded to consider various other features of the council for arriving at the conclusion that it was not an agency of the government and therefore not an 'authority '".
The conclusion was then reached applying the test formulated to the facts that the Society in Ajay Hasia was an authority falling within the definition of "State" in Article 12. On the same day that the decision in Ajay Hasia was pronounced came the decision of Som Prakash
Rekhi v. Union of India. Here too, the reasoning in R. D. Shetty was followed and Bharat
Petroleum Corporation was held to be a 'State ' within the "enlarged meaning of Article 12.
Sabhajit Tewary was criticised and distinguished as being limited to the facts of the case. It was said:
"The rulings relied on are, unfortunately, in the province of Article 311 and it is clear that a body may be 'State ' under Part III but not under Part XIV. Ray, C.J., rejected the argument that merely because the Prime Minister was the President or that the other members were appointed and removed by Government did not make the Society a 'State '. With great respect, we agree that in the absence of the other features elaborated in [R. D. Shetty] the composition of the Government
Body alone may not be decisive. The laconic discussion and the limited ratio in
Tewary hardly help either side here."
The tests to determine whether a body falls within the definition of 'State ' in Article 12 laid down in R. D. Shetty with the Constitution Bench imprimatur in Ajay Hasia form the keystone of the subsequent jurisprudential superstructure judicially crafted on the subject which is apparent from a chronological consideration of the authorities cited.
In P. K. Ramachandra Iyer v. Union of India, it was held that both the Indian Council of
Agricultural Research (ICAR) and its affiliate Indian Veterinary Research Institute were bodies as would be comprehended in the expression 'other authority ' in Article 12 of the
Constitution. Yet another judicial blow was dealt to the decision in Sabhajit Tewary when it was said:
"Much water has flown down the Jamuna since the dicta in Sabhajit Tewary and conceding that it is not specifically overruled in later decision, its ratio is considerably watered down so as to be a decision confined to its own facts."
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B. S. Minhas v. Indian Statistical Institute held that the Indian Statistical Institute, a registered Society is an instrumentality of the Central Government and as such is an 'authority ' within the meaning of Article 12 of the Constitution. The basis was that the composition of respondent no. 1 is dominated by the representatives appointed by the Central Government.
The money required for running the Institute is provided entirely by the Central Government and even if any other moneys are to be received by the Institute it can be done only with the approval of the Central Government, and the accounts of the Institute have also to be submitted to the Central Government for its scrutiny and satisfaction. The Society has to comply with all such directions as may be issued by the Central Government. It was held that the control of the Central Government is deep and pervasive.
The decision in Central Inland Water Transport Corporation Ltd. v. Brojo Nath
Ganguli held that the appellant company was covered by Article 12 because it is financed entirely by three Governments and is completely under the control of the Central Government and is managed by the Chairman and Board of Directors appointed by the Central Government and removable by it and also that the activities carried on by the Corporation are of vital national importance.
However, the tests propounded in Ajay Hasia were not applied in Tekraj Vasandi alias
K.S. Basandhi v. Union of India, 1988 (1) SCC 237, where the Institute of Constitutional and
Parliamentary Studies (ICPS), a society registered under the Societies Registration Act, 1860 was held not to be an "other authority" within the meaning of Article 12. The reasoning is not very clear. All that was said was:
"Having given our anxious consideration to the facts of this case, we are not in a position to hold that ICPS is either an agency or instrumentality of the State so as to come within the purview of 'other authorities ' in Article 12 of the Constitution".
However, the Court was careful to say that "ICPS is a case of its type – typical in many ways and the normal tests may perhaps not properly apply to test its character".
All India Sainik Schools Employees ' Association v. Defence Minister, 1989 Supp. (1) SCC
205 held applying the tests indicated in Ajay Hasia that the Sainik School Society is a 'State '.
Perhaps this rather over-enthusiastic application of the broad limits set by Ajay Hasia may have persuaded this Court to curb the tendency in Chander Mohan Khanna v. National
Council of Educational Research and Training. The Court referred to the tests formulated in Sukhdev Singh, Ramana, Ajay Hasia, and Som Prakash Rekhi but striking a note of caution said that "these are merely indicative indicia and are by no means conclusive or clinching in any case". In that case, the question arose whether the National Council of Educational
Research (NCERT) was a 'State ' as defined under article 12 of the Constitution. The NCERT is a society registered under the Societies Registration Act. After considering the provisions of its Memorandum of Association as well as the rules of NCERT, this Court came to the conclusion that since NCERT was largely an autonomous body and the activities of the
NCERT were not wholly related to governmental functions and that the Government control was confined only to the proper utilisation of the grant and since its funding was not entirely from Government resources, the case did not satisfy the requirements of the State under
Article 12 of the Constitution. The Court relied principally on the decision in Tekraj Vasandi.
However, as far as the decision in Sabhajit Tewary was concerned, it was noted that "the decision has been distinguished and watered down in the subsequent decisions".
Fresh off the judicial anvil is the decision in the Mysore Paper Mills Ltd. v. The Mysore
Paper Mills Officers Association which fairly represents what we have seen as a continuity of thought commencing from the decision in Rajasthan Electricity Board in 1967 up to the present time. It held that a company substantially financed and financially controlled by the
Government, managed by a Board of Directors nominated and removable at the instance of
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the Government and carrying on important functions of public interest under the control of the Government is 'an authority ' within the meaning of Article 12.
The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be
– whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.
Coming now to the facts relating to CSIR, we have no doubt that it is well within the range of Article 12, a conclusion which is sustainable when judged according to the tests judicially evolved for the purpose.
The Formation of CSIR
On 27th April 1940 the Board of Scientific and Industrial Research and on 1st February
1941, the Industrial Research Utilisation Committee were set up by the Department of
Commerce, Government of India with the broad objective of promoting industrial growth in this country. On 14th November1941, a resolution was passed by the Legislative Assembly and accepted by the Government of India to the following effect:
"This Assembly recommends to the Governor General in Council that a fund called the Industrial Research Fund be constituted, for the purpose of fostering industrial development in this country and that provision be made in the Budget for an annual grant of rupees ten lakhs to the fund for a period of five years."
For the purpose of coordinating and exercising administrative control over the working of the two research bodies already set up by the Department of Commerce, and to oversee the proper utilisation of the Industrial Research Fund, by a further resolution dated 26th September
1942, the Government of India decided to set up a Council of Industrial Research on a permanent footing which would be a registered society under the Registration of Societies
Act, 1860. Pursuant to the resolution, on 12th March, 1942 the CSIR was duly registered. Byelaws and Rules were framed by the Governing Body of the Society in 1942 which have been subsequently revised and amended. Unquestionably this shows that the CSIR was 'created ' by the Government to carry on in an organized manner what was being done earlier by the
Department of Commerce of the Central Government. In fact the two research bodies which were part of the Department of Commerce have since been subsumed in the CSIR.
Objects and Functions
The 26th September 1942 Resolution had provided that the functions of the CSIR would be: (a) to implement and give effect to the following resolution moved by the Hon 'ble
Dewan Bahadur Sir A. R. Mudaliar and passed by the Legislative Assembly on the 14th Nov. 1941 and accepted by the Government of India … (quoted earlier in this Judgment)
(b) the promotion, guidance and co-ordination of scientific and Industrial
Research in India including the institution and the financing of specific researches: (c) the establishment or development and assistance to special institutions or
Department of existing institutions for scientific study of problems affecting particular industries and trade;
(d) the establishment and award of research studentships and fellowships;
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(e) the utilisation of the results of the researches conducted under the auspices of the Council towards the development of industrial in the country and the payment of a share of royalties arising out of the development of the results of researches to those who are considered as having contributed towards the pursuit of such researches; (f) the establishment, maintenance and management of laboratories, workshops, institutes, and organisation to further scientific and industrial research and utilise and exploit for purposes of experiment or otherwise any discovery or invention likely to be of use Indian Industries.
(g) the collection and dissemination or information in regard not only to research but to industrial matters generally;
(h) publication of scientific papers and a journal of industrial research and development, and
(i) any other activities to promote generally the objects of the resolution mentioned in (a) above.
These objects which have been incorporated in the Memorandum of Association of CSIR manifestly demonstrate that CSIR was set up in the national interest to further the economic welfare of the society by fostering planned industrial development in the country. That such a function is fundamental to the governance of the country has already been held by a
Constitution Bench of this Court as far back as in 1967 in Rajasthan Electricity Board where it was said:
"The State, as defined in Article 12, as thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people".
We are in respectful agreement with this statement of the law. The observations to the contrary in Mohan Khanna v. NCERT (supra) relied on by the Learned Attorney General in this context, do not represent the correct legal position.
Incidently, the CSIR was and continues to be a non-profit making organization and according to clause (4) of CSIR 's Memorandum of Association, all its income and property, however derived shall be applied only 'towards the promotion of those objects subject nevertheless in respect of the expenditure to such limitations as the Government of India may from time to time impose '.
Management and Control
When the Government of India resolved to set up the CSIR on 26th February, 1942 it also decided that the Governing Body would consist of the following members:
(1) The Hon’ble Member of the Council of His Excellency the Governor General in charge of the portfolio of Commerce (Ex-officio).
(2) A representative of the Commerce Department of the Government of India, appointed by the Government of India.
(3) A representative of the Finance Department of the Government of India, appointed by the Government of India.
(4) Two members of the Board of Scientific and Industrial Research elected by the said Board.
(5) Two members of the Industrial Research Utilisation committee elected by the said Committee.
(6) The Director of Scientific and Industrial Research.
(7) One or more members to be nominated by the Government of India to represent interests not otherwise represented.
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The present Rules and Regulations 1999 of CSIR provide that:
(a) The Prime Minister of India shall be the ex-office President of the Society.
(b) The Minister-in-Charge of the Ministry or Deptt. dealing with the Council of
Scientific & Industrial Research shall be the ex-officio Vice President of the
Society.
Provided that during any period when the Prime Minister is also such Minister, any person nominated in this behalf by the Prime Minister shall be the VicePresident.
(c) Ministers In charge of Finance and Industry (ex-officio).
(d) The members of the Governing Body.
(e) Chairman, Advisory Board.
(f) Any other person or persons appointed by the President, CSIR."
The Governing Body of the Society is constituted by the:
(a) Director General,
(b) Member Finance,
(c) Directors of two National Laboratories,
(d) Two eminent Scientists/Technologists, one of whom shall be from Academia;
(e) Heads of two Scientific Departments/Agencies of the Government of India.
The dominant role played by the Government of India in the Governing Body of CSIR is evident. The Director-General who is ex-officio Secretary of the Society is appointed by the
Government of India [Rule 2(iii)]. The submission of the learned Attorney General that the
Governing Body consisted of members, the majority of whom were non-governmental members is, having regard to the facts on record, unacceptable. Furthermore, the members of the Governing Body who are not there ex officio are nominated by the President and their membership can also be terminated by him and the Prime Minister is the ex officio President of CSIR. It was then said that although the Prime Minister was ex officio President of the
Society but the power being exercised by the Prime Minister is as President of the Society.
This is also the reasoning in Sabhajit Tewary. With respect, the reasoning was and the submission is erroneous. An ex officio appointment means that the appointment is by virtue of the office; without any other warrant or appointment than that resulting from the holding of a particular office. Powers may be exercised by an officer, in this case the Prime Minister, which are not specifically conferred upon him, but are necessarily implied in his office (as
Prime Minister), these are ex officio.
The control of the Government in the CSIR is ubiquitous. The Governing Body is required to administer, direct and control the affairs and funds of the Society and shall, under Rule 43, have authority 'to exercise all the powers of the Society subject nevertheless in respect of expenditure to such limitations as the Government of India may from time to time impose '.
The aspect of financial control by the Government is not limited to this and is considered separately. The Governing Body also has the power to frame, amend or repeal the bye-laws or CSIR but only with the sanction of the Government of India. Bye-law44 of the 1942 Byelaws had provided 'any alteration in the bye-laws shall require the prior approval of the
Governor General in Council '.
Rule 41 of the present Rules provide that:
"The President may review/amend/vary any of the decisions of the Governing
Body and pass such orders as considered necessary to be communicated to the
Chairman of the Governing Body within a month of the decision of the Governing
Body and such order shall be binding on the Governing Body. The Chairman may
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also refer any question which in his opinion is of sufficient importance to justify such a reference for decision of the President, which shall be binding on the
Governing Body."
Given the fact that the President of CSIR is the Prime Minister, under this Rule the subjugation of the Governing Body to the will of the Central Government is complete.
As far as the employees of the CSIR are concerned the Central Civil Services
(Classification, Control & Appeal) Rules and the Central Civil Services (Conduct) Rules, for the time being in force, are from the outset applicable to them subject to the modification that references to the President and 'Government Servant ' in the Conduct Rules would be construed as 'President of the Society ' and 'Officer & establishments in the service of the Society ' respectively. (Bye Law 12). The scales of pay applicable to all the employees of CSIR are those prescribed by the Government of India for similar personnel, save in the case of specialists (Bye Law 14) and in regard to all matters concerning service conditions of employees of the CSIR, the Fundamental and Supplementary Rules framed by the Govt. of
India and such other rules and orders issued by the Govt. of India from time to time are also, under Bye Law 15 applicable to the employees of the CSIR. Apart from this, the rules/Orders issued by Government of India regarding reservation of posts for SC/ST apply in regard to appointments to posts to be made in CSIR. (Bye Law 19). The CSIR cannot lay down or change the terms and conditions of service of its employees and any alteration in the bye-laws can be carried out only with the approval of Government of India. (Bye Laws 20).
Financial Aid
The initial capital of the CSIR was Rs. 10 lakhs, made available pursuant to the Resolution of the Legislative Assembly on 14th November, 1941. Paragraph 5 of the 26th September, 1942
Resolution of the Government of India pursuant to which CSIR was formed reads:
"The Government of India have decided that a fund, viz., the Industrial Research
Fund, should be constituted by grants from the Central Revenues to which additions are to be made from time to time as moneys flow in from other sources.
These 'other sources ' will comprise grants, if any, by Provincial Governments by industrialists for special or general purposes, contributions from Universities or local bodies, donations or benefactions, royalties, etc., received from the development of the results of Industrial Research, and miscellaneous receipts. the
Council of Scientific and Industrial Research will exercise full powers in regard to the expenditure to be met out of the Industrial Research Fund subject to its observing the Bye-laws framed by the Governing Body of the Council, from time to time, with the approval of the Governor General-in-Council, and to its annual budget being approved by the Governor General-in-Council."
As already noted, the initial capital of Rs. 10 lakhs was made available by the Central
Government. According to the statement handed up to the Court on behalf of CSIR the present financial position of CSIR is that at least 70% of the funds of CSIR are available from grants made by the Government of India. For example out of the total funds available to CSIR for the years 1998-99, 1999-2000, 2000-01 of Rs. 1023.68 crores, Rs. 1136.69 crores and Rs.
1219.04 crores respectively, the Government of India has contributed Rs. 713.32 crores, Rs.
798.74 crores and Rs. 877.88 crores. A major portion of the balance of the funds available is generated from charges for rendering research and development works by CSIR for projects such as the Rajiv Gandhi Drinking Water Mission Technology Mission on oilseeds and pulses and maize or grant in aid projects from other Government Departments. Funds are also received by CSIR from sale proceeds of its products, publications, royalties etc. Funds are also received from investments but under Bye-Law 6 of CSIR, funds of the Society may be invested only in such manner as prescribed by the Government of India. Some contributions are made by the state Governments and to a small extent by 'individuals, institutions and other
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agencies '. The non-governmental contributions are a pittance compared to the massive governmental input.
As far as expenditure is concerned, under Bye-law (1) as it stands at present, the budget estimates of the Society are to be prepared by the Governing Body 'keeping in view the instructions issued by the Government of India from time to time in this regard '. Apart from an internal audit, the accounts of the CSIR are required to be audited by the controller and
Auditor General and placed before the table of both Houses of Parliament (Rule 69).
In the event of dissolution, unlike other registered societies which are governed by
Section 14 of the Societies Registration Act, 1860, the members of CSIR have no say in the distribution of its assets and under clause (5) of the Memorandum of Association of CSIR, on the winding up or dissolution of CSIR any property remaining after payment of all debts shall have to be dealt with "in such manner as the Government of India may determine". CSIR is therefore both historically and in its present operation subject to the financial control of the
Government of India. The assets and funds of CSIR though nominally owned by the Society are in the ultimate analysis owned by the Government.
From whichever perspective the facts are considered there can be no doubt that the conclusion reached in Sabhajit Tewary was erroneous. If the decision of Sabhajit Tewary had sought to lay down as a legal principle that a society registered under the Societies Act or a company incorporated under the Companies Act is, by that reason alone, excluded from the concept of State under Article 12, it is a principle which has long since been discredited.
"Judges have made worthy, if shamefaced, efforts, while giving lip service to the rule, to riddle it with exceptions and by distinctions reduce it to a shadow".
In the assessment of the facts, the Court had assumed certain principles, and sought precedential support from decisions which were irrelevant and had "followed a groove chased amidst a context which has long since crumbled". Had the facts been closely scrutinised in the proper perspective, it could have led and can only lead to the conclusion that CSIR is a State within the meaning of Article 12.
Should Sabhajit Tewary still stand as an authority even on the facts merely because it has stood for 25 years? We think not. Parallels may be drawn even on the facts leading to an untenable interpretation of Article 12 and a consequential denial of the benefits of fundamental rights to individuals who would otherwise be entitled to them and "there is nothing in our
Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public." Since on a reexamination of the question we have come to the conclusion that the decision was plainly erroneous, it is our duty to say so and not perpetuate our mistake.
………
Sabhajit Tewary must be and is in the circumstances overruled. Accordingly the matter is remitted back to the appropriate Bench to be dealt with in the light of our decision. There will be no order as to costs.
JUSTICE LAHOTI (FOR D. RAJU AND HIMSELF, DISSENTING)
65. We have had the advantage of reading the judgment proposed by our learned sister Rama
Pal, J. With greatest respect to her, we find ourselves not persuaded to subscribe to her view overruling Sabhajit Tewary and holding Council for Scientific and Industrial Research (CSIR) 'the State ' within the meaning of Article 12 of the Constitution. The development of law has
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travelled through apparently a zig-zag track of judicial pronouncements, rhythmically traced by Rama Pal, J. in her judgment. Of necessity, we shall have to retread the track, for, we find that though the fundamentals and basic principles for determining whether a particular body is 'the State ' or not many substantially remain the same but we differ in distributing the emphasis within the principles in their applicability to the facts found. We also feel that a distinction has to be borne in mind between an instrumentality or agency of 'the State ' and an authority includible in 'other authorities '. The distinction cannot be obliterated.
… [Discussion on prior cases, argument of counsel and other authorities on the subject is omitted] …
Simply by holding a legal entity to be an instrumentality or agency of the State it does not necessarily become an authority within the meaning of 'other authorities ' in Article 12, To be an authority, the entity should have been created by a statute or under a statute and functioning with liability and obligations to public. Further the statute creating the entity should have vested that entity with power to make law or issue binding directions amounting to law within the meaning of Article 13(2) governing its relationship with other people or the affairs of other people – their rights, duties, liabilities or other legal relations. If created under a statute, then there must exist some other statute conferring on the entity such powers. In either case, it should have been entrusted with such functions as are governmental or closely associated therewith by being of public importance or being fundamental to the life of the people and hence governmental. Such authority would be the State, for, one who enjoys the powers or privileges of the State must also be subjected to limitations and obligations of the State. It is this strong statutory flavour and clear indicia of power – constitutional or statutory and its potential or capability to act to the detriment of fundamental rights of the people, which makes it an authority; though in a case, depending on the facts and circumstances, an authority may also be found to be an instrumentality or agency of the State and to that extent they may overlap. Tests 1, 2 and 4 in Ajay Hasia enable determination of Governmental ownership or control. Tests 3, 5and 6 are 'functional ' tests. The propounder of the tests himself has used the words suggesting relevancy of those tests for finding out if an entity was instrumentality or agency of the State. Unfortunately thereafter the tests were considered relevant for testing if an authority is the State and this fallacy has occurred because of difference between 'instrumentality and agency ' of the state and an 'authority ' having been lost sight of subsilentio, unconsciously and un-deliberated. In our opinion, and keeping in view the meaning which 'authority ' carries, the question whether an entity is an 'authority ' cannot be answered by applying Ajay Hasia tests.
The tests laid down in Ajay Hasia are relevant for the purpose of determining whether an entity is an instrumentality or agency of the State. Neither all the tests are required to be answered to positive nor a positive answer to one or two tests would suffice. It will depend upon a combination of one or more of the relevant factors depending upon the essentiality and overwhelming nature of such factors in identifying the real source of governing power, if need be by removing the mask or piercing the veil disguising the entity concerned. When an entity has an independent legal existence, before it is held to be the State, the person alleging it to be so must satisfy the Court of brooding presence of government or deep and pervasive control of the government so as to hold it to be an instrumentality or agency of the State.
CSIR if 'the State '?
Applying the tests formulated hereinabove, we are clearly of the opinion that CSIR is not an 'authority ' so as to fall within the meaning of expression 'other authorities ' under Article 12.
It has no statutory flavour -- neither it owes its birth to a statute nor is there any other statute
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conferring it with such powers as would enable it being branded an authority. The indicia of power is absent. It does not discharge such functions as are governmental or closely associated therewith or being fundamental to the life of the people.
We may now examine the characteristics of CSIR. On a careful examination of the material available consisting of the memorandum of association, rules and regulations and bye-laws of the society and its budget and statement of receipts and outgoings, we proceed to record our conclusions. The Government does not hold the entire share capital of CSIR. It is not owned by the Government. Presently, the Government funding is about 70% and grant by
Government of India is one out of five categories of avenues to derive its funds. Receipts from other sources such as research, development, consultation activities, monies received for specific projects and job work, assets of the society, gifts and donations are permissible sources of funding of CSIR without any prior permission/consent/sanction from the
Government of India. Financial assistance from the Government does not meet almost all expenditure of the CSIR and apparently it fluctuates too depending upon variation from its own sources of income. It does not enjoy any monopoly status, much less conferred or protected by Government. The governing body does not consist entirely of Government nominees. The membership of the Society and the manning of its governing body - both consist substantially of private individuals of eminence and independence who cannot be regarded as hands and voice of the State. There is no provision in the rules or the byelaws that the government can issue such directives as it deems necessary of CSIR and the latter is bound to carry out the same. The functions of the CSIR cannot be regarded as governmental or of essential public importance or as closely related to governmental functions or being fundamental to the life of the people or duties and obligations to public at large. The functions entrusted to CSIR can as well be carried out by any private (sic) organization. Historically it was not a department of government which was transferred to CSIR. There was a Board of
Scientific and Industrial Research and an Industrial Research Utilisation Committee. The
CSIR was set up as a society registered under the Societies Registration Act, 1860 to coordinate and generally exercise administrative control over the two organizations which would tender their advice only to CSIR. The membership of the society and the Governing body of the counsel may be terminated by the President not by the Government of India. The governing body is headed by the Director General of CSIR and not by the President of Society
(i.e. the Prime Minister). Certainly the board and the committee, taken over by CSIR, did not discharge any regal, governmental or sovereign functions. The CSIR is not the offspring or the blood and bones or the voice and hands of the government. The CSIR does not and cannot make law.
However, the Prime Minister of India is the President of the Society. Some of the members of the society and of the governing body are persons appointed ex-officio by virtue of their holding some office under the Government also. There is some element of control exercised by the government in matters of expenditure such as on the quantum and extent of expenditure more for the reason that financial assistance is also granted by the Government of India and the later wishes to see that its money is properly used and not misused. The President is empowered to renew, amend and vary any of the decisions of the governing body which is in the nature of residual power for taking corrective measures vesting in the President but then the power is in the President in that capacity and not as Prime Minister of India. On winding up or dissolution of CSIR any remaining property is not available to members but 'shall be dealt with in such manner as Government of India may determine '. There is nothing special about such a provision in Memorandum of Association of CSIR as such a provision is a general one applicable to all societies under Section 14 of the Societies Registration Act, 1860.
True that there is some element of control of the government but not a deep and pervasive control. To some extent, it may be said that Government 's presence or participation is felt in
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the society but such presence cannot be called a brooding presence or the over-lordship of government. We are satisfied that the tests in Ajay Hasia are not substantially or on essential aspects even satisfied to call CSIR an instrumentality or agency of the State. A mere governmental patronage, encouragement, push or recognition would not make an entity 'the
State '.
On comparison, we find that in substance CSIR stands on a footing almost similar to the
Institute of Constitutional and Parliamentary Studies (in Tekraj Vasandi @ K.S.
Basandhi v. Union of India) and National Council of Educational Research and Training
(in Chander Mohan Khanna v. NCERT) and those cases were correctly decided.
………
For the foregoing reasons, we are the opinion that Council for Scientific and Industrial
Research (CSIR) is not the State within the meaning of Article 12 of the Constitution. Sabhajit
Tewary was correctly decided and must hold the field. The High Court has rightly followed the decision of this Court in Sabhajit Tewary. The appeal is liable to be dismissed.
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UNIT 2 – FUNDAMENTAL RIGHTS COMPLIANCE REVIEW
(ARTICLE 13)
KESHAVA MADHAVA MENON V. STATE OF BOMBAY
AIR 1951 SC 128
Decided On: January 22, 1951
BENCH – CHIEF JUSTICE H. L. KANIA, JUSTICES S. FAZL ALI, PATANJALI SASTRI, M. C.
MAHAJAN, MUKHERJEA, DAS & C. AIYAR
JUSTICE DAS (FOR HIMSELF)
At all material times the petitioner, who is the appellant before us, was the Secretary of People 's Publishing House, Ltd., a company incorporated under the Indian Companies Act with its registered office at 190-B, Khedwadi Main Road in Bombay. In September, 1949, a pamphlet entitled "Railway Mazdooron ke khilaf Nai Zazish" is alleged to have been published in Bombay by the petitioner as the secretary of that company. Learned counsel for the petitioner states that the pamphlet was published as a "book" within the meaning of section 1 of the Press and Registration of Books Act (XXV of 1867) and that the provisions of that Act had been duly complied with. The Bombay Government authorities, however, took the view that the pamphlet was a "news sheet" within the meaning of section 2(6) of the Indian
Press (Emergency Powers) Act, 1931, and that as it had been published without the authority required by section 15(1) of that Act, the petitioner had committed an offence punishable under section 18(1) of the same Act. A prosecution under that Act was accordingly started against the petitioner in the Court decided that question of law. This was followed and was registered as Case No. 1102/P of 1949. During the pendency of the proceedings the
Constitution of India came into force on January 26, 1950. On March 3, 1950, the petitioner filed a written statement submitting, inter alia, that the definition of "news sheet" as given in section 2(6) of the Indian Press (Emergency Powers) Act, 1931 and sections 15 and 18 thereof were ultra vires and void in view of article 19(1)(a) read with article 13 and that the hearing of the case should be stayed till the High Court decided that question of law. This was followed up by a petition filed in the High Court on March 7, 1950, under article 228 of the Constitution, praying that the record of Case No. 1102/P of 1949 be sent for, that it be declared that sections
15 and 18 read with section 2(6) and (10), in so far as they create liability for restrictive measure for a citizen, are ultra vires of article 19(1)(a) and are, therefore, void and inoperative and that the petitioner be ordered to be acquitted. During the pendency of this petition the
Chief Presidency Magistrate on March 23, 1950, framed a charge against the petitioner under section 18 of the Press (Emergency Powers) Act, 1931.
The petition under article 228 was heard on April 12, 1950, by a Bench of the Bombay
High Court consisting of Chagla, C.J. and Bavdekar and Shah, JJ. Two questions were raised before the Bench, namely: (1) Whether sections 15(1) And 18(1) read with the definitions contained in sections 2(6) and 2(10) of the Indian Press (Emergency Powers) Act, 1931, were inconsistent with article 19(1)(a)read with clause (2) of that article? And (2) Assuming that they were inconsistent, whether the proceedings commenced under section 18(1) of that Act before the commencement of the Constitution could nevertheless be proceeded with?
The High Court considered it unnecessary to deal with or decide the first question and disposed of the application only on the second question. The High Court took the view that the word "void" was used in article 13(1) in the sense of "repealed" and that consequently it attracted section 6 of the General Clauses Act, which Act by article 367 was made applicable
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for the interpretation of the Constitution. The High Court, therefore, reached the conclusion that proceedings under the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of the commencement of the Constitution were not affected, even if the Act were inconsistent with the fundamental rights conferred by article 19(1)(a) and as such became void under article 13(1) of the Constitution after January 26, 1950. The High Court accordingly answered the second question in the affirmative and dismissed the petitioner 's application. The petitioner has now come up on appeal before us on the strength of a certificate granted by the
High Court under article 132(1) of the Constitution.
Learned counsel appearing in support of this appeal urged that the Indian Press
(Emergency Powers) Act, 1931, was one of the many repressive laws enacted by an alien
Government with a view to stifle the liberty of the Indian subjects and particularly of the
Indian Press; that, with the advent of independence the people of India began to breathe freely and by the Constitution which they gave unto themselves they took care to guarantee to themselves the fundamental rights of free citizens of a democratic republic and that article 13(1) of that Constitution brushed aside all vestiges of subordination which the tyranny of the alien rulers had imposed upon them and declared all laws inconsistent with the fundamental rights to be void as if they had never been passed and had never existed. It was, therefore, against the spirit of the Constitution, argued the learned counsel, that a free citizen of India still continue to be persecuted under such a retrograde law which, being inconsistent with the fundamental rights, must be declared to be void. Learned counsel urged that it was not necessary for him to contend that such inconsistent laws became void ab initio or that all past and closed transactions could be reopened but he contended that on and from January 26,
1950, when the constitution came into force such inconsistent laws which became void could not be looked at for any purpose and far less could they be utilised for the purpose of framing a charge or punishing a free citizen. As the void law cannot be utilised any longer, the pending prosecutions, according to learned counsel, must fall to the ground. To permit pending proceedings under a law which, after the commencement of the Constitution had become void, to proceed further, after the Constitution has taken effect, is to prolong the efficacy of the law notwithstanding that it has become void on and from the date the Constitution came into force and that is against the spirit of the Constitution.
An argument founded on what is claimed to be the spirit of the Constitution is always attractive, for it has a powerful appeal to sentiment and emotion; but a court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or think to be the spirit of the Constitution cannot prevail if the language of the
Constitution does not support that view. Article 372(2) gives power to the President to adapt and modify existing laws by way of repeal or amendment. There is nothing to prevent the
President, in exercise of the powers conferred on him by that article, from repealing, say the whole or any part of the Indian Press (Emergency Powers) Act, 1931. If the President does so, then such repeal will at once attract section 6 of the General Clauses Act. In such a situation all prosecutions under the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of its repeal by the President would be saved and must be proceeded with notwithstanding the repeal of that Act unless an express provision was otherwise made in the repealing Act. It is therefore clear that the idea of the preservation of past inchoate rights or liabilities and pending proceedings to enforce the same is not foreign or abhorrent to the
Constitution of India. We are, therefore, unable to accept the contention about the spirit of the
Constitution as invoked by the learned counsel in aid of his plea that pending proceedings under a law which has become void cannot be proceeded with. Further, if it is against the spirit of the Constitution to continue the pending prosecutions under such a void law, surely it should be equally repugnant to that spirit that men who have already been convicted under such repressive law before the Constitution of India came into force should continue to rot in jail.
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It is, therefore, quite clear that the court should construe the language of article 13(1) according to the established rules of interpretation and arrive at its true meaning uninfluenced by an assumed spirit of the Constitution.
Article 13(1) with which we are concerned for the purposes of this application is in these terms:"All laws in force in the territory of Indian immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void."
It will be noticed that all that this clause declares is that all existing laws, in so far as they are inconsistent with the provisions of Part III shall, to the extent of such inconsistency, be void. Every statute is prima facie prospective unless it is expressly or by necessary implications made to have retrospective operation. There is no reason why this rule of interpretation should not be applied for the purpose of interpreting our Constitution. We find nothing in the language of article 13(1) which may be read as indicating an intention to give it retrospective operation. On the contrary, the language clearly points the other way. The provisions of Part III guarantee what are called fundamental rights. Indeed, the headings of
Part III is "Fundamental Rights". These rights are given, for the first time, by and under our
Constitution. Before the Constitution came into force there was no such thing as fundamental right. What article 13(1) provides is that all existing laws which clash with the exercise of the fundamental rights (which are for the first time created by the Constitution) shall to that extent be void. As the fundamental rights became operative only on and from the date of the
Constitution the question of the inconsistency of the existing laws with those rights must necessarily arise on and from the date those rights came into being. It must follow, therefore, that article 13(1) can have no retrospective effect but is wholly prospective in its operation.
After this first point is noted, it should further be seen that article13(1) does not in terms make the existing laws which are inconsistent with the fundamental rights void ab initio or for all purposes. On the contrary, it provides that all existing laws, in so far as they are inconsistent with the fundamental rights, shall be void to the extent of their inconsistency.
They are not void for all purposes but they are void only to the extent they come into conflict with the fundamental rights. In other words, on and after the commencement of the
Constitution no existing law will be permitted to stand in the way of the exercise of any of the fundamental rights. Therefore, the voidness of the existing law is limited to the future exercise of the fundamental rights. Article 13(1) cannot be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the statute book, for to do so will be to give them retrospective effect which, we have said, they do not possess. Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution.
Learned counsel for the appellant has drawn our attention to articles 249(3), 250, 357, 358 and 369 where express provision has been made for saving things done under the laws which expired. It will be noticed that each of those articles was concerned with expiry of temporary statutes. It is well known that on the expiry of a temporary statute no further proceedings can be taken under it, unless the statute itself saved pending proceedings. If, therefore, an offence had been committed under a temporary statute and the proceedings were initiated but the offender had not been prosecuted and punished before the expiry of the statute, then, in the absence of any saving clause, the pending prosecution could not be proceeded with after the expiry of the statute by efflux of time. It was on this principle that express provision was made in the several articles noted above for saving things done or omitted to be done under the expiring laws referred to therein. As explained above,
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article 13(1) is entirely prospective in its operation and as it was not intended to have any retrospective effect there was no necessity at all for inserting in that article any such saving clause. The effect of article 13(1) is quite different from the effect of the expiry of a temporary statute or the repeal of a statute by a subsequent statute. As already explained, article 13(1) only has the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with respect to the exercise of fundamental rights on and after the date of the commencement of the Constitution.
It has no retrospective effect and if, therefore, an act was done before the commencement of the Constitution in contravention of the provisions of any law which, after the Constitution, becomes void with respect to the exercise of any of the fundamental rights, the inconsistent law is not wiped out so far as the past act is concerned, for, to say that it is, will be to give the law retrospective effect. There is no fundamental right that a person shall not be prosecuted and punished for an offence committed before the Constitution came into force. So far as the past acts are concerned the law exists, notwithstanding that it does not exist with respect to the future exercise of fundamental rights. We, therefore, agree with the conclusion arrived at by the High Court on the second question, although on different grounds. In view of that conclusion, we do not consider it necessary to examine the reasons of the High Court for its conclusion. In our opinion, therefore, this appeal fails, and is dismissed.
JUSTICE FAZL ALI (FOR HIMSELF)
I regret that I cannot agree with the view which the majority of my colleagues are inclined to take in this case.
… [Narration of facts is omitted] …
One of the points discussed elaborately by the learned counsel appearing for the parties in the course of their arguments was as to what was the effect upon pending proceedings when an Act was repealed or when a temporary Act expired. In Craies on Statute
Law, the effect of the expiry of a temporary Act is stated to be as follows:"As a general rule, and unless it contains some special provision to the contrary, after a temporary Act has expired no proceedings can be taken upon it, and it ceases to have any further effect. Therefore, offences committed against temporary Acts must be prosecuted and punished before the Act expires, and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate." (4th Ed., pp. 347-348)
This statement of law by Craies was referred to with approval and adopted by the Federal
Court in J. K. Gas Plant Manufacturing v. King Emperor,[1947] F.C.R. 141. As to the effect of the repeal of an Act, the following passage from Craies ' book seems to sum up the legal position as it obtained in England before the enactment of the Interpretation Act of 1889 :"When an Act of Parliament is repealed," said Lord Tenterden in Surtees v. Ellison
(1829) 9 B.&C. 752 "it must be considered (except as to transactions past and closed) as if it had never existed. That is the general rule." Tindal, C.J. states the exception more widely. He says (in Kay v. Goodwin) (1830) 6 Bing. 576: "The effect of repealing a statute is to obliterate it as completely from the records of the
Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law." (P. 350)
Again, Crawford in his book on "Statutory Construction" dealing with the general effect of the repeal of an Act states the law in America to be as follows :-
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"A repeal will generally, therefore, divest all inchoate rights which have arisen under the repealed statute, and destroy all accrued causes of action based thereon.
As a result, such a repeal, without a saving clause, will destroy any proceedings whether not yet begun, or whether pending at the time of the enactment of the repealing Act, and not already prosecuted to a final judgment so as to create a vested right." (Pp. 599-600)
In a footnote relating to the cases which the learned author cites in support of the above proposition, he adds:"See Cleveland, etc., R. Co. v. Mumford (Ind.) 197 N.E. 826 where the repeal of a statute during the trial prevented a judgment from being rendered. Similarly, there can be no legal conviction for an offence, unless the act be contrary to law at the time it is committed; nor can there be a judgment, unless the law is in force at the time of the indictment and judgment. If the law ceases to operate, by its own limitation or by a repeal, at any time before judgment, no judgment can be given.
Hence, it is usual in every repealing law to make it operate prospectively only, and to insert a saving clause, preventing the retroactive operation of the repeal and continuing the repealed law in force as to all pending prosecutions, and often as to all violations of the existing law already committed."
The author then proceeds to quote the following passage from Wall v. Chesapeake & Ohio
Ry., Company 125 N.E. 20:"It is well settled that if a statute giving a special remedy is repealed without a saving clause in favour of pending suits all suits must stop where the repeal finds them. If final relief has not been granted before, the repeal went into effect, it cannot be after. If a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the case under the law in force when its decision was rendered. The effect of the repeal is to obliterate the statute repealed as completely as if it had never been passed, and it must be considered as a law which never existed, except for the purposes of those actions or suits which were commenced, prosecuted and concluded while it was an existing law. Pending judicial proceedings based upon a statute cannot proceed after its repeal. This rule holds true until the proceedings have reached a final judgment in the court of last resort, for that court, when it comes to announce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was correct when pronounced in the subordinate tribunal from whence the appeal was taken, if it appears that pending the appeal a statute which was necessary to support the judgment of the lower court has been withdrawn by an absolute repeal." (P. 601)
It is well known that formerly the practice in England used to be to insert in most of the repealing statutes a clause saving anything duly done or suffered under the repealed statutes and any pending legal proceeding or investigations. Ultimately, to dispense with the necessity of having to insert a saving clause in almost every repealing Act, section 38(2) was inserted in the Interpretation Act, 1889, which provides that a repeal, unless the contrary intention appears, does not affect the previous operation of the repealed enactment or anything duly done or suffered under it, and any investigations, legal proceedings or remedies may be instituted, continued or enforced in respect of rights, liabilities and penalties under the repealed Act, as if the repealing Act had not been passed.
Crawford in his book to which I have referred adverts in these words to a similar difficulty which was experienced in America and to the manner in which it has been met:"Due to the numerous troublesome problems which constantly arose with the repeal of statutes, as well as to the numerous cases where hardship was caused, statutes have been enacted in several States expressly providing that the repeal of a statute shall not affect any rights, causes of action, penalties, forfeitures, and pending suits, accrued or instituted under the repealed statute."
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In India, the earliest attempt that was made to guard against the normal legal effect of a repeal is to be found in section 6 of Act I of 1868. This provision was further elaborated by section 6 of the General Clauses Act of 1897 which is on the same lines as section 38(2) of the Interpretation Act of England. The position therefore now in India as well as in England is that a repeal has not the drastic effect which it used to have before the enactment of the
Interpretation Act in England or the General Clauses Act in this country. But this is due entirely to the fact that an express provision has been made in these enactments to counteract that effect. Hence, in those cases which are not covered by the language of the General Clauses
Act, the principle already enunciated will continue to operate. The learned Attorney-General had to concede that it was doubtful whether section 6 of that Act is applicable where there is a repeal by implication, and there can be no doubt that the law as to the effect of the expiry of a temporary statute still remains as stated in the books, because section6 of the General
Clauses Act and section 38(2) of the Interpretation Act have no application except where an
Act is repealed. It should be remembered that the soundness of the law which has been consistently applied to cases governed by statutes which have ceased to be in force, by reason having been repealed or having expired, has never been questioned, and it cannot be brushed aside as if it embodied some archaic or obsolete rule peculiar only to the common law of
England. It is the law which has been enunciated by eminent Judges both in England and in
America and is based on good sense and reason.
I shall now proceed to consider what would be the correct legal position, when a provision of an existing law is held to be void under article 13(1) of the Constitution. From the earlier proceedings before the Constituent Assembly, it appears that in the original draft of the
Constitution, the words "shall stand abrogated" were used instead of "shall be void," in article 13(1), and one of the questions directly before the Assembly was what would be the effect of the use of those words upon pending proceedings and anything duly done or suffered under the existing law. Ultimately, the article emerged in the form in which it stands at present, and the words "shall stand abrogated" were replaced by the words "shall be void." If the words
"stand abrogated" had been there, it would have been possible to argue that those words would have the same effect as repeal and would attract section 6 of the General Clauses Act, but those words have been abandoned and a very strong expression, indeed the strongest expression which could be used, has been used in their place. The meaning of the word "void" is stated in Black 's Law Dictionary (3rd Edn.) to be as follows:"null and void; ineffectual; nugatory; having no legal force or binding effect; unable in law to support the purpose for which it was intended; nugatory and ineffectual so that nothing can cure it; not valid."
A reference to the Constitution will show that the framers thereof have used the word
"repeal" wherever necessary (see articles 252, 254, 357, 372 and 395). They have also used such words as "invalid" (see articles 245,255 and 276), "cease to have effect" (see articles 358 and372), "shall be inoperative", etc. They have used the word "void" only in two articles, these being article 13(1) and article 154, and both these articles deal with cases where a certain law is repugnant to another law to which greater sanctity is attached. It further appears that where they wanted to save things done or omitted to be done under the existing law, they have used apt language for the purpose; see for example articles 249, 250, 357, 358 and 369. The thoroughness and precision which the framers of the
Constitution have observed in the matters to which reference has been made, disinclines me to read into article 13(1) a saving provision of the kind which we are asked to read into it.
Nor can I be persuaded to hold that treating an Act as void under article 13(1) should have a milder effect upon transactions not past and closed than the repeal of an Act or its expiry in due course of time. In my opinion, the strong sense in which the word "void" is normally used
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and the context in which it has been used are not to be completely ignored. Evidently, the framers of the Constitution did not approve of the laws which are in conflict with the fundamental rights, and, in my judgment, it would not be giving full effect to their intention to hold that even after the Constitution has come into force, the laws which are inconsistent with the fundamental rights will continue to be treated as good and effectual laws in regard to certain matters, as if the Constitution had never been passed. How such a meaning can be read into the words used in article 13(1), it is difficult for me to understand. There can be no doubt that article 13(1) will have no retrospective operation, and transactions which are past and closed, and rights which have already vested, will remain untouched. But with regard to inchoate matters which were still not determined when the Constitution came into force, and as regards proceedings whether not yet begun, or pending at the time of the enforcement of the Constitution and not yet prosecuted to a final judgment, the very serious question arises as to whether a law which has been declared by the Constitution to be completely ineffectual can yet be applied. On principle and on good authority, the answer to this question would appear to me to be that the law having ceased to be effectual can no longer be applied. In R. v. Mawgan
(Inhabitants) (1888) 8 A. & E. 496 a presentment as to the non-repair of a highway had been made under 13 Geo. 3, c. 78, s. 24, but before the case came on to be tried, the Act was repealed. In that case, Lord Denman C.J. said:
"If the question had related merely to the presentment, that no doubt is complete.
But dum loquimur, we have lost the power of giving effect to anything that takes place under that proceeding."
And Littledale J. added:
"I do not say that what is already done has become bad, but that no more can be done." In my opinion, this is precisely the way in which we should deal with the present case.
It was argued at the Bar that the logical outcome of such a view would be to hold that all the convictions already recorded and all the transactions which are closed, should be reopened, but, in my opinion, to argue on those lines is to overlook what has been the accepted law for centuries, namely, that when a law is treated as dead, transactions which are past and closed cannot be revived and actions which were commenced, prosecuted and concluded whilst the law was operative cannot be reopened.
In the course of the arguments, a doubt was also raised as to what would be the effect in the case of an appeal pending when the Constitution came into force, from a conviction already recorded before the 26th January, 1950. The law applicable to such a situation is well-known and has been correctly summed up by Crawford in these words:"Pending judicial proceedings based upon a statute cannot proceed after its repeal.
The rule holds true until the proceedings have reached a final judgment in the court of last resort, for that court, when it comes to announce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was correct when pronounced in the subordinate tribunal from whence the appeal was taken, if it appears that pending the appeal a statute which was necessary to support the judgment of the lower court has been withdrawn by an absolute repeal." I think I should at this state deal briefly with two points which were raised in the course of the arguments in support of the opposite view. It was urged in the first place that without there being a saving clause to govern article 13(1), it can be so construed as to permit offences committed prior to the 26th January, 1950, to be punished. The argument has been put forward more or less in the following form. The law which is said to be in conflict with the fundamental rights was a good law until the 25th January, and, since article 13(1) is to be construed prospectively, and not retrospectively, every act constituting an offence under the old law
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remains an offence and can be punished even after the 26th January. It seems to me that the same argument could be urged with reference to matters which constituted offences under a repealed Act or a temporary Act which has expired. But such an argument has never succeeded. The real question is whether a person who has not been convicted before the Act has ceased to exist or ceased to be effectual can still be prosecuted under such an Act. The answer to this question has always been in the negative, and I do not see why a different answer should be given in the case of an Act which has been come void, i.e., which has become so ineffectual that it cannot be cured.
The second argument which also has failed to impress me is that if section 6 of the General
Clauses Act does not in terms apply, the principle underlying that section should be applied.
The answer to this argument is that the Legislature in its wisdom has confined that section to a very definite situation, and, though it was open to it to make the section more comprehensive and general, it has not done so. It is well-known that situations similar to those which arise by reason of the repeal of an Act have arisen in regard to Acts which have expired or Acts which have been declared to be void, and, though such situations must have been well-known to the
Legislature, they have not been provided for. In these circumstances, I do not see how the very clear and definite provision can be enlarged in the manner in which it is attempt to be enlarged.
Besides, I have not come across any case in which the principle underlying section 38(2) of the Interpretation Act or section 6 of the General Clauses Act has been invoked or applied.
In the present case, we have to look at the state of the law at the time when the question arises as to whether a person has committed any offence. If we find that the law which made the act an offence has become completely ineffectual and nugatory, then neither can a charge be framed nor can the accused person be convicted. In my opinion, if the assumption on which the High Court has proceeded is correct, the appellant is entitled to a declaration that he cannot be convicted for the offence of which he is accused.
JUSTICE MUKHERJEA (CONCURRING WITH JUSTICE FAZL ALI)
I am in entire agreement with the view taken by my learned brother Fazl Ali J. In his judgment and I concur both in his reasons and his conclusion.
JUSTICE MAHAJAN (FOR HIMSELF)
The appellant is the secretary of the People 's Publishing House Ltd., Bombay. In
September, 1949, he published a pamphlet entitled "Railway Mazdoorum Ke Khilaf Nai
Sazish." On the 9th December, 1949, he was arrested and a prosecution was launched against him under section 18(1) of the Indian Press (Emergency Powers) Act (XXIII of 1931) in the
Court of the Chief Presidency Magistrate at Bombay in respect of this pamphlet, as it had been published without any authority as required under section 16 of the said Act. On the 8th March,
1950, an application was made on his behalf in the High Court of Judicature at Bombay under article 228 of the Constitution of India for quashing the proceedings started against him and it was contended that sections 16 and 18 of Act XXIII of 1931 were ultra vires of Part III of the Constitution of India and were thus void and had no effect whatsoever and no prosecution launched under these sections could be proceeded with after the coming into force of the
Constitution. The High Court refused this application and held that the proceedings instituted against the appellant before the commencement of Constitution could not be affected by the provisions of the Constitution that came into force on the 26th January, 1950. Dissatisfied with this decision, the appellant has preferred the present appeal to this court.
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The sole point to decide in the appeal is whether proceedings instituted under section 18(1) of the Indian Press (Emergency Powers) Act, XXIII of 1931, before the commencement of the Constitution of India are affected by its provisions. The High Court has answered this question in the negative and, in my opinion, rightly.
I am in respectful agreement with the observations of the learned Chief Justice of Bombay that it is difficult to believe that the Constituent Assembly contemplated that with regard to the laws which it was declaring to be void under article 13 all vested rights and all proceedings taken should be disturbed and affected by particulars laws ceasing to be in force as a result of inconsistencies with the fundamental rights guaranteed to the citizens. It is not arguable and was not argued that Part III of the Constitution has any retrospective operation. The appellant was not possessed of any fundamental rights in September, 1949, when he published the pamphlet in question and his act clearly came within the mischief of the provisions of section
18 of Act XXIII of 1931 and he thus became liable to the penalties prescribed therein.
It was, however, contended by Mr. Chari, the learned counsel for the appellant, that the effect of the language employed in article 13(1) of the Constitution was that the proceedings commenced before the coming into force of the Constitution could not be continued after its commencement under the laws that became inconsistent with its provisions. For this proposition he placed reliance on the rule of construction stated in Maxwell on "Interpretation of Statutes", p. 404, which is to the following effect:"Where an Act expired or was repealed, it was formerly regarded, in the absence of provision to the contrary, as having never existed, except as to matters and transactions passed and closed. Where, therefore, a penal law was broken, the offender could not be punished under it if it expired before he was convicted, although the prosecution was begun while the Act was still in force."
This rule seems to be based on a statement of Tindal C.J. in Kay v. Goodwin 130 E.R.
1403; (1830) 6 Bing. 576. The learned Chief Justice made the following observations:"I take the effect of repealing a statute to be, to obliterate, it as completely from the records of Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law."
This was the rule of the English common law which was applied in cases of statutes which were repealed and under this rule all pending actions and prosecutions could not be proceeded with after the repeal of the law under which they were started. This rule was however changed by the Interpretation Act of 1889, section 38. Therein it was enacted that unless the contrary intention appears, no repeal is to affect any investigation, legal proceeding, including the initiation of criminal proceedings, or remedy in respect of any such right, privilege, obligation, liability penalty, forfeiture, or punishment and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed. A similar provision exists in India in section 6 of the General Clauses Act of 1868 and 1897. The High Court held that the provisions of article 13(1) were analogous to the repeal of a statute and therefore section 6 of the General Clauses Act had application to the construction of these provisions and that being so, the coming into force of the Constitution did not in any way affect the continuance of the proceedings that had been commenced against the appellant under the law that was in force at the time of the publication of the pamphlet.
Mr. Chari contended that the High Court was in error in applying the provisions of section 6 of the General Clauses Act to the interpretation of article 13(1) of the Constitution inasmuch as the provisions of this article were not analogous to repeal and did not amount to a repeal of the existing law. He contended that a repeal of the law could only be by the
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legislature but that under article 13 power had been given to the court to declare any law inconsistent with the Constitution to be void; in other words, the power given was larger in scope and effect than the power of repeal and the effect of the declaration that a certain statute was void as it was repugnant to the freedom guaranteed by the Constitution was to wipe out the statute altogether from the date of the coming into force of the Constitution and that nothing could be done under that statute with effect from the 26th January, 1950, and therefore the court could not frame a charge under the law that was declared void, or pass a judgment of conviction against a person under a law that had been declared void.
Mr. Chari went to the length of saying that a statute which was inconsistent with the
Constitution became dead on the coming into force of the Constitution and under a dead statute no action could be taken whatsoever. He emphasised his contention by stressing the fact that freedoms guaranteed by Part III of the Constitution could not be tainted by keeping alive prosecutions and actions under laws framed by a foreign government which were inconsistent with those freedoms. It was said that some of the laws which the Constitution intended to be declared void by the court because of their repugnancy to the fundamental rights guaranteed to the citizen by the Constitution were those which a foreign government had enacted to keep the people of this country under its domination and that to continue prosecutions under these laws after the coming into force of the Constitution would be wholly contrary and repugnant not only to the letter of the Constitution but also to its spirit. It was conceded that transactions finally closed under such laws could not be reopened but that prosecutions and actions which were still continuing should be stopped and further action concerning them would become illegal and would be contrary to the freedoms guaranteed by the Constitution. Reference was made to articles 249, 250, 357, 358 and 369 to show that the scheme of the Constitution was that wherever it intended that the proceedings commenced under existing laws which became in-operative on the 26th January, 1950, were to continue after that date, apt phraseology had been used to indicate that intention but that in article 13 no such saving words were used and therefore it must be presumed that the Constituent Assembly did not intend that proceedings taken under such laws were to be continued after the 26th January, 1950.
Article 13(1) of the Constitution is in these terms:"All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void."
The freedom guaranteed to the citizen which has application to the case of the appellant is in article 19(1)(a)and this article is in these terms :"All citizens shall have the right to freedom of speech and expression."
It is admitted that after the 26th January, 1950, there has been no infringement of the appellant 's right of freedom of speech or expression. In September 1949, he did not enjoy either complete freedom of speech or full freedom of expression. It is in relation to the freedom guaranteed in article 19(1) of the Constitution to the citizen that the provisions of article 13(1) come into play. This article does not declare any law void independently of the existence of the freedoms guaranteed by Part III. A citizen must be possessed of a fundamental right before he can ask the court to declare a law which is inconsistent with it void; but if a citizen is not possessed of the right, he cannot claim this relief. The appellant in the present case was not possessed of any fundamental right on the day that he published the pamphlet and in these circumstances the question is whether he can claim protection under the rights guaranteed to him on 26th January, 1950, for escaping the consequence of his act on any principles of construction of statutes.
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According to the contention of the learned counsel, the principles applicable to repealed statutes are not in terms applicable to such a case, whether they are to be found in the rules of the common law of England or whether they are contained in the Interpretation Act or the
General Clauses Act. Those rules are applicable to cases either of repeal or to cases of a statute dying a natural death by efflux of time. None of those however have any application to the construction of statutes framed in languages like the one contained in article 13(1) of the
Constitution. Besides the rule of construction which applies to repealed statutes or to temporary statutes our attention was not drawn to any other rule of construction under which a person who commits an offence against an Act during its existence as a law becomes unpunishable on its termination.
Both on considerations of convenience and also on grounds of justice and reason I am inclined to think that penalties incurred under a law in force at the time when the act was committed would survive its extinction so that persons who violate its provisions might afterwards be punished. Persons who during the continuance of a statute have obtained rights under it cannot be affected by a declaration that the statute with effect from a certain date will become an inoperative statute. When in the case of repeal of a statute, which according to
Tindal C.J. obliterates it completely from the records of Parliament as if it had never been passed, the common law rule has been abrogated by statute, it is difficult to apply that rule on any sentimental grounds at this date to the case of statutes which are declared void or declared to have no effect whatsoever after a certain date only.
The expression "void" has no larger effect on the statute so declared than the word
"repeal". The expression "repeal" according to common law rule obliterates a statute completely as if it had never been passed and thus operates retrospectively on past transactions in the absence of a saving clause or in the absence of provisions such as are contained in the
Interpretation Act, 1889, or in the General Clauses Act, 1897, while a provision in a statute that with effect from a particular date an existing law would be void to the extent of the repugnancy as no such retrospective operation and cannot affect pending prosecutions or actions taken under such laws. There is in such a situation no necessity of introducing a saving clause and it does not need the aid of a legislative provision of the nature contained in the
Interpretation Act or the General Clauses Act. To hold that a prospective declaration that a statute is void affects pending cases is to give it indirectly retrospective operation and that result is repugnant to the clear phraseology employed in the various articles in Part III of the
Constitution.
The contention of the learned Attorney-General that the phraseology employed in article 13(1) of the Constitution clearly indicates that there was no intention to give any retrospective operation to the provisions of Part III of the Constitution and that of the declaration that laws repugnant to Part III of the Constitution are void only operates from 26th
January, 1950, has, in my opinion, force. It seems clear that an existing statute in spite of a declaration by court that it is void remains in force till the 25th January, 1950, and continues to remain on the statute book even after the 26th January, 1950, except that no effect can be given to any of its provisions which are repugnant to the fundamental rights guaranteed by the
Constitution. The effect of article 13(1) is only prospective and it operates in respect to the freedoms which are infringed by the State subsequent to the coming into force of the
Constitution but the past acts of a person which came within the mischief of the law then in force are not affected by Part III of Constitution. The reference made by Mr. Chari to different articles of the Constitution where saving clauses have been inserted to save pending proceedings or acts is not very helpful inasmuch as where a certain provision has retrospective effect, then it is necessary to introduce a saving clause if things done in the past have to be saved from the retrospective effect of the statute; but where the provision is clearly not
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intended to be retrospective, then the necessity of saving clause does not arise. The provisions of the Constitution to which Mr. Chari made reference were of the nature that but for the saving clause the effect of them would be retrospective in character under the accepted canons of construction of statutes.
Mr. Chari 's argument that it could not have been intended by the Constitution makers that prosecutions started under laws passed by a foreign power and which affect the freedoms guaranteed to the citizen under the Constitution in Part III were to be continued after the dawn of independence and after India had become a democratic republic to a certain extent seems to me to be plausible; but on further thought I have come to the conclusion that this argument appeals more to the heart than to the head and is not based on any sound principle of construction of statutes. Under the accepted canons of construction of statutes, if a law has no retrospective operation of any kind whatsoever, then such a law cannot affect pending prosecutions or actions and the Constitution not being retrospective in its operation could not therefore in any way affect prosecutions started for offences that were complete under the law in force at the time they were committed. The cure for such an incongruous state of affairs and the relief for such situation lies with the Government and the legislature and not with the courts. If a case of sedition against an alien government is continued after the coming into force of the Constitution, the court cannot decline to proceed with it and to pass some sentence howsoever lenient, against an accused by placing a construction on the Constitution which gives it retrospective operation, but the government of the republic or its legislature can always by executive or legislative action bring to a close all such distasteful proceedings and not only can it do so in the case of pending prosecutions but it can give relief also to persons who have suffered under laws of sedition against an alien government and are suffering terms of imprisonment in the jails of the Republic. If punishment for contravention of such laws cannot be given to offenders because decision in their case has been delayed beyond the 26th January,
1950, it will be highly unreasonable not to give relief and to let punishments continue in case of persons, the sentence against whom have already been passed under laws which were solely enacted to maintain the alien rule. Both cases, in my opinion, stand on the same footing and relief in those cases lies not with courts but with the executive government of the Republic.
If Mr. Chari 's argument that on the commencement of the Constitution on 26th January,
1950, all proceedings started under laws that became repugnant and inconsistent with the
Constitution were to be stopped was accepted, it would lead to very strange results, and Mr.
Chari had to concede that it would be so. Suppose a person was convicted of the offence of sedition or of an offence under one of the safety Acts, the provisions of which are repugnant to the Constitution, but his appeal was pending in the High Court against his conviction, then, according to the contention of Mr. Chari, the court has no power to hear the appeal because the law being void, no further action could be taken in the matter. The result would be that the
Court would not be able to hear an appeal and to give relief to the accused if he had been erroneously convicted. If a court cannot frame a charge or convict a person under a law that is repugnant to the Constitution equally it would not be entitled to continue any proceeding for the benefit of the accused under cover of such a law.
Great deal of emphasis was laid during the course of the argument on the meaning to be given to the word "void" and it was said that this word in its widest sense meant that the law declared void was void ab initio, i.e., from the very inception of the law it was bad. If that meaning was given to this word, then it would mean that all laws existing on the 26th January,
1950, and which were declared void by article 13(1) because of their being repugnant to the
Constitution were bad when they were passed by the legislature, though at the same time the
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subject enjoyed no fundamental rights. It was sought to give to this word "void" the same wide meaning as was given to the word "repeal" by Tindal C.J. in the case above mentioned.
With every respect to the great Judges who administered the common law in England during the earlier period of British history and in all humility I venture to say that the rule evolved by them qua "repeal" was of an artificial nature. The dictum of the learned Chief
Justice that a repeal of a statute obliterates it completely from the records of Parliament as if it had never been passed is to my mind based on an extended meaning of that expression than its ordinary dictionary sense. When a statute has been in operation, say for a period of fifty years, people have suffered penalties under it or have acquired rights thereunder and the law has been enforced by courts for such a long period, then to say that when it is repealed it is completely obliterated and that it never had any existence and was never passed by Parliament, is rather saying too much and is ignoring hard real facts and amounts to shutting one 's eyes to the actualities of the situation.
It would be more consonant with reason and justice to say that the law existed and was good at the time when it was passed but that since the date of its repeal it has no longer any effect whatsoever. The Parliament may however say in the repealing statute that it will have retrospective operation and it may also prescribe the limits of its retrospectivity and to that extent past transactions may be affected by it. Because the rule of common law evolved by the English Judges was not in consonance with reason and justice, a legislative practice was evolved under which each repealing statute contained a saving clause under which past transactions were not allowed to be affected by the repeal. Eventually the rule of common law was completely abrogated by the enactment of the Interpretation Act, 1889. In India in the year 1868, section 6 of the General Clauses Act enacted what was later on enacted in England in the Interpretation Act and for over eighty years it is this rule of construction that has been adopted in this country, the rule being that past transactions, whether closed or inchoate cannot be affected by the repeal of an earlier statute or by the coming into effect of a new one. In my opinion, the rule contained in the General Clauses Act and in the English Interpretation Act is more in consonance with reason and justice and is also a rule of convenience and should be followed in this country, in preference to the rule evolved by the English Judges in the earlier part of English legal history. Be that as it may, it is unnecessary in this case to have resort either to the rule of common law or to the General Clauses Act as the language of article 13 itself furnishes a solution to the problem.
Reference was also made to the rule of construction applicable to temporary statutes. In the case of such statutes, the rule of English law is that after the expiry of the life of the statute no action can be taken under the expired statute unless an intention can be gathered from its provisions to the contrary, but transactions already completed during the period that these statutes had the force of law are not in any way affected. That rule seems to be quite logical and is consonant with reason and justice. When the life of a statute is limited and it dies a natural death, then no question either of its retrospective or of prospective nature arises. If the intention of the statute was that anything done under it has to continue, then it will be allowed to continue; otherwise nothing done under it will be continued after its natural death. Any rule applicable to construction of such a statute has no application to the interpretation of the
Constitution of Indian and the reference to this rule, in my opinion, is not relevant for the decision of this matter.
Reference was also made to the rule of construction laid down by the American courts in respect of statutes declared void because of their being repugnant to the Constitution of the
United States of America. It is obvious that if a statute has been enacted and is repugnant to the Constitution, the statute is void since its very birth and anything done under it is also void and illegal. The courts in America have followed the logical result of this rule and even
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convictions made under such an unconstitutional statute have been set aside by issuing appropriate writs. If a statute is void from its very birth then anything done under it, whether closed, completed, or inchoate, will be wholly illegal and relief in one shape or another has to be given to the person affected by such an unconstitutional law. This rule, however, is not applicable in regard to laws which were existing and were constitutional according to the
Government of India Act, 1935. Of course, if any law is made after the 25th January, 1950, which is repugnant to the Constitution, then the same rule will have to be followed by courts in India as is followed in America and even convictions made under such an unconstitutional law will have to be set aside by resort to exercise of powers given to this court by the
Constitution.
The only rule of construction applicable to the interpretation of article 13 of the
Constitution is the one that concerns the determination of the question whether a statute is intended to have any retrospective operation. If the well-known canons of construction on this point are applied, then it has to be held that article 13 was not intended to have any retrospective effect whatever; on the other hand, its language denotes that it recognized the validity of the existing laws up to the date of the commencement of the Constitution and even after its commencement except to the extent of their repugnancy to any provisions of Part III of the Constitution. On this construction of article 13 it cannot affect any past transactions, whether closed or inchoate. Reference in this connection may be made to the provisions of article 372(2) of the Constitution. Under this article the President has been given power to adapt existing laws and to bring them in accordance with the articles of the Constitution by a process of amendment, repeal or adaptation. The President could have repealed the Press
(Emergency Powers) Act and brought the law in accordance with the provisions of Part III of the Constitution and if he had used the powers of repeal given to him by this article, the provisions of the General Clauses Act would have been immediately attracted to that situation and pending prosecution of the appellant would have to be continued in view of those provisions. If in that situation the Constitution contemplates the continuance of pending proceedings under existing laws, it becomes difficult to place a different interpretation on the phraseology employed in article 13(1) of the Constitution, that the one that is in accord with that situation. By the construction that I have placed on this article that incongruous result is avoided. In view of the decision above arrived at it seems unnecessary to pronounce on the alternative argument of the learned Attorney-General to the effect that the expression "void", used in article 13 of the Constitution is synonymous with the word "repeal" and that it was an apt word used in the context to indicate the same intention. It was said that the word "repeal" was not used in the article but instead the expression "void" was employed therein by the draftsmen in order to include within its ambit cases of custom and usage where such custom and usage were also repugnant to the provisions of Part III of the Constitution. It was also urged that by article 13(1) the Constitution in express terms repealed all laws inconsistent with its provisions and that the only power given to the court was to find out which of these laws was inconsistent with the provisions of Part III. The declaration that these laws were void or repealed was by the force of the provisions of article13 itself and did not result from the decision of the courts. It is also unnecessary to examine the further argument of the learned
Attorney-General that in any case since 1868 in this country the rule of construction of statutes is the one laid down by section 6 of the General Clauses Act, 1868 and that though in express terms that statute may not be applicable to the construction of article 13(1) of the Constitution, yet that rule is a rule of justice, equity and good conscience and has become a rule of common law in this country and should be applied even to cases where statutes become void by reason of their being repugnant to the Constitution.
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For the reasons given above I see no force in this appeal and I would accordingly dismiss it. STATE OF GUJARAT V. SHRI AMBIKA MILLS
AIR 1974 SC 1300, (1974) 4 SCC 656
Decided On: March 26, 1974
BENCH – CHIEF JUSTICE A. N. RAY, JUSTICES H. R. KHANNA, K. K. MATHEW, Y. V.
CHANDRACHUD & A. ALAGIRISWAMI
JUSTICE MATHEW (FOR THE COURT)
The facts are similar in all these cases. We propose to deal with Civil Appeal No. 2271 of
1968. The decision there will dispose of the other appeals.
The first respondent, a company registered under the Companies Act, filed a Writ petition in the High Court of Gujarat, In that petition it impugned the provisions of
Sections 3, 6A and 7 of the Bombay Labour Welfare Fund Act, 1953 (hereinafter referred to as (the Act) and Section 13 of the Bombay Labour Welfare Fund (Gujarat Extension and
Amendment) Act, 1961 (hereinafter referred to as the First Amendment Act) and Rules 3 and
4 of the Bombay Labour Welfare Fund Rules, 1953 (hereinafter referred to as the Rules) as unconstitutional and prayed for the issue of a writ in the nature of mandamus or other appropriate writ or direction against the respondents in the writ petition to desist from enforcing the direction in the notice dated August 2, 1962 of respondent no. 3 to the writ petition requiring the petitioner-1st respondent to pay the unpaid accumulations specified therein. The High Court held that Section 3(1) of the Act in so far as it relates to unpaid accumulations specified in Section 3(2)(b), Section 3(4) and Section 6A of the Act and Rules
3 and 4 of the Rules was unconstitutional and void.
In order to appreciate the controversy, it is necessary to state the background of the amendment made by the Legislature of Gujarat in the Act. The Act was passed by the legislature of the then State of Bombay in 1953 with a view to provide for the constitution of a fund for financing the activities for promoting the welfare of labour in the State of Bombay.
Section 2(10) of the Act defined "unpaid accumulation" as meaning all payments due to the employees but not made to them within a period of three years from the date on which they became due, whether before or after the commencement of the Act, including the wages and gratuity legally payable, but not including the amount of contribution, if any, paid by any employer to a Provident Fund established under the Employees ' Provident Fund Act, 1952.
Section 3(1) provided that the State Government shall constitute a fund called the Labour
Welfare Fund and that notwithstanding anything contained in any other law for the time being in force, the sums specified in Sub-section (2) shall, subject to the provisions of Sub-section
(4) and Section 6A be paid in to the fund. Clause (b) of Sub-section (2) of Section 3 provided that the Fund shall consist of "all unpaid accumulations". Section7(1) provided that the fund shall vest in and be applied by the Board of Trustees subject to the provisions and for the purposes of the Act. Section 19 gave power to the State Government to make rules and in the exercise of that power, the State Government made the Rules. Rules 3 and 4 concerned" the machinery for enforcing the provisions of the Act in regard to fines and unpaid accumulations.
In Bombay Dyeing & Manufacturing Co. Ltd. v. State of Bombay [1958] S.C.R. 1122 this
Court held that the provisions of Sections 3(1) and 3(2)(b) were invalid on the ground that
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they violated the fundamental right of the employer under Article 19(1)(f). The reasoning of the Court was that the effect of the relevant provisions of the Act was to transfer to the Board the debts due by the employer to the employees free from the bar of limitation without discharging the employer from his liability to the employees and that Section 3(1) therefore operated to take away the moneys of the employer without releasing him from his liability to the employees. The Court also found that there was no machinery provided for adjudication of the claim of the employees when the amounts were required to be paid to the fund.
The State sought to justify the provisions of the Act as one relating to abandoned property and, therefore, by their very nature, they could not be held to violate the rights of any person either under Article 19(1)(f) or Article 31(2). The Court did not accept the contention of the
State but held that the purpose of a legislation with respect to abandoned property being in the first instance to safeguard the property for the benefit of the true owners and the State taking it over only in the absence of such claims, the law which vests the property absolutely in the
State without regard to the claims of the true owners cannot be considered as one relating to abandoned property.
On May 1, 1960, the State of Bombay was bifurcated into the States of Maharashtra and
Gujarat. The legislature of Gujarat thereafter enacted to First Amendment Act making various amendments in the Act, some of them with retrospective effect. The First Amendment Act was intended to remedy the defects pointed out in the decision of this Court in the Bombay
Dyeing Case [1958] S.C.R. 1122. The preamble to the First Amendment Act recites that "it is expedient to constitute a Fund for the financing of activities to promote welfare of labour in the State of Gujarat, for conducting such activities and for certain other purposes".
Section 2(2) defines 'employee '. Section 2(3)defines 'employer ' as any person who employs either directly or through another person either on behalf of himself or any other person, one or more employees in an establishment and includes certain other persons.
Section 2(4) defines 'establishment ' and that sub-section as amended reads:
2(4) 'Establishment ' means:
(i) A factory;
(ii) A Tramway or motor omnibus service; and
(iii) Any establishment including a society registered under the Societies
Registration Act, 1960, and a charitable or other trust, whether registered under the Bombay Public Trusts Act, 1950, or not, which carries on any business or trade or any work in connection with or ancillary thereto and which employs or on any working day during the preceding twelve months employed more than fifty persons; but does not include an establishment (not being a factory) of the Central or any State Government.
Sub-section (10) of Section 2 defines 'unpaid accumulations ': 'unpaid accumulations ' means all payments due to the employees but not made to them within a period of three years from the date on which they became due whether before or after the commencement of this Act including the wages and gratuity legally payable but not including the amount of contribution if any, paid by an employer to a provident fund established under the Employees ' Provident
Funds Act, 1952.
Section 3 is retrospectively amended and the amended section in its material part provides that the State Government shall constitute a fund called the Labour Welfare Fund and that the
Fund shall consist of, among other things, all unpaid accumulations. It provides that the sums specified shall be collected by such agencies and in such manner and the accounts of the fund shall be maintained and audited in such manner as may be prescribed. The section further provides that notwithstanding anything contained in any law for the time being in force or any
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contract or instrument, all unpaid accumulations shall be collected by such agencies and in such manner as may be prescribed and be paid in the first instance to the Board which shall keep a separate account therefore until claims thereto have been decided in the manner provided in Section 6A. Section 6A is a new section introduced retrospectively in the Act and
Sub-section (1) and (2) of that section state that all unpaid accumulations shall be deemed to be abandoned property and that any unpaid accumulations paid to the Board in accordance with the provisions of Section 3 shall, on such payment, discharge an employer of the liability to make payment to an employee in respect thereof, but to the extent only of the amount paid to the Board and that the liability to make payment to the employee to the extent aforesaid shall, subject to the other provisions of the section, be deemed to be transferred to the Board.
Sub-section (3) provides that as soon as possible after any unpaid accumulation is paid to the Board, the Board shall, by a public notice, call upon interested employees to submit to the
Board their claims for any payment due to them.
Sub-section (4) provides that such public notice shall contain such particulars as may be prescribed and that it shall be affixed on the notice board or in its absence on a conspicuous part of the premises, of each establishment in which the unpaid accumulations were earned and shall be published in the Official Gazette and also in any two newspapers in the language commonly understood in the area in which such establishment is situated, or in such other manner as may be prescribed, regard being had to the amount of the claim.
Sub-section (5)states that after the notice is first affixed and published under Sub-section
(4) it shall be again affixed and published from time, to time for a period of three years from the date on which it was first affixed and published, in the manner provided in that Sub-section in the months of June and December each year.
Sub-section (6) states that a certificate of the Board to the effect that the provisions of
Sub-section (4) and (5) were complied with shall be conclusive evidence thereof.
Sub-section (7) provides that any claim received whether in answer to the notice or otherwise within a period of four years from the date of the first publication of the notice in respect of such claim, shall be transferred by the Board to the authority appointed under
Section 15 of the Payment of Wages Act, 1936, having jurisdiction in the area in which the factory or establishment is situated, and the Authority shall proceed to adjudicate upon and decide such claim and that in hearing such claim the Authority shall have the powers conferred by and shall follow the procedure (in so far as it is applicable) followed in giving effect to the provisions of that Act.
Sub-section (8) states that if in deciding any claim under Sub-section (7), the Authority allows the whole or part of such claim, it shall declare that the unpaid accumulation in relation to which the claim is made shall, to the extent to which the claim is allowed ceases to be abandoned property and shall order the Board to pay to the claimant the amount of the claim as allowed by it and the Board shall make payment accordingly : provided that the Board shall not be liable to pay any sum in excess of that paid under Sub-section (4) of Section 3 to the
Board as unpaid accumulations, in respect of the claim.
Sub-section (9) provides for an appeal against the decision rejecting any claim.
Sub-section (10) provides that the Board shall comply with any order made in appeal.
Sub-section (11) makes the decision in appeal final and conclusive as to the right to receive payment, the liability of the Board to pay and also as to the amount, if any; and Subsection (12) states that if no claim is made within the time specified in Sub-section (7) or a claim or part thereof has been rejected, then the unpaid accumulations in respect of such claim
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shall accrue to and vest in the State as bona vacantia and shall thereafter without further assurance be deemed to be transferred to and form part of the Fund.
Section 7(1) provides that the Fund shall vest in and be held and applied by the Board as
Trustees subject to the provisions and for the purposes of the Act and the moneys in the Fund shall be utilized by the Board to defray the cost of carrying out measures which may be specified by the State Government from time to time to promote the welfare of labour and of their dependents. Sub-section (2) of Section 7 specifies various measures for the benefit of employees in general on which the moneys in the Fund may be expended by the Board.
Section 11 provides for the appointment of an officer called the Welfare Commissioner and defines his powers and duties.
Section 19 confers rule-making power on the State Government.
Section 22 empowers the State Government by notification in the official gazette to exempt any class of establishment from all or any of the provisions of the Act subject to such conditions as may be specified in the notification.
During the pendency of the writ petition before the High Court, the Gujarat Legislature passed the Bombay Labour Welfare Fund (Gujarat Amendment) Act, 1962 on February 5,
1963 (hereinafter referred to as the Second Amendment Act) introducing Sub-section (13) in
Section 6A with retrospective effect from the date of commencement of the Act. That Subsection provides as follows:
(13) Nothing in the foregoing provisions of this section shall apply to unpaid accumulations not already paid to the Board;
(a) in respect of which no separate accounts have been maintained so that the unpaid claims of employees are not traceable, or
(b) which are proved to have been spent before the sixth day of December, 1961, and accordingly such unpaid accumulations shall not be liable to be collected and paid under Sub-section (4) of Section 3.
The State Government, in the exercise of its rule-making power under Section 19 amended the Rules by amending Rule 3 and adding a new Rule 3A setting out the particulars to be contained in the public notice issued under Section6A(3).
The first respondent raised several contentions before the High Court, but the Court rejected all except two of them and they were: (1) that the impugned provisions violated the fundamental right of citizen-employers and employees under Article 19(1)(f) and, therefore, the provisions were void under Article 13(2) of the Constitution and hence there was no law, and so, the notice issued by the Welfare Commissioner was without the authority of law; and
(2) that discrimination was writ large in the definition of 'establishment ' in Section 2(4) and since the definition permeates through every part of the impugned provisions and is an integral part of the impugned provisions, the impugned provisions were violative of Article 14 and were void.
So, the two questions in this appeal are, whether the first respondent was competent to challenge the validity of the impugned provisions on the basis that they violated the fundamental right under Article 19(1)(f) of citizen-employers or employees and thus show that the law was void and non-existent and, therefore, the action taken against it was bad; and whether the definition of 'establishment ' in Section 2(4) violated the fundamental right of the respondent under Article 14 and the impugned provisions were void for that reason.
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We, however, proceed on the assumption that the impugned provisions abridge the fundamental right of citizen-employers and citizen-employees under Article 19(1)(f) in order to decide the further question and that is, whether, on that assumption, the first respondent could claim that the law was void as against the non-citizen employers or employees under
Article 13(2) and further contend that the non-citizen employers have been deprived of their property without the authority of law, as, ex hypothesi a void law is a nullity.
It is settled by the decisions of this Court that a Corporation is not a citizen for the purposes of Article 19 and has, therefore, no fundamental right under that article (see Tata Engineering and Locomotive Co. Ltd. v. State of Bihar, [1964] 6 SCR 885, R. C. Cooper v. Union of India,
[1970] 3 SCR 530. The same view was taken in Bennett Coleman v. Union of India, [1973] 2
SCR 757.
As already stated, the High Court found that the impugned provisions, in so far as they abridged the fundamental rights of the citizen-employers and employees under
Article 19(1)(f) were void under Article 13(2) and even if the respondent-company had no fundamental right under Article 19(1)(f), it had the ordinary right to hold and dispose of its property, and that the right cannot be taken away or even affected except under the authority of a law. Expressed in another way, the reasoning of the Court was that since the impugned provisions became void as they abridged the fundamental right under Article 19(1)(f) of the citizen-employers and employees the law was void and non-est, and therefore, the first respondent was entitled to challenge the notice issued by the Welfare Commissioner demanding the unpaid accumulation as unauthorized by any law.
The first respondent, no doubt, has the ordinary right of every person in the country to hold and dispose of property and that right, if taken away or even affected by the act of an
Authority without the authority of law, would be illegal. That would give rise to a justiciable issue which can be agitated in a proceeding under Article 226.
The real question, therefore, is, even if a law takes away or abridges the fundamental right of citizens under Article 19(1)(f), whether it would be void and therefore non-est as respects non-citizens? In Keshava Madhava Menon v. State of Bombay, AIR 1951 SC 128 the question was whether a prosecution commenced before the coming into force of the Constitution could be continued after the Constitution came into force as the Act in question there became void as violating Article 19(1)(a) and 19(2). Das, J. who delivered the majority judgment was of the view that the prosecution could be continued on the ground that the provisions of the
Constitution including Article 13(1) were not retrospective. The learned judge said that after the commencement of the Constitution, no existing law could be allowed to stand in the way of the exercise of fundamental rights, that such inconsistent laws were not wiped off or obliterated from the statute book and that the statute would operate in respect of all matters or events which took place before the Constitution came into force and that it is also operated after the Constitution came into force and would remain in the statute book as operative so far as non-citizens are concerned.
This decision is clear that even though a law which is inconsistent with fundamental rights under Article 19 would become void after the commencement of the Constitution, the law would still continue in force in so far as non-citizens are concerned. This decision takes the view that the word 'void ' in Article 13(1) would not have the effect of wiping out preConstitution laws from the statute book, that they will continue to be operative so far as noncitizens are concerned, notwithstanding the fact that they are inconsistent with the fundamental rights of citizens and therefore become void under Article 13(1).
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In Behram Khurshed Pesikaka v. State of Bombay, 1955 Cri L.J. 215 the question was about the scope of Article 13(1). This Court had held that certain provisions of the Bombay
Prohibition Act, 1949 (a pre-Constitution Act), in so far as they prohibited the possession, use and consumption of medicinal preparations were void as violating Article 19(1)(f). The appellant was prosecuted under the said Act and he pleaded that he had taken medicine containing alcohol. The controversy was whether the burden of proving that fact was on him.
It became necessary to consider the legal effect of the declaration made by this Court that
Section 13(b) of the said Act in so far as it affected liquid medicinal and toilet preparations containing alcohol was invalid as it infringed Article 19(1)(f). At the first hearing all the judges were agreed that a declaration by a Court that part of a section was invalid did not repeal or amend that section. Venkatarama Aiyar, J. with whom Jagannadhadas, J. was inclined to agree, held that a distinction must be made between unconstitutionality arising from lack of legislative competence and that arising from a violation of constitutional limitations on legislative power. According to him, if the law is made without legislative competence, it was a nullity; a law violating a constitutional prohibition enacted for the benefit of the public generally was also a nullity; but a law violating a constitutional prohibition enacted for individuals was not a nullity but was merely unenforceable. At the second hearing of the case,
Mahajan, J. after referring to Madhava Menon 's Case, said that for determining the rights and obligations of citizens, the part declared void should be notionally taken to be obliterated from the section for all intents and purposes though it may remain written on the statute book and be a good law when a question arises for determination of rights and obligations incurred prior to January 26, 1950, and also for the determination of rights of persons who have not been given fundamental rights by the Constitution. Das, J. in his dissenting judgment held that to hold that the invalid part was obliterated would be tantamount to saying covertly that the judicial declaration had to that extent amended the section. At p. 659, the learned Judge observed: It is beyond all dispute that it is for the Court to judge whether the restrictions imposed by any existing law or any part thereof on the fundamental rights of citizens are reasonable or unreasonable in the interest of the general public or for the protection of the interests of any Scheduled Tribe. If the Court holds that the restrictions are unreasonable then the Act or the part thereof which imposes such unreasonable restrictions comes into conflict and becomes inconsistent with the fundamental right conferred on the citizens by Article 19(1)(f) and is by Article
13(1) rendered void, not in toto or for all purposes or for all persons but 'to the extent of such inconsistency ' i.e., to the extent it is inconsistent with the exercise of that fundamental right by the citizens. This is plainly the position, as I see it.
Mahajan, C.J. rejected the distinction between a law void for lack of legislative power and a law void for violating a constitutional fetter or limitation on legislative power. Both these declarations, according to the learned Chief Justice, of unconstitutionally go to the root of the power itself and there is no real distinction between them and they represent but two aspects of want of legislative power.
In Bhikhai Narain Dhakras v. State of M.P.,[1955] 2 SCR 589 the question was whether the C.P. and Berar Motor Vehicles (Amendment) Act, 1947, amended Section 43 of the Motor
Vehicles Act, 1939, by introducing provisions which authorized the Provincial Government to take up the entire motor transport business in the Province and run it in competition with and even to the exclusion of motor transport operators. These provisions, though valid when enacted, became void on the coming into force of the Constitution, as they violated
Article 19(1)(g). On June 18, 1951, the Constitution was amended so as to authorize the State to carry on business "whether to the exclusion, complete or partial, or citizens or otherwise".
A notification was issued after the amendment and the Court was concerned with the validity of the notification. The real question before the Court was that although Section 43 was void
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between January 26, 1950, and June 18, 1951, the amendment of the Article 19(6) had the affect of removing the constitutional invalidity of Section 43 which, from the date of amendment, became valid and operative. After referring to the meaning given to the word 'void ' in Madhva Menon 's Case Das, Acting C.J. said for the Court:
All laws, existing or future, which are inconsistent with the provisions of Part III of our Constitution are, by the express provision of Article 13, rendered void 'to the extent of such inconsistency '. Such laws were not dead for all purposes. They existed for the purposes of pre-Constitution rights and liabilities and they remained operative, even after the Constitution, as against non-citizens. It is only as against the citizens that they remained in a dormant or moribund condition (at pp. 599-600)
In M. P. V. Sundararamaier v. State of A.P., [1958] 1 SCR 1422, Venkatarama Aiyar, J. said that a law made without legislative competence and a law violative of constitutional limitations on legislative power were both unconstitutional and both had the same reckoning in a court of law; and they were both unenforceable but it did not follow from this that both laws were of the same quality and character and stood on the same footing for all purposes.
The proposition laid down by the learned Judge was that if a law is enacted by a legislature on a topic not within its competence, the law was a nullity but if the law was on a topic within its competence but if it violated some constitutional prohibition, the law was only unenforceable and not a nullity. In other words, a law if it lacks legislative competence was absolutely null and void and a subsequent cession of the legislative topic would not revive the law which was still-born and the law would have to be re-enacted; but a law within the legislative competence but violative of constitutional limitation was unenforceable but once the limitation was removed, the law became effective. The learned judge said that the observations of Mahajan. J, in Pesikaka 's case that [the] part of Section 13(b) of the Bombay
Prohibition Act, 1949, which had been declared invalid by this Court "had to be regarded as null and void" could not in the context be construed as implying that the impugned law must be regarded as non-est so as to be incapable of taking effect when the bar was removed. He summed up the result of the authorities as follows:
Where an enactment is unconstitutional in part but valid as to the rest, assuming of course that the two portions are severable, it cannot be held to have been wiped out of the statute book as it admittedly must remain there for the purpose of enforcement of the valid portion thereof, and being on the statute book, even that portion which is unenforceable on the ground that it is unconstitutional will operate proprio vigore when the Constitutional bar is removed, and there is no need for a fresh legislation.
In Deep Chand v. State of U.P., [1959] Supp. 2 S.C.R. 8 it was held that a postConstitution law is void from its inception but that a pre-Constitution law having been validly enacted would continue in force so far as non-citizens are concerned after the Constitution came into force. The Court further said that there is no distinction in the meaning of the word 'void ' in Article 13(1) and in 13(2) and that it connoted the same concept but, since from its inception the post-constitution lay is void, the law cannot be resuscitated without reenactment. Subba Rao, J. who wrote the majority judgment said after citing the observations of Das, Actg. C.J. in Madhava Menon 's Case (supra):
The second part of the observation directly applies only to a case covered by
Article 13(1), for the learned Judges say that the laws exist for the purposes of pre-Constitution rights and liabilities and they remain operative even after the
Constitution as against non-citizens. The said observation could not obviously apply to post Constitution laws. Even so, it is said that by a parity of reasoning the post-Constitution laws are also void to the extent of their repugnancy and therefore the law in respect of non-citizens will be on the statute-book and by the application of the doctrine of eclipse, the same result should flow in its case also.
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There is some plausibility in this argument, but it ignores one vital principle, viz., the existence or the non-existence of legislative power or competency at the time the law is made governs the situation (p. 38).
Das, C.J. dissented. He was of the view that a post-constitution law may infringe either a fundamental right conferred on citizens only or a fundamental right conferred on any person, citizen or non-citizen and that in the first case the law will not stand in the way of the exercise by the citizens of that fundamental right and, therefore, will not have any operation on the rights of the citizens, but it will be quite effective as regards non-citizens.
In Mahendra Lal Jain v. State of U.P., [1963] Supp 1 S.C.R. 912, the Court was of the view that the meaning of the word 'void ' is the same both in Article 13(1) and Article 13(2) and that the application of the doctrine of eclipse in the case of pre-constitution laws and not in the case of post-constitution laws does not depend upon the two parts of Article 13; "that it arises from the inherent difference between Article 13(1) and Article 13(2) arising from the fact that one is dealing with pre-Constitution laws, and the other is dealing with postConstitution laws, with the result that in one case the laws being not still-born the doctrine of eclipse will apply while in the other case the law being still-born there will be no scope for the application of the doctrine of eclipse."
If the meaning of the word 'void ' in Article 13(1) is the same as its meaning in
Article 13(2), it is difficult to understand why a pre-Constitution law which takes away or abridges the rights under Article 19 should remain operative even after the Constitution came into force as regards non-citizens and a post-Constitution law which takes away or abridges them should not be operative as respects non-citizens. The fact that pre-Constitution law was valid when enacted can afford no reason why it should remain operative as respects noncitizens after the Constitution came into force as it became void on account of its inconsistency with the provisions of Part III. Therefore, the real reason why it remains operative as against non-citizens is that it is void only to the extent of its inconsistency with the rights conferred under Article 19 and that its void-ness is, therefore, confined to citizens, as, ex hypothesi, the law became inconsistent with their fundamental rights alone. If that be so, we see no reason why a post-Constitution law which takes away or abridges the rights conferred by Article
19 should not be operative in regard to non-citizens as it is void only to the extent of the contravention of the rights conferred on citizens, namely, those under Article 19.
Article 13(2) is an injunction to the 'state ' not to pass any law which takes away or abridges the fundamental rights conferred by Part III and the consequence of the contravention of the injunction is that the law would be void to the extent of the contravention. The expression 'to the extent of the contravention ' in the sub-article can only mean, to the extent of the contravention of the rights conferred under that part. Rights do not exist in vacuum. They must always inhere in some person whether natural or juridical and, under Part III, they inhere even in fluctuating bodies like a linguistic or religious minorities or denominations. And, when the sub-article says that the law would be void "to the extent of the contravention", it can only mean to the extent of the contravention of the rights conferred on persons, minorities or denominations, as the case may be. Just as a pre-Constitution law taking away or abridging the fundamental rights under Article 19 remains operative after the Constitution came into force as respects non-citizens as it is not inconsistent with their fundamental rights, so also a post-Constitution law offending Article 19, remains operative as against non-citizens as it is not in contravention of any of their fundamental rights. The same scheme permeates both the
Sub-articles, namely, to make the law void in Article 13(1) to the extent of the inconsistency with the fundamental rights, and in Article 13(2) to the extent of the contravention of those rights. In other words, the void-ness is not in rem but to the extent only of inconsistency or contravention, as the case may be of the rights conferred under Part III. Therefore, when
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Article 13(2) uses the expression 'void ', it can only mean, void as against persons whose fundamental rights are taken away or abridged by a law. The law might be 'still-born ' so far as the persons, entities or denominations whose fundamental rights are taken away or abridged, but there is no reason why the law should be void or 'still-born ' as against those who have no fundamental rights.
It is said that the expression "to the extent of the contravention" in the article means that the part of the law which contravenes the fundamental right would alone be void and not the ether parts which do not so contravene. In other words, the argument was that the expression is intended to denote only the part of the law that would become void and not to show that the law will be void only as regards the persons or entities whose fundamental rights have been taken away or abridged.
The first part of the sub-article speaks of 'any law ' and the second part refers to the same law by using the same expression, namely, 'any law '. We think that the expression 'any law ' occurring in the latter part of the sub-article must necessarily refer to the same expression in the former part and therefore, the Constitution-makers have already made it clear that the law that would be void is only the law that contravenes the fundamental rights conferred by Part
III, and so, the phrase 'to the extent of the contravention ' can mean only to the extent of the contravention of the rights conferred. For instance, if a section in a statute takes away or abridges any of the rights conferred by Part III, it will be void because it is the law embodied in the section which takes away or abridges the fundamental right. And this is precisely what the sub-article has said in express terms by employing the expression 'any law ' both in the former and the latter part of it. It is difficult to see the reason why the Constitution-makers wanted to state that the other sections, which did not violate the fundamental right, would not be void, and any such categorical statement would have been wrong, as the other sections might be void if they are inseparably knitted to the void one. When we see that the latter part of the sub-article is concerned with the effect of the violation of the injunction contained in the former part, the words "to the extent of the contravention" can only refer to the rights conferred under Part III and denote only the compass of void-ness with respect to persons or entities resulting from the contravention of the rights conferred upon them.
Why is it that a law is void under Article 13(2)? It is only because the law takes away or abridges a fundamental right. There are many fundamental rights and they inhere in diverse types of persons, minorities or denominations. There is no conceivable reason why a law which takes away the fundamental right of one class of persons, or minorities or denominations should be void as against others who have no such fundamental rights as, ex hypothesi the law cannot contravene their rights.
It was submitted that this Court has rejected the distinction drawn by Venkatarama Aiyar,
J. in Sundararamaiers case [1958] S.C.R. 1422 between legislative incapacity arising from lack of power under the relevant legislative entry and that arising from a check upon legislative power on account of Constitutional provisions like fundamental rights and that if the law enacted by a legislature having no capacity in the former sense would be void in rem, there is no reason why a law passed by a legislature having no legislative capacity in the latter sense is void only qua persons whose fundamental rights are taken away or abridged.
It was also urged that the expression "the State shall not make any law" in Article 13(2) is a clear mandate of the fundamental law of the land and, therefore, it is a case of total incapacity and total want of power. But the question is: what is the mandate? The mandate is that the
State shall not make any law which takes away or abridges the rights conferred by Part III. If no rights are conferred under Part III upon a person, or, if rights are conferred, but they are not taken away or abridged by the law, where is the incapacity of the legislature? It may be
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noted that both in Deep Chand 's case (supra) and Mahendra Lal Jain 's case (supra), the decision in Sundararamaier 's case (supra) was not adverted to. If on a textual reading of
Article 13, the conclusion which we have reached is the only, reasonable one, we need not pause to consider whether that conclusion could be arrived at except on the basis of the distinction drawn by Venkatarama Aiyar, J, in Sundararamaie 's case (supra). However, we venture to think that there is nothing strange in the notion of a legislature having no inherent legislative capacity or power to take away or abridge by a law the fundamental rights conferred on citizens and yet having legislative power to pass the same law in respect of non-citizens who have no such fundamental rights to be taken away or abridged. In other words, the legislative incapacity subject-wise with reference to Articles 245 and 246 in this context would be the taking away or abridging by law the fundamental rights under Article 19 of citizens.
Mr. H.W.R. Wade has urged with considerable force that the terms 'void ' and 'voidable ' are inappropriate in the sphere of administrative law See "Unlawful Administrative Action",
83 Law Quarterly Rev. 499, at 518. According to him, there is no such thing as void-ness in an absolute sense, for, the whole question is: void as against whom? And he cites the decision of the Privy Council in Durayappah v. Fernando (1967) 3 W.L.R. 289 in his support.
In Jagannath v. Authorised Officer, Land Reforms, [1972] 1 SCR 1055 this Court has said that a post-Constitution Act which has been struck down for violating the fundamental rights conferred under Part III and was therefore still-born, has still an existence without reenactment, for being put in the Ninth Schedule. That only illustrates that any statement that a law which takes away or abridges fundamental rights conferred under Part III is still-born or null and void requires qualifications in certain situations. Although the general rule is that a statute declared unconstitutional is void at all times and that its invalidity must be recognized and acknowledged for all purposes and is no law and a nullity, this is neither universally nor absolutely true, and there are many exceptions to it. A realistic approach has been eroding the doctrine of absolute nullity in all cases and for all purposes See Warring v. Colpoys 122 F. 2d
642 and it has been held that such broad statements must be taken with some qualifications
See Chicot Country Drainage District v. Baxter State Bank, Ark. 308 U.S. 371, that even an unconstitutional statute is an operative fact and may have consequences which cannot be ignored. See Corpus Justice Secundum, Vol. 16, p. 469.
………
We do not think it necessary to pursue this aspect further in this case. For our purpose it is enough to say that if a law is otherwise good and does not contravene any of their fundamental rights, non-citizens cannot take advantage of the void-ness of the law for the reason that it contravenes the fundamental right of citizens and claim that there is no law at all. Nor would this proposition violate any principle of equality before the law because citizens and non-citizens are not similarity situated as the citizens have certain fundamental rights which non-citizens have not. Therefore, even assuming that under Article 226 of the
Constitution, the first respondent was entitled to move the High Court and seek a remedy for infringement of its ordinary right to property, the impugned provisions were not non-est but were valid laws enacted by a competent legislature as respects non-citizens and the first respondent cannot take the plea that its rights to property are being taken away or abridged without the authority of law.
… … … [Discussion on Article 14 has been omitted] …
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UNIT 3 – EQUALITY CLAUSE (ARTICLE 14)
DOCTRINE OF REASONABLE CLASSIFICATION
STATE OF WEST BENGAL V. ANWAR ALI SARKAR
AIR 1952 SC 75
Decided On: January 11, 1952
BENCH – CHIEF JUSTICE PATANJALI SASTRI, JUSTICES S. FAZL ALI, M. C. MAHAJAN, B. K.
MUKHERJEA, S. R. DAS, N. C. AIYAR & VIVIAN BOSE
CHIEF JUSTICE SASTRI (for himself)
This is an appeal by the State of West Bengal from a judgment of a Full Bench of the
High Court of Judicature at Calcutta quashing the conviction of the respondent by the Special
Court established under section 3 of the West Bengal Special Courts Ordinance, 1949,
(Ordinance No. 3 of 1949) which was replaced in March, 1950, by the West Bengal Special
Courts Act, 1950, (West Bengal Act X of 1950) (hereinafter referred to as "the Act").
The respondent and 49 other persons were charged with various offences alleged to have been committed by them in the course of their raid as an armed gang on a certain factory known as the Jessop Factory at Dum Dum, and they were convicted and sentenced to varying terms of imprisonment by the Special Court to which the case was sent for trial by the
Governor of West Bengal by a notification dated 26th January, 1950, in exercise of the powers conferred by section 5(1) of the Act. Thereupon the respondent applied to the High Court under article 226 of the Constitution for the issue of a writ of certiorari quashing the conviction and sentence on the ground that the Special Court had no jurisdiction to try the case inasmuch as section 5(1), under which it was sent to that Court for trial, was unconstitutional and void under article 13(2) as it denied to the respondent the equal protection of the laws enjoined by article 14. The High Court by a Full Bench consisting of the Chief Justice and four other
Judges quashed the conviction and directed the trial of the respondent and the other accused persons according to law. Hence the appeal.
The Act is instituted "An Act to provide for the speedier trial of certain offences", and the preamble declares that "it is expedient to provide for the speedier trial of certain offences".
Section 3 empowers the State Government by notification in the official gazette to constitute
Special Courts, and section 4 provides for the appointment of special judges to preside over such courts. Section 5, whose constitutionality is impugned, runs thus:
5 (1) A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may by general or special order in writing, direct.
(2) No direction shall be made under sub-section (1) for the trial of an offence for which an accused person was being tried at the commencement of this Act before any cot but save as aforesaid, such direction may be made in respect of an offence, whether such offence was committed before or after the commencement of this Act.
Sections 6 to 15 prescribe the special procedure which the court has to follow in the trial of cases referred to it. The main features of such procedure which mark a departure from the established procedure for criminal trials under the Code of Criminal Procedure are the elimination of the committal procedure in sessions cases and the substitution of the procedure laid down in the Code for trial of warrant cases by the Magistrate, trial without jury or assessors, restriction of the court 's power in granting adjournments, special powers to deal
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with refractory accused and dispensation of de novo trial on transfer off a case from one special court to another. While some of these departures from the normal procedure might, in practice, operate in some respects to the disadvantage of persons tried before the Special Court, it cannot be said that they derogate from the essential requirements of a fair and impartial trial, so as to give rise, from their very nature, to an inference of a discriminatory design. In other words, it cannot be said that the special procedure provided in the Act is, on its face, calculated to prejudice the fair trial of persons subjected to it. The departure in each case is plainly calculated to shorten the trial and thus to attain the declared objective of the statute.
Harries C.J. who delivered the leading judgment, in which Das and Banerjee JJ. concurred, applied the test of what may be called "reasonable classification" and held that, although the need for a speedier trial than what is possible under the procedure prescribed by the Code of Criminal Procedure might form the basis of a reasonable classification and section
5(1) could not be regarded as discriminatory in so far as it authorises the State Government to direct that certain offences or classes of offences or classes of cases should be tried by a special court, the provision was discriminatory and violative of article 14 of the Constitution in so far as it purported to vest in the State Government an absolute and arbitrary power to refer to a special court for trial "any cases", which must include an individual case, "whether the duration of such a case is likely to be long or not". The learned Chief Justice rejected the argument that the word "cases" in the sub-section should, in view of the title and preamble of the Act, be construed as meaning cases requiring speedier trial." He found it "impossible to cut down the plain meaning of the word 'cases ' as used in the section". He realised that
"the powers under the sub-section could be so exercised as not to involve discrimination, but they also could, in my view, be exercised in a manner involving discrimination. When an Act gives power which may and can offend against a provision or provisions of the Constitution such an Act is ultra vires though it could be administered so as not to offend against the Constitution"
and he relied in support of this view on certain observation in the judgment of the majority in the Crossroads case [1950] S.C.R. 594, 603.
Chakravartti and Das JJ. delivered separate judgments agreeing with the conclusion of the
Chief Justice. Das Gupta J., however, going further and holding that section 5(1) was unconstitutional in its entirety inasmuch as "the classification sought to be made on the expediency of speedier trial is not a well-defined classification. It is too indefinite and there can hardly be any definite objective test to determine it."
Before considering whether section 5(1) infringes, to any and what extent, the constitutional prohibition under article 14, it is necessary to ascertain the true scope and intendment of the impugned provision. It purports to provide for the matters to be tried by a special court and does not, in form seek to define the kind or class of offences or cases which the State Government is empowered under the Act to assign to such a court for trial. In other words, the purpose of section 5(1) is to define the jurisdiction of a special court appointed under the Act and not the scope of the power conferred on the State Government to refer cases to such court. As the very object of the Act was to provide for speedier trials by instituting a system of special courts with a simplified and shortened procedure, it is reasonable to conclude that, so far as the legislature was concerned, its intention was that courts constituted under the
Act and applying such procedure should deal only with cases requiring speedier trial and that, accordingly, the State Government should refer to such courts only cases of that description.
The principle of construction applicable here is perhaps nowhere better stated than by Lord
Tenterden C.J. in Halton v. Cove (1830) 1 B & Ad. 538, 558:
"It is very true, as was argued for the plaintiff, that the enacting words of an Act of Parliament are not always to be limited by the words of the preamble, but must
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in many cases go beyond it. Yet, on a sound construction of every Act of
Parliament, I take it the words of the enacting part must be confined to that which is the plain object and general intention of the legislature in passing the Act, and that the preamble affords a good clue to discover what that object was".
The same view was expressed by Holmes J. in an American case, Carroll v. Greenwich
Inc. 199 U.S. 401:
"The object of the law, we assume, until the lower Court shall decide otherwise, is single-to keep up competition and the general language is to be restricted by the specifies provisions and to the particular end."
The title and the preamble as well as the other specific provisions of the Act here in question show unmistakably that the whole object and purpose of the legislation was to devise machinery for "speedier trial of certain offences", (which must mean trial of cases involving the commission of certain offences as there can, of course, be no trial of offences in the abstract) and the general expressions used in providing for the power to set that machinery in operation must be restricted to that end in accordance with the intention of the legislature; for, a literal construction of the general language would impute to the legislature an intention to confer an arbitrary power of reference which would be inconsistent not only with the declared object of the statute but also with the constitutional prohibition against discrimination, which the legislature must be taken to have been aware of when it deliberately re-enacted the provisions of the old Ordinance. The discretion vested in the State Government in selecting cases for reference to a special court may not be subject to judicial review and may, in that sense, be absolute, but that is very different from saying that it was intended to be arbitrary.
Its exercise must involve bona fide consideration of special features or circumstances which call for a comparatively prompt disposal of the case or cases proposed to be referred. In other words, section 5(1) must, in my opinion, be read as empowering the State Government to direct a special court to try such offences or classes of offences or cases or classes of cases as, in its judgment, require speedier trial.
The question next arise as to whether the provision, thus understood, violates the prohibition under article 14 of the Constitution. The first part of the article, which appears to have been adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the territories of India and thus enshrines what American Judges regard as the "basic principle of republicanism" [cf. Ward v. Flood, 17 Am. Rep. 405]. The second part which is a corollary of the firsts and is based on the last clause of the first section of the
Fourteenth Amendment of the American Constitution, enjoins that equal protection shall be secured to all such person in the enjoyment of their rights and liberties without discrimination or favoritism, or as an American Judge put it "it is a pledge of the protection of equal laws"
[Yick Wo v. Hopkins, 118 U.S. 356, 369], that is, laws that operate alike on all persons under like circumstances. And as the prohibition under the article is directed against the State, which is defined in article 12 as including not only the legislatures but also the Governments in the country, article 14 secures all person within the territories of India against arbitrary laws as well as arbitrary application of laws. This is further made clear by defining "law" in article 13 (which renders void any law which takes away or abridges the rights conferred by
Part III) as including, among other things, any "order" or "notification", so that even executive orders or notifications must not infringe article 14. This trilogy of articles thus ensures nondiscrimination in State action both in the legislative and the administrative spheres in the democratic republic of India.
This, however, cannot mean that all law must be general in character and universal in application. As pointed out in Chiranjit Lal 's case, [1950] S.C.R. 869, and in numerous
American decisions dealing with the equal protection clause of the 14th Amendment, the State
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in the exercise of its governmental power must of necessity make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying person or things to be subjected to such laws. But classification necessarily implies discrimination between persons classified and those who are not members of that class. "It is the essence of a classification" said Mr. Justice Brewer in Atchison, Topeka & Santa Fe R.
Co. v. Matthews, 174 U.S. 96, 106, "that upon the class are caste duties and burdens different from those resting upon the general public. Indeed the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines this matter of constitutionality". Commenting on this observation in his dissenting opinion in Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 566, 567, 568, (which later prevailed in Tigner v. Texas, 310 U.S. 141, Mr. Justice McKenna posed a problem and proceeded to answer it: "It seems like a contradiction to say that a law having equality of operating may yet give equality of protection. Viewed rightly, however, the contradiction disappears… Government is not a simple thing. It encounters and must deal with the problems which come from persons in an infinite variety of relations. Classification is the recognition of those relations, and, in making it, a legislature must be allowed a wide latitude of discretion and judgment… Classification based on those relations need not be constituted by an exact or scientific exclusion or inclusion of person or things.” Therefore it has been repeatedly declared that classification is justified if it is not palpably arbitrary.
Thus, the general language of article 14, as of its American counterpart, has been greatly qualified by the recognition of the State 's regulative power to make laws operating differently on different classes of persons in the governance of its subjects, with the result that the principle of equality of civil rights and of equal protection of the laws is only given effect to as a safeguard against arbitrary State action. It follows that in adjudging a given laws as discriminatory and unconstitutional two aspects have to be considered. First, it has to be seen whether it observes equality between all the persons on whom it is to operate. An affirmative finding on the point may not, however, be decisive of the issue. If the impugned legislation is a special law applicable only to a certain class of persons, the court must further enquire whether the classification is founded on a reasonable basis having regard to the object to be attained, or is arbitrary. Thus, the reasonableness of classification comes into question only in those cases where special legislation affecting a class of person is challenged as discriminatory. But there are other types of legislation such as for instances, the Land
Acquisition Act, which do not rest on classification, and no question of reasonable classification could fairly arise in respect of such enactments. Nor, obviously, could it arise when executive orders or notifications directed against individual citizens are assailed as discriminatory. It is interesting to find that the trend of recent decisions in America has been to lean strongly toward sustaining State action both in the legislative and in the administrative spheres against attacks based on hostile discrimination. Classification condemned as discriminatory have been subsequently upheld as being within the powers of the legislature. In Tigner v.
Texas, 310 U.S. 141, the majority view in Connolly 's case, 184 U.S. 540, holding that an
Illinois anti-trust law, which made certain forbidden acts criminal if done by merchants and manufactures but declared them to be civil wrongs if done by farmers and stockmen, was
"manifestly a denial of the equal protection of the laws" was considered to be no longer
"controlling". While in Gulf, Colorado & Santa Fe R. Co. v. Ellis, 165 U.S. 666, a Texas statute imposing an attorney 's fee in addition to costs upon railway corporations which unsuccessfully defended actions for damages for stock killed or injured by their train was
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struck down as discriminatory because such corporations could not recover any such fee if their defence was successful, a similar provision in a Kansas statute in respect of an action against railroad companies for damages by fire caused by operating the rail- road was upheld as not discriminatory in Atchison, Topeka & Santa Fe R. Co v. Matthews, 174 U.S. 96, the earlier case being distinguished on some ground which Harlon, J. in his dissenting opinion confessed he was not "astute enough to perceive". And the latest decision in Kotch v. Pilot
Comm 'rs, 330 U.S. 552, marks, perhaps, the farthest swing of the pendulum. A Louisiana pilotage law authorised the appointment of State pilots only upon certification by a State Board of river pilot commissioners who were themselves State Pilots. Among the prescribed qualifications was apprenticeship under a State pilot for a certain period. By admitting only their relatives and friends to apprenticeship, the members of the board made it impossible, with occasional exceptions, for others to be appointed as State pilots. Upholding the constitutionality of the law as well as the manner in which it was administered, the Court said:
"The constitutional command for a State to afford equal protection of the law sets a goal not attainable by the invention and application of a precise formula. This Court has never attempted that impossible task. A law which affects the activities of some groups differently from the way in which it affects the activities of other groups is not necessarily banned by the
14th Amendment. Otherwise, effective regulation in the public interest could not be provided, however essential that regulation might be."
These decisions seem, to my mind, to reveal a change of approach marked by an increasing respect for the State 's regulatory power in dealing with equal protection claims and underline the futility of wordy formulation of so called "tests" in solving problems presented by concrete cases.
Great reliance was placed on behalf of the respondent upon the decision in Truax v.
Corrigan, 257 U.S. 312 and Yick Wo v. Hopkins, 118 U.S. 356. In the former case it was held by a majority of 5:4 that a law which denied the remedy of injunction in a dispute between employer and his ex-employees was a denial of the equal protection of laws, as such a remedy was allowed in all other cases. But it is to be noted that the minority, which included Holmes and Brandies JJ., expressed the opinion that it was within the power of the State to make such differentiation and the law was perfectly constitutional. The legislation was obviously applicable to a class of persons and the decision was an instance where the classification was held to be arbitrary and is not of much assistance to the respondent. In the other case a San
Francisco Ordinance, which prohibited the carrying on of a laundry business within the limits of the City without having first obtained the consent of the Board of Supervisors unless it was located in building constructed of brick or stone, was held discriminatory and unconstitutional.
The undisputed facts disclosed in the record were that out of 320 laundries in San Francisco about 310 were constructed of wood, and about 240 of the 320 were owned and conducted by subjects of China. The petitioner, a Chinaman, and about 200 of his countrymen applied to the Board of Supervisors to continue their clothes-washing business in wooden buildings which they had been occupying for many year, but in all cases licence was refused, whereas not a single one of the petitions presented by 80 persons who were not subjects of China had been refused. Dealing with these facts the court observed:
"Though the law itself be fair on its face and impartial in appearance, yet if it is applied and administered by public authority with an evil eye and an unequal hand so as to practically make unjust and illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution."
It is to be noted that the law was "administered". i.e., not merely applied in a few stray cases, but regularly and systematically applied, making a hostile discrimination against a particular class of persons on grounds of race and colour. Such systematic discriminatory
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administration in practice of the ordinance though impartial on its face was, evidently, taken to give rise to the inference that it was designed to be so administered. That is how the decision has been explained in later cases. For instance, in Alchison Topeka & Santa Fe R. Co v.
Matthews, 174 U.S. 96, 105, it was said:
"In that case (Yick Wo 's case, 118 U.S. 356), a municipal ordinance of San
Francisco designed to prevent the Chinese from carrying on the laundry business was adjudged void. This Court looked beyond the mere letter of the ordinance to the condition of things as they existed in San Francisco and saw under the guise of regulation an arbitrary classification was intended and accomplished".
That is to say, the ordinance was that the Privy Council called a "colourable legislative expedient" which, under the "guise or pretence" of doing what is constitutionally permissible,
"in substance and purpose seeks to effect discrimination": Morgan Proprietary Ltd. v. Deputy
Commissioner of Taxation for New South Wales, [1940] A.C. 838, 858. Thus explained, the
Yick Wo case is no authority for the view that the vesting in a public authority of a discretion which is liable to abuse by arbitrary exercise contrary to its intendment is a sufficient ground for condemning a statute as discriminatory and unconstitutional.
On the other hand, there is ample authority in the American decisions for the view that the necessarily large powers vested in a legislature must include the power of entrusting to an administrative body a plenary but no arbitrary discretion to be exercised so as to carry out the purpose of an enactment. In Engel v. O ' Malley, 219 U.S. 128, a New York statute prohibiting individuals or partnerships to engage in the business of receiving deposits of money without a licence from the controller "who may approve or disapprove the application for a licence in his discretion" was sustained as constitutional. In answer to the argument that the controller might refuse a licence on his arbitrary whim, Holmes J. said:
"We should suppose that in each case the controller was expected to act for cause.
But the nature and extent of the remedy, if any, for a breach of duty on his part, we think it unnecessary to consider; for the power of the state to make the pursuit of a calling dependent upon obtaining a licence is well established where safety seems to require it."
In New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, a provision in the Sanitary
Code of the City of New York vested discretion in Local Health Boards to grant or withhold licences for carrying on milk business in the City. Upholding the constitutionality of the provision, Day J, observed after referring to certain prior decisions:"These cases leave in no doubt the proposition that the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the police power ' of the state is not violative of rights secured by the 14th Amendment. There is no presumption that the power will be arbitrarily exercised, and when it is shown to be thus exercised against the individual, under sanction of state authority, this court has not hesitated to interfere for his protection, when the case has come before it in such manner as to authorise the interference of a Federal Court."
And Holmes J. added that, although it did not appear from the statute that the action of the Board of Health was intended to be subject to judicial revision as to its reasonableness, he agreed that it was not hit at by the 14th Amendment.
In the light of the foregoing discussion it seems to me difficult to hold that section 5(1) in whole or in part is discriminatory. It does not, either in terms or by necessary implication, discriminate as between persons or classes of persons; nor does it purport to deny to any one equality before the law or the equal protection of the laws. Indeed, it does not by its own force make the special procedure provided in the Act applicable to the trial of any offence or classes of offences or classes of cases; for, it is the State Government 's notification under the section
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that attracts the application of the procedure. Nor is that procedure, as I have endeavored to show, calculated to impair the chances of a fair trial of the cases to which it may be made applicable, and no discriminatory intent or design is discernible on its face, unless every departure from the normal procedure is to be regarded as involving a hostile discrimination. I have already held, as a matter of construction, that section 5(1) vests a discretion in the State
Government to refer to a special court for trial such offences or classes of offences or cases or classes of cases as may, in its opinion require a speedier trial. Such discretion the State
Government is expected to exercise honestly and reasonably, and the mere fact that it is not made subject to judicial review cannot mean that it was intended to be exercised in an arbitrary manner without reference to the declared object of the Act or, as Harries C.J. put it, “whether the duration of a case is likely to be long or not.”
In the face of all these considerations, it seems to me difficult to condemn section 5(1) as violative of article 14. If the discretion given to the State Government should be exercised improperly or arbitrarily, the administrative action may be challenged as discriminatory, but it cannot affect the constitutionality of the law. Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it. As observed by Kania C.J. in Dr. Khare 's case, [1950] S.C.R. 519 "It is improper to start with such an assumption and decide the legality of an Act on that basis.
Abuse of power given by law sometimes occurs; but the validity of the law cannot be contested because of such an apprehension." On the contrary, it is to be presumed that a public authority will act honestly and reasonably in the exercise of its statutory powers, and that the State
Government in the present case will, before directing a case to be tried by a Special Court, consider whether there are special features and circumstances which might unduly protract its trial under the ordinary procedure and mark it off for speedier that under the Act.
But it was said that the possibility of the Act being applied in an unauthorised and arbitrary manner was sufficient to make it unconstitutional according to the decisions of this Court in
Romesh Thapar v. State of Madras, [1950] S.C.R. 594 and Chintaman Rao v. State of Madhya
Pradesh, [1950] S.C.R. 759. It will be recalled that this was the main ground on which the learned Judges in the High Court rested their decision. With respect, those decisions have, I think, no application here. In Romesh Thapar 's case the constitutionality of a provincial enactment purporting to authorise the Provincial Government to regulate the circulation of a news-sheet in the Province of Madras for the purpose of "securing the public safety or the maintenance of public order" was challenged as being inconsistent with the petitioner 's fundamental right to freedom of speech and expression conferred by article 19(1)(a) of the
Constitution. But the only relevant constitutional limitation on freedom of speech was that the
State could make a law directed against the undermining of the security of the State or the overthrow of it, and as the impugned enactment covered a wider ground by authorising curtailment of that freedom for the purpose of securing the public safety or the maintenance of public order, this Court held it to be wholly unconstitutional and void, observing:"Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out it must be held to be wholly unconstitutional and void. In other words, clause (2) of article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment, which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent."
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This passage, which was relied on by the learned Chief Justice lends no support to the view that the more possibility of an Act being used in a manner not contemplated by the legislature, thought such use may not be subject to judicial review on that ground, or, in other words, the mere possibility of its abuse in practice, would justify its condemnation as unconstitutional. The important distinction is that in Romesh Thapar 's case, the impugned enactment, having been passed before the commencement of the Constitution, did contemplate the use to which it was actually put, but such use was outside the permissible constitutional restrictions on the freedom of speech, that is to say, the Act was not condemned on the ground of the possibility of its being abused but on the ground that even the contemplated and authorised use was outside the limits of constitutionally permissible restrictions. The same remarks apply to the other decision relied on. The observations of Kania C.J. quoted above indicate the correct approach.
Even from the point of view of reasonable classification, I can see no reason why the validity of the Act should not be sustained. As already pointed out, wide latitude must be allowed to a legislature in classifying persons and things to be brought under the operation of a special law, and such classification need not be based on an exact or scientific exclusion or inclusion. I cannot share the view of Das Gupta J. that the expediency of speedier trial is "too vague and indefinite" to be the basis of a "well defined" classification. Legislative judgment in such matters should not be canvassed by courts applying doctrinaire "definite objective tests". The Court should not insist in such cases on what Holmes J. called "delusive exactness".
(Truax v. Corrigan, supra). All that the court is expected to see, in dealing with equal protection claims, is whether the law impugned is "palpably discriminatory", and, in considering such a question great weight ought to be attached to the fact that a majority of the elected representative of the people who made the law did not think so, though that is not, of course, conclusive. They alone know the local conditions and circumstances which demanded the enactment of such a law, and it must be remembered that "legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the Courts"
(per Holmes J. in Missouri K. & T. R. Co. v. May). After all, what the Legislature of West
Bengal has sought to do by passing this Act is to regulate criminal trials within its territories by instituting a system of special courts with a shortened and simplified procedure, without impairing the requirements of a fair and impartial trial, which is to be made applicable to such cases or classes of cases as, in the opinion of the executive government, require speedier disposal. I do not think that article 14 denies to the State Legislature such regulative power.
(cf. Missouri v. Lewis, 101 U.S. 22). To sustain a law as not being discriminatory is not, however, to leave the party affected by a discriminatory application of the law without a remedy, for, as we have seen, state action on the administrative side can also be challenged as a denial of equal protection and unconstitutional.
That brings us to the consideration of the validity of the notification issued in the present case. In Snowden v. Hughes, 321 U.S. 1, it was laid down that "the unlawful administration by State officers of a State statute fair on its face resulting in its unequal application to those who were entitled to be treated alike is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person or it may only be shown by extrinsic evidence showing a discriminatory design to favour one individual or a class over another not to be inferred from the action itself. But a discriminatory purpose is not presumed; there must be a showing of clear and intentional discrimination". No attempt has been made in the present case to prove that the State Government was influenced by any discriminatory motive or deign. On the other hand, the facts appearing on the record would seem to justify the reference of the case to the special court for trial. A pointed put by Chakravartti, J:
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"The notification by which the case of Anwar Ali Sarkar (the respondent herein) was directed to be tried by the special court did not relate merely to that case but covered five more cases in each of which the accused were several in number. In
Anwar Ali 's case itself, there were 49 other accused. All these cases related to the armed raid on the premises of Jessop & Co. in the course of which crimes of the utmost brutality were committed on a large scale and to incidents following the raid. There can be no question at all that the cases were of a very exceptional character and although the offences committed were technically offences defined in the Indian Penal Code, the Indian Arms Act and the High Explosives Act, it would be futile to contend that the offenders in these cases were of the same class as ordinary criminals, committing the same offences or that the acts which constituted the offences were of the ordinary types..... All these cases again have arisen out of serious disturbances which, according to the prosecution, partook of the nature of an organised revolt."
In view of these facts it seems to me impossible to say the State Government has acted arbitrarily or with a discriminatory intention in referring these cases to the Special Court, for there are obviously special features which mark off this group of cases as requiring speedier disposal than would be possible under the ordinary procedure, and the charge of discriminatory treatment must fail. I would allow this appeal as also Appeal No. 298 of 1951
(State of West Bengal v. Gajen Mali) which raises the same questions.
JUSTICE FAZL ALI (for himself)
I have come to the conclusion that these appeals should be dismissed, and since that is also the conclusion which has been arrived at by several of my colleagues and they have written very full and elaborate judgments in support of it, I shall only supplement what they have said by stating briefly how I view some of the crucial points arising in the case.
There is no doubt that the West Bengal Special Courts Ordinance, 1949, which was later replaced by the impugned Act (West Bengal Special Courts Act X of 1950, to be hereinafter referred to as "the Act"), was a valid Ordinance when it was promulgated on the 17th August,
1949. The Act, which came into effect on the 15th March, 1950, is a verbatim reproduction of the earlier Ordinance, and what we have to decide is whether it is invalid because it offends against article 14 of the Constitution. In dealing with this question, the following facts have to be borne in mind:(1) The farmers of the Act have merely copied the provisions of the Ordinance of 1949 which was promulgated when there was no provision similar to article 14 of present
Constitution.
(2) The provision of the American Constitution which corresponds to article 14 has, ever since that Constitution has been in force, greatly exercised the minds of the American Judges, who, notwithstanding their efforts to restrict its application within reasonable limits, have had to declare a number of laws and executive acts to be unconstitutional. One is also amazed at the volume of case-law which has grown round this provisions, which shows the extent to which it 's wide language can be stretched and the large variety of situations in which it has been invoked.
(3) Article 14 is as widely worded as, if not more widely worded that, its counterpart in the American Constitution, and is bound to lead to some inconvenient results and seriously affect some pre-Constitution laws.
(4) The meaning and scope of article 14 has been elaborately explained in two earlier decisions of this Court, viz., Chiranjit Lal Chowdhury v. Union of India, [1950] S.C.R. 869 and State of Bombay v. F. N. Balsara, [1951] S.C.R. 682, and the principles laid down in those
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decisions have to be kept in view in deciding the present case. One of these principles is that article 14 is designed to protect all persons placed in similar circumstances against legislative discrimination, and if the legislature takes care to reasonably classify persons for legislative purposes and if it deals equally with all persons belonging to a well-defined class, it is not open to the charge of denial of equal protection on the ground that the law does not apply to other person.
(5) There is nothing sacred or sacrosanct about the test of reasonable classification, but it has undoubtedly proved to be a useful basis for meeting attacks on laws and official acts on the ground of infringement of the equality principle.
(6) It follows from the two foregoing paragraphs that one of the ways in which the impugned Act can be saved is to show that it is based on a reasonable classification of the persons to whom or the offences in respect of which the procedure laid down in it is to apply, and hence it is necessary to ascertain whether it is actually based on such a classification.
With these introductory remarks, I will proceed to deal with some of the more important aspects of the case. The first thing to be noticed is that the preamble of the Act mentions speedier trial of certain offences as its object. Now the framers of the Criminal Procedure
Code (which is hereinafter referred to as "the Code") also were alive to the desirability of having a speedy trial in certain classes of cases, and with this end in view they made four different sets of provisions for the trail of four classes of cases, these being provisions relating to summary trials, trial of summons cases, trial of warrant cases and trial of cases triable by a court of session. Broadly speaking, their classification of the offences for the purpose of applying these different sets of provisions was according to the gravity of the offences, though in classifying the offences fit for summary trial the experience and power of the trying
Magistrate was also taken into consideration. The net result of these provisions is that offences which are summarily triable can be more speedily tried than summons cases, summons cases can be more speedily tried than warrant cases, and warrant cases can be more speedily tried than sessions cases. The framers of the Code appear to have been generally of the view that the graver the offence the more elaborate should be the procedure for its trial, which was undoubtedly an understandable point of view, and no one has suggested that their classification of offences for the four different modes of trial to which reference has been made is unreasonable in any sense.
The impugned Act has completely ignored the principle of classification followed in the
Code and it proceeds to lay down a new procedure without making any attempt to particularize or classify the offences or cases to which it is to apply. Indeed section 5 of the Act, which is the most vital section, baldly states that the "Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may, be general or special order in writing direct." I agree with my learned brothers that to say that the reference to speedier trial in the preamble of the Act is the basis of classification is to read into the Act something which it does not contain and to ascribe to its authors what they never intended. As
I have already stated, the Act is a verbatim copy of the earlier Ordinance which was framed before the present Constitution came into force, and article 14 could not have been before the minds of those who framed it because that Article was not then in existence.
The second point to be noted is that in consequence of the Act, two procedures, one laid down in the Code and the other laid down in the Act, exist side by side in the area to which the Act applies, and hence the provisions of the Act are apt to give rise to certain anomalous results, some of which may be stated as follows:(1) A grave offence may be tried according to the procedure laid down in the Act, while a less grave offence may be tried according to the procedure laid down in the Code.
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(2) An accused person charged with a particular offence may be tried under the Act while another accused person charged with the same offence may be tried under the Code.
(3) Certain offences belonging to a particular group or category of offences may be tried under the Act whereas other offences belonging to the same group or category may be tried under the Code.
Some of my learned colleagues have examined the provisions of the Act and shown that of the two procedures – one laid down in the Act and the other in the Code - the latter affords greater facilities to the accused for the purpose of defending himself that the former; and once it is established that one procedure is less advantageous to the accused than the other, any person tried by a Special Court constituted under the Act, who but for the Act would have been entitled to be tried according to the more elaborate procedure of the Code, may legitimately enquire:- Why is this discrimination being made against me and why should I be tried according to a procedure which has not the same advantages as the normal procedure and which even carries with it the possibility of one 's being prejudiced in one 's defence?
It was suggested that the reply to this query is that the Act itself being general and applicable to all persons and to all offences, cannot be said to discriminate in favour of or against any particular case or classes of persons or cases, and if any charge of discrimination can be leveled at all, it can be leveled only against the act of the executive authority if the Act is misused. This kind of argument however does not appear to me to solve the difficulty. The result of accepting it would be that even where discrimination is quite evident one cannot challenge the Act simply because it is couched in general terms; and one cannot also challenge the act of the executive authority whose duty it is to administer the Act, because that authority will say – I am not to blame as I am acting under the Act. It is clear that if the argument were to be accepted, article 14 could be easily defeated. I think the fallacy of the argument lies in overlooking the fact that the "insidious discrimination complained of is incorporated in the
Act itself", it being so drafted that whenever any discrimination is made such discrimination would be ultimately traceable to it. The Act itself lays down a procedure which is less advantageous to the accused than the ordinary procedure, and this fact must in all cases be the root-cause of the discrimination which may result by the application of the Act.
In the course of the arguments, it was suggested that the Act is open to criticism on two different and distinct grounds, these being-.
(1) that it involves excessive delegation of legislative authority amounting to its abdication in so far as it gives unfettered discretion to the executive, without laying down any standard or rules of guidance, to make use of the procedure laid down by it; and
(2) that it infringes article 14 of the Constitution.
The first criticism which is by no means an unsubstantial one, may possibly be met by replying on the decision of this Court in Special Reference No. 1 of 1951, In re Delhi Laws
Act, [1951] S.C.R. 747, but the second criticism cannot be so easily met, since an Act which gives uncontrolled authority to discriminate cannot but be hit by article 14 and it will be no answer simply to say that the legislature having more or less the unlimited power to delegate has merely exercised that power. Curiously enough, what I regard as the weakest point of the
Act (viz, it being drafted in such general terms) is said to be its main strength and merit, but I really cannot see how the generality of language which gives unlimited authority to discriminate can save the Act.
In some American cases, there is a reference to "purposeful or intentional discrimination", and it was argued that unless we can discovered an evil intention or a deliberate design to mete out unequal treatment behind the Act, it cannot be impugned. It should be noted however that
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the words which I have put in inverted commas, have been used in few American cases with reference only to executive action, where certain Acts were found to be innocuous but they were administered by public authority with "an evil eye and an unequal hand." I suggest most respectfully that it will be extremely unsafe to lay down that unless there was evidence that discrimination was "purposeful or intentional" the equality clause would not be infringed.
In my opinion, the true position is as follows – As a general rule, if the Act is fair and good, the public authority who has to administer it will be protected. To this general rule, however, there is an exception, which comes into play when there is evidence of mala fides in the application of the Act. The basic question however still remains whether the Act itself is fair and good, which must be decided mainly with reference to the specific provisions of the Act. It should be noted that there is no reference to intention in article 14 and the gravamen of that Article is equality of treatment. In my opinion, it will be dangerous to introduce a subjective test when the Article itself lays down a clear and objective test.
I must confess that I have been trying hard to think how the Act can be saved, and the best argument that came to my mind in support of it was this – The Act should be held to be a good one, because it embodies all the essentials of a fair and proper trial, namely, (1) notice of the charge, (2) right to be heard and the right to test and rebut the prosecution evidence, (3) access to legal aid, and (4) trial by an impartial and experienced out. If these are the requisites, so I argued with myself, to which all accused persons are equally entitled, why should a particular procedure which ensures all those requisites not be substituted for another procedure, if such substitution in necessitated by administrative exigencies or is in public interest, even though the new procedure may be different from and less elaborate than the normal procedure. This seemed to me to be the best argument in favour of the Act but the more I thought of it the more it appeared to me that it was not a complete answer to the problem before us. In the first place, it brings in the "due process" idea of the American Constitution, which our Constitution has not chosen to adopt. Secondly, the Act itself does not state that public interest and administrative exigencies will provide the occasion for its application. Lastly, the discrimination involved in the application of the Act is too evident to be explained away.
The farmers of the Constitution have referred to equality in the Preamble, and have devoted as many as five articles, namely, articles 14, 15, 16, 17, and 18 in the Chapter on
Fundamental Rights, to ensure equality in all its aspects. Some of these Articles are confined to citizens only and some can be availed of by non-citizens also; but on reading these provisions as a whole, one can see the great importance attached to the principle of equality in the Constitution. That being so, it will be wrong to whittle down the meaning of article 14, and however well-intentioned the impugned Act may be and however reluctant one may feel to hold it invalid, it seems to me that section 5 of the Act, or at least that part of it with which alone we are concerned in this appeal, does offend against article 14 of the Constitution and is therefore unconstitutional and void. The Act is really modelled upon a pre-Constitution pattern and will have to be suitably redrafted in order to conform to the requirements of the
Constitution.
JUSTICE MAHAJAN (for himself, CONCURRING WITH JUSTICE MUKHERJEA)
I had the advantage of reading the judgment prepared by my brother Mukherjea and I am in respectful agreement with his opinion.
Section 5 of the West Bengal Special Courts Act is hit by article 14 of the Constitution inasmuch as it mentions on basis for the differential treatment prescribed in the Act for trial of criminals in certain cases and for certain offences. The learned Attorney-General argued that the Act had grouped cases requiring speedier trial as forming a class in themselves,
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differentiating that class from cases not needing expedition and that it was on this basis that the special procedure prescribed in the Act was applicable.
In order to appreciate this contention, it is necessary to state shortly the scope of article 14 of the Constitution. It is designed to prevent any person or class of persons for being singled out as a special subject for discriminatory and hostile legislation. Democracy implies respect for the elementary rights of man, however suspect or unworthy. Equality of right is a principle of republicanism and article 14 enunciates this equality principle in the administration of justice. In its application to legal proceedings the article assures to everyone the same rules of evidence and modes of procedure. In other words, the same rule must exist for all in similar circumstances. This principle, however, does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstance, in the same position.
By the process of classification the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well-defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other person. The classification permissible, however, must be based on some real and substantial distinction bearing a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily. Thus the legislature may fix the age at which persons shall be deemed competent to contract between themselves, but no one will claim that competency to contract can be made to depend upon the stature or colour of the hair. "Such as classification for such a purpose would be arbitrary and a piece of legislative despotism" (Vide Gulf Colorado & Santa
Fe Railway Co. v. W.H. Ellis, 166 U.S. 150).
Speedier trial of offences may be the reason and motive for the legislation but it does not amount either to a classification of offences or of cases. As pointed out by Chakravarti, J. the necessity of a speedy trial is too vague and uncertain a criterion to form the basis of a valid and reasonable classification. In the words of Das Gupta, J. it is too indefinite as there can hardly be any definite objective test to determine it. In my opinion, it is no classification at all in the real sense of the term as it is not based on any characteristics which are peculiar to persons or to cases which are to be subject to the special procedure prescribed by the Act. The mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of article 14. To get out of its reach it must appear that not only a classification has been made but also that it is one based upon a reasonable ground on some difference which bears a just and proper relation to the attempted classification and is not a mere arbitrary selection. Persons concerned in offences or cases needing so-called speedier trial are entitled to inquire "Why are they being made the subject of a law which has short-circuited the normal procedure of trial; why has it grouped them in that category and why has the law deprived them of the protection and safeguards which are allowed in the case of accused tried under the procedure mentioned in the Criminal Procedure Code; what makes the legislature or the executive to think that their cases need speedier trial than those of others like them?" The only answer, that so far as I am able to see, the Act gives to these inquiries is that they are being made the subject of this special treatment because they need it in the opinion of the provincial government; in other words, because such is the choice of their prosecutor. This answer neither so and rational nor reasonable.
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The only answer for withholding from such person the protection of article 14 that could reasonably be given to these inquiries would be that "Of all other accused persons they are a class by themselves and there is a reasonable difference between them and those other persons who may have committed similar offences." They could be told that the law regards persons guilty of offences against the security of the State as a class in themselves. The Code of
Criminal Procedure has by the process of classification prescribed different modes of procedure for trial of different offences. Minor offences can be summarily tried, while for grave and heinous offences an elaborate mode of procedure has been laid down. The present statute suggests no reasonable basis or classification, either in respect of offences or in respect of cases. It has laid down no yardstick or measure for the grouping either of persons or of cases or of offenses by which measure these groups could be distinguished from those who are outside the purview of the Special Act. The Act has left this matter entirely to the unregulated discretion of the provincial government. It has the power to pick out a case of a person similarly situate and hand it over to the special tribunal and leave the case of the other person in the same circumstance to be tried by the procedure laid down in the Criminal
Procedure Code. The State government it authorized, if it so chooses, to hand over an ordinary case of simple hurt to the special tribunal, leaving the case of dacoity with murder to be tried in the ordinary way. It is open under this Act for the provincial government to direct that a case of dacoity with firearms and accompanied by murder, where the persons killed are
Europeans, be tried by the Special Court, while exactly similar cases where the persons killed are Indians may be tried under the procedure of the Code.
That the Special Act lays down substantially different rules for trial of offences, and cases than laid down in the general law of the land, i.e., the Code of Criminal Procedure, cannot be seriously denied. It short-circuits that procedure in material particulars. It imposes heavier liabilities on the alleged culprits than are ordained by the Code. It deprives them of certain privileges which the Code affords them for their protection. Those singled out for treatment under the procedure of the Special Act are to a considerable extent prejudiced by the deprivation of the trial by the procedure prescribed under the Criminal Procedure Code. Not only does the special law deprive them of the safeguard of the committal procedure and of the trial with the help of jury or assessors, but it also deprives them of the right of a de novo trial in case of transfer and makes them liable for conviction and punishment for major offences other than those for which they may have been charged or tried. The right of the accused to call witnesses in defence has been curtailed and made dependent on the discretion of the special judge. To a certain extent the remedies of which an accused person is entitled for redress in the higher courts have been cut down. Even if it be said that the statute on the face of its not discriminatory, it is so in its effect and operation inasmuch as it vests in the executive government unregulated official discretion and therefore has to be adjudged unconstitutional.
It was suggested that good faith and knowledge of existing conditions on the part of a legislature has to be presumed. That is so; yet to carry that presumption to the extent of always holding that there must be some undisclosed intention or reason for subjecting certain individuals to a hostile and discriminatory legislation is to make the protection clause of article 14, in the words of an American decision, a mere rope of sand, in no manner restraining
State action. The protection afford by the article is not a mere eye-wash but it is a real one and unless a just cause for discrimination on the basis of a reasonable classification is put forth as a defence, the statute has to be declared unconstitutional. No just cause has been shown in the present instance. The result is that the appeals fail and are dismissed.
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JUSTICE MUKHERJEA (for himself, JUSTICE MAHAJAN CONCURRING)
… [Narration of facts has been omitted] …
In order to appreciate the points that have been canvassed before us, it would be convenient first of all to refer to the provision of article 14 of the Constitution with a view to determine the nature and scope of the guarantee that is implied in it. The article lays down that
"the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." It is, in substance, modelled upon the equal protection clause, occurring in the Fourteenth Amendment of the American Constitution with a further addition of the rule of "equality before the law", which is an established maxim of the English
Constitution. A number of American decisions have been cited before us on behalf of both parties in course of the arguments; and while a too rigid adherence to the views expressed by the Judges of the Supreme Court of America while dealing with the equal protection clause in their own Constitution may not be necessary or desirable for the purpose of determining the true meaning and scope of article 14 of the Indian Constitution, it cannot be denied that the general principles enunciated in many of these cases do afford considerable help and guidance in the matter.
It can be taken to be well settled that the principle underlying the guarantee in article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances (Chiranjit Lal Chowdhuri v. Union of India, [1950] S.C.R. 869). It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed (Old Dearborn Distributing Co. v. Seagram Distillers Corporation, 299
U.S. 183). Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same.
This brings in the question of classification. As there is no infringement of the equal protection rule, if the law deals alike with all of a certain class, the legislature has the undoubted right of classifying persons and placing those whose conditions are substantially similar under the same rule of law, while applying different rules to persons differently situated. It is said that the entire problem under the equal protection clause is one of classification or of drawing lines (Vide Dowling, Cases on Constitutional Law, 4th edn. 1139).
In making the classification the legislature cannot certainly be expected to provide "abstract symmetry." It can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even "degrees of evil" (Vide Skinner
v. Oklahoma, 316 U.S. 535 at 540), but the classification should never be arbitrary, artificial or evasive. It must rest always upon real and substantial distinction bearing a reasonable and just relation to the thing in respect to which the classification is made; and classification made without any reasonable basis should be regarded as invalid (Southern Railway Co. v.
Greene, 216 U.S. 400 at 412). These propositions have not been controverted before us and it is not disputed also on behalf of the respondents that the presumption is always in favour of the constitutionality of an enactment and the burden is upon him who attacks it, to show that there has been transgression of constitutional principles.
The learned Attorney-General, appearing in support of the appeal, has put forward his contentions under two different heads. His first line of argument is that quite apart from the question of classification there has been no infringement of article 14 of the Constitution in the present case. It is said that the State has full control over procedure in courts, both in civil and criminal cases, it can effect such changes as it likes for securing due and efficient administration of justice and a legislation of the character which we have got here and which
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merely regulates the mode of trial in certain cases cannot come within the description of discriminatory or hostile legislation. It is further argued that the differences that have been made in the procedure for criminal trial under the West Bengal Special Courts Act, 1950, are of a minor character and there are no substantial grounds upon which discrimination could be alleged or founded.
The second head of arguments advanced by the Attorney-General is that there is a classification and a justifiable classification on the basis of which differences in the procedure have been made by the West Bengal Act; and even if any unguided power has been conferred on the executive, the Act itself cannot be said to have violated the equality clause, though questions relating to proper exercise of such power or the limits of permissible delegation of authority might arise.
As regards the first point, it cannot be disputed that a competent legislature is entitled to alter the procedure in criminal trials in such way as it considers proper. Article 21 of the
Constitution only guarantees that "no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law." The word "law" in the Article means a State made law (Vide A.K. Gopalan v. State of Madras, [1950] S.C.R. 88), but it must be a valid and binding law having regard not merely to the competency of the legislature and the subject it relates to, but it must not also infringe any of the fundamental rights guaranteed under Part III of the Constitution. A rule of procedure laid down by law comes as much within the purview of article 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination (Weaver, Constitutional Law, page 407).
The two cases referred to by the learned Attorney-General in this connection do not really support his contention. In Hayes v. Missouri, 120 U.S. 68, the subject-matter of complaint was a provision of the revised statutes of Missouri which allowed the State, in capital cases, fifteen peremptory challenges in cities having a population of 100,000 inhabitants in place of eight in other parts of the State. This was held to be a valid exercise of legislative discretion not contravening the equality clause in the Fourteenth Amendment. It was said that the power of the Legislature to prescribe the number of challenges was limited by the necessity of having impartial jury. With a view to secure that end, the legislature could take into consideration the conditions of different communities and the strength of population in a particular city; and if all the persons within particular territorial limits are given equal rights in like cases, there could not be any question of discrimination. The other case relied upon by the learned
Attorney- General is the case of Brown v. New Jersey, 175 U.S. 171. In this case the question was whether the provision of the State Constitution relating to struck jury in murder cases was in conflict with the equal protection clause. The grievance made was that the procedure of struck jury denies the defendant the same number of peremptory challenges as he would have had in a trail before an ordinary jury. It was held by the Supreme Court that the equal protection clause was not violated by this provision. "It is true", thus observes Mr. Justice
Brewer, "that here there is no territorial distribution but in all cases in which a struck jury is ordered the same number of challenges is permitted and similarly in all cases in which the trail is by an ordinary jury either party, State or defendant, may apply for a struck jury and the matter is one which is determined by the court in the exercise of a sound discretion… That in a given case the discretion of the court in awarding a trial by a struck jury was improperly exercised may perhaps present a matter for consideration in appeal but it amounts to nothing more". Thus it was held that the procedure of struck jury did not involve any discrimination between one person and another. Each party was at liberty to apply for a struck jury if he so chose and the application could be granted by the court if it thought proper having regard to
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the circumstances of each individual case. The procedure would be identical in respect of all persons when it was allowed and all parties would have equal opportunities of availing themselves of this procedure if they so liked. That a judicial discretion has to be exercised on the basis of the facts of each case in the matter of granting the application for a struck jury does not really involve discrimination. These decisions, in my opinion, have no bearing on the present case.
I am not at all impressed by the argument of the learned Attorney-General that to enable the respondents to invoke the protection of article 14 of the Constitution it has got to be shown that the legislation complained of is a piece of "hostile" legislation. The expressions
"discriminatory" and "hostile" are found to be used by American Judges often simultaneously and almost as synonymous expressions in connection with discussions on the equal protection clause. If a legislation is discriminatory and discriminates one person or class of persons against others similarly situated and denies to the former the privileges that are enjoyed by the latter, it cannot but be regarded as "hostile" in the sense that it affects injuriously the interests of that person or class. Of course, if one 's interests are not at all affected by a particular piece of legislation, he may have no right to complain. But if it is established that the person complaining has been discriminated against as a result of legislation and denied equal privileges with others occupying the same position, I do not think that it is incumbent upon him, before he can claim relief on the basis of his fundamental rights, to assert and prove that in making the law, the legislature was actuated by a hostile or inimical intention against a particular person or class. For the same reason I cannot agree with the learned AttorneyGeneral that in cases like these, we should enquire as to what was the dominant intention of the legislature in enacting the law and that the operation of article 14 would be excluded if it is proved that the legislature has no intention to discriminate, though discrimination was the necessary consequence of the Act. When discrimination is alleged against officials in carrying out the law, a question of intention may be material in ascertaining whether the officer acted mala fide or not (Sunday Lake Iron Company v. Wakefield, 247 U.S. 350); but no question of intention can arise when discrimination follows or arises on the express terms of the law itself.
I agree with the Attorney-General that if the differences are not material, there may not be any discrimination in the proper sense of the word and minor deviations from the general standard might not amount to denial of equal rights. I find it difficult however, to hold that the difference in the procedure that has been introduced by the West Bengal Special Courts Act is of a minor or unsubstantial character which has not prejudiced the interests of the accused.
The first difference is that made in section 6 of the Act which lays down that the Special
Court may take cognizance of an offence without the accused being committed to it for trial, and that in trying the accused it has to follow the procedure for trial of warrant cases by
Magistrates. It is urged by the Attorney-General that the elimination of the committal proceedings is a matter of no importance and that the warrant procedure, which the Special
Court has got to follow, affords a scope for a preliminary examination of the evidence against the accused before a charge is framed. It cannot be denied that there is a difference between the two proceedings. In a warrant case the entire proceeding is before the same Magistrate and the same officer who frames the charge hears the case finally. In a sessions case, on the other hand, the trial is actually before another Judge, who was not connected with the earlier proceeding. It is also clear that after the committal and before the sessions judge actually hears the case, there is generally a large interval of time which gives the accused ample opportunity of preparing his defence, he being acquainted beforehand with the entire evidence that the prosecution wants to adduce against him. He cannot have the same advantage in a warrant case even if an adjournment is granted by the Magistrate after the charge is framed. Be that as
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it may, this is not the only matter upon which the normal procedure has been departed from in the Special Courts Act.
One of the most important departures is that the trial by the Special Court is without the aid of jury or assessors. The trial by jury is undoubtedly one of the most valuable rights which the accused can have. It is true that the trial by jury is not guaranteed by the Constitution and section 269 of the Criminal Procedure Code empowers the State Government to direct that the trial of all offences or any particular class of offences before any sessions court shall be by jury in any district; and it may revoke or alter such orders. There is nothing wrong therefore if the State discontinues trial by jury in any district with regard to all or any particular class of offences; but as has been pointed out by Mr. Justice Chakravarti of the Calcutta High Court, it cannot revoke jury trial in respect of a particular case or a particular accused while in respect of other cases involving the same offences the order still remains.
Amongst other important changes, reference may be made to the provision of section 13 of the Act which empowers the Special Court to convict an accused of any offence if the commission of such offence is proved during trial, although he was not charged with the same or could be charged with it in the manner contemplated by section 236 of the Criminal
Procedure Code, nor was it a minor offence within the meaning of section 238 of the Code.
Under section 350 of the Criminal Procedure Code, when a case after being heard in part goes for disposal before another Magistrate, the accused has the right to demand, before the second
Magistrate commences the proceedings, that the witnesses already examined should be reexamined and re-heard. This right has been taken away from the accused in case where a case is transferred from one Special Court to another under the provision of section 7 of the Special
Courts Act. Further the right of revision to the High Court does not exist at all under the new procedure, although the rights under the Constitution of India are retained. It has been pointed out and quite correctly be one of the learned Counsel for respondents that an application for bail cannot be made before the High Court on behalf of an accused after the Special Court has refused bail. These and other provisions of the Act make it clear that the rights of the accused have been curtailed in a substantial manner by the impugned legislation; and if the rights are curtailed only in certain cases and not in others, even though the circumstances in the latter cases are the same, a question of discrimination may certainly arise. The first line of argument adopted by the learned Attorney-General cannot, therefore, be accepted.
I now come to the other head of arguments put forward by him and the principal point for our consideration is whether the apparent discriminations that have been made in the Act can be justified on the basis of a reasonable classification. Section 5 of the West Bengal Special
Courts Act lays down that
"A Special court shall try such offences or classes of offences or cases or classes of cases as the State Government may, by general or special order in writing direct." The learned Attorney-General urges that the principle of classification upon which the differences have been made between cases and offences triable by the Special Court and those by ordinary courts is indicated in the preamble to the Act which runs as follows:
"Whereas it is expedient to provides for the speedier trial of certain offences.”
What is said is, that the preamble is to be read as a part of section 5 and the proper interpretation to be put upon the sub-section is that those cases and offences which in the opinion of the State Government would require speedier trial could be assigned by it to the
Special Court. In my opinion, this contention cannot be accepted for more reasons than one.
In the first place, I agree with the learned Chief Justice of the Calcutta High Court that the express provision of an enactment, if it is clear and unambiguous, cannot be curtailed or
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extended with the aid of the preamble to the Act. It is only when the object or meaning of the enactment is not clear that recourse can be had to the preamble to explain it (See Craies on
Statute Law, 4th edn., 184). In the case before us the language of section 5(1) is perfectly clear and free from any ambiguity. It vests an unrestricted discretion in the State Government to direct any cases or classes of cases to be tried by the Special Court in accordance with the procedure laid down in the Act. It is not stated that it is only when speedier trial is necessary that the discretion should be exercised. In the second place, assuming that the preamble throws any light upon the interpretation of the section, I am definitely of opinion that the necessity of a speedier trial is too vague, uncertain and elusive a criterion to from a rational basis for the discriminations made. The necessity for speedier trial may be the object which the legislature had in view or it may be the occasion for making the enactment. In a sense quick disposal is a thing which is desirable in all legal proceedings. The word used here is "speedier" which is a comparative term and as there may be degrees of speediness, the word undoubtedly introduces an uncertain and variable element. But the question is: how is this necessity of speedier trial to be determined? Not by reference to the nature of the offences or the circumstances under which or the area in which they are committed, nor even by reference to any peculiarities or antecedents of the offenders themselves, but the selection is left to the absolute and unfettered discretion of the executive government with nothing in the law to guide or control its action. This is not a reasonable classification at all but an arbitrary selection. A line is drawn artificially between two classes of cases. On one side of the line are grouped those cases which the State Government chooses to assign to the Special Court; on the other side stand the rest which the State Government does not think fit and proper to touch.
It has been observed in many cases by the Supreme Court of America that the fact that some sort of classification has been attempted at will not relieve a statute from the reach of the equality clause. "It must appear not only that a classification has been made but also that it is based upon some reasonable ground-some difference which bears a just and proper relation to the attempted classification" (Gulf Colorado etc. Co. v. Ellis, 165 U.S. 150). The question in each case would be whether the characteristics of the class are such as to provide a rational justification for the differences introduced? Judged by this test, the answer in the present case should be in the negative; for the difference in the treatment rests here solely on arbitrary selection by the State Government. It is true that the presumption should always be that the legislature understands and correctly appreciates the needs of its own people and that its discriminations are based on adequate grounds (Middleton v. Texas Power & Light Co., 249
U.S. 152; but as was said by Mr. Justice Brewer in Gulf Colorado etc. Co. v. Ellis, 165 U.S.
150, "to carry the presumption to the extent of holding that there must be some undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminatory legislation is to make the protection clauses of the Fourteenth Amendment a mere rope of sand."
A point was made by the Attorney-General in course of his arguments that the equality rule is not violated simply because a statute confers unregulated discretion on officers or on administrative agencies. In such cases it may be possible to attack the legislation on the ground of improper delegation of authority or the acts of the officers may be challenged on the ground of wrongful or mala fide exercise of powers; but no question of infringement of article 14 of the Constitution could possibly arise. We were referred to a number of authorities on this point but I do not think that the authorities really support the proposition of law in the way it is formulated. In the well-known case of Yick W O. v. Hopkins, 118 U.S. 356, the question was, whether the provision of a certain ordinance of the City and Country of San Francisco was invalid by reason of its being in conflict with the equal protection clause. The order in question laid down that it would be unlawful for any person to engage in laundry business within the corporate limits "without having first obtained the consent of the Board of Supervisors except
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the same to be located in a building constructed either of brick or stone." The question was answered in the affirmative. It was pointed out by Matthews, J., who delivered the opinion of the court, that the ordinance in question did not merely prescribe a rule and condition for the regulation of the laundry business. It allowed without restriction the use for such purposes of building of brick or stone, but as to wooden buildings constituting nearly all those in previous use, it divided the owners or occupiers into two classes, not having respect to their personal character and qualifications of the business, nor the situation and nature and adaptation of the buildings themselves, but merely by an arbitrary line, on one side of which were those who were permitted to pursue their industry by the mere will and consent of the supervisors and on the other those from whom that consent was withheld at their will and pleasure. This sort of committing to the unrestrained will of a public officer the power to deprive a citizen of his right to carry on lawful business was held to constitute an invasion of the Fourteenth
Amendment.
The learned Judge pointed out in course of his judgment that there are cases where discretion is lodged by law in public officers or bodies to grant or withhold licences to keep taverns or places for sale of spirituous liquor and the like. But all these cases stood on a different footing altogether. The same view was reiterated in Crowley v. Christensen, 137 U.S.
86, which related to an ordinance regulating the issue of licences to sell liquors. It appears to be an accepted doctrine of American courts that the purpose of the equal protection clause is to secure every person within the States against arbitrary discrimination, whether occasioned by the express terms of the statute or by their improper application through duly constituted agents. This was clearly laid down in Sunday Lake Iron Company v. Wakefield, 247 U.S. 350.
In this case the complaint was against a taxing officer, who was alleged to have assessed the plaintiff 's properties at their full value, while all other persons in the county were assessed at not more than one- third of the worth of their properties. It was held that the equal protection clause could be availed of against the taxing officer; but if he was found to have acted bona fide and the discrimination was the result of a mere error of judgment on his part, the action would fail. The position, therefore, is that when the statute is not itself discriminatory and the charge of violation of equal protection is only against the official, who is entrusted with the duty of carrying it into operation, the equal protection clause could be availed of in such cases; but the officer would have a good defence if he could prove bona fides. But when the statute itself makes a discrimination without any proper or reasonable basis, the statute would be invalidated for being in conflict with the equal protection clause, and the question as to how it is actually worked out may not necessarily be a material fact for consideration. As I have said already, in the present case the discrimination arises on the terms of the Act itself. The fact that it gives unrestrained power to the State Government to select in any way it likes the particular cases or offences which should go to a Special Tribunal and withdraw in such cases the protection which the accused normally enjoy under the criminal law of the country, is on the face of it discriminatory.
It may be noted in this connection that in the present case the High Court has held the provision of section 5 of the West Bengal Special Courts Act to be ultra vires the Constitution only so far as it allows the State Government to direct any case to be tried by the Special
Court. In the opinion of the learned Chief Justice, if the State Government had directed certain offences or classes of offences committed within the territory of West Bengal to be tried by the Special Court, the law or order could not have been impeached as discriminatory. It is to be noted that the Act itself does not mention in what classes of cases or offences such direction could be given; nor does it purpose to lay down the criterion or the basis upon which the classification is to be made. It is not strictly correct to say that if certain specified offences throughout the State were directed to be tried by the Special Court, there could not be any infringement of the equality rule. It may be that in making the selection the authorities would
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exclude from the list of offences other offences of a cognate character in respect to which no difference in treatment is justifiable. In such circumstances also the law or order would be offending against the equality provision in the Constitution. This is illustrated by the case of
Skinner v. Oklahoma, 316 U.S. 555. There a statute of Oklahoma provided for the sterilization of certain habitual criminals, who were convicted two or more times in any State, of felonies involving moral turpitude. The statute applied to persons guilty of larceny, which was regarded as a felony but not to embezzlement. It was held that the statute violated the equal protection clause. It is said that in cases where the law does not lay down a standard or form in accordance with which the classification is to be made, it would be the duty of the officers entrusted with the execution of the law, to make the classification in the way consonant with the principles of the Constitution (Vide Willis on Constitutional Law, Page 587). If that be the position, then an action might lie for annulling the acts of the officers if they are found not to be in conformity with the equality clause. Moreover, in the present case the notification by the
State Government could come within the definition of law as given in article 13 of the
Constitution and can be impeached apart from the Act if it violates article 14 of the
Constitution. I do not consider it necessary to pursue this matter any further, as in my opinion even on the limited ground upon which the High Court bases its decision, these appeals are bound to fail.
JUSTICE DAS (for himself)
I concur in dismissing these appeals but I am not persuaded that the whole of section 5 of the West Bengal Special Courts Act is invalid. As I find myself in substantial agreement with the interpretation put upon that section by the majority of the Full Bench of the Calcutta High
Court and most of the reasons adopted by Harries, C.J., in support thereof, I do not fell called upon to express myself in very great detail. I propose only to note the points urged before us and shortly state my conclusions thereon.
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Article 14 of our Constitution, it is well known, corresponds to the last portion of section
1 of the Fourteenth Amendment to the American Constitution except that our article 14 has also adopted the English doctrine of rule of law by the addition of the words "equality before the law." It has not however, been urged before us that the addition of these extra words has made any substantial difference in its practical application. The meaning, scope and effect of article 14 of our Constitution have been discussed and laid down by this Court in the case of
Chiranjit Lal Chowdhury v. Union of India, [1950] S.C.R. 869. Although Sastri J., as he then was, and myself differed from the actual decision of the majority of the Court, there was no disagreement between us and the majority as to the principles underlying the provisions of article 14. The difference of opinion in that case was not so much on the principles to be applied as to the effect of the application of such principles. Those principles were again considered and summarised by this Court in State of Bombay v. F. N. Balsara, [1951] S.C.R.
682. It is now well established that while article 14 is designed to prevent a person or class of persons from being singled out from others similarly situated for the purpose of being specially subjected to discriminating and hostile legislation, it does not insist on an "abstract symmetry" in the sense that every piece of legislation must have universal application. All persons are not, by nature, attainment or circumstances, equal and the varying needs of different classes of persons often require separate treatment and, therefore, the protecting clause has been construed as a guarantee against discrimination amongst equals only and not as taking away from the state the power to classify persons for the purpose of legislation. This
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classification may be on different bases. It may be geographical or according to objects or occupations or the like.
Mere classification, however, is not enough to get over the inhibition of the Article. The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and that that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while the Article forbids class legislation in the sense of making improper discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liability proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense I have just explained. The doctrine, as expounded by this Court in the two cases I have mentioned, leaves a considerable latitude to the Court in the matter of the application of article 14and consequently has the merit of flexibility.
The learned Attorney-General, appearing in support of these appeals, however, contends that while a reasonable classification of the kind mentioned above may be a test of the validity of a particular piece of legislation, it may not be the only test which will cover all cases and that there may be other tests also. In answer to the query of the Court he formulates an alternative test in the following words: If there is in fact inequality of treatment and such inequality is not made with a special intention of prejudicing any particular person or persons but is made in the general interest of administration, there is no infringement of article 14. It is at once obvious that, according to the test thus formulated, the validity of State action, legislative or executive, is made entirely dependent on the state of mind of the authority. This test will permit even flagrantly discriminatory State action on the specious plea of good faith and of the subjective view of the executive authority as to the existence of a supposed general interest of administration. This test, if accepted, will amount to adding at the end of article 14 the words "except in good faith and in the general interest of administration." This is clearly not permissible for the Court to do. Further, it is obvious that the addition of these words will, in the language of Brewer, J., in Gulf, Colorado and Santa Fe Railway Co. v. Ellis,
165 U.S. 150, make the protecting clause a mere rope of sand, in no manner restraining State action. I am not, therefore, prepared to accept the proposition propounded by the learned
Attorney-General, unsupported as it is by any judicial decision, as a sound test for determining the validity of State action.
The learned Attorney-General next contends, on the authority of a passage in Cooley 's
Constitutional Limitations, 8th Edition, Vol. 2, p. 816, that inequalities of minor importance do not render a law invalid and that the constitutional limitations must be treated as flexible enough to permit of practical application. The passage purports to be founded on the decision in Jeffrey Manufacturing Co. v. Blagg, 235 U.S. 571. A careful perusal of this decision will make it quite clear that the Court upheld the validity of the statute impugned in that case, not on the ground that the inequality was of minor importance but, on the ground that the classification of establishments according to the number of workmen employed therein was based on an intelligible distinction having a rational relation to the subject-matter of the legislation in question. That decision, therefore, does not support the proposition so widely stated in the passage apparently added by the editor to the original text of Judge Cooley. The
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difference brought about by a statute may be of such a trivial, unsubstantial and illusory nature that that circumstance alone may be regarded as cogent ground for holding that the statute has not discriminated at all and that no inequality has in fact been created. This aspect of the matter apart, if a statute brings about inequality in fact and in substance, it will be illogical and highly undesirable to make the constitutionality of such a statute depend on the degree of the inequality so brought about. The adoption of such a principle will run counter to the plain language of article 14.
At one stage of his arguments the learned Attorney-General just put forward an argument, which he did not press very strongly, that the Article is a protection against the inequality of substantive law only and not against that of a procedural law. I am quite definitely not prepared to countenance that argument. There is no logical basis for this distinction. A procedural law may easily inflict very great hardship on persons subjected to it, as, indeed, this very Act under consideration will presently be seen to have obviously done.
That the Act has prescribed a procedure of trial which is materially different from that laid down in the Code of Criminal Procedure cannot be disputed. The different sections of the Act have been analysed and the important difference have been clearly indicated by the learned
Chief Justice of West Bengal and need not be repeated in detail. The elimination of the committal proceedings and of trial by jury (section 6), the taking away of the right to a de novo trial on transfer (section 7), the vesting of discretion in the Special Court to refuse to summon a defence witness if it be satisfied that this evidence will not be material (section 8), the liability to be convicted of an offence higher than that for which the accused was sent up for trial under the Act (section 13), the exclusion of interference of other Courts by way of revision or transfer or under section 491 of the Code (section 16) are some of the glaring instances of inequality brought about by the impugned Act.
The learned Attorney-General has drawn our attention to various sections of the Code of
Criminal Procedure in an endeavor to establish that provisions somewhat similar to those enacted in this Act are also contained in the Code. A comparison between the language of those sections of the Code and that of the several sections of this Act mentioned above will clearly show that the Act has gone much beyond the provisions of the Code and the Act cannot by any means be said to be an innocuous substitute for the procedure prescribed by the Code.
The far-reaching effect of the elimination of the committal proceedings cannot possibly be ignored merely by stating that the warrant procedure under the Code in a way also involves a committal by the trial Magistrate, namely to himself, for the warrant procedure minimises the chances of the prosecution being thrown out at the preliminary stage, as may be done by the committing Magistrate, and deprives the accused person of the opportunity of knowing, well in advance of the actual trial before the Sessions Court, the case sought to be made against him and the evidence in support of it and, what is of the utmost importance, of the benefit of a trial before and the decision of a different and independent mind. The liability to be convicted of a higher offence has no parallel in the Code. It is true that the State can, under section 269 of the Code, do away with trial by jury but that section, as pointed out by
Chakravartti, J. does not clearly contemplate elimination of that procedure only in particular cases which is precisely what the Act authorises the government to do. On a fair reading of the Act there can be no escape from the fact that it quite definitely brings about a substantial inequality of treatment, in the matter of trial, between persons subjected to it and others who are left to be governed by the ordinary procedure laid down in the Code. The question is whether section 5 which really imposes this substantial inequality on particular persons can be saved from the operation of article 14 on the principle of rational classification of the kind permissible in law.
Section 5 of the Act runs as follows:-
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"A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may, be general or special order in writing, direct." It will be noticed that the sub-section refers to four distinct categories, namely, "offences",
"classes of offences", "cases" and "classes of cases" and empowers the State government to direct any one or more of these categories to be tried by the Special court constituted under the Act. I shall first deal with the section in so far as it authorises the State government to direct "offences", "classes of offences" and "classes of cases" to be tried by a Special Court.
These expressions clearly indicate, and obviously imply, a process of classification of offences or cases. Prima facie those words do not contemplate any particular offender or any particular accused in any particular case. The emphasis is on "offences", "classes of offences" or "classes of cases". The classification of "offences" by itself is not calculated to touch any individual as such, although it may, after the classification is made, affect all individuals who may commit the particular offence. In short, the classification implied in this part of the sub-section has no reference to, and is not directed towards the singling out of any particular person as an object of hostile State action but is concerned only with the grouping of "offences", "classes of offences" and "classes of cases" for the purpose of being tried by a Special Court. Such being the meaning and implication of this part of section 5, the question arises whether the process of classification thus contemplated by the Act conforms to the requirements of reasonable classification which does not offend against the Constitution.
Learned Attorney-General claims that the impugned Act satisfies even this test of rational classification. His contention is that offences may be grouped into two classes, namely, those that require speedier trial, that is speedier than what is provided for in the Code and those that do not require a speedier trial. The Act, according to him, purports to deal only with offences of the first class. He first draws our attention to the fact that the Act is instituted "An Act to provide for the speedier trial of certain offences" and then points out that the purpose of the
Act, as stated in its preamble, also is "to provide for the speedier trial of certain offences". He next refers us to the different sections of the Act and urges that all the procedural changes introduced by the Act are designed to accomplish the object of securing speedier trial. The
Act accordingly empowers the State government to direct the offences, which, in its view, require speedier trial, to be tried by a Special Court according to the special procedure provided by it for the speedier trial of those offences. This construction of the section, he maintains, is consonant with the object of the Act as recited in the preamble and does not offend against the inhibition of article 14 of our Constitution. Learned counsel for the respondents, on the other hand urge that there is no ambiguity whatever in the language used in the sub-section, that there is no indication in the sub-section itself of any restriction or qualification on the power of classification conferred by it on the State government and that the power thus given to the State government cannot be controlled and cut down by calling in aid the preamble of the Act, for the preamble cannot abridge or enlarge the meaning of the plain language of the sub-section. This argument was accepted by the High Court in its application to the other part of the section dealing with selection of "cases" but in judging whether this argument applies, with equal force, to that part of the section I am now considering, it must be borne in mind that, although the preamble of an Act cannot override the plain meaning of the language of its operative parts, it may, nevertheless, assist in ascertaining what the true meaning or implication of a particular section is, for the preamble is, as it were a key to the understanding of the Act. I therefore, proceed to examine this part of section 5(1) in the light of the preamble so as to ascertain the true meaning of it.
I have already stated that this part of the sub-section contemplates a process of classification of "offences", "classes of offences" and "classes of cases". This classification must, in order that it may not infringe the constitutional prohibition, fulfil the two conditions
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I have mentioned. The preamble of the Act under consideration recites the [importance] of providing for the speedier trial of certain offences. The provision for the speedier trial of certain offences is, therefore, the object of the Act. To achieve this object, offences or cases have to be classified upon the basis of some differentia which will distinguish those offences or cases from others and which will have a reasonable relation to the recited object of the Act.
The differentia and the object being, as I have said, different elements, it follows that the object by itself cannot be the basis of the classification of offences or the cases, for, in the absence of any special circumstances which may distinguish one offence or one class of offences or one class of cases from another offence, or class of offences or class of cases, speedier trial is desirable in the disposal of all offences or classes of offences or classes of cases. Offences or cases cannot be classified in two categories on the basis of the preamble alone as suggested by the learned Attorney-General.
Learned counsel for the respondents then contended that as the object of the Act recited in the preamble cannot be the basis of classification, then this part of sub-section 5(1) gives an uncontrolled and unguided power of classification which may well be exercised by the
State government capriciously or "with an evil eye and an unequal hand" so as to deliberately bring about invidious discrimination between man and man, although both of them are situated in exactly the same or similar circumstances. By way of illustration it is pointed out that in the
Indian Penal Code there are different chapters dealing with offences relating to different matters, e.g., Chapter XVII which deals with offences against property, that under this generic head are set forth different species of offences against property, e.g., theft (section 378), theft in a dwelling house (section 380), theft by a servant (section 381), to take only a few examples, and that according to the language of section 5(1) of the impugned Act it will be open to the
State government to direct all offences of theft in a dwelling house under section 380 to be tried by the Special Court according to the special procedure laid down in the Act leaving all offences of theft by a servant under section 381 to be dealt with in the ordinary Court in the usual way.
In other words, if a stranger is charged with theft in a dwelling house, he may be sent up for trial before the Special Court under section 380 whereas if a servant is accused of theft in a dwelling house he may be left to be tried under the Code for an offence under section 381.
The argument is that although there is no apparent reason why an offence of theft in a dwelling house by a stranger should require speedier trial any more than an offence of that in a dwelling house by a servant should do, the State government may nevertheless select the former offence for special and discriminatory treatment in the matter of its trial by bringing it under the Act.
A little reflection will show that this argument is not sound. The part of sub-section 5(1) which
I am now examining confers a power on the State government to make a classification of offences, classes of offences or classes of cases, which, as said by Chakravartti J., "means a proper classification." In order to be a proper classification so as not to offend against the
Constitution it must be based on some intelligible differentia which should have a reasonable relation to the object of the Act as recited in the preamble. In the illustration taken above the two offences are only two species of the same genus, the only difference being that in the first the alleged offender is a stranger and in the latter he is a servant of the owner whose property has been stolen. Even if this difference in the circumstances of the two alleged offenders can be made the basis of a classification, there is no nexus between this difference and the object of the Act, for, in the absence of any special circumstances, there is no apparent reason why the offence of theft in a dwelling house by a stranger should require a speedier trial any more than the offence of theft by a servant should do. Such classification will be wholly arbitrary and will be liable to be his by the principles on which the Supreme Court of the United States in Skinner v. Oklahoma, 216 U.S. 535, struck down the Oklahoma Habitual Criminal
Sterilisation Act which imposed sterilisation on a person convicted more than twice of larceny
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but not on one who was convicted of embezzlement on numerous occasions. That sort of classification will, therefore, not clearly be a proper classification such as the Act must be deemed to contemplate.
On the other hand, it is easy to visualise a situation when certain offences, e.g., theft in a dwelling house, by reason of the frequency of their perpetration or other attending circumstances, may legitimately call for a speedier trial and swift retribution by way of punishment to check the commission of such offences. Are we not familiar with gruesome crimes of murder, arson, loot and rape committed on a large scale during communal riots in particular localities and are they not really different from a case of a stray murder, arson, loot or rape in another district which may not be affected by any communal upheaval? Do not the existence of the communal riot and the concomitant crimes committed on a large scale call for prompt and speedier trial in the very interest and safety of the community? May not political murders or crimes against the State or a class of the community e.g., women, assume such proportions as would be sufficient to constitute them into a special class of offences requiring special treatment? Do not these special circumstances add a peculiar quality to these offences or classes of offences or classes of cases which distinguish them from stray cases of similar crimes and is it not reasonable and even necessary to arm the State with power to classify them into a separate group and deal with them promptly I have no doubt in my mind that the surrounding circumstances and the special features I have mentioned above will furnish a very cogent and reasonable basis of classification, for it is obvious that they do clearly distinguish these offences from similar or even same species of offences committed elsewhere and under ordinary circumstances. This differentia quite clearly has a reasonable relation to the object sought to be achieved by the Act, namely, the speedier trial of certain offences. Such a classification will not be repugnant to the equal protection clause of our
Constitution for there will be no discrimination, for whoever may commit the specified offence in the specified area in the specified circumstances will be treated alike and sent up before a special Court for trial under the special procedure. Persons thus sent up for trial by a
Special Court cannot point their fingers to the other persons who may be charged before an ordinary Court with similar or even same species of offences in a different place and in different circumstances and complain of unequal treatment, for those other persons are of a different category and are not their equals. Section 5(1), in so far as it empowers the State government to direct "offences " or "classes of offences" or "classes of cases" to be tried by a
Special Court, also, by necessary implication and intendment, empowers the State government to classify the "offences" or "classes of offences" or "classes of cases", that is to say, to make a proper classification in the sense I have explained.
In my judgment, this part of the section, property construed and understood, does not confer an uncontrolled and unguided power on the State government. On the contrary, this power is controlled by the necessity for making a proper classification which is guided by the preamble in the sense that the classification must have a rational relation to the object of the
Act as recited in the preamble. It is, therefore, not an arbitrary power. I, therefore agree with
Harries, C.J. that this part of section 5(1) is valid. If the State government classifies offences arbitrarily and not on any reasonable basis having a relation to the object of the Act, its action will be either an abuse of its power if it is purposeful or in excess of its powers even if it is done in good faith and in either case the resulting discrimination will encounter the challenge of the Constitution and the Court will strike down, not the law which is good, but the abuse or misuse or the unconstitutional administration of the law creating or resulting in unconstitutional discrimination.
In the present case, however, the State government has not purported to proceed under that part of section 5(1) which I have been discussing so far. It has, on the other hand, acted
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under that part of the section which authorises it to direct "cases" to be tried by the Special
Court, for by the notifications it has directed certain specific cases identified by their individual numbers in the records of the particular thanas to be tried by the Special Court.
There is ostensibly no attempt at, or pretence of, any classification on any basis whatever. The notifications simply direct certain "cases" to be tried by the Special Court and are obviously issued under that part of section 5(1) which authorises the State government to direct "cases" to be tried by the Special Court. The word "cases" has been used to signify a category distinct from "classes of cases". The idea of classification is, therefore, excluded. This means that this part of the sub-section empowers the State Government to pick out or select particular cases against particular persons for being sent up to the Special Court for trial. It is urged by the learned Attorney-General that this selection of cases must also be made in the light of the object of the Act as expressed in its preamble, that is to say, the State Government can only select those cases which, in their view, require speedier trial. Turning to the preamble, I find that the object of the Act is “to provide for the speedier trial of certain offences” and not of a particular case or cases. In other words, this part of section 5(1) lies beyond the ambit of the object laid down in the preamble and, therefore, the preamble can have no manner of application in the selection of "cases" as distinct from "offences", "classes of offences" or
"classes of cases". I agree with Harries C.J. that the preamble cannot control this part of the sub-section where the language is plain and unambiguous. Further, as I have already explained, the object of the Act cannot, by itself, be the basis of the selection which, I repeat, must be based on some differentia distinguishing the "case" from other "cases" and having relation to the object of the Act.
It is difficult, if not impossible, to conceive of an individual "case", as distinct from a
"class of cases", as a class by itself within the rule of permissible and legitimate classification.
An individual case of a crime committed with gruesome atrocity or committed upon an eminent person may shock our moral sense to a greater extent but, on ultimate analysis and in the absence of special circumstances such as I have mentioned, it is not basically different from another individual case of a similar crime although committed with less vehemence or on a less eminent person. In any case, there is no particular bond connecting the circumstances of the first mentioned case with the necessity for a speedier trial. In the absence of special circumstances of the kind I have described above, one individual case, say of murder, cannot require speedier trial any more than another individual case of murder may do. It is, therefore, clear, for the foregoing reasons, that the power to direct "cases" as distinct from "classes of cases" to be tried by a Special Court contemplates and involves a purely arbitrary selection based on nothing more substantial than the whim and pleasure of State Government and without any appreciable relation to the necessity for a speedier trial. Here the law lays an unequal hand on those who have committed intrinsically the same quality of offence. This power must inevitably result in discrimination and this discrimination is, in terms incorporated in this part of the section itself and, therefore, this part of the section itself must incur our condemnation. It is not a question of an unconstitutional administration of a statute otherwise valid on its face but here the unconstitutionality is writ large on the face of the statute itself. I, therefore, agree with the High court that section 5(1) of the Act in so far as it empowers the
State Government to direct "cases" to be tried by a Special Court offends against the provisions of Article 14 and therefore the Special Court had no jurisdiction to try these "cases" of the respondents. In my judgment, the High Court was right in quashing the conviction of the respondents in the one case and in prohibiting further proceedings in the other case and these appeals should be dismissed.
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JUSTICE AIYAR (for himself)
The short question that arises for consideration in these cases is whether the whole, or any portion of the West Bengal Special Courts Act, X of 1950, is invalid as being opposed to equality before the law and the equal protection of the laws guaranteed under article 14 of the
Constitution of India. The facts which have led up to the cases have been stated in the judgments of the High court at Calcutta and their recapitulation is unnecessary. I agree in the conclusion reached by my learned brothers that the appeals should be dismissed and I propose to indicate my views as shortly as possible on a few only of the points raised and discussed.
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There can be no doubt that as regards the cases to be sent before the Special Court or
Courts, the Act under scrutiny has deviated in many matters of importance from the procedure prescribed by the Criminal Procedure Code for the trial of offences and that this departure has been definitely adverse to the accused. Preliminary inquiry before committal to the sessions, trial by jury or with the aid of assessors, the right of a de novo trial on transfer of a case from one Court to another, have been taken away from the accused who are to be tried by a Special
Court; even graves is section 13, which provides that a person may be convicted of an offence disclosed by the evidence as having been committed by him, even though he was not charged with it and it happens to be a more serious offence. This power of the Special Court is much wider than the powers of ordinary courts. The points of prejudice against the accused which appear in the challenged Act have been pointed out in detail in the judgment of Trevor Harries
C.J. They cannot all be brushed aside as variations of minor and unsubstantial importance.
The argument that changes in procedural law are not material and cannot be said to deny equality before the law or the equal protection of the laws so long as the substantive law remains unchanged or that only the fundamental rights referred to in articles 20 to 22 should be safeguarded is, on the face of is, unsound. The right to equality postulated by article 14 is as much a fundamental right as any other fundamental right dealt with in part III of the
Constitution. Procedural law may and does confer very valuable rights on a person, and their protection must be as much the object of a court 's solicitude as those conferred under substantive law.
The learned Attorney-General contended that if the object of the legislation was a laudable one and had a public purpose in view, as in this case, which provided for the speedier trial of certain offences, the fact that discrimination resulted as a bye-product would not offend the provisions of article 14. His point was that if the inequality of treatment was not specifically intended to prejudice any particular person or group of persons but was in the general interests of administration, it could not be urged that there is a denial of equality before the law. To accept this position would be to neutralize, if not to abrogate altogether, article 14. Almost every piece of legislation has got a public purpose in view and is generally intended, or said to be intended, to promote the general progress of the country and the better administration of
Government. The intention behind the legislation may be unexceptionable and the object sought to be achieved may be praiseworthy but the question which falls to be considered under article 14 is whether the legislation is discriminatory in its nature, and this has to be determined not so much by its purpose or objects but by its effects. There is scarcely any authority for the position taken up by the Attorney-General.
It is well settled that equality before the law or the equal protection of laws does not mean identity or abstract symmetry of treatment. Distinctions have to be made for different classes and groups of persons and a rational or reasonable classification is permitted, as otherwise it would be almost impossible to carry on the work of Government of any State or country. To
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use the felicitous language of Mr. Justice Holmes in Bain Peanut Co. v. Pinson, 282 U.S. 499 at p. 501, "We must remember that the machinery of government could not work if it were not allowed a little play in its joints." The law on the subject has been well stated in a passage from Willis on Constitutional Law (1936 Edition, at page 579) and an extract from the pronouncement of this Court in what is known as the Prohibition Case (State of Bombay and
Another v. F. N. Balsara, [1951] S.C.R. 682), where my learned brother Fazl Ali, J. has distilled in the form of seven principles most of the useful observations of this Court in the
Sholapur Mills case, Chiranjit Lal Chowdhury v. Union of India, [1950] S.C.R. 869.
Willis says :"The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. "It merely requires that all persons subject to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed." "The inhibition of the amendment was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation." It does not take from the states the power to classify either in the adoption of police laws, or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis.
Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis."
The seven principles formulated by Fazl Ali, J. are as follows:"1. The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.
2. The presumption may be rebutted in certain cases by showing that on the face of the statute, there is to classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class.
3. The principle of equality does not mean that every law must have universal application for all persons who are not be nature, attainment or circumstances in the same position, and the varying needs of different classes of persons often require separate treatment.
4. The principle does not take away from the State the power of classifying persons for legitimate purposes.
5. Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough.
6. If a law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.
7. While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis."
After these citations, it is really unnecessary to refer to or discuss in detail most of the
American decisions cited at the Bar. Their number is legion and it is possible to alight on
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decisions in support of propositions, apparently even conflicting, if we divorce them from the context of the particular facts and circumstances and ignore the setting or the back-ground in which they were delivered. With great respect, I fail to see why we should allow ourselves to be unduly weighted-down or over-encumbered in this manner. To say this is not to shut out illumining light from any quarter; it is merely to utter a note of caution that we need not stray far into distant fields and try to clutch at something which may not after all be very helpful.
What we have to find out is whether the statute now in question before us offends to any extent the equal protection of the laws unguaranteed by our written Constitution. Whether the classification, if any, is reasonable or arbitrary, or is substantial or unreal, has to be adjudicated upon by the courts and the decision must turn more on one 's commonsense than on overrefined legal distinctions or subtleties.
The Attorney-General argued that if the principle of classification has to be applied as a necessary test, there is a classification in the impugned Act as it says that it is intended to provide for the speedier trial of certain offences; and in the opinion of the legislature certain offences may require more expeditious trial than other offences and this was a good enough classification. But as speedy administration of justice, especially in the field of the law of crimes, is a necessary characteristic of every civilised Government, there is not much point in stating that there is a class of offences that require such speedy trial. Of course, there may be certain offences whose trial requires priority over the rest and quick progress, owing to their frequent occurrence, grave danger to public peace or tranquillity, and other special features that may be prevalent at a particular time in a specified area. And when it is intended to provide that they should be tried more speedily than other offences, requiring in certain respects a departure from the procedure prescribed for the general class of offences, it is but reasonable to expect the legislature to indicate the basis for any such classification. If the Act does not state what exactly are the offences which in its opinion need a speedier trial and why it is so considered, a mere statement in general words of the object sought to be achieved, as we find in this case, is of no avail because the classification, if any, is illusive or evasive. The policy or idea behind the classification should at least be adumbrated, if not stated, so that the court which has to decide on the constitutionality might be seized of something on which it could base its view about the propriety of the enactment from the standpoint of discrimination or equal protection. Any arbitrary division or ridge will render the equal protection clause moribund or lifeless.
Apart from the absence of any reasonable or rational classification, we have in this case the additional feature of a carte blanche being given to the State Government to send any offences or cases for trial by a Special Court. Section 5, sub-clause, of the impugned Act is in these terms:"A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may, by general or special order in writing, direct." If the scope or the meaning of the Act is doubtful, the preamble can be referred to for ascertaining its extent and purpose. But where the operative parts of the Act are clear and there is no ambiguity, the preamble cannot be allowed to control the express provisions. On the terms of section 5, it would be perfectly open to the State Government to send before the
Special Court any case, whatever its nature, whether it has arisen out of a particular incident or relates to a crime of normal occurrence, whether the offence involved is grave or simple, whether it needs more expeditious trial or not. Thus, we have before us an enactment which does not make any reasonable classification and which confers on the executive an uncontrolled and unguided power of discrimination.
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The question whether there is any proper classification where no standard is set up by the enactment to control executive action has arisen for consideration before the American courts and has been differently answered. Willis says at page 586:"Is it proper classification to put in one class those who get the consent of a board or of an official and into another class those who do not, where no standard is set up to control the action of the board or official? Some cases answer this question in the affirmative, while other cases answer it in the negative. Perhaps the best view on this subject is that due process and equality are not violated by the mere conference of unguided power, but only by its arbitrary exercise by those upon whom it is conferred."
The case cited in support of this view, Plymouth Coal Co. v. Pennsylvania, 232 U.S. 532, is really no authority for any such position. In that case, the statute provided that it was
"obligatory on the owners of adjoining coal properties to leave, or cause to be left, a pillar of coal in each seam or vein of coal worked by them, along the line of adjoining property, of such width that, taken in connection with the pillar to be left by the adjoining property owner, will be a sufficient barrier for the safety of the employees of either mine in case the other should be abandoned and allowed to fill with water; such width of pillar to be determined by the engineers of the adjoining property owners together with the inspector of the district in which the mine is situated." When the Inspector of Mines wrote to the plaintiff company,
Plymouth Coal Co., asking their engineer to meet him so that they can meet the engineer of the neighboring coal company to decide about the thickness of the barrier pillar to be left unmined between the two adjoining coal properties, the plaintiff company declined to cooperate. Thereupon the Inspector filed a bill of complaint against the plaintiff company for a preliminary and a perpetual injunction from working its mines - without leaving a barrier pillar of the dimensions he thought necessary. The plaintiff company urged that the Act upon which the bill was based "was confiscator, unconstitutional, and void". The bill of complaint succeeded but it was provided in the final order that it was without prejudice to the Plymouth
Coal Co. 's right to get dissolution or modification of the injunction. The matter came up on appeal to the Supreme Court. The legislative Act was challenged by the Plymouth Coal Co. on the grounds that the method of fixing the width of the barrier pillar indicated in the Act was crude, uncertain and unjust, that there was uncertainty and want of uniformity in the membership of the statutory tribunal, that there was no provision of notice to the parties interested, that the procedure to be followed was not prescribed, and that there was no right of appeal. All these objections were negatived. The Court observed on the main contention that
"it was competent for the legislature to lay down a general rule, and then establish an administrative tribunal with authority to fix the precise width or thickness of pillar that will suit the necessities of the particular situation, and constitute a compliance with the general rule." This case is no authority for the position that the mere conferment of naked or uncontrolled power is no violation of the due process or equality clauses. It is true that the power to deal with a particular situation within the general rule prescribed by the enactment may be conferred on an administrative body or even on a single individual but this entrustment or delegation is subject to the condition that the statute must itself be a valid one, as not being opposed to the 5th or 14th Amendment of the American Constitution, corresponding to articles 14 and 22 of our Constitution.
85. Discrimination may not appear in the statute itself but may be evident in the administration of the law. If an uncontrolled or unguided power is conferred without any reasonable and proper standards or limits being laid down in the enactment, the statute itself may be challenged and not merely the particular administrative act. Citing the case of Sunday Lake
Iron Co. v. Wakefield, Rogers v. Alabama, and Concordia Fire Ins. Co. v. Illinois, Prof.
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Weaver says at page 404 of his compendious book on Constitutional Law under the heading of "DISCRIMINATION IN THE ADMINISTRATION OF THE LAWS ' :"Discrimination may exist in the administration of the laws and it is the purpose of the equal protection clause to secure all the inhabitants of the state from intentional and arbitrary discrimination arising in their improper or prejudiced execution, as well by the express terms of the law itself. The validity or invalidity of a statute often depends on how it is construed and applied. It may be valid when given a particular application and invalid when given another."
A difficulty was suggested and discussed in the course of the arguments in case article 14 was to receive a very wide interpretation. Under article 12 of the Constitution, even a local authority comes within the definition of "the State" and section 13 provides in subclause that " 'law ' includes any ordinance, order, bye- law, rule, regulation, notification…".
Therefore any ordinance or notification issued by a local authority acting under the powers conferred on it by a statute might be challenged as discriminatory and if this is permitted, the work of administration might be paralysed altogether. This no doubt, is a possible result but the difficulty envisaged is by no means insurmountable. If the statute or the enactment makes a reasonable or rational classification and if the power conferred by the statute on a local authority is exercised to the prejudice of a person vis a vis other persons similarly situated, two answers would be possible. One is that there was no discrimination at all in the exercise of the power. The second is that the power was exercised in good 'faith within the limitations imposed by the Act and for the achievement of the objects the enactment had in view and that the person who alleges that he has been discriminated against will have to establish mala fides in the sense that the step was taken intentionally for the purpose of injuring him; in other words, it was a hostile act directed against him. If the legislation itself is open to attack on the ground of discrimination, the question of any act done by a local or other authority under the power or powers vested in it will not arise, If the Act itself is invalid on the ground that it is ultra vires, the notification, ordinance, or rule falls to the ground with it, but if the Act remains, the validity of the notification or order etc., when impugned, may have to be considered independently. There may be cases where individual acts of state officials are questioned and not the legislation itself. As regards such cases, Willoughby states at page 1932 of his Volume III on the Constitution of the United States:"It is, however, to be observed in this connection, that the prohibitions apply to the acts of State officials even when they are done in pursuance of some State legislative direction, for, while no constitutional objection may be made to any law of the State, it has been held that its officials may exercise their public authority in such a discriminatory or arbitrary manner as to bring them within the scope of the prohibitions of the Fourteenth Amendment. This, it will be remembered, was one of the grounds upon which, in Yick Wo V. Hopkins, 118
U.S. 356 it was held that due process of law had been denied. In Tarrance v.
Florida, 188 U.S. 519 the administration of a State law and not the law itself was challenged and the court said: 'Such an actual discrimination is as potential in creating a denial of equality of rights as discrimination made by law. '"
There is only one other point that I would like to deal with. Trevor Harries, C.J. has taken the view that section 5 of the Act would have been unexceptionable had it only provided for the trial by a Special Court of certain offences or classes of offences or certain classes of cases and that in his opinion the discrimination arose by the provision for the trial of cases, as distinguished from classes of cases. It is rather difficult, however, to appreciate this distinction. If the statute makes no classification at all, or if the classification purported to be made is not reasonable or rational but is arbitrary and illusory, as in this case, Section 5 would be void as contravening article, 14. It is no doubt true that totally different considerations
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might arise if specified offences or groups of offences in a particular area or arising out of a particular event or incident were to be tried by a Special Court but this is not the case here. I am unable to see how if the Act merely provided that certain "classes of cases" as distinguished from "cases" should be tried by a Special Court, the attack against discrimination could be avoided, as even then the test of rationality or reasonableness would still remain to be satisfied.
If the Act does not enunciate any principle on the basis of which the State Government could select offences of classes of offences or cases or classes of cases and the State Government is left free to make any arbitrary selection according to their will and pleasure then the Act is void. On this point, I would invite special attention to the view taken by Mr. Justice Das Gupta in the following passage of his judgment:"The Act lays down no principle on which selection of "classes of offences" or
"classes of cases" should be made by the State Government. The State
Government may even arbitrarily determine the classes of cases to be tried by the
Special Court and if it does so its action will be well within its powers conferred by the Act. The Act indicates no basis whatsoever on which such classification should be made. I am of opinion that the whole Act is ultra vires the Constitution and deletion of the word "cases" from section 5 would not save the rest of the Act from being invalid."
JUSTICE BOSE (for himself)
We are concerned here with article 14 of the Constitution and in particular with the words
"equality before the law" and "equal protection of the law." Now I yield to none in my insistence that plain unambiguous words in a statute, or in the Constitution, must having regard to the context, be interpreted according to their ordinary meaning and be given full effect. But that predicates a position where the words are plain and unambiguous. I am clear that that is not the case here.
Take first the words "equality before the law". It is to be observed that equality in the abstract is not guaranteed but only equality before the law. That at once leads to the question, what is the law, and whether "the law" does not draw distinctions between man and man and make for inequalities in the sense of differentiation? One has only to look to the differing personal laws which are applied daily to see that it does; to trusts and foundations from which only one particular race or community may benefit, to places of worship from which all but members of particular faith are excluded, to cemeteries and towers of silence which none but the faithful may use to the laws of property, marriage and divorce. All that is part and parcel of the law of the land and equality before it in any literal sense is impossible unless these laws are swept away, but that is not what the Constitution says, for these very laws are preserved and along with equality before the law is also guaranteed the right to the practice of one 's faith.
Then, again, what does "equality" mean? All men are not alike. Some are rich and some are poor. Some by the mere accident of birth inherit riches, others are born to poverty. There are differences in social standing and economic status. High sounding phrases cannot alter such fundamental facts. It is therefore impossible to apply rules of abstract equality to conditions which predicate inequality form the start; and yet the words have meaning though in my judgment their true content is not to be gathered by simply taking the words in one hand and a dictionary in the other, for the provisions of the Constitution are not mathematical formulae which have their essence in mere form. They constitute a frame-work of government written for men of fundamentally differing opinions and written as much for the future as the present. They are not just pages from a text book but form the means of ordering the life of a progressive people. There is consequently grave danger in endeavoring to confine them in watertight compartments made up of ready-made generalisations like classification. I have no
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doubt those tests serve as a rough and ready guide in some cases but they are not the only tests, nor are they the true tests on a final analysis.
What, after all, is classification? It is merely a systematic arrangement of things into groups or classes, usually in accordance with some definite scheme. But the scheme can be anything and the laws which are laid down to govern the grouping must necessarily be arbitrarily selected; also granted the right to select, the classification can be as broad based as one pleases, or it can be broken down and down until finally just one solitary unit is divided off from the rest. Even those who propound this theory are driven to making qualifications.
Thus, it is not enough merely to classify but the classification must not be 'discriminatory ', it must not amount to 'hostile action ', there must be 'reasonable grounds for distinction ', it must be 'rational ' and there must be no 'substantial discrimination '. But what then becomes of the classification and who are to be the judges of the reasonableness and the substantiality or otherwise of the discrimination? And, much more important, whose standards of reasonableness are to be applied? - the judges? - the government 's? - or that of the mythical ordinary reasonable man of law which is no single man but a composite of many men whose reasonableness can be measured and gauged even though he can neither be seen nor heard nor felt? With the utmost respect I cannot see how these vague generalisations serve to clarify the position. To my mind they, do not carry us one whit beyond the original words and are no more satisfactory than saying-that all men are equal before the law and that all shall be equally treated and be given equal protection. The problem is not solved by substituting one generalisation for another.
To say that the law shall not be discriminatory carries us nowhere for unless the law is discriminatory the question cannot arise. The whole problem is to pick out from among the laws which make for differentiation the ones which do not offend article 14 and separate them from those which do. It is true the word can also be used in the sense of showing favouritism, but in so far as it means that, it suffers from the same defect as the 'hostile action ' test. We are then compelled to import into the question the clement of motive and delve into the minds of those who make the differentiation or pass the discriminatory law and thus at once substitute a subjective test for an objective analysis.
I would always be slow to impute want of good faith in these cases. I have no doubt that the motive, except in rare cases, is beyond reproach and were it not for the fact that the
Constitution demands equality of treatment these laws would, in my opinion, be valid. But that apart. What material have we for delving into the mind of a legislature? It is useless to say that a man shall be judged by his acts, for acts of this kind can spring from good motives as well as had, and in the absence of other material the presumption must be overwhelmingly in favour of the former.
I can conceive of cases, where there is the utmost good faith and where the classification is scientific and rational and yet which would offend this law. Let us take an imaginary cases in which a State legislature considers that all accused persons whose skull measurements are below a certain standard, or who cannot pass a given series of intelligence tests, shall be tried summarily whatever the offence on the ground that the less complicated the trial the fairer it is to their sub-standard of intelligence. Here is classification. It is scientific and systematic.
The intention and motive are good. There is no question of favouritism, and yet I can hardly believe that such a law would be allowed to stand. But what would be the true basis of the decision? Surely simply this that the judges would not consider that fair and proper. However much the real ground of decision may be hidden behind a screen of words like 'reasonable ', 'substantial ', 'rational ' and 'arbitrary ' the fact would remain that judges are substituting their own judgment of what is right and proper and reasonable and just for that of the legislature; and up to a point that, I think, is inevitable when a judge is called upon to crystallise a vague
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generality like article 14 into a concrete concept. Even in England, where Parliament is supreme, that is inevitable, for, as Dicey tells us in his Law of the Constitution:
"Parliament is the supreme legislator, but from, the moment Parliament has uttered its will as law-giver, that will becomes subject to the interpretation put upon it by the judges of the land, and the judges, who are influenced by the feelings of magistrates no less than by the general spirit of the common law, are disposed to construe statutory exceptions to common law principles in a mode which would not commend itself either to a body of officials, or the Houses of
Parliament, if the Houses were called upon to interpret their own enactments."
This, however, does not mean that judges are to determine what is for the good of the people and substitute their individual and personal opinions for that of the government of the day, or that they may usurp the functions of the legislature. That is not their province and though there must always be a narrow margin within which judges, who are human, will always be influenced by subjective factors, their training and their tradition makes the main body of their decisions speak with the same voice and reach impersonal results whatever their personal predilections or their individual backgrounds. It is the function of the legislature alone, headed by the government of the day, to determine what is, and what is not, good and proper for the people of the land and they must be given the widest latitude to exercise their functions within the ambit of their powers, else all progress is barred. But, because of the
Constitution, there are limits beyond which they cannot go and even though it falls to the lot of judges to determine where those limits, lie, the basis of their decision cannot be whether the Court thinks the law is for the benefit of the people of not. Cases of this type must be decided solely on the basis whether the Constitution forbids it.
I realise that this is a function which is incapable of exact definition but I do not view that with dismay. The common law of England grew up in that way. It was gradually added to as each concrete case arose and a decision, was given ad hoc on the facts of that particular case.
It is true the judges who thus contributed to its growth were not importing personal predilections into the result and merely stated what was the law applicable to that particular case. But though they did not purport to make the law and merely applied what according to them, had always been the law handed down by custom and tradition, they nevertheless had to draw for their material on a nebulous mass of undefined rules which though they existed in fact and left a vague awareness in man 's minds, nevertheless were neither clearly definable not even necessarily identificable, until crystalised into concrete existence by a judicial decision; not indeed is it necessary to travel as far afield. Much of the existing Hindu law has grown up in that way from instance to instance, the threads being gathered not from the rishis, now from custom, now from tradition. In the same way, the laws of liberty, of freedom and of protection under the Constitution will also slowly assume recognisable shape as decision is added to decision. They cannot, in my judgment, be enunciated in static from by hidebound rules and arbitrarily applied standards or tests.
I find it impossible to read these portions of the Constitution without regard to the background out of which they arose. I cannot blot out their history and omit from consideration the brooding spirit of the times. They are not just dull, lifeless words static and hide- bound as in some mummified manuscript, but, living flames intended to give life to a great nation and order its being, tongues of dynamic fire, potent to mould the future as well as guide the present. The Constitution must, in myy judgment, be left elastic enough to meet from time to time the altering conditions of a changing would with its shifting emphasis and differing needs. I feel therefore that in each case judges must look straight into the heart of things and regard the facts of each case concretely much as a jury would do; and yet, not quite as a jury, for we are considering here a matter of law and not just one of fact; Do these "laws" which have been called in question offend a still greater law before which even they must bow?
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Doing that, what is the history of these provisions? They arose out of the fight for freedom in this land and are but the endeavour to compress into a few pregnant phrases some of the main attributes of a sovereign democratic republic as seen through Indian eyes. There was present to the collective mind of the Constituent Assembly, reflecting the mood of the peoples of India, the memory of grim trials by hastily constituted tribunals with novel forms of procedure set forth in Ordinances promulgated in baste because of what was then felt to be the urgent necessities of the moment. Without casting the slightest reflection of the judges and the Courts so constituted, the fact remains that when these tribunals were declared invalid and the same persons were retired in the ordinary Courts, many were acquitted, many who had been sentenced to death were absolved. That was not the fault of the judges but of the imperfect tools with which they were compelled to work. The whole proceedings were repugnant to the peoples of this land, and to my mind, article 14 is but a reflex of this mood.
What I am concerned to see is not whether there is absolute equality in any academical sense of the term but whether the collective conscience of a sovereign democratic republic can regard the impugned law, contrasted with the ordinary law of the land, as the sort of substantially equal treatment which men of resolute minds and unbiased views can regard as right and proper in a democracy of the kind we have proclaimed ourselves to be. Such views must take into consideration the practical necessities of government, the right to alter the laws and many other facts, but in the forefront must remain the freedom of the individual from unjust and unequal treatment, unequal in the broad sense in which a democracy would view it. In my opinion, 'law ' as used in article 14 does not mean the "legal precepts which are actually recognised and applied in tribunals of a given time and place" but "the more general body of doctrine and tradition from which those precepts are chiefly drawn, and by which we criticise, them." (Dean Pound in 34 Harvard Law Review 449 at 452).
I grant that this means that the same things will be viewed differently at different times.
What is considered right and proper in a given set of circumstances will be considered improper in another age and vice versa. But that will not be because the law has changed but because the times have altered and it is no longer necessary for government to wield the powers which were essential in an earlier and more troubled world. That is what I mean by flexibility of interpretation.
This is no new or starting doctrine. It is just what happened in the cases of blasphemy and sedition in England. Lord Summer has explained this Bowman 's case, [1917] A.C. 406 at 454,
466 and 467 and the Federal Court in Niharendu Dutt Majumder 's case, [1942] F.C.R. 32 at
42 and so did Puranik J. and I in the Nagpur High Court in Bhagwati Charan Shukla 's case I.L.R. 1946 Nag. 865 at 878 and 879.
Coming now to the concrete cases with which we have to deal here. I am far from suggesting that the departures made from the procedure prescribed by the Criminal Procedure
Code are had or undesirable in themselves. Some may be good in the sense that they will better promote the ends of justice and would thus from welcome additions to the law of the land.
But I am not here to consider that. That is no part of a Judge 's province. What I have to determine is whether the differentiation made offends what I may call the social conscience of a sovereign democratic republic. That is not a question which can be answered in the abstract, but, viewed in the background of our history, I am of opinion that it does. It is not that these laws are necessarily had in themselves. It is the differentiation, which matters; the singling out of cases or groups of cases, or even of offences or classes of offences, of a kind fraught with the most serious consequences to the individuals concerned, for special, and what some would regard as peculiar, treatment.
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It may be that justice would be fully done by following the new procedure. It may even be that it would be more truly done. But it would not be satisfactorily done, satisfactory that is to say not from the point of view of the governments, who prosecute, but satisfactory in the view of the ordinary reasonable man, the man in the street. It is not enough that justice should be cone. Justice must also be seen to be done and a sense of satisfaction and confidence in it engendered. That cannot be when Ramchandra is tried by one procedure and Sakharam, similarly placed, facing equally serious charges, also answering for his life and liberty, by another which differs radically from the first.
The law of the Constitution is not only for those who govern or for the theorist, but also for the bulk of the people for the common man for whose benefit and pride and safeguard the
Constitution has also been written. Unless and until these fundamental provisions are altered by the constituent processes of Parliament they must be interpreted in a sense which the common man, not versed in the niceties of grammar and dialectical logic, can understand and appreciate so that he may have faith and confidence and unshaken trust in that which has been enacted for his benefit and protection.
Tested in the light of these considerations. I am of opinion that the whole of the West
Bengal Special Courts Act of 1950 offends the provisions of article 14 and is therefore bad.
When the forth and the foam of discussion is cleared away and learned dialectics placed on one side, we reach at last the human element which to my mind is the most important of all.
We find men accused of heinous crimes called upon answer for their lives and liberties. We find picked out from their fellows, and however the new procedure may give them a few crumb of advantage, in the bulk they are deprived of substantial and valuable privileges of defence which others, similarly charged, are able to claim. It matters not to me, nor indeed to them and their families and their friends, whether this be done in good faith, whether it be done for the convenience of government, whether the process can be scientifically classified and labelled, or whether it is an experiment in speedier trials made for the good of society at large. It matters not how lofty and laudable the motives are. The question with which I charge myself is, can fair-minded, reasonable unbiased and resolute men, who are not swayed by emotion or prejudice, regard this with equanimity and call it reasonable, just and fair, regard it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic, in the condition which obtain in India today? I have but one answer to that. On that short and simple ground I would decide this case and hold the Act bad.
Appeals dismissed.
DOCTRINE OF ARBITRARINESS
NATURAL RESOURCES ALLOCATION, IN RE SPECIAL REFERENCE NO. 1 OF 2012
(2012) 10 SCC 1
Decided On: September 27, 2012
BENCH – CHIEF JUSTICE S. H. KAPADIA, D. K. JAIN, J. S. KHEHAR, DIPAK MISRA & RANJAN
GOGOI
JUSTICE JAIN (for the Chief Justice, Justices Misra, Gogoi & himself, MAJORITY OPINION) [Justice
Khehar CONCURRING but wrote his separate opinion]
In exercise of powers conferred under Article 143(1) of the Constitution of India, the
President of India has on 12th April, 2012, made the present Reference. The full text of the
Reference (sans the annexures) is as follows:
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WHEREAS in 1994, the Department of Telecommunication, Government of
India ("GOI"), issued 8 Cellular Mobile Telephone Services Licenses ("CMTS
Licenses"), 2 in each of the four Metro cities of Delhi, Mumbai, Kolkata and
Chennai for a period of 10 years (the "1994 Licenses"). The 1994 licensees were selected based on rankings achieved by them on the technical and financial evaluation based on parameters set out by the GoI in the tender and were required to pay a fixed licence fee for initial three years and subsequently based on number of subscribers subject to minimum commitment mentioned in the tender document and licence agreement. The 1994 Licenses issued by GoI mentioned that a cumulative maximum of upto 4.5 MHz in the 900 MHz bands would be permitted based on appropriate justification. There was no separate upfront charge for the allocation of Spectrum to the licensees, who only paid annual Spectrum usage charges, which will be subject to revision from time to time and which under the terms of the license bore the nomenclature "licence fee and royalty". A copy of the 1994 Licenses, along with a table setting out the pre-determined
Licence Fee as prescribed by DoT in the Tender, is annexed hereto as Annexure
I (Colly).
WHEREAS in December 1995, 34 CMTS Licenses were granted based on auction for 18 telecommunication circles for a period of 10 years (the "1995
Licenses"). The 1995 Licenses mentioned that a cumulative maximum of up to
4.4 MHz in the 900 MHz bands shall be permitted to the licensees, based on appropriate justification. There was no separate upfront charge for allocation of spectrum to the licensees who were also required to pay annual spectrum usage charges, which under the terms of the license bore the nomenclature "licence fee and royalty" which will be subject to revision from time to time. A copy of the
1995 Licenses, along with a table setting out the fees payable by the highest bidder, is annexed hereto as Annexure II (Colly).
WHEREAS in 1995, bids were also invited for basic telephone service licenses
("BTS Licenses") with the license fee payable for a 15 year period. Under the terms of the BTS Licenses, a licensee could provide fixed line basic telephone services as well as wireless basic telephone services. Six licenses were granted in the year 1997-98 by way of auction through tender for providing basic telecom services (the "1997 BTS Licenses"). The license terms, inter-alia, provided that based on the availability of the equipment for Wireless in Local Loop (WLL), in the world market, the spectrum in bands specified therein would be considered for allocation subject to the conditions mentioned therein. There was no separate upfront charge for allocation of spectrum and the licensees offering the basic wireless telephone service were required to pay annual Spectrum usage charges, which under the terms of the license bore the nomenclature "licence fee and royalty". A sample copy of the 1997 BTS Licenses containing the table setting out the license fees paid by the highest bidder is annexed hereto as Annexure
III (Colly).
WHEREAS in 1997, the Telecom Regulatory Authority of India Act, 1997 was enacted and the Telecom Regulatory Authority of India (the "TRAI") was established. WHEREAS on 1st April, 1999, the New Telecom Policy 1999 ("NTP 1999") was brought into effect on the recommendation of a Group on Telecom ("GoT") which had been constituted by GoI. A copy of NTP 1999 is annexed hereto as Annexure
IV. NTP 1999 provided that Cellular Mobile Service Providers ("CMSP") would be granted a license for a period of 20 years on the payment of a one-time entry fee and licence fee in the form of revenue share. NTP 1999 also provided that
BTS (Fixed Service Provider or FSP) Licenses for providing both fixed and wireless (WLL) services would also be issued for a period of 20 years on payment of a one-time entry fee and licence fee in the form of revenue share and prescribed charges for spectrum usage, appropriate level of which was to be recommended by TRAI. The licensees both cellular and basic were also required to pay annual
Spectrum usage charges.
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WHEREAS based on NTP 1999, a migration package for migration from fixed license fee to one time entry fee and licence fee based on revenue share regime was offered to all the existing licenses on 22nd July, 1999. This came into effect on 1st August 1999. Under the migration package, the licence period for all the
CMTS and FSP licensees was extended to 20 years from the date of issuance of the Licenses.
WHEREAS in 1997 and 2000, CMTS Licenses were also granted in 2 and 21
Circles to Mahanagar Telephone Nigam Limited ("MTNL") and Bharat Sanchar
Nigam Limited ("BSNL") respectively (the "PSU Licenses"). However, no entry fee was charged for the PSU Licenses. The CMTS Licenses issued to BSNL and
MTNL mentioned that they would be granted GSM Spectrum of 4.4 + 4.4 MHz in the 900 MHz band. The PSU Licensees were also required to pay annual spectrum usage charges. A copy of the PSU Licenses is annexed hereto as Annexure V (Colly).
WHEREAS in January 2001, based on TRAI 's recommendation, DoT issued guidelines for issuing CMTS Licenses for the 4th Cellular Operator based on tendering process structured as "Multistage Informed Ascending Bidding
Process". Based on a tender, 17 new CMTS Licenses were issued for a period of
20 years in the 4 Metro cities and 13 Telecom Circles (the "2001 Cellular
Licenses"). The 2001 Licenses required that the licensees pay a one-time nonrefundable entry fee as determined through auction as above and also annual license fee and annual spectrum usage charges and there was no separate upfront charge for allocation of spectrum. In accordance with the terms of tender document, the license terms, inter-alia, provided that a cumulative maximum of upto 4.4 MHz + 4.4 MHz will be permitted and further based on usage, justification and availability, additional spectrum upto 1.8 MHz + 1.8 MHz making a total of 6.2 MHz + 6.2 MHz, may be considered for assignment, on case by case basis, on payment of additional Licence fee. The bandwidth upto maximum as indicated i.e. 4.4 MHz & 6.2 MHz as the case may be, will be allocated based on the Technology requirements (e.g. CDMA @ 1.25 MHz, GSM
@ 200 KHz etc.). The frequencies assigned may not be contiguous and may not be same in all cases, while efforts would be made to make available larger chunks to the extent feasible. A copy of the 2001 Cellular Licenses, along with a table setting out the fees payable by the highest bidder, is annexed hereto as Annexure
VI.
WHEREAS in 2001, BTS Licenses were also issued for providing both fixed line and wireless basic telephone services on a continual basis (2001 Basic Telephone
Licenses). Service area wise one time Entry Fee and annual license fee as a percentage of Adjusted Gross Revenue (AGR) was prescribed for grant of BTS
Licenses. The licence terms, inter-alia, provided that for Wireless Access System in local area, not more than 5 + 5 MHz in 824-844 MHz paired with 869-889 MHz band shall be allocated to any basic service operator including existing ones on
FCFS basis. A detailed procedure for allocation of spectrum on FCFS basis was given in Annexure-IX of the 2001 BTS license. There was no separate upfront charge for allocation of spectrum and the Licensees were required to pay revenue share of 2% of the AGR earned from wireless in local loop subscribers as spectrum charges in addition to the one time entry fee and annual license fee. A sample copy of the 2001 Basic Telephone License along with a table setting out the entry fees is annexed hereto as Annexure VII.
WHEREAS on 27th October, 2003, TRAI recommended a Unified Access
Services Licence ("UASL") Regime. A copy of TRAI 's recommendation is annexed hereto as Annexure VIII.
WHEREAS on 11.11.2003, Guidelines were issued, specifying procedure for migration of existing operators to the new UASL regime. As per the Guidelines, all applications for new Access Services License shall be in the category of
Unified Access Services Licence. Later, based on TRAI clarification dated
14.11.2003, the entry fee for new Unified Licensee was fixed same as the entry fee of the 4th cellular operator. Based on further recommendations of TRAI dated
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19.11.2003, spectrum to the new licensees was to be given as per the existing terms and conditions relating to spectrum in the respective license agreements. A copy of the Guidelines dated 11.11.2003 is annexed hereto as Annexure IX.
WHEREAS consequent to enhancement of FDI limit in telecom sector from 49% to 74%, revised Guidelines for grant of UAS Licenses were issued on 14.12.2005.
These Guidelines, inter-alia stipulate that Licenses shall be issued without any restriction on the number of entrants for provision of Unified Access Services in a Service Area and the applicant will be required to pay one time non-refundable
Entry, annual License fee as a percentage of Adjusted Gross Revenue (AGR) and spectrum charges on revenue share basis. No separate upfront charge for allocation of spectrum was prescribed. Initial Spectrum was allotted as per UAS
License conditions to the service providers in different frequency bands, subject to availability. Initially allocation of a cumulative maximum up to 4.4 MHz + 4.4
MHz for TDMA based systems or 2.5 MHz + 2.5 MHz for CDMA based systems subject to availability was to be made. Spectrum not more than 5 MHz + 5 MHz in respect of CDMA system or 6.2 MHz + 6.2 MHz in respect of TDMA based system was to be allocated to any new UAS licensee. A copy of the UASL
Guidelines dated 14.12.2005 is annexed hereto asAnnexure X.
WHEREAS after the introduction of the UASL in 2003 and until March 2007,
51 new UASL Licenses were issued based on policy of First Come-First Served, on payment of the same entry fee as was paid for the 2001 Cellular Licenses (the
"2003-2007 Licenses") and the spectrum was also allocated based on FCFS under a separate wireless operating license on case by case basis and subject to availability. Licensees had to pay annual spectrum usage charges as a percentage of AGR, there being a no upfront charge for allocation of spectrum. A copy of the
2003-2007 License, along with a table setting out the fees payable, is annexed hereto as Annexure XI (Colly).
WHEREAS on 28th August 2007, TRAI revisited the issue of new licenses, allocation of Spectrum, Spectrum charges, entry fees and issued its recommendations, a copy of which is annexed hereto as Annexure XII. TRAI made further recommendations dated 16.07.2008 which is annexed hereto as Annexure XIII.
WHEREAS in 2007 and 2008, GoI issued Dual Technology Licences, where under the terms of the existing licenses were amended to allow licensees to hold a license as well as Spectrum for providing services through both GSM and
CDMA network. First amendment was issued in December, 2007. All licensees who opted for Dual Technology Licences paid the same entry fee, which was an amount equal to the amount prescribed as entry fee for getting a new UAS licence in the same service area. The amendment to the license inter-alia mentioned that initially a cumulative maximum of upto 4.4 MHz + 4.4 MHz was to be allocated in the case of TDMA based systems (@ 200 KHz per carrier or 30 KHz per carrier) and a maximum of 2.5 MHz + 2.5 MHz was to be allocated in the case of
CDMA based systems (@ 1.25 MHz per carrier), on case by case basis subject to availability. It was also, inter-alia, mentioned that additional spectrum beyond the above stipulation may also be considered for allocation after ensuring optimal and efficient utilization of the already allocated spectrum taking into account all types of traffic and guidelines/criteria prescribed from time to time. However, spectrum not more than 5 + 5 MHz in respect of CDMS system and 6.2 + 6.2 MHz in respect of TDMA based system was to be allocated to the licensee. There was no separate upfront charge for allocation of Spectrum. However, Dual Technology licensees were required to pay Spectrum usage charges in addition to the license fee on revenue share basis as a percentage of AGR. Spectrum to these licensees was allocated 10.01.2008 onwards.
WHEREAS Subscriber based criteria for CMTS was prescribed in the year 2002 for allocation of additional spectrum of 1.8 + 1.8 MHz beyond 6.2 + 6.2 MHz with a levy of additional spectrum usage charge of 1% of AGR. The allocation criteria was revised from time to time. A copy of the DoT letter dated 01.02.2002 in this regard is annexed hereto as Annexure XIV.
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WHEREAS for the spectrum allotted beyond 6.2 MHz, in the frequency allocation letters issued by DoT May 2008 onwards, it was mentioned inter-alia that allotment of spectrum is subject to pricing as determined in future by the GoI for spectrum beyond 6.2 MHz + 6.2 MHz and the outcome of Court orders.
However, annual spectrum usage charges were levied on the basis of AGR, as per the quantum of spectrum assigned. A sample copy of the frequency allocation letter is annexed hereto as Annexure XV.
WHEREAS Spectrum for the 3G Band (i.e. 2100 MHz band) was auctioned in
2010. The terms of the auction stipulated that, for successful new entrants, a fresh license agreement would be entered into and for existing licensees who were successful in the auction, the license agreement would be amended for use of
Spectrum in the 3G band. A copy of the Notice inviting Applications and
Clarifications thereto are annexed hereto and marked as Annexure XVI (Colly).
The terms of the amendment letter provided, inter alia, that the 3G spectrum would stand withdrawn if the license stood terminated for any reason. A copy of the standard form of the amendment letter is annexed hereto and marked as Annexure XVII.
WHEREAS letters of intent were issued for 122 Licenses for providing 2G services on or after 10 January 2008, against which licenses (the "2008 Licenses") were subsequently issued. However, pursuant to the judgment of this Hon 'ble
Court dated 2nd February, 2012 in Writ Petition (Civil) No. 423 of 2010 (the
"Judgment"), the 2008 Licenses have been quashed. A copy of the judgment is annexed hereto and marked Annexure XVIII.
WHEREAS the GoI has also filed an Interlocutory Application for clarification of the Judgment, wherein the GoI has placed on record the manner in which the auction is proposed to be held pursuant to the Judgment and sought appropriate clarificatory orders/directions from the Hon 'ble Court. A copy of the Interlocutory
Application is annexed hereto and marked as Annexure XIX.
WHEREAS while the GoI is implementing the directions set out in the Judgment at paragraph 81 and proceeding with a fresh grant of licences and allocation of spectrum by auction, the GoI is seeking a limited review of the Judgment to the extent it impacts generally the method for allocation of national resources by the
State. A copy of the Review Petition is annexed hereto and marked as Annexure
XX.
WHEREAS by the Judgment, this Hon 'ble Court directed TRAI to make fresh recommendations for grant of licenses and allocation of Spectrum in the 2G band by holding an auction, as was done for the allocation of Spectrum for the 3G licenses. WHEREAS, in terms of the directions of this Hon 'ble Court, GoI would now be allocating Spectrum in the relevant 2G bands at prices discovered through auction.
WHEREAS based on the recommendations of TRAI dated 11.05.2010 followed by further clarifications and recommendations, the GoI has prescribed in February
2012, the limit for spectrum assignment in the Metro Service Areas as
2x10MHz/2x6.25 MHz and in rest of the Service Areas as 2x8MHz/2x5 MHz for
GSM (900 MHz, 1800 MHz band)/CDMA(800 MHZ band), respectively subject to the condition that the Licensee can acquire additional spectrum beyond prescribed limit in the open market should there be an auction of spectrum subject to the further condition that total spectrum held by it does not exceed the limits prescribed for merger of licenses i.e. 25% of the total spectrum assigned in that
Service Area by way of auction or otherwise. This limit for CDMS spectrum is
10 MHz.
WHEREAS, in view of the fact that Spectrum may need to be allocated to individual entities from time to time in accordance with criteria laid down by the
GoI, such as subscriber base, availability of Spectrum in a particular circle, interse priority depending on whether the Spectrum comprises the initial allocation or
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additional allocation, etc., it may not always be possible to conduct an auction for the allocation of Spectrum.
AND WHEREAS in view of the aforesaid, the auctioning of Spectrum in the 2G bands may result in a situation where none of the Licensees, using the 2G bands of 800 MHz., 900 MHz and 1800 MHz would have paid any separate upfront fee for the allocation of Spectrum.
AND WHEREAS the Government of India has received various notices from companies based in other countries, invoking bilateral investment agreements and seeking damages against the Union of India by reason of the cancellation/threat of cancellation of the licenses.
AND WHEREAS in the circumstance certain questions of law of far reaching national and international implications have arisen, including in relation to the conduct of the auction and the regulation of the telecommunications industry in accordance with the Judgment and FDI into this country in the telecom industry and otherwise in other sectors.
Given that the issues which have arisen are of great public importance, and that questions of law have arisen of public importance and with such far reaching consequences for the development of the country that it is expedient to obtain the opinion of the Hon 'ble Supreme Court of India thereon.
NOW THEREFORE, in exercise of powers conferred upon me by clause (1) of
Article 143 of the Constitution of India, I, Pratibha Devisingh Patil, President of
India, hereby refer the following questions to the Supreme Court of India for consideration and report thereon, namely:
Q.1 Whether the only permissible method for disposal of all natural resources across all sectors and in all circumstances is by the conduct of auctions?
Q.2 Whether a broad proposition of law that only the route of auctions can be resorted to for disposal of natural resources does not run contrary to several judgments of the Supreme Court including those of Larger Benches?
Q.3 Whether the enunciation of a broad principle, even though expressed as a matter of constitutional law, does not really amount to formulation of a policy and has the effect of unsettling policy decisions formulated and approaches taken by various successive governments over the years for valid considerations, including lack of public resources and the need to resort to innovative and different approaches for the development of various sectors of the economy?
Q.4 What is the permissible scope for interference by courts with policy making by the Government including methods for disposal of natural resources?
Q.5 Whether, if the court holds, within the permissible scope of judicial review, that a policy is flawed, is the court not obliged to take into account investments made under the said policy including investments made by foreign investors under multilateral/bilateral agreements?
Q.6 If the answers to the aforesaid questions lead to an affirmation of the judgment dated 02.02.2012 then the following questions may arise, viz.
(i) whether the judgment is required to be given retrospective effect so as to unsettle all licences issued and 2G spectrum (800, 900, and 1800 MHz bands) allocated in and after 1994 and prior to 10.01.2008?
(ii) whether the allocation of 2G spectrum in all circumstances and in all specific cases for different policy considerations would nevertheless have to be undone?
And specifically
(iii) Whether the telecom licences granted in 1994 would be affected?
(iv) Whether the Telecom licences granted by way of basic licences in 2001 and licences granted between the period 2003-2007 would be affected?
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(v) Whether it is open to the Government of India to take any action to alter the terms of any licence to ensure a level playing field among all existing licensees?
(vi) Whether dual technology licences granted in 2007 and 2008 would be affected? (vii) Whether it is necessary or obligatory for the Government of India to withdraw the Spectrum allocated to all existing licensees or to charge for the same with retrospective effect and if so on what basis and from what date?
Q.7 Whether, while taking action for conduct of auction in accordance with the orders of the Supreme Court, it would remain permissible for the Government to:
(i) Make provision for allotment of Spectrum from time to time at the auction discovered price and in accordance with laid down criteria during the period of validity of the auction determined price?
(ii) Impose a ceiling on the acquisition of Spectrum with the aim of avoiding the emergence of dominance in the market by any licensee/applicant duly taking into consideration TRAI recommendations in this regard?
(iii) Make provision for allocation of Spectrum at auction related prices in accordance with laid down criteria in bands where there may be inadequate or no competition (for e.g. there is expected to be a low level of competition for CDMA in 800 MHz band and TRAI has recommended an equivalence ratio of 1.5 or
1.3X1.5 for 800 MHz and 900 MHz bands depending upon the quantum of spectrum held by the licensee that can be applied to auction price in 1800 MHz band in the absence of a specific price for these bands)?
Q.8 What is the effect of the judgment on 3G Spectrum acquired by entities by auction whose licences have been quashed by the said judgment?
NEW DELHI;
DATED: 12 April 2012
PRESIDENT OF INDIA
A bare reading of the Reference shows that it is occasioned by the decision of this Court, rendered by a bench of two learned Judges on 2nd February, 2012 in Centre for Public Interest
Litigation v. Union of India, (2012) 3 SCC 1 (for brevity "2G Case").
On receipt of the Reference, vide order dated 9th May, 2012, notice was issued to the
Attorney General for India. Upon hearing the learned Attorney General, it was directed vide order dated 11th May, 2012, that notice of the Reference shall be issued to all the States through their Standing Counsel; on Centre for Public Interest Litigation (CPIL) and Dr. Subramanian
Swamy (Petitioners in the 2G Case); as also on the Federation of Indian Chambers of
Commerce and Industry (FICCI) and Confederation of Indian Industry (CII), as representatives of the Indian industry. On the suggestion of the learned Attorney General, it was also directed (though not recorded in the order), that the reference shall be dealt with in two parts viz. in the first instance, only questions No. 1 to 5 would be taken up for consideration and the remaining questions shall be taken up later in the light of our answers to the first five questions.
… [Discussion on maintainability of the Presidential Reference is omitted] …
This leads us to the merits of the controversy disclosed in the questions framed in the
Reference for our advisory opinion.
As already pointed out, the judgment in the 2G Case triggered doubts about the validity of methods other than 'auction ' for disposal of natural resources which, ultimately led to the filing of the present Reference. Therefore, before we proceed to answer question No. 1, it is
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imperative to understand what has been precisely stated in the 2G Case and decipher the law declared in that case.
All the counsel agreed that paragraphs 94 to 96 in the said decision are the repository of the ratio vis-à-vis disposal of natural resources in the 2G Case. On the one hand it was argued that these paragraphs lay down, as a proposition of law, that all natural resources across all sectors, and in all circumstances are to be disposed of by way of public auction, and on the other, it was urged that the observations therein were made only qua spectrum. Before examining the strength of the rival stands, we may briefly recapitulate the principles that govern the determination of the 'law declared ' by a judgment and its true ratio.
Article 141 of the Constitution lays down that the 'law declared ' by the Supreme Court is binding upon all the courts within the territory of India. The 'law declared ' has to be construed as a principle of law that emanates from a judgment, or an interpretation of a law or judgment by the Supreme Court, upon which, the case is decided. [See: Fida Hussain v. Moradabad
Development Authority, (2011) 12 SCC 615]. Hence, it flows from the above that the 'law declared ' is the principle culled out on the reading of a judgment as a whole in light of the questions raised, upon which the case is decided. [Also see: Ambica Quarry Works v. State of
Gujarat, (1987) 1 SCC 213 and Commissioner of Income Tax v. Sun Engineering Works (P)
Limited, (1992) 4 SCC 363]. In other words, the 'law declared ' in a judgment, which is binding upon courts, is the ratio decidendi of the judgment. It is the essence of a decision and the principle upon which, the case is decided, which has to be ascertained in relation to the subjectmatter of the decision.
… [Rest of the discussion on Article 141 is omitted] …
In the 2G Case, the Bench framed five questions. Questions No. (ii) and (v) pertain to the factual matrix and are not relevant for settling the controversy at hand. The remaining three questions are reproduced below:
(i) Whether the Government has the right to alienate, transfer or distribute natural resources/national assets otherwise than by following a fair and transparent method consistent with the fundamentals of the equality clause enshrined in the
Constitution?
(iii) Whether the exercise undertaken by DoT from September 2007 to March
2008 for grant of UAS licences to the private Respondents in terms of the recommendations made by TRAI is vitiated due to arbitrariness and mala fides and is contrary to public interest?
(iv) Whether the policy of first-come-first-served followed by DoT for grant of licences is ultra vires the provisions of Article 14 of the Constitution and whether the said policy was arbitrarily changed by the Minister of Communications and
Information Technology (hereinafter referred to as "the Minister of
Communications and Information Technology"), without consulting TRAI, with a view to favour some of the applicants?
While dealing with question No.(i), the Court observed that the State is empowered to distribute natural resources as they constitute public property/national assets. Thereafter, the
Bench observed as follows:
75....while distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best subserve the common good, but no comprehensive
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legislation has been enacted to generally define natural resources and a framework for their protection...
The learned Judges adverted to the 'public trust doctrine ' as enunciated in The Illinois
Central Railroad Co. v. The People of the State of Illinois, 146 U.S. 387 (1892); M.C. Mehta
v. Kamal Nath, (1997) 1 SCC 388; Jamshed Hormusji Wadia v. Board of Trustees, Port of
Mumbai, (2004) 3 SCC 214; Intellectuals Forum, Tirupathi v. State of A.P.,(2006) 3 SCC
549; Fomento Resorts and Hotels Limited v. Minguel Martins, (2009) 3 SCC 571 and Reliance
Natural Resources Limited v. Reliance Industries Limited, (2010) 7 SCC 1 and held:
85. As natural resources are public goods, the doctrine of equality, which emerges from the concepts of justice and fairness, must guide the State in determining the actual mechanism for distribution of natural resources. In this regard, the doctrine of equality has two aspects: first, it regulates the rights and obligations of the State vis-à-vis its people and demands that the people be granted equitable access to natural resources and/or its products and that they are adequately compensated for the transfer of the resource to the private domain; and second, it regulates the rights and obligations of the State vis-à-vis private parties seeking to acquire/use the resource and demands that the procedure adopted for distribution is just, nonarbitrary and transparent and that it does not discriminate between similarly placed private parties.
Referring to the decisions of this Court in Akhil Bhartiya Upbhokta Congress v. State of
Madhya Pradesh, (2011) 5 SCC 29 and Sachidanand Pandey v. State of West Bengal, (1987)
2 SCC 295, the Bench ultimately concluded thus:
In conclusion, we hold that the State is the legal owner of the natural resources as a trustee of the people and although it is empowered to distribute the same, the process of distribution must be guided by the constitutional principles including the doctrine of equality and larger public good.
On a reading of the above paragraphs, it can be noticed that the doctrine of equality; larger public good, adoption of a transparent and fair method, opportunity of competition; and avoidance of any occasion to scuttle the claim of similarly situated applicants were emphasised upon. While dealing with alienation of natural resources like spectrum, it was stated that it is the duty of the State to ensure that a non-discriminatory method is adopted for distribution and alienation which would necessarily result in the protection of national/public interest. Paragraphs 85 and 89, while referring to the concept of 'public trust doctrine ', lay emphasis on the doctrine of equality, which has been segregated into two parts - one is the substantive part and the other is the regulatory part. In the regulatory facet, paragraph 85 states that the procedure adopted for distribution should be just and non-arbitrary and must be guided by constitutional principles including the doctrine of equality and larger public good. Similarly, in paragraph 89 stress has been laid on transparency and fair opportunity of competition. It is further reiterated that the burden of the State is to ensure that a non-discriminatory method is adopted for distribution and alienation which would necessarily result in the protection of national and public interest.
Dealing with Questions No.(iii) and (iv) in paragraphs 94 to 96 of the judgment, the Court opined as follows:
There is a fundamental flaw in the first-come-first-served policy inasmuch as it involves an element of pure chance or accident. In matters involving award of contracts or grant of licence or permission to use public property, the invocation of first-come-first-served policy has inherently dangerous implications. Any person who has access to the power corridor at the highest or the lowest level may be able to obtain information from the government files or the files of the agency/instrumentality of the State that a particular public property or asset is
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likely to be disposed of or a contract is likely to be awarded or a licence or permission is likely to be given, he would immediately make an application and would become entitled to stand first in the queue at the cost of all others who may have a better claim.
This Court has repeatedly held that wherever a contract is to be awarded or a licence is to be given, the public authority must adopt a transparent and fair method for making selections so that all eligible persons get a fair opportunity of competition. To put it differently, the State and its agencies/instrumentalities must always adopt a rational method for disposal of public property and no attempt should be made to scuttle the claim of worthy applicants. When it comes to alienation of scarce natural resources like spectrum, etc. it is the burden of the State to ensure that a non-discriminatory method is adopted for distribution and alienation, which would necessarily result in protection of national/public interest.
In our view, a duly publicised auction conducted fairly and impartially is perhaps the best method for discharging this burden and the methods like first-come-first-served when used for alienation of natural resources/public property are likely to be misused by unscrupulous people who are only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values. In other words, while transferring or alienating the natural resources, the State is duty-bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process.
Our reading of these paragraphs suggests that the Court was not considering the case of auction in general, but specifically evaluating the validity of those methods adopted in the distribution of spectrum from September 2007 to March 2008. It is also pertinent to note that reference to auction is made in the subsequent paragraph (96) with the rider 'perhaps '. It has been observed that "a duly publicized auction conducted fairly and impartially is perhaps the best method for discharging this burden." We are conscious that a judgment is not to be read as a statute, but at the same time, we cannot be oblivious to the fact that when it is argued with vehemence that the judgment lays down auction as a constitutional principle, the word
"perhaps" gains significance. This suggests that the recommendation of auction for alienation of natural resources was never intended to be taken as an absolute or blanket statement applicable across all natural resources, but simply a conclusion made at first blush over the attractiveness of a method like auction in disposal of natural resources. The choice of the word 'perhaps ' suggests that the learned Judges considered situations requiring a method other than auction as conceivable and desirable.
Further, the final conclusions summarized in paragraph 102 of the judgment (SCC) make no mention about auction being the only permissible and intra vires method for disposal of natural resources; the findings are limited to the case of spectrum. In case the Court had actually enunciated, as a proposition of law, that auction is the only permissible method or mode for alienation/allotment of natural resources, the same would have found a mention in the summary at the end of the judgment.
Moreover, if the judgment is to be read as holding auction as the only permissible means of disposal of all natural resources, it would lead to the quashing of a large number of laws that prescribe methods other than auction, e.g., the MMRD Act. While dealing with the merits of the Reference, at a later stage, we will discuss whether or not auction can be a constitutional mandate under Article 14 of the Constitution, but for the present, it would suffice to say that no court would ever implicitly, indirectly, or by inference, hold a range of laws as ultra vires the Constitution, without allowing every law to be tested on its merits. One of the most profound tenets of constitutionalism is the presumption of constitutionality assigned to each legislation enacted. We find that the 2G Case does not even consider a plethora of laws and judgments that prescribe methods, other than auction, for dispensation of natural resources;
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something that it would have done, in case, it intended to make an assertion as wide as applying auction to all natural resources. Therefore, we are convinced that the observations in
Paras 94 to 96 could not apply beyond the specific case of spectrum, which according to the law declared in the 2G Case, is to be alienated only by auction and no other method.
Thus, having come to the conclusion that the 2G Case does not deal with modes of allocation for natural resources, other than spectrum, we shall now proceed to answer the first question of the Reference pertaining to other natural resources, as the question subsumes the essence of the entire reference, particularly the set of first five questions.
The President seeks this Court 's opinion on the limited point of permissibility of methods other than auction for alienation of natural resources, other than spectrum. The question also harbours several concepts, which were argued before us through the hearing of the Reference, that require to be answered in order to derive a comprehensive answer to the parent question.
Are some methods ultra vires and others intra vires the Constitution of India, especially
Article 14? Can disposal through the method of auction be elevated to a Constitutional principle? Is this Court entitled to direct the executive to adopt a certain method because it is the 'best ' method? If not, to what extent can the executive deviate from such 'best ' method? An answer to these issues, in turn, will give an answer to the first question which, as noted above, will answer the Presidential Reference.
Before proceeding to answer these questions, we would like to dispose of a couple of minor objections. The first pertained to the classification of resources made in the 2G Case.
Learned Counsel appearing for CPIL argued that all that the judgment in the 2G Case has done is to carve out a special category of cases where public auction is the only legally sustainable method of alienation viz. natural resources that are scarce, valuable and are allotted to private entities for commercial exploitation. The learned Attorney General, however, contested this claim and argued that no such proposition was laid down in the 2G judgment.
He pointed out that the words "commercial exploitation" were not even used anywhere in the judgment except in an extract from another judgment in a different context. We agree that the judgment itself does not carve out any special case for scarce natural resources only meant for commercial exploitation. However, we feel, despite that, in this Reference, CPIL is not barred from making a submission drawing a distinction between natural resources meant for commercial exploitation and those meant for other purposes. This Court has the jurisdiction to classify the subject matter of a reference, if a genuine case for it exists.
Mr. Shanti Bhushan, learned Senior Counsel, in support of his stand that the first question of the Reference must be answered in a way so as to allow auction as the only mode for the disposal of natural resources, submitted that a combined reading of Article 14, which dictates non- arbitrariness in State action and equal opportunity to those similarly placed;
Article 39(b) which is a Directive Principle of State Policy dealing with distribution of natural resources for the common good of the people; and the "trusteeship" principle found in the
Preamble which mandates that the State holds all natural resources in the capacity of a trustee, on behalf of the people, would make auction a constitutional mandate under Article 14 of the
Constitution. It is imperative, therefore, that we evaluate each of these principles before coming to any conclusion on the constitutional verdict on auction.
In the 2G Case, two concepts namely, "public trust doctrine" and "trusteeship" have been adverted to, which were also relied upon by learned Counsel for CPIL, in defence of the argument that the State holds natural resources in a fiduciary relationship with the people. As far as "trusteeship" is concerned, there is no cavil that the State holds all natural resources as a trustee of the public and must deal with them in a manner that is consistent with the nature of such a trust. However, what was asserted on behalf of CPIL was that all natural resources
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fall within the domain of the "public trust doctrine", and therefore, there is an obligation on the Government to ensure that their transfer or alienation for commercial exploitation is in a fair and transparent manner and only in pursuit of public good. The learned Attorney General on the other hand, zealously urged that the subject matter of the doctrine and the nature of restrictions, it imposes, are of limited scope; that the applicability of the doctrine is restricted to certain common properties pertaining to the environment, like rivers, seashores, forest and air, meant for free and unimpeded use of the general public and the restrictions it imposes is in the term of a complete embargo on any alienation of such resources, for private ownership.
According to him, the extension of the public trust doctrine to all natural resources has led to a considerable confusion and needs to be clarified.
The doctrine of public trust enunciated more thoroughly by the United States Supreme
Court in Illinois (supra) was introduced to Indian environmental jurisprudence by this Court in M.C. Mehta (supra). Speaking for the majority, Kuldip Singh, J. observed as follows:
The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes.
According to Professor Sax the Public Trust Doctrine imposes the following restrictions on governmental authority:
Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third the property must be maintained for particular types of uses.
The learned Judge further observed:
Our legal system - based on English common law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources.
These resources meant for public use cannot be converted into private ownership.
The judgment in Kamal Nath 's case (supra) was explained in Intellectuals Forum (supra).
Reiterating that the State is the trustee of all natural resources which are by nature meant for public use and enjoyment, the Court observed thus:
The Supreme Court of California, in National Audubon Society v. Superior Court of Alpine Country also known as Mono Lake case summed up the substance of the doctrine. The Court said:
Thus the public trust is more than an affirmation of State power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people 's common heritage of streams, lakes, marshlands and tidelands, surrendering the right only in those rare cases when the abandonment of the right is consistent with the purposes of the trust.
This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a negatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the State holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of the
Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinise such actions of the Government,
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the courts must make a distinction between the Government 's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources…
It was thus, held that when the affirmative duties are set out from a nugatory angle, the doctrine does not exactly prohibit the alienation of property held as a public trust, but mandates a high degree of judicial scrutiny.
In Fomento (supra), the Court was concerned with the access of the public to a beach in
Goa. Holding that it was a public beach which could not be privatized or blocked denying traditional access, this Court reiterated the public trust doctrine as follows:
The matter deserves to be considered from another angle. The public trust doctrine which has been invoked by Ms Indira Jaising in support of her argument that the beach in question is a public beach and the Appellants cannot privatise the same by blocking/ obstructing traditional access available through Survey No. 803 (new
No. 246/2) is implicitly engrafted by the State Government in Clause 4(ix) of the agreement. That doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. These resources are gift of nature, therefore, they should be freely available to everyone irrespective of one 's status in life.
In Reliance Natural Resources (supra), it has been observed that even though the doctrine of pubic trust has been applied in cases dealing with environmental jurisprudence, "it has broader application". Referring to Kamal Nath (supra), the Court held that it is the duty of the
Government to provide complete protection to the natural resources as a trustee of the people at large.
The public trust doctrine is a specific doctrine with a particular domain and has to be applied carefully. It has been seriously debated before us as to whether the doctrine can be applied beyond the realm of environmental protection. Richard J. Lazarus in his article,
"Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the
Public Trust Doctrine", while expressing scepticism over the 'liberation ' of the doctrine, makes the following observations:
The strength of the public trust doctrine necessarily lies in its origins; navigable waters and submerged lands are the focus of the doctrine, and the basic trust interests in navigation, commerce, and fishing are the object of its guarantee of public access. Commentators and judges alike have made efforts to "liberate",
"expand", and "modify" the doctrine 's scope yet its basic focus remains relatively unchanged. Courts still repeatedly return to the doctrine 's historical function to determine its present role. When the doctrine is expanded, more often than not the expansions require tortured constructions of the present rather than repudiations of the doctrine 's past.
However, we feel that for the purpose of the present opinion, it is not necessary to delve deep into the issue as in Intellectuals Forum (supra), the main departure from the principle explained by Joseph. L. Sax in his Article "The Public Trust Doctrine in Natural Resource
Law: Effective Judicial Intervention" is that public trust mandates a high degree of judicial scrutiny, an issue that we will anyway elaborately discuss while enunciating the mandate of
Article 14 of the Constitution.
We would also like to briskly deal with a similar argument made by Mr. Shanti Bhushan.
The learned senior Counsel submitted that the repository of sovereignty in our framework is the people of this country since the opening words of the Constitution read "We The People of India… do hereby adopt, enact and give to ourselves this Constitution," and therefore the government, as the agent of the Sovereign, the people, while alienating natural resources, must heed to judicial care and due process. Firstly, this Court has held in Raja Ram Pal v. Speaker,
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Lok Sabha, (2007) 3 SCC 184; Para 21 that the "Constitution is the supreme lex in this country" and "all organs of the State derive their authority, jurisdiction and powers from the
Constitution and owe allegiance to it". Further, the notion that the Parliament is an agent of the people was squarely rebutted in In Re: Delhi Laws Act, 1912 (supra), where it was observed that "the legislature as a body cannot be seen to be an agency of the electorate as a whole" and "acts on its own authority or power which it derives from the Constitution".
In Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills,
Delhi, (1968) 3 SCR 251 this Court held that "the doctrine that it (the Parliament) is a delegate of the people coloured certain American decision does not arise here" and that in fact the
"Parliament which by a concentration of all the powers of legislation derived from all the three
Legislative Lists becomes the most competent and potent legislature it is possible to erect under our Constitution." We however, appreciate the concern of Mr. Shanti Bhushan that the lack of any such power in the hands of the people must not be a sanction for recklessness during disposal of natural resources. The legislature and the Executive are answerable to the
Constitution and it is there where the judiciary, the guardian of the Constitution, must find the contours to the powers of disposal of natural resources, especially Article 14 and Article 39(b).
MANDATE OF ARTICLE 14
… The underlying object of Article 14 is to secure to all persons, citizens or non-citizens, the equality of status and opportunity referred to in the preamble to our Constitution. The language of Article 14 is couched in negative terms and is in form, an admonition addressed to the State. It does not directly purport to confer any right on any person as some of the other
Articles, e.g., Article 19, do. The right to equality before law is secured from all legislative and executive tyranny by way of discrimination since the language of Article 14 uses the word
"State" which as per Article 12, includes the executive organ. [See: Basheshar Nath v.
Commissioner of Income Tax, Delhi and Rajasthan, 1959 Supp (1) SCR 528]. Besides,
Article 14 is expressed in absolute terms and its effect is not curtailed by restrictions like those imposed on Article 19(1) by Articles 19(2)-(6). However, notwithstanding the absence of such restrictions, certain tests have been devised through judicial decisions to test if Article 14 has been violated or not.
For the first couple of decades after the establishment of this Court, the 'classification ' test was adopted which allowed for a classification between entities as long as it was based on an intelligible differentia and displayed a rational nexus with the ultimate objective of the policy. Budhan Choudhry v. State of Bihar, AIR 1955 SC 191 referred to in Ram Krishna
Dalmiya v. Justice S.R. Tendolkar, (1959) 1 SCR 279 explained it in the following terms:
It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that
Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.
However, after the judgment of this Court in E.P. Royappa v. State of Tamil Nadu, (1974)
4 SCC 3 the 'arbitrariness ' doctrine was introduced which dropped a pedantic approach
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towards equality and held the mere existence of arbitrariness as violative of Article 14, however equal in its treatment. Justice Bhagwati (as his Lordship was then) articulated the dynamic nature of equality and borrowing from Shakespeare 's Macbeth, said that the concept must not be "cribbed, cabined and confined" within doctrinaire limits: Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose. J., "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits.
His Lordship went on to explain the length and breadth of Article 14 in the following lucid words: From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16.
Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16.
Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.
Building upon his opinion delivered in Royappa 's case (supra), Bhagwati, J., held in Maneka Gandhi v. Union of India,(1978) 1 SCC 248:
The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non- arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive.
………
Further, even though the 'classification ' doctrine was never overruled, it has found less favour with this Court as compared to the 'arbitrariness ' doctrine. In Om Kumar v. Union of
India, (2001) 2 SCC 386, this Court held thus:
But, in E. P. Royappa v. State of T. N. Bhagwati, J laid down another test for purposes of Article 14. It was stated that if the administrative action was
"arbitrary", it could be struck down under Article 14. This principle is now uniformly followed in all courts more rigorously than the one based on classification. Arbitrary action by the administrator is described as one that is irrational and not based on sound reason. It is also described as one that is unreasonable. However, this Court has also alerted against the arbitrary use of the 'arbitrariness ' doctrine.
Typically, laws are struck down for violating Part III of the Constitution of India, legislative incompetence or excessive delegation. However, since Royappa 's case (supra), the doctrine has been loosely applied. This Court in State of A.P. v. McDowell and Co., (1996) 3 SCC 709
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stressed on the need for an objective and scientific analysis of arbitrariness, especially while striking down legislations. Justice Jeevan Reddy observed:
The power of Parliament or for that matter, the State Legislatures is restricted in two ways. A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part
III of the Constitution or of any other constitutional provision. There is no third ground. We do not wish to enter into a discussion of the concepts of procedural unreasonableness and substantive unreasonableness - concepts inspired by the decisions of United States Supreme Court. Even in U.S.A., these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground (substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterised, the ground of invalidation must fall within the four corners of the two grounds mentioned above.
In other words, say, if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by clauses (a) to (g) of
Article 19(1), it can be struck down only if it is found not saved by any of the clauses (s) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds, viz., (i) unreasonableness, which can more appropriately be called irrationality, (ii) illegality and (iii) procedural impropriety (see Council of Civil Service Unions v.
Minister for Civil Service which decision has been accepted by this Court as well).
Therefore, ever since the Royappa era, the conception of 'arbitrariness ' has not undergone any significant change. Some decisions have commented on the doctrinal looseness of the arbitrariness test and tried keeping its folds within permissible boundaries. For instance, cases where legislation or rules have been struck down as being arbitrary in the sense of being unreasonable [See: Air India v. Nergesh Meerza, (1981) 4 SCC 335 (SCC at pp. 372-373)] only on the basis of "arbitrariness", as explained above, have been doubted in McDowell 's case (supra). But otherwise, the subject matter, content and tests for checking violation of
Article 14 have remained, more or less, unaltered.
From a scrutiny of the trend of decisions it is clearly perceivable that the action of the
State, whether it relates to distribution of largesse, grant of contracts or allotment of land, is to be tested on the touchstone of Article 14 of the Constitution. A law may not be struck down for being arbitrary without the pointing out of a constitutional infirmity as McDowell 's case
(supra) has said. Therefore, a State action has to be tested for constitutional infirmities qua
Article 14 of the Constitution. The action has to be fair, reasonable, non-discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and equitable treatment. It should conform to the norms which are rational, informed with reasons and guided by public interest, etc. All these principles are inherent in the fundamental conception of Article 14. This is the mandate of
Article 14 of the Constitution of India.
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WHETHER ' AUCTION ' A CONSTITUTIONAL MANDATE:
Such being the constitutional intent and effect of Article 14, the question arises - can auction as a method of disposal of natural resources be declared a constitutional mandate under
Article 14 of the Constitution of India? We would unhesitatingly answer it in the negative since any other answer would be completely contrary to the scheme of Article 14. Firstly,
Article 14 may imply positive and negative rights for an individual, but with respect to the
State, it is only couched in negative terms; like an admonition against the State which prohibits the State from taking up actions that may be arbitrary, unreasonable, capricious or discriminatory. Article 14, therefore, is an injunction to the State against taking certain type of actions rather than commanding it to take particular steps. Reading the mandate of auction into its scheme would thus, be completely contrary to the intent of the Article apparent from its plain language.
Secondly, a constitutional mandate is an absolute principle that has to be applied in all situations; it cannot be applied in some and not tested in others. The absolute principle is then applied on a case by case basis to see which actions fulfill the requirements of the constitutional principle and which do not.
………
Equality, therefore, cannot be limited to mean only auction, without testing it in every scenario. In State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284 at pp. 297, this Court, quoting from Kotch v. Pilot Comm 'rs, 330 U.S. 552, had held that "the constitutional command for a State to afford equal protection of the laws sets a goal not attainable by the invention and application of a precise formula. This Court has never attempted that impossible task". One cannot test the validity of a law with reference to the essential elements of ideal democracy, actually incorporated in the Constitution. (See: Indira Nehru Gandhi v. Raj Narain, 1975
(Supp) SCC 1). The Courts are not at liberty to declare a statute void, because in their opinion it is opposed to the spirit of the Constitution. Courts cannot declare a limitation or constitutional requirement under the notion of having discovered some ideal norm. Further, a constitutional principle must not be limited to a precise formula but ought to be an abstract principle applied to precise situations. The repercussion of holding auction as a constitutional mandate would be the voiding of every action that deviates from it, including social endeavours, welfare schemes and promotional policies, even though CPIL itself has argued against the same, and asked for making auction mandatory only in the alienation of scarce natural resources meant for private and commercial business ventures. It would be odd to derive auction as a constitutional principle only for a limited set of situations from the wide and generic declaration of Article 14. The strength of constitutional adjudication lies in case to case adjudication and therefore auction cannot be elevated to a constitutional mandate.
Finally, reading auction as a constitutional mandate would be impermissible because such an approach may distort another constitutional principle embodied in Article 39(b). The said article enumerating certain principles of policy, to be followed by the State, reads as follows:
The State shall, in particular, direct its policy towards securing (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
The disposal of natural resources is a facet of the use and distribution of such resources.
Article 39(b) mandates that the ownership and control of natural resources should be so distributed so as to best subserve the common good. Article 37 provides that the provisions of
Part IV shall not be enforceable by any Court, but the principles laid down therein are
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nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
Therefore, this Article, in a sense, is a restriction on 'distribution ' built into the
Constitution. But the restriction is imposed on the object and not the means. The overarching and underlying principle governing 'distribution ' is furtherance of common good. But for the achievement of that objective, the Constitution uses the generic word 'distribution '.
Distribution has broad contours and cannot be limited to meaning only one method i.e. auction. It envisages all such methods available for distribution/allocation of natural resources which ultimately subserve the "common good".
In State of Tamil Nadu v. L. Abu Kavur Bai, (1984) 1 SCC 515, this Court explained the broad-based concept of 'distribution ' as follows:
The word 'distribution ' used in Article 39(b) must be broadly construed so that a court may give full and comprehensive effect to the statutory intent contained in
Article 39 (b). A narrow construction of the word 'distribution ' might defeat or frustrate the very object which the Article seeks to subserve.
After noting definitions of 'distribution ' from different dictionaries, this Court held:
It is obvious, therefore, that in view of the vast range of transactions contemplated by the word 'distribution ' as mentioned in the dictionaries referred to above, it will not be correct to construe the word 'distribution ' in a purely literal sense so as to mean only division of a particular kind or to particular persons. The words, apportionment, allotment, allocation, classification, clearly fall within the broad sweep of the word 'distribution '. So construed, the word 'distribution ' as used in
Article 39(b) will include various facets, aspects, methods and terminology of a broad-based concept of distribution.
It can thus, be seen from the afore-quoted paragraphs that the term "distribute" undoubtedly, has wide amplitude and encompasses all manners and methods of distribution, which would include classes, industries, regions, private and public sections, etc. Having regard to the basic nature of Article 39(b), a narrower concept of equality under Article 14 than that discussed above, may frustrate the broader concept of distribution, as conceived in
Article 39(b). There cannot, therefore, be a cavil that "common good ' and "larger public interests" have to be regarded as constitutional reality deserving actualization.
Learned Counsel for CPIL argued that revenue maximization during the sale or alienation of a natural resource for commercial exploitation is the only way of achieving public good since the revenue collected can be channelized to welfare policies and controlling the burgeoning deficit. According to the learned Counsel, since the best way to maximize revenue is through the route of auction, it becomes a constitutional principle even under Article 39(b).
However, we are not persuaded to hold so. Auctions may be the best way of maximizing revenue but revenue maximization may not always be the best way to subserve public good.
"Common good" is the sole guiding factor under Article 39(b) for distribution of natural resources. It is the touchstone of testing whether any policy subserves the "common good" and if it does, irrespective of the means adopted, it is clearly in accordance with the principle enshrined in Article 39(b).
………
The norm of "common good" has to be understood and appreciated in a holistic manner.
It is obvious that the manner in which the common good is best subserved is not a matter that can be measured by any constitutional yardstick - it would depend on the economic and political philosophy of the government. Revenue maximization is not the only way in which the common good can be subserved. Where revenue maximization is the object of a policy,
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being considered qua that resource at that point of time to be the best way to subserve the common good, auction would be one of the preferable methods, though not the only method.
Where revenue maximization is not the object of a policy of distribution, the question of auction would not arise. Revenue considerations may assume secondary consideration to developmental considerations.
Therefore, in conclusion, the submission that the mandate of Article 14 is that any disposal of a natural resource for commercial use must be for revenue maximization, and thus by auction, is based neither on law nor on logic. There is no constitutional imperative in the matter of economic policies - Article 14 does not pre-define any economic policy as a constitutional mandate. Even the mandate of 39(b) imposes no restrictions on the means adopted to subserve the public good and uses the broad term 'distribution ', suggesting that the methodology of distribution is not fixed. Economic logic establishes that alienation/allocation of natural resources to the highest bidder may not necessarily be the only way to subserve the common good, and at times, may run counter to public good. Hence, it needs little emphasis that disposal of all natural resources through auctions is clearly not a constitutional mandate.
LEGITIMATE DEVIATIONS FROM AUCTION
As a result, this Court has, on a number of occasions, delivered judgments directing means for disposal of natural resources other than auction for different resources in different circumstances. It would be profitable to refer to a few cases and appreciate the reasons this
Court has adopted for deviating from the method of auction.
In Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir, (1980) 4 SCC 1, while comparing the efficacy of auction in promoting a domestic industry, P.N. Bhagwati, J. observed: If the State were giving tapping contract simpliciter there can be no doubt that the
State would have to auction or invite tenders for securing the highest price, subject, of course, to any other relevant overriding considerations of public weal or interest, but in a case like this where the State is allocating resources such as water, power, raw materials etc. for the purpose of encouraging setting up of industries within the State, we do not think the State is bound to advertise and tell the people that it wants a particular industry to be set up within the State and invite those interested to come up with proposals for the purpose. The State may choose to do so, if it thinks fit and in a given situation, it may even turn out to be advantageous for the State to do so, but if any private party comes before the State and offers to set up an industry, the State would not be committing breach of any constitutional or legal obligation if it negotiates with such party and agrees to provide resources and other facilities for the purpose of setting up the industry.
The State is not obliged to tell such party: "Please wait I will first advertise, wee whether any other offers are forthcoming and then after considering all offers, decide whether I should let you set up the industry"...The State must be free in such a case to negotiate with a private entrepreneur with a view to inducing him to set up an industry within the State and if the State enters into a contract with such entrepreneur for providing resources and other facilities for setting up an industry, the contract cannot be assailed as invalid so long as the State has acted bona fide, reasonably and in public interest. If the terms and conditions of the contract or the surrounding circumstances show that the State has acted mala fide or out of improper or corrupt motive or in order to promote the private interests of someone at the cost of the State, the court will undoubtedly interfere and strike down State action as arbitrary, unreasonable or contrary to public interest. But so long as the State action is bona fide and reasonable, the court will not interfere merely on the ground that no advertisement was given or publicity made or tenders invited.
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In Sachidanand Pandey (supra) after noticing Kasturi Lal 's case (supra), it was concluded as under:
On a consideration of the relevant cases cited at the Bar the following propositions may be taken as well established: State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration.
One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism. In Haji T.M. Hassan Rawther v. Kerala Financial Corporation, (1988) 1 SCC 166, after an exhaustive review of the law including the decisions in Kasturi Lal (supra) and
Sachidanand Pandey (supra), it was held that public disposal of State owned properties is not the only rule. It was, inter-alia, observed that:
The public property owned by the State or by any instrumentality of the State should be generally sold by public auction or by inviting tenders. This Court has been insisting upon that rule, not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities. They should undoubtedly act fairly. Their actions should be legitimate. Their dealings should be aboveboard. Their transactions should be without aversion or affection.
Nothing should be suggestive of discrimination. Nothing should be done by them which gives an impression of bias, favouritism or nepotism. Ordinarily these factors would be absent if the matter is brought to public auction or sale by tenders. That is why the court repeatedly stated and reiterated that the State-owned properties are required to be disposed of publicly. But that is not the only rule. As
O. Chinnappa Reddy, J. observed "that though that is the ordinary rule, it is not an invariable rule". There may be situations necessitating departure from the rule, but then such instances must be justified by compulsions and not by compromise.
It must be justified by compelling reasons and not by just convenience.
Here, the Court added to the previous decisions and said that a blithe deviation from public disposal of resources would not be tolerable; such a deviation must be justified by compelling reasons and not by just convenience.
In M.P. Oil Extraction v. State of M.P., (1997) 7 SCC 592, this Court held as follows:
Although to ensure fair play and transparency in State action, distribution of largesse by inviting open tenders or by public auction is desirable, it cannot be held that in no case distribution of such largesse by negotiation is permissible. In the instant case, as a policy decision protective measure by entering into agreements with selected industrial units for assured supply of sal seeds at concessional rate has been taken by the Government. The rate of royalty has also been fixed on some accepted principle of pricing formula as will be indicated hereafter. Hence, distribution or allotment of sal seeds at the determined royalty to the Respondents and other units covered by the agreements cannot be assailed.
It is to be appreciated that in this case, distribution by public auction or by open tender may not achieve the purpose of the policy of protective measure by way of supply of sal seeds at concessional rate of royalty to the industrial units covered by the agreements on being selected on valid and objective considerations.
… [Citations of and quotations from other cases making similar points have been omitted] …
Hence, it is manifest that there is no constitutional mandate in favour of auction under
Article 14. The Government has repeatedly deviated from the course of auction and this Court
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has repeatedly upheld such actions. The judiciary tests such deviations on the limited scope of arbitrariness and fairness under Article 14 and its role is limited to that extent. Essentially whenever the object of policy is anything but revenue maximization, the Executive is seen to adopt methods other than auction.
A fortiori, besides legal logic, mandatory auction may be contrary to economic logic as well. Different resources may require different treatment. Very often, exploration and exploitation contracts are bundled together due to the requirement of heavy capital in the discovery of natural resources. A concern would risk undertaking such exploration and incur heavy costs only if it was assured utilization of the resource discovered; a prudent business venture, would not like to incur the high costs involved in exploration activities and then compete for that resource in an open auction. The logic is similar to that applied in patents.
Firms are given incentives to invest in research and development with the promise of exclusive access to the market for the sale of that invention. Such an approach is economically and legally sound and sometimes necessary to spur research and development. Similarly, bundling exploration and exploitation contracts may be necessary to spur growth in a specific industry.
Similar deviation from auction cannot be ruled out when the object of a State policy is to promote domestic development of an industry, like in Kasturi Lal 's case, discussed above.
However, these examples are purely illustrative in order to demonstrate that auction cannot be the sole criteria for alienation of all natural resources.
POTENTIAL OF ABUSE
It was also argued that even if the method of auction is not a mandate under Article 14, it must be the only permissible method, due to the susceptibility of other methods to abuse. This argument, in our view, is contrary to an established position of law on the subject cemented through a catena of decisions.
………
Therefore, a potential for abuse cannot be the basis for striking down a method as ultra vires the Constitution. It is the actual abuse itself that must be brought before the Court for being tested on the anvil of constitutional provisions. In fact, it may be said that even auction has a potential of abuse, like any other method of allocation, but that cannot be the basis of declaring it as an unconstitutional methodology either. These drawbacks include cartelization,
"winners curse" (the phenomenon by which a bidder bids a higher, unrealistic and unexecutable price just to surpass the competition; or where a bidder, in case of multiple auctions, bids for all the resources and ends up winning licenses for exploitation of more resources than he can pragmatically execute), etc. However, all the same, auction cannot be called ultra vires for the said reasons and continues to be an attractive and preferred means of disposal of natural resources especially when revenue maximization is a priority. Therefore, neither auction, nor any other method of disposal can be held ultra vires the Constitution, merely because of a potential abuse.
JUDICIAL REVIEW OF POLICY DECISIONS
The learned Attorney General also argued that dictating a method of distribution for natural resources violates the age old established principle of noninterference by the judiciary in policy matters. Even though the contours of the power of judicial review of policy decisions has become a trite subject, as the Courts have repeatedly delivered opinions on it, we wish to
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reiterate some of the principles in brief, especially with regard to economic policy choices and pricing. ... In R.K. Garg (supra), this Court even observed that greater judicial deference must be shown towards a law relating to economic activities due to the complexity of economic problems and their fulfillment through a methodology of trial and error. As noted above, it was also clarified that the fact that an economic legislation may be troubled by crudities, inequities, uncertainties or the possibility of abuse cannot be the basis for striking it down. …
In Delhi Science Forum v. Union of India, (1996) 2 SCC 405 a Bench of three learned
Judges of this Court, while rejecting a claim against the opening up of the telecom sector reiterated that the forum for debate and discourse over the merits and demerits of a policy is the Parliament. It restated that the services of this Court are not sought till the legality of the policy is disputed, and further, that no direction can be given or be expected from the courts, unless while implementing such policies, there is violation or infringement of any of the constitutional or statutory provisions. It held thus:
What has been said in respect of legislations is applicable even in respect of policies which have been adopted by Parliament. They cannot be tested in Court of Law. The courts cannot express their opinion as to whether at a particular juncture or under a particular situation prevailing in the country any such national policy should have been adopted or not. There may be views and views, opinions and opinions which may be shared and believed by citizens of the country including the representatives of the people in Parliament. But that has to be sorted out in Parliament which has to approve such policies...
In BALCO Employees Union v. Union of India, (2002) 2 SCC 333, this Court further pointed out that the Court ought to stay away from judicial review of efficacy of policy matters, not only because the same is beyond its jurisdiction, but also because it lacks the necessary expertise required for such a task. Affirming the previous views of this Court, the
Court observed that while dealing with economic legislations, the Courts, while not jettisoning its jurisdiction to curb arbitrary action or unconstitutional legislation, should interfere only in those cases where the view reflected in the legislation is not possible to be taken at all. The
Court went on to emphasize that unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, that the courts would decline to interfere. …
… Mr. Subramanian Swamy also brought to our notice a Report on Allocation of Natural
Resources, prepared by a Committee, chaired by Mr. Ashok Chawla (hereinafter referred to as the "Chawla Committee Report"), which has produced a copious conceptual framework for the Government of India on the allocation and pricing of scarce natural resources viz. coal, minerals, petroleum, natural gas, spectrum, forests, land and water. He averred to observations of the report in favour of auction as a means of disposal. However, since the opinion rendered in the Chawla Committee Report is pending acceptance by the Government, it would be inappropriate for us to place judicial reliance on it. Besides, the Report conducts an economic, and not legal, analysis of the means of disposal of natural resources. The purpose of this
Reference would be best served if this Court gave a constitutional answer rather than economic one. To summarize in the context of the present Reference, it needs to be emphasized that this
Court cannot conduct a comparative study of the various methods of distribution of natural resources and suggest the most efficacious mode, if there is one universal efficacious method in the first place. It respects the mandate and wisdom of the executive for such matters. The methodology pertaining to disposal of natural resources is clearly an economic policy. It entails intricate economic choices and the Court lacks the necessary expertise to make them.
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As has been repeatedly said, it cannot, and shall not, be the endeavour of this Court to evaluate the efficacy of auction vis-à-vis other methods of disposal of natural resources. The Court cannot mandate one method to be followed in all facts and circumstances. Therefore, auction, an economic choice of disposal of natural resources, is not a constitutional mandate. We may, however, hasten to add that the Court can test the legality and constitutionality of these methods. When questioned, the Courts are entitled to analyse the legal validity of different means of distribution and give a constitutional answer as to which methods are ultra vires and intra vires the provisions of the Constitution. Nevertheless, it cannot and will not compare which policy is fairer than the other, but, if a policy or law is patently unfair to the extent that it falls foul of the fairness requirement of Article 14 of the Constitution, the Court would not hesitate in striking it down.
Finally, market price, in economics, is an index of the value that a market prescribes to a good. However, this valuation is a function of several dynamic variables; it is a science and not a law. Auction is just one of the several price discovery mechanisms. Since multiple variables are involved in such valuations, auction or any other form of competitive bidding, cannot constitute even an economic mandate, much less a constitutional mandate.
In our opinion, auction despite being a more preferable method of alienation/allotment of natural resources, cannot be held to be a constitutional requirement or limitation for alienation of all natural resources and therefore, every method other than auction cannot be struck down as ultra-vires the constitutional mandate.
Regard being had to the aforesaid precepts, we have opined that auction as a mode cannot be conferred the status of a constitutional principle. Alienation of natural resources is a policy decision, and the means adopted for the same are thus, executive prerogatives. However, when such a policy decision is not backed by a social or welfare purpose, and precious and scarce natural resources are alienated for commercial pursuits of profit maximizing private entrepreneurs, adoption of means other than those that are competitive and maximize revenue may be arbitrary and face the wrath of Article 14 of the Constitution. Hence, rather than prescribing or proscribing a method, we believe, a judicial scrutiny of methods of disposal of natural resources should depend on the facts and circumstances of each case, in consonance with the principles which we have culled out above. Failing which, the Court, in exercise of power of judicial review, shall term the executive action as arbitrary, unfair, unreasonable and capricious due to its antimony with Article 14 of the Constitution.
In conclusion, our answer to the first set of five questions is that auctions are not the only permissible method for disposal of all natural resources across all sectors and in all circumstances. As regards the remaining questions, we feel that answer to these questions would have a direct bearing on the mode of alienation of Spectrum and therefore, in light of the statement by the learned Attorney General that the Government is not questioning the correctness of judgment in the 2G Case, we respectfully decline to answer these questions. The Presidential
Reference is answered accordingly.
This opinion shall be transmitted to the President in accordance with the procedure prescribed in Part V of the Supreme Court Rules, 1966.
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UNIT 4 – AFFIRMATIVE ACTION (ARTICLES 15 AND 16)
RESERVATION IN EDUCATIONAL INSTITUTIONS
STATE OF MADRAS V. CHAMPAKAM DORAIRAJAN
AIR 1951 SC 226
Decided On: April 9, 1951
BENCH – CHIEF JUSTICE H. L. KANIA, JUSTICES FAZL ALI, PATANJALI SASTRI, M. C.
MAHAJAN, MUKHERJEA, S. R. DAS & VIVIAN BOSE
JUSTICE DAS (for the Court)
This judgment covers both Case No. 270 of 1951 (State of Madras v. Srimathi
Champakam Dorairajan) and Case No. 271 of 1951 (State of Madras v. C. R. Srinivasan) which are appeals from the judgment passed by the High Court of Judicature at Madras on
July 27, 1950, on two separate applications under article 226 of the Constitution complaining of breach of the petitioners ' fundamental right to get admission into educational institutions maintained by the State.
The State of Madras maintains four Medical Colleges and only 330 seats are available for students in those four Colleges. Out of these 330 seats, 17 seats are reserved for students coming from outside the State and 12 seats are reserved for discretionary allotment by the
State and the balance of the seats available are apportioned between four distinct groups of districts in the State.
Likewise, the State of Madras maintains four Engineering Colleges and the total number of seats available for students in those Colleges are only 395. Out of these, 21 seats are reserved for students coming from outside the State, 12 seats are reserved for discretionary allotment by the State and the balance of the seats available are apportioned between the same four distinct groups of districts.
For many years before the commencement of the Constitution, the seats in both the
Medical Colleges and the Engineering Colleges so apportioned between the four distinct groups of districts used to be filled up according to certain proportions set forth in what used to be called the Communal G.O. Thus, for every 14 seats to be filled by the selection committee, candidates used to be selected strictly on the following basis:Non-Brahmin (Hindus)
... 6
Backward Hindus
... 2
Brahmins
... 2
Harijans
... 2
Anglo-Indians and Indian Christians
... 1
Muslims
... 1
Subject to the aforesaid regional and what have been claimed to be protective provisions selection from among the applicants from a particular community from one of the groups of districts used to be made on certain principles based on academic qualifications and marks obtained by the candidates. In the case of the Medical Colleges, not less than 20 per cent of the total number of seats available for students of the State were filled by women candidates separately for each region, it being open to the selection committee to admit a larger number of woman candidates in any region if qualified candidates were available in
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that region and if they were eligible for selection on merits vis-à-vis the men candidates in accordance with the general principles governing such admissions as laid down in those rules.
It appears that the proportion fixed in the old Communal G.O. has been adhered to even after the commencement of the Constitution on January 26, 1950. Indeed, G.O. No. 2208, dated
June 16, 1950, laying down rules for the selection of candidates for admission into the Medical
Colleges substantially reproduces the communal proportion fixed in the old Communal G.O.
On June 7, 1950, Srimathi Champakam Dorairajan made an application to the High
Court of Judicature at Madras under article 226 of the Constitution for protection of her fundamental rights under article 15(1) and article 29(2) of the Constitution and prayed for the issue of a writ of mandamus or other suitable prerogative writ restraining the State of Madras and all officers and subordinates thereof from enforcing, observing, maintaining or following or requiring the enforcement, observance, maintenance or following by the authorities concerned of the notification or order generally referred to as the Communal G.O. in and by which admissions into the Madras Medical Colleges were sought or purported to be regulated in such manner as to infringe and involve the violation of her fundamental rights. From the affidavit filed in support of her petition, it does not appear that the petitioner had actually applied for admission in the Medical College. She states that on inquiry she came to know that she would not be admitted to the College as she belonged to the Brahmin community. No objection, however, was taken to the maintainability of her petition on the ground of absence of any actual application for admission made by her. On the contrary, we have been told that the State had agreed to reserve a seat for her, should her application before the High Court succeed. In the peculiar circumstances, we do not consider it necessary to pursue this matter any further. But we desire to guard ourselves against being understood as holding that we approve of a person who has not actually applied for admission into an educational institution coming to Court complaining of infringement of any fundamental right under article 29(2).
The High Court by its judgment delivered on July 27, 1950, allowed this application of
Srimathi Champakam Dorairajan. The State of Madras has now come up before us on appeal which has been numbered Case No. 270 of 1951.
Sri Srinivasan who had actually applied for admission into the Government
Engineering College at Guindy, filed a petition praying for a writ of mandamus or any other writ restraining the State of Madras and all officers thereof from enforcing, observing, maintaining or following the Communal G.O. in and by which admission into the Engineering
College was sought to be regulated in such manner as to infringe and involve the violation of the fundamental right of the petitioner under article 15(1) and article 29(2) of the Constitution.
In the affidavit filed in support of his petition, the petitioner has stated that he had passed the
Intermediate Examination held in March, 1950, in Group 1, passing the said examination in the first class and obtaining marks set out in paragraph 1 of his affidavit. It will appear that in the optionals which are taken into consideration in determining the academic test for admission in the Engineering College the petitioner Srinivasan secured 369 marks out of a maximum of 450 marks. The High Court has by the same judgment allowed this application also and the State has filed an appeal which has been numbered 271 of 1951. The learned counsel appearing for the State of Madras conceded that these two applicants would have been admitted to the educational institutions they intended to join and they would not have been denied admission if selections had been made on merits alone.
Article 29 which occurs in Part III of the Constitution under the head "Cultural and
Educational Rights" runs as follows:
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(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
It will be noticed that while clause (1) protects the language, script or culture of a section of the citizens, clause (2) guarantees the fundamental right of an individual citizen.
The right to get admission into any educational institution of the kind mentioned in clause (2) is a right which an individual citizen has as a citizen and not as a member of any community or class of citizens. This right is not to be denied to the citizen on grounds only of religion, race, caste, language or any of them. If a citizen who seeks admission into any such educational institution has not the requisite academic qualifications and is denied admission on that ground, he certainly cannot be heard to complain of an infraction of his fundamental right under this article. But, on the other hand, if he has the academic qualifications but is refused admission only on grounds of religion, race, caste, language or any of them, then there is a clear breach of his fundamental right.
The learned Advocate-General appearing for the State contends that the provisions of this article have to be read along with other articles in the Constitution. He urges that article
46 charges the State with promoting with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the
Scheduled Tribes, and with protecting them from social injustice and all forms of exploitation.
It is pointed out that although this article finds a place in Part IV of the Constitution which lays down certain directive principles of State policy and though the provisions contained in that Part are not enforceable by any Court, the principles therein laid down are nevertheless fundamental for the governance of the country and article 37 makes it obligatory on the part of the State to apply those principles in making laws. The argument is that having regard to the provisions of article 46, the State is entitled to maintain the Communal G.O. fixing proportionate seats for different communities and if because of that Order, which is thus contended to be valid in law and not in violation of the Constitution, the petitioners are unable to get admissions into the educational institutions, there is no infringement of their fundamental rights. Indeed, the learned Advocate-General of Madras even contends that the provisions of article 46 override the provisions of article 29(2). We reject the above noted contentions completely.
The directive principles of the State policy, which by article 37 are expressly made unenforceable by a Court, cannot override the provisions found in Part III which, notwithstanding other provisions, are expressly made enforceable by appropriate Writs,
Orders or directions under article 32. The chapter of Fundamental Rights is sacrosanct and not liable to be abridged by any Legislative or Executive Act or order, except to the extent provided in the appropriate article in Part III. The directive principles of State policy have to conform to and run as subsidiary to the Chapter of Fundamental Rights. In our opinion, that is the correct way in which the provisions found in Part III and IV have to be understood.
However, so long as there is no infringement of any Fundamental Right, to the extent conferred by the provisions in Part III, there can be no objection to the State acting in accordance with the directive principles set out in Part IV, but subject again to the Legislative and Executive powers and limitations conferred on the State under different provisions of the
Constitution.
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In the next place, it will be noticed that article 16 which guarantees the fundamental right of equality of opportunity in matters of public employment and provides that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State also includes a specific clause in the following terms:(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments of posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
If the arguments founded on article 46 were sound then clause (4) of article 16 would have been wholly unnecessary and redundant. Seeing, however, that clause (4) was inserted in article 16, the omission of such an express provision from article 29 cannot but be regarded as significant. It may well be that the intention of the Constitution was not to introduce at all communal considerations in matters of admission into any educational institution maintained by the State or receiving aid out of State funds. The protection of backward classes of citizens may require appointment of members of backward classes in State services and the reason why power has been given to the State to provide for reservation of such appointments for backward classes may under those circumstances be understood. That consideration, however, was not obviously considered necessary in the case of admission into an educational institution and that may well be the reason for the omission from article 29 of a clause similar to clause
(4) of article 16.
Take the case of the petitioner Srinivasan. It is not disputed that he secured a much larger number of marks than the marks secured by many of the Non-Brahmin candidates and yet the Non-Brahmin candidates who secured less number of marks will be admitted into six out of every 14 seats but the petitioner Srinivasan will not be admitted into any of them. What is the reason for this denial of admission except that he is a Brahmin and not a Non-Brahmin.
He may have secured higher marks than the Anglo-Indian and Indian Christians or Muslim candidates but, nevertheless, he cannot get any of the seats reserved for the last mentioned communities for no fault of his except that he is a Brahmin and not a member of the aforesaid communities. Such denial of admission cannot but be regarded as made on ground only of his caste. It is argued that the petitioners are not denied admission only because they are
Brahmins but for a variety of reasons, e.g., (a) they are Brahmins, (b) Brahmins have an allotment of only two seat out of 14 and (c) the two seats have already been filled up by more meritorious Brahmin candidates. This may be true so far as these two seats reserved for the
Brahmins are concerned but this line of argument can have no force when we come to consider the seats reserved for candidates of other communities, for, so far as those seats are concerned, the petitioners are denied admission into any of them not on any ground other than the sole ground of their being Brahmins and not being members of the community for whom those reservations have been made. The classification in the Communal G.O. proceeds on the basis of religion, race and caste. In our view, the classification made in the Communal G.O. is opposed to the Constitution and constitutes a clear violation of the fundamental rights guaranteed to the citizen under article 29(2). In this view of the matter, we do not find it necessary to consider the effect of articles 14 or 15 on the specific articles discussed above.
For the reasons stated above, we are of opinion that the Communal G.O. being inconsistent with the provisions of article 29(2) in Part III of the Constitution is void under article 13. The result, therefore, is that these appeals stand dismissed with costs. Appeals dismissed. Page 138 of 610
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RESERVATION IN GOVERNMENT EMPLOYMENT
STATE OF KERALA V. N. M. THOMAS
AIR 1976 SC 490, (1976) 2 SCC 310
Decided On: September 19, 1975
BENCH – CHIEF JUSTICE A. N. RAY, JUSTICES H. R. KHANNA, K. K. MATHEW, M. H. BEG,
V.R. KRISHNA IYER, A. C. GUPTA & S. M. FAZAL ALI
CHIEF JUSTICE RAY (for himself) [Justices Mathew, Beg, Krishna Iyer & Fazal Ali, CONCURRING but wrote their separate opinions]
This appeal is by certificate from the judgment dated 19 April, 1974 of the High Court of
Kerala. This appeal concerns the validity of Rule 13AA of the Kerala State and Subordinate
Services Rules, 1958 hereinafter called the Rules and two orders which are marked P-2 and P-6.
In order to appreciate Rule 13AA, it is necessary to refer to Rules 12, 13A, 13AA. These rules were framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution.
These rules came into existence on 17 December, 1958.
"Promotion" is defined in Rule 2(11) to mean the appointment of a member of any category or grade of a service or a class of service to a higher category or grade of such service or class.
Rule 12 states that where general educational qualifications, special qualifications or special tests are prescribed by the Special Rules of a service for any category, grade or post therein, or in a class thereof, which are not prescribed for a category or grade in such service or class carrying a lower rate of pay and no member in the category or grade carrying the lower rate of pay is eligible for promotion to such category, grade or post a member in such lower category or grade may be promoted to the category or grade carrying the higher rate of pay temporarily until a member of the former category or grade qualified under this rule is available for promotion. A member temporarily promoted under this rule shall not by reason only of such promotion, be regarded as a probationer in the category or grade to which he has been promoted, or be entitled to any preferential claim to future promotion.
Rule 13 speaks of special qualifications. Rule 13 does not concern this appeal.
The two rules which are of importance in this appeal are Rules 13A and 13AA. They are as follows:13A. Special and Departmental Tests- Temporary exemption for promotion.Notwithstanding anything contained in Rule 13, where a pass in a special or departmental test is newly prescribed by the Special Rules of a service for any category, grade or post therein or in any class thereof, a member of a service who has not passed the said test but is otherwise qualified and suitable for appointment to such class, category, grade or post may within 2 years of the introduction of the test be appointed thereto temporarily. If a member so appointed does not pass the test within two years from the date of introduction of the said test or when the said test also involves practical training within two years after the first chance to undergo such training he shall be reverted to the class, category or grade or post from which he was appointed and shall not again be eligible for appointment under this rule:
Provided that a person so reverted shall not by reason only of the appointment under this rule be entitled to any preferential claim to future appointment to the class, category, grade or post, as the case may be to which he had been appointed under this rule:
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Provided further that the period of temporary exemption shall be extended by two years in the case of a person belonging to any of the scheduled castes or scheduled tribes. Provided also that this rule shall not be applicable to tests prescribed or purposes of promotion of the executive staff below the rank of Sub-Inspectors belonging to the Police Department.
13AA. Notwithstanding anything contained in these rules, the Government may, by order, exempt for a specified period, any member or members, belonging to a
Scheduled Caste or a Scheduled Tribe, and already in service, from passing the tests referred to in Rule 13 or Rule 13A of the said Rules.
Provided that this rule shall not be applicable to tests prescribed for purposes of promotion of the executive staff below the rank of Sub-Inspectors belonging to the Police Department.
It is necessary to state here that the third proviso to Rule 13A and the proviso to Rule 13AA were introduced with effect from 12 October, 1973. Rule 13AA was introduced with effect from
13 January, 1972. Exhibit P-2 an order dated 13 January, 1972. The order is made by the Governor.
The order refers to a memorandum dated 19 June, 1971 from the President, Kerala Harijan
Samskarika Kshema Samithy, State Committee, Trivandrum and a letter dated 13 November, 1971 from the Secretary, Kerala Public Service Commission, The order is as follows :The President, Kerala Harijan Samskarika Kshema Samithy, Trivandrum has brought to the notice of Government that a large number of Harijan employees are facing immediate reversion from their posts for want of test qualifications and has therefore requested that all Scheduled Castes and Scheduled Tribes employees may be granted temporary exemption from passing the obligatory departmental tests for a period of two years with immediate effect.
(2) Government have examined the matter in consultation with the Kerala Public
Service Commission and are pleased to grant temporary exemption to members already in service belonging to any of the Scheduled Castes and Scheduled Tribes from passing all tests (unified and special or departmental tests) for a period of two years.
(3) The benefit of the above exemption will be available to those employees belonging to Scheduled Castes and Scheduled Tribes who are already enjoying the benefits of temporary exemption from passing newly prescribed tests under
General Rule 13A. In their case, the temporary exemption will expire only on the date of expiry of the temporary exemption mentioned in para (2) above or on the date of expiry of the existing temporary exemption, whichever is later.
(4) This order will take effect from the date of the order.
Exhibit P-6 is an order dated 11 January 1974. It is an order made by the Governor. The order is as follows:Government are pleased to order that the period of temporary exemption granted to Scheduled Castes and Scheduled Tribes in the G.O. read above from passing all tests (unified and special or departmental tests) be extended from 13-1-1974 to cover a period during which two tests are held by the Public Service
Commission and results thereof published so that each individual gets two chances to appear. Government also order that these categoriess of employees will not be given any further extension of time to acquire the test qualifications.
Purusuant to Rule 13AA which came into force on 13 January, 1972, the order Exhibit P-2 was passed on 13 January, 1972 granting temporary exemption to members already in service belonging to any of the Scheduled Castes and Scheduled Tribes from passing all tests (unified and special or departmental tests) for a period of two years. The exemption granted by Exhibit P-2 in almost all cases would have expired on 12 January, 1974.
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The other impugned order i.e., Exhibit P-6 which was passed on 11 January, 1974 gave further exemption to members of Scheduled Castes and Tribes from 13 January, 1974 from passing tests to cover a period during which two tests would be held by the Public Service Commission and results thereof published so that each individual would get two chances to appear within that period. The Government also ordered that these categories of employees would not be given any further extension of time to acquire the test qualifications.
On the basis of these exemption orders, several promotions have been effected. The respondent alleged in the writ, petition that 12 Lower Division Clerks who were members of Scheduled Castes and Scheduled Tribes were promoted without test qualification The further allegation is that by an order dated 15 June, 1972, 19 Lower Division Clerks belonging to Scheduled Castes and Tribes were promoted as Upper Division Clerks of which 5 were unqualified Scheduled Castes and
Scheduled Tribes members and 14 were qualified Scheduled Castes and Scheduled Tribes members. By order dated 19 September, 1972, another 8 promotions of members of Scheduled
Castes and Tribes were ordered of which only two were qualified and the remaining six were unqualified. By another order dated 31 October, 1972, 7 Scheduled Castes and Scheduled Tribes members were promoted without qualifying test and one was promoted with the qualifying test.
The grievance of the respondent-petitioner before the High Court was that out of 51 vacancies which arose in the category of Upper Division Clerks in the year 1972, 34 were filled up by
Scheduled Castes members who did not possess qualifications and only 17 were given to qualified persons. The respondent is a Lower Division Clerk working in the Registration Department. For promotion to Upper Division Clerk in that Department on the basis of seniority, the Lower
Division Clerks have to pass (1) Account Test (Lower), (2) Kerala Registration Test and (3) Test in the manual of office procedure. The respondent 's grievance is that in view of certain concessions given to members of Scheduled Castes and Scheduled Tribes, they were able to obtain promotions earlier than the respondent, though the members of the Scheduled Castes and Scheduled Tribes who were promoted had not passed the tests.
The respondent in the writ petition filed in the High Court asked for a declaration that Rule
13AA is unconstitutional and a mandamus for compelling the State to forbear from giving effect to order dated 13 January, 1972 marked Exhibit P-2. The respondent by an affidavit asked for a similar order that Exhibit P-6 dated 11 January 1974 be set aside.
The respondent 's contentions in the High Court were that Rule 13AA of the Service Rules and
Exhibits P-2, P-6 and Exhibit P-7 which was another order dated 31 October, 1972 and all orders of promotion made thereunder were violative of Articles 16(1) and 16(2). The High Court upheld the contentions of respondent No. 1.
The contention of the State is that the impugned rules and orders are not only legal and valid but also support a rational classification under Article 16(1).
The contentions on behalf of respondent No. 1 are these. First, Article 16 is a specific application of Article 14 in matters relating to employment or appointment to any service in the
State. Clauses (1) and (2) of Article 16 give effect to equality before law guaranteed by Article 14 and to prohibition against discrimination guaranteed by Article 15(1). In other words, Article 16(1) is absolute in terms guaranteeing equality of opportunity to every individual citizen seeking employment or appointment Emphasis is placed on similar opportunity and equal treatment for seeking employment or appointment. Second, matters relating to employment in Article 16(1) include all matters in relation to employment both prior and subsequent to the employment and form part of the terms and conditions of service. Equal opportunity is to be given for appointment, promotion, termination of employment and payment of pension and gratuity. Third, the
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abridgement of equality guaranteed by Article 16(1) is only to the extent curtailed by Article 16(4).
Apart from Article 16(4), the right guaranteed under Article 16(1) cannot be curtailed Article 16(4) is, in substance, an exception to rights guaranteed by Article 16(1) and (2). Fourth, Article 16(4) does not cover the entire field occupied by Article 16(1) and (2). Some of the matters relating to employment in respect of which equality of opportunity has been guaranteed by Article 16(1) and
(2) do not fall within the mischief of non obstante clause in Article 16(4). To illustrate, Clauses
(1) and (2) of Article 16 do not prohibit the prescription of reasonable rules for selection to any employment or appointment in office. Any provision as to the qualification for employment or appointment in office reasonably fixed and applicable to all citizens would be consistent with the doctrine of equality of opportunity in Article 16(1). Reasonable qualification of employment for the purpose of efficiency of service is justified. Fifth, Rule 13AA is violative of Article 16(1) and
(2). The impeached Exhibits fall within the same mischief. There is no scope for dealing with
Scheduled Castes and Scheduled Tribes different from other backward classes. Exemption from qualification necessary for promotion is not conducive to the maintenance of efficiency of administration and violates not only Article 335 of the Constitution but also Article 16(1).
Before the introduction of the Kerala State and Subordinate Services Rules, 1958 on 17
December, 1958 and also the formation of Kerala State on 1 Nov., 1956, the Travancore-Cochin
Government had issued orders on 14 June, 1956 directing that the standard of qualification should be lower for members of Scheduled Castes arid Scheduled Tribes than compared to others in the matter of examinations relating to various tests. By Government order dated 27 June, 1958, it was directed that the period of exemption for passing tests be extended by two years in the case of
Scheduled Castes and Scheduled Tribes. Again by Government order dated 2 January, 1961, the period of exemption to Scheduled Castes and Scheduled Tribes was further extended to 3 years.
By another Government order dated 14 January, 1963, a unified account test (lower) and a test in office procedure were introduced replacing the old tests and as this was treated as a new test, all persons who were formerly in Travancore-Cochin or Madras Service were given two years time to pass the test and members of the Scheduled Castes and Scheduled Tribes were given extra time in accordance with the orders earlier mentioned. A circular was issued on 9 February, 1968 granting 7 years ' time from 14 January, 1963 to members of the Scheduled Castes and Scheduled
Tribes to pass the unified tests. This period was to expire on 14 January, 1970. On 1 '3 January,
1970, an order was passed extending the time for another year upto 14 January, 1971. On 14
January, 1971 another Government order was issued extending the period by another year.
It was brought to the notice of the Government that large number of Government servants belonging to Scheduled Castes arid Scheduled Tribes were unable to get their promotion because of want of test qualifications. In order to give relief to the Scheduled Castes and Scheduled Tribes, the Government incorporated Rule 13AA which enabled the Government to grant exemption to members of Scheduled Castes and Scheduled Tribes for a specified period. On 13 January, 1972 exemption from passing the tests was granted to members of Scheduled Castes and Scheduled
Tribes for two years. On 11 January, 1974 order was made under Rule 13AA giving members of
Scheduled Castes and Scheduled Tribes exemption from passing the tests for the period of two tests to be conducted after the order dated 11 January, 1974.
The criterion for promotion of Lower Division Clerks to Upper Division Clerks is senioritycum-merit qualification. For want of test qualification a large number of Lower Division Clerks belonging to Scheduled Castes and Scheduled Tribes were passed over. It is because of the aforesaid Government order dated 1 '3 January, 1972 marked Exhibit P-2 that promotions were made according to seniority-cum-merit qualification. The larger share went to the members of the
Scheduled Castes and Scheduled Tribes because they were senior hands. After the issue of the order dated 13 January, .1972, 34 out of 51 Lower Division Clerks who were promoted belonged to the Scheduled Castes and Scheduled Tribes. These 34 persons were given temporary exemption
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from passing the departmental tests. It also appears that these 34 members of Scheduled Castes and Scheduled Tribes have become senior-most in the lower cadre.
Articles 14, 15 and 16 form part of a string of Constitutional guaranteed rights. These rights supplement each other. Article 16 which ensures to all citizens equality of opportunity in matters relating to employment is an incident of guarantee of equality contained in Article 14. Article 16(1) gives effect to Article 14. Both Articles 14 and 16(1) permit reasonable classification having a nexus to the objects to be achieved. Under Article 16 there can be a reasonable classification of the employees in matters relating to employment or appointment.
... The crux of the matter is whether Rule 13AA and the two orders Exhibits P-2 and P-6 are unconstitutional violating Article 16(1). Article 16(1) speaks of equality of opportunity in matters relating to employment or appointment under the State. The impeached Rule and orders relate to promotion from Lower Division Clerks to Upper Division Clerks. Promotion depends upon passing the test within two years in all cases and exemption is granted to members of Scheduled
Castes and Scheduled Tribes for a longer period namely, four years. If there is a rational classification consistent with the purpose for which such classification is made equality is not violated. The categories of classification for purposes of promotion can never be closed on the contention that they are all members of the same cadre in service. If classification is made on educational qualifications for purposes of promotion or if classification is made on the ground that the persons are not similarly circumstanced in regard to their entry into employment, such classification can be justified. Classification between direct recruits and promotees for purposes of promotion has been held to be reasonable in C. A. Rajendran v. Union of India, (1968) II LLJ
407 (SC).
The respondent contended that apart from Article 16(4) members of Scheduled Castes and
Scheduled Tribes were not entitled to any favoured treatment in regard to promotion. In T.
Devadasan v. Union of India, (1965) II LLJ 560 (SC) reservation was made for backward classes.
The number of reserved seats which were not filled up was carried forward to the subsequent year.
On the basis of “carry forward” principle it was found that such reserved seats might destroy equality. To illustrate, if 18 seats were reserved and for two successive years the reserved seats were not filled and in the third year there were 100 vacancies the result would be that 54 reserved seats would be occupied out of 100 vacancies. This would destroy equality. On that ground "carry forward" principle was not sustained in Devadasan. The same view was taken in the case of M. R.
Balaji v. State of Mysore, AIR 1963 SC 649. It was said that not more than 50 per cent should be reserved for backward classes. This ensures equality. Reservation is not a Constitutional compulsion but is discretionary according to the ruling of this Court in Raiendran 's case, (1968)
II LLJ 407 (SC).
There is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection (State of Mysore v. V. P. Narasinga Rao, (1968) II LLJ 120 (SC)).
This equality of opportunity need not be confused with absolute equality. Article 16(1) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. In regard to employment, like other terms and conditions associated with and incidental to it, the promotion to a selection post is also included in the matters relating to employment and even in regard to such a promotion to a selection post all that Article 16(1) guarantees is equality of opportunity to all citizens. Article 16(1) and (2) gives effect to equality before law guaranteed by Article 14 and to the prohibition of discrimination guaranteed by Article
15(1). Promotion to selection post is covered by Article 16(1) and (2).
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The power to make reservation, which is conferred on the State, under Article 16(4) can be exercised by the State in a proper case not only by providing for reservation of appointments but also by providing for reservation of selection posts. In providing for reservation of appointments or posts under Article 16(4) the State has to take into consideration the claims of the backward classes consistently with the maintenance of the efficiency of administration. It must not be forgotten that the efficiency of administration is of such paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration.
(General Manager, S. Rly. v. Rangachari, (1970) II LLJ 289 (SC)). The present case is not one of reservation of posts by promotion
Under Article 16(1) equality of opportunity of employment means equality as between members of the same class of employees and not equality between members of separate, independent class. The Road-side Station Masters and Guards are recruited separately, trained separately and have separate avenues of promotion. The Station Masters claimed equality of opportunity for promotion vis-à-vis the guards on the ground that they were entitled to equality of opportunity. It was said the concept of equality can have no existence except with reference to matters which are common as between individuals, between whom equality is predicated. The
Roadside Station Masters and Guards were recruited separately. Therefore, the two form distinct and separate classes and there is no scope for predicating equality or inequality of opportunity in matters of promotion. (See All India Station Masters and Asst. Station Masters ' Association v.
General Manager, Central Rlys, [1960] 2 SCR 311). The present case is not to create separate avenues of promotion for these persons.
The rule of parity is the equal treatment of equals in equal circumstances. The rule of differentiation is enacting laws differentiating between different persons or things in different circumstances. The circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different sets of circumstances. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons require special treatment. The legislature understands and appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds. The rule of classification is not a natural and logical corollary of the rule of equality, but the rule of differentiation is inherent in the concept of equality. Equality means parity of treatment under parity of conditions. Equality does not connote absolute equality. A classification in order to be
Constitutional must rest upon distinctions that are substantial and not merely illusory. The test is whether it has a reasonable basis free from artificiality and arbitrariness embracing all and omitting none naturally falling into that category.
…The rule of equality within Articles 14 and 16(1) will not be violated by a rule which will ensure equality of representation in the services for unrepresented classes after satisfying the basic needs of efficiency of administration. Article 16(2) rules out some basis of classification including race, caste, descent, place of birth etc. Article 16(4) clarifies and explains that classification on the basis of backwardness does not fall within Article 16(2) and is legitimate for the purposes of
Article 16(1). If preference shall be given to a particular under-represented community other than a backward class or under-represented state in an All India Service such a rule will contravene
Article 16(2). A similar rule giving preference to an under-represented backward community is valid and will not contravene Articles 14, 16(1) and 16(2). Article 16(4) removes any doubt in this respect Page 144 of 610
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The principle of equality is applicable to employment at all stages and in all respects, namely, initial recruitment promotion, retirement, payment of pension and gratuity. With regard to promotion the normal principles are either merit-cum-seniority or seniority-cum-merit, Senioritycum-merit means that given the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority. This will not violate
Articles 14, 16(1) and 16(2). A rule which provides that given the necessary requisite merit, a member of the backward class shall get priority to ensure adequate representation will not similarly violate Article 14 or Article 16(1) and (2). The relevant touchstone of validity is to find out whether the rule of preference secures adequate representation for the unrepresented backward community or goes beyond it.
The classification of employees belonging to Scheduled Castes and Scheduled Tribes for allowing them an extended period of two years for passing the special tests for promotion is a just and reasonable classification having rational nexus to the object of providing equal opportunity for all citizens in matters relating to employment or appointment to public office. Granting of temporary exemptions from special tests to the personnel belonging to Scheduled Castes and
Scheduled Tribes by executive orders has been an integral feature of the service conditions in
Kerala from its very inception on 1 November, 1956. That was the pattern in Travancore-Cochin
State. The special treatment accorded to the Scheduled Castes and Scheduled Tribes in
Government service which had become part and parcel of the conditions of service over these long periods amply justify the classification of the members of the Scheduled Castes and Scheduled
Tribes as a whole by the impugned rule and orders challenged. What was achieved by the
Government orders is now given a statutory basis by Rule 13AA. The historical background of these rules justifies the classification of the personnel of the Scheduled Castes and Scheduled
Tribes in service for the purpose of granting them exemption from special tests with a view to ensuring them the equality of treatment and equal opportunity in matters of employment having regard to their backwardness and under representation in the employment of the State.
…The High Court was wrong in basing its conclusion that the result of application of the impeached Rule and the orders is excessive and exorbitant namely that out of 51 posts, 34 were given to the members of the Scheduled Castes and Scheduled Tribes. The promotions made in the services as a whole are nowhere near 50 per cent of the total number of posts. The Scheduled
Castes and Scheduled Tribes constitute 10 per cent of the State 's population. Their share in the gazetted services of the State is said to be 2 per cent namely 184 out of 8,780. Their share in the non-gazetted appointments is only 7 per cent namely 11,437 out of 1,62,784. It is, therefore, correct that Rule 13AA and the orders are meant to implement not only the direction under Article 335 but also the Directive Principle under Article 46.
Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste.
In Bhaiyalal v. Harikishan Singh, [1965] 2 SCR 877 this Court held that an enquiry whether the appellant there belonged to the Dohar caste which was not recognised as a Scheduled Caste and his declaration that he belonged to the Chamar caste which was a Scheduled Caste could not be permitted because of the provisions contained in Article 341. No Court can come to a finding that any caste or any tribe is a Scheduled Caste or Scheduled Tribe. Scheduled Caste is a caste as notified under Article 366(25). A notification is issued by the President under Article 341 as a result of an elaborate enquiry. The object of Article 341 is to provide protection to the members of Scheduled Castes having regard to the economic and educational backwardness from which they suffer.
Our Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. The claims of members of backward classes require adequate representation in legislative and executive bodies. If members of
Scheduled Castes and Tribes, who are said by this Court to be backward classes, can maintain
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minimum necessary requirement of administrative efficiency, not only representation but also preference may be given to them to enforce equality and to eliminate inequality. Articles 15(4) and 16(4) bring out the position of backward classes to merit equality. Special provisions are made for the advancement of backward classes and reservations of appointments and posts for them to secure adequate representation. These provisions will bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). The basic concept of equality is equality of opportunity for appointment. Preferential treatment for members of backward classes with due regard to administrative efficiency alone can mean equality of opportunity for all citizens. Equality under
Article 16 could not have a different content from equality under Article 14. Equality of opportunity for unequals can only mean aggravation of inequality. Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reasons means rational classification for differential treatment having nexus to the constitutionally permissible object. Preferential representation for the backward classes in services with due regard to administrative efficiency is permissible object and backward classes are a rational classification recognised by our Constitution. Therefore, differential treatment in standards of selection are within the concept of equality.
A rule in favour of an under-represented backward community specifying the basic needs of efficiency of administration will not contravene Articles 14, 16(1) and 16(2). The rule in the present case does not impair the test of efficiency in administration inasmuch as members of
Scheduled Castes and Tribes who are promoted have to acquire the qualification of passing the test. The only relaxation which is done in their case is that they are granted two years more time than others to acquire the qualification. Scheduled Castes and Tribes are descriptive of backwardness. It is the aim of our Constitution to bring them up from handicapped position to improvement. If classification is permissible under Article 14 it is equally permissible under
Article 16, because both the Articles lay down equality. The quality and concept of equality is that if persons are dissimilarly placed they cannot be made equal by having the same treatment.
Promotion of members of Scheduled Castes and Tribes under the impeached rules and orders is based on the classification with the object of securing representation to members of Scheduled
Castes and Tribes. Efficiency has been kept to view and not sacrificed.
All legitimate methods are available for equality of opportunity in services under Article 16(1).
Article 16(1) is affirmative whereas Article 14 is negative in language. Article 16(4) indicates one of the methods of achieving equality embodied in Article 16(1). Article 16(1) using the expression
"equality" makes it relatable to all matters of employment from appointment through promotion and termination to payment of pension and gratuity. Article 16(1) permits classification on the basis of object and purpose of law or State action except classification involving discrimination prohibited by Article 16(2). Equal protection of laws necessarily involves classification. The validity of the classification must be adjudged with reference to the purpose of law. The classification in the present case is justified because the purpose of classification is to enable members of Scheduled Castes and Tribes to find representation by promotion to a limited extent.
From the point of view of time a differential treatment is given to members of Scheduled Castes and Tribes for the purpose of giving them equality consistent with efficiency.
For the foregoing reasons, I uphold the validity of Rule 13AA and Exhibits P-2 and P-6. The appeal is accepted. The judgment of the High Court is set aside. Parties will pay and bear their own costs.
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JUSTICE KHANNA (for himself, DISSENTING) [Justice Gupta CONCURRING but wrote his separate opinion] Whether the State Government can grant exemption for specified period to employees belonging only to the scheduled castes or scheduled tribes from passing departmental test for the purpose of promotion under Clause (1) of Article 16 of the Constitution is the important question which arises for determination in this appeal filed on certificate by the State of Kerala and the Inspector General of Registration against the judgment of the Kerala High Court. The
High Court answered the question in the negative in a petition filed by N. M. Thomas, lower division clerk of the Registration Department of the Kerala State, respondent No. 1, under
Article 226 of the Constitution.
… Article 14 of the Constitution enshrines the principle of equality before the law. Article
15 prohibits discrimination against citizens on grounds only of religion, race, caste, sex, place of birth or any of them. Article 16 represents one facet of the guarantee of equality. According to this Article, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. No citizen, it is further provided, shall on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. Articles 14, 15 and 16 underline the importance which the framers of our Constitution attached to ensuring equality of treatment. Such equality has a special significance in the matter of public employment. It was with a view to prevent any discrimination in that field that an express provision was made to guarantee equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
At the same time the framers of the Constitution were conscious of the backwardness of large sections of the population. It was also plain that because of their backwardness those sections of the population would not be in a position to compete with advanced sections of the community who had all the advantages of affluence and better education. The fact that the doors of competition were open to them would have been a poor consolation to the members of the backward classes because the chances of their success in the competition were far too remote on account of the inherent handicap and disadvantage from which they suffered. The result would have been that, leaving aside some exceptional cases, the members of backward classes would have hardly got any representation in jobs requiring educational background. It would have thus resulted in virtually repressing those who were already repressed. The framers of the Constitution being conscious of the above disadvantage from which backward classes were suffering enjoined upon the State in Article 46 of the Constitution to promote with special care educational and economic interests of the weaker sections of the people, in particular of the scheduled castes and scheduled tribes, and also protect them from social injustice and all forms of exploitation.
To give effect to that objective in the field of public employment, a provision was made in
Clause (4) of Article 16 that nothing in that article would prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, was not adequately represented in the services under the State. Under the above clause, it is permissible for the State, in case it finds the representation of any backward class of citizens in the State services to be not adequate, to make provision for the reservation of appointments or posts in favour of that backward class of citizens. The reservation of seats for the members of the backward classes was not, however, to be at the cost of efficiency. This fact was brought out in Article 335, according to which the claims of the members of the scheduled castes and the scheduled tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.
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In view of that it is not permissible to waive the requirement of minimum educational qualification and other standards essential for the maintenance of efficiency of service.
It is further plain that the reservation of posts for a section of population has the effect of conferring a special benefit on that section of the population because it would enable members belonging to that section to get employment or office under the State which otherwise in the absence of reservation they could not have got. Such preferential treatment is plainly a negation of the equality of opportunity for all citizens in matters relating to employment or appointment to an office under the State. Clause (4) of Article 16 has therefore, been construed as a proviso or exception to Clause (1) of that article …
… The essential object of various rules dealing with appointment to posts under the State and promotion to higher posts is to ensure efficiency of service. Classification upheld under
Clause (1) of Article 16 subserved and in no case militated against the attainment of that object.
Exemption granted to a class of employees, even though for a limited period, from passing the departmental tests which have been prescribed for the purpose of promotion would obviously be subversive of the object to ensure efficiency of service. It cannot be disputed that departmental tests are prescribed with a view to appraise and ensure efficiency of different employees. To promote employees even though they have not passed such efficiency test can hardly be consistent with the desideratum of ensuring efficiency in administration exclusion of diploma holders was held to be not violative of Articles 14 and 16 of the Constitution. It would thus appear that in each of the above cases the Court was concerned with two categories of employees, each one of which category constituted a separate and distinct class. Differential treatment for those classes was upheld in the context of their educational and other qualifications and because of the fact that they constituted distinct and separate classes. Not much argument is needed to show that a rule requiring that an official must possess a degree in engineering before he can be promoted to the post of executive engineer is conceived in the interest of efficiency of service. A classification based upon that consideration is obviously valid. Likewise, classification based upon the consideration that one category of employees are direct recruits while others are promotees, is permissible classification because the two categories of employees constitute two separate and distinct classes. The same is true of roadside station masters and guards. Classification of employees in each of these cases was linked with the nature of their initial employment or educational qualifications and had nothing to do with the fact that they belonged to any particular section of the population. A classification based upon the first two factors was upheld because it was conceived in the interest of efficiency of service and because they constituted two different classes in view of the fact that they were initially appointed to posts of different categories. Such classification does not impinge upon the rule of equality of opportunity. As against that, a classification based upon the consideration that an employee belongs to a particular section of the population with a view to accord preferential treatment for promotion is clear violation of equality of opportunity enshrined in Clause (1) of Article 16. In no case has the Court ever accepted and upheld under
Article 16(1) classification and differential treatment for the purpose of promotion among employees who possessing the same educational qualifications were initially appointed as in the present case to the same category of
Much has been made of the fact that exemption from passing departmental tests granted to members of scheduled castes and scheduled tribes is not absolute but only for a limited period.
This fact, in our opinion, would not lend Constitutionality to the impugned rule and orders.
Exemption granted to a section of employees while being withheld from the remaining
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employees has obvious element of discrimination between those to whom it is granted and those from whom it is withheld. If the passing of departmental tests is an essential condition of promotion, it would plainly be invidious to insist upon compliance with that condition in the case of one set of employees and not to do so in the case of other. The basic question is whether exemption is constitutionally permissible. If the answer to that question be in the negative, the fact that exemption is for a limited period would not make any material difference. In either event the vice of discrimination from which exemption suffers would contaminate it and stamp it with unconstitutionally. Exemption for a limited period to be constitutionally valid cannot be granted to one set of employees and withhold from the other.
What Clause (1) of Article 16 ensures is equality of opportunity for all citizens as individuals in matters relating to employment or appointment to any office under the State. It applies to them all, the least deserving as well as the most virtuous. Preferential and favoured treatment for some citizens in the matter of employment or appointment to any office under the
State would be antithesis of the principle of equality of opportunity. Equality of opportunity in matters of employment guaranteed by Clause (1) of Article 16 is intended to be real and effective. It is not something abstract or illusory. It is a command to be obeyed, not one to be defied or circumvented. It cannot be reduced to shambles under some cloak. Immunity or exemption granted to a class, however limited, must necessarily have the effect of according favoured treatment to that class and of creating discrimination against others to whom such immunity or exemption is not granted. Equality of opportunity is one of the corner stones of our Constitution. It finds a prominent mention in the preamble to the Constitution and is one of the pillars which gives support and strength to the social, political and administrative edifice of the nation. Privileges, advantages, favours, exemptions, concessions specially ear-marked for sections of population run counter to the concept of equality of opportunity, they indeed eat into the very vitals of that concept. To countenance classification for the purpose of according preferential treatment to persons not sought to be recruited from different sources and in cases not covered by Clause (4) of Article 16 would have the effect of eroding, if not destroying altogether, the valued principle of equality of opportunity enshrined in Clause (1) of Article 16.
The proposition that to overdo classification is to undermine equality is specially true in the context of Article 16(1). To introduce fresh notions of classification in Article 16(1), as is sought to be done in the present case, would necessarily have the effect of vesting the State under the garb of classification with power of treating sections of population as favoured classes for public employment. The limitation imposed by Clause (2) of Article 16 may also not prove very effective because, as has been pointed out during the course of arguments, that clause prevents discrimination on grounds only of religion, race, castes, sex, descent, place of birth, residence or any of them. It may not be difficult to circumvent that clause by mentioning grounds other than those mentioned in Clause (2).
To expand the frontiers of classification beyond those which have so far been recognised under Clause (1) of Article 16 is bound to result in creation of classes for favoured and preferential treatment for public employment and thus erode the concept of equality of opportunity for all citizens in matters relating to employment under the State.
… The liberal approach that may sometimes have been adopted in upholding classification under Article 14 would in the very nature of filings be not apt in the context of Article 16 when we keep in view the object underlying Article 16. Article 14 covers a very wide and general field of equality before the law and the equal protection of the laws. It is, therefore, permissible to cover within its ambit manifold classifications as long as they are reasonable and have a rational connection with the object thereof. As against that, Article 16 operates in the limited area of equality of opportunity for all citizens in matters relating to employment or appointment to an office under the State. Carving out classes of citizens for favoured treatment in matters
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of public employment, except in cases for which there is an express provision contained in
Clause (4) of Article 16, would as already pointed out above in the very nature of things run counter to the concept underlying Clause (1) of Article 16.
The matter can also be looked at from another angle. If it was permissible to accord favoured treatment to members of backward classes under Clause (1) of Article 16, there would have been no necessity of inserting Clause (4) in Article 16. Clause (4) in Article 16 in such an event would have to be treated as wholly superfluous and redundant. The normal rule of interpretation is that no provision of the Constitution is to be treated as redundant and superfluous. The Court would, therefore, be reluctant to accept a view which would have the effect of rendering Clause (4) of Article 16 redundant and superfluous.
This Court in the case of State of Madras v. Champakam Dorairaian, [1951] 2 SCR 525 unequivocally repelled the argument the effect of which would have been to treat Clause (4) of
Article 16 to be wholly unnecessary and redundant. Question which arose for consideration in that case was whether a Communal G. G. fixing percentage of seats for different sections of population for admission in the engineering and medical colleges of the State of Madras contravened the fundamental rights. It was held that the Communal G. O. by which percentage of seats was apportioned contravened Article 29(2) of the Constitution. A seven Judge Bench of this Court in that case referred to Clause (4) of Article 16 of the Constitution and observed:
If the argument founded on Article 46 were sound then Clause (4) of Article 16 would have been wholly unnecessary and redundant. Seeing, however, that Clause
(4) was inserted in Article 16, the omission of such an express provision from
Article 29 cannot but be regarded as significant. It may well be that the intention of the Constitution was not to introduce at all communal considerations in matters of admission into any educational institution maintained by the State or receiving aid out of State funds. The protection of backward classes of citizens may require appointment of members of backward classes in State services and the reason why power has been given to the State to provide for reservation of such appointments for backward classes may under those circumstances be understood. That consideration, however, was not obviously considered necessary in the case of admission into an educational institution and that may well be the reason for the omission from Article 29 of a clause similar to Clause (4) of Article 16.
After the above decision of this Court, Clause (4) of Article 15 was added in the Constitution by the Constitution (First Amendment) Act, 1951 and the same reads as under:
Nothing in this article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes.
If the power of reservation of seats for backward classes was already contained in Clause
(1) of Article 15, the decision in the above-mentioned case would in the very nature of things have been different and there would have been no necessity for the introduction of Clause (4) in Article 15 by means of the Constitution (First Amendment) Act. …
… The matter can also be looked at from another angle. Departmental tests are prescribed to ensure standards of efficiency for the employees. To promote 34 out of 51 persons although they have not passed the departmental tests and at the same time not to promote those who have passed the departmental tests can hardly be conducive to efficiency-There does not, therefore, appear to be any infirmity in the finding of the High Court that the impugned promotions are also violative of Article 335 of the Constitution.
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I may state that there is no dispute so far as the question is concerned about the need to make every effort to ameliorate the lot of backward classes, including the members of the scheduled castes and the scheduled tribes. We are all agreed on that. The backwardness of those sections of population is a stigma on our social set up and has got to be erased as visualized in
Article 46 of the Constitution. It may also call for concrete acts to atone for the past neglect and exploitation of those classes with a view to bring them on a footing of equality, real and effective, with the advanced sections of the population. The question with which we are concerned, however, is whether the method which has been adopted by the appellants is constitutionally permissible under Clause (1) of Article 16. The answer to the above question, in my opinion, has to be in the negative. Apart from the fact that the acceptance of the appellants ' contention would result in undermining the principle of equality of opportunity enshrined in Clause (1) of Article 16, it would also in effect entail overruling of the view which has so far been held by this Court in the cases of Champakam [1951] 2 SCR 525; Rangachari
(1970) II LLJ 289 (SC) and Devadasan (1965) II LLJ 560 SC.
I find no sufficient ground to warrant such a course. The State, in my opinion, has ample power to make provision for safeguarding the interest of backward classes under Clause (4) of
Article 16 which deals with reservation of appointments or posts for backward classes not adequately represented in the services under the State. Inaction on the part of the State under
Clause (4) of Article 16 cannot, in my opinion, justify strained construction of Clause (1) of
Article 16. We have also to guard against allowing our supposed zeal to safeguard the interests of members of scheduled castes and scheduled tribes to so sway our mind and warp our judgment that we drain off the substance of the contents of Clause (1) of Article 16 and whittle down the principle of equality of opportunity in the matter of public employment enshrined in that clause in such a way as to make it a mere pious wish and teasing illusion. The ideals of supremacy of merit, the efficiency of services and the absence of discrimination in sphere of public employment would be the obvious casualties if we once countenance inroads to be made into that valued principle beyond those warranted by Clause (4) of Article 16.
The appeal is dismissed with costs.
INDRA SAWHNEY V. UNION OF INDIA
AIR 1993 SC 477, 1992 Supp. (3) SCC 217
Decided On: November 16, 1992
BENCH – CHIEF JUSTICE M. H. KANIA, JUSTICES M. N. VENKATACHALIAH, S. RATNAVEL
PANDIAN, DR. T. K. THOMMEN, A. M. AHMADI, KULDIP SINGH, P. B. SAWANT, R. M. SAHAI
& B.P. JEEVAN REDDY
JUSTICE JEEVAN REDDY (for the Chief Justice, Justices Venkatachaliah, Ahmadi and himself)
[Justices Pandian & Sawant CONCURRING but wrote their separate opinions]
… Equality has been and is the single greatest craving of all human beings at all points of time. It has inspired many a great thinker and philosopher. All religious and political schools of thought swear by it, including the Hindu religious thought, if one looks to it ignoring the later crudities and distortions. Liberty of thought, expression, belief, faith and worship has equally been an abiding faith with all human beings, and at all times in this country in particular.
Fraternity assuring the dignity of the individual has a special relevance in the Indian context, as this Judgment will illustrate in due course.
The doctrine of equality has many facets. It is a dynamic, and an evolving concept. Its main facets, relevant to Indian Society, have been referred to in the preamble and the articles under
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the sub-heading "Right to equality"- (Articles 14 to 18). In short, the goal is "equality of status and of opportunity". Articles 14 to 18 must be understood not merely with reference to what they say but also in the light of the several articles in Part IV (Directive Principles of State
Policy). "Justice, Social, Economic and Political", is the sum total of the aspirations incorporated in part IV.
Article 14 enjoins upon the state not to deny to any person "equality before the law" or "the equal protection of the laws" within the territory of India. Most constitutions speak of either
"equality before the law" or "the equal protection of the laws", but very few of both. Section 1 of the XIV. Amendment to the U.S. Constitution uses only the latter expression while the
Austrian Constitution (1920), the Irish Constitution (1937) and the West German Constitution
(1949) use the expression "equal before the law". (Article 7 of the Universal Declaration of
Human Rights, 1948, of course, declares that "all are equal before the law and are entitled without any discrimination to equal protection of the law".) The content and sweep of these two concepts is not the same though there may be much in common. The content of the expression "equality before the law" is illustrated not only by Articles 15 to 18 but also by the several articles in Part IV, in particular, Articles 38, 39, 39A, 41 and 46. Among others, the concept of equality before the law contemplates minimising the inequalities in income and eliminating the inequalities in status, facilities and opportunities not only amongst individuals but also amongst groups of people, securing adequate means of livelihood to its citizens and to promote with special care the educational and economic interests of the weaker sections of the people, including in particular the Scheduled Castes and Scheduled Tribes and to protect them from social injustice and all forms of exploitation. Indeed, in a society where equality of status and opportunity do not obtain and where there are glaring inequalities in incomes, there is no room for equality - either equality before law or equality in any other respect.
The significance attached by the founding fathers to the right to equality is evident not only from the fact that they employed both the expressions ‘equality before the law’ and ‘equal protection of the laws’ in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18. Through Article 15 they declared in positive terms that the state shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them. With a view to eradicate certain prevalent undesirable practices it was declared in Clause (2) of Article 15 that no citizen shall on the grounds only of religion, race, caste, sex, place of birth or any of them be subject to any disability, liability, restriction or condition with regard to shops, public restaurants, hotels and place of public entertainment or to the use of well, tanks, bathing ghats, roads and place of public resort maintained wholly or partly out of state funds or dedicated to the use of general public. At the same time, with a view to ameliorate the conditions of women and children a provision was made in Clause (3) that nothing in the said Article shall prevent the state from making any special provision for women and children.
In as much as public employment always gave a certain status and power - it has always been the repository of State power - besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1) expressly declares that in the matter of public employment or appointment to any office under the state, citizens of this country shall have equal opportunity while Clause (2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. At the same time, care was taken to declare in Clause (4) that nothing in the said Article shall prevent the state from making any provision for reservation of appointments or posts in favour of any backward class of citizen which in the opinion of the state is not adequately represented in the services under the state. Article 17 abolishes the untouchability while Article 18 prohibits conferring of any titles (not representing
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military or academic distinction). It also prohibits the citizens of this country from accepting any title from a foreign state.
Article 16 has remained unamended, except for a minor amendment in Clause (3) whereas
Article 15 had Clause (4) inserted in it by the First Amendment Act, 1951. … The other provisions of the Constitution having a bearing on Article 16 are Articles 38, 46 and the set of articles in Part XVI. Clause (1) of Article 38 obligates the State to “strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.”
Clause (2) of Article 38, added by the 44th Amendment Act says, “the State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.”
Article 46 contains a very significant directive to the State. … It is evident that "the weaker sections of the people" do include the "backward class of citizens" contemplated by Article
16(4).
Part XVI of the Constitution contains "special provisions relating to certain classes". The
"classes" for which special provisions are made are, Scheduled Castes, Scheduled Tribes and the Anglo-Indian Community. It also provides for appointment of a Commission to investigate the conditions of and the difficulties faced by the socially and educationally backward classes and to make appropriate recommendations. … Article 338, which has been extensively amended by the Sixty-fifth Amendment Act, provides for establishment of a Commission for the Scheduled Castes and Scheduled Tribes to be known as 'the National Commission for the
Scheduled Castes and Scheduled Tribes '. … Article 335 provides that "the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State." It is obvious that if the claims of even Scheduled Castes and Scheduled Tribes are to be taken into consideration consistently with the maintenance of efficiency of administration, the said admonition has to be respected equally while taking into consideration the claims of other backward classes and other weaker sections.
THE FIRST BACKWARD CLASSES COMMISSION (KALELKAR COMMISSION)
The proceedings of the Constituent Assembly on draft Article (10) disclose a persistent and strident demand from certain sections of the society for providing reservations in their favour in the matter of public employment. While speaking on the draft Article 10(3) [corresponding to Article 16(4)] Dr. Ambedkar had stated, "then we have quite a massive opinion which insists that although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration." It was this demand which was mainly responsible for the incorporation of Clause (4) in Article 16.
As matter of fact, in some of the southern States, reservations in favour of OBCs were in vogue since quite a number of years prior to the Constitution. There was a demand for similar reservations at the center. In response to this demand and also in realisation of its obligation to provide for such reservations in favour of backward sections of the society, the Central
Government appointed a Backward Class Commission under Article 340 of the Constitution on January 29, 1953. The Commission, popularly known as Kaka Kalelkar Commission, was required "to investigate the conditions of socially and educationally backward classes within
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the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove difficulties and to improve their conditions". The Commission submitted its report on March 30, 1955. According to it, the relevant factors to consider while classifying backward classes would be their traditional occupation and profession, the percentage of literacy or the general educational advancement made by them; the estimated population of the community and the distribution of the various communities throughout the state or their concentration in certain areas.
The Commission was also of the opinion that the social position which a community occupies in the caste hierarchy would also have to be considered as well as its representation in Government service or in the Industrial sphere. According to the Commission, the causes of educational backwardness amongst the educationally and backward communities were (i) traditional apathy for education on account of social and environmental conditions or occupational handicaps: (ii) poverty and lack of educational institutions in rural areas and (iii) living in inaccessible areas. The Chairman of the commission, Kaka Kalelkar, however, had second thoughts after signing the report. In the enclosing letter addressed to the President he virtually pleaded for the rejection of the report on the ground that the reservations and other remedies recommended on the basis of caste would not be in the interest of society and country.
He opined that the principle of caste should be eschewed altogether. Then alone, he said, would it be possible to help the extremely poor and deserving members of all the communities. At the same time, he added, preference ought to be given to those who come from traditionally neglected social classes.
The report made by the Commission was considered by the Central Government, which apparently was not satisfied with the approach adopted by the Commission in determining the criteria for identifying the backward classes under Article 15(4). The Memorandum of action appended to the Report of the Commission while placing it on the table of the Parliament [as required by Clause (3) of Article 340] on September 3, 1956, pointed out that the caste system is the greatest hindrance in the way of our progress to egalitarian society and that in such a situation recognition of certain specified castes as backward may serve to maintain and perpetuate the existing distinctions on the basis of caste. The Memorandum also found fault with certain tests adopted by the Commission for identifying the backward classes. It expressed the opinion that a more systematic and elaborate basis has to be evolved for identifying backward classes. Be that as it may, the Report was never discussed by the Parliament.
No meaningful action was taken after 1956 either for constituting another Commission or for evolving a better criteria. Ultimately, on August 14, 1961, the Central Government wrote to ail the State Governments stating inter alia that "while the State Governments have the discretion to choose their own criteria for defining backwardness, in the view of the
Government of India it would be better to apply economic tests than to go by caste." The letter stated further, rather inexplicably, that "even if the Central Government were to specify under
Article 338(3) certain groups of people as belonging to 'other backward classes ', it will still be open to every State Government to draw up its own lists for the purposes of Articles 15 and 16.
As, therefore, the State Governments may adhere to their own lists, any All-India list drawn up by the Central Government would have no practical utility." Various State Governments thereupon appointed Commissions for identifying backward classes and issued orders identifying the socially and educationally backward classes and reserving certain percentage of posts in their favour. So far as the Central services are concerned, no reservations were ever made in favour of other backward classes though made in favour of Scheduled Castes and
Scheduled Tribes.
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THE SECOND BACKWARD CLASSES COMMISSION (MANDAL COMMISSION)
By an Order made by the President of India, in the year 1979, under Article 340 of the
Constitution, a Backward Class Commission was appointed to investigate the conditions of socially and educationally backward classes within the territory of India, which Commission is popularly known as Mandal Commission. The terms of reference of the Commission were:
(i) to determine the criteria for defining the socially and educationally backward classes; (ii) to recommend steps to be taken for the advancement of the socially and educationally backward classes of citizens so identified;
(iii) to examine the desirability or otherwise of making provision for the reservation of appointments or posts in favour of such backward classes of citizens which are not adequately represented in public services and posts in connection with the affairs of the Union or of any State; and
(iv) present to the President a report setting out the facts as found by them and making such recommendations as they think proper.
The Commission was empowered to:(a) obtain such information as they may consider necessary or relevant for their purpose in such form and such manner as they may think appropriate, from the
Central Government, the State Government, the Union Territory Administrations and such other authorities, organisations or individuals as may in the opinion of the Commission, be of assistance to them: and
(b) hold their sittings or the sittings of such sub-committees as they may appoint from amongst their own members of such times and such places as may be determined by, or under the authority of the Chairman.
The report of the Commission was required to be submitted not later than 31st December,
1979, which date was later extended up to December 31st, 1980. It was so submitted.
Chapter-I of the Report deals with the Constitution of First Backward Classes Commission
(Kalelkar Commission), its report, the letter of Kaka Kalelkar to the President, the lack of follow-up action and the letter of the Central Government referred to hereinbefore to State
Governments to draw up their own lists. It also points out certain “internal contradictions” in the Report. Chapter-II deals with the “Status of other backward classes in some States”. It sets out the several provisions relating to reservation in favour of OBCs obtaining in several States and the history of such reservations. Chapter-III is entitled ‘methodology and data base’. It sets out the procedure followed by the Commission and the material gathered by them. Paras 3.1 and 3.2 read thus:
3.1. One important reason as to why the Central Government could not accept the recommendations of Kaka Kalelkar Commission was that it had not worked out objective tests and criteria for the proper classification of socially and educationally backward classes. In several petitions filed against reservation orders issued by some State Governments, the Supreme Court and various High
Courts have also emphasised the imperative need for an empirical approach to the defining of socially and educationally backwardness or identification of Other
Backward Classes.
3.2 The Commission has constantly kept the above requirements in view in planning the scope of its activities. It was to serve this very purpose that the
Commission made special efforts to associate the leading Sociologists, Research
Organisations and Specialised Agencies of the country with every important facet of its activity. Instead of relying on one or two established techniques of enquiry, we tried to caste our net far and wide so as to collect facts and get feed-back from as large an area as possible. A brief account of this activity is given below.
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It then refers to the Seminar held by Department of Anthropology of Delhi University in
March 1979, to the questionnaire issued to all departments of Central Government and to the
State Governments (the proforma are compiled in Vol. II of the Report) the country-wide touring undertaken by the Commission, the evidence recorded by it, the socio-educational field survey conducted by it and other studies and Reports involved in its work. In Chapter-IV the
Commission deals with the interrelationship between social backwardness and caste. It describes how the fourth caste, Shudras, were kept in a state of intellectual and physical subjugation and the historical injustices perpetrated on them. In para 4.5 the Commission states:
"The real triumph of the caste system lies not in upholding the supremacy of the
Brahmin, but in conditioning the consciousness of the lower castes in accepting their inferior status in the ritual hierarchy as a part of the natural order of things…
It was through an elaborate, complex and subtle scheme of scripture, mythology and ritual that Brahminism succeeded in investing the caste system with a moral authority that has been seldom effectively challenged even by the most ardent social reformers."
Chapter-V deals with ‘social dynamics of caste’. In this chapter, the Commission emphasises the fact that notwithstanding public declarations condemning the caste, it has remained a significant basis of action in politics and public life. Reference is made to several caste associations, which have come into being after the Constitution. The concluding part in this Chapter, para 5.17, reads:
The above account should serve as a warning against any hasty conclusion about the weakening of caste as the basis of social organisation of the Hindu society.
The pace of social mobility is no doubt increasing and some traditional features of the caste system have inevitably weakened. But what caste has lost on the ritual front, it has more than gained on the political front. This has also led to some adjustments in the power equation between the high and low castes and thereby accentuated social tensions. Whether these tensions rent the social fabric or the country is able to resolve them by internal adjustments will depend on how understandingly the ruling high castes handle the legitimate aspirations and demands of the historically suppressed and backward classes.
Chapter-VI deals with ‘Social Justice, Merit and Privilege’. It attempts to establish, that merit in an elitist society is not something inherent but is the consequence of environmental privileges enjoyed by the members of higher castes. This is sought to be illustrated by giving an example of two boys - Lallu and Mohan. Lallu is a village boy belonging to a backward class occupying a low social position in the village caste hierarchy. He comes from a poor illiterate family and studies at a village school, where the level of instruction is woeful. On the other hand, Mohan comes from a fairly well-off middle class and educated family, attends one of the good public schools in the city, has assistance at home besides the means of acquiring knowledge through television, radio, magazines and so on. Even though both Lallu and Mohan possess the same level of intelligence, Lallu can never compete with Mohan in any open competition because of the several environmental disadvantages suffered by him.
Chapter-VII deals with ‘Social justice, Constitution and the law’. It refers to the relevant provisions of the Constitution, to the decision in M. R. Balaji v. State of Mysore [1963] Suppl.
1 S.C.R. 439 and various subsequent decisions of this Court and discusses the principles flowing from the said decisions. It notes that the subsequent decisions of this Court in C. A.
Rajendran v. Union of India (1968) II LLJ 407 (SC); State of Andhra Pradesh v. P. Sugar
[1968] 3 SCR 595 and State of Andhra Pradesh v. U. S. V. Balram [1972] 3 SCR 247 etc. show a marked shift from the original position taken in Balaji on several important points. In particular, it refers to the observations in Rajendran to the effect that “caste is also a class of citizens and if the class as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it was socially and educationally backward
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class of citizens within the meaning of Article 15(4)”. It refers to the statement in A.
Peeriakaruppan v. State of Tamil Nadu [1971] 2 SCR 430, to the effect that “a caste has always been recognised as a class.” It also commends the dissenting view of Subba Rao, J. in T.
Devadasan v. Union of India (1965) II LLJ 560 (SC)…
Chapter-VIII deals with ‘North-South Comparison of other Backward Classes Welfare’. It is a case study of provisions in force in two Southern States namely Tamil Nadu and Karnataka and the two Northern States, Bihar and Uttar Pradesh. The conclusions drawn from the discussion are stated in para 8.45 in the following words:
In view of the foregoing account, the reasons for much stronger reaction in the
North than South to reservations, etc. for other Backward Classes may be summarised as below:(1) Tamil Nadu and Karnataka had a long history of Backward Classes movements and various measures for their welfare were taken in a phased manner.
In Uttar Pradesh and Bihar such measures did not mark the culmination of a mass movement. (2) In the South the forward communities have been divided either by the classification schemes or politically or both. In Bihar and U.P. the GOs have not divided the forward castes.
(3) In the South, clashes between Scheduled Castes and Backward peasant castes have been rather mild. In the North these cleavages have been much sharper, often resulting in acts of violence. This has further weakened the backward classes solidarity in the North.
(4) In the non-Sanskritic South, the basic Varna cleavage was between Brahmins and non-Brahmins and Brahmins constituted only about 3 per cent of the population. In the Sanskritic North, there was no sharp cleavage between the forward castes and together they constituted nearly 20 per cent of the population.
In view of this the higher castes in U.P. and Bihar were in a stronger position to mobilise opposition to backward class movement.
(5) Owing to the longer history and better organisation of Other Backward castes in the South, they were able to acquire considerable political clout. Despite the lead given by the Yadavas and other peasant castes, a unified and strong OBC movement has not emerged in the North so far.
(6) The traditions of semi-feudalism in Uttar Pradesh and Bihar have enabled the forward castes to keep tight control over smaller backward castes and prevent them from joining the mainstream of backward classes movement. This is not so in the south.
(7) The economies of Tamil Nadu and Karnataka have been expanding relatively faster. The private tertiary sector appears to be growing. It can shelter many forward caste youths. Also, they are prepared to migrate outside the State. The private tertiary sectors in Bihar and U.P. are stagnant. The forward caste youths in these two States have to depend heavily on Government jobs. Driven to desperation, they have reacted violently.
Chapter-IX sets out the evidence tendered by Central and State Governments while
Chapter-X deals with the evidence tendered by the Public. Chapter-XI is quite important inasmuch as it deals with the “Socio-Educational Field Survey and Criteria of Backwardness”.
In this Chapter, the Commission says that it decided to tap a of number of sources for the collection of data, keeping in mind the criticism against the Kalelkar Commission as also the several Judgments of this Court. It says that Socio-Educational Field Survey was the most comprehensive inquiry made by the Commission in this behalf. Right from the beginning, this
Survey was designed with the help of top social scientists and specialists in the country. Experts from a number of disciplines were associated with different phases of its progress. It refers to the work of Research Planning Team of Sociologists and the work done by a panel of experts
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led by Prof. M.N. Srinivas. It refers to the fact that both of them concurred that “in the Indian context such collectivities can be castes or other hereditary groups traditionally associated with specific occupations which are considered to be low and impure and with which educational backwardness and low income are found to be associated.”
The Commission says further that with a view to providing continuous guidance at the operational level, a Technical Advisory Committee was set up under Dr. K.C. Seal, Director
General, Central Statistical Organisation with the Chief Executive, National Sample Survey
Organisation and representatives of Directors of State Bureau of Economics and Statistics as
Members. The Commission sets out the Methodology evolved by the Experts panel and states that survey operations were entrusted to the State Statistical Organisations of the concerned
States/Union Territories. It refers to the training imparted to the survey staff and to the fact that the entire data so collected was fed into a computer for electronic processing of such data. Out of the 406 districts in the country, the survey covered 405 districts. In every district, two villages and one urban block was selected and in each of these villages and urban blocks, every single household was surveyed. The entire data collected was tabulated with the aid and
National Informatics Center of Electronics Commission of India. The Technical Committee constituted a Sub-Committee of Experts to help the Commission prepare "Indicators of
Backwardness" for analysing the data contained in the computerised tables. In para 11.23 (page
52) the Commission sets out the eleven Indicators/Criteria evolved by it for determining social and educational backwardness. Paras 11.23, 11.24 and 11.25 are relevant and may be set out in full:11.23. As a result of the above exercise, the Commission evolved eleven 'Indicators ' or 'criteria ' for determining social and educational backwardness.
These 11 'Indicators ' were grouped under three broad heads, i.e., Social,
Educational and Economic. They are:A. Social:
(i) Castes/Classes considered as socially backward by others.
(ii) Castes/Classes which mainly depend on manual labour for their livelihood.
(iii) Castes/Classes where at least 25% females and 10% males above the state average get married at an age below 17 years in rural areas and at least 10% females and 5% males do so in urban areas.
(iv) Castes/Classes where participation of females in work is at least 25% above the State average.
B. Educational:
(v) Castes/Classes where the number of children in the age group of 5-15 years who never attended school is at least 25% above the State average.
(vi) Castes/Classes where the rate of student drop-out in the age group of 5-15 years is at least 25% above the State average.
(vii) Castes/Classes amongst whom the proportion of matriculates is at least 25% below the State average.
C. Economic:
(viii) Castes/Classes where the average value of family assets is at least 25% below the State average.
(ix) Castes/Classes where the number of families living in Kuccha houses is at least 25% above the State average.
(x) Castes/Classes where the source of drinking water is beyond half a kilometer for more than 50% of the households.
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(xi) Castes/Classes where the number of households having taken consumption loan is at least 25% above the State average.
11.24. As the above three groups are not of equal importance for our purpose, separate weightage was given to 'Indicators ' in each group. All the Social 'Indicators ' were given a weightage of 3 points each. Educational 'Indicators ' a weightage of 2 points each and Economic 'Indicators ' a weightage of one point each. Economic, in addition to Social and Educational Indicators, were considered important as they directly flowed from social and educational backwardness. This also helped to highlight the fact that socially and educationally backward classes are economically backward also.
11.25. It will be seen that from the values given to each Indicators, the total score adds upto 22. All these 11 Indicators were applied to all the castes covered by the survey for a particular State. As a result of this application, all castes which had a score of 50 percent (i.e., 11 points) or above were listed as socially and educationally backward and the rest were treated as 'advanced '. (It is a sheer coincidence that the number of indicators and minimum point score for backwardness, both happen to be eleven). Further, in case the number of households covered by the survey for any particular caste were below 20, it was left out of consideration, as the sample was considered too small for any dependable inference.
It will also be useful to set out the observations of the Commission in para 11.27:11.27. In the end it may be emphasised that this survey has no pretentions to being a piece of academic research. It has been conducted by the administrative machinery of the Government and used as a rough and ready tool for evolving a set of simple criteria for identifying social and educational backwardness.
Throughout this survey our approach has been conditioned by practical considerations, realities of field conditions, constraints of resources and trained manpower and paucity of time. All these factors obviously militate against the requirements of a technically sophisticated and academically satisfying operation.
Chapter-XII deals with ‘Identification of OBCs’. In the first instance, the Commission deals with OBCs among Hindu Communities. It says that it applied several tests for determining the SEBCs like stigmas of low-occupation, criminality, nomadism, beggary and untouchability besides inadequate representation in public services. The multiple approach adopted by the Commission is set out in para 12.7 which reads:
12.7. Thus, the Commission has adopted a multiple approach for the preparation of comprehensive lists of Other Backward Classes for all the States and Union
Territories. The main sources examined for the preparation of these lists are:(i) Socio-educational field survey;
(ii) Census Report of 1961 (particularly for the identification of primitive tribes, aboriginal tribes, hill tribes, forest tribes and indigenous tribes);
(iii) Personal knowledge gained through extensive touring of the country and receipt of voluminous public evidences as described in Chapter X of this Report; and (iv) Lists of OBCs notified by various State Governments.
The Commission next deals with OBCs among Non-Hindu Communities. In paragraphs
12.11 to 12.16 the Commission refers to the fact that even among Christian, Muslim and Sikh religions, which do not recognise caste, the caste system is prevailing though without religious sanction. After giving a good deal of thought to several difficulties in the way of identifying
OBCs among Non-Hindus, the Commission says, it has evolved a rough and ready criteria viz.,
(1) all untouchables converted to any Non-Hindu religion and (2) such occupational communities which are known by the name of their traditional hereditary occupation and whose
Hindu counter-parts have been included in the list of Hindu OBCs - ought to be treated as
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SEBCs. The Commission then sought to work out the estimated population of the OBCs in the country and arrived at the figure of 52 per cent. Paras 12.19, 12.22 may be set out in full in view of their relevancy:
12.19 Systematic caste-wise enumeration of population was introduced by the
Registrar General of India in 1881 and discontinued in 1931. In view of this, figures of castewise population beyond 1931 are not available. But assuming that the inter se rate of growth of population of various castes communities and religious groups over the last half a century has remained more or less the same, it is possible to work out the percentage that all these groups constitute of the total population of the country.
12.22. From the foregoing it will be seen that excluding Scheduled Castes and
Scheduled Tribes, Other Backward Classes constitute nearly 52% of the Indian population. Chapter-XIII contains various recommendations including reservations in services. In view of the decisions of the Supreme Court limiting the total reservation to 50 per cent, the
Commission recommended 27 per cent reservation in favour of OBCs (in addition to 22.5 per cent already existing in favour of SCs and STs). It recommended several measures for
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improving the condition of these backward classes. Chapter-XIV contains a summary of the report. Volumes 2 to 9 of the Report contain and set out the material and the data on the basis of which the Commission made its recommendations. Vol. II contains the State-wise lists of
Backward Classes, as identified by the Commission. (It may be remembered that both the
Scheduled Castes order and Scheduled Tribes order notified by the President contain Statewise lists of Scheduled Castes and Scheduled Tribes). Volume II inter alia contains the questionnaire issued to the State Governments/Union Territories, the questionnaire issued to the Central Government Ministries/Departments, the questionnaire issued to the general public, the list of M.Ps. and other experts who appeared and gave evidence before the Commission, the criteria furnished to Central Government offices for identifying OBC employees for both
Hindu and non-Hindu Communities, report of the Research Planning Team of the Sociologists and the proformas employed in conducting the Socio-Education Survey.
The Report of the Mandal Commission was laid before each House of Parliament and discussed on two occasions - once in 1982 and again in the year 1983. The proceedings of the
Lok Sabha placed before us contain the statement of Sri R. Venkataraman, the then Minister for Defence and Home Affairs. He expressed the view that “the debate has cut across party lines and a number of people on this side have supported the recommendations of the Mandal
Commission. A large number of people on the other side have also supported it. If one goes through the entire debate one will be impressed with a fairly unanimous desire on the part of all sections of the House to find a satisfactory solution to this social evil of backwardness of
Scheduled Castes/Scheduled Tribes etc. which is a festering sore in our body politic,” The
Hon 'ble Minister then proceeded to state, “the Members generally said that the recommendations should be accepted. Some Members said that it should be accepted in toto.
Some Members have said that it should be accepted with certain reservations. Some Members said, there should be other criteria than only social and educational backwardness. But all these are ideas which Government will take into account. The problem that confronts Government today is to arrive at a satisfactory definition of backward classes and bring about an acceptance of the same by all the state concerned.” The Hon 'ble Minister referred to certain difficulties the
Government was facing in implementing the recommendations of the Commission on account of the large number of castes identified and on account of the variance in the State lists and the
Mandal Commission lists and stated that consultation with various departments and State
Governments was in progress in this behalf. He stated that a meeting of the Chief Ministers would be convened shortly to take decisions in the matter.
The Report was again discussed in the year 1983. The then Hon 'ble Minister for Home Sri
P.C. Sethi, while replying to the debate stated: “While referring to the Commission whose report has been discussed today, I would like to remind the House that although this
Commission had been appointed by our predecessor Government, we now desire to continue with this Commission and implement its recommendations.”
THE OFFICE MEMORANDUM DATED 13TH AUGUST, 1990
No action was, however, taken on the basis of the Mandal Commission Report until the issuance of the Office Memorandum on 25th September, 1991. On that day, the then Prime
Minister Sri V.P. Singh made a statement in the Parliament in which he stated inter alia as follows: After all, if you take the strength of the whole of the Government employees as a proportion of the population, it will be 1% or 1-1/2. I do not know exactly, it may be less than 1%. We are under no illusion that this 1% of the population, or a
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fraction of it will resolve the economic problems of the whole section of 52%. No.
We consciously want to give them a position in the decision-making of the country, a share in the power structure. We talk about merit. What is the merit of the system itself? That the section which has 52% of the population gets 12.55% in Government employment. What is the merit of the system? That in Class I employees of the Government it gets only 4.69%, for 52% of the population in decision-making at the top echelons it is not even one-tenth of the population of the country; in the power structure it hardly 4.69. I want to challenge first the merit of the system itself before we come and question on the merit, whether on merit to reject this individual or that. And we want to change the structure basically, consiciously, with open eyes. And I know when changing the structures comes, there will be resistance…
What I want to convey is that treating unequals as equals is the greatest injustice.
And, correction of this injustice is very important and that is what I want to convey. Here, the National Front Government 's Commitment for not only change of Government, but also change of the social order, is something of great significance to all of us; it is a matter of great significance. Merely making programmes of economic benefit to various sections of the society will not do…
There is a very big force in the argument to involve the poorest in the power structure. For a lot of time we have acted on behalf of the poor. We represent the poor… Let us forget that the poor are begging for some crumbs. They have suffered it for thousands of years. Now they are fighting for their honour as a human being…
A point was made by Mahajan ji that if there are different lists in different States how will the Union List harmonise? It is so today in the case of the Scheduled
Castes and the Scheduled Tribes, That has not caused a problem. On the same pattern, this will be there and there will be no problem.
The Office Memorandum dated 13th August, 1990 reads as follows:
OFFICE MEMORANDUM
Subject: Recommendations of the Second backward Classes Commission
(Mandal Report) - Reservation for Socially and Educationally Backward Classes in services under the Government of India.
In a multiple undulating society like ours, early achievement of the objective of social justice as enshrined in the Constitution is a must. The Second Backward
Classes Commission called the Mandal Commission was established by the then
Government with this purpose in view, which submitted its report to the
Government of India on 31.12.1980.
2. Government have carefully considered the report and the recommendations of the Commission in the present context regarding the benefits to be extended to the socially and educationally backward classes as opined by the Commission and are of the clear view that at the outset certain weightage has to be provided to such classes in the services of the Union and their Public Undertakings. Accordingly orders are issued as follows:(i) 27% of the vacancies in civil posts and services under the Government of India shall be reserved for SEBC.
(ii) The aforesaid reservation shall apply to vacancies to be filled by direct recruitment. Detailed instructions relating to the procedures to be followed for enforcing reservation will be issued separately.
(iii) Candidates belonging to SEBC recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates shall not be adjusted against the reservation quota of 27%.
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(iv) The SEBC would comprise in the first phase the castes and communities which are common to both the list in the report of the Mandal Commission and the State Governments ' lists, a list of such castes/communities is being issued separately. (v) The aforesaid reservation shall take effect from 7.8.1990. However, this will not apply to vacancies where the recruitment process has already been initiated prior to the issue of these orders.
3. Similar instructions in respect of public sector undertakings and financial institutions including public sector banks will be issued by the Department of
Public Enterprises and Ministry of Finance respectively. sd/(Smt. Krishna Singh)
Joint Secretary to the Govt. of India
Soon after the issuance of the said Memorandum there was wide-spread protest in certain
Northern States against it. There occurred serious disturbance to law and order involving damage to private and public property. Some young people lost their lives by self-immolation.
Writ Petitions were filed in this Court questioning the said Memorandum along with applications for staying the operation of the Memorandum. It was stayed by this Court.
THE OFFICE MEMORANDUM DATED 25TH SEPTEMBER, 1991
After the change of the Government at the center following the general election held in the first half of 1991, another Office Memorandum was issued on 25th September, 1991 modifying the earlier Memorandum dated 13th August, 1990. The later Memorandum reads as follows:
OFFICE MEMORANDUM
Subject: Recommendations of the Second Backward Classes Commission
(Mandal Report) - Reservation for socially and Educationally Backward Classes in service under the Government of India.
The undersigned is directed to invite the attention to O.M. of even number dated the 13th August, 1990, on the above mentioned subject and to say that in order to enable the poorer sections of the SEBCs to receive the benefits of reservation on a preferential basis and to provide reservation for other economically backward sections of the people not covered by any of the existing schemes of reservation,
Government have decided to amend the said Memorandum with immediate effect as follows:(i) Within the 27% of the vacancies in civil posts and services under the
Government of India reserved for SEBCs, preference shall be given to candidates belonging to the poorer sections of the SEBCs. In case sufficient number of such candidates are not available, unfilled vacancies shall be filled by the other SEBC candidates. (ii) 10% of the vacancies in civil posts and services under the Government of India shall be reserved for other economically backward sections of the people who are not covered by any of the existing schemes of reservation.
(iii) The criteria for determining the poorer sections of the SEBCs or the other economically backward sections of the people who are not covered by any of the existing schemes of reservations are being issued separately.
The O.M. of even number dated the 13th August, 1990, shall be deemed to have been amended to the extent specified above. sd/- Page 163 of 610
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(A.K. Harit)
Dy. Secretary to the Government of India
Till now, the Central Government has not evolved the economic criteria as contemplated by the later Memorandum, though the hearing of these writ petitions was adjourned on more than one occasion for the purpose. Some of the writ petitions have meanwhile been amended challenging the later Memorandum as well. Let us notice at this stage what do the two memorandums say, read together.
The first provision made is: 27% of vacancies to be filled up by direct recruitment in civil posts and services under the Government of India are reserved for backward classes. Among the members of the backward classes preference has to be given to candidates belonging to the poorer sections. Only in case, sufficient number of such candidates are not available, will the unfilled vacancies be filled by other backward class candidates. The second provision made is: backward class candidates recruited on the basis of merit in open competition along with general candidates shall not be adjusted against the quota of 27% reserved for them. Thirdly, it is provided that backward classes shall mean those castes and communities which are common to the list in the report of the Mandal Commission and the respective State Government 's list.
It may be remembered that Mandal Commission has prepared the list of backward classes Statewise, Lastly, it is provided that 10% of the vacancies shall be reserved for other economically backward sections of the people who are not covered by any of the existing schemes of reservations. As stated above, the criteria for determining the poorer sections among the backward classes or for determining other economically backward sections among the nonreserved category has so far not been evolved. Though the first Memorandum stated that the orders made therein shall take effect from 7.8.1990, they were not in fact acted upon on account of the orders made by this Court.
ISSUES FOR CONSIDERATION
… [W]e have re-framed the questions. We shall proceed to answer them in the same order.
The reframed questions are:
1(a) Whether the 'provision ' contemplated by Article 16(4) must necessarily be made by the legislative wing of the State?
(b) If the answer to Clause (a) is in the negative, whether an executive order making such a provision is enforceable without incorporating it into a rule made under the proviso to Article 309?
2(a) Whether Clause (4) of Article 16 is an exception to Clause (1) of Article 16?
(b) Whether Clause (4) of Article 16 is exhaustive of the special provisions that can be made in favour of 'backward class of citizens '? Whether it is exhaustive of the special provisions that can be made in favour of all sections, classes or groups?
(c) Whether reservations can be made under Clause (1) of Article 16 or whether it permits only extending of preferences/concessions?
3(a) What does the expression 'backward class of citizens ' in Article 16(4) means?
(b) Whether backward classes can be identified on the basis and with reference to caste alone?
(c) Whether a class, to be designated as a backward class, should be situated similarly to the S.Cs./S.Ts.?
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(d) Whether the 'means ' test can be applied in the course of identification of backward classes? And if the answer is yes, whether providing such a test is obligatory? 4(a). Whether the backward classes can be identified only and exclusively with reference to economic criteria?
(b) Whether a criteria like occupation-cum-income without reference to caste altogether, can be evolved for identifying the backward classes?
5. Whether the backward classes can be further categorised into backward and more backward categories?
6. To what extent can the reservation be made?
(a) Whether the 50% rule enunciated in Balaji a binding rule or only a rule of caution or rule of prudence?
(b) Whether the 50% rule, if any, is confined to reservations made under Clause
(4) of Article 16 or whether it takes in all types of reservations that can be provided under Article 16?
(c) Further while applying 50% rule, if any, whether an year should be taken as a unit or whether the total strength of the cadre should be looked to?
(d) Whether Devadasan was correctly decided?
7. Whether Article 16 permits reservations being provided in the matter of promotions? 8. Whether reservations are anti-meritian? To what extent are Articles 335, 38(2) and 46 of the Constitution relevant in the matter of construing Article 16?
9. Whether the extent of judicial review is restricted with regard to the identification of Backward Classes and the percentage of reservations made for such classes to a demonstrably perverse identification or a demonstrably unreasonable percentage?
10. Whether the distinction made in the Memorandum between 'poorer sections ' of the backward classes and others permissible under Article 16?
11. Whether the reservation of 10% of the posts in favour of 'other economically backward sections of the people who are not covered by any of the existing schemes of the reservations ' made by the Office Memorandum dated 25.9.1991 permissible under Article 16?
… Before we proceed to answer the questions aforementioned, it would be helpful to notice
(a) the debates in the Constituent Assembly on Article 16 (draft Article 10); (b) the decisions of this Court on Articles 16 and 15; and (c) a few decisions of the U.S. Supreme Court considering the validity of race-conscious programmes.
… It was the Drafting Committee under the Chairmanship of Dr. B.R. Ambedkar that inserted the word "backward" in between the words "in favour of any" and 'class of citizens".
The discussion on draft Article 10 took place on November 30, 1948. Several members including Damodar Swarup Seth, Hirdya Nath Kunzru and R. M. Nalavade complained that the expressions ‘backward’ and ‘backward classes’ are quite vague and are likely to lead to complications in future. They suggested that appointments to public services should be made purely on the basis of merit. Some others suggested that such reservations should be available
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only for a period of first ten years of the Constitution. To this criticism the Vice-President of the Assembly (Dr. H. C. Mookherjee) replied in the following words:
Before we start the general discussion, I would like to place a particular matter before the Honourable Members. The clause which has so long been under discussion affects particularly certain sections of our population sections which have in the past been treated very cruelly and although we are today prepared to make reparation for the evil deeds of our ancestors, still the old story continues, at least here and there, and capital is made out of it outside India… I would therefore very much appreciate the permission of the House so that I might give full discussion on this particular matter to our brethren of the backward classes.
Do I have that permission?
In the ensuing discussion Sri Chandrika Ram (Bihar-General) supported draft Clause (3) with great passion. He pleaded for reservations in favour of Backward Classes both in services as well as in the legislature, just as in the case of Harijans.
Sri Chandrika Ram was supported by another Member P. Kakkan (Madras-General) and
T. Channiah (Mysore), Channiah, in particular, commented upon the Members coming from
Northern India being puzzled about the meaning of the expression 'backward class ' and proceeded to clarify the same in the following words:
The backward classes of people as understood in South India, are those classes of people who are educationally backward, it is those classes that require adequate representation in the services. There are other classes of people who are socially backward; they also require adequate representation in the service.
After the discussion proceeded for some more time, K. M. Munshi, who was a Member of the Drafting Committee rose to explain the content of the word 'backward '. He said:
What we want to secure by this clause are two things. In the fundamental right in the first clause we want to achieve the highest efficiency in the services of the
State-highest efficiency which would enable the services to function effectively and promptly. At the same time, in view of the conditions in our country prevailing in several provinces, we want to see that backward classes, classes who are really backward, should be given scope in the State services; for it is realised that State services give a status and an opportunity to serve the country, and this opportunity should be extended to every community, even among the backward people. That being so, we have to find out some generic term and the word
"backward class" was the best possible term.
Munshi proceeded to state:
I may point out that in the province of Bombay for several years now, there has been a definition of backward classes, which includes not only Scheduled Castes and Scheduled Tribes but also other backward classes who are economically, educationally and socially backward. We need not, therefore, define or restrict the scope of the word "backward" to a particular community. Whoever is backward will be covered by it and I think the apprehensions of the Hon’ble Members are not justified.
Ultimately Dr. B.R. Ambedkar, the Chairman of the Drafting Committee, got up to clarify the matter. His speech, which put an end to all discussion and led to adopting of draft Article 10(3), is worth quoting in extenso, since it throws light on several questions relevant herein:
… there are three points of view which it is necessary for us to reconcile if we are to produce a workable proposition which will be accepted by all. Of the three points of view, the first is that there shall be equality of opportunity for all citizens.
It is the desire of many Members of this House that every individual who is qualified for a particular post should be free to apply for that post, to sit for examinations and to have his qualifications tested so as to determine whether he is fit for the post or not and that there ought to be no limitations, there ought to be
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no hindrance in the operation of this principle of equality or opportunity. Another view mostly shared by a section of the House is that, if this principle is to be operative-and it ought to be operative in their judgment to its fullest extent-there ought to be no reservations of any sort for any class or community at all, that all citizens, if they are qualified, should be placed on the same footing of equality so far as the public services are concerned. That is the second point of view we have.
Then we have quite a massive opinion which insists that, although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration. As I said, the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a 'proper look-in ' so to say into the administration. If honourable Members will bear these facts in mind-the-three principles we had to reconcile,-they will see that no better formula could be produced than the one that is embodies in Sub-clause (3) of Article 10 of the Constitution. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now-for historical reasons-been controlled by one community or a few communists, that situation should disappear and that the others also must have an opportunity of getting into the public services.
Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public service to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of
30 per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with Sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation. If honourable Members understand this position that we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as "backward" the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain. That I think if I may say so, is the justification why the Drafting Committee undertook on its own shoulders the responsibility of introducing the word "backward" which, I admit, did not originally find a place in the fundamental right in the way in which it was passed by this Assembly…
Somebody asked me: "What is a backward community"? Well, I think anyone who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Government.
The above material makes it amply clear that the objective behind Clause (4) of Article 16 was the sharing of State power. The State power which was almost exclusively monopolised by the upper castes i.e., a few communities, was now sought to be made broad-based. The backward communities who were till then kept out of apparatus of power, were sought to be inducted there into and since that was not practicable in the normal course, a special provision was made to effectuate the said objective. In short, the objective behind Article 16(4) is empowerment of the deprived backward communities - to give them a share in the administrative apparatus and in the governance of the community.
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DECISIONS OF THIS COURT ON ARTICLES 16 AND 15
Soon after the enforcement of the Constitution two cases reached this Court from the State of Madras - one under Article 15 and the other under Article 16. Both the cases were decided on the same date and by the same Bench. The one arising under Article 15 is State of Madras
v. Champakam Dorairajan [1951] 2 SCR 525, and the other arising under Article 16 is
Venkataraman v. State of Madras AIR 1951 SC 229. By virtue of certain orders issued prior to coming into force of the Constitution,-popularly known as 'Communal G.O. ' - seats in the
Medical and Engineering Colleges in the State of Madras were apportioned in the following manner: Non-Brahmin (Hindus)-6, Backward Hindus-2, Brahmin-2, Harijan-2, Anglo Indians and Indian Christians-1, Muslims-1. Even after the advent of the Constitution, the G.O. was being acted upon which was challenged by Smt. Champakam as violative of the fundamental rights guaranteed to her by Articles 15(1) and 29(2) of the Constitution of India. A Full Bench of Madras High Court declared the said G.O. as void and un-enforceable with the advent of the
Constitution. The State of Madras brought the matter in appeal to this Court. A Special Bench of Seven Judges heard the matter and came to the unanimous conclusion that the allocation of seats in the manner aforesaid is violative of Articles 15(1) and 29(2) inasmuch as the refusal to admit the respondent (writ petitioner) notwithstanding her higher marks, was based only on the ground of caste. The State of Madras sought to sustain the G.O. with reference to Article 46 of the Constitution. Indeed the argument was that Article 46 over-rides Article 29(2). This argument was rejected. The Court pointed out that while in the case of employment under the
State, Clause (4) of Article 16 provides for reservations in favour of backward class of citizens, no such provision was made in Article 15.
In the matter of appointment to public services too, a similar communal G.O. was in force in the State of Madras since prior to the Constitution. In December, 1949, the Madras Public
Service Commission invited applications for 83 posts of District Munsifs, specifying at the same time that the selection of the candidates would be made from the various castes, religions and communities as specified in the communal G.C. The 83 vacancies were distributed in the following manner: Harijans-19, Muslims-5, Christians-6, Backward Hindus-10, Non-Brahmin
(Hindus)-32 and Brahmins-11. The petitioner Venkataraman (it was a petition under Article 32 of the Constitution) applied for and appeared at the interview and the admitted position was that if the provisions of the communal G.O. were to be disregarded, he would have been selected. Because of the G.O., he was not selected (he belonged to Brahmin community).
Whereupon he approached this Court. S.R. Das, J. speaking for the Special Bench referred to
Article 16 and in particular to Clause (4) thereof and observed: "Reservation of posts in favour of any backward class of citizens cannot, therefore, be regarded as unconstitutional". He proceeded to hold:
The Communal G.O. itself makes an express reservation of seats for Harijans &
Backward Hindus. The other categories, namely, Muslims, Christians, NonBrahmin Hindus & Brahmins must be taken to have been treated as other than
Harijans & Backward Hindus. Our attention was drawn to a schedule of Backward
Classes set out in Schedule III to Part I of the Madras Provincial & Subordinate
Service Rules. It was, therefore, argued that Backward Hindus would mean
Hindus of any of the communities mentioned in that Schedule. It is, in the circumstances, impossible to say that classes of people other than Harijans &
Backward Hindus can be called Backward Classes. As regards the posts reserved for Harijans & Backward Hindus it may be said that the petitioner who does not belong to those two classes is regarded as ineligible for those reserved posts not on the ground of religion, race, caste etc. but because of the necessity for making a provision for reservation of such posts in favour of a backward class of citizens, but the ineligibility of the petitioner for any of the posts reserved for communities
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other than Harijans and Backward Hindus cannot but be regarded as founded on the ground only of his being a Brahmin. For instance, the petitioner may be far better qualified than a Muslim or a Christian or a Non-Brahmin candidate & if all the posts reserved for those communities were open to him he would be eligible for appointment, as is conceded by the learned Advocate General of Madras, but, nevertheless, he cannot expect to get any of those posts reserved for those different categories only because he happens to be a Brahmin. His ineligibility for any of the posts reserved for the other communities, although he may have far better qualifications than those possessed by members falling within those categories, is brought about only because he is a Brahmin & does not belong to any of those categories. This ineligibility created by the Communal G.O. does not appear to us to be sanctioned by Clause (4) of Article 16 and it is an infringement of the fundamental right guaranteed to the petitioner as an individual citizen under
Article 16(1) & (2). The Communal G.O., in our opinion, is repugnant to the provisions of Article 16 & is as such void and illegal.
Ram Jethmalani, the learned Counsel appearing for the Respondent-State of Bihar placed strong reliance on the above passage. He placed before us an extract of the Schedule of the backward classes appended to the Madras Provincial and Subordinate Service Rules, 1942. He pointed out that Clause (3)(a) in Rule 2 defined the expression backward classes to mean "the communities mentioned in Schedule III to this part", and that Schedule III is exclusively based upon caste. The Schedule describes the communities mentioned therein under the heading 'Race, Tribe or Caste '. It is pointed out that when the said Schedule was substituted in 1947, the basis of classification still remained the caste, though the heading "Races, Tribes and
Castes" was removed. Mr. Jethmalani points out that the Special Bench took note of the fact that Schedule III was nothing but a collection of certain 'communities ', notified as backward classes and yet upheld the reservation in their favour. According to him, the decision in
Venkataraman clearly supports the identification of backward classes on the basis of caste. The
Communal G.O. was struck down, he submits, only in so far as it apportioned the remaining vacancies between sections other than Harijans and backward classes. It is rather curious, says the counsel, that the decision in Venkataraman has not attracted the importance it deserves all these years. All the subsequent decisions of this Court refer to Champakam. Hardly any decision refers to Venkataraman notwithstanding the fact that Venkataraman was a decision rendered with reference to Article 16.
Soon after the said two decisions were rendered the Parliament intervened and in exercise of its constituent power, amended Article 15 by inserting Clause (4)… It is worthy of notice that the Parliament, which enacted the First Amendment to the Constitution, was in fact the very same Constituent Assembly which had framed the Constitution. The speech of Dr.
Ambedkar on the occasion is again instructive. He said:
Then with regard to Article 16, Clause (4), my submission is this that it is really impossible to make any reservation which would not result in excluding somebody who has a caste. I think it has to be borne in mind and it is one of the fundamental principles which I believe is stated in Mulla 's edition on the very first page that there is no Hindu who has not a caste. Every Hindu has a caste-he is either a Brahmin or a Mahratta or a Kundby or a Kumbhar or a carpenter. There is no Hindu-that is the fundamental proposition-who has not a caste.
Consequently, if you make a reservation in favour of what are called backward classes which are nothing else but a collection of certain castes, those who are excluded are persons who belong to certain castes. Therefore, in the circumstances of this country, it is impossible to avoid reservation without excluding some people who have got a caste.
After the enactment of the First Amendment the first case that came up before this Court is Balaji v. State of Mysore. In the year 1961, this Court decided the General Manager,
Southern Railway v. Rangachari, but that related to reservations in favour of the Scheduled
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Castes and Scheduled Tribes in the matter of promotion in the Railways. Rangachari will be referred to at an appropriate stage later. In the State of Karnataka, reservations were in force since a few decades prior to the advent of the Constitution and were being continued even thereafter. On July 26, 1958 the State of Mysore issued an order under Article 15(4) of the
Constitution declaring all the communities except the Brahmin community as socially and educationally backward and reserving a total of 75 per cent seats in Educational Institutions in favour of SEBCs and SCs/STs. Such orders were being issued every year, with minor variation in the percentage of reservations. On 13th of July, 1972, a similar order was issued wherein 68 per cent of the seats in all Engineering and Medical Colleges and Technical Institutions in the
State were reserved in the favour of the SEBCs, SCs and STs. SEBCs were again divided into two categories-backward classes and more backward classes. The validity of this order was questioned under Article 32 of the Constitution. While striking down the said order this Court enunciated the following principles:(1) Clause (4) of Article 15 is a proviso or an exception to Clause (1) of Article
15 and to Clause (2) of Article 29;
(2) For the purpose of Article 15(4), backwardness must be both social and educational. Though caste in relation to Hindus may be a relevant factor to consider, in determining the social backwardness of a class of citizens, it cannot be made the sole and dominant test. Christians, Jains and Muslims do not believe in caste system; the test of caste cannot be applied to them. Inasmuch as identification of all backward classes under the impugned order has been made solely on the basis of caste, it is bad.
(3) The reservation made under Clause (4) of Article 15 should be reasonable. It should not be such as to defeat or nullify the main Rule of equality contained in
Clause (1). While it is not possible to predicate the exact permissible percentage of reservations, it can be stated in a general and broad way that they should be less than 50 per cent.
(4) A provision under Article 15(4) need not be in the form of legislation; it can be made by an executive order.
(5) The further categorisation of backward classes into backward and more backward is not warranted by Article 15(4).
It must be remembered that Balaji was a decision rendered under and with reference to
Article 15 though it contains certain observations with respect to Article 16 as well.
Soon after the decision in Balaji this Court was confronted with a case arising under Article
16 - Devadasan v. Union of India. This was also a petition under Article 32 of the Constitution.
It related to the validity of the ‘carry-forward’ rule obtaining in Central Secretariat Service.
The reservation in favour of Scheduled Castes was twelve and half per cent while the reservation in favour of Scheduled Tribes was five per cent. The ‘carry-forward’ rule considered in the said decision was in the following terms: “If a sufficient number of candidates considered suitable by the recruiting authorities, are not available from the communities for whom reservations are made in a particular year, the unfilled vacancies should be treated as unreserved and filled by the best available candidates. The number of reserved vacancies, thus, treated as unreserved will be added as an additional quota to the number that would be reserved in the following year in the normal course; and to the extent to which approved candidates are not available in that year against this additional quotas, a corresponding addition should be made to the number of reserved vacancies in the second following year.” Because sufficient number of SC/ST candidates were not available during the earlier years the unfilled vacancies meant for them were carried forward as contemplated by the said rule and filled up in the third year - that is in the year 1961. Out of 45 appointments made, 29 went to Scheduled Castes and
Scheduled Tribes. In other words, the extent of reservation in the third year came to 65 per
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cent. The rule was declared unconstitutional by the Constitution Bench, with Subba Rao, J. dissenting. The majority held that the carry forward rule which resulted in more than 50 per cent of the vacancies being reserved in a particular year, is bad. The principle enunciated in
Balaji regarding 50 percent was followed. Subba Rao, J. in his dissenting opinion, however, upheld the said rule. The learned Judge observed: “The expression, “nothing in this article” is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammeled by the other provisions of the
Article.” The learned Judge opined that once a class is a backward class, the question whether it is adequately represented or not is left to the subjective satisfaction of the State and is not a matter for this Court to prescribe.
We must, at this stage, clarify that a ‘carry-forward’ rule may be in a form different than the one considered in Devadasan. The Rule may provide that the vacancies reserved for
Scheduled Castes or Scheduled Tribes shall not be filled up by general (open competition) candidates in case of non-availability of SC/ST candidates and that such vacancies shall be carried forward.
In the year 1964 another case from Mysore arose, again under Article 15 - Chitralekha v.
State of Mysore. The Mysore Government had by an order defined backward classes on the basis of occupation and income, unrelated to caste. Thirty per cent of seats in professional and technical institutions were reserved for them in addition to eighteen per cent in favour of SCs and STs. One of the arguments urged was that the identification done without taking the caste into consideration is impermissible. The majority speaking through Subba Rao, J., held the identification or classification of backward classes on the basis of occupation-cum-income, without reference to caste, is not bad and does not offend Article 15(4).
During the years 1968 to 1971, this Court had to consider the validity of identification of backward classes made by Madras and Andhra Pradesh Governments. Minor P. Rajendran v.
State of Madras related to specification of socially and educationally backward classes with reference to castes. The question was whether such an identification infringes Article 15.
Wanchoo, C.J., speaking for the Constitution Bench dealt with the contention in the following words: The contention is that the list of socially and educationally backward classes for whom reservation is made under Rule 5 nothing but a list of certain castes.
Therefore, reservation in favour of certain castes based only on caste considerations violates Article 15(1), which prohibits discrimination on the ground of caste only. Now if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of Article 15(1). But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Article 15(4)… It is true that in the present cases the list of socially and educationally backward classes has been specified by caste. But that does not necessarily mean that caste was the sole consideration and that person belonging to these castes are also not a class of socially and educationally backward citizens… As it was found that members of these castes as a whole were educationally and socially backward, the list which had been coming on from as far back as 1906 was finally adopted for purposes of Article 15(4).
In view however of the explanation given by the State of Madras, which has not been controverted by and rejoinder, it must be accepted that though the list shows certain castes, the members of those castes are really classes of educationally and socially backward citizens. No attempt was made on behalf of the petitioners/appellant to show that any caste mentioned in this list was not
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educationally and socially backward. In this state of the pleadings, we must come to the conclusion that though the list is prepared caste-wise, the castes included therein are as a whole educationally and socially backward and therefore the list is not violative of Article 15. The challenge to Rule 5 must therefore fail.
The shift in approach and emphasis is obvious. The Court now held that a caste is a class of citizens and that if a caste as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Article 15(4). More over the burden of proving that the specification/identification was bad, was placed upon the petitioners. In case of failure to discharge that burden, the identification made by the State was upheld. The identification made on the basis of caste was upheld inasmuch as the petitioner failed to prove that any caste mentioned in the list was not socially and educationally backward….
DECISIONS OF U.S. SUPREME COURT
… [I]n Regents of the University of California v. Allan Bakke [1978] 57 L.Ed. 2nd 750.
The Medical School of the University of California at Davis had been following two admissions programmes, one in respect of the 84 seats (general) and the other, a special admissions programme under which only disadvantaged members of certain minority races were considered for the remaining 16 seats - the total seats available being 100 a year. For these 16 seats, none except the members of the minority races were considered and evaluated. The respondent, Bakke, a white, could not obtain admission for two consecutive years, in view of his evaluation scores, while admission was given to members of minority races who had obtained lesser scores than him. He questioned the validity of special admissions programme on the ground that it violated the equal protection clause in the Fourteenth Amendment to the
Constitution and also Title VI of the Civil Rights Act. 1964. The Trial Court upheld the plea on the ground that the programme excluded members of non-minority races from the 16 reserved seats only on the basis of race and thus operated as a racial quota. It, however, refused to direct the plaintiff to be admitted inasmuch as he failed to establish that he would have been admitted but for the existence of the special admissions programme. The matter was carried in direct appeal to Supreme Court of California, which not only affirmed the Trial Court 's
Judgment in so far as it held the special admission programme to be invalid but also granted admission to the plaintiff-respondent into the Medical School. It was of the view that the
University had failed to prove that in the absence of special admissions programme the respondent would not have been admitted. The matter was then carried to the United States
Supreme Court, where three distinct view-points emerged.
Brennan, White, Marshall and Blackmun, JJ. were of the opinion that the special admissions programme was a valid one and is not violative of the Federal or State Constitutions or of Title VI of the Civil Rights Act, 1964. They were of the opinion that the purpose of overcoming substantial, chronic minority under-representation in the medical profession is sufficiently important to justify the University 's remedial use of race. Since the Judgment of the Supreme Court of California prohibited the use of race as a factor in University admissions, they reversed that Judgment.
Chief Justice Warren Burger, Stevens, Stewart and Rehnquist, JJ. took the other view. They affirmed the judgment of the California Supreme Court. They based their judgment mainly on
Title VI of Civile Rights Act, 1964, which provided that "no person in the United States shall, on the ground of race, colour or national origin, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any programme or activity receiving
Federal Financial assistance." They opined that Bakke was the victim of, what may be called,
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reverse discrimination and that his exclusion from consideration in respect of the 16 seats being solely based on race, is impermissible.
Powell, J. took the third view in his separate opinion, partly agreeing and partly disagreeing with the other view-points. He based his decision on Fourteenth Amendment alone. He did not take into consideration the 1964 Act. The learned Judge held that though racial and ethnic classifications of any kind are inherently suspect and call for the most exacting judicial scrutiny, the goal of achieving a racially balanced student body is sufficiently compelling to justify consideration of race in admissions decisions under certain circumstances. He was of the opinion that while preference can be provided in favour of minority races in the matter of admission, setting up of quotas (which have the effect of foreclosing consideration of all others in respect thereof) is not necessary for achieving the said compelling goal. He was of the opinion that impugned programme is bad since it set apart a quota for minority races. He sustained the admission granted to Bakke on the ground that the University failed to establish that even without the quota, he would not have been admitted.
It would be useful to notice the three points of view in a little more detail. Brennan, J. (with whom Marshall, White and Blackmun, JJ. agreed) observed that though the U.S. Constitution was founded on the principle that "all men are created equal", the truth is that it is not so in fact. Racial discrimination still persists in the society. In such a situation the claim that the law must be "colour-blind" is more an aspiration rather than a description of reality. The context and the reasons for which Title VI of the Civil Rights Act, 1964 was enacted leads to the conclusion that the prohibition contained in Title VI was intended to be consistent with the commands of the Constitution and no more. Therefore, "any claim that the use of racial criteria is barred by the plain language of the statute must fail in light of the remedial purpose of Title
VI and its legislative history." On the contrary, said the learned Judge, prior decisions of the court strongly suggest that Title VI does not prohibit the remedial use of race where such action is constitutionally permissible.
… We have examined the decisions of U.S. Supreme Court at some length only with a view to notice how another democracy is grappling with a problem similiar in certain respects to the problem facing this country. The minorities (including blacks) in United States are just about 16 to 18% of the total population, whereas the backward classes (including the Scheduled
Castes and Scheduled Tribes) in this country - by whichever yardstick they are measured - do certainly constitute a majority of the population. The minorites there comprise 5 to 7 groups Blacks, Spanish-speaking people, Indians, Purto Ricano, Aleuts and so on - whereas the castes and communities comprising backward classes in this country run into thousands.
Untouchability - and ‘unapproachability’, as it was being practised in Kerala - is something which no other country in the world had the misfortune to have - nor the blessed caste system.
There have been equally old civilisations on earth like ours, if not older, but none had evolved these pernicious practices, much less did they stamp them with scriptural sanction. Now coming to Constitutional provisions, Section 1 of the Fourteenth Amendment (insofar as it guarantees equal protection of the laws) corresponds to Article 14 but they do not have provisions corresponding to Article 16(4) or 15(4). Title VI of the Civil Rights Act enacted in
1964 roughly corresponds to Clause (2) of Articles 15 and 16.
At this stage, we wish to clarify one particular aspect. Article 16(1) is a facet of Article 14.
Just as Article 14 permits reasonable classification, so does Article 16(1). A classification may involve reservation of seats or vacancies, as the case may be. In other words, under Clause (1) of Article 16, appointments and/or posts can be reserved in favour of a class. But an argument is now being advanced - evidently inspired by the opinion of Powell, J. in Bakke that Article
16(1) permits only preferences but not reservations. The reasoning in support of the said argument is the same as was put forward by Powell, J. This argument, in our opinion, disregards
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the fact that that is not the unanimous view of the court in Bakke. Four Judges including
Brennan, J. took the view that such a reservation was not barred by the Fourteenth Amendment while the other four (including Warren Burger, C.J.) took the view that the Fourteenth
Amendment and Title VI of the Civil Right Acts, 1964 bars all race-conscious progammes. At the same time, there are a series of decisions relating to school desegregation - from Brown to
Board of Education v. Swann 28 L.Ed. 2nd 586 - where the court has been consistently taking the view that if race be the basis of discrimination, race can equally form the basis of remedial action. The shift in approach indicated by Metro Broadcasting Inc. is equally significant. The
‘lingering effects’ (of past discrimination) theory as well as the standard of strictest scrutiny of race-conscious programmes have both been abandoned. Suffice it to note that no single uniform pattern of thought can be discerned from these decisions. Ideas appear to be still in the process of evolution.
QUESTIONS 1 AND 2
… We are not concerned with the aspect of what is ideal or desirable but with what is the proper meaning to be ascribed to the expression ‘provision’ in Article 16(4) having regard to the context. The use of the expression ‘provision’ in Clause (4) of Article 16 appears to us to be not without design. According to the definition of ‘State’ in Article 12, it includes not merely the government and Parliament of India and Government and Legislature of each of the
States but all local authorities and other authorities within the territory of India or under the control of the Government of India which means that such a measure of reservation can be provided not only in the matter of services under the Central and State Governments but also in the services of local and other authorities referred to in Article 12. The expression ‘Local
Authority’ is defined in Section 3(31) of the General Clauses Act. It takes in all municipalities, 'Panchayats and other similar bodies. The expression ‘other authorities’ has received extensive attention from the court. It includes all statutory authorities and other agencies and instrumentalities of the State Government/Central Government. Now, would it be reasonable, possible or practicable to say that the Parliament or the Legislature of the State should provide for reservation of posts/appointments in the services of all such bodies besides providing for in respect of services under the Central/State Government?
… The very use of the word “provision” in Article 16(4) is significant. Whereas Clauses
3) and (5) of Article 16 - and Clauses (2) to (6) of Article 19 - use the word “Law”, Article
16(4) uses the word “provision”. Regulation of service conditions by orders and Rules made by the Executive was a well-known feature at the time of the framing of the Constitution.
Probably for this reason, a deliberate departure has been made in the case of Clause (4).
Accordingly, we hold, agreeing with Balaji, that the “provision” contemplated by Article 16(4) can also be made by the executive wing of the Union or of the State, as the case may be, as has been done in the present case.
… With respect to the argument of abuse of power by the political executive, we may say that there is adequate safeguard against misuse by the political executive of the power under
Article 16(4) in the provision itself. Any determination of backwardness is not a subjective exercise nor a matter of subjective satisfaction. As held herein - as also by earlier judgments the exercise is an objective one. Certain objective social and other criteria has to be satisfied before any group or class of citizens could be treated as backward. If the executive includes, for collateral reasons, groups or classes not satisfying the relevant criteria, it would be a clear case of fraud on power.
… A question is raised whether an executive order made in terms of Article 16(4) is effective and enforceable by itself or whether it is necessary that the said “provision” is enacted
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into a law made by the appropriate Legislature under Article 309 or is incorporated into and issued as a Rule by the President/Governor under the proviso to Article 309 for it to become enforceable? Mr. Jethmalani submits that Article 16(4) is merely declaratory in nature, that it is an enabling provision and that it is not a source of power by itself. He submits that unless made into a law by the appropriate Legislature or issued as a rule in terms of the proviso to
Article 309, the “provision” so made by the Executive does not become enforceable. At the same time, he submits that the impugned Memorandums must be deemed to be and must be treated as Rules made and issued under the proviso to Article 309 of the Constitution. We find it difficult to agree with Sri Jethmalani. Once we hold that a provision under Article 16(4) can be made by the executive, it must necessarily follow that such a provision is effective the moment it is made. …
… [T]here is yet another reason, why we cannot agree that the impugned Memorandums are not effective and enforceable the moment they are issued. It is well settled by the decisions of this Court that the appropriate government is empowered to prescribe the conditions of service of its employees by an executive order in the absence of the rules made under the proviso to Article 309. It is further held by this Court that even where Rules under the proviso to Article 309 are made, the government can issue orders/instructions with respect to matters upon which the Rules are silent. … It would, therefore, follow that until a law is made or rules are issued under Article 309 with respect to reservation in favour of backward classes, it would always be open to the Executive (Government) to provide for reservation of appointments/posts in favour of Backward Classes by an executive order. We cannot also agree with Mr. Jethmalani that the impugned Memorandums should be treated as Rules made under the proviso to Article
309. There is nothing in them suggesting even distantly that they were issued under the proviso to Article 309. They were never intended to be so, nor is that the stand of the Union Government before us. They are executive orders issued under Article 73 of the Constitution read with
Clause (4) of Article 16. The mere omission of a recital “in the name and by order of the
President of India” does not affect the validity or enforceability of the orders, as held by this
Court repeatedly.
… In our respectful opinion, the view taken by the majority in Thomas is the correct one.
We too believe that Article 16(1) does permit reasonable classification for ensuring attainment of the equality of opportunity assured by it. For assuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons unequally. Not doing so, would perpetuate and accentuate inequality. Article 16(4) is an instance of such classification, put in to place the matter beyond controversy. The “backward class of citizens” are classified as a separate category deserving a special treatment in the nature of reservation of appointments/posts in the services of the State. Accordingly, we hold that Clause (4) of Article
16 is not exception to Clause (1) of Article 16. It is an instance of classification implicit in and permitted by Clause (1). The speech of Dr. Ambedkar during the debate on draft Article 10(3)
[corresponding to Article 16(4)] in the Constituent Assembly - referred to in para 28 - shows that a substantial number of members of the Constituent Assembly insisted upon a “provision
(being) made for the entry of certain communities which have so far been outside the administration”, and that draft Clause (3) was put in recognition and acceptance of the said demand. It is a provision which must be read along with and in harmony with Clause (1).
Indeed, even without Clause (4), it would have been permissible for the State to have evolved such a classification and made a provision for reservation of appointments/posts in their favour.
Clause (4) merely puts the matter beyond any doubt in specific terms.
… It had to be accepted that Clause (4) is an instance of classification inherent in Clause
(1). Now, just as Article 16(1) is a facet or an elaboration of the principle underlying Article
14, Clause (2) of Article 16 is also an elaboration of a facet of Clause (1). If Clause (4) is an
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exception to Clause (1) then it is equally an exception to Clause (2). Question then arises, in what respect is Clause (4) an exception to Clause (2), if ‘class’ does not means ‘caste’. Neither
Clause (1) nor Clause (2) speak of class. Does the contention mean that Clause (1) does not permit classification and therefore Clause (4) is an exception to it. Thus, from any point of view, the contention of the petitioners has no merit.
… The question than arises whether Clause (4) of Article 16 is exhaustive of the topic of reservations in favour of backward classes. Before we answer this question it is well to examine the meaning and content of the expression “reservation”. … In our opinion, reservation is the highest form of special provision, while preference, concession and exemption are lesser forms.
The Constitutional scheme and context of Article 16(4) induces us to take the view that larger concept of reservations takes within its sweep all supplemental and ancillary provisions as also lesser types of special provisions like exemptions, concessions and relaxations, consistent no doubt with the requirement of maintenance of efficiency of administration - the admonition of
Article 335. … In our opinion, therefore, where the State finds it necessary - for the purpose of giving full effect to the provision of reservation to provide certain exemptions, concessions or preferences to members of backward classes, it can extend the same under Clause (4) itself. In other words, all supplemental and ancillary provisions to ensure full availment of provisions for reservation can be provided as part of concept of reservation itself. Similarly, in a given situation, the State may think that in the case of a particular backward class it is not necessary to provide reservation of appointments/posts and that it would be sufficient if a certain preference or a concession is provided in their favour. This can be done under Clause (4) itself.
In this sense, Clause (4) of Article 16 is exhaustive of the special provisions that can be made in favour of "the backward class of citizens". Backward Classes having been classified by the
Constitution itself as a class deserving special treatment and the Constitution having itself specified the nature of special treatment, it should be presumed that no further classification or special treatment is permissible in their favour apart from or outside of Clause (4) of Article
16.
The aspect next to be considered is whether Clause (4) is exhaustive of the very concept of reservations? In other words, the question is whether any reservations can be provided outside
Clause (4) i.e., under Clause (1) of Article 16. There are two views on this aspect. On a fuller consideration of the matter, we are of the opinion that Clause (4) is not, and cannot be held to be, exhaustive of the concept of reservations; it is exhaustive of reservations in favour of backward classes alone. Merely because one form of classification is stated as a specific clause, it does not follow that the very concept and power of classification implicit in Clause (1) is exhausted thereby. To say so would not be correct in principle. But, at the same time, one thing is clear. It is in very exceptional situations, and not for all and sundry reasons - that any further reservations, of whatever kind, should be provided under Clause (1). In such cases, the State has to satisfy, if called upon, that making such a provision was necessary (in public interest) to redress a specific situation. The very presence of Clause (4) should act as a damper upon the propensity to create further classes deserving special treatment. The reason for saying so is very simply. If reservations are made both under Clause (4) as well as under Clause (1), the vacancies available for free competition as well as reserved categories would be correspondingly whittled down and that is not a reasonable thing to do.
For the reasons given in the preceding paragraphs we must reject the argument that Clause
(1) of Article 16 permits only extending of preferences, concessions and exemptions, but does not permit reservation of appointments/posts. … [T]he argument that no reservations can be made under Article 16(1) is really inspired by the opinion of Powell, J. in Bakke. But in the very same paragraph we had pointed out that it is not the unanimous opinion of the Court. In principle, we see no basis for acceding to the said contention. What kind of special provision
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should be made in favour of a particular class is a matter for the State to decide, having regard to the facts and circumstances of a given situation - subject, of course, to the observations in the preceding paragraph.
QUESTIONS 3, 4 AND 5
… What does the expression “Backward Class of Citizens” in Article 16(4) signify and how should they be identified? This has been the single most difficult question tormenting this nation. The expression is not defined in the Constitution. What does it mean then? The arguments before us mainly revolved round this question. Several shades of opinion have been presented to us ranging from one extreme to the other. Indeed, it may be difficult to set out in full the reasoning presented before us orally and in several written propositions submitted by various counsel. We can mention only the substance of and the broad features emerging from those submissions. At one end of the spectrum stands Mr. N.A. Palkhiwala (supported by several other counsel) whose submissions may briefly be summarised in the following words: a secular, unified and caste-less society is a basic feature of the Constitution. Caste is a prohibited ground of distinction under the Constitution. It ought to be erased altogether from the Indian Society. It can never be the basis for determining backward classes referred to in
Article 16(4). The Report of the Mandal Commission, which is the basis of the impugned
Memorandums, has treated the expression “backward classes” as synonymous with backward castes and has proceed to identify backward classes solely and exclusively on the basis of caste, ignoring all other considerations including poverty. It has indeed invented castes for NonHindus where none exists. The Report has divided the nation into two sections, backward and forward, placing 52% of the population in the former section. Acceptance of Report would spell disaster to the unity and integrity of the nation. If half of the posts are reserved for backward classes, it would seriously jeopardise the efficiency of the administration, educational system, and all other services resulting in backwardness of the entire nation. Merit will disappear by deifying backwardness. Article 16(4) is broader than Article 15(4). The expression “backward class of citizens” in Article 16(4) is not limited to “socially and educationally backward classes” in Article 15(4). The impugned Memorandums, based on the said report must necessarily fall to the ground along with the Report. In fact the main thrust of
Mr. Palkhiwala 's argument has been against the Mandal Commission Report.
… At the other end of the spectrum stands Mr. Ram Jethmalani, counsel appearing for the
State of Bihar supported by several other counsel. According to him, backward castes in Article
16(4) meant and means only the members of Shudra casts which is located between the three upper castes (Brahmins, Kshatriyas and Vaishyas) and the out-castes (Panchamas) referred to as Scheduled Castes. According to him, Article 16(4) was conceived only for these “middle castes” i.e., castes categorised as shudras in the caste system and for none else. These backward castes have suffered centuries of discrimination and disadvantage, leading to their backwardness. The expression “backward classes” does not refer to any current characteristic of a backward caste save and except paucity or inadequacies of representation in the apparatus of the Government. Poverty is not a necessary criterion of backwardness; in is in fact irrelevant.
The provision for reservation is really a programme of historical compensation. It is neither a measure of economic reform nor a poverty alleviation programme. The learned Counsel further submitted that it is for the State to determine who are the backward classes; it is not a matter for the court. The decision of the Government is not judicially reviewable. Even if reviewable, the scope of judicial review is extremely limited - to the only question whether the exercise of power is a fraud on the Constitution. The learned Counsel referred to certain American decisions to show that even in that country several programmes of affirmative action and compensatory discrimination have been evolved and upheld by courts.
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… What then is a caste? Though caste has been discussed by scholars and jurists, no precise definition of the expression has emerged. A caste is a horizontal segmental division of society spread over a district or a region or the whole State and also sometimes outside it. Homo
Hierarchicus is expected to be the central and substantive element of the caste/system which differentiate it from other social systems. The concept of purity and impurity conceptualises the caste system. There are four essential features of the caste system which maintained its homo hierarchicus character: (1) hierarchy (2) commensality: (3) restrictions on marriage; and
(4) hereditary occupation. Most of the caste are endogamous groups. Intermarriage between two groups is impermissible. But ‘Pratilom’ marriages are not wholly known.
… The above material makes it amply clear that a caste is nothing but a social class - a socially homogeneous class. It is also an occupational grouping, with this difference that its membership is hereditary. One is born into it. Its membership is involuntary. Even if one ceases to follow that occupation, still he remains and continues a member of that group. To repeat, it is a socially and occupationally homogenous class. Endogamy is its main charateristic. Its social status and standing depends upon the nature of the occupation followed by it. Lowlier the occupation, lowlier the social standing of the class in the graded hierarchy. In rural India, occupation-caste nexus is true even today. A few members may have gone to cities or even abroad but when they return - they do, barring a few exceptions they go into the same fold again. It doesn 't matter if he has earned money. He may not follow that particular occupation.
Still, the label remains. His identity is not changed. For the purposes of marriage, death and all other social functions, it is his social class - the caste - that is relevant. It is a matter of common knowledge that an overwhelming majority of doctors, engineers and other highly qualified people who go abroad for higher studies or employment, return to India and marry a girl from their own caste. Even those who are settled abroad come to India in search of brides and bridegrooms for their sons and daughters from among their own caste or community.
As observed by Dr. Ambedkar, a caste is an enclosed class and it was mainly these classes the Constituent Assembly had in mind though not exclusively - while enacting Article 16(4).
Urbanisation has to some extent broken this caste- occupation nexus but not wholly. If one sees around himself, even in towns and cities, a barber by caste continues to do the same job - may be, in a shop (hair dressing saloon). A washerman ordinarily carries on the same job though he may have a laundry of his own. May be some others too carry on the profession of barber or washerman but that does not detract from the fact that in the case of an over-whelming majority, the caste-occupation nexus subsists. In a rural context, of course, a member of barber caste carrying on the occupation of a washerman or vice versa would indeed be a rarity - it is simply not done. There, one is supposed to follow his caste occupation, ordained for him by his birth.
There may be exceptions here and there, but we are concerned with generality of the scene and not with exceptions or aberrations. Lowly occupation results not only in low social position but also in poverty; it generates poverty. ‘Caste-occupation-poverty’ cycle is thus an ever present reality. In rural India, it is strikingly apparent; in urban centers, there may be some dilution.
But since rural India and rural population is still the overwhelmingly predominant fact of life in india, the reality remains. All the decisions since Balaji speak of this 'caste-occupationpoverty ' nexus. The language and emphasis may very but the theme remains the same. This is the stark reality notwithstanding all our protestations and abhorrence and all attempts at weeding out this phenomenon. We are not saying it ought to be encouraged. It should not be.
It must be eradicated. That is the ideal - the goal. But any programme towards betterment of these sections-classes of society and any programme designed to eradicate this evil must recognise this ground reality and attune its programme accordingly. Merely burying our heads in the sand - Ostrich-like - wouldn 't help. One cannot fight his enemy without recognizing him.
The U.S. Supreme Court has said repeatedly, if race be the basis of discrimination - past and present - race must also form the basis of redressal programmes though in our constitutional
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scheme, it is not necessary to go that far. Without a doubt, an extensive restructuring of socioeconomic system is the answer. That is indeed the goal, as would be evident from the preamble and Part IV (Directive Principles). But we are concerned here with a limited aspect of equality emphasised in Article 16(4) - equality of opportunity in public employment and a special provision in favour of backward class of citizens to enable them to achieve it.
… Now, we may turn to the identification of "backward class of citizens". How do you go about it? …There is no set or recognised method. There is no law or other statutory instrument prescribing the methodology. …We must also say that there is no rule of law that a test to be applied for identifying backward classes should be only one and/or uniform. In a vast country like India, it is simply not practicable. If the real object is to discover and locate backwardness, and if such backwardness is found in a caste, it can be treated as backward; if it is found in any other group, section or class, they too can be treated as backward. … Reservation is not being made under Clause (4) in favour of a ‘caste’ but a ‘backward class’. Once a caste satisfies the criteria of backwardness, it becomes a backward class for the purposes of Article 16(4). Even that is not enough. It must be further found that that backward class is not adequately represented in the services of the State. In such a situation, the bar of Clause (2) of Article 16 has no application whatsoever. Similarly, the argument based upon secular nature of the
Constitution is too vague to be accepted. It has been repeatedly held by the U.S. Supreme Court in School desegregation cases that if race be the basis of discrimination, race can equally form the basis of redressal. In any event, in the present context, it is not necessary to go to that extent.
It is sufficient to say that the classification is not on the basis of the caste but on the ground that that caste is found to be a backward class not adequately represented in the services of the
State….
… The other aspect to be considered is whether the backwardness contemplated in Article
16(4) is social backwardness or educational backwardness or whether it is both social and educational backwardness. Since the decision in Balaji, it has been assumed that the backward class of citizens contemplated by Article 16(4) is the same as the socially and educationally backward classes, Scheduled Castes and Scheduled Tribes mentioned in Article 15(4). Though
Article 15(4) came into existence later in 1951 and Article 16(4) does not contain the qualifying words ‘socially and educationally’ preceding the words “backward class of citizens” the same meaning came to be attached to them.
… The S.E.B.Cs. referred to by the impugned Memorandums are undoubtedly 'backward class of citizens ' within the meaning of Article 16(4). 'Means test ' in this discussion signifies imposition of an income limit, for the purpose of excluding persons (from the backward class) whose income is above the said limit. This submission is very often referred to as “the creamy layer” argument. Petitioners submit that some members of the designated backward classes are highly advanced socially as well as economically and educationally. It is submitted that they constitute the forward section of that particular backward class - as forward as any other forward class member - and that they are lapping up all the benefits of reservations meant for that class, without allowing the benefits to reach the truly backward members of that class. These persons are by no means backward and with them a class cannot be treated as backward. … [W]e direct the Government of India to specify the basis of exclusion - whether on the basis of income, extent of holding or otherwise
- of ‘creamy layer’. This shall be done as early as possible, but not exceeding four months. On such specification persons falling within the net of exclusionary rule shall cease to be the members of the Other Backward Classes (covered by the expression 'backward class of citizens ') for the purpose of Article 16(4). The impugned Office Memorandums dated 13th
August, 1990 and 25th September, 1991 shall be implemented subject only to such specification and exclusion of socially advanced persons from the backward classes contemplated by the
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said O.M. In other words, after the expiry of four months from today, the implementation of the said O.M. shall be subject to the exclusion of the ‘creamy layer’ in accordance with the criteria to be specified by the Government of India and not otherwise. …
QUESTION NOS. 6, 7 AND 8
… We must, however, point out that Clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Articles 330 and
332 of the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok Sabha and the State Legislatures in favour of Scheduled Tribes and Scheduled
Castes proportionate to their population, but they are only temporary and special provisions. It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant. Just as every power must be exercised reasonably and fairly, the power conferred by
Clause (4) of Article 16 should also be exercised in a fair manner and within reasonably limits
- and what is more reasonable than to say that reservation under Clause (4) shall not exceed
50% of the appointments or posts, barring certain extra-ordinary situations as explained hereinafter. From this point of view, the 27% reservation provided by the impugned
Memorandums in favour of backward classes is well within the reasonable limits. Together with reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of
49.5%. In this connection, reference may be had to the Full Bench decision of the Andhra
Pradesh High Court in Narayan Rao v. State 1987 A.P. 53, striking down the enhancement of reservation from 25% to 44% for O.B.Cs. The said enhancement had the effect of taking the total reservation under Article 16(4) to 65%.
… From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in Clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.
… We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations ' and 'horizontal reservations '.
The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes
[under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under Clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations that is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article
16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain
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- the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.
It is, however, made clear that the rule of 50% shall be applicable only to reservations proper; they shall not be - indeed cannot be - applicable to exemptions, concessions or relaxations, if any provided to ‘Backward Class of Citizens’ under Article 16(4).
… While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In such situations. It may not be advisable to provide for reservations. For example, technical posts in research and development organisations/departments/institutions, in specialities and super-specialties in medicine, engineering and other such courses in physical sciences and mathematics, in defence services and in the establishments connected therewith. Similarly, in the case of posts at the higher echelons e.g., Professors (in Education), Pilots in Indian Airlines and Air India,
Scientists and Technicians in nuclear and space application, provision for reservation would not be advisable.
QUESTIONS 9, 10 & 11 AND OTHER MISCELLANEOUS QUESTIONS
It is enough to say on this question that there is no particular or special standard of judicial scrutiny in matters arising under Article 16(4) or for that matter, under Article 15(4). The extent and scope of judicial scrutiny depends upon the nature of the subject matter, the nature of the right affected, the character of the legal and constitutional provisions applicable and so on. The acts and orders of the State made under Article 16(4) do not enjoy any particular kind of immunity. At the same time, we must say that court would normally extend due deference to the judgment and discretion of the Executive - a co-equal wing - in these matters. The political executive, drawn as it is from the people and represent as it does the majority will of the people, is presumed to know the conditions and the needs of the people and hence its judgment in matters within its judgment and discretion will be entitled to due weight. More than this, it is neither possible nor desirable to say. It is not necessary to answer the question as framed.
… The object of the clause is to provide a preference in favour of more backward among the “socially and educationally backward classes”. In other words, the expression 'poorer sections ' was meant to refer to those who are socially and economically more backward. The use of the word 'poorer ', in the context, is meant only as a measure of social backwardness. (Of course, the Government is yet to notify which classes among the designated backward classes are more socially backward, i.e., 'poorer sections '). Understood in this sense, the said classification is not and cannot be termed as invalid either constitutionally speaking or in law.
The next question that arises is: what is the meaning and context of the expression 'preference '?
Having regard to the fact the backward classes are sought to be divided into two sub-categories, viz., backward and more backward, the expression 'preference ' must be read down to mean an equitable apportionment of the vacancies reserved (for backward classes) among them. The object evidently could not have been to deprive the 'backward ' altogether from benefit of reservation, which could be the result if word 'preference ' is read literally - if the 'more backward ' take away all the available vacancies/posts reserved for O.B.Cs., none would remain for 'backward ' among the O.B.Cs. It is for this reason that we are inclined to read down the expression to mean an equitable apportionment. This, in our opinion, is the proper and reasonable way of understanding the expression preference in the context in which it occurs.
By giving the above interpretation, we would be effectuating the underlying purpose and the true insertion behind the clause.
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It shall be open to the Government to notify which classes among the several designated other backward classes are more backward for the purposes of this clause and the apportionment of reserved vacancies/posts among 'backward ' and "more backward". On such notification the clause will become operational.
SHOULD THE MATTER GO BACK TO CONSTITUTION BENCH TO GO INTO THE
DEFECTS OF THE MANDAL COMMISSION REPORT
…The first and foremost criticism levelled against the approach and the procedure adopted by Mandal Commission in that the Mandal Commission has adopted caste and caste alone as the basis of its approach throughout. On this count alone, it is argued, the entire report of the
Commission is vitiated. It is pointed out that in its very first letter dated 25th April, 1979
(Appendix VII at page 91-Vol. 2) addressed to all the Ministries and Departments of the Central
Government, the Commission has prescribed the following test for determining the socially and educationally backward classes:
(a) In respect of employees belonging to the Hindu communities
(i) an employee will be deemed to be socially backward if he does not belong to any of the three twice-born (Dvij) 'Varnas ' i.e., he is neither a Brahmin, nor a
Kshatriya/nor a Vaishya; and
(ii) he will be deemed to be educationally backward if neither his father nor his grant father has studied beyond the primary level.
(b) Regarding the non-Hindu Communities
(i) an employee will be deemed to be socially backward if either
(1) he is a convert from those Hindu communities which have been defined as socially backward as per para 4(a)(i) above, or
(2) in case he is not such a convert, his parental income is below the prevalent poverty line, i.e., Rs. 71 per head per month.
(ii) he will be deemed to be educationally backward if neither his father nor his grand father had studied beyond the primary level.
Serious objection is taken to the above criteria. Treating all the Hindus not belonging to three upper castes as socially and educationally backward classes, it is submitted, is faulty to the core. In the case of non-Hindus, the prescription of income limit is said to be arbitrary. The criteria for identifying backward classes must be uniform for the entire population; it cannot vary from religion to religion. This shows, says the counsel, the impropriety and impermissibility of adopting the caste as the basis of identification, since castes exist only in the Hindu religion and not in others. On the basis of the statements made in Chapters IV and
V, it is submitted that the Commission was obsessed by caste and was blind to all other determinants. It is also pointed out that the Survey done by the Commission is cursory, totally inadequate and faulty. According to the petitioners, the survey must be an exhaustive one like the one done by Venkataswamy Commission in Karnataka, which also forms the basis of
Justice Chinnappa Reddy Commission Report. Carrying out the Survey to cover merely two villages and one urban block in each District is not likely to disclose a true picture since it does not represent survey of even one percent of the population. Objection is also taken to use of personal knowledge and also to reliance upon lists of backward classes prepared by State
Governments. It is repeatedly urged that the survey done by the Commission cannot be called a scientific one, which has led to discovery of as many as 3,743 castes and their identification as socially and educationally backward classes. This is a steep increase over Kalelkar
Commission, according to which, the number of S.E.B.Cs. was only 2,733. It is pointed out further that certain castes which obtained less than 11 points on being tested against the criteria
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evolved by the Commission are included among the backward classes. Conversely, certain castes which obtained 11 or more points are yet excluded from the list of backward classes. It is urged that the caste based approach adopted by the Commission has practically divided the nation into a forward section and a backward section. If Scheduled Castes and Scheduled Tribes are also added to the Other Backward Classes, more than 81 per cent of the population gets designated as backward. But for the decision in Balaji, it is submitted, the Commission would certainly have recommended reservation of 52 per cent of the appointments/posts in favour of the backward classes. The Commission was actuated by malice towards upper castes and has submitted an unbalanced, unjust and unconstitutional report, it is argued.
Respondent 's counsel, on the other hand, have refuted each and every contention of the petitioners. According to them, the criteria evolved, the methodology adopted, identification made and lists prepared are all perfectly valid and legal. The Union of India, while justifying the Report, has taken the stand that even if there are any errors or inadequacies in the work and report of the Commission, it is no ground for throwing out the report altogether, more particularly when the Government of India has taken care by 'marrying ' the Mandal lists with the State lists. If any errors are brought to the notice of the Government, Sri Parasaran says, the
Government will certainly look into them and rectify them, if satisfied about the error.
… [I]dentifying the impugned Office Memorandums with the Mandal Commission report is basically erroneous. Such an identification is bound to lead one into confusion. He would be missing the wood for the trees. Instead of concentrating on the real issues, he would deviate into irrelevance and imbalance. Mandal Commission report may have led to the passing of the impugned Office Memorandum dated 13th August, 1990; it may have acted as the catalytic agent in bringing into existence the reservation in favour of O.B.Cs. (loosely referred to as
SEBCs. in the O.M.) but the Office Memorandum dated 13th August, 1990 doesn 't incorporate the Mandal lists of O.B.Cs. as such. It incorporates, in truth and effect, the State lists as explained hereinabove. In a social measure like the impugned one, the court must give due regard to the judgment of the Executive, a co-equal wing of the State and approach the measure in the spirit in which it is conceived. …
… We may summarise our answers to the various questions dealt with and answered hereinabove: (1)(a) It is not necessary that the 'provision ' under Article 16(4) should necessarily be made by the Parliament/Legislature. Such a provision can be made by the Executive also. Local bodies, Statutory Corporations and other instrumentalities of the State falling under Article 12 of the Constitution are themselves competent to make such a provision, if so advised….
(b) An executive order making a provision under Article 16(4) is enforceable the moment it is made and issued. …
(2)(a) Clause (4) of Article 16 is not an exception to Clause (1). It is an instance and an illustration of the classification inherent in Clause (1). …
(b) Article 16(4) is exhaustive of the subject of reservation in favour of backward class of citizens, as explained in this judgment. …
(c) Reservations can also be provided under Clause (1) of Article 16. It is not confined to extending of preferences, concessions or exemptions alone. These reservations, if any, made under Clause (1) have to be so adjusted and implemented as not to exceed the level of representation prescribed for 'backward class of citizens ' - as explained in this Judgment. …
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(3)(a) A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons, are socially backward. They too represent backward social collectives for the purposes of Article 16(4). …
(b) Neither the Constitution nor the law prescribes the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. It can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can certainly be done with reference to castes among, and along with, other occupational groups, classes and sections of people. One can start the process either with the occupational groups or with castes or with some other groups. Thus one can start the process with the castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfies the criteria. If it does - what emerges is a “backward class of citizens” within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming majority of the country 's population, one can well begin with it and then go to other groups, sections and classes. …
(c) It is not necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Castes/Scheduled Tribes. …
(d) 'Creamy layer ' can be, and must be excluded. …
(e) It is not correct to say that the backward class of citizens contemplated in Article 16(4) is the same as the socially and educationally backward classes referred to in Article 15(4). It is much wider. The accent in Article 16(4) is on social backwardness. Of course, social, educational and economic backwardness are closely inter-twined in the Indian context. …
(f) The adequacy of representation of a particular class in the services under the State is a matter within the subjective satisfaction of the appropriate Government. The judicial scrutiny in that behalf is the same as in other matters within the subjective satisfaction of an authority.
…
(4)(a) A backward class of citizens cannot be identified only and exclusively with reference to economic criteria. …
(b) It is, of course, permissible for the Government or other authority to identify a backward class of citizens on the basis of occupation-cum-income, without reference to caste, if it is so advised. …
(5) There is no constitutional bar to classify the backward classes of citizens into backward and more backward categories. …
(6)(a)&(b) The reservations contemplated in Clause (4) of Article 16 should not exceed
50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main-stream of national life and in view of the conditions peculiar to and characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out. …
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(c) The rule of 50% should be applied to each year. It cannot be related to the total strength of the class, category, service or cadre, as the case may be. …
(d) Devadasan was wrongly decided and is accordingly over-ruled to the extent it is inconsistent with this judgment. …
(7) Article 16(4) does not permit provision for reservations in the matter of promotion. This rule shall, however, have only prospective operation and shall not affect the promotions already made, whether made on regular basis or on any other basis. We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. If is further directed that wherever reservations are already provided in the matter of promotion - be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of 'State ' in Article 12 - such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of backward class of citizens in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it do so. … It would not be impermissible for the State to extent concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration. …
(8) While the rule of reservation cannot be called anti-meritarion, there are certain services and posts to which it may not be advisable to apply the rule of reservation. …
(9) The distinction made in the impugned Office Memorandum dated 25th September, 1991 between ‘poorer sections’ and others among the backward classes is not invalid, if the classification is understood and operated as based upon relative backwardness among the several classes identified as other Backward classes, as explained in … this Judgment … The reservation of 10% of the posts in favour of’ ‘other economically backward sections of the people who are not covered by any of the existing schemes of the reservation’ made in the impugned office memorandum dated 25.9.1991 is constitutionally invalid and is accordingly struck down. …
(12) There is no particular or special standard of judicial scrutiny applicable to matters arising under Article 16(4). …
(13) The Government of India and the State Governments have the power to, and ought to, create a permanent mechanism - in the nature of a Commission - for examining requests of inclusion and complaints of over-inclusion or non-inclusion in the list of O.B.Cs. and to advise the Government, which advice shall ordinarily be binding upon the Government. Where, however, the Government does not accept the advice, it must record its reasons therefor.
JUSTICE THOMMEN (for himself, DISSENTING) [Justices Singh & Sahai CONCURRING but wrote their separate opinions]
… The 'indicators ' or 'criteria ' adopted in the Mandal Report are broadly grouped as social, educational and economic on the basis of castes/classes. The Commission has identified classes with castes and backwardness with particular castes. Castes which are socially, educationally and economically backward are characterised as backward classes entitled to the benefit of reservation. Persons are grouped on the basis of caste either because they are members of it by reason of their being Hindus or because they were members of it in the past prior to their conversion to other religions. Identification of backwardness is thus made with reference to the present or past caste affiliations of the people. … The Report has thus treated all persons who
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belong, or who had once belonged, to what had been regarded as untouchable or other traditionally backward caste or communities or who belong to certain low occupations as socially, educationally and economically backward.
… The fundamental question is, what is the raison d 'etre of reservation and what are its limits. The Constitution permits the State to adopt such affirmative action as it deems necessary to uplift the backward classes of citizens to levels of equality with the rest of our countrymen.
The backward classes of citizens have been in the past denied access to Government services on account of their inability to compete effectively in open selections on the basis of merits. It is, therefore, open to the Government to reserve a certain number of seats in places of learning and public services in favour of the Scheduled Castes and Scheduled Tribes and other backward classes to the exclusion of all others, irrespective of merits. The impugned Government orders, have made reservation by setting aside quotas in Government services exclusively for backward classes of candidates.
… Referring to the concept of equality of opportunity in public employment, as embodied in Article 10 of the Draft Constitution, which finally emerged as Article 16 of the Constitution, and the conflicting claims of various communities for representation in public administration,
Dr. Ambedkar emphatically declared that reservation should be confined to ‘a minority of seats’, lest the very concept of equality should be destroyed…
… What the Constitution permits is the adoption of suitable and appropriate measures to correct the continuing evil effects of prior discrimination. Over-inclusiveness in such measures by unduly widening the net of reservation to unjustifiably protect the ill-deserved at the expense of the others would result in invidious discrimination offending the Constitutional objective.
Benign classification for affirmative action by reservation must stay strictly within the narrow bounds of remedial actions. Any such programme must be consistent with the fundamental objective of equality. Classes of people saddled with disabilities rooted in history of purposeful unequal treatment and consequently relegated to social, educational, economic and political powerlessness particularly qualify to demand the extraordinary and special protection of reservation. Reservation is meant to remedy the handicap of prior discrimination impeding the access of classes of people to public administration. It is for the State to determine whether the evil effects of inequities stemming from prior discrimination against classes of people have resulted in their being reduced to positions of backwardness and consequent under representation in public administration. Reservation is a remedy or a cure for the ill effects of historical discrimination. … Reservation is not an end in itself. It is a means to achieve equality. The policy of reservation adopted to achieve that end must, therefore, be consistent with the objective in view. Reservation must not outlast its constitutional object, and must not allow a vested interest to develop and perpetuate itself. There will be no need for reservation or preferential treatment once equality is achieved. Achievement and preservation of equality for all classes of people, irrespective of their birth, creed, faith or language is one on the noble ends to which the
Constitution is dedicated. Every reservation founded on benign discrimination, and justifiably adopted to achieve the constitutional mandate of equality, must necessarily be a transient passage to that end. It is temporary in concept, limited in duration, conditional in application and specific in object. Reservation must contain within itself the seeds of its termination. Any attempt to perpetuate reservation and upset the constitutional mandate of equality is destructive of liberty and fraternity and all the basic values enshrined in the Constitution. A balance has to be maintained between the competing values and the rival claims and interests so as to achieve equality and freedom for all.
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The makers of the Constitution were fully conscious of the unfortunate position of the
Scheduled Castes and Scheduled Tribes. To them equality, liberty and fraternity are but a dream; an ideal guaranteed by the law, but far too distant to reach; far too illusory to touch.
These backward people and others in like positions of helplessness are the favoured children of the Constitution. It is for them that ameliorative and remedial measures are adopted to achieve the end of equality. To permit those who are not intended to be so specially protected to compete for reservation is to dilute the protection and defeat the very constitutional aim.
The victims of prior injustice are the special favourites of the laws. Their plight is a shameful scar on the national conscience. It is a constitutional command that prompt measures are adopted by the State for the promotion of these unfortunate classes of people specially to positions of comparative enlightement, culture, knowledge, influence, affluence and prestige so as to place them on levels of equality with the more fortunate of our countrymen.
Reservation must one day become unnecessary and a relic of an unfortunate past. Every such action must be a transient self-liquidating programme. That is the hope and dream cherished by the Constitution Makers and that is the end to which the State has to address itself in making special provisions for the chosen classes of people for special constitutional protection, so that "persons will be regarded as persons, and discrimination of the type we address today will be an ugly feature of history that is instructive but that is behind us"; Per
Justice T. Marshall, Regents of the University of California v. Allan Bakke 438 US 265, 57 L
Ed. 2d 750. …
… Historically, backwardness has been the curse of people must of whom are characterised as the Scheduled Castes and the Scheduled Tribes. These are not castes as such, but classes of people composed of castes, races or tribes or tribal communities or parts or groups thereof and classified as such by means of presidential notifications owing to their extreme backwardness and other disadvantages (see Articles 341 and 342).
… Any identification made for the purpose of Article 15 or Article 16 solely with reference to caste or religion, and without regard to the real issue of backwardness, will be an impermissible classification resulting in invidious reverse discrimination. The fact that identification of backwardness may involve a reference to religion, race, caste, occupation, place of residence or the like in respect of classes of people does not mean that any one of these factors is the sole or the dominant or the indispensable criterion. Backwardness may be the result of a combination of two or more of these factors. Persons of a particular place or occupation may have been enslaved as bonded labourers, or otherwise held in serfdom and exploited and discriminated against, and may have over a period of time degenerated to such social and educational backwardness as to qualify for the special protection of the Constitution.
No matter to what caste or community or religion they belonged or from what place they came, their present plight stemming from prior inequities and continuing over a period of time and thus placing them in a state of total helplessness qualifies them for the special protection of reservation. Historically, backwardness, as stated above, has been most acute at the lowest levels of our society and it has been invariably identified with low castes and demeaning occupations. But if, as a matter of fact, classes of citizens of higher castes have suffered continuously by reason of discrimination or exploitation by persons having authority and power over them and have consequently been reduced to poverty, ignorance and isolation resulting in social and educational backwardness, whatever be the caste of the exploiters or of the victims, the constitutional protection has to be extended to such classes of victims. They must be helped out of their present plight resulting from prior or continuing discrimination or exploitation.
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Proof of their backwardness is not in their caste or religion, but in their poverty, ignorance and consequential disabilities.
… To contend that caste, and caste alone, is the criterion identification of backwardness is to disregard the innumerable reasons for backwardness. At the same time, to ignore caste as a factor in identifying backwardness for the purpose of reservation is to shut one 's eyes to the realities and ignore the cause of injustice from which large sections of people in this country have for generations suffered and still suffer, namely, naked exploitation and discrimination by those in positions of power and affluence. The realities of life in India militate against total exclusion of consideration based on caste or total concentration on caste in identifying backwardness caused by past inequities.
The Constitution is neither caste-blind nor caste-prejudiced nor caste-overcharged, but fully alive to caste as one of the relevant criteria to be reckoned in the process of identification of backward classes of citizens. India is not a nation of castes but of people with roots in divergent castes. What the Constitution seeks to identify is not the backward caste, but the backward class of citizens who may in many cases be partly or in some cases predominantly or even solely identified with particular caste.
The question is not whether the Constitution is caste-blind or caste prejudiced; the question really is who are the backward classes of citizens intended to be protected by reservation under
Article 15 or Article 16. If reservation is limited solely to the Scheduled Castes and the
Scheduled Tribes and other comparably backward classes of citizens, as it must be under the
Constitution, then the Harijans, the Girijans, the Adivasis, the Dalits, and other like backward classes of citizens, once known as the "untouchables" or the "outcastes" or the "depressed classes" by reason of their "low" birth and "demeaning" occupation, or any other class of citizens afflicted by like degree of degeneration deprivation caused by prior and continuing discrimination, exploitation, neglect, poverty, disease, isolation, bondage and humiliation, whatever be their caste, religion or place of origin, will alone qualify for reservation. Call them a class or a caste or a race or a tribe or whatever nomenclature is appropriate, they are the only legitimately intended beneficiaries of reservation. Their roots of origin in the lowest of the low segments of society; their affiliation with what is traditionally regarded as demeaning occupations; their humiliating and inescapable segregation and chronic isolation from the rest of the population; their social and educational deprivation and helplessness; their abysmal poverty and degenerating backwardness; all this and more most humiliatingly branded them in the past as "outcastes" or "untouchables" or "depressed classes" or whatever other nomenclature one might ascribe to describe them. It is their present plight of continuing poverty and backwardness stemming from identified historical discrimination, whatever be the religion or faith they presently profess, that the Constitution entitles them to the special protection of reservation. The fact that the search to identify backwardness for the purpose of reservation will invariably lead one to these so called outcastes or the lowest of the low castes or untouchables does not vitiate identification so long as what is sought to be identified is not caste but backwardness.
Poverty by itself is not the test of backwardness, for if it were so, most people in this country would be in a position to claim reservation… Reservation for all would be reservation for none, and that would be an ideal condition if affluence, and not poverty, was its basis. But unfortunately the vast majority of our people are not blessed by affluence but afflicted by poverty. Poverty is a disgrace to any nation and the resultant backwardness is a shame. But the
Constitution envisages reservation for those persons who are backward because of identified prior victimisation and the consequential poverty. Poverty invariably results in social and educational backwardness. In all such cases the question to be asked, for the purpose of reservation, is whether such poverty is the result of identified historical or continuing
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discrimination. No matter what caused the discrimination and exploitation; the question is, did such inequity and injustice result in poverty and backwardness.
… Any affirmative action must be supported by a valid classification and must have a rational nexus with the object of redressing backwardness. It is much more so where such programmes totally exclude from consideration persons outside the chosen classes without regard to merits because of the set aside quotas. It does not matter whether Clause (4) of Article
16, like Clause (4) of Article 15, is seen as a proviso or an exception or, in the words of Mathew,
J., a legislative device to emphasise the 'extent to which equality of opportunity could be carried, viz., even up to the point of making reservation '. State of Kerala v. N.M. Thomas. N.M.
Thomas apart, this Court has generally treated Clause (4) as an exception or a proviso to the general rule of equality enshrined in Article 16(1). … Call it what one will - an exception or proviso or what - and semantics apart, reservation by reason of its exclusion of the generality of candidates competing solely on merits must be narrowly tailored and strictly construed so as to be consistent with the fundamental constitutional objectives. Clause (4), seen in whatever colour, is a very powerful and potent weapon which causes lasting ill effects and damage unless justly and appropriately used. It is not a remedy for all kinds of disadvantages and disabilities and for all classes of people. It is a special and powerful weapon to wield which with less than the very special care and caution and otherwise than in the most exceptional situations, peculiar to extreme cases of backwardness, that the Constitution envisages is to give rise to invidious reverse discrimination exceeding the strict bounds of Article 16(4) and to create hateful casteprejudices and divisions between classes of people.
… Dr. Ambedkar was unequivocal when he declared that reservation must be confined to a minority of the available posts, lest it should destory the very concept of equality and thus undermine democracy. Any excessive reservation or any unnecessarily prolonged reservation will result in invidious discrimination. What exactly is the total percentage of reservation at a given time is a matter for the State to decide, dependent on the need of the time. But in no case shall reservation overstep the strict boundaries of minority of seats or posts or outlast the reason for it. It must remain well below 50% of available seats or posts. Every reservation must be made with a view to its early termination on the successful accomplishment of its object.
… It is wrong and unwise to see affirmative action merely as a penance or an atonement for the sins of past discrimination. It is not retributive justice on wrong doers. It is corrective and remedial justice to compensate the victims of prior injustice. It is not merely focused on reparation for past inequities. It is a forward looking balancing act of reformative social engineering; an architecture of a better future of harmonious relationship amongst all classes of citizens; an equitable redistribution of community resources with a view to the greatest happiness of the greatest number of people.
… Any attempt to view affirmative action as merely retributes or to unduly over-emphasis its compensatory aspect and widen the scope of reservation beyond minority of posts or seats is to practice excessive and invidious reverse discrimination. To project particular castes as legitimate claimants for such compensatory discrimination, without due regard to the nature and degree of their backwardness, is to invite the public wrath of stigmatising prejudice against them, thereby promoting caste hatred and separatism. Any such stereotyped and stigmatised approach to this soul searching sociological problem is to distort the fairness of the political and constitutional process of adjustment and readjustment amongst classes of people in our country. Page 189 of 610
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UNIT 5 – FUNDAMENTAL FREEDOMS (ARTICLE 19)
POLITICAL SPEECH
ROMESH THAPAR V. STATE OF MADRAS
AIR 1950 SC 124
Decided On: May 26, 1950
BENCH – CHIEF JUSTICE H. L. KANIA, S. FAZL ALI, PATANJALI SASTRI, M. C. MAHAJAN,
MUKHERJEA & DAS
CHIEF JUSTICE KANIA (for himself; Justices Sastri, Mahajan, Mukherjea & Das CONCURRING)
The petitioner is the printer, publisher and editor of a recently started weekly journal in
English called Cross Roads printed and published in Bombay. The Government of Madras, the respondents herein, in exercise of their powers under section 9(1-A) of the Madras
Maintenance of Public Order Act, 1949 (hereinafter referred to as the impugned Act) purported to issue an order No. MS. 1333 dated 1st March, 1950, whereby they imposed a ban upon the entry and circulation of the journal in that State. The order was published in the Fort
St. George Gazette and the notification ran as follows:"In exercise of the powers conferred by section 9(1-A) of the Madras Maintenance of Public Order, Act, 1949 (Madras Act XXIII of 1949). His Excellency the
Governor of Madras, being satisfied that for the purpose of securing the public safety and the maintenance of public order, it is necessary so to do, hereby prohibits, with effect on and from the date of publication of this order in the Fort
St. George Gazette the entry into or the circulation, sale or distribution in the State of Madras or any part thereof of the newspaper entitled Cross Roads an English weekly published at Bombay."
The petitioner claims that the said order contravenes the fundamental right of the petitioner to freedom of speech and expression conferred on him by article 19(1)(a) of the Constitution and he challenges the validity of section 9(1-A) of the impugned Act as being void under article 13(1) of the Constitution by reason of its being inconsistent with his fundamental right aforesaid. The Advocate-General of Madras appearing on behalf of the respondents raised a preliminary objection, not indeed to the jurisdiction of this Court to entertain the application under article 32, but to the petitioner resorting to this Court directly for such relief in the first instance. He contended that, as a matter of orderly procedure, the petitioner should first resort to the High Court at Madras which under article 226 of the Constitution has concurrent jurisdiction to deal with the matter. He cited criminal revision petitions under section 435 of the Criminal Procedure Code, applications for bail and applications for transfer under section 24 of the civil Procedure Code as instances where, concurrent jurisdiction having been given in certain matters to the High Court and the Court of a lower grade, a rule of practice has been established that a party should proceed first to the latter Court for relief before resorting to the High Court. … We are of opinion that neither the instances mentioned by the learned Advocate-General nor the American decisions referred to by him are really analogous to the remedy afforded by article 32 of the Indian Constitution. That article does not merely confer power on this Court, as article 226 does on the High Court, to issue certain writs for the enforcement of the rights conferred by Part III or for any other purpose, as part of its general jurisdiction. In that case it would have been more appropriately placed among articles 131 to 139 which define that jurisdiction. Article 32 provides a "guaranteed" remedy
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for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part III. This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights. No similar provision is to be found in the Constitution of the United States and we do not consider that the American decisions are in point.
Turning now to the merits, there can be no doubt that freedom of speech and expression includes freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation. "Liberty of circulation is as essential to that freedom as the liberty of publication.
Indeed, without circulation the publication would be of little value". Ex parte Jackson 96 U.S.
727. See also Lovell v. City of Griffin 303 U.S. 444. It is therefore perfectly clear that the order of the Government of Madras would be a violation of the petitioner 's fundamental right under article 19(1)(a), unless section 9(1-A) of the impugned Act under which it was made is saved by the reservations mentioned in clause (2) of article 19 which (omitting immaterial words regarding laws relating to libel, slander, etc., with which we are not concerned in this case) saves the operation of any "existing law in so far as it relates to any matter which undermines the security of, or tends to overthrow, the State." The question accordingly arises whether the impugned Act, in so far as it purports by section 9(1-A) of to authorise the Provincial
Government
"for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry into or the circulation, sale or distribution in the
Province of Madras or any part thereof of any document or class of documents" is a "law relating to any matter which undermines the security of or tends to overthrow the State."
The impugned Act was passed by the Provincial Legislature in exercise of the power conferred upon it by section 100 of the Government of India Act, 1935, read with Entry 1 of
List II of the Seventh Schedule to that Act, which comprises among other matters, "public order." Now "public order" is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regulations enforced by the government which they have established. Although section 9(1A) refers to "securing the public safety" and "the maintenance of public order" as distinct purposes, it must be taken that "public safety" is used as a part of the wider concept of public order, for, if public safety were intended to signify any matter distinct from and outside the content of the expression "public order," it would not have been competent for the Madras
Legislature to enact the provision so far as it relates to public safety. This indeed was not disputed on behalf of the respondents. But it was urged that the expression "public safety" in the impugned Act, which is a statute relating to law and order, means the security of the
Province, and, therefore, "the security of the State" within the meaning of article 19(2) as "the
State" has been defined in article 12 as including, among other things, the Government and the Legislature of each of the erstwhile Provinces. Much reliance was placed in support of this view on Rex v. Wormwood Scrubbs Prison L.R. [1920] 2 K.B. 305, where it was held that the phrase "for securing the public safety and the defence of the realm" in section 1 of the Defence of the Realm (Consolidation) Act, 1914, was not limited to securing the country against a foreign foe but included also protection against internal disorder such as a rebellion. The decision is not of much assistance to the respondents as the context in which the words "public safety" occurred in that Act showed unmistakably that the security of the State was the aim in view. Our attention has not been drawn to any definition of the expression "public safety," nor does it appear that the words have acquired any technical signification as words of art.
"Public safety" ordinarily means security of the public or their freedom from danger. In that sense, anything which tends to prevent dangers to public health may also be regarded as
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securing public safety. The meaning of the expression must, however, vary according to the context. In the classification of offence in the Indian Penal Code, for instance, Chapter XIV enumerates the "offences affecting the public health, safety, convenience, decency, and, morals" and it includes rash driving or riding on a public way (section 279) and rash navigation of a vessel (section 280), among others, as offences against public safety, while Chapter VI lists waging war against the Queen (section 121) sedition (section 124-A) etc. as "offences against the State", because they are calculated to undermine or the security of the State, and
Chapter VIII defines "offences against the public tranquillity" which include unlawful assembly (section 141) rioting (section 146), promoting enmity between classes (section 153A), affray (section 159) etc. Although in the context of a statute relating to law and order
"securing public safety" may not include the securing of public health, it may well mean securing the public against rash driving on a public way and the like, and not necessarily the security of the State. It was said that an enactment which provided for drastic remedies like preventive detention and ban on newspapers must be taken to relate to matters affecting the security of the State rather than trivial offences lime rash driving or an affray. But whatever ends the impugned Act may have been intended to subserve, and whatever aims its framers may have had in view, its application and scope cannot, in the absence of limiting words in the statute itself, be restricted to those aggravated forms of prejudicial activity which are calculated to endanger the security of the State. Nor is there any guarantee that those authorised to exercise the powers under the Act will in using them discriminate between those who act prejudicial to the security of the State and those who do not.
The Government of India Act, 1935, nowhere used the expression "security of the State" though it made provision under section 57 for dealing with crimes of violence intended to overthrow the Government. While the administration of law and order including the maintenance of public order was placed in charge of a Minister elected by the people, the
Governor was entrusted with the responsibility of combating the operations of persons who
"endangered the peace or tranquillity of the Province" by committing or attempting to commit
"crimes of violence intended to overthrow the Government." Similarly, article 352 of the
Constitution empowers the President to make a Proclamation of Emergency when he is satisfied that the "security of India or any part of the territory thereof is threatened by war or by external aggression or by internal disturbance." These provisions recognise that disturbance of public peace or tranquillity may assume such grave proportions as to threaten the security of the State.
As Stephen in his Criminal Law of England [Vol. II, p. 242], observes:
"Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other and are not capable of being marked off by perfectly defined boundaries. All of them have in common one feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it."
Though all these offences thus involve disturbances of public tranquillity and are in theory offences against public order, the difference between them being only a difference of degree, yet for the purpose of grading the punishment to be inflicted in respect of them they may be classified into different minor categories as has been done by the Indian Penal Code. Similarly, the Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in article 19(1), has placed in a distinct category those offences against public order which aim at undermining the security of the
State or overthrowing it, and made their prevention the sole justification for legislative abridgement of freedom of speech and expression, that is to say, nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression, while the right of peaceable assembly "sub-clause (b)"
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and the right of association "sub-clause (c)" may be restricted under clauses (3) and (4) of article 19 in the interests of "public order", which in those clauses includes the security of the
State. The differentiation is also noticeable in Entry 3 of List III (Concurrent List) of the
Seventh Schedule, which refers to the "security of a State" and "maintenance of public order" as distinct subjects of legislation. The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differences in kind.
It is also worthy of note that the word "sedition" which occurred in article 13(2) of the
Draft Constitution prepared by the Drafting Committee was deleted before the article was finally passed as article 19(2). In this connection it may be recalled that the Federal Court had, in defining sedition in Niharendu Dutt Majumdar v. King Emperor [1942] F.C.R. 38, held that
"the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that is their intention or tendency", but the Privy Council overruled that decision and emphatically reaffirmed the view expressed in Tilak 's case 22 Bom. 112, to the effect that "the offence consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small" - King Emperor v. Sadashiv
Narayan Bhalerao L.R. 74 I.A. 89.
Deletion of the word "sedition" from the draft article 13(2), therefore, shows that criticism of Government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State. It is also significant that the corresponding Irish formula of "undermining the public order or the authority of the State"
[article 40(6)(i) of the Constitution of Eire, 1937] did not apparently find favour with the framers of the Indian Constitution. Thus, very narrow and stringent limits have been set to permissible legislative abridgment of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible. A freedom of such amplitude might involve risk of abuse. But the framers of the Constitution may well have reflected, with Madison who was "the leading spirit in the preparation of the
First Amendment of the Federal Constitution," that "it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits”: [Quoted in Near v. Minnesotta 282 U.S. 607, 717-8.
We are therefore of opinion that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. It follows that section 9(1-A) which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause (2), and is therefore void and unconstitutional.
It was, however, argued that section 9(1-A) could not be considered wholly void, as, under article 13(1), an existing law inconsistent with a fundamental right is void only to the extent of the inconsistency and no more. In so far as the securing of the public safety or the maintenance of public order would include the security of the State, the impugned provision, as applied to the latter purpose, was covered by clause (2) of article 19 and must, it was said, be held to be valid. We are unable to accede to this contention. Where a law purports to
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authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as if may be applied within the constitutional limits, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void. In other words, clause (2) of article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment, which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent.
The application is therefore allowed and the order of the respondents prohibiting the entry and circulation of the petitioner 's journal in the State of Madras is hereby quashed.
BRIJ BHUSHAN V. STATE OF DELHI
AIR 1950 SC 129
Decided On: May 26, 1950
BENCH – CHIEF JUSTICE H. L. KANIA, S. FAZL ALI, PATANJALI SASTRI, M. C. MAHAJAN,
MUKHERJEA & DAS
JUSTICE SASTRI (for himself; Chief Justice Kania, Justices, Mahajan, Mukherjea & Das
CONCURRING)
This is an application under article 32 of the Constitution praying for the issue of writs of certiorari and prohibition to the respondent, the Chief Commissioner of Delhi, with a view to examine the legality of and quash the order made by him in regard to an English weekly of
Delhi called the Organizer of which the first applicant is the printer and publisher, and the second is the editor. On 2nd March, 1950, the respondent, in exercise of powers conferred on him by section 7(1)(c) of the East Punjab Public Safety Act, 1949, which has been extended to the Delhi Province and is hereinafter referred to as the impugned Act, issued the following order :
"Whereas the Chief Commissioner, Delhi, is satisfied that Organizer, an English weekly of Delhi, has been publishing highly objectionable matter constituting a threat of public law and order and that action as is hereinafter mentioned is necessary for the purpose of preventing or combating activities prejudicial to the public safety or the maintenance of public order.
Now therefore in exercise of the powers conferred by section 7(1)(c) of the East
Punjab Public Safety Act, 1949, as extended to the Delhi Province, I, Shankar
Prasad, Chief Commissioner, Delhi, do by this order require you Shri Brij
Bhushan, Printer and Publisher and Shri K. R. Halkani, Editor of the aforesaid paper to submit for scrutiny, in duplicate, before publication, till further orders, all communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by the news agencies, viz., Press Trust of India, United Press of India and United Press of America to the Provincial Press Officer, or in his absence, to Superintendent of
Press Branch at his office at 5, Alipur Road, Civil Lines, Delhi, between the hours
10 a.m. and 5 p.m. on working days."
The only point argued before us relates to the constitutional validity of section 7(1)(c) of the impugned Act which, as appears from its preamble, was passed "to provide special measures to ensure public safety and maintenance of public order." Section 7(1)(c) under which the aforesaid order purports to have been made reads (so far as material here) as follows :-
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"The Provincial Government or any authority authorised by it in this behalf if satisfied that such action is necessary for the purpose of preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a printer, publisher or editor require that any matter relating to a particular subject or class of subjects shall before publication be submitted for scrutiny."
The petitioners claim that this provision infringes the fundamental right to the freedom of speech and expression conferred upon them by article 19(1)(a) of the Constitution inasmuch as it authorises the imposition of a restriction on the publication of the journal which is not justified under clause (2) of that article.
There can be little doubt that the imposition of pre-censorship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19(1)(a). As pointed out by Blackstone in his Commentaries
"the liberty of the press consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press [Blackstone 's
Commentaries, Vol. IV, pp. 151, 152].
The only question therefore is whether section 7(1)(c) which authorises the imposition of such a restriction falls within the reservation of clause (2) of article 19.
As this question turns on considerations which are essentially the same as those on which our decision in Petition No. XVI of 1950 [Romesh Thappar v. The State of Madras] was based, our judgment in that case concludes the present case also. Accordingly, for the reasons indicated in that judgment, we allow this petition and hereby quash the impugned order of the
Chief Commissioner, Delhi, dated the 2nd March, 1950.
FREEDOM OF THE PRESS
BENNETT COLEMAN & CO. V. UNION OF INDIA
AIR 1973 SC 106, (1972) 2 SCC 788
Decided On: May 26, 1950
BENCH – CHIEF JUSTICE SIKRI, JUSTICES A. N. RAY, P. JAGANMOHAN REDDY, K. K. MATHEW
& M. H. BEG
JUSTICE RAY (for the Chief Justice, Justice Reddy & himself; MAJORITY OPINION)
These petitions challenge the Import Policy for Newsprint for the year April 1972 to March
1973. The Newsprint Policy is impeached as an infringement of fundamental rights to freedom of speech and expression in Article 19(1)(a) and right to equality in Article 14 of the
Constitution. Some provisions of the Newsprint Control Order 1962 are challenged as violative of Article 19(1)(a) and Article 14 of the Constitution.
The import of newsprint is dealt with by Import Control Order, 1955 (referred to as the
1955 Import Order). The 1955 Import Order is made in exercise of powers conferred by
Sections 3 and 4A of the Imports and Exports Control Act, 1947 (referred to as the 1947 Act).
Section 3 of the 1947 Act, speaks of powers of the Central Government to prohibit, restrict or otherwise control imports and exports. Section 4A of the 1947 Act contemplates issue or renewal of licences under the 1947 Act for imports and exports. Item 44 in Part V of Schedule
I of the 1955 Import Order relates to newsprint. Newsprint is described as white printing paper
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(including water lined newsprint which contained mechanical wood pulp amounting to not less than 70% of the fibre content). The import of newsprint is restricted under the 1955 Import
Order. This restriction of newsprint import is also challenged because it infringes Article
19(1)(a). It is said that the restriction of import is not a reasonable restriction within the ambit of Article 19(2).
The Newsprint Control Order 1962 (referred to as the 1962 Newsprint Order) is made in exercise of powers conferred by Section 3 of the Essential Commodities Act 1955 (referred to as the 1955 Act). Section 3 of the 1955 Act enacts that if the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supply of essential commodities or for securing their equitable distribution and availability at fair prices, it may, by order, provide for regulating or prohibiting production, supply and distribution and trade and commerce therein. Section 2 of the 1955 Act defines "essential commodity". Paper including newsprint, paper board and straw board is defined in Section 2(a)(vii) of the 1955
Act to be an essential commodity.
The 1962 Newsprint Order in Clause 3 mentions restrictions on acquisition, sale and consumption of newsprint. Sub-clause 3 of Clause 3 of the 1962 Newsprint Order states that no consumer of newsprint shall, in any licensing period, consume or use newsprint in excess of the quantity authorised by the Controller from time to time. Sub-clause 3A of Clause 3 of the 1962 Newsprint Order states that no consumer of newsprint, other than a publisher of text books or books of general interest, shall use any kind of paper other than newsprint except with the permission, in writing, of the Controller. Sub-clause 5 of Clause 3 of the 1962 Newsprint
Order states that in issuing an authorisation under this clause, the Controller shall have regard to the principles laid down in the Import Control Policy with respect of newsprint announced by the Central Government from time to time. Sub-clauses 3 and 3A of Clause 3 of the 1962
Newsprint Order are challenged in these petitions on the ground that these clauses affect the volume of circulation, the size and growth of a newspaper and thereby directly infringe Article
19(1)(a) of the Constitution. The restrictions mentioned in these sub-clauses of Clause 3 of the
1962 Newsprint Order are also said to be not reasonable restrictions within the ambit of Article
19(2) of the Constitution.
… The Newsprint Policy of 1972-73 referred to as the Newsprint Policy deals with white printing paper (including water lined newsprint which contained mechanical wood pulp amounting to not less than 70 per cent of the fibre content). Licences are issued for newsprint.
The validity of licences is for 12 months. The Newsprint Policy defines "common ownership unit" to mean newspaper establishment or concern owning two or more news interest newspapers including at least one daily irrespective of the center of publication and language of such newspapers. Four features of the Newsprint Policy are called in question. These restrictions imposed by the Newsprint Policy are said to infringe rights of freedom of speech and expression guaranteed in Article 19(1)(a) of the Constitution. First, no new paper or new edition can be started by a common ownership Unit even within the authorised quota of newsprint. Secondly, there is a limitation on the maximum number of pages to 10. No adjustment is permitted between circulation and the pages so as to increase the pages. Thirdly, no inter-changeability is permitted between different papers of common ownership unit or different editions of the same paper. Fourthly, allowance of 20 per cent increase in page level up to a maximum of 10 has been given to newspapers with less than 10 pages. It is said that the objectionable and irrational feature of the Newsprint Policy is that a big daily newspaper is prohibited and prevented from increasing the number of pages, page area and periodicity by reducing circulation to meet its requirement even within its admissible quota. In the Newsprint
Policy for the year 1971-72 and the earlier periods the newspapers and periodicals were permitted to increase the number of pages, page area and periodicity by reducing circulation.
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The current policy prohibits the same. The restrictions are, therefore, said to be irrational, arbitrary and unreasonable. Big daily newspapers having large circulation contend that this discrimination is bound to have adverse effects on the big daily newspapers.
… The Additional Solicitor General raised two pleas in demurrer. First, it was said that the petitioners were companies and therefore, they could not invoke fundamental rights. Secondly, it was said that Article 358 of the Constitution is a bar to any challenge by the petitioners of violation of fundamental rights.
This Court in State Trading Corporation of India Ltd. v. Commercial Tax Officer,
Visakhapatnam, [1964] 4 SCR 99 and Tata Engineering & Locomotive Co. v. State of Bihar,
[1964] 6 SCR 885 expressed the view that a corporation was not a citizen within the meaning of Article 19, and, therefore, could not invoke that Article. The majority held that nationality and citizenship were distinct and separate concepts. The view of this Court was that the word
"citizen" in Part II and in Article 19 of the Constitution meant the same thing. The result was that an incorporated company could not be a citizen so as to invoke fundamental rights. In State
Trading Corporation the Court was not invited to "tear the corporate veil". In the Tata
Engineering & Locomotive Co this Court said that a company was a distinct and separate entity from shareholders. The corporate veil it was said could be lifted in cases where the company is charged with trading with the enemy or perpetrating fraud on the Revenue authorities.
Mukherjea J., in Chiranjit Lal Choudhuri v. Union of India, [1950]1SCR869 expressed the minority view that an incorporated company can come up to this Court for enforcement of fundamental rights.
There are however decisions of this Court where relief has been granted to the petitioners claiming fundamental rights as shareholders or editors of newspaper companies. These are
Express New papers (Private) Ltd. v. Union of India, (1961) I LLJ 339 SC and Sakal Papers
(P) Ltd. v. Union of India, [1962] 3 SCR 842.
In Express Newspapers the Express Newspapers (Private) Ltd. was the petitioner in a writ petition under Article 32. The Press Trust of India Limited was another petitioner in a similar writ petition. The Indian National Press (Bombay) Private Ltd. otherwise known as the "Free
Press Group" was a petitioner in the third writ petition. The Saurashtra Trust was petitioner for a chain of newspapers in another writ petition. The Hindustan Times Limited was another petitioner. These petitions in the Express Newspapers challenged the vires of the Working
Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955. The petitioners contended that the provisions of the Act violated Articles 19(1)(a), 19(1)(g) and 14 of the
Constitution.
In Sakal Papers the petitioners were a Private limited company carrying on business of publishing daily and weekly newspapers in Marathi and two shareholders in the company.
There were two other petitions by readers of Sakal newspaper. The reader petitioners also challenged the Constitutionality of the Act. The petitioners there challenged the Daily
Newspapers (Price and Page) Order, 1960 as contravening Article 19(1)(a) of the Constitution.
Neither in the Express Newspapers nor in Sakal Papers there appears to be any plea raised about the maintainability of the writ petition on the ground that one of the petitioners happened to be a company.
In the Express Newspapers this Court held that freedom of speech and expression includes within its scope the freedom of the Press. This Court referred to the earlier decisions in Romesh
Thappar v. State of Madras, 1950 Cri. L.J. 1514 and Brij Bhushan v. State of Delhi, 1950 Cri.
L.J. 1525. Romesh Thappar related to a ban on the entry and circulation of Thapper 's journal in the State of Madras under the provisions of the Madras Maintenance of Public Order Act
1949. Patanjali Sastri, J. speaking for the Court said in Romesh Thappar that "there can be no
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doubt that the freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation. Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation publication would be of little value". In Brij Bhushan Patanjali Sastri, J. speaking for the majority judgment again said that "every free man has undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press". Bhagwati, J. in the Express Newspapers speaking for the Court said that the freedom of speech and expression includes freedom of propagation of ideas which freedom is ensured by the freedom of circulation and that the liberty of the press is an essential part of the right to freedom of speech and expression and that the liberty of the press consists in allowing no previous restraint upon publication.
Describing the impugned Act in Express Newspapers as a measure which could be legitimately characterised to affect the press this Court said that if the intention or the proximate effect and operation of the Act was such as to bring it within the mischief of Article 19(1)(a) it would certainly be liable to be struck down. But the Court found in Express Newspapers that the impugned measures were enacted for the benefit of the working journalists and it was, therefore, neither the intention nor the effect and operation of the impugned Act to take away or abridge the right of freedom of speech and expression enjoyed by the petitioners. There are ample observations of this Court in Express Newspapers to support the right of the petitioner companies there to invoke fundamental right in aid of freedom of speech and expression enshrined in the freedom of the press. This Court said that if the impugned measure in that case fell within the vice of Article 19(1)(a) it would be struck down. This observation is an illustration of the manner in which the truth and spirit of the freedom of press is preserved and protected. In Sakal Papers this Court struck down Section 3(1) of the Newspaper (Price and Page)
Act, 1956 and allowed the petitioner company relief on that basis. In Sakal Papers relief was granted to the share-holders and the company. The Court thought it unnecessary to express any opinion on the right of the readers to complain of infraction of fundamental rights in Article
19(1)(a) by reason of impact of law abridging or taking way the freedom of speech and expression. In the present case, the petitioners in each case are in addition to the company the shareholders the editors and the publishers. In the Bennett Coleman group of cases one shareholder, a reader of the publication and three editors of the three dailies published by the
Bennett Coleman Group are the petitioners. In the Hindustan Times case a shareholder who happened to be a Deputy Director, a shareholder, a Deputy Editor of one of the publications, the printer and the publisher of the publications and a reader are the petitioners. In the Express
Newspapers case the company and the Chief Editor of the dailies are the petitioners. In the
Hindu case a shareholder, the Managing Editor, the publisher of the company are the petitioners. One of the important questions in these petitions is whether the shareholder, the editor, the printer, the Deputy Director who are all citizens and have the right to freedom under
Article 19(1) can invoke those rights for freedom of speech and expression, claimed by them for freedom of the press in their daily publication. The petitioners contend that as a result of the Newsprint Control Policy of 1972-73 their freedom of speech and expression exercised through their editorial staff and through the medium of publications is infringed. The petitioners also challenge the fixation of 10 page ceiling and the restriction on circulation and growth on their publications to be not only violative of but also to abridge and take away the freedom of speech and expression of the shareholders and the editors. The shareholders, individually and in association with one another represent the medium of newspapers through which they disseminate and circulate their views and news. The newsprint policy express them to heavy
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financial loss and impairs their right to carry on the business of printing and publishing of the dailies through the medium of the companies.
In R. C. Cooper v. Union of India, [1970] 3 SCR 530 which is referred to as the Bank
Nationalisation case Shah, J. speaking for the majority dealt with the contention raised about the maintainability of the petition. The petitioner there was a shareholder, a Director and holder of deposit of current accounts in the Bank. The locus standi of the petitioner was challenged on the ground that no fundamental right of the petitioner there was directly impaired by the enactment of the Ordinance and the Act or any action taken thereunder. The petitioner in the
Bank Nationalisation case claimed that the rights guaranteed to him under Articles 14, 19 and
31 of the Constitution were impaired. The petitioner 's grievances were these. The Act and the
Ordinance were without legislative competence. The Act and the Ordinance interfered with the guarantee of freedom of trade. They were not made in public interest. The President had no power to promulgate the Ordinance. In consequence of hostile discrimination practised by the
State the value of the petitioner 's investment in the shares is reduced. His right to receive dividends ceased. He suffered financial loss. He was deprived of the right as a shareholder to carry on business through the agency of the company.
The ruling of this Court in Bank Nationalisation case was this:
A measure executive or legislative may impair the rights of the company alone, and not of its shareholders; it may impair the rights of the shareholders not of the
Company; it may impair the rights of the shareholders as well as of the company.
Jurisdiction of the Court to grant relief cannot be denied, when by State action the rights of the individual shareholder are impaired if that action impairs the rights of the Company as well. The test in determining whether the shareholder 's right is impaired is not formal; it is essentially qualitative; if the State action impairs the right of the shareholders as well as of the Company, the Court will not, concentrating merely upon the technical operation of the action, deny itself jurisdiction to grant relief.
In the Bank Nationalisation case this Court held the statute to be void for infringing the rights under Articles 19(1)(f) and 19(1)(g) of the Constitution. In the Bank Nationalisation case the petitioner was a shareholder and a director of the company which was acquired under the statute. As a result of the Bank Nationalisation case it follows that the Court finds out whether the legislative measure directly touches the company of which the petitioner is a shareholder.
A shareholder is entitled to protection of Article 19. That individual right is not lost by reason of the fact that he is a shareholder of the company. The Bank Nationalisation case has established the view that the fundamental rights of shareholders as citizens are not lost when they associate to from a company. When their fundamental rights as shareholders are impaired by State action their rights as shareholders are protected. The reason is that the shareholders ' rights are equally and necessarily affected if the rights of the company are affected. The rights of shareholders with regard to Article 19(1)(a) are projected and manifested by the newspapers owned and controlled by the shareholders through the medium of the corporation. In the present case, the individual rights of freedom of speech and expression of editors, Directors and shareholders are all exercised through their newspapers through which they speak. The press reaches the public through the Newspapers. The shareholders speak through their editors. The fact that the companies are the petitioners does not prevent this Court from giving relief to the shareholders, editors, printers who have asked for protection of their fundamental rights by reason of the effect of the law and of the action upon their rights. The locus standi of the shareholder petitioners is beyond challenge after the ruling of this Court in the Bank
Nationalisation case. The presence of the company is on the same ruling not a bar to the grant of relief. The rulings in Sakal Papers and Express Newspapers also support the competence of the petitioners to maintain the proceedings.
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… The Additional Solicitor General contended that the right to import and utilise newsprint was not a common law right. It was said to be a special right covered by several statutes. The
Imports and Exports Act 1947, the Imports Control Order, 1955, the Essential Commodities
Act 1955 and the Newsprint Control Order 1962 were referred to in support of the proposition that if the petitioners asked for a quota of newsprint they had to abide the conditions prescribed.
It was also said that the Press would have no special fundamental right under Article 19(1)(a).
The legislative measures were, therefore, said by the Government to be regulation of newspaper business even though there might be the incidental result of curtailing circulation. Reliance was placed on the decisions in Express Newspapers and Hamdard Dawakhana v. Union of India,
[1960] S.C.R. 67 in support of the contention that there would able no abridgement of fundamental right of the press if as a result of regulation of newspaper business there was the incidental effect of curtailing circulation. The Newsprint Policy was defended by the
Government to be in aid of allowing small newspapers to grow and to prevent a monopolistic combination of big newspapers.
The power of the Government to import newsprint cannot be denied. The power of the
Government to control the distribution of newsprint cannot equally be denied. It has, of course, to be borne in mind that the distribution must be fair and equitable. The interests of the big the medium and the small newspapers are all to be taken into consideration at the time of allotment of quotas. In the present case, there was some dispute raised as to whether there should be more import of newsprint. That is a matter of Government policy. This Court cannot adjudicate on such policy measures unless the policy is alleged to be malafide. Equally, there was a dispute as to the quantity of indigenous newsprint available for newspapers. This Court cannot go into such disputes.
The petitioners raised a question as to whether the Newsprint Control Policy is a newsprint control or a newspaper control. Mr. Palkhivala characterised the measure to be newspaper control with degrees of subtlety and sophistication. Rationing of newsprint is newsprint control.
That is where quota is fixed. Newspaper control can be said to be post-quota restrictions. The post-quota restrictions are described by Mr. Palkhivala to be newspaper control. The newspaper control, according to the petitioners, is achieved by measures adopted in relation to common ownership units owning two or more newspapers. These common ownership units are not allowed to bring out new papers of new editions of their dailies. These are not to have interchangeability of quota within their unit. In addition large papers are not allowed to have more than 10 pages. It was said that in the past several years Newsprint Control Policy worked remarkably without any challenge.
Article 19(1)(a) provides that all citizens shall have the right to freedom of speech and expression. Article 19(2) states that nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said Sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence.
Although Article 19(1)(a) does not mention the freedom of the Press, it is the settled view of this Court that freedom of speech and expression includes freedom of the Press and circulation.
In Express Newspapers it is said that there can be no doubt that liberty of the Press is an essential part of the freedom of speech and expression guaranteed by Article 19(1)(a). The
Press has the right of free propagation and free circulation without any previous restraint on publication. If a law were to single out the Press for laying down prohibitive burdens on it that would restrict the circulation, penalise its freedom of choice as to personnel, prevent
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newspapers from being started and compel the press to Government aid. This would violate
Article 19(1)(a) and would fall outside the protection afforded by Article 19(2).
In Sakal Papers it is said that the freedom of speech and expression guaranteed by Article
19(1) gives a citizen the right to propagate and publish his ideas to disseminate them, to circulate them either by words of mouth or by writing. This right extends not merely to the matter it is entitled to circulate but also to the volume of circulation. In Sakal Papers the
Newspaper (Price and Page) Act 1956 empowered the Government to regulate the prices of newspapers in relation to their pages and sizes and to regulate the allocation of space for advertisement matter. The Government fixed the maximum number of pages that might be published by a newspaper according to the price charged. The Government prescribed the number of supplements that would be issued. This Court held that the Act and the Order placed restraints on the freedom of the press to circulate. This Court also held that the freedom of speech could not be restricted for the purpose of regulating the commercial aspects of activities of the newspapers.
Publication means dissemination and circulation. The press has to carry on its activity by keeping in view the class of readers, the conditions of labour, price of material, availability of advertisements, size of paper and the different kinds of news comments and views and advertisements which are to be published and circulated. The law which lays excessive and prohibitive burden which-would restrict the circulation of a newspaper will not be saved by
Article 19(2). If the area of advertisement is restricted, price of paper goes up. If the price goes up circulation will go down. This was held in Sakal Papers to be the direct consequence of curtailment of advertisement. The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons has been held by this Court to be an integral part of the freedom of speech and expression. This freedom is violated by placing restraints upon it or by placing restraints upon something which is an essential part of that freedom. A restraint on the number of pages, a restraint on circulation and a restraint on advertisements would affect the fundamental rights under Article 19(1)(a) on the aspects of propagation, publication and circulation. … The Additional Solicitor General contended that the newsprint policy did not violate
Article 19(1)(a). The reasons advanced were these. The newsprint policy does not directly and immediately deal with the right mentioned in Article 19(1)(a). The test of violation is the subject matter and not the effect or result of the legislation. If the direct object of the impugned law or action is other than freedom of speech and expression Article 19(1)(a) is not attracted though the right to freedom of speech and expression may be consequentially or incidentally abridged. The rulings of this Court in Express Newspapers and Hamdard Dawakhana were referred to. In Express Newspapers the Act was said to be a beneficent legislation intended to regulate the conditions of service of the working journalists. It was held that the direct and inevitable result of the Act could not be said to be taking away or abridging the freedom of speech and expression of the petitioners. In Hamdard Dawakhana the scope and object of the
Act and its true nature and character were found to be not interference with the right of freedom of speech but to deal with trade or business. The subject matter of the import policy in the present case was rationing of imported commodity and equitable distribution of newsprint. The restrictions in fixing the page level and circulation were permissible as directions, which were considered necessary in order to see that the imported newsprint was properly utilised for the purpose for which the import was considered necessary. Article 369 of the Constitution shows that rationing of and distribution of quota of newsprint and regulation of supply is not a direct infringement of Article 19(1)(a). The scarcity of newspapers justifies the regulation and the direction in the manner of use. The American decision in Red Lion Broadcasting Co. v. Federal
Communications Com. [1969] 393 US 367 was relied on to show that neither regulation nor
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direction with regard to medium of expression encroaches on the First Amendment right of the
American Constitution. Regulatory statutes which do not control the content of speech but incidentally limit the unfettered exercise ate not regarded as a type of law which the First
Amendment to the American Constitution forbade the Congress of the United States to pass.
The decision in United States v. O 'Brien [1968] 391 US 367 was relied on as an authority for such regulation and control of the content of speech. Any incidental limitation or incidental restriction on the freedom of speech is permissible if the same is essential to the furtherance of important governmental interest in regulating speech and freedom.
The Additional Solicitor General further put emphasis on the pith and substance of the
Import Control Act to control imports and exports for these reasons. One method of controlling import is to regulate the use and disposition of the goods after they are bought. The decision in
Abdul Aziz Amiudin v. State of Maharashtra, 1963 Cri. L.J. 403 was referred to indicate that the scope of control of import extended to every stage at which the Government felt it necessary to see that the goods were properly utilised. Therefore, the Government submission is that regulations regarding utilisation of goods by importers after import is not a regulation with regard to production, supply and distribution of goods so as to attract Entry 29 List II of the
Government of India Act, 1935 corresponding to Entry 27 of List II in the Constitution. It was said that even if there was any trenching on Entry 29 List II of the 1935 Act corresponding to
Entry 27 List II of the Constitution it would be an incidental encroachment not affecting the validity of the Act. The directions in the control policy are, therefore, justified by the
Government under Clause 5 of the 1955 Import Control Order read with Section 3(1) of the
1947 Import and Export Act and they are also justified under the provisions of Clause 3 of the
Newsprint Control Order 1962.
The Newsprint Control Order 1962 was said to give sufficient guidance with regard to exercise of powers. Clause 3(5) of the Control Order of 1962 indicated that the Controller was to have regard to the principles. The Import policy was upheld by the Government to have administrative character for guidance in the matter of grant of licences. It was said that the impeached newsprint policy was given to the public as information regarding principles governing issue of import licences. The import policy was evolved to facilitate mechanism of the Act. The Import policy was said to have necessary flexibility for six years prior to April
1961. The Newsprint Policy operated successfully. The Controller has not abused his power.
Mr. Palkhivala said that the tests of pith and substance of the subject matter and of direct and of incidental effect of the legislation are relevant to questions of legislative competence but they are irrelevant to the question of infringement of fundamental rights. In our view this is a sound and correct approach to interpretation of legislative measures and State action in relation to fundamental rights. The true test is whether the effect of the impugned action is to take away or abridge fundamental rights. If it be assumed that the direct object of the law or action has to be direct abridgment of the right of free speech by the impugned law or action it is to be related to the directness of effect and not to the directness of the subject matter of the impeached law or action. The action may have a direct effect on a fundamental right although its direct subject matter may be different. A law dealing directly with the Defence of India or defamation may yet have a direct effect on the freedom of speech. Article 19(2) could not have such law if the restriction is unreasonable even if it is related to matters mentioned therein.
Therefore, the word "direct" would go to the quality or character of the effect and not to the subject matter. The object of the law or executive action is irrelevant when it establishes the petitioner 's contention about fundamental right. In the present case, the object, of the newspaper restrictions has nothing to do with the availability of newsprint or foreign exchange because these restrictions come into operation after the grant of quota. Therefore the restrictions are to control the number of pages or circulation of dailies or newspapers. These restrictions are
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clearly outside the ambit of Article 19(2) of the Constitution. It, therefore, confirms that the right of freedom of speech and expression is abridged by these restrictions.
The question neatly raised by the petitioners was whether the impugned Newsprint Policy is in substance a newspaper control. A newspaper control policy is ultra vires the Import
Control Act and the Import Control Order. Entry 19 of List I of the 1935 Act could empower
Parliament to control imports. Both the State Jegislalure and Parliament have power to legislate upon newspapers falling under Entry 17 of List III. The two fields of legislation are different.
The Import Control Act may include control of import of newsprint but it does not allow control of newspapers. The machinery of the Import Control cannot be utilised to curb or control circulation of growth or freedom of newspapers in India. The pith and substance doctrine is used in ascertaining whether the Act falls under one Entry while incidentally encroaching upon another Entry. Such a question does not arise here. The Newsprint Control Policy is found to be newspaper control order in the guise of framing an Import Control Policy for newsprint.
This Court in the Bank Nationalisation case laid down two tests. First it is not the object of the authority making the law impairing the right of the citizen nor the form of action that determines the invasion of the right. Secondly, it is the effect of the law and the action upon the right which attracts the jurisdiction of the court to grant relief. The direct operation of the
Act upon the rights forms the real test.
… The various provisions of the newsprint import policy have been examined to indicate as to how the petitioners ' fundamental rights have been infringed by the restrictions on page limit, prohibition against new newspapers and new editions. The effect and consequence of the impugned policy upon the newspapers is directly controlling the growth and circulation of newspapers. The direct effect is the restriction upon circulation of newspapers. The direct effect is upon growth of newspapers through pages. The direct effect is that newspapers are deprived of their area of advertisement. The direct effect is that they are exposed to financial loss. The direct effect is that freedom of speech and expression is infringed.
The Additional Solicitor General contended that a law which merely regulates even directly the freedom of the press is permissible so long as there is no abridgment or taking away of the fundamental rights of citizens. He leaned heavily on American decisions in support of the submission that the right of the press of free expression is of all citizens speaking, publishing and printing in all languages and the grave concern for freedom of expression which permitted the inclusion of Article 19(1)(a) is not to be read as a command that the Government of
Parliament is without power to protect that freedom. The Constitutional guarantees of freedom of speech and expression are said by the Additional Solicitor General to be not so much for the benefit of the press as for the benefit of all people. In freedom of speech, according to the
Additional Solicitor General, is included the right of the people to read and the freedom of the press assures maintenance of an open society. What was emphasised on behalf of the
Government was that the freedom of the press did not countenance the monopolies of the market. It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express.
Article 13 of our Constitution states that the State is prohibited from making any law which abridges or takes away any fundamental rights. Again, Article 19(2) speaks of reasonable restrictions on the exercise of fundamental rights to freedom of speech and expression. Our
Constitution does not speak of laws regulating fundamental rights. But there is no bar on legislating on the subject of newspapers as long as legislation does not impose unreasonable restrictions within the meaning of Article 19(2). It is also important to notice as was done in
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earlier decisions of this Court that our Article 19(1)(a) and the First Amendment of the
American Constitution are different. The First Amendment of the American Constitution enacts that the Congress shall make no law abridging the freedom of speech or of the press. The
American First Amendment contains no exceptions like our Article 19(2) of the Constitution.
Therefore, American decisions have evolved their own, exceptions. Our Article 19(2) speaks of reasonable restrictions. Our Article 13 states that the State shall not make laws which abridge or take away fundamental rights in Part III of the Constitution.
The concept of regulation of fundamental rights was borrowed and extracted by the
Additional Solicitor General from American decisions. In Citizen Publishing Co. v. United
States [1969] 394 U.S. 131 the power of the Government to regulate the newspaper industry through the provisions of the Sherman Act was recognised. In that case the Court affirmed a decree requiring the separation of two potentially competing newspapers. The two newspapers entered into an agreement to end business or commercial competition between them. Three types of control were imposed by the agreement. One was with regard to price fixation. The second was profit pooling. The third was market control. The Government complained that the agreement was an unreasonable restraint on trade or commerce in violation of Sherman Act.
Citizen Publishing Co. held that the First Amendment in the American Constitution far from providing an argument against the application of the Sherman Act under the facts of the case provided strong reasons to the contrary. The American decision rested upon the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public. The Sherman Act was invoked in that case to prevent non-governmental combinations which tended to impose restraints upon Constitutional guarantee of freedom. The regulation of business is one thing. The American case is an instance of the power of the Government to regulate newspaper industry.
… These American decisions establish that a government regulation is justified in America as an important or essential government interest which is unrelated to the suppression of free expression. This Court has established freedom of the press to speak and express. That freedom cannot be abridged and taken away by the manner the impugned policy has done.
At this stage it is necessary to appreciate the petitioners contentions that the newsprint policy of 1972-73 violates Articles 19(1)(a) and 14 of the Constitution. The first grievance is about Remark V in the newsprint policy. Remark V deals with dailies which are not above 10 pages and dailies over 10 pages. With regard to dailies which are not above 10 pages the policy is that the computation of entitlement to newsprint is on the basis of the actual newsprint consumption in 1970-71 or 1971-72 whichever is less. The average circulation, the average number of pages and the average page area actually published are all taken into consideration.
The petitioners and in particular the Bennett Coleman Group illustrated the vice of this feature in Remark V by referring to their publications Maharashtra Times, Nav Bharat Times and
Economic Times. The average circulation of these three publications in 1971-72 was higher than the average circulation in 1970-71. It is, therefore, said that Remark V which shows the basis of consumption to be the lesser of the two years will affect their quota. The Government version is that the figure of consumption in 1971-72 did not represent a. realistic picture because of three principal events during that year. These were the Bangladesh Crisis the IndoPak War in 1971 and the Elections. The petitioners say that the quota for 1971-72 was determined in April 1971 which was prior to the occurrence of all the three events. Again in the past when there was the Sino Indian Conflict in 1962 and the Indo-Pak War in 1965 the performance of the newspapers during the years preceding those events was not ignored as was done in the impugned policy for 1972-73. With regard to elections the petitioners say that a separate additional quota has been given. In the policies prior to 1971-72 the growth achieved in circulation as a result of the grant of the additional quota for elections was taken into
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consideration in determining the quota for the following year. The Petitioners, therefore, contend that the policy in Remark V instead of increasing circulation will result in the reduction of circulation. The petitioners are, in our judgment, right in their submission that this policy negatives the claim of the Government that this policy is based on circulation.
With regard to dailies over 10 pages Remark V proceeds on the calculation of the basic entitlement to be on an average of 10 pages and either the average circulation in 1970-71 or the admissible circulation in terms of 1971-72 Newsprint Policy plus increases admissible in terms of Remark VII whichever is more. The Bennett Coleman Group contends that the Times of
India Bombay, the Times of India Delhi and the Times of India Ahmedabad had 13.13, 13.99 and 17.83 as the average number of pages in 1971-72. The average number of pages in 197273 under Remark V of the Policy is fixed at 10. Therefore, the percentage of cut in pages is
23.8, 28.4 and 43.8 per cent respectively with regard to these three papers.
The dominant direction in the newsprint policy particularly in Remarks V and VIII is that the page limit of newspapers is fixed at 10. The petitioners who had been operating on a page level of over 10 challenge this feature as an infringement of the freedom of speech and expression. Remark V is therefore impeached first on the ground of fixation of 10 page ceiling and secondly on the basis of allotment of quota.
Prior to 1972-73 newspapers which had started before 1961-62 were allowed to increase pages by reducing circulation. On the other hand newspapers which started after 1961-62 did not have sufficient quantity of newsprint for increasing circulation and could not increase pages. To remedy this situation the Government case is that the impeached newsprint policy of
1972-73 provided in Remark V for newspapers operating on a page level of 10 or less quota on an average page number and actual circulation of 1970-71 or 1971-72 whichever is less and
20% increase for increasing page number subject to ceiling of 10 pages. The other provision in
Remark V for quota relating to newspapers operating above 10 page level is an average circulation of 1970-71 and admissible circulation in 1971-72 plus increases admissible whichever is more. Thus in the case of newspapers operating on 10 or less than 10 page level additional quota has been given to increase their pages to 10. But the imposition of 10 page ceiling on newspapers operating on a page level above 10 is said to violate Articles 19(1)(a) and 14.
The Government advances these six reasons in support of their policy. First, there is shortage of newsprint. Second, the average page number of big dailies is 10.3. Out of 45 big dailies 23 operate on a page level] of less than 10 and 22 operate on a page level of more than
10. Therefore, the Government says that the average of all dailies is 5.8. Thirdly, the
Government says that the 45 big dailies with a circulation of 46.74 lakhs get about 1,16.700 metric tonnes. This is about 59.9 per cent of the total allocation. The 346 medium and small dailies with a circulation of 41.60 lakhs get about 74,300 metric tonnes which represent as 40.1 per cent of the total allocation. Fourthly it is said that the feature is to remedy the situation arising out of historical reasons. Fifthly, the Government says that the reduction in allotment is marginal. By way of illustration it is said that the Bennett Coleman group gets 828.79 metric tonnes less. Sixthly, it is said that 500 dailies applied for quota. Newsprint has to be equitably rationed. Allowing some dailies more than 10 pages will adversely effect those dailies with less than 10 pages.
In our view shortage of newsprint can stop with allotment. If the Government rests content with granting consumers of newsprint a quantity equitably and fairly, the consumers will not quarrel with the policy. The consumers of newsprint are gravely concerned with the other features. Page 205 of 610
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… The maximum number of pages at 10 will, according to the petitioners, not only adversely affect their profits but also deprive them of expressing and publishing the quality of writings and fulfilment of the role to be played by the newspaper in regard to their freedom of speech and expression. While it must be admitted that the language dailies should be allowed to grow, the English dailies should not be forced to languish under a policy of regimentation.
It is therefore correct that the compulsory reduction to 10 pages offends Article 19(1)(a) and infringes the rights of freedom of speech and expression.
… The restriction on the petitioners that they can use their quota to increase circulation but not the page number violates Articles 19(1)(a) as also Article 14. Big dailies are treated to be equal with newspapers who are not equal to them. Again, the policy of 1972-73 permits dailies with large circulation to increase their circulation. Dailies operating below 10 page level are allowed ' increase in pages. This page increase quota cannot be used for circulation increase.
Previously, the big dailies were allowed quota for circulation growth. The present policy has decreased the quantity for circulation growth. In our view counsel for the petitioners rightly said that the Government could not determine thus which newspapers should grow in page and circulation and which newspapers should grow only in circulation and not in pages. Freedom of press entitles newspapers to achieve any volume of circulation. Though requirements of newspapers as to page, circulation are both taken into consideration for fixing their quota but the newspapers should be thereafter left free to adjust their page number and circulation as they wish in accordance with the dictates of Article 19(1)(a) of the Constitution.
… In the present case, it cannot be said that the newsprint policy is a reasonable restriction within the ambit of Article 19(2). The newsprint policy abridges the fundamental rights of the petitioners in regard to freedom of speech and expression. The newspapers are not allowed their right of circulation. The newspapers are not allowed right of page growth. The common ownership units of newspapers cannot bring out newspapers or new editions. The newspapers operating above 10 page level and newspapers operating below 10 page level have been treated equally for assessing the needs and requirements of newspapers with newspapers which are not then equal, Once the quota is fixed and direction to use the quota in accordance with the newsprint policy is made applicable the big newspapers are prevented any increase in page number. Both page numbers and circulation are relevant for calculating the basic quota and allowance for increases. In the garb of distribution of newsprint the Government has tended to control the growth and circulation of newspapers. Freedom of the press is both qualitative and quantitative. Freedom lies both in circulation and in content. The newsprint policy which permits newspapers to increase circulation by reducing the number of pages, page area and periodicity, prohibits them to increase the number of pages, page area and periodicity by reducing circulation. These restrictions constrict the newspapers in adjusting their page number and circulation.
… For the foregoing reasons the newsprint policy for 1972-73 violates Articles 19(1)(a) and 14 of the Constitution. The restrictions by fixing 10 page limit in Remarks V and VIII of the policy infringe Articles 19(1)(a) and 14 of the Constitution and are, therefore, declared unconstitutional and struck down. The policy of basic entitlement to quota in Remark V is violative of Articles 19(1)(a) and 14 of the Constitution and is therefore struck down. The measure in Remark VII(a) is violative of Articles 14 and 19(1)(a) of the Constitution and is struck down.
The measures in Remark VII(c) read with Remark VIII are violative of Articles 19(1)(a) and 14 of the Constitution and are struck down. The prohibition in Remark X against common ownership unit from starting a new newspaper/periodical or a new edition is declared unconstitutional and struck down as violative of Article 19(1)(a) of the Constitution. …
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REASONABLE RESTRICTIONS ON FREEDOM OF SPEECH
K. A. ABBAS V. UNION OF INDIA
AIR 1971 SC 481, (1970) 2 SCC 780
Decided On: Sep. 24, 1970
BENCH – CHIEF JUSTICE M. HIDAYATULLAH, JUSTICES J. SHELAT, G. K. MITTER, C. A.
VAIDIALINGAM & A. N. RAY
CHIEF JUSTICE HIDAYATULLAH (for the Court)
This petition seeks a declaration against the Union of India and the Chairman Central Board of Film Censors, that the provisions of Part II of the Cinematograph Act 1952 together with the rules prescribed by the Central Government, February 6, 1960, in the purported exercise of its powers under Section 5B of the Act are unconstitutional and void. As a consequence the petitioner asks for a writ of mandamus or any other appropriate writ, direction or order quashing the direction contained in a letter (Annexure X) dated July 3, 1969 for deletion of certain shots from a documentary film entitled ‘A Tale of Four Cities’, produced by him for unrestricted public exhibition.
The petitioner is a journalist, playwright and writer of short stories. He is also a producer and director of cinematograph films. He was a member of the Enquiry Committee on Film
Censorship (1968) and is a member of the Children 's Film Committee. He has produced and/or directed many films some of which have been well-received here and abroad and even won awards and prizes.
The petitioner produced in 1968 a documentary film in 2 reels (running time 16 minutes) called a ‘Tale of Four Cities’. In this film he purported to contrast the luxurious life of the rich in the four cities of Calcutta, Bombay, Madras and Delhi, with the squalor and poverty of the poor, particularly those whose hands and labour help to build beautiful cities, factories and other industrial complexes. The film is in black and white and is silent except for a song which the labourers sing while doing work and some background music and sounds for stage effect.
The film, in motion sequences or still shots, shows contrasting scenes of palatial buildings, hotels and factories-evidence of the prosperity of a few, and shanties, huts and slums-evidence of poverty of the masses. These scenes alternate and in between are other scenes showing sweating labourers working to build the former and those showing the squalid private life of these labourers. Some shots mix people riding in lush motor cars with rickshaw and handcart pullers of Calcutta and Madras. In one scene a fat and prosperous customer is shown riding a rickshaw which a decrepit man pulls, sweating and panting hard. In a contrasting scene the same rickshaw puller is shown sitting in the rickshaw, pulled by his former customer. This scene is the epitomisation of the theme of the film and on view are the statutes of the leaders of Indian Freedom Movement looking impotently from their high pedestal 's in front of palatial buildings, on the poverty of the masses. On the boulevards the rich drive past in limousines while the poor pull rickshaws or handcarts or stumble along.
There is included also a scanning shot of a very short duration, much blurred by the movement of the photographer 's camera, in which the red light district of Bombay is shown with the inmates of the brothels waiting at the doors or windows. Some of them wear abbreviated skirts showing bare legs up to the knees and sometimes a short way above them.
This scene was perhaps shot from a moving car because the picture is unsteady on the screen
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and under exposed. Sometimes the inmates, becoming aware of the photographer, quickly withdraw themselves. The whole scene barely lasts a minute. Then we see one of the inmates shutting a window and afterwards we see the hands of a woman holding some currency notes and a male hand plucking away most of them leaving only a very few in the hands of the female.
The two actors are not shown. The suggestion in the first scene is that a customer is being entertained behind closed shutters and in the next sequence that the amount received is being shared between the pimp and the prostitute, the former taking almost the whole of the money.
The sequence continues and for the first time the woman who shut the window is again seen.
She sits at the dressing table, combs her hair, glances at two love-birds in a cage and looks around the room as if it were a cage. Then she goes behind a screen and emerges in other clothes and prepares for bed. She sleeps and dreams of her life before she took the present path.
The film then passes on to its previous theme of contrasts mentioned above, often repeating the earlier shots in juxtaposition as stills. There is nothing else in the film to be noticed either by us or by the public for which it is intended.
The petitioner applied to the Board of Film Censors for a 'U ' certificate for unrestricted exhibition of the film. He received a letter (December 30, 1969) by which the Regional Officer informed him that the Examining Committee and the Board had provisionally come to the conclusion that the film was not suitable for unrestricted public exhibition but was suitable for exhibition restricted to adults. He was given a chance to make representations against the tentative decision within 14 days. Later he was informed that the Revising Committee had reached the same conclusion. He represented by letter (February 18, 1969) explaining the purpose of the films as exposing the exploitation of man (or woman) by man and the contrast between the very rich few and the very poor masses. He claimed that there was no obscenity in the film. He was informed by a letter (February 26, 1969) that the Board did not see any reason to alter its decision and the petitioner could appeal within 30 days to the Central Government.
The petitioner appealed the very next day. On July 3, 1969, the Central Government decided to give a 'U ' certificate provided the following cuts were made in the film:
"Shorten the scene of woman in the red light district, deleting specially the shot showing the closing of the window by the lady, the suggestive shots of bare knees and the passing of the currency notes." Dir. IC(iii)(b)(c); IV".
The mystery of the code numbers at the end was explained by a letter on July 23, 1969 to mean this:
I. It is not desirable that a film shall be certified as suitable for public exhibition, either unrestricted or restricted to adults which
C(iii)(b) deals with the relations between the sexes in such a manner as to depict immoral traffic in women and soliciting, prostitution or procuration.
IV. It is undesirable that a certificate for unrestricted public exhibition shall be granted in respect of a film depicting a story, or containing incidents unsuitable for young persons.
The petitioner then filed this petition claiming that his fundamental right of free speech and expression was denied by the order of the Central Government. He claimed a 'U ' certificate for the film as of right.
Before the hearing commenced the film was specially screened, for us. The lawyers of both sides (including the Attorney General) and the petitioner were also present. The case was then set down for hearing. The Solicitor General (who had not viewed the film) appeared at the hearing. We found it difficult to question him about the film and at our suggestion the Attorney
General appeared but stated that Government had decided to grant a 'U ' certificate to the film without the cuts previously ordered.
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The petitioner then asked to be allowed to amend the petition so as to be able to challenge pre-censorship itself as offensive to freedom of speech and expression and alternatively the provisions of the Act and the rules, orders and directions under the Act, as vague, arbitrary and indefinite. We allowed the application for amendment, for the petitioner was right in contending that a person who invests his capital in promoting or producing film must have clear guidance in advance in the matter of censorship of films even if the law of pre-censorship be not violative of the fundamental right.
When the matter came up for hearing the petitioner raised four points : (a) that precensorship itself cannot be tolerated under the freedom of speech and expression, (b) that even if it were a legitimate restraint on the freedom, it must be exercised on very definite principles which leave no room for arbitrary action, (c) that there must be a reasonable time-limit fixed for the decision of the authorities censoring the film, and (d) that the appeal should lie to a court or to an independent tribunal and not the Central Government.
The Solicitor-General conceded (c) and (d) and stated that Government would set on foot legislation to effectuate them at the earliest possible opportunity. Since the petitioner felt satisfied with-this assurance we did not go into the matter. But we must place on record that the respondents exhibited charts showing the time taken in the censorship of films during the last one year or so and we were satisfied that except in very rare cases the time taken could not be said to be unreasonable. We express our satisfaction that the Central Government will cease to perform curial functions through one of its Secretaries in this sensitive field involving the fundamental right of speech and expression. Experts sitting as a Tribunal and deciding matters quasi-judicially inspire more confidence than a Secretary and therefore it is better that the appeal should lie to a court or tribunal.
This brings us to the remaining two questions. We take up first for consideration: whether pre-censorship by itself offends the freedom of speech and expression. Article 19(1)(a) and (2) of the Constitution contain the guarantee of the right and the restraints that may be put upon that right by a law to be made by Parliament. …
The argument is that the freedom is absolute and pre-censorship is not permissible under the Constitution. It is submitted that pre censorship is inconsistent with the right guaranteed.
Now it is clear that some restraint is contemplated by the second clause and in the matter of censorship only two ways are open to Parliament to impose restrictions. One is to lay down in advance the standards for the observance of film producers and then to test each film produced against those standards by a preview of the film. The other is to let the producer observe those standards and make the infraction an offence and punish a producer who does not keep within the standards. The petitioner claims that the former offends the guaranteed freedom but reluctantly concedes the latter and relies upon the minority view expressed in the United States
Supreme Court from time to time. The petitioner reinforces this argument by contending that there are other forms of speech and expression besides the films and none of them is subject to any prior restraint in the form of pre-censorship and claims equality of treatment with such other forms. He claims that there is no justification for a differential treatment. He contends next that even the standards laid down are unconstitutional for many reasons which we shall state in proper place.
This is the first case in which the censorship of films in general and pre-censorship in particular have been challenged in this Court and before we say anything about the arguments, it is necessary to set down a few facts relating to censorship of films and how it works in India.
The Government of India appointed a Committee on March 28, 1968 to enquire into the working of the existing procedures for certification of cinematograph films for public exhibition in India and allied matters, under the Chairmanship of Mr. G.D. Khosla, former
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Chief Justice of the Punjab High Court. The report of the Committee has since been published and contains a valuable summary of the law of censorship not only in India but also in foreign countries. It is hardly helpful to the determination of this case to go into this history but it may be mentioned here that it is the opinion of experts on the subject that Indian film censorship since our independence has become one of strictest in the world… In 1966 Mr. Raj Bahadur
(who succeeded Mrs. Indira Gandhi as Minister for Information and Broadcasting) said that
Government would 'continue a liberal censorship ' and was considering certain expert opinion on the subject. He also suggested to the film industry that it should formulate a code which would be the best from all standards so that Government may be guided by it in formulating directives to the censors… This suggestion came to nothing for obvious reasons. Film industry in India is not even oligopolistic in character and it is useless to expect it to classify films according to their suitability, as is done in the United States by the Motion Picture Association of America (MPAA) founded in October 1968. There the film industry is controlled by eight major producers and private control of film-making is possible with the assistance of the
National Association of Theatre Owners and Film Importers and Distributors of America.
Having no such organisation for private censorship or even a private body like the British Board of Film Censors in England the task must be done by Government if censorship is at all to be imposed. Films began to be exhibited in India at the turn of the last century and film censorship took birth in 1918 when the Cinematograph Act, 1918 (2 of 1918) was passed. Two matters alone were then dealt with: (a) the licensing of cinema houses, and (b) the certifying of films for public exhibition. The censors had a wide discretion and no standards for their action were indicated. Boards of Film Censors came into existence in the three Presidency towns and
Rangoon. The Bombay Board drew up some institutions for Inspectors of Films and it copied the 43 rules formulated by T. P. O 'Connor in England. These are more or less continued even today. We do not wish to trace here the history of the development of film censorship in India.
That task has been admirably performed by the Khosla Committee. Legislation in the shape of amendments of the Act of 1918 and a Production Code were the highlights of the progress. In
1952 a fresh consolidating Act was passed and it is Act 37 of 1952 (amended in 1959 by Act 3 of 1959) and that is the present statutory provision on the subject. It established a Board of
Film Censors and provided for Advisory Panels at Regional centers. Every person desiring to exhibit any film has to apply for a certificate and the Board after examining the film or having the film examined deals with it by:
(a) sanctioning the film for unrestricted public exhibition;
(b) sanctioning the film for public exhibition restricted to adults;
(c) directing such excisions and modifications as it thinks fit, before sanctioning the film for unrestricted public exhibition or for public exhibition restricted to adults, as the case may be; or
(d) refusing to sanction the film for public exhibition.
The film producer is allowed to represent his views before action under (b) (c) and (d) is taken. The sanction under (a) is by granting a 'U ' certificate and under (b) by an 'A ' certificate and the certificates are valid for ten years.
The Act then lays down the principles for guidance and for appeals in Sections 5B and 5C respectively. These sections may be read here:
5B. Principles for guidance in certifying films.
(1) A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of the security of the State, friendly relations with foreign States, public
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order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence.
(2) Subject to the provisions contained in Sub-section (1), the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition.
5C. Appeals.
Any person applying for a certificate in respect of a film who is aggrieved by any order of the Board(a) refusing to grant a certificate; or
(b) granting only an "A" certificate; or
(c) directing the applicant to carry out any excisions or modifications; may, within thirty days from the date of such order, appeal to the Central
Government, and the Central Government may, after such inquiry into the matter as it considers necessary and after giving the appellant an opportunity for representing his views in the matter, make such order in relation thereto as it thinks fit.
By Section 6, the Central Government has reserved a general revising power which may be exercised during the pendency of a film before the Board and even after it is certified. Under the latter part of this power the Central Government may cancel a certificate already granted or change the 'U ' certificate into an 'A ' certificate or may suspend for 2 months the exhibition of any film.
The above is the general scheme of the legislation on the subject omitting allied matters in which we are not interested in this case. It will be noticed that Section 5B(1) really reproduces
Clause (2) of Article 19 as it was before its amendment by the First Amendment. This fact has led to an argument which we shall notice presently. The second sub-section of Section 5B enables the Central Government to state the principles to guide the censoring authority, by issuing directions. In furtherance of this power the Central Government has given directions to the Board of Film Censors. They are divided into General Principles three in number, followed by directions for their application in what are called 'ruled '. The part dealing with the application of the principles is divided into four sections and each section contains matters which may not be the subject of portrayal in films. We may quote the General Principles here:
1. No picture shall be certified for public exhibition which will lower the moral standards of those who see it. Hence, the sympathy of the audience shall not be thrown on the side of crime, wrong-doing, evil or sin.
2. Standards of life, having regard to the standards of the country and the people to which the story relates, shall not be so portrayed as to deprave the morality of the audience.
3. The prevailing laws shall not be so ridiculed as to create sympathy for violation of such laws.
The application of the General Principles is indicated in the four sections of the rules that follow so that a uniform standard may be applied by the different regional panels and Boards.
The first section deals with films which are considered unsuitable for public exhibition. This section is divided into Clauses A to F. Clause A deals with the delineation of crime, B with that of vice or immorality, C with that of relations between sexes, D with the exhibition of human form, E with the bringing into contempt of armed forces, or the public authorities entrusted with the administration of law and order and F with the protection of the susceptibilities of foreign nations and religious communities, with fomenting social unrest or discontent to such
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an extent as to incite people to crime and promoting disorder, violence, a breach of the law or disaffection or resistance to Government.
Clauses E and F are further explained by stating what is unsuitable and what is objectionable in relation to the topics under those clauses.
Section II then enumerates subjects which may be objectionable in a context in which either they amount to indecency, immorality, illegality or incitement to commit a breach of the law.
Section III then provides:
It is not proposed that certification of a film should be refused altogether, or that it should be certified as suitable for adult audiences only, where the deletion of a part or parts, will render it suitable for unrestricted public exhibition or for exhibition restricted to adults, and such deletion is made, unless the film is such as to deprave the majority of the audience and even excisions will not cure the defects. Section IV deals with the protection of young persons and enjoins refusal of a certificate for unrestricted public exhibition in respect of a film depicting a story or containing incidents unsuitable for young persons. Emphasis in this connection is laid in particular upon(i) anything which may strike terror in a young person, e.g., scenes depicting ghosts, brutality, mutilations, torture, cruelty, etc.;
(ii) anything tending to disrupt domestic harmony or the confidence of a child in its parents, e.g. scenes depicting parents quarrelling violently, or one of them striking the other, or one or both of them behaving immorally;
(iii) anything tending to make a person of tender years insensitive to cruelty to others or to animals.
In dealing with crime under Section I Clause A, the glorification or extenuation of crime, depicting the modus operandi of criminals, enlisting admiration or sympathy for criminals, holding up to contempt the forces of law against crime etc. are indicated as making the film unsuitable for exhibition. In Clause B similar directions are given with regard to vice and immoral acts and vicious and immoral persons. In Clause C the unsuitability arises from lowering the sacredness of the institution of marriage and depicting rape, seduction and criminal assaults on women, immoral traffic in women, soliciting prostitution or procuration, illicit sexual relations, excessively passionate love scenes, indelicate sexual situations and scenes suggestive of immorality. In Clause D the exhibition of human form in nakedness or indecorously or suggestively dressed and indecorous and sensuous postures are condemned. In
Section II are mentioned confinements, details of surgical operations, venereal diseases and loathsome diseases like leprosy and sores, suicide or genocide, female under clothing, indecorous dancing, importunation of women, cruelty to children, torture of adults, brutal fighting, gruesome murders or scenes of strangulation, executions, mutilations and bleeding, cruelty to animals, drunkenness or drinking not essential to the theme of the story, traffic and use of drugs, class hatred, horrors of war, horror as a predominant element, scenes likely to afford information to the enemy in time of war, exploitation of tragic incidents of war, blackmail associated with immorality, intimate biological studies, crippled limbs or malformations, gross travesties of administration of justice and defamation of any living person. We have covered almost the entire range of instructions. It will be noticed that the control is both thematic and episodic. If the theme offends the rules and either with or without excision of the offending parts, the film remains still offensive, the certificate is refused. If the excisions can remove its offensiveness, the film is granted a certificate. Certifiable films are classified
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according to their suitability for adults or young people. This is the essential working of
Censorship of motion pictures in our country.
The first question is whether the films need censorship at all? Pre-censorship is but an aspect of censorship and bears the same relationship in quality to the material as censorship after the motion picture has had a run. The only difference is one of the stage at which the State interposes its regulations between the individual and his freedom. Beyond this there is no vital difference. That censorship is prevalent all the world over in some form or other and precensorship also plays a part where motion pictures are involved, shows the desirability of censorship in this field. The Khosla Committee has given a description generally of the regulations for censorship (including pre-censorship) obtaining in other countries and
Running 's book deals with these topics in detail separately for each country. The method changes, the rules are different and censorship is more strict in some places than in others, but censorship is universal. Indeed the petitioner himself pronounced strongly in favour of it in a paper entitled Creative Expression written by him. This is what he said:
But even if we believe that a novelist or a painter or a musician should be free to write, paint and compose music without the interference of the State machinery, I doubt if anyone will advocate the same freedom to be extended to the commercial exploitation of a powerful medium of expression and entertainment like the cinema. One can imagine the results if an unbridled commercial cinema is allowed to cater to the lowest common denominator of popular taste, specially in a country which, after two centuries of political and cultural domination, is still suffering from a confusion and debasement of cultural values.
Freedom of expression cannot, and should not, be interpreted as a licence for the cinemagnates to make money by pandering to, and thereby propagating, shoddy and vulgar taste.
Further it has been almost universally recognised that the treatment of motion pictures must be different from that of other forms of art and expression. This arises from the instant appeal of the motion picture, its versatility, realism (often surrealism), and its coordination of the visual and aural senses. The art of the cameraman, with trick photography, vistavision and three dimensional representation thrown in, has made the cinema picture more true to life than even the theatre or indeed any other form of representative article. The motion picture is able to stir up emotions more deeply than any other product of article. Its effect particularly on children and adolescents is very great since their immaturity makes them more willingly suspend their disbelief than mature men and women. They also remember the action in the picture and try to emulate or imitate what they have seen. Therefore, classification of films into two categories of 'U ' films and 'A ' films is a reasonable classification. It is also for this reason that motion picture must be regarded differently from other forms of speech and expression. A person reading a book or other writing or hearing a speech or viewing a painting or sculpture is not so deeply stirred as by seeing a motion picture. Therefore the treatment of the latter on a different footing is also a valid classification.
The petitioner pressed for acceptance of the minority views expressed from time to time in the Supreme Court of the United States and it is, therefore, necessary to say a few words about censorship of motion pictures in America and the impact of the First Amendment guaranteeing freedom of speech and expression in that country. The leading cases in the United States are really very few but they are followed in a very large number of per curiam decisions in which, while concurring with the earlier opinion of the Court, there is sometimes a restatement with a difference. As early as 1914 in Mutual Film Corporation. v. Industrial Commission of Ohio
(1915) 236 U.S. 230. Mr. Justice Mc Kenna, speaking for the full Court, said that legislative power is not delegated unlawfully when a board of censors is set up to examine and censor, as a condition precedent to exhibition, motion picture films, to be publicly exhibited and displayed, with a view to passing and approving only such of them as are in the judgment of
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the board, moral, educational or amusing and forbidding those that are not. Speaking of the criteria stated in general words, it was said that general terms get "precision from the sense and experience of men and become certain and useful guides in reasoning and conduct". The first notice of change came in 1925 in Gitlow v. New York (1925) 268 U.S. 652, when it was said that censorship had to pass the scrutiny of the First Amendment through the Fourteenth
Amendment before speech and expression could be Abridged by State laws. To this, was added in 1919 the test of 'clear and present danger ' propounded by Justice Holmes as the only basis for curtailing the freedom of speech and expression, see Shenck v. U.S. (1919) 249 U.S. 47. and Justice Brandeis in Whitney v. California (1927) 274 U.S. 357 laid down three components of the test :
(a) There must be a clear and present danger that speech would produce a substantial evil that the State has power to prevent. This is not to say that it is enough if there is 'fear ', there must be reasonable grounds to fear that serious evil would result from the exercise of speech and expression.
(b) There must be a 'present ' or 'imminent ' danger and for this there must be reasonable grounds to hold this opinion and that no reasonable opportunity was available to avert the consequences; and
(c) The substantive evil to be prevented must be 'serious ' before there can be a prohibition on freedom of speech and expression for the police power of the State could not be exercised to take away the guarantee to avert a relatively trivial harm to society.
In 1931 in Near v. Minnesota (1931) 283 U.S. 697 immunity of press from pre-censorship was denied but pre-censorship (as it is termed previous restraint) was not to be unlimited. A major purpose of the First Amendment was to prevent prior restraint. The protection was not unlimited but put on the state the burden of showing that the limitation challenged in the case was exceptional.
In 1941 the Court handed down in Chaplinsky v. New Hampshire (1941) 315 U.S. 567 the opinion that free speech was not absolute at all times and in all circumstances, that there existed certain "well-defined and narrowly limited classes of speech, the prevention and punishment of which had never been thought to raise any Constitutional problem".
This state of affairs continued also in respect of motion pictures and the regulation of their public exhibition. Real attention was focused on censorship after 1951. The effect of World
War II on American society was the real cause because people’s notions of right and wrong from a social point of view drastically altered. Added to this were the inroads made by Justices
Douglas and Black in Dennis v. U.S. (1951) 341 U.S. 494 in the previously accepted propositions which according to them made the First Amendment no more than an admonition to Congress. In Beauharnais v. Illinois (1952) 343 U.S. 250 Justice Douglas claimed for the freedom of speech, a preferred position because the provision was in absolute terms, an opinion which has since not been shared by the majority of the Court.
In 1951 there came the leading decision Burstyn v. Wilson (1951) 343 U.S. 495. This case firmly established that motion pictures were within the protection of the First Amendment through the Fourteenth. While recognising that there was no absolute freedom to exhibit every motion picture of every kind at all times and places, and that Constitutional protection even against a prior restraint was not absolutely unlimited, limitation was said to be only in exceptional cases. It however laid down that censorship on free speech and expression was ordinarily to be condemned but the precise rules governing other methods of expression were not necessarily applicable.
The application of the 14th Amendment has now enabled the Court to interfere in all cases of state restrictions where censorship fails to follow due process. The result has led to a serious
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conflict in the accepted legal opinion. The Supreme Court has had to deal with numerous cases in which censorship was questioned.
The divergence of opinion in recent years has been very deep. Censorship of press, art and literature is on the verge of extinction except in the ever shrinking area of obscenity. In the field of censorship of the motion picture there has been a tendency to apply the 'void for vagueness ' doctrine evolved under the due process clause. Thus regulations containing such words as 'obscene ', 'indecent ', 'immoral ', 'prejudicial to the best interests of people ', 'tending to corrupt morals ', 'harmful ' were considered vague criteria. In Kingsley International Pictures
Corporation. v. Regents (1959) 360 U.S. 684 where the film Lady Chatterley 's Lover was in question, certain opinions were expressed. These opinions formed the basis of the arguments on behalf of the petitioner. Justice Black considered that the court was the worst of Board
Censors because they possessed no special expertise. Justice Frankfurter was of the opinion that 'legislation must not be so vague, the language so loose, as to leave to those who have to apply it too wide a discretion for sweeping within its condemnation what was permissible expression as well as what society might permissibly prohibit, always remembering that the widest scope for freedom was to be given to the adventurous and imaginative exercise of human spirit…". Justice Douglas considered prior restraint as unconstiutional. According to him if a movie violated a valid law, the exhibitor could be prosecuted.
The only test that seemed to prevail was that of obscenity as propounded in Roth v. United
States (1957) 354 U.S. 476. In that three tests were laid down:
(a) that the dominant theme taken as a whole appeals to prurient interests according to the contemporary standards of the average man;
(b) that the motion picture is not saved by any re deeming social value; and
(c) that it is patently offensive because it is opposed to contemporary standards.
The Hicklin test in Regina v. Hicklin [1868] 3 Q.B. 360 was not accepted.
Side by side procedural safeguards were also considered. The leading case is Freedmen v.
Maryland (1965) 380 U.S. 51 where the court listed the following requirements for a valid film statute: 1. The burden of proving that the film is obscene rests on the censor.
2. Final restraint (denial of licence) may only occur after judicial determination of the obscenity of the material.
3. The censor will either issue the license or go into court himself for a restraining order. 4. There must be only a 'brief period ' between the censor 's first consideration of film and final judicial determination. …
These were further strengthened recently in Teitel Film Corporation v. Cusak (1968) 390
U.S. 139 (a per curiam decision) by saying that a non-criminal process which required the prior submission of a film to a censor avoided Constitutional infirmity only if censorship took place under procedural safeguards. The censorship system should, therefore, have a time-limit. The censor must either pass the film or go to court to restrain the showing of the film and the court also must give a prompt decision. A delay of 50-57 days was considered too much. The statute in question there had meticulously laid down the time for each stage of examination but had not fixed any time limit for prompt judicial determination and this proved fatal.
The fight against censorship was finally lost in the Times Film Corporation v. Chicago
(1961) 365 U.S. 43 but only by the slender majority of one. Chief Justice Warren and Justices
Black, Douglas and Brennan dissented. The views of these Judges were pressed upon us. Chief
Justice Warren thought that there ought to be first an exhibition of an allegedly 'obscene film '
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because Government could not forbid the exhibition of a film in advance. Thus prior restraint was said to be impermissible. Justice Douglas went further and said that censorship of movies was unconstitutional. Justice Clark on the other hand, speaking for the majority, said:
It has never been held that liberty of speech is absolute. Nor has it been suggested that all previous restraints on speech are invalid.
It is not for this Court to limit the State in its selection of the remedy it deems most effective to cope with such a problem, absent, of course, a showing of unreasonable strictures on individual liberty resulting from its application in particular circumstances.
The argument that exhibition of moving pictures ought in the first instance to be free and only a criminal prosecution should be the mode of restraint when found offensive was rejected.
The pre censorship involved was held to be no ground for striking down a law of censorship.
The minority was of the opinion that a person producing a film must know what he was to do or not to do. For, if he were not sure he might avoid even the permissible.
In Interstate Circuit Inc. v. Dallas (1968) 390 U.S. 676 certain expression were considered vague including ‘crime delinquency’ ‘sexual promiscuity’ ‘not suitable for young persons’.
According to the court the statute must state narrowly drawn, reasonably definite, standards for the Board to follow. Justice Harlan, however, observed that the courts had not found any more precise expressions and more could not be demanded from the legislature than could be said by the Court. However precision of regulation was to be the touchstone of censorship and while admitting that censorship was admissible, it was said that too wide a discretion should not be left to the censors.
Meanwhile in Jacobellis v. Ohio (1964) 378 U.S. 184 it was held that laws could legitimately aim specifically at preventing distribution of objectionable material to children and thus it approved of the system of age-classification. Interstate Circuit Inc. v. Dallas (1968)
390 U.S. 676 and Ginsberg v. New York (1968) 390 U.S. 629 set the seal on validity of age classification as constitutionally valid.
There are two cases which seem to lie outside the main-stream. Recently in Stanley v.
Georgia (1969) 394 U.S. 557 the Court seems to have gone back on the Roth case and held that the right to receive information and ideas, regardless of their social worth, is also fundamental to society. Another exception can only be understood on the basis of the recognition of the needs of a permissive society. Thus Mishkin v. New York (1966) 383 U.S.
502 removes the test of the average person by saying that if the material is designed for a deviant sexual group, the material can only be censored if taken as a whole, it appeals to the prurient interest in sex of the members of that group. This is known as the selective-audience obscenity test and even children are a special class. See Ginsberg v. New York (1968) 390 U.S.
629. On the whole, however, there is in this last case a return to the Hicklin test in that obscenity is considered even from isolated passages.
To summarize. The attitude of the Supreme Court of the United States is not as uniform as one could wish. It may be taken as settled that motion picture is considered a form of expression and entitled to protection of First Amendment. The view that it is only commercial and business and, therefore, not entitled to the protection as was said in Mutual Film Corpn. (1915) 236 U.S.
230 is not now accepted. It is also settled that freedom of speech and expression admits of extremely narrow restraints in cases of clear and present danger, but included in the restraints are prior as well as subsequent restraints. The censorship should be based on precise statement of what may not be subject matter of film-making and this should allow full liberty to the growth of art and literature. Age-classification is permissible and suitability for special
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audiences is not to depend on whether the average man would have considered the film suitable.
Procedural safeguards as laid down in the Freedman case (1965) 380 U.S. 51 must also be observed. The film can only be censored if it offends in the manner set out in Roth 's case.
The petitioner put before us all these dicta for our acceptance and added to them the rejection of censorship, particularly prior censorship by Chief Justice Warren and Justices
Black and Douglas. He pointed out that in England too the censorship of the theatre has been abolished by the Theatres Act 1968 (1968 C. 54) and submitted that this is the trend in advanced countries. He also brought to our notice the provisions of the Obscene Publications Act, 1959
7 & 8 Eliz. 2 C. 66, where the test of obscenity is stated thus:
1. Test of obscenity.
(1) For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained of embodied in it.
and the defence of public good is stated thus :
4. Defence of public good.
(1) A person shall not be convicted of an offence against section two of this Act, and an order for forfeiture shall not be made under the foregoing section, if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.
(2) It is hereby declared that the opinion of experts as to the literary, artistic, scientific or other merits of an article may be admitted in any proceedings under this Act either to establish or to negative the said ground.
He contended that we must follow the above provisions.
We may now consider the English practice. In England there was little freedom of speech to start with. The Common Law made no provision for it. The two Constitutional documents the Petition of Right (1628) and the Bill of Rights (1689) - do not mention it. By the time of
Queen Elizabeth I presses were controlled through licences and although they were granted, no book could be issued without the sanction of Government. The Star Chamber tried several cases of censorship and it even continued in the days of Cromwell. Milton was the first to attack censorship in his Areopagitica and that had profound effect on the freedom of speech. We find quotations from his writings in the opinions of Chief Justice Warren and Justice Dougles.
Freedom of speech came to be recognised by slow stages and it was Blackstone who wrote in his Commentaries (Book IV p. 1517)The liberty of the Press is indeed essential to the nature of a free State, but this consists in laying no previous restraints upon publications.
But censorship of theatres continued and no theatre could be licensed or a play performed without the sanction of the Lord Chamberlain. By the Theatres Act 1843 the Lord Chamberlain was given statutory control over the theatres. He could forbid the production of a play for the preservation of good manners, decorum or the public peace. There was ordinarily no censorship of the press in England. When cinematograph came into being the Cinematograph Act 1909 was passed to control cinemas. It has now been amended by the Cinematograph Act of 1952.
Restrictions were placed on the exhibition of films to children (Section 4) and on the admission of children to certain types of film. Today censorship of films is through the British Board of
Film Censors which is an independent body not subject to control by the State. An elaborate
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inquiry is already on foot to consider whether state control is needed or not. Censorship of films is run on the lines set by T.P. O 'Connor in 1918. These directions, as we said earlier, have had a great influence upon our laws and our directions issued by the Central Government, follow closely the 43 points of T.P. O 'Connor. It is wrong to imagine that there is no censorship in
England. The Khosla Committee (p. 32) has given examples of the cuts ordered and also a list of films which were found unsuitable. The Board has never worked to a Code although the directions are followed. By 1950 three general principles were evolved. They are:
1. Was the story, incident or dialogue likely to impair the moral standards of the public by extenuating vice or crime or depreciating moral standards?
2. Was it likely to give offence to reasonably minded cinema audiences?
3. What effect would it have on the minds of children?
We have digressed into the practice of the United States and the United Kingdom because analogies from these two countries were mainly relied upon by the petitioner and they serve as a very appropriate back-ground from which to begin discussion on the question of censorship and the extent to which it may be carried.
To begin with our fundamental law allows freedom of speech and expression to be restricted as Clause (2) itself shows. It was observed in Ranjit D. Udeshi v. State of
Maharashtra, 1965 Cri. L.J.8.
Speaking in terms of the Constitution it can hardly be claimed that obscenity which is offensive to modesty or decency is within the Constitutional protection given to free speech or expression, because the article dealing with the right itself excludes it. That cherished right on which our democracy rests is meant for the expression of free opinions to change political or social conditions or for the advancement of human knowledge. This freedom is subject to reasonable restrictions which may be thought necessary in the interest of the general public and one such is the interest of public decency and morality. Section 292, Indian
Penal Code, manifestly embodies such a restriction because the law against obscenity, of course, correctly understood and applied, seeks no more than to promote public decency and morality.
We adhere to this statement and indeed it is applicable to the other spheres where control is tolerated under our fundamental law. The argument that Section 5B of the Cinematograph
Act does not reproduce the full effect of the second clause of Article 19 need not detain us. It appears that the draftsman used a copy of the Constitution as it was before the First Amendment and fell into the error of copying the obsolete clause. That, however, does not make any difference. The Constitution has to be read first and the section next. The latter can neither take away nor add to what the Constitution has said on the subject. The word 'reasonable ' is not to be found in Section 5B but it cannot mean that the restrictions can be unreasonable. Not only the sense of the matter but the existence of the Constitutional provision in pari materia must have due share and reading the previsions of the Constitution we can approach the problem without having to adopt a too liberal construction of Section 5B.
It, therefore, follows that the American and the British precedents cannot be decisive and certainly not the minority view expressed by some of the Judges of the Supreme Court of the former. The American Constitution stated the guarantee in absolute terms without any qualification. The Judges try to give full effect to the guarantee by every argument they can validly use. But the strongest proponent of the freedom (Justice Douglas) himself recognised in the Kingsley case that there must be a vital difference in approach. This is what he said:
If we had a provision in our Constitution for 'reasonable ' regulation of the press such as India has included in hers, there would be room for argument that censorship in the interests of morality would be permissible.
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In spite of the absence of such a provision Judges in America have tried to read the words 'reasonable restrictions ' into the First Amendment and thus to make the rights it grants subject to reasonable regulation. The American cases in their majority opinions, therefore, clearly support a case of censorship.
It would appear from this that censorship of films, their classification according to age groups and their suitability for unrestricted exhibition with or without excisions is regarded as a valid exercise of power in the interests of public morality, decency etc. This is not to be construed as necessarily offending the freedom of speech and expression. This has, however, happened in the United States and therefore decisions, as Justice Douglas said in his Tagore
Law Lectures (1939), have the flavour of due process rather than what was conceived as the purpose of the First Amendment. This is because social interest of the people override individual freedom. Whether we regard the state as the paren patriae or as guardian and promoter of general welfare, we have to concede, that these restraints on liberty may be justified by their absolute necessity and clear purpose. Social interests take in not only the interests of the community but also individual interests which cannot be ignored. A balance has therefore to be struck between the rival claims by reconciling them. The larger interests of the community require the formulation of policies and regulations to combat dishonesty, corruption, gambling, vice and other things of immoral tendency and things which affect the security of the State and the preservation of public order and tranquillity. As Ahrens said the question calls for a good philosophical compass and strict logical methods.
With this preliminary discussion we say that censorship in India (and pre-censorships is not different in quality) has full justification in the field of the exhibition of cinema films. We need not generalize about other forms of speech and expression here for each such fundamental right has a different content and importance. The censorship imposed on the making and exhibition of films is in the interests of society. If the regulations venture into something which goes beyond this legitimate opening to restrictions, they can be questioned on the ground that a legitimate power is being abused. We hold, therefore, that censorship of films including prior restraint is justified under our Constitution.
This brings us to the next question: How far can these restrictions go? And how are they to be imposed? This leads to an examination of the provisions contained in Section 5B(2). That provision authorises the Central government to issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under the Act in sanctioning films for public exhibition.
The first question raised before us is that the legislature has not indicated any guidance to the Central Government. We do not think that this is a fair reading of the section as a whole.
The first sub-section states the principles and read with the second clause of the nineteenth article it is quite clearly indicated that the topics of films or their content should not offend certain matters there set down. The Central Government in dealing with the problem of censorship will have to bear in mind those principles and they will be the philosophical compass and the logical methods of Ahrens. Of course, Parliament can adopt the directions and put them in schedule to the Act (and that may still be done), it cannot be said that there is any delegation of legislative function. If Parliament made a law giving power to close certain roads for certain vehicular traffic at stated times to be determined by the Executive authorities and they made regulations in the exercise of that power, it cannot for a moment be argued that this is insufficient to take away the right of locomotion. Of course, everything may be done by legislation but it is not necessary to do so if the policy underlying regulations is clearly indicated. The Central Government 's regulations are there for consideration in the light of the
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guaranteed freedom and if they offend substantially against that freedom, they may be struck down. But as they stand they cannot be challenged on the ground that any recondite theory of law making or a critical approach to the separation of powers is infringed. We are accordingly of the opinion that Section 5B(2) cannot be challenged on this ground.
This brings us to the manner of the exercise of control and restriction by the directions.
Here the argument is that most of the regulations are vague and further that they leave no scope for the exercise of creative genius in the field of Article This poses the first question before us whether the 'void for vagueness ' doctrine is applicable. Reliance in this connection is placed on
Municipal Committee Amritsar v. State of Rajasthan A.I.R. 1960 S.C. 1100. In that case a
Division Bench of this Court lays down that an Indian Act cannot be declared invalid on the ground that it violates the due process clause or that it is vague. Shah J, speaking for the
Division Bench, observes:
…the rule that an Act of a competent legislature may be 'struck down ' by the courts on the ground of vagueness is alien to our Constitutional system. The
Legislature of the State of Punjab was competent to enact legislation in respect of 'fairs ', vide Entry 28 of List II of the 7th Schedule to the Constitution. A law may be declared invalid by the superior courts in India if the legislature has no power to enact the law or that the law violates any of the fundamental rights guaranteed in Part III of the Constitution or is inconsistent with any Constitutional provision, but not on the ground that it is vague.
The learned Judge refers to the practice of the Supreme Court of the United State in Claude
C. Caually v. General Construction Company (1926) 70 L. Ed. 332 where it was observed :
A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
The learned Judge observes in relation to this as follows:
But the rule enunciated by the American Courts has no application under our
Constitutional set up. This rule is regarded as an essential of the 'due process clause ' incorporated in the American Constitution by the 5th and 14th
Amendments. The courts in India have no authority to declare a statute invalid on the ground that it violates 'the due process of law '. Under our Constitution, the test of due process of law cannot be applied to the statutes enacted by the Parliament or the State Legislature.
… These observations which are clearly obiter are apt to be too generally applied and need to be explained. While it is true that the principles evolved by the Supreme Court of the United
States of America in the application of the Fourteenth Amendment were eschewed in our
Constitution and instead the limits of restrictions on each fundamental right were indicated in the clauses that follow the first clause of the nineteenth article, it cannot be said as an absolute principle that no law will be considered bad for sheer vagueness. There is ample authority for the proposition that a law affecting fundamental rights may be so considered. A very pertinent example is to be found in State of Madhya Pradesh v. Baldeo Prasad [1961] 1 SCR 970 where the Central Provinces and Berar Goondas Act 1946 was declared void for uncertainty. The condition for the application of Sections 4 and 4A was that the person sought to be proceeded against must be a goonda but the definition of goonda in the Act indicated no tests for deciding which person fell within the definition. The provisions were therefore held to be uncertain and vague. The real rule is that if a law is vague or appears to be so, the court must try to construe it, as far as may be, and language permitting, the construction sought to be placed on it, must be in accordance with the intention of the legislature. Thus if the law is open to diverse
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construction, that construction which accords best with the intention of the legislature and advances the purpose of legislation, is to be preferred. Where however the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution as was done in the case of the Goonda Act. This is not application of the doctrine of due process.
The invalidity arises from the probability of the misuse of the law to the detriment of the individual. If possible, the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases. Judging the directions from this angle, we find that there are general principles regarding the films as a whole and specific instances of what may be considered as offending the public interest as disclosed in the clause that follows the enunication of the freedoms in Article
19(1)(a). The general principles which are stated in the directions seek to do no more than restate the permissible restrictions as stated in Clause (2) of Article 19 and Section 5B(1) of the Act. They cannot be said to be vague at all. Similarly, the principles in Section IV of the directions in relation to children and young persons are quite specific and also salutary and no exception can be taken. It is only the instances which are given in Section I Clauses A to D which need to be considered. Read individually they give ample direction as to what may not be included. It is argued on the basis of some American cases already noticed by us that these expressions are vague. We do not agree. The words used are within the common understanding of the average man. For example the word 'rape ' indicate what the word is, ordinarily, understood to mean. It is hardly to be expected or necessary that the definition of rape in the
Penal Code must be set down to further expose the meaning. The same may be said about almost all the terms used in the directions and discussed before us. We do not propose to deal with each topic for that is really a profitless venture. Fundamental rights are to be judged in a broad way. It is not a question of semantics but of the substance of the matter. It is significant that Justice Douglas who is in favour of a very liberal and absolute application of the First
Amendment in America is of the view that 'sexual promiscuity ' was not vague, while those in favour of prior restraints thought that it was. We have referred earlier to the case. We are quite clear that expressions like 'seduction ', 'immoral traffic in women ', 'soliciting, prostitution or procuration ', 'indelicate sexual situation ' and 'scenes suggestive of immorality ', 'traffic and use of drugs ', 'class hatred ', blackmail associated with immorality ' are within the understanding of the average men and more so of persons who are likely to be the panel for purposes of censorship. Any more definiteness is not only not expected but is not possible. Indeed if we were required to draw up a list we would also follow the same general pattern.
But what appears to us to be the real flaw in the scheme of the directions is a total absence of any direction which would tend to preserve art and promote it. The artistic appeal or presentation of an episode robs it of its vulgarity and harm and this appears to be completely forgotten. Artistic as well as inartistic presentations are treated alike and also what may be socially good and useful and what may not. In Ranjit D. Udeshi 's case this court laid down certain principles on which the obscenity of a book was to be considered with a view to deciding whether the book should be allowed to circulate or withdrawn. Those principles apply mutatis mutandis to films and also other areas besides obscenity. The Khosla Committee also adopted them and recommended them for the guidance of the film censors. We may reproduce them here as summarized by the Khosla Committee:
The Supreme Court laid down the following principles which must be carefully studied and applied by our censors when they have to deal with a film said to be objectionable on the ground of indecency or immorality :(1) Treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more.
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(2) Comparison of one book with another to find the extent of permissible action is not necessary.
(3) The delicate task deciding what is artistic and what is obscene has to be performed by courts and in the last resort, by the Supreme Court and so, oral evidence of men of literature or others on the question of obscenity is not relevant.
(4) An overall view of the obscene matter in the setting of the whole work would of course be necessary but the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity is so decided that it is likely to deprave or corrupt those whose minds are open to influence of this sort and into whose hands the book is likely to fall.
(5) The interests of contemporary society and particularly the influence of the book etc., on it must not be overlooked.
(6) Where obscenity and art are mixed, art must be so preponderating as to throw obscenity into shadow or render the obscenity so trivial and insignificant that it can have no effect and can be overlooked.
(7) Treating with sex in a manner offensive to public decency or morality which are the words of our Fundamental Law judged by our national standards and considered likely to pender to lascivious, prurient or sexually precocious minds must determine the result.
(8) When there is propagation of ideas, opinions and informations or public interests or profits, the interests of society may tilt the scales in favour of free speech and expression. Thus books on medical science with intimate illustrations and photographs though in a sense immodest, are not to be considered obscene, but the same illustrations and photographs collected in a book from without the medical text would certainly be considered to be obscene.
(9) Obscenity without a preponderating social purpose or profit cannot have the
Constitutional protection of free speech or expression. Obscenity is treating with sex in a manner appealing to the carnal side of human nature or having that tendency. Such a treating with sex is offensive to modesty and decency.
(10) Knowledge is not a part of the guilty act. The offender 's knowledge of the obscenity of the book is not required under the law and it is a case of strict liability.
Application of these principles does not seek to whittle down the fundamental right of free speech and expression beyond the limits permissible under our Constitution for however high or cherished that right it does not go to pervert or harm society and the line has to be drawn somewhere. …
We may now illustrate our meaning how even the items mentioned in the directions may figure in films subject either to their artistic merit or their social value over-weighing their offending character. The task of the censor is extremely delicate and his duties cannot be the subject of an exhaustive set of commands established by prior ratiocination. But direction is necessary to him so that he does not sweep within the terms of the directions vast areas of thought, speech and expression of artistic quality and social purpose and interest. Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read.
The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good, We must not look upon such human relationships as banned in toto and forever from human thought and must give scope for talent to put them before society. The requirements of art and literature include within themselves a comprehensive view of social life and not only in its ideal form and the line is to be drawn where the average man moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the
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redeeming touch of art or genius or social value. If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a
Frenchman sees a woman 's legs in everything, it cannot be helped.
In our scheme of things ideas having redeeming social or artistic value must also have importance and protection for their growth. Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral. It should be our concern, however, to prevent the use of sex designed to play a commercial role by making its own appeal. This draws in the censors scissors. Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Latius who committed patricide and incest with his mother. When the seer Tiresias exposed him, his sister Jocasta committed suicide by hanging herself and Oedipus put out his own eyes. No one after viewing these episodes would think that patricide or incest with one 's own mother is permissible or suicide in such circumstances or tearing out one 's own eyes is a natural consequence. And yet if one goes by the letter of the directions the film cannot be shown. Similarly, scenes depicting leprosy as a theme in a story or in a documentary are not necessarily outside the protection. If that were so
Verrier Elwyn 's Phulmat of the Hills or the same episode in Henryson 's Testament of Cresseid
(from where Verrier Elwyn borrowed the idea) would never see the light of the day. Again carnage and bloodshed may have historical value and the depiction of such scenes as the Sack of Delhi by Nadirshah may be permissible, if handled delicately and as part of an artistic portrayal of the confrontation with Mohammad Shah Rangila. If Nadir Shah made golgothas of skulls, must we leave them out of the story because people must be made to view a historical theme without true history? Rape in all its nakedness may be objectionable but Voltaire 's
Candide would be meaningless without Cunegonde 's episode with the soldier and the story of
Lucrece could never be depicted on the screen.
Therefore it is not the elements of rape, leprosy, sexual immorality which should attract the censor 's scissors but how the theme is handled by the producer. It must, however, be remembered that the cinematograph is a powerful medium and its appeal is different. The horrors of war as depicted in the famous etchings of Goya do not horrify one so much as the same scenes rendered in colour and with sound and movement, would do. We may view a documentary on the erotic tableaux from our ancient temples with equanimity or read the
Kamasutra but a documentary from them as a practical sexual guide would be abhorrent.
We have said all this to show that the items mentioned in the directions are not by themselves defective. We have adhered to the 43 points of T. P. O 'Connor framed in 1918 and have made a comprehensive list of what may not be shown. Parliament has left this task to the
Central Government and, in our opinion, this could be done. But Parliament has not legislated enough, nor has the Central Government filled in the gap. Neither has separated the artistic and the sociably valuable from that which is deliberately indecent, obscene, horrifying or corrupting. They have not indicated the need of society and the freedom of the individual. They have thought more of the depraved and less of the ordinary moral man. In their desire to keep films from the abnormal, they have excluded the moral. They have attempted to bring down the public motion picture to the level of home movies.
It was for this purpose that this Court was at pains to point out in Ranjit D. Udeshi 's case certain considerations for the guidance of censorship of books. We think that those guides work as well here. Although we are not inclined to hold that the directions are defective in so far as they go, we are of opinion that directions to emphasize the importance of art to a value judgment by the censors need to be included. Whether this is done by Parliament s or by the
Central Government it hardly matters. The whole of the law and the regulations under it will have always to be considered and if the further tests laid down here are followed, the system
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of censorship with the procedural safeguards accepted by the Solicitor General will make censorship accord with our fundamental law.
We allow this petition as its purpose is more than served by the assurance of the Solicitor
General and what we have said, but in the circumstances we make no order about costs.
AJAY GOSWAMI V. UNION OF INDIA
AIR 2007 SC 493, (2007) 1 SCC 143
Decided On: December 12, 2006
BENCH – JUSTICES DR. AR. LAKSHMANAN & TARUN CHATTERJEE
JUSTICE LAKSHMANAN (for the Court)
The Petitioner is a lawyer by profession. Respondent No. 1 is Union of India, respondent
No. 2 is a statutory body, respondent Nos. 3 & 4 are the leading national daily newspapers and respondent No. 5 & 6 are news agencies.
The present petition involves a substantial question of law and public importance on the fundamental right of the citizens, regarding the freedom of speech and expression as enshrined under Article 19(1)(a) of the Constitution of India. The petitioner 's grievance is that the freedom of speech and expression enjoyed by the newspaper industry is not keeping balance with the protection of children from harmful and disturbing materials. Article 19(1)(a) guarantees freedom of speech and expression of individual as well as press. It acknowledges that the press is free to express its ideas but on the same hand, individual also has right to their own space and right not to be exposed against their will to other 's expressions of ideas and actions. By way of this petition, the petitioner requested the Court to direct the authorities to strike a reasonable balance between the fundamental right of freedom of speech and expression enjoyed by the press and the duty of the Government, being signatory of United Nations
Convention on the Rights of the Child, 1989 and Universal Declaration of Human Rights, to protect the vulnerable minors from abuse, exploitation and harmful effects of such expression.
The petitioner requested the Court to direct the concerned authorities to provide for classification or introduction of a regulatory system for facilitating climate of reciprocal tolerance which may include:
(a) an acceptance of other people 's rights to express and receive certain ideas and actions; and
(b) accepting that other people have the right not to be exposed against their will to one 's expression of ideas and actions.
The reciprocal tolerance is further necessary considering the growing tendency among youngsters and minors in indulging in X-rated jokes, SMS and MMS.
We heard Mr. Ajay Goswami, petitioner-in-person and Mr. Harish Chandra, learned senior counsel, Mr. P.H. Parekh, Mr. Sanjay Kumar, Mr. A.K. Seth, Mr. Gopal Jain, Mr. Vimal
Chandra, Mr. S. Dave, learned Counsel appearing for the respondents and the entire documents placed before us.
The Lawyer Petitioner who appeared in person submitted that he filed this petition to seek protection from this Court to ensure that minors are not exposed to sexually exploitative materials, whether or not the same is obscene or is within the law. The real objective is that the
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nature and extent of the material having sexual contents should not be exposed to the minors indiscriminately and without regard to the age of minor. The discretion in this regard should vest with parents, guardians, teachers or experts on sex education.
The petitioner is not in any way seeking restrain on the freedom of press or any censorship prior to the publication of article or other material. The petitioner is only seeking for the regulation at the receiving end and not at the source. Whatever is obscene is not protected by any law and there are numerous avenues for the redressal of grievance for the publication of any obscene material. However, all sex oriented material are not always obscene or even indecent or immoral. The effect of words or written material should always judged from the standards of reasonable strong minded, firm and courageous man i.e. an average adult human being. No attempt has been made till date to define any yardstick for the minors whose tender minds are open for being polluted and are like plain state on which any painting can be drawn.
Is the material in newspaper really harmful for the minors?
These articles etc. may not be obscene within the four corners of law but certainly have tendencies to deprave and corrupt the minds of young and adolescent who by reasons of their physical and mental immaturity needs special safeguards and care. He invited our attention to some of the clippings annexed along with the petition. These clipping are only examples and such examples not only confine to newspapers mentioned herein but is of general nature. The double meaning jokes cannot in any way leave healthy impact on the tender minds of the teenagers. The photographs certainly are part of news from around the world and India.
However, the tone and tenor of the article as a whole and the way some of the photographs are published and described may not be in the interest of the minors. The photographs annexed at page 24 of the paper book and the caption below them such as “the center of attention”, “double jeopardy” “butt of course” leave much for the thoughts of minors. If the minor is of an age where he/she cannot understand the meaning, he/she would like to know from others and if the minor has come to an age where he/she is able to understand this would certainly energize his grey cells in the brain and would titillate him/her. What kind of culture and message the article titled “moan for more” or “get that zing bag into your sex life” convey. Is it really necessary for a child to read at a very early stage the concept of masturbation, ejaculation, penetration etc. as is normally discussed by so called sex experts in columns of newspapers. At what age should we start telling our children where to have sex and how to break their monotony. News item on MMS clipping is certainly not obscene but do we really need to show the nude photographs with only small black stripes on the private parts to our children without even bothering of its effect. In Times of India dated 1.8.2005 an article titled "Porn In Potter VI" was published, copy of which is annexed with the petition. The author has tried to read and suggest sexual messages in these lines. Children who were reading the book might not have any such inclination. However, after reading newspaper their mind would certainly wander to an area which the author might not have even conceived.
No doubt, we are not living an era of Gandhari but certainly we have culture and respect for elders and some decorum and decency towards children. Undoubtedly, such kind of stuff is available freely on internet, movies, televisions etc. but are the families and the community environment really ready to accept it in toto or are they passive receiver of the same without any control or check. Are these articles really making our children morally healthy? Moral values should not be allowed to be sacrificed in the guise of social change or cultural assimilation. Page 225 of 610
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Whether the minors have got any independent right enforceable under Article 32 of the
Constitution?
The right of the minor flows from Article 19(1)(a), Article 21 read with Article 39(f) of the
Constitution of India and United Nation Convention on the Rights of the Child. In a recent judgment delivered by this Court in the matter of Director General, Directorate General of
Doordarshan v. Anand Patwardhan (2006) 8 SCC 433 , to which one of us was a member, Dr.
Justice AR. Lakshmanan, observed as under:
One of the most controversial issue is balancing the need to protect society against the potential harm that may flow from obscene material, and the need to ensure respect for freedom of expression and to preserve a free flow of information and idea. It was further observed by this Court:
The Indian Penal Code on obscenity grew out of the English Law, which made court the guardian of public morals. It is important that where bodies exercise discretion, which may interfere in the enjoyment of constitutional rights, that discretion must be subject to adequate law.
The judge should thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have in the minds of the readers.
… In Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, this Court observed as follows: The fundamental rights and the directive principles constitute the 'conscience ' of our Constitution… To ignore Part IV is to ignore the sustenance provided for in the Constitution, the hopes held out to the Nation and the very ideals on which our Constitution is built here is no anti-thesis between the fundamental rights and the directive principles. One supplements the other.
… Both Parts III and IV… have to be balanced and harmonized - then alone the dignity of the individual can be achieved… They [fundamental rights and directive principles] were meant to supplement each other.
Mathew, J. while adopting the same approach remarked: (SCC pp. 875-76, para 1700)
The object of the people in establishing the Constitution was to promote justice, social and economic, liberty and equality. The modus operandi to achieve these objectives is set out in Part III and IV of the Constitution. Both parts III and IV enumerate certain moral rights. Each of these parts represent in the main the statements in one sense of certain aspirations whose fulfillment was regarded as essential to the kind of society which the Constitution- makers wanted to build.
Many of the articles, whether in Part III or IV, represents moral rights which they have recognized as inherent in every human being in this country. The tasks of protecting and realizing these rights is imposed upon all organs of the state, namely, legislative, executive and judicial. What then is the importance to be attached to the fact that the provisions of Part III are enforceable in a court and the provisions in Part IV are not? Is it that the rights reflected in the provisions of
Part III are somehow superior to the moral claims and aspirations reflected in the provisions of Part IV or not? I think not. Free and compulsory education under
Article 25, Freedom from starvation is as important as right to life. Nor are the provisions in Part III absolute in the sense that the rights represented by them can always be given full implementation…
………
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Maintainability of Petition
In view of the above facts and circumstances and legal proposition, Mr. Ajay Goswami, the petitioner-in-person submitted that:
i) Newspapers are publishing sex oriented material which may not be obscene otherwise but still caters to prurient interest of the minor. ii) Minors have got fundamental right under Article 19(1)(a), Article 21 read with
Article 39(f) of the Constitution and United Nation Convention on the Rights of the Child. As freedom of speech and expression also includes the expressions of the minors which need care as the minor due to their tender age and mental immaturity are not capable of deciding themselves as to what is in the interest of their growth morally & culturally, so that they can assume their responsibility within the community. iii) The right also flows from Article 21 as the right to live shall also includes right to education as pronounced in the judgments of this Court. By necessary corollary, it shall also mean right to proper education which may be decided by the parents, teachers and other experts and newspapers cannot be allowed to disturb that by their indeterminately access of the offending article to the minors regardless of their age. iv) The State which has the duty to protect the minors by appropriate legislation or executive orders has failed in its duty. The Press Council of India which was constituted for preserving the freedom of press and maintaining and improving the standards of newspapers and news agency is a powerless body. No guidelines have been framed for the minors and adolescents in particular, which can be enforced in Court of law. The Council itself feel the necessity of some strong and effective measure to correct it.
v) The citizens of this country can only pray to this Court to prevent injustice being done to them. This Court under Article 32 read with Article 142 can issue guidelines to ensure the growth of the children in a healthy and moral atmosphere which is exploited by the newspapers.
… Concluding his arguments, Mr. Ajay Goswamy, petitioner-in-person made the following proposals:
i) Guidelines in detail may be issued to all the newspapers regarding the matter which may not be suitable for the reading of minors or which may require parents or teachers discretion. ii) Newspapers should have self regulatory system to access the publication in view of those guidelines. iii) In case the newspapers publishes any material which is categorized in the guidelines the newspaper be packed in some different form and should convey in bold in front of newspapers of the existence of such material. iv) This would give discretion to the parents to instruct the news vendor whether to deliver such newspaper or not.
… In the alternative, he suggested a Committee be appointed to suggest ways and means for regulating the access of minors to adult oriented sexual, titillating or prurient material.
Mr. Harish Chandra, learned senior counsel appearing for Union of India - respondent No.
1 in reply to the arguments of the petitioner submitted that publishing as well as circulating of obscene and nude/semi-nude photographs of women already constitutes a penal offence under the provisions of the Indecent Representation of Women (Prohibition) Act, 1986, administered by the Department of Women & Child Development, Ministry of Human Resources
Development. Relevant Sections 3 & 4 of the Indecent Representation of Women (Prohibition)
Act, 1986 are reproduced hereunder for ready reference:
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3. Prohibition of advertisements containing indecent representation of woman:No person shall publish, or cause to be published or arrange or take part in the publication or exhibition or, any advertisement which contains indecent representation of women in any form.
4. Prohibition of publication or sending by post of books, pamphlets etc. containing indecent representation of women - No person shall produce or cause to be produced, sell, let to hire, distribute or circulate or send by post any book, pamphlet, paper, slide, film, writing drawing, painting, photographs, representation or figure of women in any form, provided that nothing in this section shall apply to:
(a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure:
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure is in the interest of science, literature, art or learning or other object of general concern; or
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented on or in (i) any ancient monument within the meaning of the Ancient Monument and
Archaeological Sites and Remains Act, 1958 (24 of 1958)
(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purposes;
(c) any film in respect of which the provisions of Part II of the Cinematograph
Act, 1952 (37 of 1952), will be applicable.
Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986 provides the penalty for committing such offences in contravention of Sections 3 & 4 of the said Act. Section
6 reads as follows:
6. Penalty- Any person who contravenes the provisions of Sections 3 & 4 shall be punishable on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and in the event of a second or subsequent conviction with imprisonment for a term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lac rupees. It was further submitted that sale, letting, hiring, distributing, exhibiting, circulating of obscene books and objects of young persons under the age of twenty years also constitutes a penal offence under Sections 292 and 293 of the Indian Penal Code and is punishable on first conviction with imprisonment of either description for a term which may extend to two thousand rupees and in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to seven years, and also with fine which may extend to five thousand rupees.
Concluding his submissions, he submitted that there are laws in existence which prohibit publishing, circulating and selling obscene books and objects to young persons and it is the responsibility of the "Press" to adhere to and comply with these laws and not to abuse the freedom of speech and expression (freedom of press) guaranteed under Article 19(1)(a) of the
Constitution of India.
… Learned Counsel appearing for respondent No. 3 (Times of India) contented that legislations, rules and regulations already exists within the Indian legal framework to check publication of obscene materials and articles. Section 292 of the Indian Penal Code prohibits
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and punishes selling, hiring, exhibition, circulation, possession, importation, exportation of obscene material. Sections 3 and 4 of the Indecent Representation of Women Act also imposes a prohibition on the publication or sending by post of books, pamphlets etc, selling, hiring, distributing and circulating any material that contains indecent representation of women in any form. Section 6 of the said Act, also provides for punishment in the case of non- compliance to
Sections 3 and 4 of the Act.
Further he submitted that the Press Council of India is constituted duly under the
Constitution of India for regulating the functions and activities of the Press. Sections 13(2)(c),
14(1) and 14(2) of the Press Council of India Act empowers the Press Council to impose serious checks on the Newspaper, News Agency, an editor or a journalist who flouts the norms as formulated by the Press Council and is against societal norms of decency.
Learned Counsel also submitted that the Indian Constitution under Article 19(1)(a) guarantees every citizen the right to freedom of speech and expression and respondent being a leading Newspaper has the right to express its views and various news of National and
International relevance in its edition and any kind of unreasonable restriction on this right will amount to the violation of the right guaranteed by the Indian Constitution. Learned Counsel referred to a recent judgment of this Court, Director General of Doordarshan v. Anand
Patwardhan, it was observed that the basic test for obscenity would be:
(a) whether the average person applying contemporary community standards would find that the work, taken as a whole appeal to the prurient interest
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically, defined by the applicable state law,
(c) whether the work taken as a whole, lacks serious literary, artistic, political or scientific value.
… Mr. Gopal Jain, learned Counsel appearing for Hindustan Times respondent No. 4, practically adopted the arguments put forth by respondent No. 3. In addition, respondent No. 4 drew our attention to the Guidelines under the "Norms of Journalistic Conduct" which lays down guidelines for newspapers /journalists to maintain standards with regard to obscenity and vulgarity. Norm 17 reads as follows:
Obscenity and vulgarity to be eschewed
i) Newspapers/journalists shall not publish anything which is obscene, vulgar or offensive to public good taste. ii) Newspapers shall not display advertisements which are vulgar or which, through depiction of a woman in nude or lewd posture, provoke lecherous attention of males as if she herself was a commercial commodity for sale. iii) Whether a picture is obscene or not, is to be judged in relation to three tests: namely a) Is it vulgar and indecent?
b) Is it a piece of mere pornography?
c) Is its publication meant merely to make money by titillating the sex feelings of adolescents and among whom it is intended to circulate? In other words, does it constitute an unwholesome exploitation for commercial gain?
Other relevant considerations are whether the picture is relevant to the subject matter of the magazine. That is to say, whether its publication serves any preponderating social or public purpose, in relation to art, painting, medicine, research or reform of sex
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iv) The globalization and liberalization does not give licence to the media to misuse freedom of the Press and to lower the values of the society. The media performs a distinct role and public purpose which require it to rise above commercial consideration guiding other industries and businesses. So far as that role is concerned, one of the duties of the media is to preserve and promote our cultural heritage and social values.
v) Columns such as 'Very Personal ' in a newspaper replying to personal queries of the readers must not become grossly offensive presentations, which either outrage public decency or corrupt public moral.
Learned Counsel contented that, the test of judging should be that of an ordinary man of common sense and prudence and not an "out of the ordinary hypersensitive man". In the case of K.A. Abbas (1970) 2 SCC 780, Hidayatullah, C.J. opined: "If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman 's legs in everything, it cannot be helped."
Learned Counsel further explained the procedure followed by Hindustan Times before the publication of any advertisement, "Advertisements are scrutinized by the advertising department and in the event the advertising department is in doubt, the assistance of the legal department is resorted to. The departments are manned by qualified persons who are well acquainted with the Norms and Guidelines issued by the Press Council."
………
Test of obscenity
This Court has time and again dealt with the issue of obscenity and laid down law after considering the right of freedom and expression enshrined in Article 19(1)(a) of the
Constitution of India, its purport and intent, and laid down the broad principles to determine/judge obscenity.
In a recent Anand Patwardhan … [T]his Court has referred to the Hicklin test laid down in R. Hicklin (1868) LR 3 QB 360 and observed:
(a) whether the average person applying contemporary community standards would find that the work, taken as a whole appeal to the prurient interest.
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically, defined by the applicable state law,
(c) whether the work taken as a whole, lacks serious literary, artistic, political or scientific value.
In Chandrakant Kalyandas Kakodkar v. State of Maharashtra (1969) 2 SCC 687 this Court has held:
In early English writings authors wrote only with unmarried girls in view but society has changed since then to allow litterateurs and artists to give expression to their ideas, emotions and objectives with full freedom except that is should not fall within the definition of 'obscene ' having regard to the standards of contemporary society in which it is read. The standards of contemporary society in India are also fast changing. The adults and adolescents have available to them a large number of classics, novels, stories and pieces of literature which have a content of sex, love and romance. As observed in Udeshi case if a reference to sex by itself is considered obscene, no books can be sold except those which are purely religious. In the field of art and cinema also the adolescent is shown situations which even a quarter of a century ago would be considered derogatory to public morality, but having regard to changed conditions are more taken for granted without in anyway tending to debase or debauch the mind. What we have to see is that whether a class, not an isolated case, into whose hands the book,
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article or story falls suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thought aroused in their minds. The charge of obscenity must, therefore, be judged from this aspect.
………
The American Courts, from time to time, have dealt with the issues of obscenity and laid down parameters to test obscenity. It was further submitted that while determining whether a picture is obscene or not it is essential to first determine as to quality and nature of material published and the category of readers.
… In Butler v. Michigan 352 US 380 (1957) U.S. Supreme Court held as under:
The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely, this is to burn the house to roast the pig.
… In Reno v. American Civil Liberties Union 521 US 844 (1997) it has been held that:
The Federal Government 's interest in protecting children from harmful materials does not justify an unnecessarily broad suppression of speech addressed to adults, in violation of the Federal Constitution 's First Amendment; the Government may not reduce the adult population to only what is fit for children, and thus the mere fact that a statutory regulation of speech was enacted for the important purpose of protecting children from exposure to sexually explicit material does not foreclose inquiry into the statute 's validity under the First Amendment, such inquiry embodies an overarching commitment to make sure that Congress has designed its statute to accomplish its purpose without imposing an unnecessarily great restriction on speech.
In United States v. Playboy Entertainment Group, Inc. 529 US 803 (2000) it has been held that: In order for the State to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.What the Constitution says is that these judgments are for the individual to make, not for the government of decree, even with the mandate or approval of a majority. Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.
………
Where art and obscenity are mixed, what must be seen is whether the artistic, literary or social merit of the work in question outweighs its "obscene" content. This view was accepted by this Court in Ranjit Udeshi v. State of Maharashtra, AIR 1965 SC 881:
Where there is propagation of ideas, opinions and information of public interest or profit the approach to the problem may become different because then the interest of society may tilt the scales in favour of free speech and expression. It is thus that books on medical science with intimate illustrations and photographs, though in a sense immodest, are not considered to be obscene but the same illustrations and photographs collected in book form without the medical text would certainly be considered to be obscene….
Where art and obscenity are mixed, the element of art must be so preponderant as to overshadow the obscenity or make it so trivial/inconsequential that it can be ignored; Obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech.
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………
In judging as to whether a particular work is obscene, regard must be had to contemporary mores and national standards. While the Supreme Court in India held Lady Chatterley 's Lover to be obscene, in England the jury acquitted the publishers finding that the publication did not fall foul of the obscenity test. This was heralded as a turning point in the fight for literary freedom in UK. Perhaps “community mores and standards” played a part in the Indian Supreme
Court taking a different view from the English jury. The test has become somewhat outdated in the context of the internet age which has broken down traditional barriers and made publications from across the globe available with the click of a mouse.
………
… It is necessary that publication must be judged as a whole and the impugned should also separately be examined so as to judge whether the impugned passages are so grossly obscene and are likely to deprave and corrupt.
… In Ranjit Udeshi (Supra) this Court held that the delicate task of deciding what is artistic and what is obscene has to be performed by courts and as a last resort by the Supreme Court and therefore, the evidence of men of literature or others on the question of obscenity is not relevant. However, in Samresh Bose v. Amal Mitra (1985) 4 SCC 289 this Court observed:
In appropriate cases, the court, for eliminating any subjective element or personal preference which may remain hidden in the subconscious mind and may unconsciously affect a proper objective assessment, may draw upon the evidence on record and also consider the views expressed by reputed or recognized authors of literature on such questions as if there by any of his own consideration and satisfaction to enable the court to discharge the duty of making a proper assessment. … In S. Ragarajan v. P. Jagjivam Ram, while interpreting Article 19(2), this Court borrowed from the American test of clear and present danger and observed:
[The] commitment to freedom demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have a proximate and direct nexus with the expression.
The expression of thought should be intrinsically dangerous to the public interest.
In other words, the expression should be inseparably like the equivalent of a 'spark in a power keg '.
… The test for judging a work should be that of an ordinary man of common sense and prudence and not an “out of the ordinary or hypersensitive man.” As Hidayatullah, C.J. remarked in K.A. Abbas:
If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman 's legs in everything, it cannot be helped.
An additional affidavit was filed on behalf of the Press Council of India on 7.8.2006.
Inviting our attention to the said affidavit, Mr. P.H. Parekh submitted that Section 14 of the
Press Council Act, 1978 empowers the Press Council only to warn, admonish or censure newspapers or news agencies and that it has no jurisdiction over the electronic media and that the Press Council enjoys only the authority of declaratory adjudication with its power limited to giving directions to the answering respondents arraigned before it to publish particulars
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relating to its enquiry and adjudication. It, however, has no further authority to ensure that its directions are complied with and its observations implemented by the erring parties. Lack of punitive powers with the Press Council of India has tied its hands in exercising control over the erring publications.
Mr. P.H. Parekh further submitted that prompted by the continued flouting of its observation/directions by some of the Press of the country, the Press Council has recommended to the Government between 1999-2003 to amend the provisions of Section 14(1) of the Press
Council Act, 1978 to arm the Council with the authority to recommend to the Government derecognition of newspapers for Government advertisement or withdrawal of the accreditation granted to a journalist which facilitates performance of his function and also entitles him to claim concession in railways etc. or to recommend de- recognition of a newspaper for the period deemed appropriate for the proposals made. The Press Council of India is yet to receive any response from the Government. The counsel has also filed the copies of the letters written by Justice K.Jayachandra Reddy dated 17.12.2002 and 06.12.2003 issued by the Press Council to the Government of India for extending punitive powers and the amendments proposed by the Council have been annexed to the main writ petition.
In our opinion, the present scenario provides for a regulatory framework under which punishment is prescribed for flouting the standards set by the Press Council of India by newspapers/print media. Further, respondent Nos. 3 & 4 have a self-regulatory mechanism in place and they have to strictly adhere to the standards set by the Press Council Act, 1978.
According to them, the advertisement, news articles and photographs are scrutinized by the advertising department and in the event the advertising department is in doubt, the assistance of the legal department is resorted to. It is also their case that the said departments are manned by qualified persons who are well acquainted with the Norms and Guidelines issued by the press Council. It was also submitted that respondent No. 4, as among others, consistently rejected the publication of liquor and sexually exploitative advertisements, which may offend the sensibilities of families and in contravention it was further submitted that respondent No.
4, keeping in mind, special educational needs of school going children publishes a supplement called "HT Next School Times" every Monday and the respondent does not send any supplement to schools other than "HT Next School Times" along with the main paper. Further, the respondent publishes "HT Next" which is a newspaper positioned mainly for the youth.
This paper too keeps in mind the special needs of the youth of today. The market segment that the respondent 's paper wishes to cater and caters to sections of society interested in business and is keen on gathering information on all fronts of life. It was further submitted that the newspaper intends to give a holistic perspective of the world to an individual. It was submitted that the respondent 's paper has consistently over the last few decades had a large circulation and consistent increase in its circulation each year has not been due to publishing of its supplement "HT City".
In view of the foregoing legal propositions the pictures in dispute had been published by the respondents with the intent to inform readers of the current entertainment news from around the world and India. The respondent 's newspaper seeks to provide a wholesome reading experience offering current affairs, sports, politics as well as entertainment news to keep its readers abreast of all the latest happenings in the world. The pictures that have been published should not be viewed in isolation rather they have to be read with the news reports next to them.
In the event, that a particular news items or picture offends any person they may avail of the remedies available to them under the present legal framework. Any steps to impose a blanket ban on publishing of such photographs, in our opinion, would amount to prejudging the matter as has been held in the matter of Fraser v. Evans 1969 (1) QB 349.
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The definition of obscenity differs from culture to culture, between communities within a single culture, and also between individuals within those communities. Many cultures have produced laws to define what is considered to be obscene, and censorship is often used to try to suppress or control materials that are obscene under these definitions. The term obscenity is most often used in a legal context to describe expressions (words, images, actions) that offend the prevalent sexual morality. On the other hand the Constitution of India guarantees the right of freedom to speech and expression to every citizen. This right will encompass an individual’s take on any issue. However, this right is not absolute, if such speech and expression is immensely gross and will badly violate the standards of morality of a society. Therefore, any expression is subject to reasonable restriction. Freedom of expression has contributed much to the development and well-being of our free society. This right conferred by the Constitution has triggered various issues. One of the most controversial issues is balancing the need to protect society against the potential harm that may flow from obscene material, and the need to ensure respect for freedom of expression and to preserve a free flow of information and idea.
Be that as it may, the respondents are leading newspapers in India they have to respect the freedom of speech and expression as is guaranteed by our constitution and in fact reaches out to its readers any responsible and decent manner. In our view, any steps to ban publishing of certain news pieces or pictures would fetter the independence of free press which is one of the hallmarks of our democratic setup. In our opinion, the submissions and the propositions of law made by the respective counsel for the respondents clearly established that the present petition is liable to be dismissed as the petitioner has failed to establish the need and requirement to curtail the freedom of speech and expression. The Times of India and Hindustan Times are leading newspapers in Delhi having substantial subscribers from all sections. It has been made clear by learned Counsel appearing for the leading newspapers that it is not their intention to publish photographs which cater to the prurient interest. As already stated, they have an internal regulatory system to ensure no objectionable photographs or matters gets published. We are able to see that respondent Nos. 3 & 4 are conscious of their responsibility towards children but at the same time it would be inappropriate to deprive the adult population of the entertainment which is well within the acceptable levels of decency on the ground that it may not be appropriate for the children. An imposition of a blanket ban on the publication of certain photographs and news items etc. will lead to a situation where the newspaper will be publishing material which caters only to children and adolescents and the adults will be deprived of reading their share of their entertainment which can be permissible under the normal norms of decency in any society.
We are also of the view that a culture of 'responsible reading ' should be inculcated among the readers of any news article. No news item should be viewed or read in isolation. It is necessary that publication must be judged as a whole and news items, advertisements or passages should not be read without the accompanying message that is purported to be conveyed to the public. Also the members of the public and readers should not look for meanings in a picture or written article, which is not conceived to be conveyed through the picture or the news item.
We observe that, as decided by the American Supreme Court in United States v. Playboy
Entertainment Group that, “in order for the State to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Therefore, in our view, in the present matter, the petitioner has failed to establish his case clearly. The petitioner only states that the pictures and the news items that are published by the respondents 3 and 4 “leave much for the thoughts of minors”.
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Therefore, we believe that fertile imagination of anybody especially of minors should not be a matter that should be agitated in the court of law. In addition we also hold that news is not limited to Times of India and Hindustan Times. Any hypersensitive person can subscribe to many other Newspaper of their choice, which might not be against the standards of morality of the concerned person.
We, therefore, dismiss the writ petition but however observed that the request made by the
Press Council of India to amend the Section should be seriously looked into by the Government of India and appropriate amendments be made in public interest. No costs.
FREEDOM OF OCCUPATION
CHINTAMAN RAO V. STATE OF MADHYA PRADESH
AIR 1951 SC 118
Decided On: November 08, 1950
BENCH – CHIEF JUSTICE H. L. KANIA, JUSTICES M. C. MAHAJAN, MUKHERJEA, DAS & C.
AIYAR
JUSTICE MAHAJAN (for the Court)
These two applications for enforcement of the fundamental right guaranteed under article
19(1)(g) of the Constitution of India have been made by a proprietor and an employee respectively of a bidi manufacturing concern of District Sagar (State of Madhya Pradesh). It is contended that the law in force in the State authorizing it to prohibit the manufacture of bidis in certain villages including the one wherein the applicants reside is inconsistent with the provisions of Part III of the
Constitution and is consequently void.
The Central Provinces and Berar Regulation of Manufacture of Bidis (Agricultural Purposes)
Act, LXIV of 1948, was passed on 19th October 1948 and was the law in force in the State at the commencement of the Constitution. Sections 3 and 4 of the Act are in these terms:
3. The Deputy Commissioner may by notification fix a period to be an agricultural season with respect to such villages as may be specified therein.
4. (1) The Deputy Commissioner may, by general order which shall extend to such villages as he may specify, prohibit the manufacture of bidis during the agricultural season.
(2) No person residing in a village specified in such order shall during the agricultural season engage himself in the manufacture of bidis, and no manufacturer shall during the said season employ any person for the manufacture of bidis.
On the 13th June 1950 an order was issued by the Deputy Commissioner of Sagar under the provisions of the Act forbidding all persons residing in certain villages from engaging in the manufacture of bidis. On the 19th June 1950 these two petitions were presented to this Court under article 32 of the Constitution challenging the validity of the order as it prejudicially affected the petitioners ' right of freedom of occupation and business. During the pendency of the petitions the season mentioned in the order of the 13th June ran out. A fresh order for the ensuing agricultural season - 8th October to 18th November 1950 - was issued on 29th September 1950 in the same terms.
This order was also challenged in a supplementary petition.
… The point for consideration in these applications is whether the Central Provinces and Berar
Act LXIV of 1948 comes within the ambit of this saving clause or is in excess of its provisions.
The learned counsel for the petitioners contends that the impugned Act does not impose reasonable
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restrictions on the exercise of the fundamental right in the interests of the general public but totally negatives it. In order to judge the validity of this contention it is necessary to examine the impugned
Act and some of its provisions. In the preamble to the Act, it is stated that it has been enacted to provide measures for the supply of adequate labour for agricultural purposes in bidi manufacturing areas. Sections 3 and 4 cited above empower the Deputy Commissioner to prohibit the manufacture of bidis during the agricultural season. The contravention of any of these provisions is made punishable by section 7 of the Act, the penalty being imprisonment for a term which may extend to six months or with fine or with both. It was enacted to help in the grow more food campaign and for the purpose of bringing under the plough considerable areas of fallow land.
The question for decision is whether the statute under the guise of protecting public interests arbitrarily interferes with private business and imposes unreasonable and unnecessarily restrictive regulations upon lawful occupation; in other words, whether the total prohibition of carrying on the business of manufacture of bidis within the agricultural season amounts to a reasonable restriction on the fundamental rights mentioned in article 19(1)(g) of the Constitution. Unless it is shown that there is a reasonable relation of the provisions of the Act to the purpose in view, the right of freedom of occupation and business cannot be curtailed by it.
The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word "reasonable" implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19(1)(g) and the social control permitted by clause (6) of article 19, it must be held to be wanting in that quality.
Clause (6) in the concluding paragraph particularizes certain instances of the nature of the restrictions that were in the mind of the constitution-makers and which have the quality of reasonableness. They afford a guide to the interpretation of the clause and illustrate the extent and nature of the restrictions which according to the statute could be imposed on the freedom guaranteed in clause (g). The statute in sub-stance and affect suspends altogether the right mentioned in article 19(1)(g) during the agricultural seasons and such suspension may lead to such dislocation of the industry as to prove its ultimate ruin. The object of the statute is to provide measures for the supply of the adequate labour for agricultural purposes in bidi manufacturing areas of the Province and it could well be achieved by legislation restraining the employment of agricultural labour in the manufacture of bidis during the agricultural season. Even in point of time a restriction may well have been reasonable if it amounted to a regulation of the hours of work in the business. Such legislation though it would limit the field for recruiting persons for the manufacture of bidis and regulate the hours of the working of the industry, would not have amounted to a complete stoppage of the business of manufacture and might well have been within the ambit of clause (6).
The effect of the provisions of the Act, however, has no reasonable relation to the object in view but is so drastic in scope that it goes much in excess of that object. Not only are the provisions of the statute in excess of the requirements of the case but the language employed prohibits a manufacturer of bidis from employing any person in his business, no matter wherever that person may be residing. In other words, a manufacturer of bidis residing in this area cannot import labour from neighbouring places in the district or province or from outside the province. Such a prohibition on the face of it is of an arbitrary nature inasmuch as it has no relation whatsoever to the object which the legislation seeks to achieve and as such cannot be said to be a reasonable restriction on the exercise of the right. Further the statute seeks to prohibit all persons residing in the notified villages during the agricultural season from engaging themselves in the manufacture of bidis. It cannot be denied that there would be a number of infirm and disabled persons, a number
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of children, old women and petty shop keepers residing in these villages who are incapable of being used for agricultural labour. All such persons are prohibited by law from engaging themselves in the manufacture of bidis; and are thus being deprived of earning their livelihood. It is a matter of common knowledge that there are certain classes of persons residing in every village who do not engage in agricultural operations. They and their womenfolk and children in their leisure hours supplement their income by engaging themselves in bidi business. There seems no reason for prohibiting them from carrying on this occupation. The statute as it stands, not only compels those who can be engaged in agricultural work from not taking to other avocations, but it also prohibits persons who have no connection or relation to agricultural operations from engaging in the business of bidi making and thus earning their livelihood. These provisions of the statute, in our opinion, cannot be said to amount to reasonable restrictions on the right of the applicants and that being so, the statute is not in conformity with the provisions of Part III of the Constitution.
The law even to the extent that it could be said to authorize the imposition of restrictions in regard to agricultural labour cannot be held valid because the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative acting affecting the right. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.
Mr. Sikkri for the Government of Madhya Pradesh contends that the legislature of Madhya
Pradesh was the proper judge of the reasonableness of the restrictions imposed by the statute, that that legislature alone knew the conditions prevailing in the State and it alone could say what kind of legislation could effectively achieve the end in view and would help in the grow more food campaign and would help for bringing in fallow land under the plough and that this Court sitting at this great distance could not judge by its own yardstick of reason whether the restrictions imposed in the circumstances of the case were reasonable or not. This argument runs counter to the clear provisions of the Constitution. The determination by the legislature of what constitutes a reasonable restriction is not final or conclusive; it is subject to the supervision by this Court. In the matter of fundamental rights, the Supreme Court watches and guards the rights guaranteed by the
Constitution and in exercising its functions it has the power to set aside an Act of the Legislature of it is in violation of the freedoms guaranteed by the Constitution. We are therefore of opinion that the impugned statute does not stand the test of reasonableness and is therefore void.
The result therefore is that the orders issued by the Deputy Commissioner on 13th June 1950 and 26th September 1950 are void, inoperative and ineffective. We therefore direct the respondents not to enforce the provisions contained in section 4 of the Act against the petitioners in any manner whatsoever. The petitioners will have their costs of these proceedings in the two petitions.
Petitions allowed.
TMA PAI V. STATE OF KARNATAKA
AIR 2003 SC 355, (2002) 8 SCC 481
Decided On: November 25, 2002
BENCH – CHIEF JUSTICE B. N. KIRPAL, JUSTICES G. B. PATTANAIK, V. N. KHARE, S.
RAJENDRA BABU, SYED SHAH MOHAMMED QUADRI, RUMA PAL, S. N. VARIAVA, K. G.
BALAKRISHNAN, P. VENKATARAMA REDDI, ASHOK BHAN & ARIJIT PASAYAT
CHIEF JUSTICE KIRPAL (for himself, Justices Pattanaik, Babu, Balakrishnan, Reddi & Pasayat,
MAJORITY OPINION) [Justice Khare CONCURRING but wrote his separate opinion]
India is a land of diversity – of different castes, peoples, communities, languages, religions and culture. Although these people enjoy complete political freedom, a vast part of the multitude
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is illiterate and lives below the poverty line. The single most powerful tool for the upliftment and progress of such diverse communities is education. The state, with its limited resources and slowmoving machinery, is unable to fully develop the genius of the Indian people very often the impersonal education that is imparted by the state, devoid of adequate material content that will make the students self-reliant only succeeds in producing potential pen-pushers, as a result of which sufficient jobs are not available.
It is in this scenario where there is a lack of quality education and adequate number of schools and colleges that private educational institutions have been established by educationists, philanthropists and religious and linguistic minorities. Their grievance is that the necessary and unproductive load on their back in the form of governmental control, by way of rules and regulations, has thwarted the progress of quality education. It is their contention that the government must get off their back, and that they should be allowed to provide quality education uninterrupted by unnecessary rules and regulations, laid down by the bureaucracy for its own selfimportance. The private educational institutions, both aided and unaided, established by minorities and non-minorities, in their desire to break free of the unnecessary shackles put on their functioning as modern educational institutions and seeking to impart quality education for the benefit of the community for whom they were established, and others, have filed the present writ petitions and appeals asserting their right to establish and administer educational institutions of their choice unhampered by rules and regulations that unnecessarily impinge upon their autonomy.
… On behalf of all these institutions, the learned counsel have submitted that the Constitution provides a fundamental right to establish and administer educational institutions. With regard to non-minorities, the right was stated to be contained in Article 19(1)(g) and/or Article 26, while in the case of linguistic and religious minorities, the submission was that this right was enshrined and protected by Article 30. It was further their case that private educational institutions should have full autonomy in their administration. While it is necessary for an educational institution to secure recognition or affiliation, and for which purpose rules and regulations or conditions could be prescribed pertaining to the requirement of the quality of education to be provided, e.g., qualifications of teachers, curriculum to be taught and the minimum facilities which should be available for the students, it was submitted that the state should not have a right to interfere or lay down conditions with regard to the administration of those institutions. In particular, objection was taken to the nominations by the state on the governing bodies of the private institutions, as well as to provisions with regard to the manner of admitting students, the fixing of the fee structure and recruitment of teachers through state channels.
… On behalf of the private non-minority unaided educational institutions, it was contended that since secularism and equality were part of the basic structure of the
Constitution the provisions of the Constitution should be interpreted so that the right of the private non-minority unaided institutions were the same as that of the minority institutions. It was submitted that while reasonable restrictions could be imposed under Article 19(6), such private institutions should have the same freedom of administration of an unaided institution as was sought by the minority unaided institutions. …
IS THERE A FUNDAMENTAL RIGHT TO SET UP EDUCATIONAL INSTITUTION
AND IF SO, UNDER WHICH PROVISION?
… With regard to the establishment of educational institutions, three Articles of the
Constitution come into play. Article 19(1)(g) gives the right to all the citizens to practice any profession or to carry on any occupation, trade or business; this right is subject to restrictions that may be placed under Article 19(6). Article 26 gives the right to every religious denomination to establish and maintain an institution for religious purposes, which would
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include an educational institution. Article 19(1)(g) and Article 26, therefore, confer rights on all citizens and religious denominations to establish and maintain educational institutions.
There was no serious dispute that the majority community as well as linguistic and religious minorities would have a right under Article 19(1)(g) and 26 to establish educational institutions. In addition, Article 30(1), in no uncertain terms, gives the right to the religious and linguistic minorities to establish and administer educational institutions of their choice.
We will first consider the right to establish and administer an educational institution under
Article 19(1)(g) of the Constitution and deal with the right to establish educational institutions under Article 26 and 30 in the next part of the judgment while considering the rights of the minorities. Article 19(1)(g) employs four expressions, viz., profession, occupation, trade and business. Their fields may overlap, but each of them does have a content of its own. Education is per se regarded as an activity that is charitable in nature [State of Bombay v. R.M.D.
Chamarbaugwala AIR 1957 SC 699]. Education has so far not been regarded as a trade or business where profit is the motive. Even if there is any doubt about whether education is a profession or not, it does appear that education will fall within the meaning of the expression
"occupation". Article 19(1)(g) uses the four expressions so as to cover all activities of a citizen in respect of which income or profit is generated, and which can consequently be regulated under Article 19(6). In Webster 's Third New International Dictionary at page 1650,
"occupation" is, inter alia, defined as "an activity in which one engages" or "a craft, trade, profession or other means of earning a living".
In Corpus Juris Secundum, Volume LXVII, the word "occupation" is defined as under:The word "occupation" also is employed as referring to that which occupies time and attention; a calling; or a trade; and it is only as employed in this sense that the word is discussed in the following paragraphs.
There is nothing ambiguous about the word "occupation" as it is used in the sense of employing one 's time. It is a relative term, in common use with a wellunderstand meaning, and very broad in its scope and significance. It is described as a generic and very comprehensive term, which includes every species of the genus, and compasses the incidental, as well as the main, requirements of one 's vocation, calling, or business. The word "occupation" is variously defined as meaning the principal business of one 's life; the principal or usual business in which a man engages; that which principally takes up one 's time, thought, and energies; that which occupies or engages the time and attention; that particular business, profession, trade, or calling which engages the time and efforts of an individual; the employment in which one engages, or the vocation of one 's life; the state of being occupied or employed in any way; that activity in which a person, natural or artificial, is engaged with the element of a degree of permanency attached.
A Five Judge Bench in Sodan Singh v. New Delhi Municipal Committee [1989] 3 SCR
1038 at page 174, para 28, observed as follows:
The word occupation has a wide meaning such as any regular work, profession, job, principal activity, employment, business or a calling in which an individual is engaged. … The object of using four analogous and overlapping words in
Article 19(1)(g) is to make the guaranteed right as comprehensive as possible to include all the avenues and modes through which a man may earn his livelihood.
In a nutshell the guarantee takes into its fold any activity carried on by a citizen of India to earn his living.
In Unni Krishnan … while referring to education, it was observed as follows:
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"It may perhaps fall under the category of occupation provided no recognition is sought from the State or affiliation from the University is asked on the basis that it is a fundamental right."
While the conclusion that "occupation" comprehends the establishment of educational institutions is correct, the proviso in the aforesaid observation to the effect that this is so provided no recognition is sought from the state or affiliation from the concerned university is, with the utmost respect, erroneous. The fundamental right to establish an educational institution cannot be confused with the right to ask for recognition of affiliation. The exercise of a fundamental right may be controlled in a variety of ways. For example, the right to carry on a business does not entail the right to carry on a business at a particular place. The right to carry on a business may be subject to licensing laws so that a denial of the licence presents a person from carrying on that particular business. The question of whether there is a fundamental right or not cannot be dependent upon whether it can be made the subject matter of controls.
The establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff, and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is no element of profit generation. It is difficult to comprehended that education, per se, will not fall under any of the four expressions in Article 19(1)(g).
"Occupation" would be an activity of a person undertaken as a means of livelihood or a mission in life. The above quoted observations in Sodan Singh correctly interpret the expression "occupation" in Article 19(1)(g). …
IN CASE OF PRIVATE INSTITUTIONS, CAN THERE BE GOVERNMENT
REGULATIONS AND, IF SO, TO WHAT EXTENT?
Private Unaided Non-Minority Educational Institutions
Private education is one of the most dynamic and fastest growing segments of postsecondary education at the turn of the twenty-first century. A combination of unprecedented demand for access to higher education and the inability or unwillingness of government to provide the necessary support has brought private higher education to the forefront. Private institutions, with a long history in many countries, are expanding in scope and number, and are becoming increasingly important in parts of the world that relied almost entirely on the public sector.
Not only has demand overwhelmed the ability of the governments to provide education, there has also been a significant change in the way that higher education is perceived. The idea of an academic degree as a "private good" that benefits the individual rather than a "public good" for society is now widely accepted. The logic of today 's economics and an ideology of privatization have contributed to the resurgence of private higher education, and the establishing of private institutions where none or very few existed before.
The right to establish and administer broadly comprises of the following rights:a)
b)
c)
d)
e)
to admit students: to set up a reasonable fee structure: to constitute a governing body; to appoint staff (teaching and non-teaching); and to take action if there is dereliction of duty on the part of any employees.
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A University Education Commission was appointed on 4th November, 1948, having Dr.
S. Radhakrishnan as its Chairman and nine other renowned educationists as its members. The terms of reference, inter alia, included matters relating to means and objects of university education and research in India and maintenance of higher standards of teaching and examining in universities and colleges under their control. In the report submitted by this
Commission, in paras 29 and 31, it referred to autonomy in education which reads as follows:University Autonomy. -- Freedom of individual development is the basis of democracy. Exclusive control of education by the State has been an important factor in facilitating the maintenance of totalitarian tyrannies. In such States institutions of higher learning controlled and managed by governmental agencies act like mercenaries, promote the political purposes of the State, make them acceptable to an increasing number of their populations and supply then with the weapons they need. We must resist, in the interests of our own democracy, the trend towards the governmental domination of the educational process.
Higher educational is, undoubtedly, an obligation of the State but State aid is not to be confused with State control over academic policies and practices.
Intellectual progress demands the maintenance of the spirit of free inquiry. The pursuit and practice of truth regardless of consequences has been the ambition of universities. Their prayer is that of the dying Goethe: "More light," or that Ajax in the mist "Light, though I perish in the light. xxx xxx xxx
The respect in which the universities of Great Britain are held is due to the freedom from governmental interference which they enjoy constitutionally and actually. Our universities should be released from the control of politics.
Liberal Education. -- All education is expected to be liberal. It should free us from the shackles of ignorance, prejudice and unfounded belief. If we are incapable of achieving the good life, it is due to faults in our inward being, to the darkness in us. The process of education is the slow conquering of this darkness.
To lead us from darkness to light, to free us from every kind of domination except that of reason, is the aim of education.
There cannot be a better exposition than what has been observed by these renowned educationists with regard to autonomy in education. The aforesaid passage clearly shows that the governmental domination of the educational process must be resisted. Another pithy observation of the Commission was that state aid was not to be confused with state control over academic policies and practices. The observations referred to hereinabove clearly contemplate educational institutions soaring to great heights in pursuit of intellectual excellence and being free from unnecessary governmental controls.
With regard to the core components of the rights under Article 19 and 26(a), it must be held that while the state has the right to prescribe qualifications necessary for admission, private unaided colleges have the right to admit students of their choice, subject to an objective and rational procedure of selection and the compliance of conditions, if any, requiring admission of a small percentage of students belonging to weaker sections of the society by granting them freeships or scholarships, if not granted by the Government. Furthermore, in setting up a reasonable fee structure, the element of profiteering is not as yet accepted in Indian conditions. The fee structure must take into consideration the need to generate funds to be utilized for the betterment and growth of the educational institution, the betterment of education in that institution and to provide facilities necessary for the benefit of the students.
In any event, a private institution will have the right to constitute its own governing body, for which qualifications may be prescribed by the state or the concerned university. It will, however, be objectionable if the state retains the power to nominate specific individuals on governing bodies. Nomination by the state, which could be on a political basis, will be an
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inhibiting factor for private enterprise to embark upon the occupation of establishing and administering educational institutions. For the same reasons, nomination of teachers either directly by the department or through a service commission will be an unreasonable inroad and an unreasonable restrictions on the attorney of the private unaided educational institution.
The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a government body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions. The Constitution recognizes the right of the individual or religious denomination, or a religious or linguistic minority to establish an educational institution. If aid or financial assistance is not sought, then such institution will be a private unaided institution. Although, in Unni Krishnan 's case, the Court emphasized the important role played by private unaided institutions and the need for private funding, in the scheme that was framed, restrictions were placed on some of the important ingredients relating to the functioning of an educational institution. There can be no doubt that in seeking affiliation or recognition, the Board or the university or the affiliating or recognizing authority can lay down conditions consistent with the requirement to ensure the excellence of education. It can, for instance, indicate the quality of the teachers by prescribing the minimum qualifications that they must possess, and the courses of study and curricula. It can, for the same reasons, also stipulate the existence of infrastructure sufficient for its growth, as a pre-requisite. But the essence of a private educational institution is the autonomy that the institution must have in its management and administration. There, necessarily, has to be a difference in the administration of private unaided institutions and the government-aided institutions. Whereas in the latter case, the
Government will have greater say in the administration, including admissions and fixing of fees, in the case of private unaided institutions, maximum autonomy in the day-to-day administration has to be with the private unaided institutions. Bureaucratic or governmental interference in the administration of such an institution will undermine its independence.
While an educational institution is not a business, in order to examine the degree of independence that can be given to a recognized educational institution, like any private entity that does not seek aid or assistance from the Government, and that exists by virtue of the funds generated by it, including its loans or borrowings, it is important to note that the essential ingredients of the management of the private institution include the recruiting students and staff, and the quantum of fee that is to be charged.
An educational institution is established for the purpose of imparting education of the type made available by the institution. Different courses of study are usually taught by teachers who have to be recruited as per qualifications that may be prescribed. It is no secret that better working conditions will attract better teachers. More amenities will ensure that better students seek admission to that institution. One cannot lose sight of the fact that providing good amenities to the students in the form of competent teaching faculty and other infrastructure costs money. It has, therefore, to be left to the institution, if it chooses not to seek any aid from the government, to determine the scale of fee that it can charge from the students. One also cannot lose sight of the fact that we live in a competitive world today, where professional education is in demand. We have been given to understand that a large number of professional and other institutions have been started by private parties who do not seek any governmental aid. In a sense a prospective students has various options open to him/her where, therefore, normally economic forces have a role to play. The decision on the fee to be charged must
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necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the government.
We, however, wish to emphasize one point, and that is that inasmuch as the occupation of education is, in a sense, regarded as charitable, the government can provide regulations that will ensure excellence in education, while forbidding the charging of capitation fee and profiteering by the institution. Since the object of setting up an educational institution is by definition "charitable", it is clear that an educational institution cannot charge such a fee as is not required for the purpose of fulfilling that object. To put it differently, in the establishment of an educational institution, the object should not be to make a profit, inasmuch as education is essentially charitable in nature. There can, however, be a reasonable revenue surplus, which may be generated by the educational institution for the purpose of development of education and expansion of the institution.
For admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants.
Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies.
Education is taught at different levels from primary to professional. It is, therefore, obvious that government regulations for all levels or types of educational institutions cannot be identical; so also, the extent of control or regulation could be greater vis-à-vis aided institutions. In the case of unaided private schools, maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged. At the school level, it is not possible to grant admission on the basis of merit. It is no secret that the examination results at all levels of unaided private schools, notwithstanding the stringent regulations of the governmental authorities, are far superior to the results of the government-maintained schools. There is no compulsion on students to attend private schools. The rush for admission is occasioned by the standards maintained in such schools, and recognition of the fact that state-run schools do not provide the same standards of education. The State says that it has no funds to establish institutions at the same level of excellence as private schools. But by curtaining the income of such private schools, it disables those schools from affording the best facilities because of a lack of funds. If this lowering of standards from excellence to a level of mediocrity is to be avoided, the state has to provide the difference which, therefore, brings us back in a vicious circle to the original problem, viz., the lack of state funds. The solution would appear to lie in the States not using their scanty resources to prop up institutions that are able to otherwise maintain themselves out of the fees charged, but in improving the facilities and infrastructure of state-run schools and in subsidizing the fees payable by the students there. It is in the interest of the general public that more good quality schools are established; autonomy and nonregulation of the school administration in the right of appointment, admission of the students
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and the fee to be charged will ensure that more such institutions are established. The fear that if a private school is allowed to charge fees commensurate with the fees affordable, the degrees would be "purchasable" is an unfounded one since the standards of education can be and are controllable through the regulations relating to recognition, affiliation and common final examinations. There is a need for private enterprise in non-professional college education as well. At present, insufficient number of undergraduate colleges are being and have been established, one of the inhibiting factors being that there is a lack of autonomy due to government regulations. It will not be wrong to presume that the numbers of professional colleges are growing at a faster rate than the number of undergraduate and non-professional colleges.
While it is desirable that there should be a sufficient number of professional colleges, it should also be possible for private unaided undergraduate colleges that are non-technical in nature to have maximum autonomy similar to a school.
It was submitted that for maintaining the excellence of education, it was important that the teaching faculty and the members of the staff of any educational institution performed their duties in the manner in which it is required to be done, according to the rules or instructions. There have been cases of misconduct having been committed by the teachers and other members of the staff. The grievance of the institution is that whenever disciplinary action is sought to be taken in relation to such misconduct, the rules that are normally framed by the government or the university are clearly loaded against the Management. It was submitted that in some cases, the rules require the prior permission of the governmental authorities before the intimation of the disciplinary proceeding, while in other cases, subsequent permission is required before the imposition of penalties in the case of proven misconduct. While emphasizing the need for an independent authority to adjudicate upon the grievance of the employee or the Management in the event of some punishment being imposed, it was submitted that there should be no role for the government or the university to play in relation to the imposition of any penalty on the employee.
An educational institution is established only for the purpose of imparting education to the students. In such an institution, it is necessary for all to maintain discipline and abide by the rules and regulations that have been lawfully framed. The teachers are like foster-parents who are required to look after, cultivate and guide the students in their pursuit of education.
The teachers and the institution exist for the students and not vice versa. Once this principle is kept in mind, it must follow that it becomes imperative for the teaching and other staff of an educational institution to perform their duties properly, and for the benefit of the students.
Where allegations of misconduct are made, it is imperative that a disciplinary enquiry is conducted, and that a decision is taken. In the case of a private institution, the relationship between the Management and the employees is contractual in nature. A teacher, if the contract so provides, can be proceeded against, and appropriate disciplinary action can be taken if the misconduct of the teacher is proved. Considering the nature of the duties and keeping the principle of natural justice in mind for the purposes of establishing misconduct and taking action thereon, it is imperative that a fair domestic enquiry is conducted. It is only on the basis of the result of the disciplinary enquiry that the management will be entitled to take appropriate action. We see no reason why the Management of a private unaided educational should seek the consent or approval of any governmental authority before taking any such action. In the ordinary relationship of master and servant, governed by the terms of a contract of employment, anyone who is guilty of breach of the terms can be proceeded against and appropriately relief can be sought. Normally, the aggrieved party would approach a court of law and seek redress. In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking
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redress is not in the interest of general education. Disputes between the management and the staff of educational institutions must be decided speedily, and without the excessive incurring of costs. It would, therefore, be appropriate that an educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an educational tribunal in a State -- the object being that the teacher should not suffer through the substantial costs that arise because of the location of the tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings in different districts to achieve this objective. Till a specialized tribunal is set up, the right of filing the appeal would lie before the District Judge or Additional District Judge as notified by the government. It will not be necessary for the institution to get prior permission or ex post facto approval of a governmental authority while taking disciplinary action against a teacher or any other employee. The State
Government shall determine, in consultation with the High Court, the judicial forum in which an aggrieved teacher can file an appeal against the decision of the management concerning disciplinary action or termination of service.
The reputation of an educational institution is established by the quality of its faculty and students, and the educational and other facilities that the colleges has to offer. The private educational institutions have a personality of their own, and in order to maintain their atmosphere and traditions, it is but necessary that they must have the right to choose and select the students who can be admitted to their courses of studies. If is for this reason that in the St.
Stephen 's College case, this Court upheld the scheme whereby a cut-off percentage was fixed for admission, after which the students were interviewed and thereafter selected. While an educational institution cannot grant admission on its whims and fancies, and must follow some identifiable or reasonable methodology of admitting the students, any scheme, rule or regulation that does not give the institution the right to reject candidates who might otherwise be qualified according to say their performance in an entrance test, would be an unreasonable restriction under Article 19(6), though appropriate guidelines/modalities can be prescribed for holding the entrance test a fair manner. Even when students are required to be selected on the basis of merit, the ultimate decision to grant admission to the students who have otherwise qualified for the grant of admission must be left with the educational institution concerned.
However, when the institution rejects such students, such rejection must not be whimsical or for extraneous reasons.
In the case of private unaided educational institution, the authority granting recognition or affiliation can certainly lay down conditions for the grant of recognition or affiliation; these conditions must pertain broadly to academic and educational matters and welfare of students and teachers - but how the private unaided institutions are to run is a matter of administration to be taken care of by the Management of those institutions.
………
Q.10 Whether the non-minorities have the right to establish and administer educational institution under Article 21 and 29(1) read with Articles 14 and15(1), in the same manner and to the same extent as minority institutions? And Q.11 What is the meaning of the expressions
"Education" and "Educational Institutions" in various provisions of the Constitution? Is the right to establish and administer educational institutions guaranteed under the Constitution?
A. The expression "education" in the Articles of the Constitution means and includes education at all levels from the primary school level up to the post-graduate level. It includes professional education. The expression "educational institutions" means institutions that impart education, where "education" is as understood hereinabove.
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The right to establish and administer educational institutions is guaranteed under the
Constitution to all citizens under Articles 19(1)(g) and26, to minorities specifically under
Article 30.
All citizens have a right to establish and administer educational institutions under Articles
19(1)(g) and 26, but this right is subject to the provisions of Articles 19(6) and 26(a). However, minority institutions will have a right to admit students belonging to the minority group, in the manner as discussed in this judgment.
FREEDOM OF MOVEMENT
DR. N. B. KHARE V. STATE OF DELHI
AIR 1950 SC 21
Decided On: May 26, 1950
BENCH – CHIEF JUSTICE H. L. KANIA, JUSTICES S. FAZL ALI, PATANJALI SASTRI, M. C.
MAHAJAN & MUKHERJEA
CHIEF JUSTICE KANIA (for himself; Justices Fazl Ali & Sastri CONCURRING, MAJORITY OPINION)
This is an application for a writ of Certiorari and prohibition under article 32 of the
Constitution of India.
The petitioner who is the President of the All India Hindu Mahasabha since December, 1949 was served with an order of externment dated the 31st of March, 1950, that night. By that order he is directed by the District Magistrate, Delhi, not to remain in the Delhi District, and immediately to remove himself from the Delhi District and not to return to the District. The order was to continue in force for three months. By another order of the Madhya Bharat Government he was directed to reside in Nagpur. That order has been recently cancelled. The petitioner disputes the validity of the first order on the ground that the East Punjab Public Safety Act, 1949, under which the order was made, is an infringement of his fundamental right given under article 19(1)(d) of the
Constitution of India. He further contends that the grounds of the order served on him are vague, insufficient and incomplete. According to him the object of the externment order passed by the
District Magistrate, Delhi, was to suppress political opposition to the policy of the Government in respect of Pakistan and the Muslim League. It is alleged that because the petitioner and the Hindu
Mahasabha are against the Government policy of appeasement this order is served on him. It is therefore mala fide and illegal. In support of his contention about the invalidity of the East Punjab
Safety Act and its provisions as regards externment, counsel for the petitioner relied on the recent unreported judgments of the Patna High Court in Miscellaneous Judicial Case No. 29 of 1950,
Brijnandan v. State of Bihar, and of the High Court of Bombay in Criminal Application No. 114 of 1950, re Jaisinghbhai Ishwarlal Modi.
It is necessary first to ascertain the true meaning of article 19(1)(d) read with clause (5) of the same article. There is no doubt that by the order of externment the right of the petitioner to freedom of movement throughout the territory of India is abridged. The only question is whether the limits of permissible legislation under clause (5) are exceeded.
… It is clear that the clause permits imposition of reasonable restrictions on the exercise of the right conferred by sub-clause (d) in the interests of the general public. The rest of the provision of clause (5) is not material and neither side relies on it. Two interpretations of the clause are put before the Court. It is argued that grammatically understood the only question before the Court is
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whether the impugned legislation imposes reasonable restrictions on the exercise of the right. To put it in other words, the only justifiable issue to be decided by the Court is whether the restrictions imposed by the legislation on the exercise of the right are reasonable. If those restrictions on the exercise of the right are reasonable, the Court has not to consider whether the law, imposing the restrictions is reasonable. The other interpretation is that while the Constitution permits a law laying down reasonable restrictions on the exercise of the rights mentioned in sub-clause 19(1)(d), the reasonableness has to be of the law also. It is submitted that in deciding whether the restrictions, on the exercise of the right are reasonable, the Court has to decide not only on the extent and nature of the restrictions on the exercise of the right but also as to whether the conditions under which the right is restricted are reasonable. The majority judgments of the Patna and the Bombay High
Courts, although the impugned Acts of the State Legislatures before them were materially different on certain important points, have given clause (5) of article 19 the latter meaning.
In my opinion, clause (5) must be given its full meaning. The question which the Court has to consider is whether the restrictions put by the impugned legislation on the exercise of the right are reasonable or not. The question whether the provisions of the Act provide reasonable safeguards against the abuse of the power given to the executive authority to administer the law is not relevant for the interpretation of the clause. The Court, on either interpretation, will be entitled to consider whether the restrictions on the right to move throughout India, i.e., both as regards the territory and the duration, are reasonable or not. The law providing reasonable restrictions on the exercise of the right conferred by article 19 may contain substantive provisions as well as procedural provisions. While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law. It is obvious that if the law prescribes five years externment or ten years externment, the question whether such period of externment is reasonable, being the substantive part, is necessarily for the consideration of the court under clause
(5). Similarly, if the law provides the procedure under which the exercise of the right may be restricted, the same is also for the consideration of the Court, as it has to determine if the exercise of the right has been reasonably restricted. I do not think by this interpretation the scope and ambit of the word "reasonable" as applied to restrictions on the exercise of the right, is in any way unjustifiably enlarged. It seems that the narrow construction sought to be put on the expressions, to restrict the Court 's power to consider only the substantive law on the point, is not correct. In my opinion this aspect of the construction of article 19(5) has escaped the minority judgment in the two matters mentioned above. I am not concerned with the conclusions of the two Courts about the invalidity of the provisions of the Acts they were asked to consider. To the extent they help in the interpretation of article 19(5) only they are helpful.
The next question is whether the impugned Act contains reasonable restrictions on the exercise of the right given under article 19(1)(d) of (e). It was argued on behalf of the petitioner that under section 4 the power to make the order of externment was given to the Provincial Government or the District Magistrate, whose satisfaction was final. That decision was not open to review by the
Court. On that ground it was contended that there was an unreasonable restriction on the exercise of the citizen 's right. In my opinion, this argument is unsound. This is not legislative delegation.
The desirability of passing an individual order of externment against a citizen has to be left to an officer. In the Act such a provision cannot be made. The satisfaction of the officer thus does not impose an unreasonable restriction on the exercise of the citizen 's right. So far as the Bombay High
Court is concerned Chagla C.J. appears to have decided this point against the contention of the petitioner. It was next urged that under section 4(3) the order made by the District Magistrate shall not, unless the Provincial Government by special order otherwise direct, remain in force for more than three months. It was argued that the period of three months itself was unreasonable as the externee
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had no remedy during that time. It was contended that when the Provincial Government directed the renewal of the order no limit of time was prescribed by the legislature for the duration of the order. The order therefore can be in operation for an indefinite period. This was argued to be an unreasonable restriction on the exercise of a citizen 's right. In this connection it may be pointed out that in respect of preventive detention, which is a more severe restriction on the right of the citizen, the Constitution itself under article 22(4) to (7) permits preventive detention for three months without any remedy. The period of three months therefore prima facie does not appear unreasonable. Under the proviso to section 4(5) the Provincial Government is not permitted to direct the exclusion or removal from the Province of a person ordinarily residing in the Province, and similarly the District Magistrate is not permitted to order the exclusion or removal of a person ordinarily resident in his district from that district. This is a great safeguard provided under the
East Punjab Public Safety Act. The further extension of the externment order beyond three months may be for an indefinite period, but in that connection the fact that the whole Act is to remain in force only up to the 14th August, 1951, cannot be overlooked. Moreover, this whole argument is based on the assumption that the Provincial Government when making the order will not perform its duty and may abuse the provisions of the section. In any opinion it is improper to start with such as assumption and decide the legality of an Act on that basis. Abuse of the power given by a law sometimes occurs; but the validity of the law cannot be contested because of such an apprehension. In any opinion, therefore, this contention of the petitioner cannot be accepted.
It was next argued that there is no provision in the Act for furnishing grounds of externment to the citizen. Section 4(6) provides that when an externment order has been made its grounds may be communicated to the externee by the authority making the order and in any case when the order is to be enforced for more than three months he shall have a right of making a representation which shall be referred to the advisory tribunal constituted under section 3(4). While the word "may" ordinarily conveys the idea of a discretion and not compulsion, reading it with the last part of the clause it seems that when an externment order has to be enforced for more than three months an absolute right is given to the externee to make a representation. He cannot make a representation unless he has been furnished grounds for the order. In no other part of the Act a right to obtain the grounds for the order in such a case is given to him. Therefore, that right has to be read as given under the first part of section 4(6). That can be done only by reading the word "may" for that purpose as having the meaning of "shall". If the word "may" has to be so read for that purpose, it appears to be against the well recognised canons of construction to read the same "may" as having a different meaning when the order is to be in force for less than three months. I do not think in putting the meaning of "shall" on "may" in the clause, I am unduly straining the language used in the clause. So read this argument must fail.
It was next argued that there is no provision in the Act showing what the advisory board has to do when it receives a representation. A reference to the advisory board necessarily implies a consideration of the case by such board. The absence of an express statement to that effect in the impugned Act does not invalidate the Act.
It was finally contended on behalf of the petitioner that the grounds for the externment order supplied to him are vague, insufficient and incomplete. The grounds are stated as follows:Your activities generally and particularly since the recent trouble in East and West
Bengal have been of a communal nature tending to excite hatred between communities and whereas in the present composition of the population of Delhi and the recent communal disturbances of Delhi feelings are roused between the majority and minority communities your presence and activities in Delhi are likely to prove prejudicial to the maintenance of law and order, it is considered necessary to order you to leave Delhi.
These grounds cannot be described as vague, insufficient or incomplete. It is expressly stated that the activities of the petitioner, who is the President of the Hindu Mahasabha, since the recent
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disturbances between two communities in the East and West Bengal have particularly been of a communal nature which excites hatred between the communities. It is further stated that having regard to the recent disturbance in Delhi, the population of which is composed of both these communities, the excitement of such hatred is likely to dangerous to the peace and maintenance of law and order. Apart from being vague, I think that these grounds are specific and if honestly believed can support the order. The argument that the order was served to stifle opposition to the
Government policy of appeasement has little bearing because the District Magistrate of Delhi is not concerned with the policy of the Government of appeasement or otherwise. The order is made because the activities of the petitioner are likely to prove prejudicial to the maintenance of law and order and the grounds specified have a direct bearing on that conclusion of the District Magistrate.
I therefore think this contention of the petitioner must be rejected.
The result is that the petition fails and is dismissed.
JUSTICE MUKHERJEA (FOR HIMSELF; JUSTICE MAHAJAN CONCURRING)
This is an application under article 32 of the Constitution, praying for quashing of an externment order made by the District Magistrate of Delhi, against the petitioner Dr. N. B. Khare, on 31st March, 1950, by which the latter was directed to remove himself immediately from the
Delhi District and not to return to that District, so long as the order remained in force. The order is for three months at present. Complaint was also made in the petition in respect of another and a subsequent order passed by the Government of Madhya Bharat which was served on the petitioner on his way to Nagpur and which directed him to reside within the limits of the Nagpur Municipality and not to leave that area without the permission of the District Magistrate of that place. This order of the Government of Madhya Bharat, we are told, has since been withdrawn and we are not concerned with that order or the Act under which it was passed in the present proceeding.
The substantial contention raised on behalf of the petitioner is that the particular provision of the East Punjab Public Safety Act, 1949, under which the District Magistrate of Delhi purported to make the externment order, became void and ceased to be operative after the new Constitution came into force, by reason of these provisions being inconsistent with the fundamental rights guaranteed under article 19(1)(d) of the Constitution read with clause (5) of the same article. The argument is that any order passed under such void legislative provisions must necessarily be void and of no effect in law.
In order to appreciate the merits of this contention, it may be convenient to advert to the material provisions of the East Punjab Public Safety Act which are alleged to have become void as well as to the articles of the Constitution, upon which reliance has been placed by the learned counsel for the petitioner.
The East Punjab Public Safety Act came into force on 29th March, 1949, and its object, as stated in the preamble, is to provide for special measures to ensure public safety and maintenance of public order. Section 4(1) of the Act provides:
The Provincial Government or the District Magistrate, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary so to do, may, by order in writing, give anyone or more of the following directions, namely that such person…
(c) shall remove himself from, and shall not return to, any area that may be specified in the order.
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Sub-section (3) of the section lays down that
An order under sub-section (1) made by the District Magistrate shall not, unless the Provincial Government by special order otherwise directs, remain in force for more than three months from the making thereof.
The contention of the petitioner is that the restrictive provisions mentioned above, under which a person could be removed from a particular area or prohibited from returning to it are inconsistent with the fundamental right guaranteed by article 19(1)(d) of the Constitution under which all citizens shall have the right "to move freely throughout the territory of India." This right indeed is not absolute and the extent to which it could be curtailed by legislation is laid down in clause (5) of article 19 …
Thus the primary question which requires consideration is, whether the impugned legislation which apparently seems to be in conflict with the fundamental right enunciated in article 19(1)(d) of the Constitution is protected by clause (5) of the article, under which a law would be valid if it imposes reasonable restrictions on the exercise of the right in the interests of the general public. It is not disputed that the question of reasonableness is a justifiable matter which has to be determined by the Court. If the Courts hold the restrictions imposed by the law to be reasonable, the petitioner would certainly have no remedy. If, on the other hand, they are held to be unreasonable, article
13(1) of the Constitution imposes a duty upon the Court to pronounce the law to be invalid to the extent that it is inconsistent with the fundamental rights guaranteed under Part III of the
Constitution.
It has been urged, though somewhat faintly, by the learned Attorney-General that the right of free movement throughout the Indian territory as enunciated in article 19(1)(d) of the Constitution contemplates nothing else but absence of inter-State restrictions, which might prevent citizens of the Indian Union from moving from one State to another. A law which does not impose barriers of this kind, it is said, cannot be inconsistent with the fundamental right secured by this clause.
Such a restricted interpretation is, in my opinion, not at all warranted by the language of the subclause. What article 19(1)(d) of the Constitution guarantees is the free right of all citizens to go wherever they like in the Indian territory without any kind of restriction whatsoever. They can move not merely from one State to another but from one place to another within the same State and what the Constitution lays stress upon is that the entire Indian territory is one unit so far as the citizens are concerned. Clause (c) of section 4(1) of the East Punjab Public Safety Act, 1949, authorises the Provincial Government or the District Magistrate to direct any person to remove himself from any area and prohibit him from entering the same. On the face of it such provision represents an interference with the fundamental right guaranteed by article 19(1)(d) of the
Constitution. The controversy, therefore, narrows down to this, whether the impugned legislation is saved by reason of its being with the permissible limits prescribed by clause (5) of article 19.
With regard to clause (5), the learned Attorney-General points out at the outset that the word
"reasonable" occurring in the clause qualifies "restriction" and not "law". It is argued that in applying the clause, all that we have to see is whether the restrictions that are imposed upon the exercise of the right by law are reasonable or not and we have not to enquire into the reasonableness or otherwise of the law itself. The reasonableness of the restrictions can be judged, according to the learned Attorney-General from the nature of the restrictions themselves and not from the manner in which or the authorities by which they are imposed. The question whether the operation of the law produces hardship in individual cases is also a matter which is quite irrelevant to our enquiry. I do agree that in clause (5) the adjective 'reasonable ' is predicated of the restrictions that are imposed by law and not of the law itself; but that does not mean that in deciding the reasonableness or otherwise of the restrictions, we have to confine ourselves to an examination of the restrictions in the abstract with reference merely to their duration or territorial extent, and that it is beyond our
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province to look up to the circumstances under which or the manner in which the restrictions have been imposed. It is not possible to formulate an effective test which would enable us to pronounce any particular restriction to be reasonable or unreasonable per se. All the attendant circumstances must be taken into consideration and one cannot dissociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice. The question of reasonableness of the restrictions imposed by a law may arise as much from the substantive part of the law as from its procedural portion. Thus, although I agree with the learned Attorney-General that the word "reasonable" in clause (5) of article 19 goes with "restrictions" and not with "law", I cannot accept his suggestion as regards the proper way of determining the reasonableness of the restrictions which a legislation might impose upon the exercise of the right of free movement.
Coming now to the provisions of the impugned Act, Mr. Banerjee 's main contention is that section 4(1)(c) of the East Punjab Public Safety Act, which provides for passing of orders removing a person from a particular area, on the satisfaction of the Provincial Government or the
District Magistrate, cannot be a reasonable piece of legislation inasmuch as the only pre-requisite for imposition of the restrictions is the personal satisfaction of certain individuals or authorities, the propriety or reasonableness of which cannot be tested by the application of any external rule or standard. It is said that any law which places the liberty of a subject at the mercy of an executive officer, however high placed he might be and whose action cannot be reviewed by a judicial tribunal, is an arbitrary and not a reasonable exercise of legislative powers. The contention requires careful examination.
It is not disputed that under clause (5) of article 19, the reasonableness of a challenged legislation has to be determined by a Court and the Court decides such matters by applying some objective standard which is said to be the standard of an average prudent man. Judged by such standard which is sometimes described as an external yard-stick, the vesting of authority in particular officers to take prompt action under emergent circumstances, entirely on their own responsibility or personal satisfaction, is not necessarily unreasonable. One has to take into account the whole scheme of the legislation and the circumstances under which the restrictive orders could be made. The object of East Punjab Public Safety Act is to provide for special measures to ensure public safety and maintenance of public order. Under section 4(1)(c) of the Act, the Provincial
Government or the District Magistrate may make an order directing the removal of a certain person from a particular area, if they are satisfied that such order is necessary to prevent such person from acting in any way prejudicial to public safety or maintenance of public order. Preventive orders by their very nature cannot be made after any judicial enquiry or trial. If emergent steps have got to be taken to prevent apprehended acts which are likely to jeopardise the interests or safety of the public, somebody must be given the power of taking the initial steps on his own responsibility; and no reasonable objection could be taken if the authority, who is given the power, is also entrusted with the responsibility of maintaining order and public peace in any particular district or province. The preventive provisions of the Criminal Procedure Code are based on similar principle.
In my opinion, therefore, the provision of section 4(1)(c) of the East Punjab Public Safety Act cannot be pronounced to be unreasonable, simply because the order could be passed by the
Provincial Government or the District Magistrate on their own personal satisfaction and not on materials which satisfy certain objective tests.
But though certain authorities can be invested with powers to make the initial orders on their own satisfaction in cases of this description, the position would certainly be different if the order thus made is allowed to continue for any indefinite period of time without giving the aggrieved person an opportunity to say what he has got to say against the order. I have already set out the provisions of sub-section (3) of section 4 which deals with duration of the orders made under the various clauses of sub-section (1). It will be seen from this sub-section that there is absolutely no limit as to the period of time during which an externment order would remain in force if the order
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is made by the Provincial Government. The Provincial Government has been given unlimited authority in this respect and they can keep the order in force as long as they chose to do so. As regards orders made by a District Magistrate, the period indeed has been fixed at three months, but even here the Provincial Government is competent to extend it to any length of time by means of a special order. The law does not fix any maximum period beyond which the order cannot continue; and the fact that the Act itself would expire in August, 1951, is, in my opinion not a relevant matter for consideration in this connection at all. I have no hesitation in holding that the provision of subsection (3) of section 4 is manifestly unreasonable and cannot be supported on any just ground.
One could understand that the exigencies of circumstances might justify the vesting of plenary powers on certain authorities which could pass orders on their own personal satisfaction temporarily and for a short period of time; but if these orders are to continue indefinitely, it is only fair that an opportunity should be given to the person against whom such order is made to say what he has to say in answer to the allegations made against him. There may not be an investigation by a regular Court but it is necessary that the aggrieved person should be given a fair hearing and that by an impartial tribunal. The provision of the impugned Act which has bearing on this point is contained in sub-section (6) of section 4 and it runs as follows:
When an order has been made in respect of any person under any of the clauses under section 4, sub-section (1), or sub-section (2) the grounds of it may be communicated to him by the authority making the order and in any case, when the order is to be in force for more than three months, he shall have a right of making a representation which shall be referred to the Advisory Tribunal, constituted under section 3, sub-section (4).
It will be noted that the first part of the sub-section makes it entirely optional with the authorities to communicate the grounds, upon which the order is made, to the person affected by it. The grounds need not be communicated at all if the authorities so desire. As regards the right of representation the latter part of the sub-section seems to imply that when the order is to remain in force for more than three months, the right of representation should be given to the aggrieved person and the representation shall be referred for consideration to the advisory tribunal constituted under section 3, sub-section (4), of the Act. The right, however, is purely illusory as would appear from the fact that even in cases where the order is to be operative for more than three months, there is no obligation on the part of the authorities to communicate to the person the grounds upon which the order was made. The aggrieved person consequently may not at all be apprised of the allegations made against him and it will be impossible for him to make any adequate or proper representation, if he is not told on what grounds the order was passed. In my opinion, this is an equally unreasonable provision and neither sub-section (3) nor sub-section (6) of section 4 of the
Act can be said to have imposed restrictions which are reasonable in the interests of the general public. My conclusion, therefore, is that article 13(1) of the Indian Constitution, these provisions of the Act became void and inoperative after the Constitution came into force, and consequently the order made by the District Magistrate in the present case cannot stand.
I would, therefore, allow the application and quash the externment order that has been passed against the petitioner. Petition dismissed.
FREEDOM TO FORM ASSOCIATIONS OR UNIONS
STATE OF MADRAS V. V. G. ROW
AIR 1952 SC 196
Decided On: March 31, 1952
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BENCH – CHIEF JUSTICE PATANJALI SASTRI, JUSTICES M. C. MAHAJAN, B. K. MUKHERJEA,
S. R. DAS & N. CHANDRASEKHARA AIYAR
CHIEF JUSTICE SASTRI (for the Court)
This is an appeal from an order of the High Court of Judicature at Madras adjudging section 15(2)(b) of the Indian Criminal Law Amendment Act, 1908 (Act No. XIV of 1908) as amended by the Indian Criminal Law Amendment (Madras) Act, 1950, (hereinafter referred to as the ‘impugned Act’) unconstitutional and void, and quashing Government Order No.
1517, Public (General) Department, dated 10th March, 1950, whereby the State Government declared a Society called the People 's Education Society an unlawful association.
The respondent, who was the general secretary of the Society, which was registered under the Societies Registration Act, 1860, applied to the High Court on 10th April 1950, under article 226 of the Constitution complaining that the impugned Act and he Order dated 10th
March, 1950, purporting to be issued there under infringed the fundamental right conferred on him by article 19(1)(c) of the Constitution to form associations or unions and seeking appropriate reliefs. The High Court by a full bench of three Judges (Rajamanner C.J.,
Satyanarayana Rao and Vishwanatha Sastri, JJ.) allowed the application on 14th September,
1950, and granted a certificate under article 132. The State of Madras has brought this appeal.
The Government Order referred to above runs as follows:
WHEREAS in the opinion of the State Government the Association known as the
People 's Education Society, Madras, has for its object interference with the administration of the Law and the maintenance of law and order, and constitutes a danger to the public peace;
NOW, therefore, His Excellency the Governor of Madras, in exercise of the Power conferred by section 16 of the India Criminal Law Amendment Act, 1908 (Central
Act XIV of 1908) hereby declares the said association to be an unlawful association with in the meaning of the said Act."
No copy of this order was served on the respondent or any other office-bearer of the society but it was notified in the official Gazette as required by the impugned Act.
The declared objects of the Society as set out in the affidavit of the respondent are:
(a) to encourage, promote, diffuse and popularise useful knowledge in all sciences and more specially social science;
(b) to encourage, prompt diffuse and popularise political education among people;
(c) to encourage promote and popularise the study and under standing of all social and political problems and bring about social and political reforms; and
(d) to promotes encourage and popularise art, literature and drama.
It was, however, stated in a counter-affidavit filed on behalf of the appellant by the Deputy
Secretary to Government Public Department, that according to in formation received by the
Government, the Society was actively helping the Communist party in Madras which had been declared unlawful in August, 1949 by utilising its funds through its secretary for carrying on propaganda on behalf of the Party, and that the declared on objects of the Society were intended to camouflage its real activities.
As the Madras Amendment Act (No. XI of 1950) was passed on the 12th August, 1950, during the pendency of the petition which was taken up for hearing on the 21st August, 1950, the issues involved had to be determined in the light of the original Act as amended. In order
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to appreciate the issued it is necessary to refer to the relevant provisions. Before amendment by the Madras Act, the material provisions were as follows:
15. IN THIS PART (1) "association" means any combination or body of persons whether the same be known by any distinctive name or not; and
(2) "unlawful association" means an association (a) which encouraged or aids persons to commit acts of violence or intimidation or of which the members habitually commit such acts, or
(b) which has been declared to be unlawful by the Provincial Government under the Powers hereby conferred.
16. If the Provincial Government is of opinion that any association interferes or has for its object interference with the administration of the law or with the maintenance of law and order, or that it constitutes as dangers to the public peace, the Provincial Government may be notification in the official Gazette declare such association to be unlawful.
The amending Act substituted for clause (b) in Section 15 (2) the following clause:
(b) which has been declared by the State Government by notification in the official
Gazette to be unlawful on the ground (to be specified in the notification) that such association (i) constitutes a danger to the public peace, etc.
(ii) has interfered or interferes with the maintenance of public order or has such interference for its object, or
(iii) has interfered or interferes with the administration of the law, or has such interference for its object.
For the old section 16, section 16 and 16A were substituted as follows:
16. (1) A notification issued under clause (b) of sub-section (2) of section 15 in respect of any association shall (a) specify the ground on which it is issued, the reasons for its issue, and such other particulars, if any, as may have a bearing on the necessity therefore and
(b) fix a reasonable period for any office-bearer or member of the association or any other person interested to make a representation to the State Government in respect of the issue of the notification.
(2) Nothing in sub-section (1) shall required the State Government to disclose any facts which it consider to be against the public interest to disclose.
Under section 16A the Government is required after the expiry of the time fixed in the notification for making representations, to place before an Advisory Board constituted by it a copy of the notification and of the representation, if any, received before such expiry, and the
Board is to consider the materials placed before it, after calling for such further information as it may deem necessary from the State Government or from any office-bearer or member of the association consigned or any other person, and submit its report to the Government. If it is found by the Board that there is no sufficient cause for the issue of the notification in respect of the association concerned the Government is required to cancel the notification.
These is no amendment of section 17 which prescribes penalties by way of imprisonment or fine or both for membership or management of an unlawful association and for taking part in meeting of such association or muskeg, receiving or soliciting contributions for purposes thereof. Section 17A, which confers power on the Government to notify and take possession
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of places used for the purposes of an unlawful association, was amendment by the addition of sub-clauses 2 (a) and 2 (b) providing for a remedy, where such power was exercises, by way of application within thirty days of the notification in the official Gazette to the Chief Judge of the Small Cause Court of the District Judge occurring as the place notified is situated in the
Presidency Town or outside, for "a declaration that the place has not been used for the purposes of any unlawful association" If such declaration is made, the Government is to cancel the notification in respect of the place. Section 17B empower the officer taking possession of a notified place of forfeit movable property found therein if, in his opinion, such property "is, or may be used for the purpose of the unlawful association" after following the procedure indicated. Section 17E similarly empower the Government to forfeit funds of an unlawful association “if it is satisfied after such enquiry as it may thing fit that such funds are being used or intended to be used for the purposes of an unlawful association.” The procedure to be followed in such cases is also prescribed. By section 17E jurisdiction of civil court, save as expressly provided is barred in respect of proceedings taken under section 17A to 17E.
By section 6 of the amending Act notification already issued and not cancelled before the amendment are to have effect as if they have been issued under section 15 (2) (b) as amended, and it is provided in such cases a supplementary notification should also be issued a required in section 16 (1) (a) and (b) as amended and thereafter the procedure provided by the new section 16-A should be followed. It was under this provision that the validity of the notification issued on the 10th March, 1950, under old section 16 fell to be considered in the light of the provisions of the amended Act when the petition came up for hearing in the High Court on
21st August, 1950.
It will be seen that while old section 16 expressly conferred on the Provincial Government power to declare association unlawful if, in its opinion, there existed certain specified grounds in relation to them, those grounds are now incorporated in section 15 (2) (b) as amended, and the reference to the "opinion" of the Government is dropped. This led to some discussion before us as to whether or not the grounds referred to in section 15 (2) (b) as amended are justifiable issues. If the factual existence of those grounds could be made the subject of inquiry in a court of law, the restriction sought to be imposed on the right of association would not be open to exception, but then the Government would apparently have no use for section 15 (2)
(b). For it was strenuously contended on its behalf by the Attorney-General that the incorporation of these grounds in a definition clause, which made a declaration by
Government the test of unlawfulness, rendered the insertion of the words "in its opinion" unnecessary and, indeed, inappropriate, and that the omission of those words could not lead to any inference that the grounds on which the declaration was to be based were intended to be any more justifiable than under the old section 16; more especially as the "opinion" or the
"satisfaction" of the Government of of its officers is still the determining factor in notifying a place under section 17A (1) and in forfeiting the movable found therein under section 17B (1) or the funds of an unlawful association under section 17E (1). The provision for an inquiry as to the existence or otherwise of such grounds before an Advisory Board and for cancellation of the notification in case the Board found there was no sufficient cause for declaring the association as unlawful also pointed, it was urged, to the same conclusion. The contention is not without force, and the position was not contested for respondent. It may, accordingly be taken that the test under section 15 (2) (b) is as it was under the old section 16, a subjective one, and the factual existence or otherwise of the grounds is not a justifiable issue.
It is on this basis, then, that the question has to be determined as to whether section 15 (2)
(b) as amended falls within the limits of constitutionally permissible legislative abridgment of the fundamental right conferred on the citizen by article 19(1)(c). … It was not disputed that
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the restriction in question were imposes "in the interests of public order". But are they
"reasonable" restriction within the meaning of article 19(4)?
Before proceeding to consider this question we think it right to point out, what is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the constitution unlike as in America where the
Supreme Court has assumed extensive power of reviewing legislative acts under cover of the widely interpreted "due proves" clause in the Fifth and Fourteenth Amendments. If, then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader 's spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the "fundamental rights" as to which this Court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot dessert its own duty to determine finally the constitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to haves been suggested in some quarters that the courts in the new set up are out to seek clashes with the legislatures in the country.
The learned Judges of the High Court unanimously held that the restrictions under section
15 (2) (b) were not reasonable on the ground of (1) the inadequacy of the publication of the notification, (2) the omission to fix a time-limit for the Government sending the papers to the
Advisory Board or for the latter to make its report, no safeguards being provided against the
Government enforcing the penalties in the meantime, and (3) the denial to the aggrieved person of the right to appear either in person or by pleader before the Advisory Board to make good his representation. In addition to these grounds one of the learned Judges (Satyanarayana
Rao J.) held that the impugned Act offended against article 14 of the constitution in that there was no reasonable basis for the differentiation in treatment between the two classes of unlawful association mentioned in section 15 (2) (a) and (b). The other learned Judges did not, however, agree with this view. Vishwanatha Sastri J. further held that the provisions for forfeiture of property contained in the impugned Act were void as they had no reasonable relation to the maintenance of public order. The other two Judges expressed no opinion on this point. While agreeing with the conclusion of the learned Judges that section 15 (2) (b) is unconstitutional and void, we are of opinion that the decision can be rested on a broader and more fundamental ground.
This Court had occasion in Dr. Khare 's case (1950) S.C.R. 519 to define the scope of the judicial review under clause (5) of article 19 where the phrase "imposing reasonable restriction on the exercise of the right" also occurs and four out of the five Judges participating in the decision expressed the view (the other Judge leaving the question open) that both the substantive and the procedural aspects of the impugned restrictive law should be examined from the point of view of reasonableness; that is to say, the Court should consider not only factors such as the duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has been authorised. It is important in this context to bear in mind that the test of reasonableness, where ever prescribed, should be applied to each, individual statute impugned and no abstract standard, or general pattern of reasonableness can be maid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility
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and self- restrict and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable. Giving due weight to all the considerations indicated above, we have come to the conclusion that section 15 (2) (b) cannot be upheld as falling within the limits of authorised restrictions on the right conferred by article 19(1)(c). The right to form association or unions has such wide and varied scope for its exercise, and its curtailment is fraught with such potential reactions in the religious, political and economic fields, that the vesting of authority in the executive government to impose restriction on such right without allowing the grounds of such imposition both in then factual and legal aspect to he duly tested in a judicial inquiry, is strong element which, in our opinion, must be taken into account in judging the reasonableness of the restriction imposed by section 15 (2) (b) on the exercise of the fundamental right under article 19(1)(c); for, no summary and what is bound to be a largely one-sided review by an Advisory Board, even where its verdict is binding on the executive government, can be a substitute for a judicial enquiry. The formula of subjective satisfaction of the Government or of its officers, with an Advisory Board thrown in to review the materials on which the Government seeks to override a basic freedom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the narrowest limits, and cannot receive judicial approval as a general patters of reasonable restriction on fundamentals rights. In the case of preventive detention, no doubt, this Court upheld in
Gopalan 's case (1950) S.C.R. 88 deprivation of personal liberty by such means, but that was because the Constitution itself sanctions laws providing of preventive detention, as to which no question of reasonableness could arise in view of the language of article 21. As pointed out by Kania C.J. at page 121, quoting Lord Finlay in Rex v. Halliday (1917) A.C. 260, 269:
"the court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based."
The Attorney-General placed strong reliance on the decision in Dr. Khare where the subjective satisfaction of the Government regarding the necessity for the experiment of a person, coupled with a reference of the matter to an Advisory Board whose opinion, however, had no binding force, was considered by a majority to be "reasonable" procedure for restricting the right to move freely conferred by article 19(1)(b). The Attorney-General claimed that the reasoning of that decision applied a fortiori to the present case, as the impugned Act provided that the Advisory Board 's report was beginning on the Government. We cannot agree. We consider that that case is distinguishable in several essential particulars. For one thing experiment of individuals, like preventive detention is largely precautionary and based on suspicion. In fact, section 4 (1) of the Easts Punjab Public Safety Act, which was the subject of consideration in Dr. Khare authorised both preventive detention and experiment for the same purpose and on the same ground namely, with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary, etc. Besides, both involve an element of emergency requiring prompt steps to be taken to prevent apprehended danger to public tranquillity, and authority has to be vested in the
Government and its officers to take appropriate action on their own responsibility. These features are, however, absent in the ground on which the Government is authorised under section 15 (2) (b) to declare association unlawful. These grounds, taken by themselves, are factual and not anticipatory or based on suspicion. An association is allowed to be declared unlawful because it "constitutes" a danger or "has interfered or interferes" with the maintenance of public order or "has such interference for its object" etc. The factual existence
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of these grounds is amenable to objective determination by the court, quite as much as the grounds mentioned in clause (a) of sub-section (2) of section 15, as to which the AttorneyGeneral conceded that it would be incumbent on the Government to establish, as a fact, that the association, which it alleged to be unlawful, "encouraged" or "aided" persons to commit acts of violence, etc. We are unable to discover any reasonableness in the claim of the
Government seeking by its mere declaration, to shut out judicial enquiry into the underlying facts under clause (b).
Secondly, the East Punjab Public Safety Act was a temporary enactment which was to be in forces only of a year; and any order made there under was to expire at the termination of the Act. What may be regarded as a reasonable restriction imposed under such a statute will not necessarily be considered reasonable under the impugned Act, as the latter is a permanent measure, and any declaration made there under would continue in operation for an indefinite period until the Government should think fit to cancel it. Thirdly, while, no doubt, the
Advisory Board procedure under the impugned Act provides a better safeguard than the one under the East Punjab Public Safety Act, under which the report of such body is not binding on the Government, the impugned Act suffers from a far more serious defect in the absence of any provision for adequate communication of the Government 's notification under section
15 (2) (b) to the association and its members or office-bearers. The Government has to fix reasonable period in the notification for the aggrieved person to make a representation to the
Government. But as statewide already, no personal service on any office-bearer or member of the association converted or service by affixture at the office, if any, of such association is prescribed. Nor in any other mode of proclamation of the notification at the place where such association carries on its activities provided for. Publication in the official Gazette, whose publicity value is by no means great, may not reach the members of the association declared unlawful and if the time fixed expired before they knew of such declaration, their right of making a representation, which is the only opportunity of presenting their case, would be lost.
Yet, the consequences to the members which the notification involves are most serious, do, their very membership thereafter is made an offence under section 17.
There was some discussion at the bar as to whether want of knowledge of the notification would be a valid defence in a prosecution under that section. But it is not necessary to ensure upon that question as the very risk of prosecution involved in declaring an association unlawful with penal consequences, without providing for adequate communication of such declaration to the association and its members or office bearers, may well be considered sufficient to render the imposition of restrictions by such means unreasonable. In this respect an externment order stands on a different footing, as provision is made for personal or other adequate mode of service on the individual concerned, who is thus assured of an opportunity of putting for ward his case. For all these reasons the decision in Dr. Khare is distinguishable and cannot rule the present case as claimed by the learned Attorney General. Indeed, as we have observed earlier, a decision dealing with the validity of restriction imposed on one of the rights conferred by article 19(1) cannot have much value as a precedent for adjudging the validity of the restriction imposed on another right, even when the constitutional criterion is the same, namely, reasonableness, as the conclusion must depend on the cumulative effect of the varying facts and circumstances of each case.
Having given the case our best and most anxious consideration we have arrived at the conclusion in agreement with the learned Judges of the High Court, that, having regard to the peculiar feature to which reference has been made petition 15 (2) (b) of the Criminal Law
Amendment on 1908, as amended by the Criminal Law Amendment (Madras) Act, 1950, falls
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outside the scope of authorised restrictions under clause (4) of article 19 and is, therefore, unconstitutional and void.
The appeal fails and is accordingly dismissed with costs.
JAMAAT-E-ISLAMI HIND V. UNION OF INDIA
(1995) 1 SCC 428
Decided On: December 7, 1994
BENCH – JUSTICES J. S. VERMA, S. P. BARUCHA & K. S. PARIPOORNAN
JUSTICE VERMA (for the Court)
The above appeal by special leave is against the order dated 11.4.1994 passed under
Section 4 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as "the
Act") by the one member Tribunal comprising of B.M. Lal, J., a Judge of the Allahabad High
Court constituted under Section 5 of the Act, confirming the declaration made by the Central
Government in the notification dated 10 12.1992 issued under Sub-section (1) of Section 3 of the Act that Jamaat-E-Islami-Hind is an "unlawful association" as defined in the said Act. The above writ petition has been filed in addition to the said appeal, in the alternative, for a declaration that the provisions of the said Act and the Rules framed thereunder arc unconstitutional and ultra vires some of the fundamental rights guaranteed in the Constitution of India.
The broad submission of Shri Soli J. Sorabjee on behalf of the said association is, that in the event a construction is made of the provisions of the said Act and the Rules framed thereunder, which give a reasonable opportunity to the association to show cause why it should not be declared unlawful, these provisions would be saved from the vice of unconstitutionally.
The alternative challenge to the constitutionality of the provisions is made, only if such a construction cannot be made. It is, therefore, appropriate that the proper construction of these provisions be first made to enable consideration of the contention in the true perspective.
The material facts are these: The said association, namely, Jamaat-E-Islami Hind, established in April 1948, is an All India organisation professing apolitical, secular and spiritual credentials with belief in the oneness of God and universal brotherhood. Its activities are said to be for promoting this objective. A notification dated 10.12.1992 published in the
Official Gazette the same day was issued by the Government of India in the Ministry of Home
Affairs, as under:
MINISTRY OF HOME AFFAIRS
NOTIFICATION
New Delhi, the 10th December, 1992
S.O. 898(E). - Whereas Shri Sirajul Hasan, Amir of the Jamaat-e-islami Hind
(hereinafter referred to as JEIH) declared in a meeting at Delhi held on the 27th
May, 1990 that the separation of Kashmir from India was inevitable; And whereas
Shri Abdul Aziz, Naib-Amir of JEIH, addressing a meeting at Malerkotla on the
1st August, 1991, observed that the Government of India should hold plebiscite on Kashmir;
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And whereas JEIH has been disclaiming and questioning the sovereignty and territorial integrity of India;
And whereas for all or any of the grounds set out in the preceding paragraphs, as also on the basis of other facts, and materials in its possession which the Central
Government considers to be against the public interest to disclose, the Central
Government is of the opinion that the JEIH is an unlawful association; Now, therefore, in exercise of the powers conferred by Sub-section (1) of Section 3 of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967), the Central
Government hereby declares the 'Jamaat-e-Islami Hind ' to be an unlawful association, and directs, in exercise of the powers conferred by the proviso to Subsection (3) of that section, that this notification shall, subject to any order that may be made under Section 4 of the said Act, have effect from the date of its
Publication in the Official Gazette.
[No. II/14034/2(i) 92-IS(DV)
T.N. Srivastava, Jt. Secy.
In accordance with the proviso to Sub-section (3) of Section 3 of the Act, the notification was brought into effect from the date of its publication in the Official Gazette. However, the act of bringing into effect the notification from the date of its publication in the Official
Gazette was struck down by the court and so the notification became effective from the date of its confirmation by the Tribunal. The Central Government referred the notification to the
Tribunal for the purpose of adjudicating whether or not there is sufficient cause for declaring the association unlawful, in accordance with Sub-section (1) of Section 4 of the Act. The
Tribunal has decided that there is sufficient cause for declaring the association to be unlawful and, therefore, it has confirmed the said notification. In the inquiry before the Tribunal, the only material produced by the Central Government was a resume prepared on the basis of some intelligence reports and the affidavits of T.N. Srivastava, Joint Secretary in the Ministry of Home Affairs and N.C. Padhi, Joint Director, I.B., both of whom spoke only on the basis of the records and not from personal knowledge. In rebuttal, affidavits were filed on behalf of the association of persons whose acts, it was alleged, constituted the grounds for issue of the notification under Section 3(1) of the Act, The deponents of the affidavits were also crossexamined. This constitutes the entire material on which the Tribunal rendered its decision on the question of existence of sufficient cause for declaring the association unlawful. The matter has, therefore, to be decided on this material alone.
Briefly stated, the submission of Shri Soli J. Sorabjee, learned Counsel for the appellantassociation is that none of the grounds on which the notification is based, even assuming them to be proved, constitutes "unlawful activity" as defined in Section 2(f) of the Act to render the appellant an unlawful association within the meaning of Section 2(g) of the Act. Learned counsel also submitted that the only material produced at the inquiry does not constitute legal evidence for the purpose inasmuch as it is, at best, hearsay and that too without disclosing the source from which it emanates to give an opportunity to the appellant to effectively rebut the same. The further submission is that in rebuttal there is legal evidence in the form of sworn testimony of the persons to whom the alleged activities are attributed. Shri Sorabjee contended that the inquiry contemplated by the Tribunal under the Act is judicial in nature, which must in the form of adjudication of a lis giving a reasonable opportunity to the association to rebut the correctness of allegations against it, and negative the same. It was urged by Shri Sorabjee that in the absence of the provision being so construed, they would suffer from the vice of unconstitutionality. The writ petition has been filed to project the alternative argument.
The learned Solicitor General, on the other hand, contended that this enactment is, in substance, in the nature of a preventive detention law and the Tribunal constituted under the
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Act is like an Advisory Board under the preventive detention law required to examine only the existence of material sufficient to sustain formation of the opinion of the kind required for preventive detention. Learned Solicitor General submitted that such opinion can be formed not only on the basis of legal evidence but also other materials including intelligence reports received from undisclosed sources. According to the learned Solicitor General, the requirement of natural justice in such a situation is satisfied by mere disclosure of the information without disclosing the source of the information. This submission of the learned
Solicitor General is in addition to the claim of privilege based on public interest available under the general law.
The Central Government 's right to claim privilege against disclosure of certain information, in public interest, in the manner prescribed by law, is not in controversy.
Confidentiality of meters in respect of which the Central Government 's claim of privilege is upheld by the Tribunal is not questioned. The question is only of the material in respect of which no such privilege is claimed in the manner prescribed or of which the claim of privilege is not upheld by the Tribunal.
It is in this background, the debate regarding the kind of material require for examining the sufficiency of cause for declaring the association unlawful in the inquiry held by the
Tribunal, has to be examined. We would now examine the provisions of the Act and the Rules famed thereunder. The relevant provisions of the Act and the Rules are as under:
The Unlawful Activities (Prevention) Act, 1967
2. Definitions. - In this Act, unless the context otherwise requires,
(a) "association" means any combination or body of individuals;
(b) "cession of a part of the territory of India" includes admission of the claim of any foreign country to any such part;
(c) "prescribed" means prescribed by rules made under this Act;
(d) "secession of a part of the territory of India from the Union" includes the assertion of any claim to determine whether such part will remain a part of the territory of India;
(e) "Tribunal" means the Tribunal constituted under Section 5;
(f) "unlawful activity", in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise),(i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession;
(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India;
(g) "unlawful association" means any association (i) which has for its object any unlawful activity, or which encourages or aids persons to undertake any unlawful activity, or of which the members undertake such activity; or
(ii) which has for its object any activity which is punishable under Section 153-A or Section 153B of the India Penal Code, 1860 (45 of 1860), or which encourages or aids persons to undertake any such activity, or of which the members undertake any such activity:
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Provided that nothing contained in Sub-clause (ii) shall apply to the State of
Jammu and Kashmir. xxxxxxxxx CHAPTER II
UNLAWFUL ASSOCIATIONS
3. Declaration of an association as unlawful. - (1) If the Central Government is of opinion that any association is, or has become, an unlawful association, it may, by notification in the Official Gazette, declare such association to be unlawful. (2)
Every such notification shall specify the grounds on which it is issued and such other particulars as the Central Government may consider necessary:
Provided that nothing in this sub-section shall require the Central Government to disclose any fact which it considers to be against the public interest to disclose.
(3) No such notification shall have effect until the Tribunal has, by an order made under Section 4, confirmed the declaration made therein and the order is published in the Official Gazette:
Provided that if the Central Government is of opinion that circumstances exist which render it necessary for that Government to declare an association to be unlawful which immediate effect it may, for reasons to be stated in writing, direct that the notification shall, subject to any order that may be made under Section 4, have effect from the date of its publication in the Official Gazette, xxxxxxxxx 4. Reference to Tribunal. - (1) Where any association has been declared unlawful by a notification issued under Sub-section (1) of Section 3, the Central
Government shall, within thirty days from the date of the publication of the notification under the said sub-section, refer the notification to the Tribunal for the purpose of adjudicating whether or not there is sufficient case for declaring the association unlawful.
(2) On receipt of a reference under Sub-section (1), the Tribunal shall call upon the association affected by notice in writing to show cause, within thirty days from the date of the service of such notice, why the association should not be declared unlawful. (3) After considering the cause, if any, shown by the association or the officebearers or members thereof, the Tribunal shall hold an inquiry in the manner specified in Section 9 and after calling for such further information as it may consider necessary from the Central Government or from any office-bearer or member of the association, it shall decide whether or not there is sufficient cause for declaring the association to be unlawful and make, as expeditiously as possible and in any case within a period of six months from the date of the issue of the notification under Sub-section (1) of Section 3, such order as it may deem fit either confirming the declaration made in the notification or cancelling the same.
(4) The order of the Tribunal made under Sub-section (3) shall be published in the
Official Gazette.
5. Tribunal. - (1) The Central Government may, by notification in the Official
Gazette, constitute, as and wen necessary, a tribunal to be known as the "Unlawful
Activities (Prevention) Tribunal" consisting of one person, to be appointed by the
Central Government:
Provided that no person shall be so appointed unless he is a Judge of the High
Court.
xxxxxxxxx
(5) Subject to the provisions of Section 9, the Tribunal shall have power to regulate its own procedure in all matters arising out of the discharge of its functions including the place or places at which it will hold its sittings.
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(6) The Tribunal shall, for the purpose of making an inquiry under this Act, have the same powers as are vested in a civil court under the CPC, 1908 (5 of 1908) while trying a suit, in respect of the following mattes, namely:
(a) the summoning and enforcing the attendance of any witness and examining him on oath;
(b) the discovery and production of any document or other material object producible as evidence;
(c) the reception of evidence on affidavits;
(d) the requisitioning of any public record from any court or office;
(e) the issuing of any commission for the examination of witnesses.
(7) Any proceeding before the Tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code
(45 of 1860) and the Tribunal shall be deemed to be a civil court for the purposes of Section 195 and Chapter XXXV of the CrPC, 1898 (5 of 1898).
6. Period of operation and cancellation of notification, - (1) Subject to the provisions of Sub-section (2), a notification issued under Section 3 shall, if the declaration made therein is confirmed by the Tribunal by an order made under
Section 4, remain in force for a period of two years from the date on which the notification becomes effective. (2) Notwithstanding anything contained in Subsection (1), the Central Government may, either on its own motion or on the application of any person aggrieved, at any time, cancel the notification issued under Section 3, whether or not the declaration made therein has been confirmed by the Tribunal.
7. Power to prohibit the use of funds of an unlawful association.-....
8. Power to notify places for the purpose of an unlawful association. - (1) Where an association has been declared unlawful by a notification issued under Section
3 which has become effective under Sub-section (3) of that Section, the Central
Government may, by notification in the Official Gazette, notify any place which in its opinion is used for the purpose of such unlawful association.
Explanation. - For the purposes of this sub-section, "place" includes a house or building, or part thereof, or a tent or vessel. xxxxxxxxx (3) If, in the opinion of the District Magistrate, any articles specified in the list are or may be used for the purpose of the unlawful association, he may make an order prohibiting any person from using the articles save in accordance with the written orders of the District Magistrate. xxxxxxxxx (8) Any person aggrieved by a notification issued in respect of a place under Subsection (1) or by an order made under Sub-section (3) or Sub-section (4) may, within thirty days from the date of the notification or order, as the case may be, make an application to the Court of the District Judge within the local limits of whose jurisdiction such notified place is situate (a) for declaration that the place has not been used for the purpose of the unlawful association; or
(b) for setting aside the order made under Sub-section (3) or Sub-section (4), and on receipt of the application the Court of the District Judge shall, after giving the parties an opportunity of being heard, decide the question.
9. Procedure to be followed in the disposal of applications under this Act. - Subject to any rules that may be made under this Act, the procedure to be followed by the tribunal in holding any inquiry under Sub-section (3) of Section 4 or by a court of a District Judge in disposing of any application under Sub-section (4) of Section
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7 or Sub-section (8) of Section 8 shall, so far as may be, be the procedure laid down in the CPC, 1908 (5 of 1908), for the investigation of claims and the decision of the Tribunal or the Court of the District Judge, as the case may be, shall be final.
CHAPTER III
OFFENCES AND PENALTIES
10. Penalty for being members of an unlawful association. - Whoever is and continues to be a member of an association declared unlawful by a notification issued under Section 3 which has become effective under Sub-section (3) of that section, or takes part in meetings of any such unlawful association, or contributes to, or receives or solicits any contribution for the purpose of, any such unlawful association, or in any way assists the operations of any such unlawful association, shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine.
11. Penalty for dealing with funds of an unlawful association. - If any person on whom a prohibitory order has been served under Sub-section (1) of Section 7 in respect of any moneys, securities or credits pays, delivers, transfers or otherwise deals in any manner whatsoever with the same in contravention of the prohibitory order, he shall be punishable with imprisonment for a term which may extend to three years, or with fine or with both, and notwithstanding anything contained in the CrPC, 1898 (5 of 1898), the court trying such contravention may also impose on the person convicted an additional fine to recover from him the amount of the moneys or credit or the market value of the securities in respect of which the prohibitory order has been contravened or such part thereof as the court may deem fit. 12. Penalty for contravention of an order made in respect of a notified place. - (1)
Whoever uses any article in contravention of a prohibitory order in respect thereof made under Sub-section (3) of Section 8 shall be punishable with imprisonment for a term which may extend to one year, and shall also be liable to fine.
(2) Whoever knowingly and wilfully is in, or effects or attempts to effect entry into, a notified place in contravention of an order made under Sub-section (4) of
Section 8 shall be punishable with imprisonment for a term which may extend to one year, and shall also be liable to fine.
13. Punishment of unlawful activities. - (1) Whoever(a) takes part in or commits, or
(b) advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable with imprisonment or a term which may extend to seven years, and shall also be liable to fine.
(2) Whoever, in any way, assists any unlawful activity of any association, declared unlawful under Section 3, after the notification by which it has been so declared has became effective under Sub-section (3) of that section, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both. (3) Nothing in this section shall apply to any treaty, agreement or convention entered into between the Government of India and the Government of any other country or to any negotiations therefore carried on by any person authorised in this behalf by the Government of India.
14. Offences to be cognizable. - Notwithstanding anything contained in the CrPC,
1898 (5 of 1898), an offence punishable under this Act shall be cognizable.
The Unlawful Activities (Prevention) Rules, 1968
2. Definitions. - In these rules, unless the context otherwise requires,-
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(a) "the Act" means the Unlawful Activities (Prevention) Act, 1967 (37 of 1967);
(b) "section" means a section of the Act;
(c) words and expressions used in these rules but not defined, and defined in the
Act, shall have the meanings respectively assigned to them in the Act.
3. Tribunal and District Judge to follow rules of evidence. - (1) In holding an inquiry under Sub-section (3) of Section 4 or disposing of any application under sub-section (4) of Section 7 or Sub-section (8) of Section 8, the Tribunal or the District Judge, as the case may be, shall, subject to the provisions of Sub-rule (2), follow, as far as practicable, the rules of evidence laid down in the Indian Evidence Act, 1872
(1 of 1872).
(2) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of
1872), where any books of account or other documents have been produced before the Tribunal or the Court of the District Judge by the Central Government and such books of account or other documents are claimed by that Government to be of a confidential nature then, the Tribunal or the Court of the District Judge, as the case may be, shall not,(a) make such books of account or other documents a part of the records of proceedings before it, or
(b) allow Section of, or grant a copy of, the whole of or any extract from, each books of account or other documents by or to any person other than a party to the proceedings before it. xxxxxxxxx 5. Documents which should accompany a reference to the Tribunal. - Every reference made to the Tribunal under Sub-section (1) of Section 4 shall be accompanied by -(i) a copy of the notification made under Sub-section (1) of
Section 3, and (ii) all the facts on which the grounds specified in the said notification are based: Provided that nothing in this rule shall require the Central
Government to disclose any fact to the Tribunal which that Government considers against the public interest to disclose. xxxxxxxxx 14. Power of Tribunal or District Judge to sit in private. - Where any request is made by the Central Government so to do, it shall be lawful for the Tribunal or the District Judge, as the case may be, to sit in private and to admit at such sitting such persons whose presence is considered by the Tribunal or the District Judge, as the case may be, to be necessary for the proper determination of the matter before it or him.
… In our opinion, the above scheme of the Act clearly brings out the distinction between this statute and the scheme in the preventive detention laws making provision therein for an
Advisory Board to review the detention. The nature of the inquiry preceding the order made by the Tribunal under Section 4 of the Act, and its binding effect, give to it the characteristic of a judicial determination distinguishing it from the opinion of the Advisory Board under the preventive detention laws.
In Section 4, the words "adjudicating" and "decide" have a legal connotation in the context of the inquiry made by the Tribunal constituted by a sitting Judge of a High Court. The
Tribunal is required to "decide ' after 'notice to show cause ' by the process of "adjudicating ' the points in controversy. These are the essential attributes of a judicial decision.
… The reference to the Tribunal is for the purpose of adjudicating whether or not there is sufficient cause for declaring the association unlawful. Obviously the purpose is to obtain a
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judicial confirmation of the existence of sufficient cause to support the action taken. The confirmation is by a sitting High Court Judge after a judicial scrutiny of the kind indicated.;
This being the nature of inquiry and the purpose for which it is conducted, the materials on which the adjudication is to be made with opportunity to show cause given to the association, must be substantially in consonance with the materials required to support a judicial determination. Reference may be made at this stage to the decision in State of Madras v. V.G.
Row 1952CriLJ966 on which both sides place reliance.
In State of Madras v. V.G. Row AIR 1952 SC 196 the question for decision related to the constitutional validity of a law empowering the Suite to declare associations illegal by notification, wherein there was no provision for judicial inquiry or for service of notification on the association or its office bearers. The absence of a provision for judicial inquiry and notice to the association of the basis for the action taken was held to be an unreasonable restriction on the right to form associations under Article 19(1)(c) read with Article 19(4) of the Constitution as it then stood. By the Constitution (Sixteenth Amendment) Act, 1963, the expression "the sovereignty and integrity of India or" was inserted prior to '"public order or morality" to permit reasonable restrictions to be imposed also in the interests of the sovereignty and integrity of India in addition to those in the interests of public order or morality. The significance, however, is that in V.G.Row, the absence of a provision for judicial inquiry to scrutinise the reasonableness of restrictions on the exercise of the right conferred by Sub-clause (c) of Clause (1) of Article 19 was the ground on which the law was held to be constitutionally invalid. The test of reasonableness of the restrictions imposed was indicated thus: It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.
The argument of the learned Attorney General in V.G. Row placing reliance on the decision in Dr. N.B. Khare v. State of Delhi AIR 1950 SC 211, wherein the subjective satisfaction of the Government regarding the necessity for the externment of a person coupled with a reference of the matter to an Advisory Board was considered to be reasonable procedure for restricting the right conferred by Article 19(1)(b), was rejected. A distinction was drawn between the requirement for preventive detention or externment of a person with declaration of an association to be unlawful on the ground that the former was anticipatory or based on suspicion whereas the latter was based on grounds which are factual and capable of objective determination by the Court. This distinction was emphasised as under:
These grounds, taken by themselves, are factual and not anticipatory or based on suspicion. An association is allowed to be declared unlawful because it
"constitutes" a danger or "has interfered or interferes" with the maintenance of public order or "has such interference for its object", etc. The factual existence of these grounds is amenable to objective determination by the court…
…For all these reasons the decision in Dr. Khare 's case is distinguishable and cannot rule the present case as claimed by the learned Attorney General. Indeed, as we have observed earlier, a decision dealing with the validity of restrictions imposed on one of the rights conferred by article 19(1) cannot have much value as a precedent for adjudging the validity of the restrictions imposed on another right, even when the constitutional criterion is the same, namely, reasonableness, as the conclusion must depend on the cumulative effect of the varying facts and circumstances of each case
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In our opinion, the test of factual existence of grounds amenable to objective determination by the court for adjudging the reasonableness of restrictions placed on the right conferred by Article 19(1)(c) to form associations, in the scheme of the Unlawful Activities
(Prevention) Act, 1967, is equally applicable in accordance with the decision in V.G. Row. It is, therefore, this test which mast determine the meaning and content of the adjudication by the Tribunal of the existence of sufficient cause for declaring the association to be unlawful under the Act. A different construction to equate the requirement of this Act with mere subjective satisfaction of the Central Government, when the power to declare an association to be unlawful depends on the factual existence of the grounds which are amenable to objective determination, would result in denuding the process of adjudication by the Tribunal of the entire meaning and content of the expression "adjudication".
As earlier maintained, the requirement of specifying the grounds together with the disclosure of the facts on which they are based and an adjudication of the existence of sufficient cause for declaring the association to be unlawful in the form of decision after considering the cause, if any shown by the association in response to the show cause notice issued to it, are all consistent only with an objective determination of the points in controversy in a judicial scrutiny conducted by a Tribunal constituted by a sitting High Court Judge, which distinguishes the scheme under this Act with the requirement under the preventive detention laws to justify the anticipatory action of preventive detention based on suspicion reached by a process of subjective satisfaction. The scheme under this Act requiring adjudication of the controversy in this manner makes it implicit that the minimum requirement of natural justice must be satisfied, to make the adjudication meaningful. No doubted, the requirement of natural justice in a case of this kind must be tailored to safeguard public interest which must always outweigh t every lesser interest. This is also evident from the fact that the proviso to Subsection (2) of Section 3 of the Act itself permits the Central Government to withhold the disclosure of acts which it considers to be against the public interest to disclose. Similarly,
Rule 3(2) arid the proviso to Rule 5 of the Unlawful Activities (Prevention) Rules, 1968 also permit nondisclosure of confidential documents and information which the Government considers against; the public interest to disclose. Thus, subject to the non-disclosure of information which the Central Government considers to be against the public interest to disclose, all information and evidence relied on by the Central Government to support the declaration made by it of an association to be unlawful, has to be disclosed to the association to enable it to show cause against the same. Rule 3 also indicates that as far as practicable the rules of evidence laid down: in the Indian Evidence Act, 1872 must be followed. A departure has to be made only when the public interest so requires. Thus, subject to the requirement of public interest which must undoubtedly outweigh the interest of the association and its members, the ordinary rules of evidence and requirement of natural justice must be followed by the Tribunal in making the adjudication under the Act.
To satisfy the minimum requirements of a proper adjudication, it is necessary that the
Tribunal should have the means to ascertain the credibility of conflicting evidence relating to the points in controversy. Unless such a means is available to the Tribunal to determine the credibility of the material before it, it cannot choose between conflicting material and decide which one to prefer and accept. In such a situation, the only option to it would be to accept the opinion of the Central Government, without any means to test the credibility of the material on which it is based. The adjudication made would cease to be an objective determination and be meaningless, equating the process with mere acceptance of the ipse dixit of the Central
Government. The requirement of adjudication by the Tribunal contemplated under the Act does not permit abdication of its function by the Tribunal to the Central Government providing merely its stamp of approval to the opinion of the Central Government. The procedure to be followed by the Tribunal must therefore, be such which enables the Tribunal to itself assess
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the credibility of conflicting material on any point in controversy and evolve a process by which it can decide whether to accept the version of the Central Government or to reject it in the light of the other view asserted by the association. The difficulty in this sphere is likely to arise in relation to the evidence or material in respect of which the Central Government claims non-disclosure on the ground of public interest.
It is obvious that the unlawful activities of an association may quite often be clandestine in nature and, therefore, the source of evidence of the unlawful activities may require continued confidentiality in public interest. In such a situation, disclosure of the source of such information, and, may be, also full particulars thereof, is likely to be against the public interest.
The scheme of the Act and the procedure for inquiry indicated by the Rules framed thereunder provide for maintenance of confidentiality, whenever required in public interest. However, the non-disclosure of sensitive information and evidence to the association and its office bearers, whenever justified in public interest, does not necessarily imply its non-disclosure to the Tribunal as well. In such cases where the Tribunal is satisfied that non-disclosure of such information to the association or its office bearers is in public interest, it may permit its nondisclosure to the association or its office bearers, but in order to perform its task of adjudication as required by the Act, the Tribunal can look into the same for the purpose of assessing the credibility of the information and satisfying itself that it can safely act on the same. In such a situation, the Tribunal can devise a suitable procedure whereby it can itself examine and test the credibility of such material before it decides to accept the same for determining the existence of sufficient cause for declaring the association to be unlawful. The materials need not be confined only to legal evidence in the strict sense. Such a procedure would ensure that the decision of the Tribunal is an adjudication made on the points in controversy after assessing the credibility of the material it has chosen to accept, without abdicating its function by merely acting on the ipse dixit of the Central Government. Such a course would satisfy the minimum requirement of natural justice tailored to suit the circumstances of each case, while protecting the rights of the association and its members, without jeopardising the public interest. This would also ensure that the process of adjudication is not denuded of its content and the decision ultimately rendered by the Tribunal is reached by it on all points in controversy after adjudication and not by mere acceptance of the opinion already formed by the Central Government.
… An authorised restriction saved by Article 19(4) on the freedom conferred by Article
19(1)(c) of the Constitution has to be reasonable. In this statute, provision is made for the notification to become effective on its confirmation by a Tribunal constituted by a sitting High
Court Judge, on adjudication, after a show cause notice to the association, that sufficient cause exists for declaring it to be unlawful. The provision for adjudication by judicial scrutiny, after a show cause notice, of existence of sufficient cause to justify the declaration mast necessarily imply and import into the inquire, the minimum requirement of natural justice to ensure that the decision of the Tribunal is its own opinion, formed on the entire available material, and not a mere imprimatur of the Tribunal affixed to the opinion of the Central Government.
Judicial scrutiny implies a fair procedure to prevent the vitiating element of arbitrariness.
What is the fair procedure in a given case, would depend on the materials constituting the factual foundation of the notification and the manner in which the Tribunal can assess its true worth. This has to be determined by the Tribunal keeping in view the nature of its scrutiny, the minimum requirement of natural justice, the fact that the materials in such matters are not confined to legal evidence in the strict sense, and that the scrutiny is not a criminal trial. The
Tribunal should form its opinion on all the points in controversy after assessing for itself the
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credibility of the material relating to it, even though it may not be disclosed to the association, if the public interest so requires.
It follows that, ordinarily, the material on which the Tribunal can place reliance for deciding the existence of sufficient cause to support the declaration, must be of the kind which is capable of judicial scrutiny. In this context, the claim of privilege on the ground of public interest by the Central Government would be permissible and the Tribunal is empowered to devise a procedure by which it can satisfy itself of the credibility of the material without disclosing the same to the association, when public interest so requires. The requirements of natural justice can be suitably modified by the Tribunal to examine the material itself in the manner it considers appropriate, to assess its credibility without disclosing the same to the association. This modified procedure would satisfy the minimum requirement of natural justice and judicial scrutiny. The decision would then be that of the Tribunal itself.
On the above construction made of the provisions of the Act, the alternative argument relating to constitutionality does not merit consideration. Having indicated the requirements of a valid adjudication by the Tribunal made under the Act, we now proceed to examine the merits of this case.
The allegations made by the Central Government against the association - Jamaat-EIslami Hind - were totally denied. It was, therefore, necessary that the Tribunal should have adjudicated the controversy in the manner indicated. Shri Soli J. Sorabjee, learned Counsel for the association, Jamaat-E-Islami Hind, contended that apart from the allegations made being not proved, in law such acts even if proved, do not constitute "unlawful activity" within the meaning of that expression defined in the Act. In the present case, the alternative submissions of Shri Sorabjee does not arise for consideration on the view we are taking on his first submission. The only material produced by the Central Government to support the notification issued by it under Section 3(1) of the Act, apart from a resume based on certain intelligence reports, are the statements of Shri T.N. Srivastava, Joint Secretary, Ministry of
Home Affairs and Shri N.C. Padhi, Joint Director, I.B. Neither Shri Srivastava nor Shri Padhi was dosed to any fact on the basis of personal knowledge. Their entire version is based on official record. The resume is based on intelligence reports submitted by persons whose names have not been disclosed on the ground of confidentiality. In other words, no person has deposed from personal knowledge whose veracity could be tested by cross-examination.
Assuming that it was not in public interest to disclose the identity of those persons or to produce them for cross-examination by the other side, some method should have been adopted by the Tribunal to test the credibility of their version. The Tribunal did not require production of those persons before it, even in camera, to question them and test the credibility of their version. On the other hand, the persons to whom the alleged unlawful acts of the association are attributed filed their affidavits denying the allegations and also deposed as witnesses to rebut these allegations. In such a situation, the Tribunal had no means by which it could decide objectively, which of the two conflicting versions to accept as credible. There was thus no objective determination of the factual basis for the notification to amount to adjudication by the Tribunal, contemplated by the statue. The Tribunal has merely proceeded to accept the version of the Central Government without taking care to know even itself the source from which it came or to assess credibility of the version sufficient to inspire confidence justifying its acceptance in preference to the sworn denial of the witnesses examined by the other side.
Obviously, the Tribunal did not properly appreciate and fully comprehend its role in the scheme of the statute and the nature of adjudication required to be made by it. The order of the Tribunal cannot, therefore, be sustained.
In this view of the matter, the challenge to the constitutionality of the said Act made in the writ petition does not survive. Needless to say, our conclusion on the appeal is based upon
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the material placed before the Tribunal and its treatment of it. Our conclusion shall not be taken to debar action under the said Act against the association hereafter if the necessary material is available.
Consequently, the civil appeal is allowed. The order dated 11.4.1994 passed by the
Tribunal is quashed. The writ petition is dismissed.
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UNIT 6 – RIGHTS OF THE ACCUSED IN CRIMINAL TRIALS
(ARTICLE 20)
PROTECTION AGAINST SELF INCRIMINATION
STATE OF BOMBAY V. KATHI KALU OGHAD
AIR 1961 SC 1808
BENCH – CHIEF JUSTICE B. P. SINHA, JUSTICES S. J. IMAM, S. K. DAS, P. B.
GAJENDRAGADKAR, A. K. SARKAR, K. SUBBA RAO, K. N. WANCHOO, K. C. DAS GUPTA,
RAGHUBAR DAYAL, N. R. AYYANGAR & J. R. MUDHOLKAR
CHIEF JUSTICE SINHA (for Justices Imam, Gajendragadka, Subba Rao, Wanchoo, Dayal,
Ayyangar, Mudholkar and himself, MAJORITY OPINION)
These appeals have been heard together only insofar as they involve substantial questions of law as to the interpretation of the Constitution, with particular reference to clause (3) of
Article 20. This larger Bench was constituted in order to re-examine some of the propositions of law laid down by this Court in the case of M. P. Sharma v. Satish Chandra, 1978 (2) ELT
287 (SC), because when one of these cases was heard by five of us, we felt that some of the propositions therein laid down may have been too widely stated, and, therefore, required to be re-stated with more particularity. We have not heard counsel for the parties on the merits of the orders passed by the Courts below, but have confined the discussions at the Bar, insofar as they had any bearing on the questions of law relating to the interpretation of clause (3) of
Article 20 of the Constitution.
It is not necessary to state in any detail the facts of each of the cases now before us. We shall, therefore, state only so much of the facts as have occasioned calling in aid of the provisions of clause (3) of Article 20 of the Constitution. In the first case, namely, Criminal
Appeal 146 of 1958, the State of Bombay is the appellant. The respondent was charged, alongwith another person, under section 302, read with section 34 of the I. P. C., as also under section 19(e) of the Indian Arms Act (XI of 1878). The Trial Court found him guilty of those charges and sentenced him to imprisonment for life under section 302, read with section 34 of the I.P.C. and to a term of two years rigorous imprisonment for the offence under the Arms
Act. At the trial the identification of the respondent, as one of the two alleged culprits, was the most important question to be decided by the Court. Besides other evidence, the prosecution adduced in evidence a chit-Ex. 5 alleged to be in his handwriting and said to have been given by him. In order to prove that Ex. 5 was in the handwriting of the respondent, the police had obtained from him, during the investigation, three specimen handwritings of his on three separate sheets of paper which were marked as Exs. 27, 28 and 29. The disputed document, namely, Ex. 5 was compared with the admitted handwritings on Exs. 27, 28 and 29 by the Handwriting Expert whose evidence was to the effect that they are all writings by the same person. At the trial and in the High Court, the question was raised as to the admissibility of the specimen writings contained in Exs. 27, 28 and 29, in view of the provisions of Article
20(3) of the Constitution. It is an admitted fact that those specimen writings of the accused had been taken by the police while he was in police custody, but it was disputed whether the accused had been compelled to give those writings within the meaning of clause (3) of
Article 20.
The plea of the accused that he was forced by the Deputy Superintendent of Police to give those writings has not been accepted by the learned Trial Judge. But those documents have been excluded from consideration, as inadmissible evidence, on the ground that though there
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was no threat or force used by the police in obtaining those writings from the accused person, yet in the view of the Court "the element of compulsion was implicit in his being at that time in police custody." In this conclusion both the Trial Judge and the High Court have agreed.
The identification of the accused person was also sought to be proved by the evidence of witnesses, who identified him at an identification parade. But the holding of the identification parade has not been sought to be brought within the prohibition of clause (3) of Article 20.
After eliminating the Exs. 27, 28 and 29 from their consideration, the High Court, on a consideration of the other evidence in the case, came to the conclusion that the identity of the respondent had not been established beyond a reasonable doubt. Hence, giving him the benefit of doubt, they acquitted him. The State of Bombay moved this Court and obtained special leave to appeal from the Judgment and Order of acquittal, passed by the High Court.
On these facts, the only questions of constitutional importance that this Bench has to determine are: (1) whether by the production of the specimen handwritings - Exs. 27, 28, and
29 - the accused could be said to have been 'a witness against himself ' within the meaning of
Article 20(3) of the Constitution; and (2) whether the mere fact that when those specimen handwritings had been given, the accused person was in police custody could, by itself, amount to compulsion, apart from any other circumstances which could be urged as vitiating the consent of the accused in giving those specimen handwritings. This Bench is not concerned with the further question whether in all the circumstances disclosed by the evidence in this case, the accused could be said to have been compelled, as a matter of fact, to give those specimens. In Criminal Appeals 110 and 111 of 1958, which arose out of the same set of facts, the accused person has been convicted by the Courts below under sections 380 and 457 of the I.
P. C., as also under section 19(f) of the Indian Arms Act. The facts of the case necessary for bringing out the points in controversy are that a shop in Hissar in Punjab was burgled. In the course of the burglary four double-barrelled guns, one single-barrelled gun and a rifle were stolen. During his interrogation by the police at the investigation stage, the appellant is alleged to have given the information that out of the arms stolen from the shop at Hissar he had buried one .22 bore rifle, two .12 bore double-barrelled guns and one .18 single-barrelled gun at a certain place. It is alleged that as a consequence of the information thus given by the accused and on his pointing out the exact location where these buried articles could be found, the rifles and guns were actually recovered. During the investigation the police had taken possession of certain glass panes and phials from the burgled shop which bore some palm and finger impressions (Exs. P10 to P12). In order to compare the impressions on those glass panes and phials with those of the accused, the investigating police officer got the impressions of the palms and fingers of the accused taken in the presence of a Magistrate. On the evidence adduced by the prosecution, including the fact of the recovery of the firearms and the evidence of the identity of the impressions of the accused taken as aforesaid, he was convicted and sentenced by the Courts below to certain terms of imprisonment and was also ordered to pay a fine of one thousand rupees. On appeal, the sentence of fine and imprisonment was modified by the Court of Appeal. In revision in the High Court, both the revisional applications were dismissed. The convicted person prayed for and obtained the necessary certificate of fitness under Article134(1)(c) of the Constitution from the High Court of Punjab. The points raised in this Court were: (1) that section 27 of the Indian Evidence Act is violative of Article 14 of the Constitution; and (2) the impressions of the appellant 's palms and fingers taken from him after his arrest, which were compared with the impressions on the glass panes and phials, were not admissible evidence in view of the provisions of Article 20(3) of the Constitution. Though the provisions of sections 5 and 6 of the Identification of Prisoners Act, 1920, (XXXIII of
1920) have not in terms been attacked as ultra vires Article 20(3) of the Constitution, the effect of the argument based on that article is to bring into controversy the constitutionality of
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sections 5 and 6 of the Act. As a matter of fact, one of the propositions of law to be urged in support of the appeals is stated in these terms; "that sections 5 and 6 of the Identification of
Prisoners Act, 1920, read with Article 20(3) of the Constitution render the evidence of measurements to be inadmissible".
In the last case, Criminal Appeal 174 of 1959, the State of West Bengal has preferred this appeal by special leave granted by this Court under Article 136(1) of the Constitution against the judgment and order of the High Court at Calcutta dated June 4, 1959, passed in its revisional jurisdiction, against an order of the Magistrate, First Class, Howrah, directing the respondent to give his specimen writing and signature, under section 73 of the Indian Evidence
Act. It is only necessary to state the following facts in order to bring out the questions of law bearing on the interpretation of the Constitution. During the investigation of a criminal case relating to trafficking in contraband opium, the respondent 's residence was searched and certain quantity of contraband opium was alleged to have been found in his possession. The respondent, along with another person, was produced before a Magistrate of the Ist Class at
Howrah and was later released on bail. From the materials and Statements obtained during the investigation of the case by the police, it was considered that there were reasonable grounds to believe that the endorsement on the back of certain railway receipts for consignment of goods seized at Howrah Railway Station was in the handwriting of the respondent, and it was, therefore, necessary to take his specimen writing and signature for the purpose of comparison and verification, When the accused were produced before the Magistrate, the Investigating
Officer made a prayer to the Magistrate for taking specimen writing and signature of the respondent. On an adjourned date when the accused persons, including the respondent were present in the Court of the Magistrate, the respondent declined to give his specimen writing and signature, contending that Article 20(3) of the Constitution prohibited any such specimens being taken against the will of the accused. After hearing the parties, the learned Magistrate overruled the objection on behalf of the accused and allowed the prayer by the prosecution for taking the specimen writing and signature of the respondent. The respondent moved the High
Court at Calcutta under section 439 of the Cr. P. C. and Article 20(3) of the Constitution. The case was heard by a Division Bench consisting of J. P. Mitter and Bhattacharyya, JJ, on July
2 and 3, 1958, but the judgment was not delivered until the 4th of June, 1959. The Court held that the prohibition contained in Article 20(3) of the Constitution applied to the case of writing and signature to be taken, as directed by the learned Magistrate. The Court relied upon the decision of this Court in M. P. Sharma 's case, 1978 (2) ELT 287 (SC). In coming to this conclusion, the Division Bench disagreed with the previous decision of another Division
Bench of that Court in the case of Sailendra Nath Sinha v. State, [1955] A.I.R. Cal. 247, which has laid down that a mere direction under section 73 of the Evidence Act to a person accused of an offence to give his specimen writing did not come within the prohibition of
Article 20(3) of the Constitution. The earlier Bench further held that the decision of this Court in Sharma 's case, 1978 (2) ELT 287 (SC), referred to above, did not govern the case of direction given by the Court under section 73 of the Evidence act for giving specimen writing.
Instead of referring the question to a larger Bench, the later Division Bench took upon itself to pronounce against the considered view of that Court in the earlier decision. The State of
West Bengal naturally had to come up to this Court to get the constitutional issues determined because the issues raised were of far-reaching importance in the investigation and trial of criminal cases. The main question which arises for determination in this appeal is whether a direction given by a Court to an accused person present in Court to give his specimen writing and signature for the purpose of comparison under the provisions of section 73 of the Indian
Evidence Act infringes the fundamental right enshrined in Article 20(3) of the Constitution.
The arguments at the Bar may be classified as taking three distinct lines. The first line, on the one extreme, may be said to have been taken by Mr. Sikri, the Advocate General of Punjab,
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and which may be characterised as a narrow view, runs as follows: Clause (3) aforesaid, in view of its setting, its history and the policy underlying, the privilege accorded by the
Constitution to an accused person, should not be applied at the stage of investigation of an offence. It should be confined to cases of compulsory extraction of incriminating Statements or communications by an accused person in Court, the expression 'compelled to be a witness ' being understood as meaning 'being compelled to give oral testimony '. It does not include the compulsory production of documents. Similarly, it does not prohibit the compulsory exhibition or examination of the body of the accused, or any part of it, or the taking of specimen writing, thumb impression, impression of the palm or the feet or the fingers of an accused. Whether or not there has been compulsion should be judged by the nature of the action taken by the authority, or the Court that determines the controversy, and not the state of mind of the accused.
On the other extreme is the argument by Mr. S. P. Varma, for the accused in the first case, who contended that the clause aforesaid of the Constitution gives complete protection of the widest amplitude to an accused person, irrespective of the time and place and of the nature of the evidence, whether it is oral or documentary or material. The extreme form, which his argument took can best be stated in his own words as follows : "Anything caused, by any kind of threat or inducement, to be said or done, by a person, accused or likely to be accused of any offence, by non-voluntary positive act or speech of that person which furthers the cause of any prosecution against him or which results or is likely to result in the incrimination of that person qua any offence, is violative of the fundamental right guaranteed under clause (3) of
Article 20 of the Constitution of India". According to his argument, if an accused person makes any statement or any discovery, there is not only a rebuttable presumption that he had been compelled to do so, but that it should be taken as a conclusive proof of that inferential fact. Any kind of inducement, according to him, is also included in the expression 'compulsion ' by the police or elsewhere. The test, according to him, is not the volition of the accused but the incriminatory nature of the statement or communication. Hence, any statement made to a police officer, while in police custody, brings the same within the prohibitory ambit of the clause of the Constitution. On the face of them, the propositions propounded by Mr. Varma are much too broadly and widely stated to be accepted.
The third view, which may be characterised as an intermediate view, was advocated by the learned Attorney General, appearing for the Union. According to him, a person seeking protection under the clause must satisfy all the four constituent elements contained in clause
(3) of Article 20, namely, (1) he must be an accused person; (2) he must have been compelled;
(3) the compulsion must be to be a witness; and (4) against himself. Compulsion, according to him, means coercion or constraint and does not include mere asking by the police to do a certain thing or the direction by a court to give a thumb impression or specimen writing. In other words, compulsion has to be equated to what has been sometimes characterised as "third degree" methods to extort confessional statements. "To be witness" is an expression which must be understood in consonance with the existing law of evidence and criminal procedure,
e. g. sections 27 and 73 of the Evidence Act and sections 94 and 96 of the Code of Criminal
Procedure. Though, according to English Law, the expression is confined to oral testimony, he was prepared to go to the length of conceding that any statement, whether oral or in writing by any accused person, transmitting his knowledge disclosing relevant facts of which he was aware, would amount to 'bring a witness ' against himself. But mere production of some material evidence, by itself, would not come within the ambit of the expression 'to be a witness '.
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The several questions for decision arising out of this batch of cases have to be answered with reference to the provisions of clause (3) of Article 20 of the Constitution which is in these terms :"No person accused of any offence shall be compelled to be a witness against himself." These provisions came up for consideration by the Full Court in the case of M. P. Sharma
v. Satish Chandra, 1978 (2) ELT 287 (SC). Though the question directly arising for decision in that case was whether a search and seizure of documents under the provisions of sections
94 and 96 of the Code of Criminal Procedure came within the ambit of the prohibition of clause (3) of Article 20 of the Constitution, this Court covered a much wider field. Besides laying down that the search and seizure complained of in that case were not within the prohibition, this Court examined the origin and scope of the doctrine of protection against self-incrimination with reference to English Law and the Constitution of the United States of
America, with particular reference to the Fourth and Fifth Amendments. On an examination of the case law in England and America and the standard text books on Evidence, like Phipson and Wigmore, and other authorities, this Court observed as follows :"Broadly stated the guarantee in Article 20(3) is against "testimonial compulsion".
It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in article 20(3) is "to be a witness". A person can "be a witness" not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (see section 119 of the Evidence Act) or the like. "To be a witness" is nothing more than "to furnish evidence", and such evidence can be furnished through lips or by production of a thing or of a document or in other modes. So far as production of documents is concerned, no doubt section 139 of the Evidence Act says that a person producing a document on summons is not a witness. But that section is meant to regulate the right of cross-examination. It is not a guide to the connotation of the word "witness", which must be understood in its natural sense, i. e., as referring to a person who furnishes evidence. Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in article 20(3) is "to be a witness" and not to "appear as a witness": It follows that the protection afforded to an accused in so far as it is related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been leveled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case. "
This Court did not accept the contention that the guarantee against testimonial compulsion is to be confined to oral testimony at the witness stand when standing trial for an offence. The guarantee was, thus, held to include not only oral testimony given in court or out of court, but also to Statements in writing which incriminated the maker when figuring as an accused person. After having heard elaborate arguments for and against the views thus expressed by this Court after full deliberation, we do not find any good reasons for departing from those views. But the Court went on to observe that "to be a witness" means "to furnish evidence" and includes not only oral testimony or Statements in writing of the accused but also
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production of a thing or of evidence by other modes. It may be that this Court did not intend to lay down - certainly it was not under discussion of the Court as a point directly arising for decision - that calling upon a person accused of an offence to give his thumb impression, his impression of palm or fingers or of sample handwriting or signature comes within the ambit of "to be a witness" which has been equated to "to furnish evidence". Whether or not this
Court intended to lay down the rule of law in those wide terms has been the subject matter of decisions in the different High Courts in this country. Those decisions are, by no means, uniform; and conflicting views have been expressed even in the same High Court on different occasions. It will serve no useful purpose to examine those decisions in detail. It is enough to point out that the most recent decision, to which our attention was called, is of a Full Bench of the Kerala High Court in the case of State of Kerala v. K. K. Sankaran Nair, AIR 1960 Ker.
392. In that case, Ansari C.J., who delivered the opinion of the Court, has made reference to and examined in detail the pronouncements of the different High Courts. Ultimately he came to the conclusion that the decision of this Court in Sharma 's case, 1978 (2) ELT 287 (SC), also covered the case of a specimen handwriting given by an accused person, under compulsion. "To be a witness" may be equivalent to "furnishing evidence" in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. "Furnishing evidence" in the latter sense could not have been within the contemplation of the Constitution-makers for the simple reason that - though they may have intended to protect an accused person from the hazards of self-incrimination, in the light of the English Law on the subject - they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice.
Furthermore it must be assumed that the Constitution-makers were aware of the existing law, for example, section 73 of the Evidence Act or sections 5 and 6 of the Identification of
Prisoners Act (XXXIII of 1920). Section 5 authorises a Magistrate to direct any person to allow his measurements or photographs to be taken if he is satisfied that it is expedient for the purposes of any investigation or proceeding under the Code of Criminal Procedure to do so. 'Measurements ' include finger impressions and foot-print impressions. If any such person who is directed by a Magistrate, under section 5 of the Act, to allow his measurements or photographs to be taken resists or refuses to allow the taking of the measurements or photographs, it has been declared lawful by section 6 to use all necessary means to secure the taking of the required measurements or photographs. Similarly, section 73 of the Evidence
Act authorises the Court to permit the taking of finger impression or a specimen handwriting or signature of a person present in Court, if necessary for the purpose of comparison.
The matter may be looked at from another point of view. The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not "to be a witness". "To be a witness" means imparting knowledge in respect of relevant fact, by means of oral Statements or Statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said 'to be a witness ' to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been classified by text writers into three categories, namely, (1) oral testimony; (2) evidence furnished by
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documents; and (3) material evidence. We have already indicated that we are in agreement with the Full Court decision in Sharma 's case, that the prohibition in clause (3) of
Article 20 covers not only oral testimony given by a person accused of an offence but also his written Statements which may have a bearing on the controversy with reference to the charges against him. The accused may have documentary evidence in his possession which may throw some light on the controversy. If it is a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the Court to produce that document in accordance with the provisions of section 139 of the Evidence Act, which, in terms, provides that a person may be summoned to produce a document in his possession or power and that he does not become a witness by the mere fact that he has produced it; and therefore, he cannot be cross-examined. Of course, he can be cross-examined if he is called as a witness who has made Statements conveying his personal knowledge by reference to the contents of the document or if he has given his Statements in Court otherwise than by reference to the contents of the documents.
In our opinion, therefore, the observations of this Court in Sharma 's case, that section
139 of the Evidence Act has no bearing on the connotation of the word 'witness ' is not entirely well-founded in law. It is well- established that clause (3) of Article 20 is directed against selfincrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony '. The giving of a 'personal testimony ' must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot changed their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness '.
In order that a testimony by an accused person may be said to have been selfincriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of 'testimony '.
Similarly, during the investigation of a crime by the police, if an accused person were to point out the place where the corpus delicti was lying concealed and in pursuance of such an information being given by an accused person, discovery is made within the meaning of section 27 of the Evidence Act, such information and the discovery made as a result of the
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information may be proved in evidence even though it may tend to incriminate the person giving the information, while in police custody. Unless it is held that the provisions of section 27 of the Evidence Act, in so far as they make it admissible evidence which has the tendency to incriminate the giver of the information, are unconstitutional as coming within the prohibition of clause (3) of Article 20, such information would amount to furnishing evidence. This Court in Sharma 's case, was not concerned with pronouncing upon the constitutionality of the provisions of section 27 of the Evidence Act. It could not, therefore, be said to have laid it down that such evidence could not be adduced by the prosecution at the trial of the giver of the information for an alleged crime. The question whether section 27 of the Evidence Act was unconstitutional because it offended Article 14 of the Constitution was considered by this court in the case of State of U. P. v. Deomen Upadhyaya, 1960 Cri. L.J.
1504. It was held by this Court that section 27 of the Evidence Act did not offend Article 14 of the Constitution and was, therefore, intra vires. But the question whether it was unconstitutional because it contravened the provisions of clause (3) of Article 20 was not considered in that case. That question may, therefore, be treated as an open one. The question has been raised in one of the cases before us and has, therefore, to be decided. The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by that Section. If it is not incriminatory of the person giving the information, the question does not arise. It can arise only when it is of an incriminatory character so far as the giver of the information is concerned.
If the self-incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of clause (3)
Article 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of section 27 of the Evidence Act are not within the prohibition aforesaid, unless compulsion has been used in obtaining the information.
In this connection the question was raised before us that in order to bring the case within the prohibition of clause (3) of Article 20, it is not necessary that the statement should have been made by the accused person at a time when he fulfilled that character; it is enough that he should have been an accused person at the time when the statement was sought to be proved in Court, even though he may not have been an accused person at the time he had made that statement. The correctness of the decision of the Constitution Bench of this Court in the case of Mohamed Dastagir v. State of Madras, 1960 Cri. L.J. 1159, was questioned because it was said that it ran counter to the observations of the Full Court in Sharma 's case. In the Full Court decision of this Court this question did not directly arise; nor was it decided. On the other hand, this Court in Sharma 's case held that the protection under Article 20(3) of the
Constitution is available to a person against whom a formal accusation had been leveled, inasmuch as a First Information Report had been lodged against him. Sharma 's case, therefore, did not decide anything to the contrary of what this Court said in Mohamed Dastagir. The latter decision in our opinion lays down the law correctly.
In order to bring the evidence within the inhibitions of clause (3) of Article 20 it must be shown not only that the person making the statement was an accused at the time he made it and that it had a material bearing on the criminality of the maker of the statement, but also that he was compelled to make that statement. 'Compulsion ' in the context, must mean what in law is called 'duress '. In the Dictionary of English Law by Earl Jowitt, 'duress ' is explained as follows:
"Duress is where a man is compelled to do an act by injury, beating or unlawful imprisonment (sometimes called duress in strict sense) or by the threat of being killed, suffering some grievous bodily harm, or being unlawfully imprisoned
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(sometimes called menace, or duress per minas). Duress also includes threatening, beating or imprisonment of the wife, parent or child of a person. "
The compulsion in this sense is a physical objective act and not the state of mind of the person making the statement, except where the mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and, therefore, extorted. Hence, the mere asking by a police officer investigating a crime against a certain individual to do a certain thing is not compulsion within the meaning of Article 20(3). Hence, the mere fact that the accused person, when he made the statement in question was in police custody would not, by itself, be the foundation for an inference of law that the accused was compelled to make the statement. Of course, it is open to an accused person to show that while he was in police custody at the relevant time, he was subjected to treatment which, in the circumstances of the case, would lend itself to the inference that compulsion was, in fact, exercised. In other words, it will be a question of fact in each case to be determined by the
Court on weighing the facts and circumstances disclosed in the evidence before it.
In view of these considerations, we have come to the following conclusions:(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more.
In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.
(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion '.
(3) 'To be a witness ' is not equivalent to 'furnishing evidence ' in its widest significance; that is to say, as including not merely making of oral or written Statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt innocence of the accused.
(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness '.
(5) 'To be a witness ' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.
(6) 'To be a witness ' in its ordinary grammatical sense means giving oral testimony in
Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.
(7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.
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JUSTICE K. C. DAS GUPTA (for Justice S. K. Das, A. K. Sarkar & himself, CONCURRING)
Is a person compelled "to be a witness" against himself within the meaning of
Article 20(3) of the Constitution when he is compelled to give his specimen handwriting or signature, or impressions of his fingers, palm or foot to the investigating officer? Is he compelled "to be a witness" against himself within the meaning of the same constitutional provisions when he is compelled to give his specimen handwriting and signature for the purpose of comparison under the provisions of section 73 of the Indian Evidence Act? These are the main questions canvassed before us and they have both been answered in the negative in the judgment just pronounced by my Lord the Chief Justice. We agree with these answers; but as we have reached the same conclusion, by a somewhat different approach, and for different reasons, these have to be briefly indicated.
The question as regards the meaning to be attached to the words "to be a witness" as used in Article 20(3) of the Constitution came up for consideration in M. P. Sharma 's Case, 1978
(2) ELT 287 (SC). It was heard by all the eight Judges who constituted the Court at the time, and they came to a unanimous decision. The Court in that case had to decide whether search and seizure of documents under sections 94 and 96 of the Code of Criminal Procedure is a compelled production of the same so as to infringe the provisions of Article 20(3) of the
Constitution. After pointing out that the guarantee in Article 20(3) was against "testimonial compulsion", Jagannadhadas J., speaking for the Court said:
"The phrase used in Article 20(3) is "to be a witness". A person can "be a witness" not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (see section 119 of the
Evidence Act) or the like. "To be a witness" is nothing more than "to furnish evidence" and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes."
He next observed that section 139 of the Evidence Act which says that a person producing a document on summons is not a witness, is really meant to regulate the right of crossexamination and cannot be "a guide to the connotation of the word "witness" in Article 20(3), which must be understood in its natural sense, i.e., as referring to a person who furnishes evidence", and then proceeded :"Indeed, every positive volitional act which furnishes evidence is testimony and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part".
It was further stated that there was no reason to think that the protection in respect of the evidence so procured was confined to what transpired at the trial in the court room.
If the learned Judges had hoped that by their exhaustive judgment they would end all disputes about the limits of the protection granted by Article 20(3), these hopes were soon shattered. Questions were before long raised before the different High Courts, as to whether on the interpretation of the words "to be a witness" given by this Court in Sharma 's Case, compelling an accused person to give his finger prints or impressions of palm or foot or a specimen handwriting in the course of investigation, amounted to an infringement of
Article 20(3). The conclusions reached by the different High Courts, and in one case at least, by two Benches of the same High Court were different. That is why it has become necessary to examine the question again, and see how far, if at all, the interpretation given in Sharma 's
Case requires modification.
The complaint against the interpretation given in Sharma 's Case is that it does not solve the problem as to what the words "to be a witness" mean; but merely postpones the difficulty, of solving it by substituting the words "to furnish evidence" for the words "to be a witness".
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It throws no light, it is said, on what is "furnishing evidence", and unless that is clear, little is gained by saying that "to be a witness" is to "furnish evidence". Rival interpretations were suggested before us which it was claimed on behalf of the protagonists will solve the problem once for all. One of the propositions put forward was that "to be a witness" as used in
Article 20(3) cannot refer to anything said or done at the stage of investigation of an offence.
We agree with our learned brethren that this is an unduly narrow construction. As was pointed out in Sharma 's Case, the phrase used in Article 20(3) is "to be a witness" and not "to appear as a witness". That by itself justifies the conclusion "that the protection afforded to an accused in so far as it is related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him". If the protection was intended to be confined to being a witness in Court then really it would have been an idle protection. It would be completely defeated by compelling a person to give all the evidence outside court and then, having what he was so compelled to do, proved in court through other witnesses. An interpretation which so completely defeats the constitutional guarantee cannot, of course, be correct. The contention that the protection afforded by Article 20(3) is limited to the stage of trial must therefore be rejected.
That brings us to the suggestion that the expression "to be a witness" must be limited to a statement whether oral or in writing by an accused person imparting knowledge of relevant facts; but that mere production of some material evidence, whether documentary or otherwise would not come within the ambit of this expression. This suggestion has found favour with the majority of the Bench; we think however that this is an unduly narrow interpretation. We have to remind ourselves that while on the one hand we should bear in mind that the
Constitution-makers could not have intended to stifle legitimate modes of investigation we have to remember further that quite clearly they thought that certain things should not be allowed to be done, during the investigation, or trial, however helpful they might seem to be to the unfolding of truth and an unnecessary apprehension of disaster to the police system and the administration of justice, should not deter us from giving the words their proper meaning.
It appears to us that to limit the meaning of the words "to be a witness" in Article 20(3) in the manner suggested would result in allowing compulsion to be used in procuring the production from the accused of a large number of documents, which are of evidentiary value, sometimes even more so than any oral statement of a witness might be. Suppose, for example, an accused person has in his possession, a letter written to him by an alleged co-conspirator in reference to their common intention in connection with the conspiracy for committing a particular offence. Under section 10 of the Evidence Act this document is the relevant fact as against the accused himself for the purpose of proving the existence of the conspiracy and also for the purpose of showing that any such person was a party to it. By producing this, the accused will not be imparting any personal knowledge of facts; yet it would certainly be giving evidence of a relevant fact. Again, the possession by an accused of the plan of a house where burglary has taken place would be a relevant fact under section 8 of the Evidence Act as showing preparation for committing theft. By producing this plan is he not giving evidence against himself? To a person not overburdened with technical learning, the giving of evidence, would appear to be the real function of a witness. Indeed English literature is replete with instances of the use of the word "witness" as meaning "evidence". To give one example; Shakespeare 's
Horation speaking to Hamlet says:"Season your admiration for a while with an attent ear, till I may deliver, Upon the witness of these gentlemen, This marvel to you" (Hamlet, Act I, Scene, II).
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There can be no doubt that to the ordinary user of English words, the word "witness" is always associated with evidence, so that to say that to be a witness is to furnish evidence is really to keep to the natural meaning of the words.
But, what is the purpose of evidence? Section 3 of the Indian Evidence Act defines evidence thus:"Evidence means and includes (1) all Statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such Statements are called oral evidence; (2) all documents produced for the inspection of the Court; such documents are called documentary evidence.”
Section 5 states that evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are "hereinafter declared to be relevant and of no others." Then follow several sections laying down what are relevant facts.
It is clear from the scheme of the various provisions, dealing with the matter that the governing idea is that to be evidence, the oral statement or a statement contained in a document, shall have a tendency to prove a fact - whether it be a fact in issue or a relevant fact
- which is sought to be proved. Though this definition of evidence is in respect of proceedings in Court it will be proper, once we have come to the conclusion, that the protection of
Article 20(3) is available even at the stage of investigation, to hold that at that stage also the purpose of having a witness is to obtain evidence and the purpose of evidence is to prove a fact. The illustrations we have given above show clearly that it is not only by imparting of his knowledge that an accused person assists the proving of a fact; he can do so even by others means, such as the production of documents which though not containing his own knowledge would have a tendency to make probable to existence of a fact in issue or a relevant fact.
Much has been written and discussed in England and America as regards the historical origin and development of the rules against "testimonial compulsion". These matters of history, however, interesting they be, need not detain us and we must also resist the temptation of referring to the numerous cases especially in America where the concept of "testimonial compulsion" has been analysed. It is sufficient to remember that long before our Constitution came to be framed the wisdom of the policy underlying these rules had been well recognised.
Not that there was no view to the contrary; but for long it has been generally agreed among those who have devoted serious though to these problems that few things could be more harmful to the detection of crime or conviction of the real culprit, few things more likely to hamper the disclosure of truth than to allow investigators or prosecutors to slide down the easy path of producing by compulsion, evidence, whether oral or documentary, from an accused person. It has been felt that the existence of such an easy way would tend to dissuade persons in charge of investigation or prosecution from conducting diligent search for reliable independent evidence and from sifting of available materials with the care necessary for ascertainment of truth. If it is permissible in law to obtain evidence from the accused person by compulsion, why treat the hard path of laborious investigation and prolonged examination of other men, materials and documents? It has been well said that an abolition of this privilege would be an incentive for those in charge of enforcement of law "to sit comfortably in the shade rubbing red pepper into a poor devil 's eyes rather than to go about in the sun hunting up evidence". (Stephen, History of Criminal Law, p. 442). No less serious is the danger that some accused persons at least, may be induced to furnish evidence against themselves which is totally false - out of sheer despair and an anxiety to avoid an unpleasant present. Of all these dangers the Constitution-makers were clearly well aware and it was to avoid them that
Article 20(3) was put in the Constitution. It is obvious however that these dangers remain the same whether the evidence which the accused is compelled to furnish is in the form of
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statements, oral or written about his own knowledge or in the shape of documents or things, which though not transmitting knowledge of the accused person directly helps the Court to come to a conclusion against him. If production of such documents, or things is giving evidence, then the person producing it is being a witness, on what principle or reason can it be said that this does not amount to "being a witness" within the meaning of Article 20(3)?
We find none.
We can therefore find no justification for thinking that "to be a witness" in
Article 20(3) means to impart personal knowledge and find no reason for departing from what this Court said in Sharma 's Case that "to be a witness" is nothing more than "to furnish evidence", and such evidence can be furnished through lips or by production of a thing or of a document or in other modes.
The question then is: Is an accused person furnishing evidence when he is giving his specimen handwriting or impressions of his fingers, or palm or foot? It appears to us that he is. For, these are relevant facts, within the meaning of section 9 and section 11 of the Evidence
Act. Just as an accused person is furnishing evidence and by doing so, is being a witness, when he makes a statement that he did something, or saw something, so also he is giving evidence and so is being a "witness", when he produces a letter the contents of which are relevant under section 10, or is producing the plan of a house where a burglary has been committed or is giving his specimen handwriting or impressions of his finger, palm or foot. It has to be noticed however that Article 20(3) does not say that an accused person shall not be compelled to be a witness. It says that such a person shall not be compelled to be a witness against himself. The question that arises therefore is: Is an accused person furnishing evidence against himself, when he gives his specimen handwriting, or impressions of his fingers, palm or foot? The answer to this must, in our opinion, be in the negative.
The matter becomes clear, when we contrast the giving of such handwriting or impressions, with say, the production of a letter admissible in evidence under section 10, or the production of the plan of a burgled house. In either of these two latter cases, the evidence given tends by itself to incriminate the accused person. But the evidence of specimen handwriting or the impressions of the accused person 's fingers, palm or foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other impressions, identity between the two set is established. By themselves, these impressions or the handwritings do not incriminate the accused person, or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself. So when an accused person is compelled to give a specimen handwriting or impressions of his finger, palm or foot, it may be said that he has been compelled to be a witness; it cannot however be said that he has been compelled to be a witness against himself.
This view, it may be pointed out, does not in any way militate against the policy underlying the rule against "testimonial compulsion" we have already discussed above. There is little risk, if at all, in the investigator or the prosecutor being induced to lethargy or inaction because he can get such handwriting or impressions from an accused person. For, by themselves they are of little or of no assistance to bring home the guilt of an accused. Nor is there any chance of the accused to mislead the investigator into wrong channels by furnishing false evidence. For, it is beyond his power to alter the ridges or other characteristics of his hand, palm or finger or to alter the characteristics of his handwriting.
We agree therefore with the conclusion reached by the majority of the Bench that there is no infringement of Article 20(3) of the Constitution by compelling an accused person to give his specimen handwriting or signature; or impressions of his fingers, palm or foot to the
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investigating officer or under orders of a court for the purpose of comparison under the provisions of section 73 of the Indian Evidence Act; though we have not been able to agree with the view of our learned brethren that "to be a witness" in Article 20(3) should be equated with the imparting of personal knowledge or that an accused does not become a witness when he produces some document not in his own handwriting even though it may tend to prove facts in issue or relevant facts against him.
In Criminal Appeals Nos. 110 & 111 of 1958 a further question as regards the validity of section 27 of the Evidence Act was raised. It was said that the receipt of information from an accused person in the custody of a police officer which can be proved under section 27 is an infringement of Article 20(3). Section 27 provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of the information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. It cannot be disputed that by giving such information the accused furnishes evidence and therefore is a "witness" during the investigation. Unless however he is "compelled" to give the information he cannot be said to be "compelled ' to be a witness; and so Article 20(3) is not infringed. Compulsion is not however inherent in the receipt of information from an accused person in the custody of a police officer. There may be cases where an accused in custody is compelled to give the information later on sought to be proved under section 27. These will be other cases where the accused gives the information without any compulsion. Where the accused is compelled to give information it will be an infringement of Article 20(3); but there is no such infringement where he gives the information without any compulsion. Therefore, compulsion not being inherent or implicit in the fact of the information having been received from a person in custody, the contention that section 27 necessarily infringes Article 20(3) cannot be accepted.
A question was raised in the course of the discussion as to when a person can be said to have been "compelled" within the meaning of Article 20(3). One view is that there must be an element of constraint or coercion in the physical sense before it can be said that an accused person has been "compelled". The other view is that in addition to cases where there has been such constraint or coercion an accused should be said to have been "compelled" to be a witness whenever there has been inducement or promise which persuaded the accused to be a witness, even though there has been no such coercion or constraint. In Criminal Appeals Nos. 110 and
111 the information proved under section 27 of the Evidence Act was that Pokhar Singh had buried certain fire-arms in village Badesra under Toori and these were recovered when he pointed these out to the investigating police officer. This information was proved under section 27. But it does not appear to have been suggested that the accused was made to give this information by inducement or threat or promise. On the facts therefore there is no question of the information having been received by compulsion. The question whether any inducement or promise which leads an accused person to give information amounts to compulsion or not, does not therefore fall to be decided.
It may be pointed out that in the other appeals, viz., Criminal Appeal No. 146 of 1958 and
Criminal Appeal No. 174 of 1959, also, this question does not arise for consideration in view of our conclusion that in any case the accused does not become a "witness" against himself by giving his specimen signature or impressions of his fingers or palms.
It appears to us to be equally unnecessary to decide another which was mooted in the course of the hearing, viz., whether the prohibition of Article 20(3) operates only after a person has been accused of an offence or even before that stage. Admittedly, in all these cases the person on whose behalf the protection under Article 20(3) is claimed gave the specimen signature or impressions of fingers or palms after he had been actually accused of an offence.
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We think it right therefore not to express any opinion on any of these questions.
SELVI V. STATE OF KARNATAKA
AIR 2010 SC 1974, (2010) 7 SCC 263
Decided On: May 5, 2010
BENCH – CHIEF JUSTICE K. G. BALAKRISHNAN, R. V. RAVEENDRAN & J. M. PANCHAL
CHIEF JUSTICE BALAKRISHNAN (for the Court)
… The legal questions in this batch of criminal appeals relate to the involuntary administration of certain scientific techniques, namely narcoanalysis, polygraph examination and the Brain
Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases. This issue has received considerable attention since it involves tensions between the desirability of efficient investigation and the preservation of individual liberties.
Ordinarily the judicial task is that of evaluating the rival contentions in order to arrive at a sound conclusion. However, the present case is not an ordinary dispute between private parties. It raises pertinent questions about the meaning and scope of fundamental rights which are available to all citizens. Therefore, we must examine the implications of permitting the use of the impugned techniques in a variety of settings.
Objections have been raised in respect of instances where individuals who are the accused, suspects or witnesses in an investigation have been subjected to these tests without their consent. Such measures have been defended by citing the importance of extracting information which could help the investigating agencies to prevent criminal activities in the future as well as in circumstances where it is difficult to gather evidence through ordinary means. In some of the impugned judgments, reliance has been placed on certain provisions of the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 to refer back to the responsibilities placed on citizens to fully co-operate with investigation agencies. It has also been urged that administering these techniques does not cause any bodily harm and that the extracted information will be used only for strengthening investigation efforts and will not be admitted as evidence during the trial stage. The assertion is that improvements in fact-finding during the investigation stage will consequently help to increase the rate of prosecution as well as the rate of acquittal. Yet another line of reasoning is that these scientific techniques are a softer alternative to the regrettable and allegedly widespread use of `third degree methods ' by investigators.
The involuntary administration of the impugned techniques prompts questions about the protective scope of the `right against self-incrimination ' which finds place in Article 20(3) of our Constitution. In one of the impugned judgments, it has been held that the information extracted through methods such as `polygraph examination ' and the `Brain Electrical
Activation Profile (BEAP) test cannot be equated with `testimonial compulsion ' because the test subject is not required to give verbal answers, thereby falling outside the protective scope of Article 20(3). It was further ruled that the verbal revelations made during a narcoanalysis test do not attract the bar of Article 20(3) since the inculpatory or exculpatory nature of these revelations is not known at the time of conducting the test. To address these questions among others, it is necessary to inquire into the historical origins and rationale behind the `right against self-incrimination '. The principal questions are whether this right extends to the investigation stage and whether the test results are of a `testimonial ' character, thereby attracting the protection of Article 20(3). Furthermore, we must examine whether relying on the test results or materials discovered with the help of the same creates a reasonable likelihood of incrimination for the test subject.
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We must also deal with arguments invoking the guarantee of `substantive due process ' which is part and parcel of the idea of `personal liberty ' protected by Article 21 of the
Constitution. The first question in this regard is whether the provisions in the Code of Criminal
Procedure, 1973 that provide for `medical examination ' during the course of investigation can be read expansively to include the impugned techniques, even though the latter are not explicitly enumerated. To answer this question, it will be necessary to discuss the principles governing the interpretation of statutes in light of scientific advancements. Questions have also been raised with respect to the professional ethics of medical personnel involved in the administration of these techniques. Furthermore, Article 21 has been judicially expanded to include a `right against cruel, inhuman or degrading treatment ', which requires us to determine whether the involuntary administration of the impugned techniques violates this right whose scope corresponds with evolving international human rights norms. We must also consider contentions that have invoked the test subject 's `right to privacy ', both in a physical and mental sense. The scientific validity of the impugned techniques has been questioned and it is argued that their results are not entirely reliable. For instance, the narcoanalysis technique involves the intravenous administration of sodium pentothal, a drug which lowers inhibitions on part of the subject and induces the person to talk freely. However, empirical studies suggest that the drug-induced revelations need not necessarily be true. Polygraph examination and the
BEAP test are methods which serve the respective purposes of lie-detection and gauging the subject 's familiarity with information related to the crime. These techniques are essentially confirmatory in nature, wherein inferences are drawn from the physiological responses of the subject. However, the reliability of these methods has been repeatedly questioned in empirical studies. In the context of criminal cases, the reliability of scientific evidence bears a causal link with several dimensions of the right to a fair trial such as the requisite standard of proving guilt beyond reasonable doubt and the right of the accused to present a defence. We must be mindful of the fact that these requirements have long been recognised as components of
`personal liberty ' under Article 21 of the Constitution. Hence it will be instructive to gather some insights about the admissibility of scientific evidence.
… At this stage, it will be useful to frame the questions of law and outline the relevant sub-questions in the following manner:
I. Whether the involuntary administration of the impugned techniques violates the `right against self-incrimination ' enumerated in Article 20(3) of the Constitution? I-A. Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject? I-B. Whether the results derived from the impugned techniques amount to `testimonial compulsion ' thereby attracting the bar of Article 20(3)?
II. Whether the involuntary administration of the impugned techniques is a reasonable restriction on `personal liberty ' as understood in the context of Article21 of the Constitution?
Before answering these questions, it is necessary to examine the evolution and specific uses of the impugned techniques. Hence, a description of each of the test procedures is followed by an overview of their possible uses, both within and outside the criminal justice system. It is also necessary to gauge the limitations of these techniques. Owing to the dearth of Indian decisions on this subject, we must look to precedents from foreign jurisdictions which deal with the application of these techniques in the area of criminal justice.
DESCRIPTIONS OF TESTS - USES, LIMITATIONS AND PRECEDENTS
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Polygraph Examination
The origins of polygraph examination have been traced back to the efforts of Lombroso, a criminologist who experimented with a machine that measured blood pressure and pulse to assess the honesty of persons suspected of criminal conduct. His device was called a hydrosphygmograph. A similar device was used by psychologist William Marston during
World War I in espionage cases, which proved to be a precursor to its use in the criminal justice system. In 1921, John Larson incorporated the measurement of respiration rate and by
1939 Leonard Keeler added skin conductance and an amplifier to the parameters examined by a polygraph machine.
The theory behind polygraph tests is that when a subject is lying in response to a question, he/she will produce physiological responses that are different from those that arise in the normal course. During the polygraph examination, several instruments are attached to the subject for measuring and recording the physiological responses. The examiner then reads these results, analyzes them and proceeds to gauge the credibility of the subject 's answers.
Instruments such as cardiographs, pneumographs, cardio-cuffs and sensitive electrodes are used in the course of polygraph examinations. They measure changes in aspects such as respiration, blood pressure, blood flow, pulse and galvanic skin resistance. The truthfulness or falsity on part of the subject is assessed by relying on the records of the physiological responses. [See: Laboratory Procedure Manual - Polygraph Examination (Directorate of
Forensic Science, Ministry of Home Affairs, Government of India, New Delhi - 2005)]
There are three prominent polygraph examination techniques:
i.
ii. iii. The relevant-irrelevant (R-I) technique
The control question (CQ) technique
Directed Lie-Control (DLC) technique
Each of these techniques includes a pre-test interview during which the subject is acquainted with the test procedure and the examiner gathers the information which is needed to finalize the questions that are to be asked. An important objective of this exercise is to mitigate the possibility of a feeling of surprise on part of the subject which could be triggered by unexpected questions. This is significant because an expression of surprise could be mistaken for physiological responses that are similar to those associated with deception.
[Refer: David Gallai, `Polygraph evidence in federal courts: Should it be admissible? '
36 American Criminal Law Review 87-116 (Winter 1999) at p. 91]. Needless to say, the polygraph examiner should be familiar with the details of the ongoing investigation. To meet this end the investigators are required to share copies of documents such as the First
Information Report (FIR), Medico-Legal Reports (MLR) and Post-Mortem Reports (PMR) depending on the nature of the facts being investigated.
The control-question (CQ) technique is the most commonly used one and its procedure as well as scoring system has been described in the materials submitted on behalf of CBI. The test consists of control questions and relevant questions. The control questions are irrelevant to the facts being investigated but they are intended to provoke distinct physiological responses, as well as false denials. These responses are compared with the responses triggered by the relevant questions. Theoretically, a truthful subject will show greater physiological responses to the control questions which he/she has reluctantly answered falsely, than to the relevant questions, which the subject can easily answer truthfully. Conversely, a deceptive subject will show greater physiological responses while giving false answers to relevant questions in comparison to the responses triggered by false answers to control questions. In other words, a guilty subject is more likely to be concerned with lying about the relevant facts
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as opposed to lying about other facts in general. An innocent subject will have no trouble in truthfully answering the relevant questions but will have trouble in giving false answers to control questions. The scoring of the tests is done by assigning a numerical value, positive or negative, to each response given by the subject. After accounting for all the numbers, the result is compared to a standard numerical value to indicate the overall level of deception. The net conclusion may indicate truth, deception or uncertainty.
The use of polygraph examinations in the criminal justice system has been contentious.
In this case, we are mainly considered with situations when investigators seek reliance on these tests to detect deception or to verify the truth of previous testimonies. Furthermore, litigation related to polygraph tests has also involved situations where suspects and defendants in criminal cases have sought reliance on them to demonstrate their innocence. It is also conceivable that witnesses can be compelled to undergo polygraph tests in order to test the credibility of their testimonies or to question their mental capacity or to even attack their character. Another controversial use of polygraph tests has been on victims of sexual offences for testing the veracity of their allegations. While several states in the U.S.A. have enacted provisions to prohibit such use, the text of the Laboratory Procedure Manual for Polygraph
Examination [supra.] indicates that this is an acceptable use. In this regard, Para 3.4 (v) of the said Manual reads as follows:
(v) In cases of alleged sex offences such as intercourse with a female child, forcible rape, indecent liberties or perversion, it is important that the victim, as well as the accused, be made available for interview and polygraph examination.
It is essential that the polygraph examiner get a first hand detailed statement from the victim, and the interview of the victim precede that of the suspect or witnesses.... [The following article includes a table which lists out the statutorily permissible uses of polygraph examination in the different state jurisdictions of the United States of America:
Henry T. Greely and Judy Illes, `Neuroscience based lie- detection: The urgent need for regulation ', 33 American Journal of Law and Medicine, 377-421 (2007)]
The propriety of compelling the victims of sexual offences to undergo a polygraph examination certainly merits consideration in the present case. It must also be noted that in some jurisdictions polygraph tests have been permitted for the purpose of screening public employees, both at the stage of recruitment and at regular intervals during the service-period.
In the U.S.A., the widespread acceptance of polygraph tests for checking the antecedents and monitoring the conduct of public employees has encouraged private employers to resort to the same. In fact the Employee Polygraph Protection Act, 1998 was designed to restrict their use for employee screening. This development must be noted because the unqualified acceptance of ‘Lie-detector tests’ in India 's criminal justice system could have the unintended consequence of encouraging their use by private parties.
Polygraph tests have several limitations and therefore a margin for errors. The premise behind these tests is questionable because the measured changes in physiological responses are not necessarily triggered by lying or deception. Instead, they could be triggered by nervousness, anxiety, fear, confusion or other emotions. Furthermore, the physical conditions in the polygraph examination room can also create distortions in the recorded responses. The test is best administered in comfortable surroundings where there are no potential distractions for the subject and complete privacy is maintained. The mental state of the subject is also vital since a person in a state of depression or hyperactivity is likely to offer highly disparate physiological responses which could mislead the examiner. In some cases the subject may have suffered from loss of memory in the intervening time-period between the relevant act
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and the conduct of the test. When the subject does not remember the facts in question, there will be no self-awareness of truth or deception and hence the recording of the physiological responses will not be helpful. Errors may also result from ‘memory-hardening’, i.e. a process by which the subject has created and consolidated false memories about a particular incident.
This commonly occurs in respect of recollections of traumatic events and the subject may not be aware of the fact that he/she is lying.
The errors associated with polygraph tests are broadly grouped into two categories, i.e.,
‘false positives’ and ‘false negatives’. A ‘false positive’ occurs when the results indicate that a person has been deceitful even though he/she answered truthfully. Conversely a ‘false negative’ occurs when a set of deceptive responses is reported as truthful. On account of such inherent complexities, the qualifications and competence of the polygraph examiner are of the utmost importance. The examiner needs to be thorough in preparing the questionnaire and must also have the expertise to account for extraneous conditions that could lead to erroneous inferences. However, the biggest concern about polygraph tests is that an examiner may not be able to recognise deliberate attempts on part of the subject to manipulate the test results. Such
‘countermeasures’ are techniques which are deliberately used by the subject to create certain physiological responses in order to deceive the examiner. The intention is that by deliberately enhancing one 's reaction to the control questions, the examiner will incorrectly score the test in favour of truthfulness rather than deception. The most commonly used `countermeasures ' are those of creating a false sense of mental anxiety and stress at the time of the interview, so that the responses triggered by lying cannot be readily distinguished.
Since polygraph tests have come to be widely relied upon for employee screening in the
U.S.A., the U.S. Department of Energy had requested the National Research Council of the
National Academies (NRC) to review their use for different purposes. The following conclusion was stated in its report, i.e. The Polygraph and Lie-Detection: Committee to
Review the scientific evidence on the Polygraph (Washington D.C.: National Academies
Press, 2003) at pp. 212-213:
Polygraph Accuracy: Almost a century of research in scientific psychology and physiology provides little basis for the expectation that a polygraph test could have extremely high accuracy. The physiological responses measured by the polygraph are not uniquely related to deception. That is, the responses measured by the polygraph do not all reflect a single underlying process: a variety of psychological and physiological processes, including some that can be consciously controlled, can affect polygraph measures and test results. Moreover, most polygraph testing procedures allow for uncontrolled variation in test administration (e.g., creation of the emotional climate, selecting questions) that can be expected to result in variations in accuracy and that limit the level of accuracy that can be consistently achieved.
Theoretical Basis: The theoretical rationale for the polygraph is quite weak, especially in terms of differential fear, arousal, or other emotional states that are triggered in response to relevant or comparison questions. We have not found any serious effort at construct validation of polygraph testing.
Research Progress: Research on the polygraph has not progressed over time in the manner of a typical scientific field. It has not accumulated knowledge or strengthened its scientific underpinnings in any significant manner.
Polygraph research has proceeded in relative isolation from related fields of basic science and has benefited little from conceptual, theoretical, and technological advances in those fields that are relevant to the psychophysiological detection of deception. Page 289 of 610
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Future Potential: The inherent ambiguity of the physiological measures used in the polygraph suggests that further investments in improving polygraph technique and interpretation will bring only modest improvements in accuracy.
A Working Party of the British Psychological Society (BPS) also came to a similar conclusion in a study published in 2004. The key finding is reproduced below, [Cited from: A
Review of the current scientific status and fields of application of polygraph deception detection - Final Report (6 October, 2004) from The British Psychological Society (BPS)
Working Party at p. 10]:
A polygraph is sometimes called a lie detector, but this term is misleading. A polygraph does not detect lies, but only arousal which is assumed to accompany telling a lie. Polygraph examiners have no other option than to measure deception in such an indirect way, as a pattern of physiological activity directly related to lying does not exist (Saxe, 1991). Three of the four most popular lie detection procedures using the polygraph (Relevant/Irrelevant Test, Control Question Test and Directed Lie Test, ...) are built upon the premise that, while answering socalled `relevant ' questions, liars will be more aroused than while answering socalled `control ' questions, due to a fear of detection (fear of getting caught lying).
This premise is somewhat naive as truth tellers may also be more aroused when answering the relevant questions, particularly: (i) when these relevant questions are emotion evoking questions (e.g. when an innocent man, suspected of murdering his beloved wife, is asked questions about his wife in a polygraph test, the memory of his late wife might re-awaken his strong feelings about her); and
(ii) when the innocent examinee experiences fear, which may occur, for example, when the person is afraid that his or her honest answers will not be believed by the polygraph examiner. The other popular test (Guilty Knowledge Test, ...) is built upon the premise that guilty examinees will be more aroused concerning certain information due to different orienting reactions, that is, they will show enhanced orienting responses when recognising crucial details of a crime. This premise has strong support in psychophysiological research (Fiedler, Schmidt &
Stahl, 2002).
Coming to judicial precedents, a decision reported as Frye v. United States, (1923) 54
App DC 46, dealt with a precursor to the polygraph which detected deception by measuring changes in systolic blood pressure. In that case the defendant was subjected to this test before the trial and his counsel had requested the court that the scientist who had conducted the same should be allowed to give expert testimony about the results. Both the trial court and the appellate court rejected the request for admitting such testimony. The appellate court identified the considerations that would govern the admissibility of expert testimony based on scientific insights. It was held, id. at p. 47:
… Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a wellrecognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.
The standard of ‘general acceptance in the particular field’ governed the admissibility of scientific evidence for several decades. It was changed much later by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 US 579 (1993). In that case the petitioners had instituted proceedings against a pharmaceutical company which had marketed
‘Bendectin’, a prescription drug. They had alleged that the ingestion of this drug by expecting
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mothers had caused birth defects in the children born to them. To contest these allegations, the pharmaceutical company had submitted an affidavit authored by an epidemiologist. The petitioners had also submitted expert opinion testimony in support of their contentions. The
District Court had ruled in favour of the company by ruling that their scientific evidence met the standard of `general acceptance in the particular field ' whereas the expert opinion testimony produced on behalf of the petitioners did not meet the said standard. The Court of
Appeals for the Ninth Circuit upheld the judgment and the case reached the U.S. Supreme
Court which vacated the appellate court 's judgment and remanded the case back to the trial court. It was unanimously held that the ‘general acceptance’ standard articulated in Frye (supra.) had since been displaced by the enactment of the Federal Rules of Evidence in 1975, wherein Rule 702 governed the admissibility of expert opinion testimony that was based on scientific findings. This rule provided that:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
It was held that the trial court should have evaluated the scientific evidence as per Rule
702 of the Federal Rules of Evidence which mandates an inquiry into the relevance as well as the reliability of the scientific technique in question. The majority opinion (Blackmun, J.) noted that the trial judge 's first step should be a preliminary assessment of whether the testimony 's underlying reasoning or methodology is scientifically valid and whether it can be properly applied to the facts in issue. Several other considerations will be applicable, such as:
• whether the theory or technique in question can be and has been tested
• whether it has been subjected to peer review and publication
• its known or potential error rate
• the existence and maintenance of standards controlling its operation
• whether it has attracted widespread acceptance within the scientific community
It was further observed that such an inquiry should be a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate. It was reasoned that instead of the wholesale exclusion of scientific evidence on account of the high threshold of proving `general acceptance in the particular field ', the same could be admitted and then challenged through conventional methods such as cross-examination, presentation of contrary evidence and careful instructions to juries about the burden of proof. In this regard, the trial judge is expected to perform a `gate-keeping ' role to decide on the admission of expert testimony based on scientific techniques. It should also be kept in mind that Rule 403 of the
Federal Rules of Evidence, 1975 empowers a trial judge to exclude any form of evidence if it is found that its probative value will be outweighed by its prejudicial effect.
Prior to the Daubert decision (supra.), most jurisdictions in the U.S.A. had disapproved of the use of polygraph tests in criminal cases. Some State jurisdictions had absolutely prohibited the admission of polygraph test results, while a few had allowed consideration of the same if certain conditions were met. These conditions included a prior stipulation between the parties to undergo these tests with procedural safeguards such as the involvement of experienced examiners, presence of counsel and proper recording to enable subsequent scrutiny. A dissonance had also emerged in the treatment of polygraph test results in the different Circuit jurisdictions, with some jurisdictions giving trial judges the discretion to enquire into the reliability of polygraph test results on a case-by-case basis. … However,
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after Daubert (supra.) prescribed a more liberal criterion for determining the admissibility of scientific evidence, some Courts ruled that weightage could be given to polygraph results.
…The decisions cited above had led to some uncertainty about the admissibility of polygraph test results. However, this uncertainty was laid to rest by an authoritative ruling of the U.S. Supreme Court in United States v. Scheffer 523 US 303 (1998). In that case, an eight judge majority decided that Military Rule of Evidence 707 (which made polygraph results inadmissible in court-martial proceedings) did not violate an accused person 's Sixth
Amendment right to present a defence. The relevant part of the provision follows:
(a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence.
The facts were that Scheffer, a U.S. Air Force serviceman had faced court-martial proceedings because a routine urinalysis showed that he had consumed methamphetamines.
However, a polygraph test suggested that he had been truthful in denying the intentional consumption of the drugs. His defence of `innocent ingestion ' was not accepted during the court-martial proceedings and the polygraph results were not admitted in evidence. The Air
Force Court of Criminal Appeals affirmed the decision given in the court-martial proceedings but the Court of Appeals for the Armed Forces reversed the same by holding that an absolute exclusion of polygraph evidence (offered to rebut an attack on the credibility of the accused) would violate Scheffer 's Sixth Amendment right to present a defence. Hence, the matter reached the Supreme Court which decided that the exclusion of polygraph evidence did not violate the said constitutional right.
Eight judges agreed that testimony about polygraph test results should not be admissible on account of the inherent unreliability of the results obtained. Four judges agreed that reliance on polygraph results would displace the fact-finding role of the jury and lead to collateral litigation. In the words of Clarence Thomas, J., Id. at p. 309:
Rule 707 serves several legitimate interests in the criminal trial process. These interests include ensuring that only reliable evidence is introduced at trial, preserving the jury 's role in determining credibility, and avoiding litigation that is collateral to the primary purpose of the trial. The rule is neither arbitrary nor disproportionate in promoting these ends. Nor does it implicate a sufficiently weighty interest of the defendant to raise a constitutional concern under our precedents. On the issue of reliability, the Court took note of some Circuit Court decisions which had permitted trial courts to consider polygraph results in accordance with the Daubert factors.
However, the following stance was adopted, Id. at p. 312:
…Although the degree of reliability of polygraph evidence may depend upon a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner 's conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams. Individual jurisdictions therefore may reasonably reach differing conclusions as to whether polygraph evidence should be admitted. We cannot say, then, that presented with such widespread uncertainty, the President acted arbitrarily or disproportionately in promulgating a per se rule excluding all polygraph evidence.
… On the issue of encouraging litigation that is collateral to the primary purpose of a trial, it was held, Id. at p. 314:
…Allowing proffers of polygraph evidence would inevitably entail assessments of such issues as whether the test and control questions were appropriate, whether a particular polygraph examiner was qualified and had properly interpreted the
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physiological responses, and whether other factors such as countermeasures employed by the examinee had distorted the exam results. Such assessments would be required in each and every case. It thus offends no constitutional principle for the President to conclude that a per se rule excluding all polygraph evidence is appropriate. Because litigation over the admissibility of polygraph evidence is by its very nature collateral, a per se rule prohibiting its admission is not an arbitrary or disproportionate means of avoiding it.
In the same case, Kennedy, J. filed an opinion which was joined by four judges. While there was agreement on the questionable reliability of polygraph results, a different stand was taken on the issues pertaining to the role of the jury and the concerns about collateral litigation.
It was observed that the inherent unreliability of the test results is a sufficient ground to exclude the polygraph test results and expert testimony related to them. Stevens, J. filed a dissenting opinion in this case.
We have also come across a decision of the Canadian Supreme Court in R
v. Beland [1987] 36 C.C.C. (3d) 481. In that case the respondents had been charged with conspiracy to commit robbery. During their trial, one of their accomplices had given testimony which directly implicated them. The respondents contested this testimony and after the completion of the evidentiary phase of the trial, they moved an application to re-open their defence while seeking permission for each of them to undergo a polygraph examination and produce the results in evidence. The trial judge denied this motion and the respondents were convicted. However, the appellate court allowed their appeal from conviction and granted an order to re-open the trial and directed that the polygraph results be considered. On further appeal, the Supreme Court of Canada held that the results of a polygraph examination are not admissible as evidence. The majority opinion explained that the admission of polygraph test results would offend some well-established rules of evidence. It examined the ‘rule against oath-helping’ which prohibits a party from presenting evidence solely for the purpose of bolstering the credibility of a witness. Consideration was also given to the ‘rule against admission of past or out-of-court statements by a witness’ as well as the restrictions on producing ‘character evidence’. The discussion also concluded that polygraph evidence is inadmissible as ‘expert evidence’.
… I would say at once that this view is not based on a fear of the inaccuracies of the polygraph. On that question we were not supplied with sufficient evidence to reach a conclusion. However, it may be said that even the finding of a significant percentage of errors in its results would not, by itself, be sufficient ground to exclude it as an instrument for use in the courts. Error is inherent in human affairs, scientific or unscientific. It exists within our established court procedures and must always be guarded against. The compelling reason, in my view, for the exclusion of the evidence of polygraph results in judicial proceedings is twofold. First, the admission of polygraph evidence would run counter to the well-established rules of evidence which have been referred to. Second, while there is no reason why the rules of evidence should not be modified where improvement will result, it is my view that the admission of polygraph evidence will serve no purpose which is not already served. It will disrupt proceedings, cause delays, and lead to numerous complications which will result in no greater degree of certainty in the process than that which already exists.
…What would be served by the introduction of evidence of polygraph readings into the judicial process? To begin with, it must be remembered that however scientific it may be, its use in court depends on the human intervention of the operator. Whatever results are recorded by the polygraph instrument, their nature and significance reach the trier of fact through the mouth of the operator. Human fallibility is therefore present as before, but now it may be said to be fortified with the mystique of science.
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Narcoanalysis technique
This test involves the intravenous administration of a drug that causes the subject to enter into a hypnotic trance and become less inhibited. The drug-induced hypnotic stage is useful for investigators since it makes the subject more likely to divulge information. The drug used for this test is sodium pentothal, higher quantities of which are routinely used for inducing general anaesthesia in surgical procedures. This drug is also used in the field of psychiatry since the revelations can enable the diagnosis of mental disorders. However, we have to decide on the permissibility of resorting to this technique during a criminal investigation, despite its ' established uses in the medical field. The use of `truth-serums ' and hypnosis is not a recent development. Earlier versions of the narcoanalysis technique utilised substances such as scopolamine and sodium amytal. The following extracts from an article trace the evolution of this technique, [Cited from: C.W. Muehlberger, `Interrogation under Drug-influence: The socalled Truth serum technique ', 42(4) The Journal of Criminal Law, Criminology and Police
Science 513-528 (Nov-Dec. 1951) at pp. 513-514]:
With the advent of anaesthesia about a century ago, it was observed that during the induction period and particularly during the recovery interval, patients were prone to make extremely naove remarks about personal matters, which, in their normal state, would never have revealed.
Probably the earliest direct attempt to utilize this phenomenon in criminal interrogation stemmed from observations of a mild type of anaesthesia commonly used in obstetrical practice during the period of about 1903-1915 and known as `Twilight sleep '. This anaesthesia was obtained by hypodermic injection of solutions of morphine and scopolamine (also called
`hyoscine ') followed by intermittent chloroform inhalations if needed. The pain relieving qualities of morphine are well known. Scopolamine appears to have the added property of blocking out memories of recent events. By the combination of these drugs in suitable dosage, morphine dulled labor pains without materially interfering with the muscular contractions of labor, while scopolamine wiped out subsequent memories of the delivery room ordeal. The technique was widely used in Europe but soon fell into disrepute among obstetricians of this country, largely due to overdosage.
During the period of extensive use of ‘twilight sleep’ it was a common experience that women who were under drug influence, were extremely candid and uninhibited in their statements. They often made remarks which obviously would never have been uttered when in their normal state. Dr. Robert E. House, an observant physician practising in Ferris, Texas, believed that a drug combination which was so effective in the removal of ordinary restraints and which produced such utter candor, might be of value in obtaining factual information from persons who were thought to be lying. Dr. House 's first paper presented in 1922 suggested drug administration quite similar to the standard ‘twilight sleep’ procedure: an initial dose of grain of morphine sulphate together with 1/100 grain of scopolamine hydrobromide, followed at 20-30 minute intervals with smaller (1/200 - 1/400 grain) doses of scopolamine and periods of light chloroform anaesthesia. Subjects were questioned as they recovered from the light chloroform anaesthesia and gave answers which subsequently proved to be true. Altogether,
Dr. House reported about half-a-dozen cases, several of which were instrumental in securing the release of convicts from State prisons, he also observed that, after returning to their normal state, these subjects had little or no recollection of what had transpired during the period of interrogation. They could not remember what questions had been asked, nor by whom; neither could they recall any answers which they had made.
The use of the `Scopolamine ' technique led to the coining of the expression ‘truth serum’.
With the passage of time, injections of sodium amytal came to be used for inducing subjects
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to talk freely, primarily in the field of psychiatry. The author cited above has further observed, Id. at p. 522:
During World War II, this general technique of delving into a subject 's inner consciousness through the instrumentality of narcotic drugs was widely used in the treatment of war neuroses (sometimes called `Battle shock ' or `shell shock ').
Fighting men who had been through terrifically disturbing experiences often times developed symptoms of amnesia, mental withdrawal, negativity, paralyses, or many other mental, nervous, and physical derangements. In most instances, these patients refused to talk about the experiences which gave rise to the difficulty, and psychiatrists were at a loss to discover the crux of the problem. To intelligently counteract such a force, it was first necessary to identify it. Thus, the use of sedative drugs, first to analyze the source of disturbance (narcoanalysis) and later to obtain the proper frame of mind in which the patient could and would `talk out ' his difficulties, and, as they say `get them off his chest ' - and thus relieve himself
(narco-synthesis or narco-therapy) - was employed with signal success.
In the narcoanalysis of war neuroses a very light narcosis is most desirable. With small doses of injectable barbiturates (sodium amytal or sodium pentothal) or with light inhalations of nitrous oxide or somnoform, the subject pours out his pent-up emotions without much prodding by the interrogator.
It has been shown that the Central Investigation Agency (C.I.A.) in the U.S.A. had conducted research on the use of sodium pentothal for aiding interrogations in intelligence and counter-terrorism operations, as early as the 1950 's [See `Project MKULTRA - The CIA 's program of research in behavioral modification ', On file with Schaffer Library of Drug Policy,
Text available from . In recent years, the debate over the use of ‘truth-serums’ has been revived with demands for their use on persons suspected of involvement in terrorist activities. Coming to the test procedure, when the drug (sodium pentothal) is administered intravenously, the subject ordinarily descends into anaesthesia in four stages, namely:
i.
ii. iii. iv.
Awake stage
Hypnotic stage
Sedative stage
Anaesthetic stage
A relatively lighter dose of sodium pentothal is injected to induce the `hypnotic stage ' and the questioning is conducted during the same. The hypnotic stage is maintained for the required period by controlling the rate of administration of the drug. As per the materials submitted before us, the behaviour exhibited by the subject during this stage has certain specific characteristics, namely:
•
It facilitates handling of negative emotional responses (i.e. guilt, avoidance, aggression, frustration, non-responsiveness etc.) in a positive manner.
• It helps in rapid exploration and identification of underlying conflicts in the subject 's mind and unresolved feelings about past events.
• It induces the subject to divulge information which would usually not be revealed in conscious awareness and it is difficult for the person to lie at this stage
• The reversal from this stage occurs immediately when the administration of the drug is discontinued.
[Refer: Laboratory Procedure Manual - Forensic Narco-Analysis (Directorate of
Forensic Science, Ministry of Home Affairs, Government of India, New Delhi - 2005); Also see John M. Macdonald, `Truth Serum ', 46(2) The Journal of Criminal Law, Criminology and
Police Science 259-263 (Jul.-Aug. 1955)]
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The personnel involved in conducting a `narcoanalysis ' interview include a forensic psychologist, an anaesthesiologist, a psychiatrist, a general physician or other medical staff and a language interpreter if needed. Additionally a videographer is required to create videorecordings of the test for subsequent scrutiny. In India, this technique has been administered either inside forensic science laboratories or in the operation theatres of recognised hospitals.
While a psychiatrist and general physician perform the preliminary function of gauging whether the subject is mentally and physically fit to undergo the test, the anaesthesiologist supervises the intravenous administration of the drug. It is the forensic psychologist who actually conducts the questioning. Since the tests are meant to aid investigation efforts, the forensic psychologist needs to closely co-operate with the investigators in order to frame appropriate questions.
This technique can serve several ends. The revelations could help investigators to uncover vital evidence or to corroborate pre-existing testimonies and prosecution theories.
Narcoanalysis tests have also been used to detect ‘malingering’ (faking of amnesia). The premise is that during the ‘hypnotic stage’ the subject is unable to wilfully suppress the memories associated with the relevant facts. Thus, it has been urged that drug-induced revelations can help to narrow down investigation efforts, thereby saving public resources.
There is of course a very real possibility that information extracted through such interviews can lead to the uncovering of independent evidence which may be relevant. Hence, we must consider the implications of such derivative use of the drug- induced revelations, even if such revelations are not admissible as evidence. We must also account for the uses of this technique by persons other than investigators and prosecutors. Narcoanalysis tests could be requested by defendants who want to prove their innocence. Demands for this test could also be made for purposes such as gauging the credibility of testimony, to refresh the memory of witnesses or to ascertain the mental capacity of persons to stand trial. Such uses can have a direct impact on the efficiency of investigations as well as the fairness of criminal trials. [See generally:
George H. Dession, Lawrence Z. Freedman, Richard C. Donnelly and Frederick G. Redlich,
`Drug-Induced revelation and criminal investigation ', 62 Yale Law Journal 315-347 (February
1953)]
It is also important to be aware of the limitations of the `narcoanalysis ' technique. It does not have an absolute success rate and there is always the possibility that the subject will not reveal any relevant information. Some studies have shown that most of the drug-induced revelations are not related to the relevant facts and they are more likely to be in the nature of inconsequential information about the subjects ' personal lives. It takes great skill on part of the interrogators to extract and identify information which could eventually prove to be useful.
While some persons are able to retain their ability to deceive even in the hypnotic state, others can become extremely suggestible to questioning. This is especially worrying, since investigators who are under pressure to deliver results could frame questions in a manner that prompts incriminatory responses. Subjects could also concoct fanciful stories in the course of the `hypnotic stage '. Since the responses of different individuals are bound to vary, there is no uniform criteria for evaluating the efficacy of the `narcoanalysis ' technique.
In an article published in 1951, C.W. Muehlberger (supra.) had described a French case which attracted controversy in 1948. Raymond Cens, who had been accused of being a Nazi collaborator, appeared to have suffered an apoplectic stroke which also caused memory loss.
The French Court trying the case had authorised a board of psychiatrists to conduct an examination for ascertaining the defendant 's amnesia. The narcoanalysis technique was used in the course of the examination and the defendant did not object to the same. However, the test results showed that the subject 's memory was not impaired and that he had been faking amnesia. At the trial, testimony about these findings was admitted, thereby leading to a
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conviction. Subsequently, Raymond Cens filed a civil suit against the psychiatrists alleging assault and illegal search. However, it was decided that the board had used routine psychiatric procedures and since the actual physical damage to the defendant was nominal, the psychiatrists were acquitted. At the time, this case created quite a stir and the Council of the
Paris Bar Association had passed a resolution against the use of drugs during interrogation.
[Refer C.W. Muehlberger (1951) at p. 527; The Raymond Cens case has also been discussed in the following article: J.P. Gagnieur, `The Judicial use of Psychonarcosis in France ',
40(3) Journal of Criminal Law and Criminology 370-380 (Sept.-Oct. 1949)]
An article published in 1961 [Andre A. Moenssens, `Narcoanalysis in Law Enforcement ',
52(4) The Journal of Criminal Law, Criminology and Police Science 453-458 (Nov.-Dec.
1961)] had surveyed some judicial precedents from the U.S.A. which dealt with the forensic uses of the narcoanalysis technique. The first reference is to a decision from the State of
Missouri reported as State v. Hudson 314 Mo. 599 (1926). In that case, the defence lawyer in a prosecution for rape attempted to rely on the expert testimony of a doctor. The doctor in turn declared that he had questioned the defendant after injecting a truth-serum and the defendant had denied his guilt while in a drug-induced state. The trial court had refused to admit the doctor 's testimony by finding it to be completely unreliable from a scientific viewpoint. The appellate court upheld the finding and made the following observation, Id.at p. 602:
Testimony of this character - barring the sufficient fact that it cannot be classified otherwise than a self-serving declaration - is, in the present state of human knowledge, unworthy of serious consideration. We are not told from what well this serum is drawn or in what alembic its alleged truth compelling powers are distilled. Its origin is as nebulous as its effect is uncertain…
In State v. Lindemuth 56 N.M. 237 (1952) the testimony of a psychiatrist was not admitted when he wanted to show that the answers given by a defendant while under the influence of sodium pentothal supported the defendant 's plea of innocence in a murder case.
The trial court 's refusal to admit such testimony was endorsed by the appellate court, and it was noted, Id. at p. 243:
Until the use of the drug as a means of procuring the truth from people under its influence is accorded general scientific recognition, we are unwilling to enlarge the already immense field where medical experts, apparently equally qualified, express such diametrically opposed views on the same facts and conditions, to the despair of the court reporter and the bewilderment of the fact- finder.
However, Andre Moenssens (1961) also took note of a case which appeared to endorse an opposing view. In People v. Jones 42 Cal. 2d 219 (1954), the trial court overruled the prosecution 's objection to the introduction of a psychiatrist 's testimony on behalf of the defendant. The psychiatrist had conducted several tests on the defendant which included a sodium pentothal induced interview. The Court found that this was not sufficient to exclude the psychiatrist 's testimony in its entirety. It was observed that even though the truth of statements revealed under narcoanalysis remains uncertain, the results of the same could be clearly distinguished from the psychiatrist 's overall conclusions which were based on the results of all the tests considered together.
…The U.S. Supreme Court has also disapproved of the forensic uses of truth-inducing drugs in Townsend v. Sain 372 US 293 (1963). In that case a heroin addict was arrested on the suspicion of having committed robbery and murder. While in custody he began to show severe withdrawal symptoms, following which the police officials obtained the services of a physician. In order to treat these withdrawal symptoms, the physician injected a combined dosage of 1/8 grain of Phenobarbital and 1/230 grain of Hyoscine. Hyoscine is the same as
`Scopolamine ' which has been described earlier. This dosage appeared to have a calming effect on Townsend and after the physician 's departure he promptly responded to questioning
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by the police and eventually made some confessional statements. The petitioner 's statements were duly recorded by a court reporter. The next day he was taken to the office of the prosecutor where he signed the transcriptions of the statements made by him on the previous day. [The facts of this case have also been discussed in: Charles E. Sheedy,
`Narcointerrogation of a Criminal Suspect ', 50(2) The Journal of Criminal Law, Criminology and Police Science 118-123 (July- Aug 1959) at pp. 118-119]
When the case came up for trial, the counsel for the petitioner brought a motion to exclude the transcripts of the statements from the evidence. However, the trial judge denied this motion and admitted the court reporter 's transcription of the confessional statements into evidence.
Subsequently, a jury found Townsend to be guilty, thereby leading to his conviction. When the petitioner made a habeas corpus application before a Federal District Court, one of the main arguments advanced was that the fact of Scopolamine 's character as a truth-serum had not been brought out at the time of the motion to suppress the statements or even at the trial before the State Court. The Federal District Court denied the habeas corpus petition without a plenary evidentiary hearing, and this decision was affirmed by the Court of Appeals. Hence, the matter came before the U.S. Supreme Court. In an opinion authored by Earl Warren, C.J. the Supreme Court held that the Federal District Court had erred in denying a writ of habeas corpus without giving a plenary evidentiary hearing to examine the voluntariness of the confessional statements. Both the majority opinion as well as the dissenting opinion (Stewart,
J.) concurred on the finding that a confession induced by the administration of drugs is constitutionally inadmissible in a criminal trial. On this issue, Warren, C.J. observed, 372 US
293 (1963), at pp. 307-308:
Numerous decisions of this Court have established the standards governing the admissibility of confessions into evidence. If an individual 's ‘will was overborne’ or if his confession was not ‘the product of a rational intellect and a free will’, his confession is inadmissible because coerced. These standards are applicable whether a confession is the product of physical intimidation or psychological pressure and, of course, are equally applicable to a drug-induced statement. It is difficult to imagine a situation in which a confession would be less the product of a free intellect, less voluntary, than when brought about by a drug having the effect of a ‘truth serum’. It is not significant that the drug may have been administered and the questions asked by persons unfamiliar with hyoscine 's properties as a
‘truth serum’, if these properties exist. Any questioning by police officers which in fact produces a confession which is not the product of a free intellect renders that confession inadmissible.
(internal citations omitted)
… Since a person subjected to the narcoanalysis technique is in a half-conscious state and loses awareness of time and place, this condition can be compared to that of a person who is in a hypnotic state. In Horvath v. R [1979] 44 C.C.C. (2d) 385, the Supreme Court of Canada held that statements made in a hypnotic state were not voluntary and hence they cannot be admitted as evidence. It was also decided that if the post- hypnotic statements relate back to the contents of what was said during the hypnotic state, the subsequent statements would be inadmissible. In that case a 17 year old boy suspected for the murder of his mother had been questioned by a police officer who had training in the use of hypnotic methods. During the deliberate interruptions in the interrogation sessions, the boy had fallen into a mild hypnotic state and had eventually confessed to the commission of the murder. He later repeated the admissions before the investigating officers and signed a confessional statement. The trial judge had found all of these statements to be inadmissible, thereby leading to an acquittal. The
Court of Appeal had reversed this decision, and hence an appeal was made before the Supreme
Court.
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Notably, the appellant had refused to undergo a narcoanalysis interview or a polygraph test. It was also evident that he had not consented to the hypnosis. The multiple opinions delivered in the case examined the criterion for deciding the voluntariness of a statement.
Reference was made to the well-known statement of Lord Summer in Ibrahim v. R [1914]
A.C. 599 (P.C.), at p. 609:
It has long been established as a positive rule of English criminal law that no statement made by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.
… Our attention has also been drawn to the decision reported as Rock v. Arkansas 483
US 44 (1987), in which the U.S. Supreme Court ruled that hypnotically-refreshed testimony could be admitted as evidence. The constitutional basis for admitting such testimony was the
Sixth Amendment which gives every person a right to present a defence in criminal cases.
However, the crucial aspect was that the trial court had admitted the oral testimony given during the trial stage rather than the actual statements made during the hypnosis session conducted earlier during the investigation stage. It was found that such hypnotically-refreshed testimony was the only defence available to the defendant in the circumstances. In such circumstances, it would of course be open to the prosecution to contest the reliability of the testimony given during the trial stage by showing that it had been bolstered by the statements made during hypnosis. It may be recalled that a similar line of reasoning had been adopted in United States v. Solomon 753 F. 2d 1522 (9th Circ. 1985), where for the purpose of admissibility of testimony, a distinction had been drawn between the statements made during a narcoanalysis interview and the oral testimony given during the trial stage which was allegedly based on the drug-induced statements. Hence, the weight of precedents indicates that both the statements made during narcoanalysis interviews as well as expert testimony relating to the same have not been given weightage in criminal trials.
Brain Electrical Activation Profile (BEAP) test
The third technique in question is the `Brain Electrical Activation Profile test ', also known as the `P300 Waves test '. It is a process of detecting whether an individual is familiar with certain information by way of measuring activity in the brain that is triggered by exposure to selected stimuli. This test consists of examining and measuring `event-related potentials '
(ERP) i.e. electrical wave forms emitted by the brain after it has absorbed an external event.
An ERP measurement is the recognition of specific patterns of electrical brain activity in a subject that are indicative of certain cognitive mental activities that occur when a person is exposed to a stimulus in the form of an image or a concept expressed in words. The measurement of the cognitive brain activity allows the examiner to ascertain whether the subject recognised stimuli to which he/she was exposed. [Cited from: Andre A Moenssens,
`Brain Fingerprinting - Can it be used to detect the innocence of persons charged with a crime? '
70 University of Missouri at Kansas City Law Review 891-920 (Summer 2002) at p. 893]
By the late 19th century it had been established that the brain functioned by emitting electrical impulses and the technology to measure them was developed in the form of the electroencephalograph (EEG) which is now commonly used in the medical field. Brain wave patterns observed through an EEG scan are fairly crude and may reflect a variety of unrelated brain activity functions. It was only with the development of computers that it became possible to sort out specific wave components on an EEG and identify the correlation between the waves and specific stimuli. The P300 wave is one such component that was discovered by Dr.
Samuel Sutton in 1965. It is a specific event-related brain potential (ERP) which is triggered
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when information relating to a specific event is recognised by the brain as being significant or surprising. The P300 waves test is conducted by attaching electrodes to the scalp of the subject, which measure the emission of the said wave components. The test needs to be conducted in an insulated and air-conditioned room in order to prevent distortions arising out of weather conditions. Much like the narcoanalysis technique and polygraph examination, this test also requires effective collaboration between the investigators and the examiner, most importantly for designing the stimuli which are called `probes '. Ascertaining the subject 's familiarity with the `probes ' can help in detecting deception or to gather useful information. The test subject is exposed to auditory or visual stimuli (words, sounds, pictures, videos) that are relevant to the facts being investigated alongside other irrelevant words and pictures. Such stimuli can be broadly classified as material `probes ' and neutral `probes '. The underlying theory is that in the case of guilty suspects, the exposure to the material probes will lead to the emission of
P300 wave components which will be duly recorded by the instruments. By examining the records of these wave components the examiner can make inferences about the individual 's familiarity with the information related to the crime. [Refer: Laboratory Procedure Manual Brain Electrical Activation Profile (Directorate of Forensic Science, Ministry of Home
Affairs, Government of India, New Delhi - 2005)]
The P300 wave test was the precursor to other neuroscientific techniques such as `Brain
Fingerprinting ' developed by Dr. Lawrence Farwell. The latter technique has been promoted in the context of criminal justice and has already been the subject of litigation. There is an important difference between the ‘P300 waves test’ that has been used by Forensic Science
Laboratories in India and the ‘Brain Fingerprinting’ technique. Dr. Lawrence Farwell has argued that the P300 wave component is not an isolated sensory brain effect but it is part of a longer response that continues to take place after the initial P300 stimulus has occurred. This extended response bears a correlation with the cognitive processing that takes place slightly beyond the P300 wave and continues in the range of 300-800 milliseconds after the exposure to the stimulus. This extended brain wave component has been named as the MERMER
(Memory-and- Encoding-Related-Multifaceted-Electroencephalographic Response) effect…
Functional Magnetic Resonance Imaging (FMRI) is another neuroscientific technique whose application in the forensic setting has been contentious. It involves the use of MRI scans for measuring blood flow between different parts of the brain which bears a correlation to the subject 's truthfulness or deception. FMRI-based lie-detection has also been advocated as an aid to interrogations in the context of counter-terrorism and intelligence operations, but it prompts the same legal questions that can be raised with respect to all of the techniques mentioned above. Even though these are non- invasive techniques the concern is not so much with the manner in which they are conducted but the consequences for the individuals who undergo the same. The use of techniques such as ‘Brain Fingerprinting’ and ‘FMRI-based LieDetection’ raise numerous concerns such as those of protecting mental privacy and the harms that may arise from inferences made about the subject 's truthfulness or familiarity with the facts of a crime. [See generally: Michael S. Pardo, `Neuroscience evidence, legal culture and criminal procedure ', 33 American Journal of Criminal Law 301-337 (Summer 2006); Sarah
E. Stoller and Paul Root Wolpe, `Emerging neurotechnologies for lie detection and the fifth amendment ', 33 American Journal of Law and Medicine359-375 (2007)]
These neuroscientific techniques could also find application outside the criminal justice setting. For instance, Henry T. Greely (2005, Cited below) has argued that technologies that may enable a precise identification of the subject 's mental responses to specific stimuli could potentially be used for market-research by business concerns for surveying customer preferences and developing targeted advertising schemes. They could also be used to judge
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mental skills in the educational and employment-related settings since cognitive responses are often perceived to be linked to academic and professional competence. One can foresee the potential use of this technique to distinguish between students and employees on the basis of their cognitive responses. There are several other concerns with the development of these
‘mind-reading’ technologies especially those relating to the privacy of individuals. [Refer:
Henry T. Greely, ‘Chapter 17: The social effects of advances in neuroscience: Legal problems, legal perspectives’, in Judy Illes (ed.), Neuroethics - Defining the issues in theory, practice and policy (Oxford University Press, 2005) at pp. 245-263]
Even though the P300 Wave component has been the subject of considerable research, its uses in the criminal justice system have not received much scholarly attention. Dr. Lawrence
Farwell 's ‘Brain Fingerprinting’ technique has attracted considerable publicity but has not been the subject of any rigorous independent study. Besides this preliminary doubt, an important objection is centred on the inherent difficulty of designing the appropriate ‘probes’ for the test. Even if the ‘probes’ are prepared by an examiner who is thoroughly familiar with all aspects of the facts being investigated, there is always a chance that a subject may have had prior exposure to the material probes. In case of such prior exposure, even if the subject is found to be familiar with the probes, the same will be meaningless in the overall context of the investigation. For example, in the aftermath of crimes that receive considerable mediaattention the subject can be exposed to the test stimuli in many ways. Such exposure could occur by way of reading about the crime in newspapers or magazines, watching television, listening to the radio or by word of mouth. A possibility of prior exposure to the stimuli may also arise if the investigators unintentionally reveal crucial facts about the crime to the subject before conducting the test. The subject could also be familiar with the content of the material probes for several other reasons.
Another significant limitation is that even if the tests demonstrate familiarity with the material probes, there is no conclusive guidance about the actual nature of the subject 's involvement in the crime being investigated. For instance a by- stander who witnessed a murder or robbery could potentially be implicated as an accused if the test reveals that the said person was familiar with the information related to the same. Furthermore, in cases of amnesia or ‘memory-hardening’ on part of the subject, the tests could be blatantly misleading. Even if the inferences drawn from the ‘P300 wave test’ are used for corroborating other evidence, they could have a material bearing on a finding of guilt or innocence despite being based on an uncertain premise. [For an overview of the limitations of these neuroscientific techniques, see: John G. New, ‘If you could read my mind - Implications of neurological evidence for twenty-first century criminal jurisprudence’, 29 Journal of Legal Medicine 179-197 (AprilJune 2008)]
We have come across two precedents relatable to the use of ‘Brain Fingerprinting’ tests in criminal cases. Since this technique is considered to be an advanced version of the P300
Waves test, it will be instructive to examine these precedents. In Harrington v. Iowa 659
N.W.2d 509 (2003), Terry J. Harrington (appellant) had been convicted for murder in 1978 and the same had allegedly been committed in the course of an attempted robbery. A crucial component of the incriminating materials was the testimony of his accomplice. However, many years later it emerged that the accomplice 's testimony was prompted by an offer of leniency from the investigating police and doubts were raised about the credibility of other witnesses as well. Subsequently it was learnt that at the time of the trial, the police had not shared with the defence some investigative reports that indicated the possible involvement of another individual in the said crime. Harrington had also undergone a ‘Brain Fingerprinting’ test under the supervision of Dr. Lawrence Farwell. The test results showed that he had no memories of the ‘probes’ relating to the act of murder. Hence, Harrington approached the
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District Court seeking the vacation of his conviction and an order for a new trial. Postconviction relief was sought on grounds of newly discovered evidence which included recantation by the prosecution 's primary witness, the past suppression of police investigative reports which implicated another suspect and the results of the ‘Brain Fingerprinting’ tests.
However, the District Court denied this application for post-conviction relief. This was followed by an appeal before the Supreme Court of Iowa.
The appellate court concluded that Harrington 's appeal was timely and his action was not time barred. The appellant was granted relief in light of a ‘due process’ violation, i.e. the failure on part of the prosecution at the time of the original trial to share the investigative reports with the defence. It was observed that the defendant 's right to a fair trial had been violated because the prosecution had suppressed evidence which was favourable to the defendant and clearly material to the issue of guilt. Hence the case was remanded back to the
District Court. However, the Supreme Court of Iowa gave no weightage to the results of the
‘Brain Fingerprinting’ test and did not even inquire into their relevance or reliability. In fact it was stated: "Because the scientific testing evidence is not necessary to a resolution of this appeal, we give it no further consideration." [659 N.W.2d 509, at p. 516]
The second decision brought to our attention is Slaughter v. Oklahoma 105 P. 3d 832
(2005). In that case, Jimmy Ray Slaughter had been convicted for two murders and sentenced to death. Subsequently, he filed an application for post- conviction relief before the Court of
Criminal Appeals of Oklahoma which attempted to introduce in evidence an affidavit and evidentiary materials relating to a ‘Brain Fingerprinting’ test. This test had been conducted by
Dr. Lawrence Farwell whose opinion was that the petitioner did not have knowledge of the
`salient features of the crime scene '. Slaughter also sought a review of the evidence gathered through DNA testing and challenged the bullet composition analysis pertaining to the crime scene. However, the appellate court denied the application for post-conviction relief as well as the motion for an evidentiary hearing. With regard to the affidavits based on the ‘Brain
Fingerprinting’ test, it was held, Id. at p. 834:
Dr. Farwell makes certain claims about the Brain Fingerprinting test that are not supported by anything other than his bare affidavit. He claims the technique has been extensively tested, has been presented and analyzed in numerous peerreview articles in recognized scientific publications, has a very low rate of error, has objective standards to control its operation, and is generally accepted within the `relevant scientific community '. These bare claims, however, without any form of corroboration, are unconvincing and, more importantly, legally insufficient to establish Petitioner 's post-conviction request for relief. Petitioner cites one published opinion, Harrington v. State 659 N.W.2d 509 (Iowa 2003), in which a brain fingerprinting test result was raised as error and discussed by the
Iowa Supreme Court (`a novel computer-based brain testing '). However, while the lower court in Iowa appears to have admitted the evidence under non-Daubert circumstances, the test did not ultimately factor into the Iowa Supreme Court 's published decision in any way.
Accordingly, the following conclusion was stated, Id. at p. 836:
Therefore, based upon the evidence presented, we find the Brain Fingerprinting evidence is procedurally barred under the Act and our prior cases, as it could have been raised in Petitioner 's direct appeal and, indeed, in his first application for post-conviction relief. We further find a lack of sufficient evidence that would support a conclusion that Petitioner is factually innocent or that Brain
Fingerprinting, based solely upon the MERMER effect, would survive a
Daubert analysis.
CONTENTIOUS ISSUES IN THE PRESENT CASE
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As per the Laboratory Procedure manuals, the impugned tests are being conducted at the direction of jurisdictional courts even without obtaining the consent of the intended test subjects. In most cases these tests are conducted conjunctively wherein the veracity of the information revealed through narcoanalysis is subsequently tested through a polygraph examination or the BEAP test. In some cases the investigators could first want to ascertain the capacity of the subject to deceive (through polygraph examination) or his/her familiarity with the relevant facts (through BEAP test) before conducting a narcoanalysis interview.
Irrespective of the sequence in which these techniques are administered, we have to decide on their permissibility in circumstances where any of these tests are compulsorily administered, either independently or conjunctively.
It is plausible that investigators could obtain statements from individuals by threatening them with the possibility of administering either of these tests. The person being interrogated could possibly make self-incriminating statements on account of apprehensions that these techniques will extract the truth. Such behaviour on part of investigators is more likely to occur when the person being interrogated is unaware of his/her legal rights or is intimidated for any other reason. It is a settled principle that a statement obtained through coercion, threat or inducement is involuntary and hence inadmissible as evidence during trial. However, it is not settled whether a statement made on account of the apprehension of being forcibly subjected to the impugned tests will be involuntary and hence inadmissible. This aspect merits consideration. It is also conceivable that an individual who has undergone either of these tests would be more likely to make self-incriminating statements when he/she is later confronted with the results. The question in that regard is whether the statements that are made subsequently should be admissible as evidence. The answers to these questions rest on the permissibility of subjecting individuals to these tests without their consent.
I. Whether the involuntary administration of the impugned techniques violates the `right against self- incrimination ' enumerated in Article 20(3) of the Constitution?
Investigators could seek reliance on the impugned tests to extract information from a person who is suspected or accused of having committed a crime. Alternatively these tests could be conducted on witnesses to aid investigative efforts. As mentioned earlier, this could serve several objectives, namely those of gathering clues which could lead to the discovery of relevant evidence, to assess the credibility of previous testimony or even to ascertain the mental state of an individual. With these uses in mind, we have to decide whether the compulsory administration of these tests violates the ‘right against self-incrimination’ which finds place in Article 20(3) of the Constitution of India. Along with the ‘rule against doublejeopardy’ and the ‘rule against retrospective criminalisation’ enumerated in Article 20, it is one of the fundamental protections that controls interactions between individuals and the criminal justice system. …
The interrelationship between the ‘right against self- incrimination’ and the ‘right to fair trial’ has been recognised in most jurisdictions as well as international human rights instruments. For example, the U.S. Constitution incorporates the ‘privilege against selfincrimination’ in the text of its Fifth Amendment. The meaning and scope of this privilege has been judicially moulded by recognising it 's interrelationship with other constitutional rights such as the protection against ‘unreasonable search and seizure’ (Fourth amendment) and the guarantee of ‘due process of law’ (Fourteenth amendment). In the International Covenant on
Civil and Political Rights (ICCPR), Article 14(3)(g) enumerates the minimum guarantees that are to be accorded during a trial and states that everyone has a right not to be compelled to testify against himself or to confess guilt. In the European Convention for the Protection of
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Human Rights and Fundamental Freedoms, Article 6(1) states that every person charged with an offence has a right to a fair trial and Article 6(2) provides that ‘Everybody charged with a criminal offence shall be presumed innocent until proved guilty according to law’. The guarantee of ‘presumption of innocence’ bears a direct link to the ‘right against selfincrimination’ since compelling the accused person to testify would place the burden of proving innocence on the accused instead of requiring the prosecution to prove guilt.
In the Indian context, Article 20(3) should be construed with due regard for the interrelationship between rights, since this approach was recognised in Maneka Gandhi 's case,
(1978) 1 SCC 248. Hence, we must examine the ‘right against self-incrimination’ in respect of its relationship with the multiple dimensions of ‘personal liberty’ under Article 21, which include guarantees such as the ‘right to fair trial’ and ‘substantive due process’. It must also be emphasized that Articles 20 and 21 have a non-derogable status within Part III of our
Constitution because the Constitution (Fourty-Fourth amendment) Act, 1978 mandated that the right to move any court for the enforcement of these rights cannot be suspended even during the operation of a proclamation of emergency. …
Undoubtedly, Article 20(3) has an exalted status in our Constitution and questions about its meaning and scope deserve thorough scrutiny. In one of the impugned judgments, it was reasoned that all citizens have an obligation to co-operate with ongoing investigations. For instance reliance has been placed on Section 39, CrPC which places a duty on citizens to inform the nearest magistrate or police officer if they are aware of the commission of, or of the intention of any other person to commit the crimes enumerated in the section. Attention has also been drawn to the language of Section 156(1), CrPC which states that a police officer in charge of a police station is empowered to investigate cognizable offences even without an order from the jurisdictional magistrate. Likewise, our attention was drawn to Section 161(1),
CrPC which empowers the police officer investigating a case to orally examine any person who is supposed to be acquainted with the facts and circumstances of the case. While the overall intent of these provisions is to ensure the citizens ' cooperation during the course of investigation, they cannot override the constitutional protections given to accused persons.
The scheme of the CrPC itself acknowledges this hierarchy between constitutional and statutory provisions in this regard. For instance, Section 161(2), CrPC prescribes that when a person is being examined by a police officer, he is not bound to answer such questions, the answers of which would have a tendency to expose him to a criminal charge or a penalty or forfeiture. Not only does an accused person have the right to refuse to answer any question that may lead to incrimination, there is also a rule against adverse inferences being drawn from the fact of his/her silence. At the trial stage, Section 313(3) of the CrPC places a crucial limitation on the power of the court to put questions to the accused so that the latter may explain any circumstances appearing in the evidence against him. It lays down that the accused shall not render himself/herself liable to punishment by refusing to answer such questions, or by giving false answers to them. Further, Proviso (b) to Section 315(1) of CrPC mandates that even though an accused person can be a competent witness for the defence, his/her failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the trial. It is evident that Section 161(2), CrPC enables a person to choose silence in response to questioning by a police officer during the stage of investigation, and as per the scheme of
Section 313(3) and Proviso (b) to Section 315(1) of the same code, adverse inferences cannot be drawn on account of the accused person 's silence during the trial stage.
………
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Underlying rationale of the right against self-incrimination
As mentioned earlier, `the right against self-incrimination ' is now viewed as an essential safeguard in criminal procedure. Its underlying rationale broadly corresponds with two objectives - firstly, that of ensuring reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily. It is quite possible that a person suspected or accused of a crime may have been compelled to testify through methods involving coercion, threats or inducements during the investigative stage. When a person is compelled to testify on his/her own behalf, there is a higher likelihood of such testimony being false. False testimony is undesirable since it impedes the integrity of the trial and the subsequent verdict. Therefore, the purpose of the ‘rule against involuntary confessions’ is to ensure that the testimony considered during trial is reliable. The premise is that involuntary statements are more likely to mislead the judge and the prosecutor, thereby resulting in a miscarriage of justice. Even during the investigative stage, false statements are likely to cause delays and obstructions in the investigation efforts.
The concerns about the ‘voluntariness’ of statements allow a more comprehensive account of this right. If involuntary statements were readily given weightage during trial, the investigators would have a strong incentive to compel such statements - often through methods involving coercion, threats, inducement or deception. Even if such involuntary statements are proved to be true, the law should not incentivise the use of interrogation tactics that violate the dignity and bodily integrity of the person being examined. In this sense, ‘the right against self-incrimination’ is a vital safeguard against torture and other ‘third-degree methods’ that could be used to elicit information. It serves as a check on police behaviour during the course of investigation. The exclusion of compelled testimony is important, otherwise the investigators will be more inclined to extract information through such compulsion as a matter of course. The frequent reliance on such ‘short-cuts’ will compromise the diligence required for conducting meaningful investigations. During the trial stage, the onus is on the prosecution to prove the charges levelled against the defendant and the ‘right against self- incrimination’ is a vital protection to ensure that the prosecution discharges the said onus.
… In spite of the constitutionally entrenched status of the right against self-incrimination, there have been some criticisms of the policy underlying the same. John Wigmore (1960) argued against a broad view of the privilege which extended the same to the investigative stage. [Refer: John Wigmore, ‘The privilege against self-incrimination, its constitutional affectation, raison d 'etre and miscellaneous implications’, 51 Journal of Criminal Law,
Criminology and Police Science 138 (1960)] He has asserted that the doctrinal origins of the
‘rule against involuntary confessions’ in evidence law and those of the ‘right to selfincrimination’ were entirely different and catered to different objectives. In the learned author 's opinion, the ‘rule against involuntary confessions’ evolved on account of the distrust of statements made in custody. The objective was to prevent these involuntary statements from being considered as evidence during trial but there was no prohibition against relying on statements made involuntarily during investigation. Wigmore argued that the privilege against self-incrimination should be viewed as a right that was confined to the trial stage, since the judge can intervene to prevent an accused from revealing incriminating information at that stage, while similar oversight is not always possible during the pre-trial stage.
In recent years, scholars such as David Dolinko (1986), Akhil Reed Amar (1997) and
Mike Redmayne (2007) among others have encapsulated the objections to the scope of this right. [See: David Dolinko, ‘Is There a Rationale for the Privilege Against SelfIncrimination?’, 33 University of California Los Angeles Law Review 1063 (1986); Akhil
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Reed Amar, The Constitution and Criminal Procedure: First Principles (New Haven: Yale
University Press, 1997) at pp. 65-70; Mike Redmayne, ‘Re-thinking the Privilege against Selfincrimination’, 27 Oxford Journal of Legal Studies 209-232 (Summer 2007)] It is argued that in aiming to create a fair state-individual balance in criminal cases, the task of the investigators and prosecutors is made unduly difficult by allowing the accused to remain silent. If the overall intent of the criminal justice system is to ensure public safety through expediency in investigations and prosecutions, it is urged that the privilege against self-incrimination protects the guilty at the cost of such utilitarian objectives. Another criticism is that adopting a broad view of this right does not deter improper practices during investigation and it instead encourages investigators to make false representations to courts about the voluntary or involuntary nature of custodial statements. It is reasoned that when investigators are under pressure to deliver results there is an inadvertent tendency to rely on methods involving coercion, threats, inducement or deception in spite of the legal prohibitions against them.
Questions have also been raised about conceptual inconsistencies in the way that courts have expanded the scope of this right. One such objection is that if the legal system is obliged to respect the mental privacy of individuals, then why is there no prohibition against compelled testimony in civil cases which could expose parties to adverse consequences. Furthermore, questions have also been asked about the scope of the privilege being restricted to testimonial acts while excluding physical evidence which can be extracted through compulsion.
In response to John Wigmore 's thesis about the separate foundations of the ‘rule against involuntary confessions’, we must recognise the infusion of constitutional values into all branches of law, including procedural areas such as the law of evidence. While the abovementioned criticisms have been made in academic commentaries, we must defer to the judicial precedents that control the scope of Article 20(3). …
I-A. Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject?
The respondents have submitted that the compulsory administration of the impugned tests will only be sought to boost investigation efforts and that the test results by themselves will not be admissible as evidence. The next prong of this position is that if the test results enable the investigators to discover independent materials that are relevant to the case, such subsequently discovered materials should be admissible during trial. In order to evaluate this position, we must answer the following questions:
• Firstly, we should clarify the scope of the ‘right against self-incrimination’ - i.e. whether it should be construed as a broad protection that extends to the investigation stage or should it be viewed as a narrower right confined to the trial stage?
• Secondly, we must examine the ambit of the words ‘accused of any offence’ in
Article 20(3) - i.e. whether the protection is available only to persons who are formally accused in criminal cases, or does it extend to include suspects and witnesses as well as those who apprehend incrimination in cases other than the one being investigated?
• Thirdly, we must evaluate the evidentiary value of independent materials that are subsequently discovered with the help of the test results. In light of the ‘theory of confirmation by subsequent facts’ incorporated in Section 27 of the Indian Evidence Act,
1872 we need to examine the compatibility between this section and Article 20(3). Of special concern are situations when persons could be compelled to reveal information which leads to the discovery of independent materials. To answer this question, we must clarify what constitutes ‘incrimination’ for the purpose of invoking Article 20(3).
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Applicability of Article 20(3) to the stage of investigation
The question of whether Article 20(3) should be narrowly construed as a trial right or a broad protection that extends to the stage of investigation has been conclusively answered by our Courts. In M.P. Sharma v. Satish Chandra [1954] SCR 1077, it was held by
Jagannadhadas, J. at pp. 1087-1088:
“Broadly stated, the guarantee in Article 20(3) is against `testimonial compulsion '.
It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions…"
"Indeed, every positive volitional act which furnished evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in Article 20(3) is `to be a witness ' and not to
`appear as a witness ': It follows that the protection afforded to an accused in so far as it is related to the phrase `to be a witness ' is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case." These observations were cited with approval by B.P. Sinha, C.J. in State of
Bombay v. Kathi Kalu Oghad [1962] 3 SCR 10, at pp. 26-28. In the minority opinion, Das
Gupta, J. affirmed the same position… The broader view of Article 20(3) was consolidated in Nandini Satpathyv. P.L. Dani (1978) 2 SCC 424… In upholding this broad view of
Article 20(3), V.R. Krishna Iyer, J. relied heavily on the decision of the US Supreme Court in Ernesto Miranda v.Arizona 384 US 436 (1966). The majority opinion (by Earl Warren,
C.J.) laid down that custodial statements could not be used as evidence unless the police officers had administered warnings about the accused 's right to remain silent. The decision also recognised the right to consult a lawyer prior to and during the course of custodial interrogations. The practice promoted by this case is that it is only after a person has
`knowingly and intelligently ' waived of these rights after receiving a warning that the statements made thereafter can be admitted as evidence. The safeguards were prescribed in the following manner, Id. at pp. 444-445:
…the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against selfincrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. [...] As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any
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stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.
These safeguards were designed to mitigate the disadvantages faced by a suspect in a custodial environment. This was done in recognition of the fact that methods involving deception and psychological pressure were routinely used and often encouraged in police interrogations. Emphasis was placed on the ability of the person being questioned to fully comprehend and understand the content of the stipulated warning. …
The majority decision in Miranda (supra.) was not a sudden development in U.S. constitutional law. The scope of the privilege against self-incrimination had been progressively expanded in several prior decisions. The notable feature was the recognition of the interrelationship between the Fifth Amendment and the Fourteenth Amendment 's guarantee that the government must observe the ‘due process of law’ as well as the Fourth
Amendment 's protection against `unreasonable search and seizure '. While it is not necessary for us to survey these decisions, it will suffice to say that after Miranda (supra.), administering a warning about a person 's right to silence during custodial interrogations as well as obtaining a voluntary waiver of the prescribed rights has become a ubiquitous feature in the U.S. criminal justice system. In the absence of such a warning and voluntary waiver, there is a presumption of compulsion with regard to the custodial statements, thereby rendering them inadmissible as evidence. The position in India is different since there is no automatic presumption of compulsion in respect of custodial statements. However, if the fact of compulsion is proved then the resulting statements are rendered inadmissible as evidence.
Who can invoke the protection of Article 20(3)?
… While there is a requirement of formal accusation for a person to invoke Article 20(3) it must be noted that the protection contemplated by Section161(2), CrPC is wider.
Section 161(2) read with 161(1) protects `any person supposed to be acquainted with the facts and circumstances of the case ' in the course of examination by the police. …
Therefore the `right against self-incrimination ' protects persons who have been formally accused as well as those who are examined as suspects in criminal cases. It also extends to cover witnesses who apprehend that their answers could expose them to criminal charges in the ongoing investigation or even in cases other than the one being investigated. …
Even though Section 161(2) of the CrPC casts a wide protective net to protect the formally accused persons as well as suspects and witnesses during the investigative stage,
Section 132 of the Evidence Act limits the applicability of this protection to witnesses during the trial stage. The latter provision provides that witnesses cannot refuse to answer questions during a trial on the ground that the answers could incriminate them. However, the proviso to this section stipulates that the content of such answers cannot expose the witness to arrest or prosecution, except for a prosecution for giving false evidence. Therefore, the protection accorded to witnesses at the stage of trial is not as wide as the one accorded to the accused, suspects and witnesses during investigation [under Section 161(2), CrPC]. Furthermore, it is narrower than the protection given to the accused during the trial stage [under
Section 313(3) and Proviso (b) to Section 315(1), CrPC]. The legislative intent is to preserve the fact-finding function of a criminal trial. …
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Since the extension of the ‘right against self- incrimination’ to suspects and witnesses has its basis in Section 161(2), CrPC it is not readily available to persons who are examined during proceedings that are not governed by the code. There is a distinction between proceedings of a purely criminal nature and those proceedings which can culminate in punitive remedies and yet cannot be characterised as criminal proceedings. The consistent position has been that ordinarily Article 20(3) cannot be invoked by witnesses during proceedings that cannot be characterised as criminal proceedings. In administrative and quasi-criminal proceedings, the protection of Article 20(3) becomes available only after a person has been formally accused of committing an offence. …
What constitutes `incrimination ' for the purpose of Article 20(3)?
We can now examine the various circumstances that could ‘expose a person to criminal charges’. The scenario under consideration is one where a person in custody is compelled to reveal information which aids the investigation efforts. The information so revealed can prove to be incriminatory in the following ways:
• The statements made in custody could be directly relied upon by the prosecution to strengthen their case. However, if it is shown that such statements were made under circumstances of compulsion, they will be excluded from the evidence.
• Another possibility is that of `derivative use ', i.e. when information revealed during questioning leads to the discovery of independent materials, thereby furnishing a link in the chain of evidence gathered by the investigators.
• Yet another possibility is that of `transactional use ', i.e. when the information revealed can prove to be helpful for the investigation and prosecution in cases other than the one being investigated.
• A common practice is that of extracting materials or information, which are then compared with materials that are already in the possession of the investigators. For instance, handwriting samples and specimen signatures are routinely obtained for the purpose of identification or corroboration. …
In Kathi Kalu Oghad 's case, this Court authoritatively observed, on the bounds between constitutional proscription and testimonial permission: 'In order that a testimony by an accused person may be said to have been selfincriminatory, the compulsion of which comes within the prohibition of the constitutional provisions, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so.
In other words, it should be a statement which makes the case against the accused at least probable, considered by itself. '
Again the Court indicated that Article 20(3) could be invoked only against statements which ‘had a material bearing on the criminality of the maker of the statement’…
In light of these observations, we must examine the permissibility of extracting statements which may furnish a link in the chain of evidence and hence create a risk of exposure to criminal charges. The crucial question is whether such derivative use of information extracted in a custodial environment is compatible with Article 20(3). It is a settled principle that statements made in custody are considered to be unreliable unless they have been subjected to cross- examination or judicial scrutiny. The scheme created by the Code of Criminal
Procedure and the Indian Evidence Act also mandates that confessions made before police officers are ordinarily not admissible as evidence and it is only the statements made in the presence of a judicial magistrate which can be given weightage. The doctrine of excluding the
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‘fruits of a poisonous tree’ has been incorporated in Sections 24, 25 and 26 of the Indian
Evidence Act, 1872…
We have already referred to the language of Section 161, CrPC which protects the accused as well as suspects and witnesses who are examined during the course of investigation in a criminal case. It would also be useful to refer to Sections 162, 163 and 164 of the CrPC which lay down procedural safeguards in respect of statements made by persons during the course of investigation. However, Section 27 of the Evidence Act incorporates the ‘theory of confirmation by subsequent facts’ - i.e. statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence such statements could also be described as those which ‘furnish a link in the chain of evidence’ needed for a successful prosecution. …
This provision permits the derivative use of custodial statements in the ordinary course of events. In Indian law, there is no automatic presumption that the custodial statements have been extracted through compulsion. In short, there is no requirement of additional diligence akin to the administration of Miranda warnings. However, in circumstances where it is shown that a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3). …
We must also address another line of reasoning which was adopted in one of the impugned judgments. It was stated that the exclusionary rule in evidence law is applicable to statements that are inculpatory in nature. Based on this premise, it was observed that at the time of administering the impugned tests, it cannot be ascertained whether the resulting revelations or inferences will prove to be inculpatory or exculpatory in due course. Taking this reasoning forward, it was held that the compulsory administration of the impugned tests should be permissible since the same does not necessarily lead to the extraction of inculpatory evidence.
We are unable to agree with this reasoning.
The distinction between inculpatory and exculpatory evidence gathered during investigation is relevant for deciding what will be admissible as evidence during the trial stage.
The exclusionary rule in evidence law mandates that if inculpatory evidence has been gathered through improper methods (involving coercion, threat or inducement among others) then the same should be excluded from the trial, while there is no such prohibition on the consideration of exculpatory evidence. However, this distinction between the treatment of inculpatory and exculpatory evidence is made retrospectively at the trial stage and it cannot be extended back to the stage of investigation. If we were to permit the admission of involuntary statement on the ground that at the time of asking a question it is not known whether the answer will be inculpatory or exculpatory, the `right against self-incrimination ' will be rendered meaningless.
The law confers on `any person ' who is examined during an investigation, an effective choice between speaking and remaining silent. This implies that it is for the person being examined to decide whether the answer to a particular question will eventually prove to be inculpatory or exculpatory. Furthermore, it is also likely that the information or materials collected at an earlier stage of investigation can prove to be inculpatory in due course.
However, it is conceivable that in some circumstances the testimony extracted through compulsion may not actually lead to exposure to criminal charges or penalties. For example this is a possibility when the investigators make an offer of immunity against the direct use, derivative use or transactional use of the testimony. Immunity against direct use entails that a witness will not be prosecuted on the basis of the statements made to the investigators. A protection against derivative use implies that a person will not be prosecuted on the basis of
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the fruits of such testimony. Immunity against transactional use will shield a witness from criminal charges in cases other than the one being investigated. It is of course entirely up to the investigating agencies to decide whether to offer immunity and in what form. Even though this is distinctly possible, it is difficult to conceive of such a situation in the context of the present case. A person who is given an offer of immunity against prosecution is far more likely to voluntarily cooperate with the investigation efforts. This could be in the form of giving testimony or helping in the discovery of material evidence. If a person is freely willing to cooperate with the investigation efforts, it would be redundant to compel such a person to undergo the impugned tests. If reliance on such tests is sought for refreshing a cooperating witness ' memory, the person will in all probability give his/her consent to undergo these tests.
It could be argued that the compulsory administration of the impugned tests can prove to be useful in instances where the cooperating witness has difficulty in remembering the relevant facts or is wilfully concealing crucial details. Such situations could very well arise when a person who is a co- accused is offered immunity from prosecution in return for cooperating with the investigators. Even though the right against self-incrimination is not directly applicable in such situations, the relevant legal inquiry is whether the compulsory administration of the impugned tests meets the requisite standard of `substantive due process ' for placing restraints on personal liberty.
At this juncture, it must be reiterated that Indian law incorporates the ‘rule against adverse inferences from silence’ which is operative at the trial stage. As mentioned earlier, this position is embodied in a conjunctive reading of Article 20(3) of the Constitution and
Sections 161(2), 313(3) and Proviso (b) of Section 315(1) of the CrPC. The gist of this position is that even though an accused is a competent witness in his/her own trial, he/she cannot be compelled to answer questions that could expose him/her to incrimination and the trial judge cannot draw adverse inferences from the refusal to do so. This position is cemented by prohibiting any of the parties from commenting on the failure of the accused to give evidence… … Some commentators have argued that the ‘rule against adverse inferences from silence’ should be broadly construed in order to give protection against non-penal consequences. It is reasoned that the fact of a person 's refusal to answer questions should not be held against him/her in a wide variety of settings, including those outside the context of criminal trials. A hypothetical illustration of such a setting is a deportation hearing where an illegal immigrant could be deported following a refusal to answer questions or furnish materials required by the concerned authorities. This question is relevant for the present case because a person who refuses to undergo the impugned tests during the investigative stage could face non-penal consequences which lie outside the protective scope of Article 20(3). For example, a person who refuses to undergo these tests could face the risk of custodial violence, increased police surveillance or harassment thereafter. Even a person who is compelled to undergo these tests could face such adverse consequences on account of the contents of the test results if they heighten the investigators ' suspicions. Each of these consequences, though condemnable, fall short of the requisite standard of ‘exposure to criminal charges and penalties’ that has been enumerated in Section 161(2) of the CrPC. Even though Article 20(3) will not be applicable in such circumstances, reliance can be placed on Article 21 if such non-penal consequences amount to a violation of ‘personal liberty’ as contemplated under the Constitution. …
I-B. Whether the results derived from the impugned techniques amount to `testimonial compulsion ' thereby attracting the bar of Article 20(3)?
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The next issue is whether the results gathered from the impugned tests amount to
`testimonial compulsion ', thereby attracting the prohibition of Article 20(3). For this purpose, it is necessary to survey the precedents which deal with what constitutes ‘testimonial compulsion’ and how testimonial acts are distinguished from the collection of physical evidence. Apart from the apparent distinction between evidence of a testimonial and physical nature, some forms of testimonial acts lie outside the scope of Article 20(3). For instance, even though acts such as compulsorily obtaining specimen signatures and handwriting samples are testimonial in nature, they are not incriminating by themselves if they are used for the purpose of identification or corroboration with facts or materials that the investigators are already acquainted with. The relevant consideration for extending the protection of
Article 20(3) is whether the materials are likely to lead to incrimination by themselves or
‘furnish a link in the chain of evidence’ which could lead to the same result. Hence, reliance on the contents of compelled testimony comes within the prohibition of Article 20(3) but its use for the purpose of identification or corroboration with facts already known to the investigators is not barred.
It is quite evident that the narcoanalysis technique involves a testimonial act. A subject is encouraged to speak in a drug-induced state, and there is no reason why such an act should be treated any differently from verbal answers during an ordinary interrogation. In one of the impugned judgments, the compulsory administration of the narcoanalysis technique was defended on the ground that at the time of conducting the test, it is not known whether the results will eventually prove to be inculpatory or exculpatory. We have already rejected this reasoning. We see no other obstruction to the proposition that the compulsory administration of the narcoanalysis technique amounts to ‘testimonial compulsion’ and thereby triggers the protection of Article 20(3).
However, an unresolved question is whether the results obtained through polygraph examination and the BEAP test are of a testimonial nature. In both these tests, inferences are drawn from the physiological responses of the subject and no direct reliance is placed on verbal responses. In some forms of polygraph examination, the subject may be required to offer verbal answers such as `Yes ' or `No ', but the results are based on the measurement of changes in several physiological characteristics rather than these verbal responses. In the
BEAP test, the subject is not required to give any verbal responses at all and inferences are drawn from the measurement of electrical activity in the brain. In the impugned judgments, it has been held that the results obtained from both the Polygraph examination and the BEAP test do not amount to ‘testimony’ thereby lying outside the protective scope of Article 20(3).
The same assertion has been reiterated before us by the counsel for the respondents. In order to evaluate this position, we must examine the contours of the expression ‘testimonial compulsion’. The question of what constitutes ‘testimonial compulsion’ for the purpose of
Article 20(3) was addressed in M.P. Sharma 's case (supra.). In that case, the Court considered whether the issuance of search warrants in the course of an investigation into the affairs of a company (following allegations of misappropriation and embezzlement) amounted to an infringement of Article 20(3). The search warrants issued under Section 96 of the erstwhile
Code of Criminal Procedure, 1898 authorised the investigating agencies to search the premises and seize the documents maintained by the said company. The relevant observations were made by Jagannadhadas, J., at pp. 1087-1088:
…The phrase used in Article 20(3) is `to be a witness '. A person can `be a witness ' not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness [see Section 119 of the
Evidence Act or the like]. `To be a witness ' is nothing more than `to furnish
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evidence ', and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes…
Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part…
These observations suggest that the phrase `to be a witness ' is not confined to oral testimony for the purpose of invoking Article 20(3) and that it includes certain non-verbal forms of conduct such as the production of documents and the making of intelligible gestures.
However, in Kathi Kalu Oghad (supra.), there was a disagreement between the majority and minority opinions on whether the expression ‘to be a witness’ was the same as ‘to furnish evidence’. In that case, this Court had examined whether certain statutory provisions, namely
- Section 73 of the Evidence Act, Sections 5 and 6 of the Identification of Prisoners Act, 1920 and Section 27 of the Evidence Act were compatible with Article 20(3). Section 73 of the
Evidence Act empowered courts to obtain specimen handwriting or signatures and finger impressions of an accused person for purposes of comparison. Sections 5 and 6 of the
Identification of Prisoners Act empowered a Magistrate to obtain the photograph or measurements of an accused person. In respect of Section 27 of the Evidence Act, there was an agreement between the majority and the minority opinions that the use of compulsion to extract custodial statements amounts to an exception to the ‘theory of confirmation by subsequent facts’. We have already referred to the relevant observations in an earlier part of this opinion. Both the majority and minority opinions ruled that the other statutory provisions mentioned above were compatible with Article 20(3), but adopted different approaches to arrive at this conclusion. In the majority opinion it was held that the ambit of the expression
‘to be a witness’ was narrower than that of ‘furnishing evidence’. …
Since the majority decision in Kathi Kalu Oghad (supra.) is the controlling precedent, it will be useful to re-state the two main premises for understanding the scope of ‘testimonial compulsion’. The first is that ordinarily it is the oral or written statements which convey the personal knowledge of a person in respect of relevant facts that amount to ‘personal testimony’ thereby coming within the prohibition contemplated by Article 20(3). In most cases, such
‘personal testimony’ can be readily distinguished from material evidence such as bodily substances and other physical objects. The second premise is that in some cases, oral or written statements can be relied upon but only for the purpose of identification or comparison with facts and materials that are already in the possession of the investigators. The bar of
Article 20(3) can be invoked when the statements are likely to lead to incrimination by themselves or ‘furnish a link in the chain of evidence’ needed to do so. We must emphasize that a situation where a testimonial response is used for comparison with facts already known to investigators is inherently different from a situation where a testimonial response helps the investigators to subsequently discover fresh facts or materials that could be relevant to the ongoing investigation. …
Evolution of the law on ‘medical examination’
With respect to the testimonial-physical distinction, an important statutory development in our legal system was the introduction of provisions for medical examination with the overhauling of the Code of Criminal Procedure in 1973. Sections 53 and 54 of the CrPC contemplate the medical examination of a person who has been arrested, either at the instance of the investigating officer or even the arrested person himself. The same can also be done at the direction of the jurisdictional court.
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However, there were no provisions for authorising such a medical examination in the erstwhile Code of Criminal Procedure, 1898. The absence of a statutory basis for the same had led courts to hold that a medical examination could not be conducted without the prior consent of the person who was to be subjected to the same. …
It was the 37th and 41st Reports of the Law Commission of India which recommended the insertion of a provision in the Code of Criminal Procedure to enable medical examination without the consent of an accused. These recommendations proved to be the precursor for the inclusion of Sections 53and 54 in the Code of Criminal Procedure, 1973.
We were also alerted to some High Court decisions which have relied on Kathi Kalu
Oghad (supra.) to approve the taking of physical evidence such as blood and hair samples in the course of investigation. Following the overhaul of the Code of Criminal Procedure in 1973, the position became amply clear. In recent years, the judicial power to order a medical examination, albeit in a different context, has been discussed by this Court in Sharda v.
Dharampal (2003) 4 SCC 493. In that case, the contention related to the validity of a civil court 's direction for conducting a medical examination to ascertain the mental state of a party in a divorce proceeding. Needless to say, the mental state of a party was a relevant issue before the trial court, since insanity is a statutory ground for obtaining divorce under the Hindu
Marriage Act, 1955. S.B. Sinha, J. held that Article 20(3) was anyway not applicable in a civil proceeding and that the civil court could direct the medical examination in exercise of its inherent powers under Section 151 of the Code of Civil Procedure, since there was no ordinary statutory basis for the same. …
The decision had also cited some foreign precedents dealing with the authority of investigators and courts to require the collection of DNA samples for the purpose of comparison. In that case the discussion centered on the ‘right to privacy’. So far, the authority of investigators and courts to compel the production of DNA samples has been approved by the Orissa High Court in Thogorani v. State of Orissa 2004 Cri L.J. 4003 (Ori).
At this juncture, it should be noted that the Explanation to Sections 53, 53A and 54 of the
Code of Criminal Procedure, 1973 was amended in 2005 to clarify the scope of medical examination, especially with regard to the extraction of bodily substances. …
The respondents have urged that the impugned techniques should be read into the relevant provisions - i.e. Sections 53 and 54 of CrPC. As described earlier, a medical examination of an arrested person can be directed during the course of an investigation, either at the instance of the investigating officer or the arrested person. It has also been clarified that it is within the powers of a court to direct such a medical examination on its own. Such an examination can also be directed in respect of a person who has been released from custody on bail as well as a person who has been granted anticipatory bail. Furthermore, Section 53 contemplates the use of ‘force as is reasonably necessary’ for conducting a medical examination. This means that once a court has directed the medical examination of a particular person, it is within the powers of the investigators and the examiners to resort to a reasonable degree of physical force for conducting the same.
The contentious provision is the Explanation to Sections 53, 53A and 54 of the CrPC
(amended in 2005) which has been reproduced above. It has been contended that the phrase
‘modern and scientific techniques including DNA profiling and such other tests’ should be liberally construed to include the impugned techniques. It was argued that even though the narcoanalysis technique, polygraph examination and the BEAP test have not been expressly enumerated, they could be read in by examining the legislative intent. Emphasis was placed on the phrase ‘and such other tests’ to argue that the Parliament had chosen an approach where the list of ‘modern and scientific techniques’ contemplated was illustrative and not exhaustive.
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It was also argued that in any case, statutory provisions can be liberally construed in light of scientific advancements. With the development of newer technologies, their use can be governed by older statutes which had been framed to regulate the older technologies used for similar purposes.
On the other hand, the counsel for the appellants have contended that the Parliament was well aware of the impugned techniques at the time of the 2005 amendment and consciously chose not to include them in the amended Explanation to Sections 53, 53A and 54 of the CrPC.
It was reasoned that this choice recognised the distinction between testimonial acts and physical evidence. While bodily substances such as blood, semen, sputum, sweat, hair and fingernail clippings can be readily characterised as physical evidence, the same cannot be said for the techniques in question. This argument was supported by invoking the rule of ‘ejusdem generis’ which is used in the interpretation of statutes. This rule entails that the meaning of general words which follow specific words in a statutory provision should be construed in light of the commonality between those specific words. In the present case, the substances enumerated are all examples of physical evidence. Hence the words ‘and such other tests’ which appear in the Explanation to Sections 53, 53A and 54 of the CrPC should be construed to include the examination of physical evidence but not that of testimonial acts.
We are inclined towards the view that the results of the impugned tests should be treated as testimonial acts for the purpose of invoking the right against self-incrimination. Therefore, it would be prudent to state that the phrase ‘and such other tests’ [which appears in the
Explanation to Sections 53, 53A and 54 of the CrPC] should be read so as to confine its meaning to include only those tests which involve the examination of physical evidence. In pursuance of this line of reasoning, we agree with the appellant 's contention about the applicability of the rule of ‘ejusdem generis’. It should also be noted that the Explanation to
Sections 53, 53A and 54 of the CrPC does not enumerate certain other forms of medical examination that involve testimonial acts, such as psychiatric examination among others. This demonstrates that the amendment to this provision was informed by a rational distinction between the examination of physical substances and testimonial acts.
… Another pertinent contention raised by the appellants is that the involvement of medical personnel in the compulsory administration of the impugned tests is violative of their professional ethics. In particular, criticism was directed against the involvement of doctors in the narcoanalysis technique and it was urged that since the content of the drug-induced revelations were shared with investigators, this technique breaches the duty of confidentiality which should be ordinarily maintained by medical practitioners. [See generally: Amar Jesani,
`Willing participants and tolerant profession: Medical ethics and human rights in narcoanalysis ', Indian Journal of Medical Ethics, Vol. 16(3), July-Sept. 2008] The counsel have also cited the text of the `Principles of Medical Ethics ' adopted by the United Nations General
Assembly [GA Res. 37/194, 111th Plenary Meeting] on December 18, 1982. This document enumerates some `Principles of Medical Ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture, and other cruel, inhuman or degrading treatment of punishment '. Emphasis was placed on Principle 4 which reads:
Principle 4
It is a contravention of medical ethics for health personnel, particularly physicians: To apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees and which is not in accordance with the relevant international instruments;
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Being a court of law, we do not have the expertise to mould the specifics of professional ethics for the medical profession. Furthermore, the involvement of doctors in the course of investigation in criminal cases has long been recognised as an exception to the physicianpatient privilege. In the Indian context, the statutory provisions for directing a medical examination are an example of the same. Fields such as forensic toxicology have become important in criminal-justice systems all over the world and doctors are frequently called on to examine bodily substances such as samples of blood, hair, semen, saliva, sweat, sputum and fingernail clippings as well as marks, wounds and other physical characteristics. A reasonable limitation on the forensic uses of medical expertise is the fact that testimonial acts such as the results of a psychiatric examination cannot be used as evidence without the subject 's informed consent.
Results of impugned tests should be treated as `personal testimony '
… Even though the actual process of undergoing a polygraph examination or a BEAP test is not the same as that of making an oral or written statement, the consequences are similar.
By making inferences from the results of these tests, the examiner is able to derive knowledge from the subject 's mind which otherwise would not have become available to the investigators.
These two tests are different from medical examination and the analysis of bodily substances such as blood, semen and hair samples, since the test subject 's physiological responses are directly correlated to mental faculties. Through lie-detection or gauging a subject 's familiarity with the stimuli, personal knowledge is conveyed in respect of a relevant fact. It is also significant that unlike the case of documents, the investigators cannot possibly have any prior knowledge of the test subject 's thoughts and memories, either in the actual or constructive sense. Therefore, even if a highly-strained analogy were to be made between the results obtained from the impugned tests and the production of documents, the weight of precedents leans towards restrictions on the extraction of ‘personal knowledge’ through such means.
During the administration of a polygraph test or a BEAP test, the subject makes a mental effort which is accompanied by certain physiological responses. The measurement of these responses then becomes the basis of the transmission of knowledge to the investigators. This knowledge may aid an ongoing investigation or lead to the discovery of fresh evidence which could then be used to prosecute the test subject. In any case, the compulsory administration of the impugned tests impedes the subject 's right to choose between remaining silent and offering substantive information. The requirement of a ‘positive volitional act’ becomes irrelevant since the subject is compelled to convey personal knowledge irrespective of his/her own volition. … [W]e are of the view that the results obtained from tests such as polygraph examination and the BEAP test should also be treated as ‘personal testimony’, since they are a means for
‘imparting personal knowledge about relevant facts’. Hence, our conclusion is that the results obtained through the involuntary administration of either of the impugned tests (i.e. the narcoanalysis technique, polygraph examination and the BEAP test) come within the scope of
‘testimonial compulsion’, thereby attracting the protective shield of Article 20(3).
… [Discussion on Article 21 and allied issues is omitted] …
CONCLUSION
In our considered opinion, the compulsory administration of the impugned techniques violates the ‘right against self- incrimination’. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as
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evidence. This Court has recognised that the protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the Code of
Criminal Procedure, 1973 it protects accused persons, suspects as well as witnesses who are examined during an investigation. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual 's choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible ‘conveyance of personal knowledge that is relevant to the facts in issue’. The results obtained from each of the impugned tests bear a ‘testimonial’ character and they cannot be categorised as material evidence. We are also of the view that forcing an individual to undergo any of the impugned techniques violates the standard of ‘substantive due process’ which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a non-penal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases, i.e. the Explanation to
Sections 53, 53A and 54 of the Code of Criminal Procedure, 1973. Such an expansive interpretation is not feasible in light of the rule of ‘ejusdem generis’ and the considerations which govern the interpretation of statutes in relation to scientific advancements. We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to ‘cruel, inhuman or degrading treatment’ with regard to the language of evolving international human rights norms. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the ‘right to fair trial’. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the ‘right against self-incrimination’.
In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty.
However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872. The National Human Rights
Commission had published ‘Guidelines for the Administration of Polygraph Test (Lie
Detector Test) on an Accused’ in 2000. These guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the ‘Narcoanalysis technique’ and the
‘Brain Electrical Activation Profile’ test. …
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UNIT 7 – PREVENTIVE DETENTION (ARTICLE 22)
A. K. GOPALAN V. STATE OF MADRAS
AIR 1950 SC 27
Decided On: May 19, 1950
BENCH – CHIEF JUSTICE H. L. KANIA, JUSTICES S. FAZL ALI, PATANJALI SASTRI, M. C.
MAHAJAN, B. K. MUKHERJEA & S. R. DAS
CHIEF JUSTICE KANIA (FOR HIMSELF)
This is a petition by the applicant under article 32(1) of the Constitution of India for a writ of habeas corpus against his detention in the Madras Jail. In the petition he has given various dates showing how he has been under detention since December, 1947. Under the ordinary
Criminal Law he was sentenced to terms of imprisonment but those convictions were set aside.
While he was thus under detention under one of the orders of the Madras State Government, on the 1st of March, 1950, he was served with an order made under section 3(1) of the
Preventive Detention Act, IV of 1950. He challenges the legality of the order as it is contended that Act IV of 1950 contravenes the provisions of articles 13, 19 and 21 and the provisions of that Act are not in accordance with article 22 of the Constitution. He has also challenged the validity of the order on the ground that it is issued mala fide. The burden of proving that allegation is on the applicant. Because of the penal provisions of section 14 of the impugned
Act the applicant has not disclosed the grounds, supplied to him, for his detention and the question of mala fides of the order therefore cannot be gone into under this petition.
The question of the validity of Act IV of 1950 was argued before us at great length. This is the first case in which the different articles of the Constitution of India contained in the
Chapter on Fundamental Rights has come for discussion before us. The Court is indebted to the learned counsel for the applicant and the Attorney-General for their assistance in interpreting the true meaning of the relevant clauses of the Constitution.
………
A detailed discussion of the true limits of article 21 will not be necessary if article 22 is considered a code to the extent there are provisions therein for preventive detention. In this connection it may be noticed that the articles in Part III deal with different and separate rights.
Under the caption "Right to Freedom" articles 19 - 22 are grouped but each with a separate marginal note. It is obvious that article22(1) and (2) prescribe limitations on the right given by article 21. If the procedure mentioned in those articles is followed the arrest and detention contemplated by article 22(1) and (2), although they infringe the personal liberty of the individual, will be legal, because that becomes the established legal procedure in respect of arrest and detention. …
The learned Attorney-General contended that the subject of preventive detention does not fall under article21 at all and is covered wholly by article 22. According to him, article 22 is a complete code. I am unable to accept that contention. It is obvious that in respect of arrest and detention article 22(1) and (2) provide safeguards. These safeguards are excluded in the case of preventive detention by article 22(3), but safeguards in connection with such detention are provided by clauses (4) to (7) of the same article. It is therefore clear that article 21 has to be read as supplemented by article 22. Reading in that way the proper mode of construction will be that to the extent the procedure is prescribed by article 22 the same is to be observed; otherwise article 21 will apply. But if certain procedural safeguards are expressly stated as not
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required, or specific rules on certain points of procedure are prescribed, it seems improper to interpret these points as not covered by article 22 and left open for consideration under article 21. To the extent the points are dealt with, and included or excluded, article 22 is a complete code. On the points of procedure which expressly or by necessary implication are not dealt with by article 22, the operation of article 21 will remain unaffected. It is thus necessary first to look at article 22(4) to (7) and next at the provisions of the impugned Act to determine if the Act or any of its provisions are ultra vires.
It may be noticed that neither the American nor the Japanese Constitution contain provisions permitting preventive detention, much less laying down limitations on such right of detention, in normal times, i.e., without a declaration of emergency. Preventive detention in normal times, i.e., without the existence of an emergency like war, is recognised as a normal topic of legislation in List I, Entry 9, and List III, Entry 3, of the Seventh Schedule. Even in the Chapter on Fundamental Rights article 22 envisages legislation in respect of preventive detention in normal times. The provisions of article 22(4) to (7) by their very wording leave unaffected the large powers of legislation on this point and emphasize particularly by article 22(7) the power of the Parliament to deprive a person of a right to have his case considered by an advisory board. Part III and article 22 in particular are the only restrictions on that power and but for those provisions the power to legislate on this subject would have been quite unrestricted. Parliament could have made a law without any safeguard or any procedure for preventive detention. Such an autocratic supremacy of the legislature is certainly cut down by article 21. Therefore, if the legislature prescribes a procedure by a validly enacted law and such procedure in the case of preventive detention does not come in conflict with the express provisions of Part III or article 22(4) to (7), the Preventive Detention Act must be held valid notwithstanding that the Court may not fully approve of the procedure prescribed under such Act.
Article 22(4) opens with a double negative. Put in a positive form it will mean that a law which provides for preventive detention for a period longer than three months shall contain a provision establishing an advisory board, (consisting of persons with the qualifications mentioned in sub-clause (a), and which has to report before the expiration of three months if in its opinion there was sufficient cause for such detention. This clause, if it stood by itself and without the remaining provisions of article 22, will apply both to the Parliament and the
State Legislatures. The proviso to this clause further enjoins that even though the advisory board may be of the opinion that there was sufficient cause for such detention, i.e., detention beyond the period of three months, still the detention is not to be permitted beyond the maximum period, if any, prescribed by Parliament under article 22(7)(b). Again the whole of this sub-clause is made inoperative by article 22(4)(b) in respect of an Act of preventive detention passed by Parliament under clauses (7)(a) and (b). Inasmuch as the impugned Act is an Act of the Parliament purported to be so made, clause 22(4) has no operation and may for the present discussion be kept aside. Article 22(5) prescribes that when any person under a preventive detention law is detained, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. This clause is of general operation in respect of every detention order made under any law permitting detention. Article 22(6) permits the authority making the order to withhold disclosure of facts which such authority considers against the public interest to disclose. It may be noticed that this clause only permits the non-disclosure of facts, and reading clauses (5) and (6) together a distinction is drawn between facts and grounds of detention. Article22(4) and (7) deal not with the period of detention only but with other requirements in the case of preventive detention also. They provide for the establishment of an advisory board, and the necessity of furnishing grounds to the detenue and also to give him a right to make a representation. Reading
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article 22 clauses (4) and (7) together it appears to be implied that preventive detention for less than three months, without an advisory board, is permitted under the Chapter on
Fundamental Rights, provided such legislation is within the legislative competence of the
Parliament or the State Legislature, as the case may be.
Article 22(5) permits the detained person to make a representation. The Constitution is silent as to the person to whom it has to be made, or how it has to be dealt with. But that is the procedure laid down by the Constitution. It does not therefore mean that if a law made by the
Parliament in respect of preventive detention does not make provision on those two points it is invalid. Silence on these points does not make the impugned Act in contravention of the
Constitution because the first question is what are the rights given by the Constitution in the case of preventive detention. The contention that the representation should be to an outside body has no support in law. Even in the Liversidge case the representation had to be made to the Secretary of State and not to another body. After such representation was made, another advisory board had to consider it, but it was not necessary to make the representation itself to a third party. Article 22(4) and (7) permit the non-establishment of an advisory board expressly in a parliamentary legislation providing for preventive detention beyond three months. If so, how can it be urged that the non-establishment of an advisory board is a fundamental right violated by the procedure prescribed in the Act passed by the Parliament?
The important clause to be considered is article 22(7). Sub-clause (a) is important for this case. In the case of an Act of preventive detention passed by the Parliament this clause contained in the Chapter on Fundamental Rights, thus permits detention beyond a period of three months and excludes the necessity of consulting an advisory board, if the opening words of the sub-clause are complied with. Sub-clause (b) is permissive. It is not obligatory on the
Parliament to prescribe any maximum period. It was argued that this gives the Parliament a right to allow a person to be detained indefinitely. If that construction is correct, it springs out of the words of sub-clause (7) itself and the Court cannot help in the matter. Sub-clause (c) permits the Parliament to lay down the procedure to be followed by the advisory board in an inquiry under sub-clause (a) of clause (4). I am unable to accept the contention that article 22(4)(a) is the rule and article 22(7) the exception. I read them as two alternatives, provided by the Constitution for making laws on preventive detention.
Bearing in mind the provisions of article 22 read with article 246 and Schedule VII, List
I, Entry 9, and List III, Entry 3, it is thus clear that the Parliament is empowered to enact a law of preventive detention (a) for reasons connected with defence, (b) for reasons connected with foreign affairs, (c) for reasons connected with the security on India; and (under List III), (d) for reasons connected with the security of a State, (e) for reasons connected with the maintenance of public order, or (f) for reasons connected with the maintenance of supplies and services essential to the community. Counsel for the petitioner has challenged the validity of several provisions of the Act. In respect of the construction of a Constitution Lord Wright in James v. Commonwealth of Australia, (1936) A.C. 578 , observed:
That a Constitution must not be construed in any narrow and pedantic sense." Mr. Justice
Higgins in Attorney-General of New South Wales v. Brewery Employees ' Union (1908) 6
Com. L.R. 469 , observed :
"Although we are to interpret words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting - to remember that it is a Constitution, a mechanism under which laws are to be made and not a mere Act which declares what the law is to be." In In re The Central Provinces and Berar Act XIV of 1938, (1939) F.C.R. 18,
Sir Maurice Gwyer C.J. after adopting these observations said:
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"Especially is this true of a Federal Constitution with its nice balance of jurisdictions. I conceive that a board and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they are free to stretch or pervert the language of the enactment in the interest of any legal or constitutional theory or even for the purpose of supplying omissions or of correcting supposed errors." There is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the
Constitution but not expressed in words. Where the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument. It is difficult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written Constitution give that authority. It is also stated, if the words be positive and without ambiguity, there is no authority for a Court to vacate or repeal a Statute on that ground alone. But it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation that one can find a safe and solid ground for the authority of Courts of justice to declare void any legislative enactment. Any assumption of authority beyond this would be to place in the hands of the judiciary powers too great and too indefinite either for its own security or the protection of private rights.
It was first argued that by section 3 the Parliament had delegated its legislative power to the executive officer in detaining a person on his being satisfied of its necessity. It was urged that the satisfaction must be of the legislative body. This contention of delegation of the legislative power in such cases has been considered and rejected in numerous cases by our
Federal Court and by the English Courts. It is unnecessary to refer to all those cases. A regarding of the various speeches in Liversidge v. Anderson, (1942) A.C. 206 clearly negatives this contention. Section 3 of the impugned Act is no delegation of legislative power to make laws. It only confers discretion on the officer to enforce the law made by the legislature.
Section 3 is also impugned on the ground that it does not provide an objective standard which the Court can utilize for determining whether the requirements of law have been complied with. It is clear that no such objective standard of conduct can be prescribed, except as laying down conduct tending to achieve or to avoid a particular object. For preventive detention action must be taken on good suspicion. It is a subjective test based on the cumulative effect of different actions, perhaps spread over a considerable period. As observed by Lord Finlay in King v. Halliday, (1917) A.C. 260, a Court is the least appropriate tribunal to investigate the question whether circumstances of suspicion exist warranting the restraint on a person.
The contention is urged in respect of preventive detention and not punitive detention. Before a person can be held liable for an offence it is obvious that he should be in a position to know what he may do or not do, and an omission to do or not to do will result in the State considering him guilty according to the penal enactment. When it comes however to preventive detention, the very purpose is to prevent the individual not merely from acting in a particular way but, as the sub-heads summarized above show, from achieving a particular object. It will not be humanly possible to tabulate exhaustively all actions which may lead to a particular object. It has therefore been considered that a punitive detention Act which sufficiently prescribes the objects which the legislature considers have not to be worked up to is a sufficient standard to prevent the legislation being vague. In my opinion, therefore, the argument of the petitioner against section 3 of the impugned Act fails. It was also contended that section 3 prescribes no limit of time for detention and therefore the legislation is ultra vires. The answer is found in article 22(7)(b). A perusal of the provisions of the impugned Act moreover shows that in section 12 provision is made for detention for a period longer than three months but not
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exceeding one year in respect of clauses (a) and (b) of that section. It appears therefore that in respect of the rest of the clauses mentioned in section 3(1)(a) the detention is not contemplated to be for a period longer than three months, and in such cases a reference to the advisory board under section 9 is contemplated.
Section 7 of the Act which is next challenged, runs on the same lines article 22(5) and (6) and in my opinion infringes no provision of the Constitution. It was argued that this gave only the right of making a representation without being heard orally or without affording an opportunity to lead evidence and therefore was not an orderly course of procedure, as required by the rules of natural justice. The Parliament by the Act has expressly given a right to the person detained under a preventive detention order to receive the grounds for detention and also has given him a right to make a representation. The Act has thus complied with the requirements of article 22(5). That clause, which prescribes what procedure has to be followed as a matter of fundamental rights, is silent, about the person detained having a right to be heard orally or by a lawyer. The Constituent Assembly had before them the provisions of clause (1) of the same article. The Assembly having dealt with the requirements of receiving grounds and giving an opportunity to make a representation has deliberately refrained from providing a right to be heard orally. If so, I do not read the clause as guaranteeing such right under article
22(5). An "orderly course of procedure" is not limited to procedure which has been sanctioned by settled usage. New forms of procedure are as much, held even by the Supreme Court of
America, due process of law as old forms, provided they give a person a fair opportunity to present his case. It was contended that the right to make a representation in article 22(5) must carry with it a right to be heard by an independent tribunal; otherwise the making of a representation has no substance because it is not an effective remedy. I am unable to read clause (5) of article22 as giving a fundamental right to be heard by an independent tribunal.
The Constitution deliberately stops at giving the right of representation. This is natural because under article 22(7), in terms, the Constitution permits the making of a law by
Parliament in which a reference to an advisory board may be omitted. To consider the right to make a representation as necessarily including a right to be heard by an independent judicial, administrative or advisory tribunal will thus be directly in conflict with the express words of article 22(7).
… I am not prepared to accept the contention that a right to be heard orally is an essential right of procedure even according to the rules of natural justice. The right to make a defence may be admitted, but there is nothing to support the contention that an oral interview is compulsory. In the Local Government Board v. Arlidge, (1915) A.C. 120, the respondent applied to the Board constituted under the Housing Act to state a special case for the opinion of the High Court, contending that the order was invalid because (1) the report of the Inspector had been treated as a confidential document and had not been disclosed to the respondent, and
(2) because the Board had declined to give the respondent an opportunity of being heard orally by the person or persons by whom the appeal was finally decided. The Board rejected the application. Both the points were urged before the House of Lords on appeal. Viscount
Haldane L.C. in his speech rejected the contention about the necessity of an oral hearing by observing "But it does not follow that the procedure of every tribunal must be the same. In the case of a Court of law tradition in this country has prescribed certain principles to which, in the main, the procedure must conform. But what that procedure is to be in detail must depend on the nature of a tribunal." In rejecting the contention about the disclosure of the report of the Inspector, the Lord Chancellor stated: "It might or might not have been useful to disclose this report, but I do not think that the Board was bound to do so any more than it would have been bound to disclose all the minutes made on the papers in the office before a decision was come to… What appears to me to have been the fallacy of the judgment of the majority in the
Court of appeal is that it begs the question at the beginning by setting up the test of the
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procedure of a Court of justice instead of the other standard which was laid down for such cases in Board of Education v. Rice, (1911) A.C. 179. I do not think the Board was bound to hear the respondent orally provided it gave him the opportunities he actually had." In spite of the fact that in England the Parliament is supreme I am unable to accept the view that the parliament in making laws, legislates, against the well recognised principles of natural justice accepted as such in all civilized countries. The same view is accepted in the United States in
Federal Communications Commission v. WJR The Goodwill Station, 337 U.S. 265.
A right to lead evidence against facts suspected to exist is also not essential in the case of preventive detention. Article 22(6) permits the non-disclosure of facts. That is one of the clauses of the Constitution dealing with fundamental rights. If even the non-disclosure of facts is permitted, I fail to see how there can exist a right to contest facts by evidence and the noninclusion of such procedural right could make this Act invalid.
Section 10(3) was challenged on the ground that it excludes the right to appear in person or by any lawyer before the advisory board and it was argued that this was an infringement of a fundamental right. It must be noticed that article 22(1) which gives a detained person a right to consult or be defended by his own legal practitioner is specifically excluded by article 22(3) in the case of legislation dealing with preventive detention. Moreover, the
Parliament is expressly given power under article 22(7)(c) to lay down the procedure in an inquiry by an advisory board. This is also a part of article 22 itself. If so, how can the omission to give a right to audience be considered against the constitutional rights? It was pointed out that section 10(3) prevents even the disclosure of a portion of the report and opinion of the advisory board. It was argued that if so how can the detained person put forth his case before a Court and challenge the conclusions? This argument was similarly advanced in Local
Government Board v. Arlidge, (1915) A.C. 120 and rejected, as mentioned above. In my opinion, the answer is in the provision found in article 22(7)(c) of the Constitution of India.
It was argued that section 11 of the impugned Act was invalid as it permitted the continuance of the detention for such period as the Central Government or the State
Government thought fit. This may mean an indefinite period. In my opinion this argument has no substance because the Act has to be read as a whole. The whole life of the Act is for a year and therefore the argument that the detention may be for an indefinite period is unsound.
Again, by virtue of article 22(7)(b), the Parliament is not obliged to fix the maximum term of such detention. It has not so fixed it, except under section 12, and therefore it cannot be stated that section 11 is in contravention of article 22(7).
Section 12 of the impugned Act is challenged on the ground that it does not conform to the provisions of article22(7). It is argued that article 22(7) permits preventive detention beyond three months, when the Parliament prescribes "the circumstances in which, and the class or classes of cases in which," a person may be detained. It was argued that both these conditions must be fulfilled. In my opinion, this argument is unsound, because the words used in article 22(7) themselves are against such interpretation. The use of the words "which "twice in the first part of the sub-clause, read with the comma put after each, shows that the legislature wanted these to be read as disjunctive and not conjunctive. Such argument might have been possible (though not necessarily accepted) if the article in the Constitution was "the circumstances and the class or classes of cases in which..." I have no doubt that by the clause, as worded, the legislature intended that the power of preventive detention beyond three months may be exercised either if the circumstances in which, or the class or classes of cases in which, a person is suspected or apprehended to be doing the objectionable things mentioned in the section. This contention therefore fails.
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It was next contended that by section 12 the Parliament had provided that a person might be detained for a period longer than three months but not exceeding one year from the date of his detention, without obtaining the opinion of an advisory board, with a view to prevent him from acting in any manner prejudicial to (a) the defence of India, relations of India with foreign powers or the security of India; or (b) the security of a State or the maintenance of public order. It must be noticed that the contingency provided in section 3(1)(a) (iii), viz., the maintenance of supplies and services essential to the community is omitted in section 12.
Relying on the wording of these two sub-sections in section 12, it was argued that in the impugned Act the wording of Schedule VII List I, Entry 9, and List III, Entry 3, except the last part are only copied. This did not comply with the requirement to specify either the circumstances or the class or classes of cases as is necessary to be done under article 22(7) of the Constitution. Circumstances ordinarily mean events or situation extraneous to the actions of the individual concerned, while a class of cases mean determinable groups based on the actions of the individuals with a common aim or idea. Determinable may be according to the nature of the object also. It is obvious that the classification can be by grouping the activities of people or by specifying the objectives to be attained or avoided. The argument advanced on behalf of the petitioner on this point does not appeal to me because it assumes that the words of Schedule VII List I, Entry 9, and List III, Entry 3 are never capable of being considered as circumstances or classes of cases. In my opinion, that assumption is not justified, particularly when we have to take into consideration cases of preventive detention and not of conviction and punitive detention. Each of the expressions used in those entries is capable of complying with the requirement of mentioning circumstances or classes of cases. The classification of cases, having regard to an object, may itself amount to a description of the circumstances. It is not disputed that each of the entries in the Legislative Lists in the Seventh
Schedule has a specific connotation well understood and ascertainable in law. If so, there appears no reason why the same expression when used in section 12(1)(a) and (b) of the impugned Act should not be held to have such specific meaning and thus comply with the requirement of prescribing circumstances or classes of cases. This argument therefore must be rejected.
Section 13(2) was attacked on the ground that even if a detention order was revoked, another detention order under section 3 might be made against the same person on the same grounds. This clause appears to be inserted to prevent a man being released if a detention order was held invalid on some technical ground. There is nothing in the Chapter on Fundamental
Rights and in article 21 or 22 to prevent the inclusion of such a clause in a parliamentary legislation, permitting preventive detention. Article 20(2) may be read as a contrast on this point. Dealing with the four fundamental principles of natural justice in procedure claimed by the petitioner, it is thus clear that in respect of preventive detention no question of an objective standard of human conduct can be laid down. It is conceded that no notice before detention can be claimed by the very nature of such detention. The argument that after detention intimation of the grounds should be given has been recognised in article 22(5) and incorporated in the impugned Act. As regards an impartial tribunal, article 22(4) and (7) read together give the Parliament ample discretion. When in specified circumstances and classes of cases the preventive detention exceeds three months, the absence of an advisory board is expressly permitted by article 22(7). Under article 22(4) it appears implied that a provision for such tribunal is not necessary if the detention is for less than three months. As regards an opportunity to be heard, there is no absolute natural right recognised in respect of oral representation. It has been held to depend on the nature of the tribunal. The right to make a representation is affirmed by the Constitution in article 22(5) and finds a place in the impugned
Act. The right to an orderly course of procedure to the extent it is guaranteed by
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article 22(4) read with article 22(7)(c), and by article 22(7)(a) and (b), has also been thus provided in the Act. It seems to me therefore that the petitioner 's contentions even on these points fail.
Section 14 was strongly attacked on the ground that it violated all principles of natural justice and even infringed the right given by article 22(5) of the Constitution. It runs as follows: "14. (1) No Court shall, except for the purposes of a prosecution for an offence punishable under sub-section (2), allow any statement to be made, or any evidence to be given, before it of the substance of any communication made under section
7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order; and, notwithstanding anything contained in any other law, no Court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such communication or representation made, or the proceedings of an Advisory Board or that part of the report of an Advisory Board which is confidential.
(2) It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State
Government, as the case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub-section (1):
Provided that nothing in this sub-section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order."
By that section the Court is prevented (except for the purpose of punishment for such disclosure) from being informed, either by a statement or by leading evidence, of the substance of the grounds conveyed to the detained person under section 7 on which the order was made, or of any representation made by him against such order. It also prevents the Court from calling upon any public officer to disclose the substance of those grounds or from the production of the proceedings or report of the advisory board which may be declared confidential. It is clear that if this provision is permitted to stand the Court can have no material before it to determine whether the detention is proper or not. I do not mean whether the grounds are sufficient or not. It even prevents the Court from ascertaining whether the alleged grounds of detention have anything to do with the circumstances or class or classes of cases mentioned in section 12(1)(a) or (b). In Machindar Shivaji Mahar v. King, 1949 F.C.R. 827, the Federal Court held that the Court can examine the grounds given by the Government to see if they are relevant to the object which the legislation has in view. The provisions of article2 2(5) do not exclude that right of the Court. Section 14 of the impugned Act appears to be a drastic provision which requires considerable support to sustain it in a preventive detention Act.
The learned Attorney-General urged that the whole object of the section was to prevent ventilation in public of the grounds and the representations, and that it was a rule of evidence only which the Parliament could prescribe. I do not agree. This argument is clearly not sustainable on the words of article 22 clauses (5) and (6). The Government has the right under article 22(6) not to disclose facts which it considers undesirable to disclose in the public interest. It does not permit the Government to refrain from disclosing grounds which fall under clause (5). Therefore, it cannot successfully be contended that the disclosure of grounds may be withheld from the Court in public interest, as a rule of evidence. Moreover, the position is made clear by the words of article 22(5). It provides that the detaining authority shall communicate to such detained person the grounds on which the order has been made. It is therefore essential that the grounds must be connected with the order of preventive detention.
If they are not so connected the requirements of article 22(5) are not complied with and the detention order will be invalid. Therefore, it is open to a detained person to contend before a
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Court that the grounds on which the order has been made have no connection at all with the order, or have no connection with the circumstances or class or classes of cases under which a preventive detention order could be supported under section 12. To urge this argument the aggrieved party must have a right to intimate to the Court the grounds given for the alleged detention and the representation made by him. For instance, a person is served with a paper on which there are written three stanzas of a poem or three alphabets written in three different ways. For the validity of the detention order it is necessary that the grounds should be those on which the order has been made. If the detained person is not in a position to put before the
Court this paper, the Court will be prevented from considering whether the requirements of article 22(5) are complied with and that is a right which is guaranteed to every person. It seems to me therefore that the provisions of section 14 abridge the right given under article 22(5) and are therefore ultra vires.
It next remains to be considered how far the invalidity of this section affects the rest of the impugned Act. The impugned Act minus this section can remain unaffected. The omission of this section will not change the nature or the structure or the object of the legislation.
Therefore the decision that section 14 is ultra vires does not affect the validity of the rest of the Act. In my opinion therefore Act IV of 1950, except section 14, is not ultra vires. It does not infringe any provisions of Part III of the Constitution and the contention of the applicant against the validity of that Act, except to the extent of section 14, fails. The petition therefore fails and is dismissed.
JUSTICE FAZL ALI (FOR HIMSELF)
………
To my mind, the scheme of the Chapter dealing with the fundamental rights does not contemplate what is attributed to it, namely, that each article is a code by itself and is independent of the others. In my opinion, it cannot be said that articles 19, 20, 21 and 22 do not to some extent overlap each other. The case of a person who is convicted of an offence will come under articles 20 and 21 and also under article 22 so far as his arrest and detention in custody before trial are concerned. Preventive detention, which is dealt with in article 22, also amounts to deprivation of personal liberty which is referred to in article 21, and is a violation of the right of freedom of movement dealt with in article 19(1)(d). That there are other instances of overlapping of articles in the Constitution may be illustrated by reference to article 19(1)(f) and article 31 both of which deal with the right to property and to some extent overlap each other. It appears that some learned High Court Judges, who had to deal with the very question before us, were greatly impressed by the statement in the report of the
Drafting Committee of the Constitute Assembly on article 15 (corresponding to the present article 21), that the word "liberty" should be qualified by the insertion of the word "personal" before it for otherwise it may be construed very widely so as to include the freedoms dealt with in article 13 (corresponding to the present article 19).
I am not however prepared to hold that this statement is decisive on the question of the construction of the words used in article19(1)(d) which are quite plain and can be construed without any extraneous help. Whether the report of the Drafting Committee and the debates on the floor of the House should [not] be used at all in construing the words of a statute, which are words of ordinary and common use and are not used in any technical or peculiar sense, is a debatable question; and whether they can be used in aid of a construction which is a strain upon the language used in the clause to be interpreted is a still more doubtful matter. But, apart from these legal considerations, it is, I think, open to us to analyse the statement and see
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whether it goes beyond adding a somewhat plausible reason - a superficially plausible reason
- for a slight verbal change in article 21. It seems clear that the addition of the word "personal" before "liberty" in article 21 cannot change the meaning of the words used in article 19, nor can it put a matter which is inseparably bound up with personal liberty beyond its place.
Personal liberty and personal freedom, in spite of the use of the word "personal," are, as we find in several books, sometimes used in a wide sense and embrace freedom of speech, freedom of association, etc. These rights are some of the most valuable phases or elements of liberty and they do not cease to be so by the addition of the word "personal." A general statement by the Drafting Committee referring to freedom in plural cannot take the place of an authoritative exposition of the meaning of the words used in article 19(1)(d), which has not been specifically referred to and cannot be such an overriding consideration as to compel us to put a meaning opposed to reason and authority. The words used in article 19(1)(d) must be construed as they stand, and we have to decide upon the words themselves whether in the case of preventive detention the right under article 19(1)(d) is or is not infringed. But, as I shall point out later, however literally we may construe the words used in article 19(1)(d) and however restricted may be the meaning we may attribute to those words, there can be no escape from the conclusion that preventive detention is a direct infringement of the right guaranteed in article 19(1)(d).
It was pointed out in the course of the arguments that preventive detention not only takes away the right in article19(1)(d) but also takes away all the other rights guaranteed by article 19(1), except the right to hold, acquire and dispose of property. Where exactly this argument is intended to lead us to, I cannot fully understand, but it seems to me that it involves an obvious fallacy, because it overlooks the difference in the modes in which preventive detention operates on the right referred to in sub-clause (d) and other sub-clauses of article 19(1). The difference is that while preventive detention operates on freedom of movement directly and inevitably, its operation on the other rights is indirect and consequential and is often only notional. One who is preventively detained is straightaway deprived of his right of movement as a direct result of his detention, but he loses the other rights only in consequence of his losing freedom of movement. Besides, while freedom of movement is lost by him in all reality and substance, some of the other rights may not be lost until he wishes to exercise them or is interested in exercising them. A person who is detained may not be interested in freedom of association or may not pursue any profession, occupation, trade or business. In such a case, the rights referred to are lost only in theory and not as a matter of substance. I wish only to add that when I said that I was not able to understand the full force of the argument which I have tried to deal with, what I had in mind was that if preventive detention sweeps away or affects almost all the rights guaranteed in article 19(1), the matter deserves very serious consideration and we cannot lightly lay down that article 13(2) does not come into operation.
………
Being fully alive to the fact that it is a serious matter to be asked to declare a law enacted by Parliament to be unconstitutional, I have again and again asked myself the question: What are we to put in the scales against the construction which I am inclined to adopt and in favour of the view that preventive detention does not take away the freedom of movement guaranteed in article 19(1)(d)? The inevitable answer has always been that while in one of the scales we have plain and unambiguous language, the opinion of eminent jurists, judicial dicta of high authority, constitutional practice in the sense that no Constitution refers to any freedom of movement apart from personal liberty, and the manner in which preventive detention has been treated in the very laws on which our law on this subject is based, all that we can put in the opposite scale is a vague and ill-founded apprehension that some fearful object such as the
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revision of the Penal Code is looming obscurely in the distant horizon, the peculiar objection that the mere mention of the scheduled tribes will alter the meaning of certain plain words, the highly technical and unreal distinction between restriction and deprivation and the assumption not warranted by any express provision that a person who is preventively detained cannot claim the right of freedom of movement because he is not a free man and certain other things which, whether taken singly or collectively, are too unsubstantial to carry any weight. In these circumstances, I am strongly of the view that article19(1)(d) guarantees the right of freedom of movement in its widest sense, that freedom of movement being the essence of personal liberty, the right guaranteed under the article is really a right to personal liberty and that preventive detention is a deprivation of that right. I am also of the view that even on the interpretation suggested by the learned Attorney-General, preventive detention cannot but be held to be a violation of the right conferred by article 19(1)(d). In either view, therefore, the law of preventive detention is subject to such limited judicial review as is permitted under article 19(5). The scope of the review is simply to see whether any particular law imposes any unreasonable restrictions. Considering that the restrictions are imposed on a most valuable right, there is nothing revolutionary in the legislature trusting the Supreme Court to examine whether an Act which infringes upon that right is within the limits of reason.
… [Discussion on Article 21 is omitted] …
I will now proceed to examine article 22 of the Constitution which specifically deals with the subject of preventive detention. The first point to be noted in regard to this article is that it does not exclude the operation of articles 19 and 21, and it must be read subject to those two articles, in the same way as articles 19 and 21 must be read subject to article 22. The correct position is that article 22must prevail in so far as there are specific provisions therein regarding preventive detention, but, where there are no such provisions in that article. The operation of articles 19and 21 cannot be excluded. The mere fact that different aspects of the same right have been dealt with in three different articles will not make them mutually exclusive except to the extent I have indicated.
I will now proceed to analyse the article and deal with its main provisions. In my opinion, the main provisions of this article are :- (1) that no person can be detained beyond three months without the report of an advisory board [clause 4(a)]; (2) that the Parliament may prescribe the circumstances and the class or classes of cases in which a person may be detained for more than three months without obtaining the opinion of an advisory board [clause 7(a)]; (3) that when a person is preventively detained, the authority making the order of detention shall communicate to such person the grounds on which the order is made and shall afford him the earliest opportunity of making a representation against the order [clause (5)]; and (4) that the
Parliament may prescribe the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention [clause 7(b)].
The last point does not require any consideration in this case, but the first three points do require consideration.
In connection with the first point, the question arises as to the exact meaning of the words
"such detention" occurring in the end of clause 4(a). Two alternative interpretations were put forward: (1) "such detention" means preventive detention; (2) "such detention means detention for a period longer than three months. If the first interpretation is correct, then the function of the advisory board would be to go into the merits of the case of each person and simply report whether there was sufficient cause for his detention. According to the other interpretation, the function of the advisory board will be to report to the government whether there is sufficient cause for the person being detained for more than three months. On the whole, I am inclined to agree with the second interpretation. Prima facie, it is a serious matter to detain a person
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for a long period (more than three months) without any enquiry or trial. But article 22(4)(a) provides that such detention may be ordered on the report of the advisory board. Since the report must be directly connected with the object for which it is required, the safeguard provided by the article, viz., calling for a report from the advisory board, loses its value, if the advisory board is not to apply its mind to the vital question before the government, namely, whether prolonged detention (detention for more than three months) is justified or not. Under article 22(4)(a), the advisory board has to submit its report before the expiry of three months and may therefore do so on the eighty-ninth day. It would be somewhat farcical to provide, that after a man has been detained for eighty-nine days, an advisory board is to say whether his initial detention was justified. On the other hand, the determination of the question whether prolonged detention (detention for more than three months) is justified must necessarily involve the determination of the question whether the detention was justified at all, and such an interpretation only can give real meaning and effectiveness to the provision.
The provision being in the nature of a protection or safeguard, I must naturally lean towards the interpretation which is favourable to the subject and which is also in accord with the object in view.
The next question which we have to discuss relates to the meaning and scope of article 22(7)(a)…
The question is what is meant by "circumstances" and "class or classes of cases" used in this provision. This question has arisen because of the way in which these expressions appear to have been interpreted and applied in the Act of Parliament with which we are concerned.
As the matter is important and somewhat complicated, I shall try to express my meaning as clearly as possible even at the risk of some repetition, and, in doing so, I must necessarily refer to the impugned Act as well as Lists I and III of the Seventh Schedule of the Constitution, under which Parliament had jurisdiction to enact it. Item 9 of List I - Union List - shows that the Parliament has power to legislate on preventive detention for reasons connected with (1) defence, (2) foreign affairs, and (3) security of India. Under List III - Concurrent List - the appropriate item is item 3 which shows that law as to preventive detention can be made for reasons connected with (1) the security of the State, (2) the maintenance of public order, and
(3) the maintenance of supplies and services essential to the community. The impugned Act refers to all the subjects mentioned in Lists I and III in regard to which law of preventive detention can be made. …
… On reading articles 22(4) and 22(7) together, it would be clear that so long as article 22(4)(a) holds the field and Parliament does not act under clause (7)(a) of article 22, there must be an advisory board in every case, i.e., if the legislation relates to groups A to F, as it does here, there must be an advisory board for all these groups.
Article 22(7) however practically engrafts an exception. It states in substance that the
Parliament may by an Act provide for preventive detention for more than three months without reference to an advisory board, but in such cases it shall be incumbent on the Parliament to prescribe (1) the circumstances and (2) the class or classes of cases in which such course is found to be necessary. If the case contemplated in clause (4)(a) is the rule and that contemplated in clause (7)(a) is the exception, then the circumstances and the class or classes of cases must be of a special or extraordinary nature, so as to take the case out of the rule and bring it within the exception. It is always possible to draw the line between the normal or ordinary and the abnormal or extraordinary cases, and this is what, in my opinion, the
Parliament was expected to do under clause (7)(a). I do not think that it was ever intended that
Parliament could at its will treat the normal as the abnormal or the rule as the exception. But this is precisely what has been done in this case. All the items on which preventive legislation is possible excepting one, i.e., A to E, have been put within the exception, and only one, F,
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which relates to maintenance of supplies and services essential to the community, has been allowed to remain under the rule. In other words, it is provided that there shall be an advisory board only for the last category, F, but no provision having been made for the other categories,
A to E, it may be assumed that the advisory board has been dispensed with in those cases. The learned Attorney-General maintained that it would have been open to the Parliament to dispense with the advisory board even for the category F, and if such a course had been adopted it would not have affected the validity of the Act. This is undoubtedly a logical position in the sense that it was necessary for him to go as far as this to justify his stand; but, in my opinion, the course adopted by the Parliament in enacting section 12 of the impugned
Act is not what is contemplated under article 22(7)(a) or is permitted by it. The circumstances to be prescribed must be special and extraordinary circumstaces and the class or classes of cases must be of the same nature. In my opinion, the Constitution never contemplated that the
Parliament should mechanically reproduce all or most of the categories A to F almost verbatim and not apply its mind to decide in what circumstances and in what class or classes of cases the safeguard of an advisory board is to be dispensed with.
I may state here that two views are put forward before us as to how clauses (4)(a) and 7(a) of article 22 are to be read :- (1) that clause (4)(a) lays down the rule that in all cases where detention for more than three months is ordered, it should be done in consultation with and on the report of the advisory board, and clause (7)(a) lays down an exception to this rule by providing that Parliament may pass an Act permitting detention for more than three months without reference to an advisory board; (2) that clauses (4)(a) and (7)(a) are independent clauses making two separate and alternative provisions regarding detention for more than three months, in one case on the report of an advisory board and in other case without reference to an advisory board. Looking at the substance and not merely at the words, I am inclined to hold that clause (7)(a) practically engrafts an exception on the rule that preventive detention for more than three months can be ordered only on the report of an advisory board, and so far
I have proceeded on that footing. But it seems to me that it will make no difference to the ultimate conclusion, whichever of the two views we may adopt. Even on the latter view, it must be recognized that the law which the Constitution enables the Parliament to make under article22(7)(a) would be an exceptionally drastic law, and, on the principle that an exceptionally drastic law must be intended for an exceptional situation, every word of what I have said so far must stand. Clause (7)(a) is only an enabling provision, and it takes care to provide that the Parliament cannot go to the extreme limit to which it is permitted to go without prescribing the class or classes of cases and the circumstances to which the extreme law would be applicable. It follows that the class or classes of cases and the circumstances must be of a special nature to require such legislation.
It was urged that the word "and" which occurs between "circumstances" and "class or classes of cases" is used in a disjunctive sense and should be read as "or", and by way of illustration it was mentioned that when it is said that a person may do this and that, it means that he is at liberty to do either this or that. I do not think that this argument is sound. I think that clause (7)(a) can be accurately paraphrased somewhat as follows :- "Parliament may dispense with an advisory board, but in that case it shall prescribe the circumstances and the class or classes of case....." If this is the meaning, then "and" must be read as "and" and not as
"or"; and "may" must be read as "shall". Supposing it was said that Parliament may prescribe the time and place for the doing of a thing, then can it be suggested that both time and place should not be prescribed? It seems obvious to me that the class or classes of cases must have some reference to the persons to be detained or to their activities and movements or to both.
"Circumstances" on the other hand refer to something extraneous, such as surroundings, background, prevailing conditions, etc., which might prove a fertile field for the dangerous activities of dangerous persons. Therefore the provision clearly means that both the
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circumstances and the class or classes of cases (which are two different expressions with different meanings and connotations and cannot be regarded as synonymous) should be prescribed, and prescription of one without prescribing the other will not be enough. As I have already stated, such law as can be enacted under article 22(7)(a) must involve, by reason of the extreme limit to which it can go, serious consequences to the persons detained. It will mean (1) prolonged detention, i.e., detention for a period longer than three months, and (2) deprivation of the safeguard of an advisory board. Hence article 22(7)(a) which purports to be a protective provision will cease to serve its object unless it is given a reasonable interpretation. To my mind, what it contemplates is that the law in question must not be too general but its scope should be limited by prescribing both the class or classes of cases and the circumstances.
It was contended that the expression "class or classes of cases" is wide enough to enable the Parliament to treat any of the categories mentioned in Lists I and III, items 9 and 3 respectively, (i.e., any of the categories A to F) as constituting a class. At first sight, it seemed to me to be a plausible argument, but the more I think about it the more unsound it appears to me. The chief thing to be remembered is what I have already emphasized more than once, viz., that a special or extreme type of law must be limited to special classes of cases and circumstances. Under the Constitution, the Parliament has to prescribe "the class or classes", acting within the limits of the power granted to it under Lists I and III. The class or classes must be its own prescription and must be so conceived as to justify by their contents the removal of an important safeguard provided by the Constitution. Prescribing is more than a mere mechanical process. It involves a mental effort to select and adapt the thing prescribed to the object for which it has to be prescribed. We find here that what is to be prescribed is
"class or classes" (and also "circumstances"). We also find that what the law intends to provide is prolonged detention (by which words I shall hereafter mean detention for more than three months) and elimination of the advisory board. The class or classes to be prescribed must therefore have a direct bearing on these matters and must be so selected and stated that any one by looking at them may say: "That is the reason why the law has prescribed prolonged detention without reference to an advisory board." In other words, there must be something to make the class or classes prescribed fit in with an extreme type of legislation - some element of exceptional gravity or menace which cannot be easily and immediately overcome and therefore necessitates prolonged detention; and there must be something to show that reference to an advisory board would be an undesirable and cumbersome process and wholly unsuitable for the exceptional situation to which the law applies. Perhaps a simple illustration may make the position still clearer. Under the Lists, one of the subjects on which Parliament may make a law of preventive detention is "matter connected with the maintenance of public order." The Act simply repeats this phraseology and states in section 3: "with a view to preventing him (the person to be detained) from acting in a manner prejudicial to the maintenance of public order." This may be all right for section 3, but section 12 must go further. An act prejudicial to the maintenance of public order may be an ordinary act or it may be an act of special gravity. I think that article 22(7)(a) contemplates that the graver and more heinous types of acts falling within the category of acts prejudicial to the maintenance of public order (or other heads) should be prescribed so as to define and circumscribe the area of an exceptional piece of legislation.
That some kind of sub-classification (if I may be permitted to use this word) of the categories A to F was possible can be illustrated by reference to regulation 18-B of the British
Defence of the Realm Regulations. This regulation was made under an Act of 1939 which authorized "the making of regulations for the detention of persons whose detention appears to the Secretary of State to be expedient in the interests of public safety or the defence of the realm." The two matters "public safety" and "defence of the realm" are analogous to some of
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the heads stated in Lists I and III. It will be instructive to note that under these two heads, regulation 18-B has set forth several sub-heads or class or classes of cases in which preventive detention could be ordered. These classes are much more specific than what we find in section
3 of the impugned Act and therefore there is less chance of misuse by the executive of the power to order preventive detention. The classes set out are these :- (1) If the Secretary of
State has reasonable cause to believe any person to be of hostile origin or associations, (2) if the Secretary of State has reasonable cause to believe any person to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts, (3) if the Secretary of State has reasonable cause to believe any person to have been or to be a member of or to have been or to be active in the furtherance of the objects of, any such organisation as is hereinafter mentioned...... (a) the organisation is subject to foreign influence or control, (b) the persons in control of the organisation have or have had associations with persons concerned in the government of, or sympathies with the system of government of, any Power with which His Majesty is at war, and in either case there is danger of the utilization of the organization for purposes prejudicial to the public safety, etc., (4) if the Secretary of State has reasonable cause to believe that the recent conduct of any person for the time being in an area of any words recently written or spoken by such a person expressing sympathy with the enemy, indicates or indicate that that person is likely to assist the enemy. I have only to point out that the scope within which preventive detention can be legislated upon in this country is much larger than the scope indicated in the British Act under which Regulation 18-B was framed, and therefore there is more scope for specification of the circumstances as well as the class or classes of cases under the impugned Act. But all that has been done is that words which occur in the legislative Lists have been taken and transferred into the Act.
What I have stated with regard to class or classes of cases also applies to the circumstances which are also to be prescribed under article 22(7)(a). These circumstances are intended to supply the background or setting in which the dangerous activities of dangerous persons might prove specially harmful. They must be special circumstances which demand a specially drastic measure and under which reference to an advisory board might defeat the very object of preventive action. The evident meaning of article 22(7)(a) seems to be that the picture will not be complete without mentioning both the classes and the circumstances. There was some discussion at the Bar as to what kind of circumstances might have been specified. It is not for me to answer this question, but I apprehend that an impending rebellion or war, serious disorder in a particular area such as has induced the Punjab Government to declare certain areas as "disturbed areas," tense communal situation, prevalence of sabotage or widespread political dacoities and a variety of other matters might answer the purpose the Constitution had in view.
I will now try to sum up the result of a somewhat protracted discussion into which I had to enter merely to clarify the meaning of a very important provision of the Constitution which has, in my opinion, been completely misunderstood by the framers of the impugned Act. It appears to me that article 22 deals with three classes of preventive detention:
(1) preventive detention for three months;
(2) preventive detention for more than three months on the report of the advisory board; and
(3) preventive detention for more than three months without reference to the advisory board.
If one has to find some kind of a label for these classes for a clear understanding of the subject, one may label them as "dangerous," "more dangerous" and "most dangerous." Now
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so far as the first two classes are concerned, there is nothing to be prescribed under the
Constitution. Apparently, the authors of the Constitution were not much concerned about class no. (1), and they thought that in so far as class no. (2) was concerned the provision that a reference to the advisory board was necessary coupled with the provision that detention was not to exceed the maximum period which may be fixed by the Parliament was enough. But they did take care to make a special provision for class No. (3), and it is extremely important for the liberty of the subject as well as for the smooth working of the Constitution that this provision should not be lightly treated but should receive a well-considered and reasonable construction. It is elementary that the rigour of a law should correspond to or fit the gravity of the evil or danger it aims at combating, and it is also evident that the law which the Parliament has been permitted to enact under article 22(7)(a) can, so far as rigour is concerned, go to the farthest limit. It follows that the law must have been intended for exceptionally grave situations and exigencies. Hence the authors of the Constitution have made it necessary that the Parliament should put certain specifications into the Act which it is empowered to pass under article 22(7)(a), so that by means of these specifications the necessity for enacting so drastic a law should be apparent on the face of it, and its application should be confined to the classes and circumstances specified. The Act must prescribe (1) "class or classes of cases" which are to have reference to the persons against whom the law is to operate and their activities and movements and (2) "circumstances" which would bring into prominence the conditions and the backgrounds against which dangerous activities should call for special measures. By means of such two-fold prescription, the sphere for the application of the law will be confined only to a special type of cases - it will be less vague, less open to abuse the enable those who have to administer it to determine objectively when a condition has arisen to justify the use of the power vested in them by the law. This, in my opinion, is the true meaning and significance of article 22(7)(a) and any attempt to whittle it down will lead to deplorable results.
Having stated my views as to the construction of article 22(7)(a), I propose to consider at once whether section 12 of the impugned Act conforms to the requirements of that provision.
In my opinion, it does not, because if fails to prescribe either the circumstances or the class or classes of cases in the manner required by the Constitution. It does not prescribe circumstances at all, and, though it purports to prescribe the class or classes, it does so in a manner showing that the true meaning of the provision from which the Parliament derived its power has not been grasped. I have sufficiently dwelt on this part of the case and shall not repeat what I have already said. But I must point out that even if it be assumed that the view advanced by the learned Attorney-General is correct and it was within the competence of Parliament to treat any of the categories mentioned in items 9 and 3 of Lists I and III as constituting a class and to include it without any qualification or change, the impugned section cannot be saved on account of a two-fold error :- (1) the word "and" which links "class or classes" with
"circumstances" in article22(7)(a) has been wrongly construed to mean "or;" and (2) the distinction between "circumstances" and "class or classes" has been completely ignored and they are used as interchangeable terms. The first error appears to me to be quite a serious one, because though the Constitution lays down two requirements and insists on the prescription of circumstances as well as class or classes, it has been assumed in enacting section 12 that prescription of one of them only will be enough. The other error is still more serious and goes to the root of the matter. There can be no doubt that circumstances and class or classes are two different expressions and have different meanings, but the Act proceeds on the assumption that circumstances are identical with class or classes, as will appear from the words "any person detained in any of the following classes of cases or under any of the following circumstances" used in the section. I have already shown how important the specification of circumstances is in legislation of such an extreme and drastic character. Therefore, to confuse
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"classes" with "circumstances" and to omit to mention "circumstances" at all are in my opinion grave errors. There can, in my opinion, be no escape from the conclusion that section 12 of the Act by which a most important protection or safeguard conferred on the subject by the
Constitution has been taken away, is not a valid provision, since it contravenes the very provision in the Constitution under which the Parliament derived its competence to enact it.
I will now briefly deal with article 22(5) which makes it incumbent on the authority ordering preventive detention to communicate to the person detained the grounds on which the order has been made and to give him the earliest opportunity of making a representation against the order. It must be remembered that this provision is intended to afford protection to and be a safeguard in favour of a detained person, and it cannot be read as limiting any rights which he has under the law or any other provisions of the Constitution. If article 21 guarantees that before a person is deprived of his liberty he must be allowed an opportunity of establishing his innocence before an impartial tribunal, that right still remains. In point of fact, there is no express exclusion of that right in the Constitution and no prohibition against constituting an impartial tribunal. On the other hand, the right to make a representation which has been granted under the Constitution, must carry with it the right to the representation being properly considered by an impartial person or persons. There must therefore be some machinery for properly examining the cases of the detenus and coming to the conclusion that they have not been detained without reason. If this right had been expressly taken away by the Constitution, there would have been an end of the matter, but it has not been expressly taken away, and I am not prepared to read any implicit deprivation of such a valuable right. The mere reference to an advisory board in article22(4)(a) does not, if my interpretation of the provision is correct, exclude the constitution of a proper machinery for the purpose of examining the cases of detenus on merits. The constitution of an advisory board for the purpose of reporting whether a person should be detained for more than three months or not is a very different thing from constituting a board for the purpose of reporting whether a man should be detained for a single day. In the view I take, all that Parliament could do under clause (7)(a) of article 22was to dispense with an advisory board for the purpose contemplated in clause (4)(a) of that article and not to dispense with the proper machinery, by whichever name it may be called, for the purpose of examining the merits of the case of a detained person.
It was argued that article 22 is a code by itself and the whole law of preventive detention is to be found within its four corners: I cannot however easily subscribe to this sweeping statement. The article does provide for some matters of procedure, but it does not exhaustively provide for them. It is said that it provides for notice, an opportunity to the detenu to represent his case, an advisory board which may deal with his case, and for the maximum period beyond which a person cannot be detained. These points have undoubtedly been touched, but it cannot be said that they have been exhaustively treated. The right to represent is given, but it is left to the legislature to provide the machinery for dealing with the representation. The advisory board has been mentioned, but it is only to safeguard detention for a period longer than three months. There is ample latitude still left to the Parliament, and if the Parliament makes use of that latitude unreasonably, article 19(5) may enable the Court to see whether it has transgressed the limits of reasonableness.
I will now proceed to deal with the Act in the light of the conclusions I have arrived at.
So far as section 3 of the Act is concerned, it was contended that it is most unreasonable, because it throws a citizen at the mercy of certain authorities, who may at their own will order his detention and into whose minds we cannot probe to see whether there is any foundation for the subjective satisfaction upon which their action is to rest. I am however unable to accept this argument. The administrative authorities who have to discharge their responsibilities have to come to quick decisions and must necessarily by left to act on their own judgment. This
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principle is by no means unreasonable and it underlies all the preventive or quasiadministrative measures which are to be found in the Criminal Procedure Code. Under section
107 of that code, it is left to the discretion of the magistrate concerned to determine whether in his opinion there is sufficient ground for proceeding against any person who is likely to occasion a breach of the peace. Under section 145 also, his initial action depends upon his personal satisfaction. Therefore I do not find anything wrong or unconstitutional in section 3 of the Act. But I must point out that it is a reasonable provision only for the first step, i.e., for arrest and initial detention, and must be followed by some procedure for testing the so-called subjective satisfaction, which can be done only by providing a suitable machinery for examining the grounds on which the order of detention is made and considering the representations of the persons detained in relation to those grounds.
I do not also find anything radically wrong in section 7 of the Act, which makes it incumbent on the authority concerned to communicate to a detenu the grounds on which the order has been made and to afford him the earliest opportunity of making a representation against the order. Section 10 which provides that the advisory board shall make its report within ten weeks from the date of the detention order is in conformity with article 22(4)(a) of the Constitution, and the only comment which one can make is that Parliament was not obliged to fix such a long period for the submission of a report and could have made it shorter in ordinary cases. The real sections which appear to me to offend the Constitution are sections
12 and 14. I have already dealt with the principal objection to section 12, while discussing the provisions of article 22(7)(a) and I am of the opinion that section 12 does not conform to the provisions of the Constitution and is therefore ultra vires. I also think that even if it be held that it technically complies with the requirements of article 22(7)(a), Parliament has acted unreasonably in exercising its discretionary power without applying its mind to essential matters and thus depriving the detenus of the safeguard of an advisory board which the
Constitution has provided in normal cases. So far as section 14 is concerned, all my colleagues have held it to be ultra vires, and, as I agree with the views expressed by them, I do not wish to encumber my judgment by repeating in my own words what has been said so clearly and so well by them. Section 14 may be severable from the other provisions of the Act and it may not be possible to grant any relief to the petitioner on the ground that section 14 is invalid. But
I think that section 12 goes to the very root of the legislation inasmuch as it deprives a detenu of an essential safeguard, and in my opinion the petitioner is entitled to a writ of habeas corpus on the ground that an essential provision of the Constitution has not been complied with. This writ will of course be without prejudice to any action which the authorities may have taken or may hereafter take against the petitioner under the penal law. I have to add this qualification because there were allegations of his being involved in some criminal cases but the actual facts were not clearly brought out before us.
I have only to add a few concluding remarks to my judgment. In studying the provisions of the impugned Act, I could not help instituting a comparison in my own mind between it and similar legislation in England during the last two world wars. I could not also help noticing that the impugned Act purports to be a peacetime Act, whereas the legislation to which I have referred was enacted during the war. During the first war as well as the second, a number of persons were detained and a number of cases were brought to Court in connection with their detention, but the two leading cases which will be quoted again and again are Rex v.
Halliday, [1917] A.C. 260 and Liversidge v. Sir John Anderson, [1942] A.C. 206. We are aware that in America certain standards which do not conform to ordinary and normal law have been applied by the Judges during the period of the war and sometimes they are compendiously referred to as being included in "war power". The two English cases to which
I have referred also illustrate the same principle, as will appear from two short extracts which
I wish to reproduce. In Rex v. Halliday, [1917] A.C. 260, Lord Atkinson observed as follows:
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"However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war, or escape from national plunder or enslavement."
In Liversidge v. Sir John Anderson, [1942] A.C. 206, Lord Macmillan struck the same note in these words:
"The liberty which we so justly extol is itself the gift of the law and as Magna
Charta recognizes may by the law be forfeited or abridged. At a time when it is the undoubted law of the land that a citizen may by conscription or requisition be compelled to give up his life and all that he possesses for his country 's cause it may well be no matter for surprise that there should be confided to the
Secretary of State a discretionary power of enforcing the relatively mild precaution of detention."
These passages represent the majority view in the two cases, but the very elaborate judgments of Lord Shaw in Rex v. Halliday and that of Lord Atkin in Liversidge v. Sir John
Anderson show that there was room for difference of opinion as well as for a more dispassionate treatment of the case and the points involved in it. It is difficult to say that there is not a good substratum of sound law in the celebrated dictum of Lord Atkin that even amidst the clash of arms the laws are not silent and that they speak the same language in war as in peace. However that may be, what I find is that in the regulations made in England during the first war as well as the second war there was an elaborate provision for an advisory board in all cases without any exception, which provided a wartime safeguard for persons deprived of their liberty. There was also a provision in the Act of 1939 that the Secretary of State should report at least once in every month as to the action taken under the regulation including the number of persons detained under orders made there under I find that these reports were printed and made available to the public. I also find that the Secretary of State stated in the
House of Commons on the 28th January, 1943, that the general order would be allow British subjects detained under the Regulation to have consultations with their legal advisers out of the hearing of an officer. This order applied to consultations with barristers and solicitors but not to cases where solicitors sent to interview a detained person a clerk who was not an officer of the High Court. The impugned Act suffers in comparison, on account of want of such provisions, though, so far as I can see, no great harm was likely to have been caused by setting up a machinery composed of either administrative or judicial authorities for examining the cases of detained persons so as to satisfy the essentials of fairness and justice. The Act also suffers in comparison with some of the later Provincial Acts in which the safeguard of an advisory board is expressly provided for. I find that there is a provision in section 12(2) of the
Act for the review of the cases of detenus after six months, but this is quite different from examining the merits of the case. The object of such a review is obviously to find out whether by reason of any change in the circumstances, a review of the original order is required.
I hope that in pointing out the shortcomings of the Act I will not be misunderstood. I am aware that both in England and in America and also in many other countries, there has been a reorientation of the old notions of individual freedom which is gradually yielding to social control in many matters. I also realize that those who run the State have very onerous responsibilities, and it is not correct to say that emergent conditions have altogether disappeared from this country. Granting then that private rights must often be subordinated to the public good, is it not essential in a free community to strike a just balance in the matter?
That a person should be deprived of his personal liberty without a trial is a serious matter, but the needs of society may demand it and the individual may often have to yield to those needs.
Still the balance between the maintenance of individual rights and public good can be struck only if the person who is deprived of his liberty is allowed a fair chance to establish his
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innocence, and I do not see how the establishment of an appropriate machinery giving him such a chance can be an impediment to good and just government.
JUSTICE PATANJALI SASTRI (FOR HIMSELF)
… Mr. Nambiar appearing for the petitioner advanced three main lines of argument. In the first place, the right to move freely throughout the territory of India referred to in article 19(1)(d) is of the very essence of personal liberty, and inasmuch as the detention authorised by the impugned Act was not a "reasonable restriction" which Parliament could validly impose on such right under clause (5) of the article, the impugned Act is void.
Alternatively, the petitioner had a fundamental right under article 21 not to be deprived of his personal liberty except according to procedure established by law, and the impugned Act by authorising detention otherwise than in accordance with proper procedure took away that right and was therefore void. And, lastly, the provisions of the impugned Act already referred to were ultra vires and inoperative as Parliament in enacting them has overstepped the limitations placed on its legislative power by article 22 clauses (4) to (7).
... It was said that the safeguards provided in clauses (1) and (2) of article 22 are more or less covered by the provisions of the Criminal Procedure Code, and this overlapping would have been the avoided if article 21 were intended to bear the construction as indicated above.
The argument overlooks that, while the provisions of the Code would be liable to alteration by competent legislative action, the safeguards in clauses (1) and (2) of article 22, being constitutional, could not be similarly dealt with and this sufficiently explains why those safeguards find a place in the Constitution.
The only alternative to the construction I have indicated above, if a constitutional transgression is to be avoided, would be to intercept the reference to "law" as implying a constitutional amendment pro tanto, for it is only a law enacted by the procedure provided for such amendment (article 368) that could modify or override a fundamental right without contravening article 13(2).
The question next arises as to how far the protection under article 21, such as it has been found to be, is available to persons under preventive detention. The learned Attorney-General contended that article 21 did not apply to preventive detention at all, as article 22 clauses (4) to (7) formed a complete code of constitutional safeguards in respect of preventive detention and, provided only these provisions are conformed to, the validity of any law relating to preventive detention could not be challenged. I am unable to agree with this view. The language of article 21 is perfectly general and covers deprivation of personal liberty or incarceration, both for punitive and preventive reasons. If it was really the intention of the framers of the Constitution to exclude the application of article 21 to cases of preventive detention, nothing would have been easier than to add a reference to article 21 in clause (3) of article 22 which provides that clauses (1) and (2) of the latter shall not apply to any person who is arrested or detained under any law providing for preventive detention. Nor is there anything in the language of clauses (4) to (7) of article 22 leading necessarily to the inference that article 21 is inapplicable to preventive detention. These clauses deal only with certain aspects of preventive detention such as the duration of such detention, the constitution of an advisory board for reviewing the order of detention in certain cases, the communication of the grounds of detention to the person detained and the provision of an opportunity to him of making a representation against the order. It cannot be said that these provisions form an exhaustive code dealing with all matters relating to preventive detention and cover the entire area of protection which article 21, interpreted in the sense I have indicated above, would
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afford to the person detained. I am, therefore, of opinion that article 21 is applicable to preventive detention as well.
I will now proceed to examine whether the impugned Act or any of its provisions under which the petitioner has been ordered to be detained, takes away any of the rights conferred by articles 21 and 22 or infringes the protection afforded thereby. The outstanding fact to be borne in mind in this connection is that preventive detention has been given a constitutional status. This sinister-looking feature, so strangely out of place in a democratic constitution which invests personal liberty with the sacrosanctity of a fundamental right and so incompatible with the promises of its preamble is doubtless designed to prevent an abuse of freedom by anti-social and subversive elements which might imperil the national welfare of the infant Republic. It is in this spirit that clauses (3) to (7) of article 22 should, in my opinion, be construed and harmonised as far as possible with article 21 so as not to diminish unnecessarily the protection afforded for the legitimate exercise of personal liberty. In the first place, as already stated, clause (3) of article 22 excludes a person detained under any law providing for preventive detention from the benefit of the safeguards provided in clauses (1) and (2). No doubt clause (5) of the same article makes some amends for the deprivation of these safeguards in that it provides for the communication to the person detained the grounds on which the order has been made and for an opportunity being afforded to him of making a representation against the order, but the important right to consult and to be defended by a legal practitioner of his choice is gone. Similarly, the prohibition against detention in custody beyond a period of 24 hours without the authority of a magistrate has also been taken away in cases of preventive detention. It was not disputed that, to the extent to which the express provisions of clauses (4) to (7) authorised the abrogation or abridgement of the safeguards provided under other articles of substitution of other safeguards in a modified form, those express provisions must rule.
Of the four essentials of the due process on which Mr. Nambiar insisted, (which also form part of the ordinary and established procedure under the Criminal Procedure Code, though I cannot agree that they are immutable and beyond legislative change) the requirements of notice and an opportunity to establish his innocence must, as already stated, be taken to have been provided for by clause (5) of article 22. As for an ascertainable standard of conduct to which it is possible to conform, article 22 makes no specific provision in cases of preventive detention, and if such a safeguard can be said to be implicit in the procedure established by law in the sense explained above in preventive detention cases, it could no doubt be invoked.
This point will be considered presently in dealing with provisions of the impugned Act. The only other essential requirement, and the most essential of all, is an impartial tribunal capable of giving an unbiased verdict. This, Mr. Nambiar submitted, was left unprovided for by article 22, the advisory board referred to in clause (4)(a) being, according to him, intended to deal solely with the question of duration of the detention, that is to say, whether or not there was sufficient cause for detaining the person concerned for more than three months, and not with judging whether the person detained was innocent. A tribunal which could give an unbiased judgment on that issue was an essential part of the protection afforded by article 21 in whichever way it may be interpreted, and reference was made in this connection to the preventive provisions of the Criminal Procedure Code (Ch. VIII). The impugned Act, not having provided for such a tribunal contravened article 21and was therefore void. It will be seen that the whole of this argument is based on the major premise that the advisory board mentioned in clause (4)(a) of article 22 is not a tribunal intended to deal with the issue of justification of detention. Is that view correct?
It was argued that the words "sufficient cause for such detention" in sub-clause (a) of clause (4) had reference to the detention beyond three months mentioned in clause (4) and that
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this view was supported by the language of sub-clause (a) of clause (7) whereby Parliament is authorised to prescribe the circumstances under which and the class or classes or cases in which a person may be detained for a period longer than three months without the opinion of an advisory board. In other words, learned counsel submitted, the combined effect of clauses
(4) and (7) was that no person could be detained for a period over three months without obtaining the opinion of an advisory board that there was sufficient cause for detention for the longer period, except in cases where Parliament passed a law authorising detention for such period even without the opinion of an advisory board. Thus, these two clauses were concerned solely with the duration of the preventive detention, and so was the advisory board which those clauses provided for that purpose. I am unable to accept this view. I am inclined to think that the words "such detention" in sub-clause (a) refer back to the preventive detention mentioned in clause (4) and not to detention for a longer period than three months. An advisory board, composed as it has to be of Judges or lawyers, would hardly be in a position to judge how long a person under preventive detention, say for reasons connected with defence, should be detained. That must be a matter for the executive authorities, the Department of Defence, to determine, as they alone are responsible for the defence of the country and have the necessary data for taking a decision on the point. All that an advisory board can reasonably be asked to do, as a safeguard against the misuse of the power, is to judge whether the detention is justified and not arbitrary or mala fide. The fact that the advisory board is required to make its report before the expiry of three months and so could submit it only a day or two earlier cannot legitimately lead to an inference that the board was solely concerned with the issue whether or not the detention should continue beyond that period. Before any such tribunal could send in its report a reasonable time must elapse, as the grounds have to be communicated to the person detained, he has to make his representation to the detaining authority which has got to be placed before the board through the appropriate departmental channel. Each of these steps may, in the course of official routine, take some time, and three months ' period might well have been thought a reasonable period to allow before the board could be required to submit its report.
Assuming, however, that the words "such detention" had reference to the period of detention, there is no apparent reason for confining the enquiry by the advisory board to the sole issue of duration beyond three months without reference to the question as to whether the detention was justified or not. Indeed, it is difficult to conceive how a tribunal could fairly judge whether a person should be detained for more than three months without at the same time considering whether there was sufficient cause for the detention at all. I am of opinion that the advisory board referred to in clause (4) is the machinery devised by the Constitution for reviewing orders for preventive detention in certain cases on a consideration of the representations made by the persons detained. This is the view on which Parliament has proceeded in enacting the impugned Act as will be seen from sections 9 and 10 thereof, and I think it is the correct view. It follows that the petitioner cannot claim to have his case judged by any other impartial tribunal by virtue of article 21 or otherwise.
Mr. Nambiar, however, objected that, on this view, a law could authorise preventive detention for three months without providing for review by any tribunal, and for even longer periods if Parliament passed an Act such as is contemplated in sub-clause (a) of clause (7).
That may be so, but, however deplorable such a result may be from the point of view of the person detained, there could be no remedy if, on a proper construction of clauses (4) and (7), the Constitution is found to afford no higher protection for the personal liberty of the individual. Turning next to the provisions of the impugned Act, whose constitutional validity was challenged, it will be necessary to consider only those provisions which affect the petitioner
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before us. In the first place, it was contended that section 3, which empowers the Central
Government or the State Government to detain any person if it is "satisfied" that it is necessary to do so with a view to preventing him from acting in any manner prejudicial to (among other things) the security of the State or the maintenance of public order, cannot be said to comply with the procedure established by law, as the section prescribes no objective and ascertainable standard of conduct to which it will be possible to conform, but leaves it to the will and pleasure of the Government concerned to make an order of detention. The argument proceeds on the assumption that the procedure established by law is equivalent to the due process of law. I have already endeavoured to show that it is not. Apart from this, the argument overlooks that for the purposes of preventive detention it would be difficult, if not impossible to lay down objective rules of conduct failure to conform to which should lead to such detention. As the very term implies, the detention in such cases is effected with a view to prevent the person concerned from acting prejudicially to certain objects which the legislation providing for such detention has in view. Nor would it be practicable to indicate or enumerate in advance what acts or classes of acts would be regarded as prejudicial. The responsibility for the security of the State and the maintenance of public order etc. having been laid on the executive
Government it must naturally be left to that Government to exercise the power of preventive detention whenever they think the occasion demands it.
Section 12 came in for a good deal of criticism… It was urged that this did not comply with the requirements of clause (7) of article 22 as it merely repeated the "matters" or legislative topics mentioned in Entry 9 of List I and Entry 3 of List III of the Seventh Schedule to the Constitution. What Parliament has to do under clause (7) of article 22 is to prescribe
"the circumstances under which and the class or classes of cases in which" a person may be detained for a period longer than three months without obtaining the opinion of an advisory board. It was said that clause (4)(a) provided for ordinary cases of preventive detention where such detention could not continue beyond three months without obtaining the opinion of an advisory board, whereas clause (7)(a) made provision for special cases of detention for more than three months without the safeguard of the advisory board 's opinion, for aggravated forms of prejudicial conduct. In other words, clause (4)(a) laid down the rule and clause (7)(a) enacted an exception. It was therefore necessary for Parliament to indicate to the detaining authority for its guidance the more aggravated forms of prejudicial activity, and mere mention of the subjects in respect of which Parliament is authorised under the legislative lists to make laws in respect of preventive detention could hardly afford any guidance to such authority and should not be regarded as sufficient compliance with the requirements of clause (7).
There is a two-fold fallacy in this argument. In the first place, the suggested correlation between clause (4)(a) and clause (7)(a) as enacting a rule and an exception is, as a matter of construction, without foundation. Reading clauses (4) and (7) together it is reasonably clear that preventive detention could last longer in two cases : (1) where the opinion of an advisory board is obtained, subject however to a prescribed period [sub-clause (a) of clause (4)] and (2) where a person is detained under a law made by Parliament under sub-clauses (a) and (b) of clause (7) [sub-clause (b) of clause (4)]. These are two distinct and independent provisions. It is significant that sub-clause (b) of clause (4) is not worded as a proviso or an exception to sub-clause (a) of the same clause as it would have been if it was intended to operate as such.
The attempt to correlate clause (4)(a) and clause (7)(a) as a rule and an exception respectively is opposed both to the language and the structure of those clauses.
Secondly, the argument loses sight of the fact that clause (7) deals with preventive detention which is a purely precautionary measure which "must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof" [per Lord Atkinson in Rex v. Halliday, 1917 A.C. 260. The remarks I have already made with reference to the
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absence of any objective rules of conduct in section 3 of the impugned Act apply also to this criticism of section 12. It would be difficult, if not impracticable, to mention the various circumstances, or to enumerate the various classes of cases exhaustively in which a person should be detained for more than three months for preventive purposes, except in broad outline. Suppose a person belongs to an organization pledged to violent and subversive activity as its policy. Beyond his membership of the party the person might have done nothing until he was arrested and detained. But if released he might indulge in anything from the mildest form of prejudicial activity, like sticking an objectionable handbill on a hoarding, to the most outrageous acts of sabotage. How could the insertion in section 12 of a long services of categories of aggravated forms of prejudicial activities, or the enumeration of the various circumstances in which such activities are likely to be indulged in, be of any assistance to the detaining authority in determining whether the person concerned should be detained for three months or for a longer period? All that would be necessary and sufficient for him to know for coming to a decision on the point is that the person is a member of such an organisation and will probably engage in subversive activities prejudicial to the security of the State or the maintenance of public order or, in other words, he belongs to class (b) in section 12.
While enumeration and classification in detail would undoubtedly help in grading punishment for offences committed, they would not be of much use in fixing the duration of preventive detention. Sufficient guidance in such cases could be given by broadly indicating the general nature of the prejudicial activity which a person is likely to indulge in, and that in effect is what Parliament has done in section 12. Reference was made in this connection to
Rule 34 of the Defence of India Rules framed under the Defence of India Act, 1939, where
"prejudicial act" is defined by enumeration. But it was also for the purpose of prohibiting such acts [Rule 38 sub-rule (1)] and making them offences (sub-rule 5). And even there, the definition had to end in a residuary clause sweeping in acts likely "to prejudice the efficient prosecution of the war, the defence of British India or the public safety or interest." In Lists I and III of the Seventh Schedule to the Constitution six topics are mentioned in respect of which Parliament could make laws providing for preventive detention, and section 12 of the impugned Act mentions five of them as being the classes of cases or the circumstances in which longer detention is authorised. I fail to see why this could not be regarded as a broad classification of cases or a broad description of circumstances where Parliament considers longer detention to be justifiable. A class can well be designated with reference to the end which one desires to secure, and the matters referred to as classes (a) and (b) of sub-section
(1) of section 12 being clearly the objects which Parliament desired to secure by enacting the section, it seems to me that the classification with reference to such general aims does not contravene article 22(7).
It was urged that Parliament did not, in enacting section 12, perform its duty of prescribing both the circumstances and the class or classes of cases where detention without obtaining the advisory board 's opinion could be for a period longer than three months. The use of disjunctive
"or" between the word "circumstances" and the words "class or classes of cases" showed, it was said, that Parliament proceeded on the view that it need not prescribe both. This was in contravention of article 22(7) which used the conjunctive "and" between those words. There is no substance in this objection. As I read article 22(7) it means that Parliament may prescribe either the circumstances or the classes of cases or both, and in enacting section 12 Parliament evidently regarded the matters mentioned in clause (a) and (b) of sub-section (1) as sufficiently indicative both of the circumstances under which and the classes in which a person could be detained for the longer period. To say, for instance, that persons who are likely to act prejudicially to the defence of India may be detained beyond three months is at once to
"prescribe a class of persons in which and the circumstances under which" a person may be detained for the longer period. In other words, the classification itself may be such as to
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amount to a sufficient description of the circumstances for purposes of clause (7). The circumstances which would justify precautionary detention beyond three months without recourse to an advisory board must be far too numerous for anything approaching an exhaustive enumeration, and it can, in my judgment, be no objection to the validity of section
12 that no circumstances are mentioned apart from the matters referred to in clauses (a) and
(b) of sub-section (1). It would indeed be singular for the Court to strike down a parliamentary enactment because in its opinion a certain classification therein made is imperfect or the mention of certain circumstances is unspecific or inadequate.
Lastly, Mr. Nambiar turned his attack on section 14 which prohibits the disclosure of the grounds of detention communicated to the person detained and of the representation made by him against the order of detention, and debars the Court from allowing such disclosure to be made except for purposes of a prosecution punishable under sub-section (2) which makes it an offence for any person to disclose or publish such grounds or representation without the previous authorisation of the Central Government or the State Government as the case may be. The petitioner complains that this provision nullifies in effect the rights conferred upon him under clause (5) of article 22 which entitles him to have the grounds of his detention communicated to him and to make a representation against the order. If the grounds are too vague to enable him to make any such representation, or if they are altogether irrelevant to the object of his detention, or are such as to show that his detention is not bona fide, he has the further right of moving this Court and this remedy is also guaranteed to him under article 32.
These rights and remedies, the petitioner submits, cannot be effectively exercised, if he is prevented on pain of prosecution, from disclosing the grounds to the Court. There is great force in this contention. All that the Attorney-General could say in answer was that if the other provisions of the Act were held to be valid, it would not be open to the Court to examine the sufficiency of the grounds on which the executive authority was "satisfied" that detention was necessary, as laid down in Machindar Shivaji Mahar v. King, [1949] F.C.R. 827, and so the petitioner could not complain of any infringement of his rights by reason of section 14 which enacted only a rule of evidence. The argument overlooks that it was recognised in the decision referred to above that it would be open to the Court to examine the grounds of detention in order to see whether they were relevant to the object which the legislature had in view, such as, for instance, the prevention of acts prejudicial to public safety and tranquillity, or were such as to show that the detention was not bona fide. An examination of the grounds for these purposes is made impossible by section 14, and the protection afforded by article 22(5) and article 32 is thereby rendered nugatory. It follows that section 14 contravenes the provisions of article 22(5) and article 32 in so far as it prohibits the person detained from disclosing to the Court the grounds of his detention communicated to him by the detaining authority or the representation made by him against the order of detention, and prevents the Court from examining them for the purposes aforesaid, and to that extent it must be held under article 13(2) to be void. This however, does not affect the rest of the Act which is severable.
As the petitioner did not disclose the grounds of his detention pending our decision on this point, he will now be free to seek his remedy, if so advised, on the basis of those grounds.
In the result, the application fails and is dismissed.
JUSTICE MAHAJAN (FOR HIMSELF)
… Preventive detention laws are repugnant to democratic constitutions and they cannot be found to exist in any of the democratic countries of the world. It was stated at the Bar that no such law was in force in the United States of America. In England for the first time during the First World War certain regulations framed under the Defence of the Realm Act provided
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for preventive detention at the satisfaction of the Home Secretary as a war measure and they ceased to have effect at the conclusion of hostilities. The same thing happened during the
Second World War. Similar regulations were introduced during the period of the war in India under the Defence of India Act.
The Government of India Act, 1935, conferred authority on the Central and Provincial
Legislatures to enact laws on this subject for the first time and since then laws on this subject have taken firm root here and have become a permanent part of the statute book of this country.
Curiously enough this subject has found place in the Constitution in the chapter on
Fundamental Rights. Entry 9 of the Union List and Entry 3 of the Concurrent List of the 7th
Schedule mention the scope of legislative power of Parliament in respect of this topic. The jurisdiction, however, to enact these laws is subject to the provisions of Part III of the
Constitution Article 22…
The question of the constitutional validity of the impugned statute has to be approached with great caution in view of these provisions of the Constitution and has to be considered with patient attention. The benefit of reasonable doubt has to be resolved in favour of legislative action, though such a presumption is not conclusive. It seems that the subject of preventive detention became the particular concern of the Constitution because of its intimate connection with deprivation of personal liberty to protect which certain provisions were introduced in the Chapter on Fundamental Rights and because of the conditions prevailing in the newly born Republic. Preventive detention means a complete negation of freedom of movement and of personal liberty and is incompatible with both those subjects and yet it is placed in the same compartment with them in Part III of the Constitution.
… Apart from these enabling and disabling provisions certain procedural rights have been expressly safeguarded by clause (5) of article 22. A person detained under a law of preventive detention has a right to obtain information as to the grounds of his detention and has also the right to make a representation protesting against an order of preventive detention. This right has been guaranteed independently of the duration of the period of detention and irrespective of the existence or non-existence of an advisory board. No machinery, however, has been provided or expressly mentioned for dealing with this representation. It seems to me that when a constitutional right has been conferred as a necessary consequence, a constitutional remedy for obtaining redress in case of infringement of the right must be presumed to have been contemplated and it could not have been intended that the right was merely illusory and that a representation made may well find place in cold storage. Consideration of the representation made by virtue of clause (5) by an unbiased authority is, in my opinion, a necessary consequence of the guaranteed right contained herein. The right has been conferred to enable a detained person to establish his innocence and to secure justice, and no justice can be said to be secured unless the representation is considered by some impartial person.
The interpretation that I am inclined to place on clause (5) of article 22 is justified by the solemn words of the declaration contained in the Preamble to the Constitution. It is this declaration that makes our Constitution sublime and it is the guarantees mentioned in the chapter on Fundamental Rights that make it one of the greatest charters of liberty and of which the people of this country may well be proud. This charter has not been forced out of unwilling hands of a sovereign like the Magna Carta but it has been given to themselves by the people of the country through their Constituent Assembly. Any interpretation of the provisions of
Part III of the Constitution without reference to this solemn declaration is apt to lead one into error. If the right of representation given to a detained person by clause (5) of article 22 is a guaranteed right and has been given for the purpose of securing justice, then it follows that no justice can be held secured to him unless an unbiased person considers the merits of the representation and gives his opinion on the guilt or the innocence of the persons detained. In
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my view, the right cannot be defeated or made elusive by presuming that the detaining authority itself will consider the representation with an unbiased mind and will render justice.
That would in a way make the prosecutor a judge in the case and such a procedure is repugnant to all notions of justice.
The Constitution has further curtailed the rights given in clause (5) by providing in clause
(6) a privilege on the detaining authority of withholding facts which the said authority considers not in public interests to disclose. This privilege has been conferred for the security of the State and possibly for the security of the Constitution itself, but in view of these stringent provisions no additional clogs can be put on the proper consideration of the representation of the detained person by presuming that the detaining authority itself will properly consider the representation. It has also to be remembered in this context that a person subjected to the law of preventive detention has been deprived of the rights conferred on persons who become subject to the law of punitive detention [vide clauses (1) and (2) of article 22]. He has been denied the right to consult a lawyer or be defended by him and he can be kept in detention without being produced before a magistrate.
Having examined the provisions of article 22, I now proceed to consider the first question that was canvassed before us by the learned Attorney-General, i.e., that article 22 of the
Constitution read with the entries in the 7th Schedule was a complete Code on the subject of preventive detention, and that being so, the other articles of Part III could not be invoked in the consideration of the validity of the impugned statute. It was conceded by the learned counsel for the petitioner that to the extent that express provisions exist in article 22 on the topic of preventive detention those provisions would prevail and could not be controlled by the other provisions of Part III. It was, however, urged that on matters on which this article had made no special provision on this topic the other provisions of Part III of the Constitution had application, namely, articles 19 and 21 and to that extent laws made on this subject were justifiable. In order to draw the inference that the framers of the Constitution intended the provisions as regards preventive detention in article 22 to be self-contained a clear indication of such an intention has to be gathered. If the provisions embodied in this article have dealt with all the principal questions that are likely to arise in matters of procedure or on questions of the reasonableness of the period of detention, the inference of such an indication would be irresistible. Ordinarily when a subject is expressly death with in a constitution in some detail, it has to be assumed that the intention was to exclude the application of the general provisions contained therein elsewhere. Express mention of one thing is an exclusion of the other.
Expressio unius est exclusio alterius.
I am satisfied on a review of the whole scheme of the Constitution that the intention was to make article 22 self-contained in respect of the laws on the subject of preventive detention.
It was contended that all the articles in the Constitution should be read in a harmonious manner and one article should not be read as standing by itself and as having no connection with the other articles in the same part. It was said that they were all supplementary to one another. In this connection it was argued that a law made under article 22 would not be valid unless it was in accord with the provisions of article 21 of the Constitution. This article provides that no person shall be deprived of life or liberty except according to procedure established by law. It was contended that in substance the article laid down that no person will be deprived of life or liberty without having been given a fair trial or a fair hearing and that unless a law of preventive detention provided such a hearing that law would be in contravention of this article and thus void. Conceding for the sake of argument (but without expressing any opinion on it) that this contention of the learned counsel is correct, the question arises whether there is anything in article 22 which negatives the application of article 21 as above construed to a law on preventive detention. In my opinion, sub-clause (5) of article 22 read with clauses (1) and
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(2) leads to the inference that the contention raised by the learned counsel is unsound. Clause
(5), as already stated, provides that notice has to be given to a detenu of the grounds of his detention. It also provides a limited hearing inasmuch as it gives him an opportunity to establish his innocence.
As, in my opinion, the consideration of a representation made by a detained person by an unbiased authority is implicit in clause (5), it gives to the detained person all that he is entitled to under the principles of natural justice. The right to consult and to be represented by a counsel of his own choice has been denied in express terms to such a person by the
Constitution. He is also denied an opportunity of appearing before a magistrate. When the
Constitution has taken away certain rights that ordinarily will be possessed by a detained person and in substitution thereof certain other rights have been conferred on him even in the matter of procedure, the inference is clear that the intention was to deprive such a person of the right of an elaborate procedure usually provided for in judicial proceedings. Clause (6) of article 22 very strongly supports this conclusion. There would have been no point in laying down such detailed rules of procedure in respect of a law preventive detention if the intention was that such a law would be subject to the provisions of article 21 of the Constitution. In its ultimate analysis the argument of the learned counsel for the petitioner resolves itself to this: that the impugned statute does not provide for an impartial tribunal for a consideration of the representation of the detailed person and to this extent it contravenes article 21 of the
Constitution. As discussed above, in my opinion, such a provision is implicit within article 22 itself and that being so, the application of article 21 to a law made under article 22 is excluded. It was next contended that a law of preventive detention encroaches on the right of freedom of movement within the territory of India guaranteed to a citizen under article 19(1)(d) and that being so, by reason of the provisions of sub-clause (5) of article 19 it was justifiable on the ground of reasonableness. It is true, as already pointed out, that a law of preventive detention is wholly incompatible with the right of freedom of movement of a citizen. Preventive detention in substance is a negation of the freedom of locomotion guaranteed under article 19(1)(d) but it cannot be said that it merely restricts it. Be that as it may, the question for consideration is whether it was intended that article 19 would govern a law made under the provisions of article 22. Article 19(5) is a saving and an enabling provision. It empowers Parliament to make a law imposing reasonable restriction on the right of freedom of movement while article 22(7) is another enabling provision empowering
Parliament to make a law on the subject of preventive detention in certain circumstances. If a law conforms to the conditions laid down in article 22(7), it would be a good law and it could not have been intended that that law validly made should also conform itself to the provisions of article 19(5). One enabling provision cannot be considered as a safeguard against another enabling provision. Article 13(2) has absolutely no application in such a situation.
If the intention of the constitution was that a law made on the subject of preventive detention had to be tested on the touchstone of reasonableness, then it would not have trouble itself by expressly making provision in article 22 about the precise scope of the limitation subject to which such a law could be made and by mentioning the procedure that the law dealing with that subject had to provide. Some of the provisions of article 22 would then have been redundant, for instance, the provision that no detention can last longer than three months without the necessity of such detention being examined by an advisory board. This provision negatives the idea that the deprivation of liberty for a period of three months without the consultation of the advisory board would be justifiable on the ground of reasonableness.
Again article 22 has provided a safeguard that if an advisory board has to be dispensed with, it can only be so dispensed with under a law made by Parliament and that Parliament
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also in enacting such a law has to conform to certain conditions. This provision would have been necessary in article 22 if a law on this subject was justifiable. In sub-clause (b) of clause
(7) of article 22provision has been made enabling Parliament to fix the maximum period for which a person can be detained under a law on the subject of preventive detention. Under this express provision it is open to Parliament to fix any period, say, even a period of five to ten years as the maximum period of detention of a person. Can it be said that in view of this express provision of the Constitution such a law was intended to be justifiable by reason of article 19(5)? Duration of detention is the principal matter in preventive detention laws which possibly could be examined on the touchstone of reasonableness under article 19(5), but this had been expressly excluded by express provisions in article22. In my judgment, therefore, an examination of the provisions of article 22 clearly suggests that the intention was to make it self-contained as regards the law of preventive detention and that the validity of a law on the subject of preventive detention cannot be examined or controlled either by the provisions of article 21 or by the provisions of article 19(5) because article 13(2) has no application to such a situation and article 22 is not subject to the provisions of these two articles. The Constitution in article 22 has gone to the extent of even providing that Parliament may by law lay down the procedure to be followed by an advisory board. On all important points that could arise in connection with the subject of preventive detention provision has been made in article 22 and that being so, the only correct approach in examining the validity of a law on the subject of preventive detention is by considering whether the law made satisfied the requirements of article 22 or in any way abridges or contravenes them and if the answer is in the affirmative, then the law will be valid, but if the answer is in the negative, the law would be void.
In expressing the view that article 22 is in a sense self-contained on the law of preventive detention I should not however be understood as laying down that the framers of the article in any way overlooked the safeguards laid down in article 21. Article 21, in my opinion, lays down substantive law as giving protection to life and liberty inasmuch as it says that they cannot be deprived except according to the procedure established by law; in other words, it means that before a person can be deprived of his life or liberty as a condition precedent there should exist some substantive law conferring authority for doing so and the law should further provide for a mode of procedure for such deprivation. This article gives complete immunity against the exercise of despotic power by the executive. It further gives immunity against invalid laws which contravene the Constitution. It gives also further guarantee that in its true concept there should be some form of proceeding before a person can be condemned either in respect of life or his liberty. It negatives the idea of fantastic, arbitrary and oppressive forms of proceedings. The principles therefore underlying article 21 have been kept in view in drafting article 22. A law properly made under article 22 and which is valid in all respects under that article and lays down substantive as well as adjective law on this subject would fully satisfy the requirements of article 21, and that being so, there is no conflict between these two articles.
The next question that arises for decision is whether there is anything in Act IV of 1950 which offends against the provisions of article 22 of Part III of the Constitution. The learned counsel for the petitioner contended that section 3 of the Act was bad inasmuch as it made
"satisfaction of the Government" as the criterion for detaining a person. It was said that as section 3 laid down no objective rule of conduct for a person and as people were not told as to what behavior was expected of them, the result was that it could not be known what acts a person was expected to avoid and what conduct on his part was prejudicial to the security of the State or the maintenance of public order; in other words, it was argued that section 3 left the determination of the prejudicial act of a person to the arbitrary judgment of the
Government and that even the officer who was to administer this law had been furnished no guide and no standard of conduct in arriving at his own satisfaction whether the conduct was
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prejudicial to the security of the State etc. This criticism of the learned counsel, in my opinion, is not valid. It is no doubt true that a detention order depends on the satisfaction of the
Government but this provision is in accordance with article 22 of the Constitution which to my mind contemplates detention on the satisfaction of the executive authority. By its very nature the subject is such that it implies detention on the judgment of the authority entrusted with the making of the order. The whole intent and purpose of the law of preventive detention would be defeated if satisfaction of the authority concerned was subject to such an objective standard and was also subject to conditions as to legal proof and procedure. In the 7th Schedule jurisdiction to make the law on this subject has been given for reasons connected with defence etc. and the maintenance of public order. These are subjects which concern the life and the very existence of the State. Every citizen is presumed to know what behavior is prejudicial to the life of the State or to its existence as an ordered State. Considering that the State is presumed to have a government that conducts itself in a reasonable way and also presuming that its officers usually will be reasonable men, it cannot be said that in making "satisfaction of the government" as the standard for judging prejudicial acts of persons who are subject to the law of preventive detention section 3 in any way contravenes article 22 of the constitution.
Section 7 of the impugned Act gives full effect to the provisions of article 22 sub-clause
(5) and enacts that representation has to be made to the Central or State Government as the case may be. It was impeached on the ground that no machinery has been provided herein to consider and adjudicate on the merits of the representation. To this extent, as already indicated, the law is defective. In the absence of a machinery for the investigation of the contentions raised in the representation it may be open to the detenu to move this Court under article 32 for a proper relief. It is, however, unnecessary to express any opinion as to the precise remedy open to a detained person in this respect. The absence of a provision of this nature in the statute however would not make the law wholly void. Section 9 of the Act makes reference to the advisory board obligatory in cases falling under sub-clause (iii) of clause (a) or clause (b) of sub-section (1) of section 3 within six weeks of the order. The procedure to be followed by the advisory board is laid down in section 10. Parliament has been authorized to lay down such a procedure to be followed by an advisory board in sub-clause (c) of clause (7). It was contended that the law had not provided a personal hearing to the detenu before an advisory board, nor had it given him a right to lead evidence to establish his innocence. In my opinion, this criticism is not sound and does not in any way invalidate the law. The advisory board has been given the power to call for such information as it requires even from the person detained.
It has also been empowered to examine the material placed before it in the light of the facts and arguments contained in the representation. The opportunity afforded is not as full as a person gets under normal judicial procedure but when the Constitution itself contemplates a special procedure being prescribed for preventive detention cases, then the validity of the law on that subject cannot be impugned on the grounds contended for.
Section 11 of the Act was also impugned on the ground that it offended against the
Constitution inasmuch as it provided for preventive detention for an indefinite period. This section in my opinion has to be read in the background of the provision in sub-clause (3) of section 1 of the Act which says that the Act will cease to have effect on 1st April, 1951.
Besides, the words "for such period as it thinks fit" do not in any way offend against the provisions of article 22 wherein Parliament has been given the power to make a law fixing the maximum period for preventive detention. It has to be noted that Parliament has fixed a period of one year as the maximum period for the duration of detention where detention has to be without reference to an advisory board. In my opinion, there is nothing in section 11 which is outside the constitutional limits of the powers of the supreme legislature.
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It is section 12 of the Act which was assailed by the learned counsel for the petitioner rather vehemently. This section is of a very controversial character. … The section purports to comply with the conditions laid down in clause (7) of article 22. It was, however, argued that in substance and reality it has failed to comply with any of the conditions laid down therein; that it neither mentions the circumstances under which nor the classes of cases in which preventive detention without recourse to the machinery of an advisory board could be permitted. The crucial question for consideration is whether section 12 mentions any circumstances under which or defined the classes of cases in which authority was conferred by clause (7) to dispense with an advisory board. So far as I have been able to gather from opinions of textbooks writers on the subject of classification, the rule seems clear that in making classification of cases there has to be some relationship to the classification to the objects sought to be accomplished. The question for consideration therefore is what object was sought to be accomplished when the Constitution included clause (7) in article 22. It seems clear that the real purpose of clause (7) was to provide for a contingency where compulsory requirement of an advisory board may defeat the object of the law of preventive detention. In my opinion, it was incorporated in the Constitution to meet abnormal and exceptional cases, the cases being of a kind where an advisory board could not be taken into confidence. The authority to make such drastic legislation was entrusted to the supreme legislature but with the further safeguard that it can only enact a law of such a drastic nature provided it prescribed the circumstances under which such power had to be used or in the alternative it prescribed the classes of cases or stated a determinable group of cases in which this could be done. The intention was to lay down some objective standard for the guidance of the detaining authority on the basis of which without consultation of an advisory board detention could be ordered beyond the period of three months. In this connection it has to be remembered that the Constitution must have thought of really some abnormal situation and of some dangerous groups of persons when it found it necessary to dispense with a tribunal like an advisory board which functions in camera and which is not bound even to give a personal hearing to the detenu and whose proceedings are privileged. The law on the subject of preventive detention in order to avoid even such an innocuous institution could only be justified on the basis of peculiar circumstances and peculiar situations which had to be objectively laid down and that was what in my opinion was intended by clause (7). If the peculiarity lies in a situation outside the control or view of a detained person, then it may be said that the description of such a situation would amount to a prescription of the circumstances justifying the detention for a longer period than three months by a law without the intervention of an advisory board. If however, the abnormality relates to the conduct and character of the activities of a certain determinable group of persons, then that would amount to a class of cases which was contemplated to be dealt with under clause (7). In such cases alone arbitrary detention could be held justifiable by law beyond a period of three months.
… Dealing first with the question whether section 12 mentions any circumstances, so far as I have been able to see, it does not prescribe any circumstances unless it can be said that the prejudicial acts for reasons connected with the security of State, maintenance of public order, etc. are both the circumstances as well as the classes of cases. In my opinion, this line of approach cannot be held to be correct in the construction of clause (7) of article 22. I am inclined to agree with the learned Attorney-General that the phrase "circumstances under which" means some situation extraneous to the detenu 's own acts, in other words, it means some happening in the country with which the detenu is not concerned, such as a situation of tense communal feelings, an apprehended internal rebellion or disorder, the crisis of an impending war or apprehended war, etc. In such a situation the machinery of an advisory board could be dispensed with because it may become cumbersome or it may hamper the
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exercise of necessary powers. In this view of the matter I have no hesitation in holding that no circumstances have been stated in section 12, though the section ostensibly says so. If it was permissible to conjecture, it seems that the draftsman of section 12 repeated the words of clause (7) of article 22 without an application of his mind to the meaning of those words and as the legislation was passed in haste to meet an emergent situation, it suffers from the defects which all hasty legislation suffer from.
I now proceed to consider whether section 12 has classified the cases in which detention for a longer period beyond three months could be suffered by a citizen without the benefit of the machinery of an advisory board. The section has placed five subjects out of the legislative list within its ambit and these are described as the classes of cases. The question is whether it can be said that a mere selection of all or any of the categories of the subjects for reasons connected with which a law of preventive detention could be made under the 7th Schedule amounts to a classification of cases as contemplated in clause (7) of article 22. Entry 9 of the
Union List and Entry 3 of the Concurrent List of the 7th Schedule lay down the ambit of legislative power of Parliament on the subject of preventive detention on the following six subjects: (1) Defence of India, (2) Foreign Affairs, (3) Security of India (4) Security of the
State (5) Maintenance of public order, (6) Maintenance of supplies and services essential to the community.
Clause (4) of article 22 enjoins in respect of all the six subjects that no law can provide for preventive detention for a longer period than three months without reference to an advisory board. Clause (7) gives permission to make a law for dispensing with an advisory board by a prescription of the circumstances and by a prescription of the classes of cases in which such a dispensation can be made. The legislative authority under clauses (4) and (7) in my opinion, extends to all these six subjects. The normal procedure to be followed when detention is intended to be beyond a period of three months in respect of the six subjects is provided in sub-clause (4). The extraordinary and unusual procedure was intended to be adopted in certain abnormal cases for which provision could be made by a parliamentary statute under clause
(7). It seems to me, however, that section 12 of Act IV of 1950 has reversed this process quite contrary to the intention of the Constitution. By this section Act IV of 1950 has dispensed with the advisory board in five out of six subjects above mentioned and the compulsory procedure of an advisory board laid down in clause (4) of article 22 has been relegated to one out of these six subjects. This has been achieved by giving a construction to the phrase
"circumstances under which and the classes of cases in which" so as to make it co-extensive and coterminous with the "subjects of legislation.
In my opinion, this construction of clause (7) is in contravention of the clear provisions of article 22, and makes clause (4) of article 22 to all intents and purposes nugatory. Such a construction of the clause would amount to the Constitution saying in one breath that a law of preventive detention cannot provide for detention for a longer period than three months without reference to an advisory board and at the same breath and moment saying that
Parliament, if it so chooses, can do so in respect of all or any of the subjects mentioned in the legislative field. If that was so, it would have been wholly unnecessary to provide such a safeguard in the Constitution on a matter which very seriously affects personal liberty. On the other hand, it would be a reasonable construction of the clause to hold that the Constitution authorized Parliament that in serious classes of cases or in cases of those groups of persons who are incorrigible or whose activities are secret the procedure of an advisory board may well be dispensed with, that bearing necessary in the interests of the State. On the other construction as adopted by the framers of section 12, the Constitution need not have troubled itself by conferring an authority on Parliament for making such a law.
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Moreover, if that was the intention, it would have in very clear words indicated this by drafting article 22 clause (4) "Unless otherwise provided by Parliament no law providing for preventive detention shall authorize detention for a longer period than three months unless an Advisory Board has investigated the sufficiency of the cause of such detention." The words "Unless otherwise provided for by Parliament" would have been in accord with the construction which the framers of section 12 have placed on article 22clause (7).
I am further of the opinion that the construction placed by the learned Attorney-General on clause (7) of article 22 and adopted by the framers of Act IV of 1950 creates a very anomalous situation. The matter may be examined from the point of view of the law of preventive detention for reasons connected with supplies and services essential to the life of the community. This subject has been put under section 9 in Act IV of 1950. Suppose a tense situation arises and there is a danger of the railway system being sabotaged and it becomes necessary to pass detention orders against certain persons. According to Act IV of 1950 in such a serious state of affairs the procedure of an advisory board is compulsory, while on the other hand, if there is an apprehension of disturbance of public order by reason of a wrong decision of an umpire at a cricket match or on account of conduct of persons celebrating the festival of Holi, then detention beyond three months can be ordered without reference to an advisory board. Could such an anomalous result be in the contemplation of the framers of the
Constitution? The construction that I am inclined to place on the section is in accord with the scheme of the law punitive detention. Hurt is an offence under the Indian Penal Code and this is one of the subjects of punitive detention. The cases on the subject have been classified in different groups, namely, simple hurt, grievous hurt, grievous hurt with dangerous weapons, grievous hurt to extort a confession, grievous hurt to restrain a public officer from doing his duty, grievous hurt by a rash act, and grievous hurt on provocation. Even simple hurt has been classified in different categories. The subject of assault has also been similarly dealt with.
Sections 352 to 356 deal with cases classified according to the gravity of the offence, i.e., cases of simple assault, assault on a public servant, assault on women, assault in attempt to commit theft, assault for wrongfully confining a person and assault on grave provocation have been separately grouped. Another illustration is furnished by the Criminal Procedure Code in the preventive sections 107 to 110. These deal with different groups of persons; vagrants are in one class, habitual offenders in another, bad characters in the third and disturbers of peace in the fourth. It seems that it is on lines similar to these that it must have been contemplated by the Constitution that classes of cases would be prescribed by Parliament, but this has not been done.
The Constitution has recognised varying scales of duration of detention with the idea that this will vary with the nature of the apprehended act, detention for a period of three months in ordinary cases, detention for a longer period than three months with the intervention of an advisory board in more serious cases, while detention for a longer period than three months without the intercession of an advisory board for a still more dangerous class and for acts committed in grave situations. It can hardly be said that all cases of preventive detention for reasons connected with the maintenance of public order stand on the same footing in the degree of gravity and deserve the same duration of detention and all cases connected with the maintenance of supplies and services essential to the life of the community stand in the matter of their gravity on such a footing as to require a lenient treatment. It is true that in a sense all persons who act prejudicially to the defence of India may be comprehensively said to form one group and similarly persons who act prejudicially to the maintenance of supplies and services essential to the life of the community may form another class but the question is, whether it was in this comprehensive sense that classification was intended by the Constitution
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in clause (7) or was it intended in a narrower and restricted sense? It has to be remembered that the law under clause (7) was intended to provide detention for a longer period and such a law very seriously abridges personal liberty and in this situation giving a narrower and restricted meaning to this expression will be in accordance with well-established canons of construction of statutes.
The wide construction of clause (7) of article 22 brings within the ambit of the clause all the subjects in the legislative list and very seriously abridges the personal liberty of a citizen.
This could never have been the intention of the framers of the Constitution. The narrow and restricted interpretation is in accord with the scheme of the article and it also operates on the whole field of the legislative list and within that field it operates by demarcating certain portions out of each subject which requires sever treatment. If I may say so in conclusion, section 12 treats the lamb and the leopard in the same class because they happen to be quadrupeds. Such a classification could not have been in the thoughts of the Constitutionmakers when clause (7) was introduced in article 22. For the reasons given above, I am of the opinion that section 12 of Act IV of 1950 does not fulfil the requirements of clause (7) of article 22 of the Constitution and is not a law which falls within the ambit of that clause. That being so, this section of Act IV of 1950 is void and by reason of it the detention of the petitioner cannot be justified. There is no other provision in this law under which he can be detained for any period whatsoever. …
Section 14 of Act IV of 1950 has been impugned on the ground that it contravenes and abridges the provisions of articles 22(5) and 32 of the Constitution. … This section is in the nature of an iron curtain around the acts of the authority making the order of preventive detention. The Constitution has guaranteed to the detained person the right to be told the grounds of detention. He has been given a right to make a representation [vide article22(5)], yet section 14 prohibits the disclosure of the grounds furnished to him or the contents of the representation made by him in a Court of law and makes a breach of this injunction punishable with imprisonment.
… Now it is quite clear that if an authority passes an order of preventive detection for reasons not connected with any of the six subjects mentioned in the 7th Schedule, this Court can always declare the detention illegal and release the detenu, but it is not possible for this
Court to function if there is a prohibition against disclosing the grounds which have been served upon him. It is only by an examination of the grounds that it is possible to say whether the grounds falls within the ambit of the legislative power contained in the Constitution or are outside its scope. Again something may be served on the detenu as being grounds which are not grounds at all. In this constituency it is the right of the detained person under article 32 to move this Court for enforcing the right under article 22(5) that he be given the real grounds on which the detention order is based. This Court would be disabled from exercising its functions under article 32 and adjudicating on the point that the grounds given satisfy the requirements of the sub-clause if it is not open to it to see the grounds that have been furnished.
It is a guaranteed right of the person detained to have the very grounds which are the basis of the order of detention. This Court would be entitled to examine the matter and to see whether the grounds furnished are the grounds on the basis of which he has been detained or they contain some other vague or irrelevant material. The whole purpose of furnishing a detained person with the grounds is to enable him to make a representation refuting these grounds and of proving his innocence. In order that this Court may be able to safeguard this fundamental right and to grant him relief it is absolutely essential that the detenu is not prohibited under penalty of punishment to disclose the grounds to the Court and no injunction by law can be issued to this Court disabling it from having a look at the grounds. Section 14 creates a substantive offence if the grounds are disclosed and it also lays a duty on the Court not to
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permit the disclosure of such grounds. It virtually amounts to a suspension of a guaranteed right provided by the Constitution inasmuch as it indirectly by a stringent provision makes administration of the law by this Court impossible and at the same time it deprives a detained person from obtaining justice from this Court. In my opinion, therefore, this section when it prohibits the disclosure of the grounds contravenes or abridges the rights given by Part III to a citizen and is ultra vires the powers of Parliament to that extent.
The result of the above discussion is that, in my opinion, sections 12 and 14 of Act IV of
1950 as above indicated are void and the decision of the detenu 's case has to be made by keeping out of sight these two provisions in the Act. If sections 12 and 14 are deleted from the impugned legislation, then the result is that the detention of the petitioner is not legal. The statute has not provided for detention for a period of three months or less in such cases as it could have done under article 22(4) of the Constitution and that being so, the petitioner cannot be justifiably detained even for a period of three months. I would accordingly order his release.
…
JUSTICE MUKHERJEA (FOR HIMSELF)
… It is true that by reason of preventive detention, a man may be prevented from exercising the right of free movement within the territory of India as contemplated by article 19(1)(d) of the Constitution, but that is merely incidental to or consequential upon loss of liberty resulting from the order of detention. Not merely the right under clause (1)(d), but many of the other rights which are enumerated under the other sub-clauses of article 19(1)may be lost or suspended so long as preventive detention continues. Thus a detenu so long as he is under detention may not be able to practise any profession, or carry on any trade or business which he might like to do; but this would not make the law providing for preventive detention a legislation taking away or abridging the rights under article 19(1)(g) of the Constitution and it would be absurd to suggest that in such cases the validity of the legislation should be tested in accordance with the requirement of clauses (6) of article 19 and that the only restrictions that could be placed upon the person 's free exercise of trade and profession are those specified in that clause.
Mr. Nambiar concedes that in such cases we must look to the substance of the particular legislation and the mere fact that it incidentally trenches upon some other right to which it does not directly relate is not material. He argues, however, that the essence or substance of a legislation which provides for preventive detention is to take away or curtail the right of free movements and in fact, "personal liberty" according to him, connotes nothing else but unrestricted right of locomotion. The learned counsel refers in this connection to certain passages in Blackstone 's Commentaries on the Laws of England, where the author discusses what he calls the three absolute rights inherent in every Englishman, namely, rights of personal security, personal liberty and property. "Personal security", according to Blackstone, consists in a person 's legal and uninterrupted enjoyment of his life, his limb, his body, his health and his reputation; whereas "personal liberty" consists in the power of locomotion, of changing of situation or moving one 's person to whatsoever place one 's own inclination may direct without imprisonment or restraint unless by due course of law [Vide Chase 's Blackstone, 4th Edn. pp.
68, 73].
It will be seen that Blackstone uses the expression "Personal liberty" in a somewhat narrow and restricted sense. A much wider and larger connotation is given to it by later writers on constitutional documents, particularly in America. In ordinary language "personal liberty" means liberty relating to or concerning the person or body of the individual; and "personal liberty" in this sense is the antithesis of physical restraint or coercion. According to Dicey,
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who is an acknowledge authority on the subject "personal liberty" means a personal right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification [Vide Dicey on Constitutional Law, 9th Edn. pp. 207, 208]. It is, in my opinion, this negative right of not being subjected to any form of physical restraint or coercion that constitutes the essence of personal liberty and not mere freedom to move to any part of the Indian territory.
In this connection, it may not be irrelevant to point out that it was in accordance with the recommendation of the Drafting Committee that the word "personal" was inserted before
"liberty" in article 15 of the Constitution which now stands as article 21. In the report of the
Drafting Committee it is stated that the word "liberty" should be qualified by the insertion of the word "personal" before it; otherwise, it might be construed very widely so as to include even the freedoms already dealt with in article 13. Article 13, it should be noted, is the present article 19. If the views of the Drafting Committee were accepted by the Constituent Assembly, the intention obviously was to exclude the contents of article 19 from the concept of "personal liberty" as used in article 21. To what extent the meaning of words used in the Constitution could be discovered from reports of Drafting Committee or debates on the floor of the House is a matter not quite free from doubt and I may have to take up this matter later on when discussing the meaning of the material clause in article 21 of the Constitution. It is enough to say at this stage that if the report of the Drafting Committee is an appropriate material upon which the interpretation of the words of the Constitution could be based, it certainly goes against the contention of the applicant and it shows that the words used in article 19(1)(d) of the Constitution do not mean the same thing as the expression "personal liberty" in article 21 does. It is well known that the word "liberty" standing by itself has been given a very wide meaning by the Supreme Court of the United States of America. It includes not only personal freedom from physical restraint but the right to the free use of one 's own property and to enter into free contractual relations. In the Indian Constitution, on the other hand, the expression "personal liberty" has been deliberately used to restrict it to freedom from physical restraint of person by incarceration or otherwise. Apart from the report of the Drafting
Committee, that is the plain grammatical meaning of the expression as I have already explained. It may not, I think, be quite accurate to state that the operation of article 19 of the
Constitution is limited to free citizens only and that the rights have been described in the article on the presupposition that the citizens are at liberty. The deprivation of personal liberty may entail as a consequence the loss or abridgement of many of the rights described in article 19, but that is because the nature of these rights is such that free exercise of them is not possible in the absence of personal liberty. On the other hand the right to hold and dispose of property which is in sub-clause (f) of article 19(1) and which is not dependent on full possession of personal liberty by the owner may not be affected if the owner is imprisoned or detained.
Anyway, the points is not of much importance for purposes of the present discussion. The result is that, in my opinion, the first contention raised by Mr. Nambiar cannot succeed and it must be held that we are not entitled to examine the reasonableness or otherwise of the
Preventive Detention Act and see whether it is within the permissible bounds specified in clause (5) of article 19.
………
Thus it will be seen that the "due process" clause in the American Constitution came to be used as a potent instrument in the hands of the judiciary for exercising control over social legislation. The judicial pronouncements are not guided by any uniform principle, and the economic and social ideas of the Judges, who form the majority in the Supreme Court for the
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time being, constitute, so to say, the yard-stick for measuring the reasonableness or otherwise of any enactment passed during that period. No writer of American Constitutional Law has been able until now to evolve anything like a definite and consistent set of principles out of the large mass of cases, where the doctrine of "due process of law" has been invoked or applied. It is against this background that we must consider how the constitution-makers in India dealt with and gave final shape to the provisions, on an analogous subject in the Indian
Constitution. In the Draft Constitution, article 15 (which now stands as article 21) was apparently framed on the basis of the 5th and 14th Amendments in the American Constitution.
… The Drafting Committee in their report recommended a change in the language of this article. The first suggestion was that the word "personal" shall be inserted before the word
"liberty" and the second was that the expression "in accordance with procedure established by law" shall be substituted for "due process of law", the reason given being that the former expression was more specific.
… The learned Attorney-General has placed before us the debates in the Constituent
Assembly centering round the adoption of this recommendation of the Drafting Committee and he has referred us to the speeches of several members of the Assembly who played an important part in the shaping of the Constitution. As an aid to discover the meaning of the words in a Constitution, these debates are do doubtful value. "Resort can be had to them", says
Willoughby, "with great caution and only when latent ambiguities are to be solved. The proceedings may be of some value when they clearly point out the purpose of the provision.
But when the question is of abstract meaning, it will be difficult to derive from this source much material assistance in interpretation" [Vide Willoughby on the Constitution of the United
States, p. 64].
The learned Attorney-General concedes that these debates are not admissible to explain the meaning of the words used and he wanted to use them only for the purpose of showing that the Constituent Assembly when they finally adopted the recommendation of the Drafting
Committee, were fully aware of the implications of the differences between the old form of expression and the new. In my opinion, in interpreting the Constitution, it will be better if such extrinsic evidence is left out of account. In matters like this, different members act upon different impulses and from different motives and it is quite possible that some members accepted certain words in a particular sense, while others took them in a different light.
The report of the Drafting Committee, however, has been relied upon by both parties and there are decided authorities in which a higher value has been attached to such reports than the debates on the floor of the House. In Caminetti v. United States, 242 U.S. 470, it is said that reports to Congress accompanying the introduction of proposed law may aid the Courts in reaching the true meaning of the legislation in case of doubtful interpretation. The report is extremely short. It simply says that the reason for the suggested change is to make the thing more specific.
I have no doubt in my mind that if the "due process" clause which appeared in the original draft was finally retained by the Constituent Assembly, it could be safely presumed that the framers of the Indian Constitution wanted that expression to bear the same sense as it does in
America. But when that form was abandoned and another was deliberately substituted in its place, it is not possible to say that in spite of the difference in the language and expression, they should mean the same thing and convey the same idea. Mr. Nambiar 's contention is that in view of the somewhat uncertain and fluidic state of law as prevails in America on the subject, the Drafting Committee recommended an alteration for the purpose of making the language more specific and he would have us hold that it was made specific in this way,
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namely, that instead of being extended over the whole sphere of law, substantive as well as adjective, it was limited to procedural law merely. That is the reason, he says, why instead of the word "process" the expression "procedure" was adopted, but the world "law" means the same thing as it does in the "due process" clause in America and refers not to any State-made law but to the fundamental principles which are inherent in the legal system and are based upon the immutable doctrines of natural justice.
Attractive though this argument might at first sight appear, I do not think that it would be possible to accept it as sound. In the first plea, it is quite clear that the framers of the Indian
Constitution did not desire to introduce into our system the elements of uncertainty, vagueness and changeability that have grown round the "due process" doctrine in America. They wanted to make the provision clear, definite and precise and deliberately chose the words "procedure established by law", as in their opinion no doubts would ordinarily arise about the meaning of this expression. The indefiniteness in the application of the "due process" doctrine in America has nothing to do with the distinction between substantive and procedural law. The uncertainty and elasticity are in the doctrine itself which is a sort of hidden mine, the contents of which nobody knows and is merely revealed from time to time to the judicial conscience of the
Judges. This theory, the Indian Constitution deliberately discarded and that is why they substituted a different form in its place which, according to them, was more specific.
In the second place, it appears to me that when the same words are not used, it will be against the ordinary canons of construction to interpret a provision in our Constitution in accordance with the interpretation put upon a somewhat analogous provision in the
Constitution of another country, where not only the language is different, but the entire political conditions and constitutional set-up are dissimilar. In the Supreme Court of America stress has been laid uniformly upon the word "due" which occurs before and qualifies the expression "process of law". "Due" means "what is just and proper" according to the circumstances of a particular case. It is this word which introduces the variable element in the application of the doctrine; for what is reasonable in one set of circumstances may not be so in another and a different set. In the Indian Constitution the word "due" has been deliberately omitted and this shows clearly that the Constitution-makers of India had no intention of introducing the American doctrine. The word "established" ordinarily means "fixed or laid down" and if "law" means, as Mr. Nambiar contends, not any particular piece of law but the indefinite and indefinable principles of natural justice which underlie positive systems of law, it would not at all be appropriate to use the expression "established", for natural law or natural justice cannot establish anything like a definite procedure.
It does not appear that in any part of the Constitution the word "law" has been used in the sense of "general law" connoting what has been described as the principles of natural justice outside the realm of positive law. On the other hand, the provision of article 31 of the
Constitution, which appears in the chapter on Fundamental Rights, makes it clear that the word "law" is equivalent to State-made law and to deprive a person of his property, the authority or sanction of such law is necessary. As has been said already, the provision of article 21 of the Indian Constitution reproduces, save in one particular, the language of article
31 of the Japanese Constitution and it is quite clear from the scheme and provisions of the
Japanese Constitution that in speaking of law it refers to law passed or recognised as such by the State. In the Irish Constitution also, there is provision in almost similar language which conveys the same ides. Article 40(4)(1) provides that "no citizen shall be deprived of his personal liberty save in accordance with law," and by law is certainly mean the law of the
State.
Possibly the strongest argument in support of Mr. Nambiar 's contention is that if law is taken to mean State-made law, then article 21 would not be a restriction on legislation at all.
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No question of passing any law abridging the right conferred by this article could possibly arise and article 13(2) of the Constitution would have no operation so far as this provision is concerned. To quote the words of an American Judge it would sound very much like the
Constitution speaking to the legislature that the later could not infringe the right created by these articles unless it chose to do so [Vide per Bronson J. in Taylor v. Porte, 4 Hill 140.]
Apparently this is a plausible argument but it must be admitted that we are not concerned with the policy of the Constitution. The fundamental rights not merely impose limitations upon the legislature, but they serve as checks on the exercise of executive powers as well, and in the matter of depriving a man of his personal liberty, checks on the high-handedness of the executive in the shape of preventing them from taking any step, which is not in accordance with law, could certainly rank as fundamental rights. In the Constitutions of various other countries, the provisions relating to protection of personal liberty are couched very much in the same language as in article 21. It is all a question of policy as to whether the legislature or the judiciary would have the final say in such matters and the Constitution-makers of India deliberately decided to place these powers in the hands of the legislate. Article 31 of the
Japanese Constitution, upon which article 21 of our Constitution is modelled, also proceeds upon the same principle. The Japanese Constitution, it is to be noted, guarantees at the same time other rights in regard to arrest, detention and access to Court which might serve as checks on legislative authority as well. Thus article 32 provides:
"No person shall be denied the right of access to the Courts."
Article 34 lays down:
"No person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel, nor shall he be detained without adequate cause; and upon demand of any person, such cause must be immediately shown in open Court in his presence and in the presence of his counsel."
It was probably on the analogy of article 34 of the Japanese Constitution that the first two clauses of article 22 of the Indian Constitution were framed. Article 22 was not in the original
Draft Constitution at all; and after the "due process" clause was discarded by the Constituent
Assembly and the present form was substituted in its place in article 21, article 22 was introduced with a view to provide for some sort of check in matters of arrest and detention and the protection it affords places limitations upon the authority of the legislature as well.
These protections indeed have been denied to cases of preventive detention but that again is a question of policy which does not concern us as a Court. My conclusion, therefore, is that in article 21 the word "law" has been used in the sense of State-made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice. The article presupposes that the law is a valid and binding law under the provisions of the Constitution having regard to the competency of the legislature and the subject it relates to and does not infringe any of the fundamental rights which the Constitution provides for.
In the view that I have taken, the question raised by Mr. Nambiar that the Preventive
Detention Act is invalid, by reason of the fact that the procedure it lays down is not in conformity with the rules of natural justice, does not fall for consideration. It is enough, in my opinion, if the law is a valid law which the legislature is competent to pass and which does not transgress any of the fundamental rights declared in Part III of the Constitution. It is also unnecessary to enter into a discussion on the question raised by the learned Attorney-General as to whether article 22 by itself is a self-contained Code with regard to the law of Preventive
Detention and whether or not the procedure it lays down is exhaustive. Even if the procedure is not exhaustive, it is not permissible to supplement it by application of the rules of natural justice. Page 356 of 610
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On the third point raised by Mr. Nambiar, the only question, therefore, which requires consideration is whether section 12 of the Preventive Detention Act is ultra vires of the
Constitution by reason of its being not in conformity with the provision of article 22(7)(a).
Article 22(7)(a) of the Constitution empowers the Parliament to prescribe the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an advisory board in accordance with the provisions of sub-clause (a) of clause
(4). Section 12 of the Preventive Detention Act which purports to be an enactment in pursuance of article 22(7)(a) of the Constitution provides as follows :
"(1) Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an advisory board for a period longer than three months, but not exceeding one year from the date of his detention, namely, where such person has been detained with a view to preventing him from acting in any manner prejudicial to
(a) the defence of India, relations of India with foreign powers or the security of
India; or
(b) the security of a State or the maintenance of public order."
It will be noticed that there are altogether six heads or subjects in the two Items in the legislative lists, namely, item No. 9 of List I and Item No. 3 of List III which deal with preventive detention. Item No. 9 of List I mentions reasons connected with defence, foreign affairs and security of India, while Item No. 3 of List III speaks of reasons connected with security of a State, the maintenance of public order and the maintenance of supplies and services essential to the community. With the exception of the last head, all the remaining five have been listed in section 12 of the Preventive Detention Act and they have been mentioned both as circumstances and classes of cases in which detention for more than three months would be permissible without the opinion of any advisory board. Mr. Nambiar 's argument is that the mentioning of five out of the six legislative heads in section 12 does not amount to prescribing the circumstances under which, or the classes of cases in which, a person could be detained for more than three months as contemplated by article 22(7)(a). It is also contended that in view of the fact that the two items "circumstances" and "classes" are separated by the conjunction "and," what the Constitution really contemplated was that both these items should be specified and a statement or specification of any one of them would not be a proper compliance with the provisions of the clause. It is further pointed out that the mentioning of the same matters as "circumstances" or "classes" is not warranted by article 22(7) of the
Constitution and is altogether illogical and unsound.
I must say that section 12 has been drafted in a rather clumsy manner and certainly it could have been framed in a better and more proper way. Under article 22(7)(a), the Parliament may specify the circumstances under which, and the classes of cases in which, the necessity of placing the cases of detention for examination by the advisory board could be dispensed with.
By "classes of cases" we mean certain determinable groups, the individuals comprised in each group being related to one another in a particular way which constitutes the determining factor of that group. "Circumstances" on the other hand connote situations or conditions which are external to the persons concerned. Preventive detention can be provided for by law for reasons connected with six different matters specified in the relevant items in the legislative lists, and whatever the reasons might be, there is a provision contained in article 22(4)(a) which lays down that detention for more than three months could not be permitted except with the sanction of the advisory board. An alternative however has been provided for by clause (b) and Parliament has been given the option to take away the protection given by clause (a) and specify the circumstances and the cases when this rule will not apply. I am extremely doubtful
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whether the classification of cases made by Parliament in section 12 of the Act really fulfils the object which the Constitution had in view. The basis of classification has been the apprehended acts of the persons detained described with reference to the general heads mentioned in the items in the legislative lists as said above. Five out of the six heads have been taken out and labelled as classes of cases to which the protection of clause (4)(a) of the article would not be available. It is against common sense that all forms of activities connected with these five items are equally dangerous and merit the same drastic treatment. The descriptions are very general and there may be acts of various degrees of intensity and danger under each one of these heads.
Although I do not think that section 12 has been framed with due regard to the object which the Constitution had in view, I am unable to say that the section is invalid as being ultra vires the Constitution. The Constitution has given unfettered powers to Parliament in the matter of making the classifications and it is open to the Parliament to adopt any method or principle as it likes. If it chose the principle implied in the enumeration of subjects under the relevant legislative heads, it cannot be said that Parliament has exceeded its powers.
I am also unable to hold that both "circumstances" as well as "classes" have to be prescribed in order to comply with the requirement of sub-clause (a) of article 22(7). The subclause (a) of the article lays down a purely enabling provision and Parliament, if it so chooses, may pass any legislation in terms of the same. Where an optional power is conferred on certain authority to perform two separate acts, ordinarily it would not be obligatory upon it to perform both; it may do either if it so likes. Here the classes have been specified and the classes apparently are composed of persons who are detained for the purpose of preventing them from committing certain apprehended acts. I am extremely doubtful whether the classes themselves could be described as "circumstances" as they purport to have been done in the section.
"Circumstances" would ordinarily refer to conditions like war, rebellion, communal disturbances and things like that, under which extra precaution might be necessary and the detention of suspected persons beyond the period of three months without the sanction of the advisory board might be justified. It is said that the likehood of these persons committing the particular acts which are specified might constitute "circumstances." In my opinion, that is not a plain and sensible interpretation. But whatever that may be, as I am of opinion that it is not obligatory on Parliament to prescribe both the circumstances and the classes of cases, I am unable to hold that section 12 is ultra vires the Constitution because the circumstances are not mentioned. As I have said at the beginning, the draft is rather clumsy and I do not know why
Parliament used the word "or" when in the Constitution itself the word "and" has been used.
In the fourth and last point raised by Mr. Nambiar the principal question for consideration is the validity of section 14 of the Preventive Detention Act. Sub-section (1) of section 14 prohibits any Court from allowing any statement to be made or any evidence to be given before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or any representation made by him against such order. It further provides that no Court shall be entitled to require any public officer to produce before it or to disclose the substance of any such communication or representation made or the proceedings of an advisory board or that part of the report of an advisory board which is confidential. Sub-section (2) further provides that:
"It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the
State Government, as the case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in subsection (1):
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Provided that nothing in this sub-section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order."
The provisions of this section are obviously of a most drastic character. It imposes a ban on the Court and prevents it from allowing any statement to be made or any evidence produced before it of the substance of any communication made to the detenu apprising him of the grounds upon which the detention order was made. The Court is also incompetent to look into the proceedings before the advisory board or the report of the latter which is confidential.
Further the disclosure of such materials has been made a criminal offence punishable with imprisonment for a term which may extent to one year. Mr. Nambiar 's contention is that these restrictions render utterly nugatory the provisions of article 32 of the Constitution which guarantees to every person the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution. It is not disputed that the petitioner has the right of moving this Court for a writ of habeas corpus, and unless the Court is in a position to look into and examine the grounds upon which the detention order has been made, it is impossible for it to come to any decision on the point and pass a proper judgment.
Though the right to move this Court is not formally taken away, the entire proceedings are rendered ineffective and altogether illusory. On behalf of the respondent, it is pointed out that article 32 guarantees only the right to constitutional remedy for enforcement of the rights which are declared by the Constitution. If there are no rights under the Constitution, guaranteed to a person who is detained under any law of preventive detention, no question of enforcing such rights by an approach to this Court at all arises. I do not think that this argument proceeds on a sound basis; and in my opinion, section 14 does take away and materially curtails some of the fundamental rights which are guaranteed by the Constitution itself.
Article 22, clause (5), of the Constitution lays down as a fundamental right that when a person is detained for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order. Under clause
(6), the authority need not disclose such facts as it considers to be against public interest to disclose. But so far as the grounds are concerned, the disclosure is not prohibited under any circumstance. It is also incumbent upon the detaining authority to afford a detenue the earlier opportunity of making a representation against the detention order. It has been held in several cases, and in my opinion quite rightly, that if the grounds supplied to a detained person are of such a vague and indefinite character that no proper and adequate representation could be made in reply to the same, that itself would be an infraction of the right which has been give to the detenu under law.
In my opinion, it would not be possible for the Court to decide whether the provisions of article 22, clause (5), have been duly complied with and the fundamental right guaranteed by it has been made available to the detenu unless the grounds communicated to him under the provisions of this article are actually produced before the Court. Apart from this, it is also open to the person detained to contend that the detention order has been a mala fide exercise of power by the detaining authority and that the grounds upon which it is based, are not proper or relevant grounds which would justify detention under the provisions of the law itself. These rights of the detenu would for all practical purposes be rendered unenforceable if the Court is precluded from looking into the grounds which have been supplied to him under section 7 of the Preventive Detention Act. In my opinion, section 14 of the Preventive Detention Act does materially affect the fundamental rights declared under Part III of the Constitution and for this reason it must be held to be illegal and ultra vires. It is not disputed, however, that this section can be severed from the rest of the Act without affecting the other provisions of the Act in any way. The whole Act cannot, therefore, be held to be ultra vires.
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Mr. Nambiar has further argued that section 3 of the Act also contravenes the provisions of article 32 of the Constitution, for it makes satisfaction of the particular authorities final in matters of preventive detention and thereby prevents this Court from satisfying itself as to the propriety of the detention order. This contention cannot succeed as no infraction of any fundamental right is involved in it. As has been pointed out already, this Court cannot interfere unless it is proved that the power has been exercised by the authorities in a mala fide manner or that the grounds are not proper or relevant grounds which justify detention. The provisions are undoubtedly harsh, but as they do not take away the rights under articles 21 and 22of the
Constitution, they cannot be held to be illegal or ultra vires.
The result, therefore, is that, in my opinion, the Preventive Detention Act must be declared to be intra vires the Constitution with the exception of section 14 which is held to be illegal and ultra vires. The present petition, however, must stand dismissed, though it may be open to the petitioner to make a fresh application if he so chooses and if the grounds that have been supplied to him under section 7 of the Act do furnish adequate reasons for making such application. JUSTICE DAS (FOR HIMSELF)
… I now pass on to article 22. … Clauses (1) and (2) of article 22 lay down the procedure that has to be followed when a man is arrested. They ensure four things: (a) right to be informed regarding grounds of arrest, (b) right to consult, and to be defended by, a legal practitioner of his choice, (c) right to be produced before a magistrate within 24 hours and (d) freedom from detention beyond the said period except by order of the magistrate. These, four procedural requirements are very much similar to the requirements of the procedural due process of law as enumerated by Willis. Some of these salutary protections are also to be found in our Code of Criminal Procedure. If the procedure has already been prescribed by article 21 incorporating the principles of natural justice, or the principles underlying our Code of Criminal Procedure what was the necessity of repeating them in clauses (1) and (2) of article 22? Why this unnecessary overlapping? The truth is that article 21 does not prescribe any particular procedure but in defining the protection to life and personal liberty merely envisages or indicates the necessity for a procedure and article 22 lays down the minimum rules of procedure that even Parliament cannot abrogate or overlook. This is so far as punitive detention is concerned. But clause (3) of article 22 expressly provides that none of the procedure laid down in clauses (1) and (2) shall apply to an alien enemy or to a person who is arrested or detained under any law providing for preventive detention. It is thus expressly made clear that a detenu need not be produced before the magistrate and he is not to have the assistance of any lawyer for consultation or for defending him. Such being the express provision of our Constitution nobody can question its wisdom. So I pass on.
Clauses (4), (5), (6) and (7) of article 22 in terms relate to preventive detention.
Article 246 authorises the appropriate legislature to make a law for preventive detention in terms of Entry 9 in List I and/or Entry 3 in List III of the Seventh Schedule. On this legislative power are imposed certain limitations by article 22(4) to (7). According to this the legislature, whether it be Parliament or a State Legislature, is reminded that no law made by it for preventive detention shall authorise the detention of a person for a longer period than three months except in two cases mentioned in sub-clauses (a) and (b). The proviso to sub-clause
(a) and sub-clause (b) refer to a law made only by Parliament under clause (7). Under clause
(7) it is Parliament alone and not any State Legislature that may prescribe what are specified in the three sub-clauses of that clause. Although a State Legislature may make a law for preventive detention in terms of Entry 3 in List III of the Seventh Schedule no such law may
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authorise detention for more than three months unless the provisions of sub-clauses (a) and
(b) of clause (4) sanction such detention. Even a law made by Parliament cannot authorise detention for more than three months unless it is a law made under the provisions of clause
(7). In short, clause (4) of article 22 provides a limitation on the legislative power as to the period of preventive detention. Apart from imposing a limitation on the legislative power, clause (4) also prescribes a procedure of detention for a period longer than three months by providing for an advisory board. Then comes clause (5). It lays down the procedure that has to be followed when a person is detained under any law providing for preventive detention, namely, (a) the grounds of the order of detention must be communicated to the detenu as soon as may be, and (b) the detenu must be afforded the earlier opportunity of making a representation against the order. The first requirement takes the place of notice and the second that of a defence or hearing. These are the only compulsory procedural requirements laid down by our Constitution. There is nothing to prevent the Legislature from providing an elaborate procedure regulating preventive detention but it is not obliged to do so. If some procedure is provided as envisaged by article 21 and the compulsory requirements of article 22 are obeyed and carried out nobody can, under our Constitution as I read it, complain of the law providing for preventive detention.
Learned counsel for the petitioner concedes that the four requirements of procedural due process summarised by Willis will have to be modified in their application to preventive detention. Thus he does not insist on a prior notice before arrest, for he recognizes that such a requirement may frustrate the very object of preventive detention by giving an opportunity to the person in question to go underground. The provision in clause (5) for supplying grounds is a good substitute for notice. He also does not insist that the Tribunal to judge the reasonableness of the detention should be a judicial tribunal. He will be satisfied if the tribunal or advisory board, as it is called in article 22 of the Constitution, is an impartial body and goes into the merits of the order of the detention and its decision is binding on the executive government. He insists that the detenu must have a reasonable and effective opportunity to put up his defence.
He does not insist on the assistance of counsel, for that is expressly taken away, by the
Constitution itself. But he insists on what he calls an effective opportunity of being heard in person before an impartial tribunal which will be free to examine the grounds of his detention and whose decision should be binding alike on the detenu and the executive authority which detains. The claim may be reasonable but the question before the Court is not reasonableness or otherwise of the provisions of article 22(4) to (7). Those provisions are not justifiable, for they are the provisions of the Constitution itself, which is supreme over everybody. The Court can only seek to find out, on a proper construction, what protection has in fact been provided.
The Constitution has provided for the giving of the grounds of detention although facts as distinguished from grounds may be withheld under clause (6) and the right of representation against the order of detention. It has provided for the duration of the detention. There the guaranteed fundamental procedural rights end. There is no provision for any trial before any tribunal. One cannot import the condition of a trial by any tribunal from the fact that a right of representation has been given. The right to make representation is nothing more than the right to "lodge objections" as provided by the Danzig Constitution and the Weimar
Constitution. The representations made will no doubt be considered by the Government. It is said a prosecutor cannot be himself the judge. Ordinarily, the orders of detention will in a great majority of cases be made by the District Magistrate or Sub-Divisional Officer or the
Commissioner of Police. The representation of the detenu goes to the Government. Why should it be assumed that a high government official at the seat of the government will not impartially consider the representation and judge the propriety of the order of detention made by local officials? Clause (5) does not imperatively provide for any oral representation which
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a hearing will entail. Indeed the exclusion of the provisions of clauses (1) and (2) negatives any idea of trial or oral defence. The Court may not, by temperament and training, like this at all but it cannot question the wisdom or the policy of the Constitution. In my judgment as regards preventive detention laws, the only limitation put upon the legislative power is that it must provide some procedure and at least incorporate the minimum requirements laid down in article 22(4) to (7). There is no limitation as regards the substantive law. Therefore a preventive detention law which provides some procedure and complies with the requirements of article22(4) to (7) must be held to be a good law, however odious it may appear to the Court to be.
Learned counsel for the petitioner contends that the impugned Act does to comply with even the bare requirements of article 22(4) to (7). It is pointed out that section 3 of the Act does not lay down any objective test but leaves it to the authority to define and say whether a particular person comes within the legislative heads. In other words, it is contended that
Parliament has not legislated at all but has delegated its legislative powers to the executive authorities. I do not think there is any substance in this contention. In the first place this is not an objection as to procedure but to substantive law which is not open in the Court 's scrutiny.
In the next place this contention overlooks the basic distinction between the delegation of power to make the law and the conferring of an authority and discretion as to its execution to be exercised under and in pursuance of the law. The impugned Act has specifically set forth an ascertainable standard by which the conduct of a particular person is to be judged by the detaining authority.
It is next urged that section 12 of the Act does not comply with the requirements of clause
(7) of article 22 for two reasons, namely - (i) that clause (7) contemplates a law prescribing the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months and then another law thereafter providing for preventive detention for a period longer than three months; and (ii) that under clause (7)
Parliament must prescribe both the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months.
As regards the first point I do not see why Parliament must make two laws, one laying down the principles for longer detention and another for detention for such longer period. It may be that a State cannot provide for longer detention until Parliament has made the law, but
I can see no reason why Parliament cannot do both by the same Act. In fact, clause (4)(b) contemplates the detention itself to be in accordance with the provisions of any law made by
Parliament under sub-clauses (a) and (b) of clause (7). Therefore, the detention can well be under the very law which the Parliament makes under sub-clauses (a) and (b) of clause (7).
As to the second point the argument is that Parliament has a discretion under clause (7) to make a law and it is not obliged to make any law but when our Parliament chooses to make a law it must prescribe both the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months. I am unable to construe clause (7)(a) in the way suggested by learned counsel for the petitioner. It is an enabling provision empowering Parliament to prescribe two things. Parliament may prescribe either or both. If a father tells his delicate child that he may play table tennis and badminton but not the strenuous game of football, it obviously does not mean that the child, if he chooses to play at all, must play both table tennis and badminton. It is an option given to the child. Likewise, the
Constitution gives to Parliament the power of prescribing two things. Parliament is not obliged to prescribe at all but if it chooses to prescribe it may prescribe either or both. Clause 7(a), in my opinion, has to be read distributively as follows: The Parliament may prescribe the circumstance under which a person may be detained for a period longer than three months and
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Parliament may prescribe the class or classes of cases in which a person may be detained for a period longer than three months. That appears to me to be consonant with sound rules of construction. Further, the circumstances and the class or classes of cases may conceivably coalesce. Indeed the Full Bench case No. 1 of 1950 before the Calcutta High Court (Kshitindra
Narayan v. Chief Secretary) itself indicates that the same provision may be read as circumstances or as a classification. In that case learned counsel conceded that section 12 had prescribed the circumstances but his complaint was that it had not prescribed the class or classes of cases. The majority of the Court repelled this contention. One learned Judge, however, held that section 12 had prescribed the class or classes of cases but had not prescribed the circumstances. It is, therefore, clear that the classification itself may indicate the circumstances. Again, the classification may be on a variety of bases. It may be according to provinces the detenus come from. It may be according to the age of the detenus. It may be according to the object they are supposed to have in view or according to the activities they are suspected to be engaged in. In this case Parliament has taken five out of the six legislative heads and divided them into two categories. The detenus are thus classified according to their suspected object or activities endangering the several matters specified in the section. I do not see why classification cannot be made on the footing of the objectives of the detenus falling in some of the legislative heads, for each legislative head has a specific connotation well understood in law. If I am correct that there has been a classification then the fact that a person falls within one or the other class may well be the circumstances under which he may be detained for a period longer than three months. I do not consider it right, as a matter of construction, to read any further limitation in clause 7(a) of article 22. In my judgment
Parliament was not obliged under clause (7) to prescribe both circumstances and classes, and in any case has in fact and substance prescribed both.
I am conscious that a law made by Parliament under article 22(7) will do away with the salutary safeguard of the opinion of an advisory board. But it must be remembered that our
Constitution itself contemplates that in certain circumstances or for certain class or classes of detenus even the advisory board may not be safe and it has trusted Parliament to make a law for that purpose. Our preference for an advisory board should not blind us to this aspect of the matter. It is true that circumstances ordinarily relate to extraneous things, like riots, commotion, political or communal or some sort of abnormal situation and it is said that the framers of the Constitution had in mind some such situation when the advisory board might be done away with. It is also urged that they had in mind that the more dangerous types of detenus should be denied the privilege of the advisory board. I am free to confess that prescription of specific circumstances or a more rigid and definite specification of classes would have been better and more desirable. But that is crying for the ideal. The Constitution has not in terms put any such limitation as regards the circumstances or the class or classes of cases and it is idle to speculate as to the intention of the Constitution-makers, who, by the way, are the very persons who made this law. It is not for the Court to improve upon or add to the Constitution. If the law duly made by Parliament is repugnant to good sense, public opinion will compel Parliament to alter it suitably.
Finally, an objection is taken that section 14 of the impugned Act takes away or abridge the right of the detenu to move this Court by appropriate proceedings. Both clauses (1) and
(2) of article 32 speak of enforcement of rights conferred by Part III. The right to move this
Court is given to a person not for the sake of moving only but for moving the Court for the enforcement of some rights conferred by Part III and this Court has been given power to issue directions or orders or writs for the enforcement of any of such rights. In order, therefore, to attract the application of article 32, the person applying must first satisfy that he has got a right under Part III which has to be enforced under article 32. I have already said that article 19 does not deal with the freedom of the person. I have also said that articles 21 and 22 provide for
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protection by insisting on some procedure. Under article 22(5) the authority making the order of detention is enjoined, as soon as may be, to communicate to the detenu the grounds on which that order has been made. This provision has some purpose, namely, that the disclosure of the grounds will afford the detenu the opportunity of making a representation against the order. Supposing the authority does not give any grounds at all as distinct from facts referred to in clause (6). Surely the detenu loses a fundamental right because he is prevented from making a representation against the order of detention. Suppose the authority hands over to the detenu a piece of paper with some scribblings on it which do not amount to any ground at all for detention. Then also the detenu can legitimately complain that his right has been infringed. He can then come to the Court to get redress under article 32, but he cannot show to the Court the piece of paper with the scribblings on it under section 14 of the Act and the
Court cannot judge whether he has actually get the grounds which he is entitled to under article 22(5). In such a case the detenu may well complain that both his substantive right under article 22(5) as well as his right to constitutional remedies under article 32 have been infringed.
He can complain of infringement of his remedial rights under article32, because he cannot show that there has been an infringement of his substantive right under article 22(5). It appears to me, therefore, that section 14 of the Act in so far as it prevents the detenu from disclosing to the Court the grounds communicated to him is not in conformity with Part III of the
Constitution and is, therefore, void under article 13(2). That section, however, is clearly severable and cannot affect the whole Act. On this question the views of Meredith C.J. and
Das J. of Patna in Criminal Miscellaneous No. 124 of 1950 (Lalit Kumar Barman v. The State) and the majority of the learned Judges of the Calcutta High Court in Full Bench Case No. 1 of 1950 (Kshitindra Narayan v. Chief Secretary) appear to be correct and sound.
For the reasons I have given above, in my opinion, the impugned Act is a valid law except as to section 14 in so far as it prevents the grounds being disclosed to the Court. The petitioner before us does not complain that he has not got proper grounds. Further, the period of his detention under the impugned Act has not gone beyond three months and, in the circumstances, this application should, in my opinion, stand dismissed.
Petition dismissed.
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UNIT 8 – LIFE AND PERSONAL LIBERTY (ARTICLE 21)
PROCEDURE ESTABLISHED BY LAW
A. K. GOPALAN V. STATE OF MADRAS
AIR 1950 SC 27
Decided On: May 19, 1950
BENCH – CHIEF JUSTICE H. L. KANIA, JUSTICES S. FAZL ALI, PATANJALI SASTRI, M. C.
MAHAJAN, B. K. MUKHERJEA & S. R. DAS
CHIEF JUSTICE KANIA (FOR HIMSELF)
… This is a petition by the applicant under article 32(1) of the Constitution of India for a writ of habeas corpus against his detention in the Madras Jail. In the petition he has given various dates showing how he has been under detention since December, 1947. Under the ordinary Criminal Law he was sentenced to terms of imprisonment but those convictions were set aside. While he was thus under detention under one of the orders of the Madras State
Government, on the 1st of March, 1950, he was served with an order made under section 3(1) of the Preventive Detention Act, IV of 1950. He challenges the legality of the order as it is contended that Act IV of 1950 contravenes the provisions of articles 13, 19 and 21 and the provisions of that Act are not in accordance with article 22 of the Constitution. He has also challenged the validity of the order on the ground that it is issued mala fide. The burden of proving that allegation is on the applicant. Because of the penal provisions of section 14 of the impugned Act the applicant has not disclosed the grounds, supplied to him, for his detention and the question of mala fides of the order therefore cannot be gone into under this petition. The question of the validity of Act IV of 1950 was argued before us at great length. This is the first case in which the different articles of the Constitution of India contained in the
Chapter on Fundamental Rights has come for discussion before us. The Court is indebted to the learned counsel for the applicant and the Attorney-General for their assistance in interpreting the true meaning of the relevant clauses of the Constitution.
………
Article 21 which is also in Part III under the caption "Right to Freedom" runs as follows:
"No person shall be deprived of his life or personal liberty except according to procedure established by law."
This article has been strongly relied upon by the petitioner in support of his contention that the impugned Act is ultra vires the Parliament as it abridges the right given by this article to every person. It was argued that under the Constitution of the United States of America the corresponding provision is found in the 5th and 14th Amendments where the provision, inter alia, is "that no person shall be deprived of his life or liberty or property except by due process of law." It was contended for the petitioner that the Indian Constitution gives the same protection to every person in India, except that in the United States "due process of law" has been construed by its Supreme Court to cover both substantive and procedural law, while in
India only the protection of procedural law is guaranteed. It was contended that the omission of the word "due" made no difference to the interpretation of the words in article 21. The word
"established" was not equivalent to "prescribed". It had a wider meaning. The word "law" did not mean enacted law because that will be no legislative protection at all. If so construed, any
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Act passed by the Parliament or the State Legislature, which was otherwise within its legislative power, can destroy or abridge this right. On the same line of reasoning, it was argued that if that was the intention there was no necessity to put this as a fundamental right in Part III at all. As to the meaning of the word "law" it was argued that it meant principles of natural justice. It meant "jus", i.e., law in the abstract sense of the principles of natural justice, as mentioned in standard works of Jurisprudence, and not "lex", i.e., enacted law. Against the contention that such construction will leave the meaning vague, it was argued that four principles of natural justice recognised in all civilized countries were covered, in any event, by the word "law". They are : (1) An objective test, i.e., a certain, definite and ascertainable rule of human conduct for the violation of which one can be detained; (2) Notice of the grounds of such detention; (3) An impartial tribunal, administrative, judicial or advisory, to decide whether the detention is justified; and (4) Orderly course of procedure, including an opportunity to be heard orally (not merely by making a written representation) with a right to lead evidence and call witnesses.
In my opinion, this line of approach is not proper and indeed is misleading. As regards the American Constitution its general structure is noticed in these words in "The Government of the United States" by Munro (5th Edition) at page 53 :
"The architects of 1787 built only the basement. Their descendants have kept adding walls and windows, wings and gables, pillars and porches to make a rambling structure which is not yet finished. Or, to change the metaphor, it has a fabric which, to use the words of James Russell Lowell, is still being 'woven on the roaring loom of time '. That is what the framers of the original Constitution intended it to be. Never was it in their mind to work out a final scheme for the government of the country and stereotype it for all time. They sought merely to provide a starting point."
The same aspect is emphasized in Professor Willis 's book on Constitutional Law and
Cooley 's Constitutional Limitations. In contrast to the American Constitution, the Indian
Constitution is a very detailed one. The Constitution itself provides in minute details the legislative powers of the Parliament and the State Legislatures. The same feature is noticeable in the case of the judiciary, finance, trade, commerce and services. It is thus quite detailed and the whole of it has to be read with the same sanctity, without giving undue weight to Part III or article 246, except to the extent one is legitimately and clearly limited by the other.
Four marked points of distinction between the clause in the American Constitution and article 21 of the Constitution of India may be noticed at this stage. The first is that in U.S.A.
Constitution the word "liberty" is used simpliciter while in India it is restricted to personal liberty. (2) In U.S.A. Constitution the same protection is given to property, while in India the fundamental right in respect of property is contained in article 31. (3) The word "due" is omitted altogether and the expression "due process of law" is not used deliberately. (4) The word "established" is used and is limited to "Procedure" in our article 21.
The whole argument of the petitioner is founded on the meaning of the word "law" given to it by the Supreme Court of America. It seems unnecessary to embark on a discussion of the powers and jurisdiction of the Supreme Court of the U.S.A. and how they came to enlarge or abridge the meaning of law in the expression "due process of law". Without going into details,
I think there is no justification to adopt the meaning of the word "law" as interpreted by the
Supreme Court of U.S.A. in the expression "due process of law" merely because the word
"law" is used in article 21. The discussion of the meaning of "due process of law" found in
Willis on Constitutional Law and in Cooley 's Constitutional Limitations shows the diverse meanings given to that expression at different times and under different circumstances by the
Supreme Court of U.S.A., so much so that the conclusion reached by these authors is that the expression means reasonable law according to the view of the majority of the judges of the
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Supreme Court at a particular time holding office. It also shows how the meaning of the expression was widened or abridged in certain decades. Moreover, to control the meaning so given to that expression from time to time the doctrine of police powers was brought into play.
That doctrine, shortly put, is that legislation meant for the good of the people generally, and in which the individual has to surrender his freedom to a certain extent because it is for the benefit of the people at large, has not to be tested by the touchstone of the "due process of law" formula.
Our attention was drawn to the debates and report of the drafting committee of the
Constituent Assembly in respect of the wording of this clause. The report may be read not to control the meaning of the article, but may be seen in case of ambiguity. In Municipal Council of Sydney v. Commonwealth, (1904) 1 Bom. L.R. 208, it was thought that individual opinion of members of the Convention expressed in the debate cannot be referred to for the purpose of construing the Constitution. The same opinion was expressed in United States v. Wong Kim
Ark, 169 U.S. 649. The result appears to be that while it is not proper to take into consideration the individual opinions of Members of Parliament or Convention to construe the meaning of the particular clause, when a question is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be permitted. In the present case the debates were referred to show that the expression "due process of law" was known to exist in the American Constitution and after a discussion was not adopted by the Constituent
Assembly in our Constitution. In Administrator-General of Bengal v. Premlal Mullick, a reference to the proceedings of the Legislature which resulted in the passing of the Act was not considered legitimate aid in the construction of a particular section. The same reasons were held as cogent for excluding a reference to such debates in construing a Indian Statute.
Resort may be had to these sources with great caution and only when latent ambiguities are to be resolved. See Craie 's Statute Law (4th Edition) page 122, Maxwell on Interpretation of
Statutes (9th Edition) pp. 28-29 and Crawford on Statutory Construction (1940 Edition) p.
379, article 214. A perusal of the report of the drafting committee to which our attention was drawn shows clearly that the Constituent Assembly had before it the American article and the expression "due process of law" but they deliberately dropped the use of that expression from our Constitution."
No extrinsic aid is needed to interpret the words of article 21, which in my opinion, are not ambiguous. Normally read, and without thinking of other Constitutions, the expression
"procedure established by law" must mean procedure prescribed by the law of the State. If the
Indian Constitution wanted to preserve to every person the protection given by the due process clause of the American Constitution there was nothing to prevent the Assembly from adopting the phrase, or if they wanted to limit the same to procedure only, to adopt that expression with only the word "procedural" prefixed to "law". However, the correct question is what is the right given by article 21? The only right is that no person shall be deprived of his life or liberty except according to procedure established by law. One may like that right to cover a larger area, but to give such a right is not the function of the Court; it is the function of the
Constitution. To read the word "law" as meaning rules of natural justice will land one in difficulties because the rules of natural justice, as regards procedure, are nowhere defined and in my opinion the Constitution cannot be read as laying down a vague standard. This is particularly so when in omitting to adopt "due process of law" it was considered that the expression "procedure established by law" made the standard specific. It cannot be specific except by reading the expression as meaning procedure prescribed by the legislature. The word, "law" as used in this Part has different shades of meaning but in no other article it appears to bear the indefinite meaning of natural justice. If so, there appears no reason why in this article it should receive this peculiar meaning. Article 31 which is also in Part III and relates to the fundamental rights in respect of property runs as follows:-
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"No person shall be deprived of his property save by authority of law."
It is obvious that in that clause "law" must mean enacted law. The object of dealing with property under a different article appears more to provide the exceptions found in article 31(2) to (6), rather than to give the word "law" a different meaning than the one given in article 21.
The word "established" according to the Oxford Dictionary means "to fix, settle, institute or ordain by enactment or agreement." The word "established" itself suggests an agency which fixes the limits. According to the dictionary this agency can be either the legislature or an agreement between the parties. There is therefore no justification to give the meaning of "jus" to "law" in article 21.
The phrase "procedure established by law" seems to be borrowed from article 31 of the
Japanese Constitution. But other articles of that Constitution which expressly preserve other personal liberties in different clauses have to be read together to determine the meaning of
"law" in the expression "procedure established by law." These articles of the Japanese
Constitution have not been incorporated in the Constitution of India in the same language. It is not shown that the word "law" means "jus" in the Japanese Constitution. In the Japanese
Constitution these rights claimed under the rules of natural justice are not given by the interpretation of the words "procedure established by law" in their article 31. The word "due" in the expression "due process of law" in the American Constitution is interpreted to mean
"just", according to the opinion of the Supreme Court of U.S.A. That word imparts jurisdiction to the Courts to pronounce what is "due" from otherwise, according to law. The deliberate omission of the word "due" from article 21 lends strength to the contention that the justifiable aspect of "law", i.e., to consider whether it is reasonable or not by the Court, does not form part of the Indian Constitution. The omission of the word "due", the limitation imposed by the word "procedure" and the insertion of the word "established" thus brings out more clearly the idea of legislative prescription in the expression used in article 21. By, adopting the phrase
"procedure established by law" the Constitution gave the legislature the final word to determine the law.
JUSTICE FAZL ALI (for himself)
………
I will now pass on to the consideration of article 21, which runs as follows:"No person shall be deprived of his life or personal liberty except according to procedure established by law."
Here again, our first step must be to arrive at a clear meaning of the provision. The only words which cause some difficulty in the proper construction of the article are "procedure established by law."
The learned Attorney-General contended before us that the word "law" which is used in article 21 means State-made law or law enacted by the State. On the other hand, the learned counsel for the petitioner strongly contended that the expression "procedure established by law" is used in a much wider sense and approximates in meaning to the expression "due process of law" as interpreted by the Supreme Court of America in the earliest times and, if that is so, it means exactly what some of the American writers mean to convey by the expression "procedural due process."
In the course of the arguments, the learned Attorney-General referred us to the proceedings in the Constituent Assembly for the purpose of showing that the article as originally drafted contained the words "without due process of law" but these words were subsequently replaced by the words "except according to procedure established by law." In
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my opinion, though the proceedings or discussions in the Assembly are not relevant for the purpose of construing the meaning of the expressions used in article 21, especially when they are plain and unambiguous, they are relevant to show that the Assembly intended to avoid the use of the expression "without due process of law." That expression had its roots in the expression "per legem terrae" (law of the land) used in Magna Carta in 1215. In the reign of
Edward III, however, the words "due process of law" were used in a statute guaranteeing that no person will be deprived of his property or imprisoned or indicted or put to death without being brought in to answer by due process of law (28, Edward III, Ch. III). The expression was afterwards adopted in the American Constitution and also in the Constitutions of some of the constituent States, though some of the States preferred to use the words "in due course of law" or "according to the law of the land." [See Cooley on "Constitutional Limitations," 8th
Edn., Vol. II, pages 734-5]. In the earliest times, the American Supreme Court construed "due process of law" to cover matters of procedure only, but gradually the meaning of the expression was widened so as to cover substantive law also, by laying emphasis on the word
"due". The expression was used in such a wide sense that the judges found it difficult to define it and in one of the cases it was observed as follows:"It would be difficult and perhaps impossible to give to those words a definition, at once accurate, and broad enough to cover every case. This difficulty and perhaps impossibility was referred to by Mr. Justice Miller in Davidson v. New
Orleans, where the opinion was expressed that it is wiser to ascertain their intent and application by the 'gradual process of judicial inclusion and exclusion, ' as the cases presented for decision shall require, with the reasoning on which such decisions may be founded :" Missouri Pacific Railway Co. v. Humes, 115 U.S.
512 .
It seems plain that the Constituent Assembly did not adopt this expression on account of the very elastic meaning given to it, but preferred to use the words "according to procedure established by law" which occur in the Japanese Constitution framed in 1946.
It will not be out of place to state here in a few words how the Japanese Constitution came into existence. It appears that on the 11th October, 1945, General McArthur directed the
Japanese Cabinet to initiate measures for the preparation of the Japanese Constitution, but, as no progress was made, it was decided in February, 1946, that the problem of constitutional reform should be taken over by the Government Section of the Supreme Commander 's
Headquarters. Subsequently the Chief of this Section and the staff drafted the Constitution with the help of American constitutional lawyers who were called to assist the Government
Section in the task. This Constitution, as a learned writer has remarked, bore on almost every page evidences of its essentially Western origin, and this characteristic was especially evident in the preamble "particularly reminiscent of the American Declaration of Independence, a preamble which, it has been observed, no Japanese could possibly have conceived or written and which few could even understand" [See Ogg and Zink 's "Modern Foreign Governments"].
One of the characteristics of the Constitution which undoubtedly bespeaks of direct American influence is to be found in a lengthy chapter, consisting of 31 articles, entitled "Rights and
Duties of the People," which provided for the first time an effective "Bill of Rights" for the
Japanese people. The usual safeguards have been provided there against apprehension without a warrant and against arrest or detention without being informed of the charges or without adequate cause (articles 33 and 34).
Now there are two matters which deserve to be noticed:- (1) that the Japanese Constitution was framed wholly under American influence; and (2) that at the time it was framed the trend of judicial opinion in America was in favour of confining the meaning of the expression "due process of law" to what is expressed by certain American writers by the somewhat quaint but useful expression "procedural due process." That there was such a trend would be clear from
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the following passage which I quote from Carl Brent Swisher 's "The Growth of Constitutional
Power in the United States" (page 107) :"The American history of its interpretation falls into three periods. During the first period, covering roughly the first century of government under the
Constitution, due process was interpreted principally as a restriction upon procedure - and largely the judicial procedure - by which the government exercised its powers. During the second period, which, again roughly speaking, extended through 1936, due process was expanded to serve as a restriction not merely upon procedure but upon the substance of the activities in which the government might engage. During the third period, extending from 1936 to date, the use of due process as a substantive restriction has been largely suspended or abandoned, leaving it principally in its original status as a restriction upon procedure." In the circumstances mentioned, it seems permissible to surmise that the expression
"procedure established by law" as used in the Japanese Constitution represented the current trend of American judicial opinion with regard to "due process of law," and, if that is so, the expression as used in our Constitution means all that the American writers have read into the words "procedural due process." But I do not wish to base any conclusions upon mere surmise and will try to examine the whole question on its merits.
The word "law" may be used in an abstract or concrete sense. Sometimes it is preceded by an article such as "a" or "the" or by such words as "any" "all," etc., and sometimes it is used without any such prefix. But, generally, the word "law" has a wider meaning when used in the abstract sense without being preceded by an article. The question to be decided is whether the word "law" means nothing more than statute law.
Now whatever may be the meaning of the expression "due process of law," the word "law" is common to that expression as well as "procedure established by law" and though we are not bound to adopt the construction put on "law" or "due process of law" in America, yet since a number of eminent American Judges have devoted much thought to the subject, I am not prepared to hold that we can derive no help from their opinions and we should completely ignore them. I will therefore in the first instance set out certain quotations from a few of the decisions of the American Supreme Court construing the word “law” as used in the expression
"due process of law," in so far as it bears on the question of legal procedure.
(1) "Although the legislature may at its pleasure provide new remedies or change old ones, the power is nevertheless subject to the condition that it cannot remove certain ancient landmarks, or take away certain fundamental rights which have been always recognized and observed in judicial procedures": Bardwell v. Collin, 9 L.R.A. 152.
(2) "By the law of the land is most clearly intended the general law: a law which hears before it condemns, which proceeds upon inquiry and renders judgments only after trial. The meaning is that every citizen shall hold his life, liberty and property, and immunities under the protection of the general rules which govern society": Dartmouth College Case, [17 U.S. 4].
(3) "Can it be doubted that due process of law signifies a right to be heard in one 's defence?
If the legislative department of the government were to enact a statute conferring the right to condemn the citizen without any opportunity whatever of being heard, would it be pretended that such an enactment would not be violative of the Constitution? If this be true, as it undoubtedly is, how can it be said that the judicial department, the source and fountain of justice itself, has yet the authority to render lawful that which if done under express legislative sanction would be violative of the Constitution? If such power obtains, then the judicial department of the government sitting to uphold and enforce the Constitution is the only possessing a power to disregard it. If such authority exists then in consequence of their
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establishment, to compel obedience to law and enforce justice, Courts possess the right to inflict the very wrongs which they were created to prevent": Hovey v. Elliott, [167 U.S. 409 at page 417].
(4) "It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his say in Court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be upheld where justice is justly administered":
Gatpin v. Page, 85 U.S. 18.
Thus, in America, the word "law" does not mean merely State-made law or law enacted by the State and does not exclude certain fundamental principles of justice which inhere in every civilized system of law and which are at the root of it. The result of the numerous decisions in America has been summed up by Professor Willis in his book on "Constitutional
Law" at page 662, in the statement that the essentials of due process are: (1) notice, (2) opportunity to heard, (3) an impartial tribunal, and (4) orderly course of procedure. It is pointed out by the learned author that these essentials may assume different forms in different circumstances, and so long as they are conceded in principle, the requirement of law will be fulfilled. For example, a person cannot require any particular form or method of hearing, but all that he can require is a reasonable opportunity to be heard. Similarly, an impartial tribunal does not necessarily mean a judicial tribunal in every case. So far as orderly course of procedure is concerned, he explains that it does not require a Court to strictly weigh the evidence but it does require it to examine the entire record to ascertain the issues, to discover whether there are facts not reported and to see whether or not the law has been correctly applied to facts. The view expressed by other writers is practically the same as that expressed by Professor Willis, though some of them do not expressly refer to the fourth element, viz., orderly course of procedure. The real point however is that these four elements are really different aspects of the same right, viz., the right to be heard before one is condemned.
So far as this right is concerned, judicial opinion in England appears to be the same as that in America. In England, it would shock one to be told that a man can be deprived of his personal liberty without a fair trial or hearing. Such a case can happen only if the Parliament expressly takes away the right in question in an emergency as the British Parliament did during the last two world wars in a limited number of cases. I will refer here to a few cases which show that the fundamental principle that a person whose right is affected must be heard has been observed not only in cases involving personal liberty but also in proceedings affecting other rights, even though they may have come before administrative or quasi-judicial tribunals. Cooper v. The Wadsworth Board of Works, 14 C.B. (N.S.) 180 was a case under an
Act which empowered the District Board to alter or demolish a house where the builder had neglected to give notice of his intention seven days before proceeding to lay or dig the foundation. Acting upon this power, the Board directed the demolition of a building without notice to the builder, but this was held to be illegal. Byles J. In dealing with the matter observed as follows:"I conceive they acted judicially because they had to determine the offence, and they had to apportion the punishment as well as the remedy. That being so, a long course of decisions, beginning with Dr. Bentley 's case, and ending with some very recent cases, establish that although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The judgment of Mr. Justice
Fortescue, in Dr. Bentley 's case, is somewhat quaint, but it is very applicable, and has been the law from that time to the present. He says, "The objection for
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want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any."
In the same case Erle C.J. observed :"It has been said that the principle that no man shall be deprived of his property without an opportunity of being heard, is limited to a judicial proceeding… I do not quite agree with that;… the law, I think, has been applied to many exercises of power which in common understanding would not be at all more a judicial proceeding than would be the act of the District Board in ordering a house to be pulled down."
… In Local Government Board v. Arlidge, [1915] A.C. 120, the Local Government dismissed an appeal by a person against whom a closing order had been made under Housing,
Town Planning, &c. Act, without an oral hearing and without being allowed to see the report made by the Board 's Inspector upon public local inquiry. The House of Lords did not interfere with the order on the ground that the appeal had been dealt with by an administrative authority whose duty was to enforce obligations on the individual in the interests of the community and whose character was that of an organization with executive functions. The principle however was conceded and lucidly set forth that when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially, and they must deal with the question referred to them without bias and must give to each of the parties an opportunity of presenting its case, and that the decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. Commenting upon this case, which is generally regarded as an extreme case, Mr. Gavin Simonds, who afterwards became a member of the
House of Lords observes:"I think you would agree that if the subject-matter of such proceedings as are here indicated was the liberty of the subject, or indeed his life, you would regard such a judicial procedure as outrageous." (See C.K. Allen 's "Law and Orders," page 167).
I have particularly referred to cases which were before administrative tribunals, because I have to deal in this case with preventive detention which is said to be an executive act and because I wish to point out that even before executive authorities and administrative tribunals an order cannot generally be passed affecting one 's rights without giving one such hearing as may be appropriate to the circumstances of the case. I have only to add that Halsbury after enumerating the most important liberties which are recognized in England, such as right of personal freedom, right to freedom of speech, right of public meeting, etc., adds :"It seems to me that there should be added to this list the following rights which appear to have become well-established-the right of the subject to have any case affecting him tried in accordance with the principles of natural justice, particularly the principles that a man may not be a judge in his own cause, and that no party ought to be condemned unheard, or to have a decision given against him unless he has been given a reasonable opportunity of putting forward his case…" (Halsbury 's Laws of England, 2nd Edition, volume 6, page 392).
The question is whether the principle that no person can be condemned without a hearing by an impartial tribunal which is well-recognized in all modern civilized systems of law and which Halsbury puts on a par with well-recognized fundamental rights cannot be regarded as part of the law of this country. I must confess that I find it difficult to give a negative answer to this question. The principle being part of the British system of law and procedure which we have inherited, has been observed in this country for a very long time and is also deeply rooted in our ancient history, being the basis of the panchayat system from the earliest times. The whole of the Criminal Procedure Code, whether it deals with trial of offences or with preventive or quasi-administrative measures such as are contemplated in sections 107, 108,
109, 110 and 145, is based upon the foundation of this principle, and it is difficult to see that
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it has not become part of the "law of the land" and does not inhere in our system of law. If that is so, then "procedure established by law" must include this principle, whatever else it may or may not include.
That the word "law" used in article 21 does not mean only State-made law is clear from the fact that though there is no statute laying down the complete procedure to be adopted in contempt of Court cases, when the contempt is not within the view of the Court, yet such procedure as now prevails in these cases is part of our law. The statute-law which regulates the procedure of trials and enquiries in criminal cases does not specifically provide for arguments in certain cases, but it has always been held that no decision should be pronounced without hearing arguments. In a number of cases, it has been held that though there may be no specific provision for notice in the statute, the provision must be read into the law. I am aware that some Judges have expressed a strong dislike for the expression "natural justice" on the ground that it is too vague and elastic, but where there are well-known principles with no vagueness about them, which all systems of law have respected and recognized, they cannot be discarded merely because they are in the ultimate analysis found to be based on natural justice. That the expression "natural justice" is not unknown to our law is apparent from the fact that the Privy Council has in may criminal appeals from this country laid down that it shall exercise its power of interference with the course of criminal justice in this country when there has been a breach of principles of natural justice or departure from the requirements of justice… In the present case, there is no vagueness about the right claimed which is the right to have one 's guilt or innocence considered by an impartial body and that right must be read into the words of article 21. Article 21 purports to protect life and personal liberty, and it would be a precarious protection and a protection not worth having, if the elementary principle of law under discussion which, according to Halsbury is on a par with fundamental rights, is to be ignored and excluded. In the course of his arguments, the learned counsel for the petitioner repeatedly asked whether the Constitution would permit a law being enacted, abolishing the mode of trial permitted by the existing law and establishing the procedure of trial by battle or trial by ordeal which was in vogue in olden times in England. The question envisages something which is not likely to happen, but it does raise a legal problem which can perhaps be met only in this way that if the expression "procedure established by law" simply means any procedure established or enacted by statute it will be difficult to give a negative answer to the question, but if the word "law" includes what I have endeavoured to show it does, such an answer may be justified. It seems to me that there is nothing revolutionary in the doctrine that the words "procedure established by law" must include the four principles set out in
Professor Willis ' book, which, as I have already stated, are different aspects of the same principle and which have no vagueness or uncertainty about them. These principles, as the learned author points out and as the authorities show, are not absolutely rigid principles but are adaptable to the circumstances of each case within certain limits. I have only to add that it has not been seriously controverted that "law" in this article means valid law and "procedure" means certain definite rules of proceeding and not something which is a mere pretense for procedure. JUSTICE PATANJALI SASTRI (for himself)
… It was further submitted that article 19 declared the substantive rights of personal liberty while article 21provided the procedural safeguard against their deprivation. This view of the correlation between the two articles has found favour with some of the Judges in the
High Courts which have had occasion to consider the constitutional validity of the impugned
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Act. It is, however, to be observed that article 19 confers the rights therein specified only on the citizens of India, while article 21 extends the protection of life and personal liberty to all persons - citizens and non-citizens alike. Thus, the two articles do not operate in a conterminous field, and this is one reason for rejecting the correlation suggested. Again, if article 21 is to be understood as providing only procedural safeguards, where is the substantive right to personal liberty of non-citizens to be found in the Constitution? Are they denied such right altogether? If they are to have no right of personal liberty, why is the procedural safeguard in article 21 extended to them? And where is that most fundamental right of all, the right to life, provided for in the Constitution?
The truth is that article 21, like its American prototype in the Fifth and Fourteenth
Amendments of the Constitution of the United States, presents an examples of the fusion of procedural and substantive rights in the same provision. The right to live, though the most fundamental of all, is also one of the most difficult to define and its protection generally takes the form of a declaration that no person shall be deprived of it save by due process of law or by authority of law. "Process" or "procedure" in this context connotes both the act and the manner of proceeding to take away a man 's life or personal liberty. And the first and essential step in a procedure established by law for such deprivation must be a law made by a competent legislature authorising such deprivation. This brings me to the consideration of articles
21 and 22 to which was devoted the greater part of the debate at the Bar.
… Mr. Nambiar urged that the word "law" in article 21 should be understood, not in the sense of an enactment but as signifying the immutable and universal principles of natural justice - the jus natural of the civil law - and that the expression "procedure established by law" meant the same thing as that famous phrase "due process of law" in the American
Constitution in its procedural aspect. Numerous American decisions were cited to show that the phrase implied the basic requirements of (1) an objective and ascertainable standard of conduct to which it is possible to confirm, (2) notice to the party of the accusation against him,
(3) a reasonable opportunity for him to establish his innocence, and (4) an impartial tribunal capable of giving an unbiased judgment.
… I am unable to agree that the term "law" in article 21 means the immutable and universal principles of natural justice. "Procedure established by law" must be taken to refer to a procedure which has a statutory origin, for no procedure is known or can be said to have been established by such vague and uncertain concepts as "the immutable and universal principles of natural justice." In my opinion, "law" in article 21 means "positive or State-made law." … On the other hand, the interpretation suggested by the Attorney-General on behalf of the intervener that the expression means nothing more than procedure prescribed by any law made by a competent legislature is hardly more acceptable. "Established" according to him, means prescribed, and if Parliament or the Legislature of a State enacted a procedure, however, novel and ineffective for affording the accused person a fair opportunity of defending himself, it would be sufficient for depriving a person of his life or personal liberty.
He submitted that the Constituent Assembly definitely rejected the doctrine of judicial supremacy when it rejected the phrase "due process of law" and made the legislative will unchallengeable, provided only "some procedure" was laid down. The Indian Constitution having thus preferred the English doctrine of Parliamentary supremacy, the phrase "procedure established by law" must be construed in accordance with the English view of due process of law, that is to say, any procedure which Parliament may choose to prescribe. Learned counsel drew attention to the speeches made by several members of the Assembly on the floor of the
House for explaining, as he put it, the "historical background." A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it
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could not reflect the inarticulate mental processes lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in accord.
The Court could only search for the objective intent of the legislature primarily in the words used in the enactment, aided by such historical material as reports of statutory committees, preambles etc. I attach no importance, therefore, to the speeches made by some of the members of the Constituent Assembly in the course of the debate of article 15 (now article 21).
The main difficulty I feel in accepting the construction suggested by the Attorney-General is that it completely stultifies article 13(2) and, indeed, the very conception of a fundamental right. It is of the essence of that conception that it is protected by the fundamental law of the
Constitution against infringement by ordinary legislation. It is not correct to say that the
Constitution has adopted the doctrine of Parliamentary supremacy. So far, at any rate, as Part
III is concerned, the Constitution, as I have already observed, has accepted the American view of fundamental rights. The provisions of articles 13 and 32 make this reasonably clear. Could it then have been the intention of the farmers of the Constitution that the most important fundamental rights to life and personal liberty should be at the mercy of legislative majorities as, in effect, they would be if "established" were to mean merely "prescribed?".
In other words, as an American Judge said in a similar context, does the constitutional prohibition in article 13(2) amount to no more than "You shall not take away life or personal freedom unless you choose to take it away," which is mere verbiage. It is no sound answer to say that, if article 21 conferred no right immune from legislative invasion, there would be no question of contravening article 13(2). The argument seems, to my mind, to beg the question, for it assumes that the article affords no such immunity. It is said that article 21 affords no protection against competent legislative action in the field of substantive criminal law, for there is no provision for judicial review, on the ground of reasonableness or otherwise, of such laws, as in the case of the rights enumerated in article 19. Even assuming it to be so the construction of the learned Attorney-General would have the effect of rendering wholly ineffective and illusory even the procedural protection which the article was undoubtedly designed to afford. It was argued that "law" in article 31 which provides that no person shall be deprived of his property "save by authority of law" must mean enacted law and that if a person 's property could be taken away by legislative action, his right to life and personal liberty need not enjoy any greater immunity. The analogy is misleading. Clause (2) of article 31 provides for payment of compensation and that the right is justifiable except in the two cases mentioned in clauses (4) and (6) which are of a transitory character. The constitutional safeguard of the right to property in the said article is, therefore, not so illusory or ineffective as clause (1) by itself might make it appear, even assuming that "law" there means ordinary legislation.
… The Attorney-General further submitted that, even on his interpretation, article 21 would be a protection against violation of the rights by the executive and by individuals, and that would be sufficient justification for the article ranking as a fundamental safeguard. There is no substance in the suggestion. As pointed out in Eshugbayi Eleko v.
Government of Nigeria (Officer Administering), [1931] A.C. 662, the executive could only act in pursuance of the powers given by law and no constitutional protection against such action is really needed. Even in monarchical Britain the struggle between prerogative and law has long since ended in favour of the latter. " In accordance with British jurisprudence" said Lord
Atkin in the case cited above, "no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice." As for protection against individuals, it is a misconception to think that constitutional safeguards are directed against individuals. They are as a rule directed against the State and its organs. Protection against violation of the rights by
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individuals must be sought in the ordinary law. It is therefore difficult to accept the suggestion that article 21 was designed to afford protection only against infringements by the executive or individuals. On the other hand, the insertion of a declaration of Fundamental Rights in the forefront of the Constitution, coupled with an express prohibition against legislative interference with these rights (article 13) and the provision of a constitutional sanction for the enforcement of such prohibition by means of a judicial review (article 32) is, in my opinion, a clear and emphatic indication that these rights are to be paramount to ordinary State-made laws. After giving the matter my most careful and anxious consideration, I have come to the conclusion that there are only two possible solutions of the problem. In the first place, a satisfactory via media between the two extreme positions contended for on either side may be found by stressing the word "established" which implies some degree of firmness, permanence and general acceptance, while it does not exclude origination by statute. "Procedure established by law" may well be taken to mean what the Privy Council referred to in King
Emperor v. Benoari Lal Sharma, [1945] F.C.R. 161 as "the ordinary and well-established criminal procedure," that is to say, those settled usages and normal modes of proceeding sanctioned by the Criminal Procedure Code which is the general law of criminal procedure in the country. Their Lordships were referring to the distinction between trial by special Courts provided by an Ordinance of the Governor-General and trial by ordinary Courts under the
Criminal Procedure Code. It can be no objection to this view that the Code prescribes no single and uniform procedure for all types of cases but provides varying procedures for different classes of cases. Certain basic principles emerge as the constant factors common to all those procedures, and they form the core of the procedure established by law. I realise that even on this view, the life and liberty of the individual will not be immune from legislative interference, for a competent legislature may change the procedure so as to whittle down the protection if so minded.
But, in the view I have indicated, it must not be a change ad hoc for any special purpose or occasion, but a change in the general law of procedure embodied in the Code. So long as such a change is not effected. The protection under article 21 would be available. The different measures of constitutional protection which the fundamental right to life and personal liberty will enjoy under article 21 as interpreted in the three ways referred to above will perhaps be best illustrated by a concrete example. Suppose that article 22(1) was not there and Parliament passed an Act, as a temporary measure, taking away in certain cases the right of an accused person to be defended by a legal practitioner. According to the petitioner 's learned counsel the
Act would be void as being contrary to the immutable principles of natural justice embodied in article 21, whereas on the construction contended for by the Attorney-General, the Act would be perfectly valid, while, on the view I have indicated above, the Act would be bad, but if the denial of such right of defence is made a normal feature of the ordinary law of criminal procedure by abrogating section 340(1) of the Code, article 21 would be powerless to protect against such legislative action. But in a free democratic republic such a drastic change in the normal law of procedure, though theoretically possible, would be difficult to bring about, and that practical difficulty will be the measure of the protection afforded by article 21.
JUSTICE MUKHERJEA (for himself)
… The detention of a man even as a precautionary measure certainly deprives him of his personal liberty, and as article 21 guarantees to every man, be he a citizen or a foreigner, that he shall not be deprived of his life and personal liberty, except in accordance with the procedure established by law, the requirements of article 21 would certainly have to be
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complied with, to make preventive detention valid in law. What these requirements are I will discuss later on. Article 22 comes immediately after article 21. It secures to all persons certain fundamental rights in relation to arrest and detention, and as already said, by way of exception to the rights thus declare, makes certain specific provisions relating to preventive detention.
The subject of preventive detention is specified in and constitutes Item No. 9 in the Union
Legislative List and it also forms Item No. 3 in the Concurrent List. Under article 246 of the
Constitution, the Parliament and the State Legislatures are empowered to legislate on this subject within the ambit of their respective authorities. Clause (3) of article 22 expressly enjoins that the protective provisions of clauses (1) and (2) of the article would not be available to persons detained under any law providing for preventive detention. The only fundamental rights which are guaranteed by the Constitution in the matter of preventive detention and which to that extent impose restraints upon the exercise of legislative powers in that respect are contained in clauses (4) to (7) of article 22. Clause (4) lays down that no law of preventive detention shall authorise the detention of a person for a period longer than three months, unless an advisory board constituted in the manner laid down in sub-clause (a) of the clause has reported before the expiration of the period that there is sufficient cause for such detention.
The period of detention cannot, in any event, exceed the maximum which the Parliament is entitled to prescribe under clause (7)(b). The Parliament is also given the authority to prescribe the circumstances and the class of cases under which a person can be detained for a period longer than three months under any law of preventive detention without obtaining the opinion of the advisory board. There is one safeguard provided for all cases which is contained in clause (5) and which lays down that the authority making the order of detention shall, as soon as possible communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. But even here, the authority while giving the grounds of detention need not disclose such facts which it considers against public interest to disclose.
The question that we have to consider is whether a law relating to preventive detention is justifiable in a Court of law on the ground of reasonableness under article 19(5 )of the
Constitution inasmuch as it takes away or abridges the right to free movement in the territory of India guaranteed by clause (1)(d) of the article. It will be seen from what has been said above that article 22 deals specifically with the subject of preventive detention and expressly takes away the fundamental rights relating to arrest and detention enumerated in clauses (1) and (2) of the article from persons who are detained under any law which may be passed by the Parliament or State Legislatures acting under article 246 of the Constitution read with the relevant items in the legislative lists.
I will leave aside for the moment the question as to how far the court can examine the reasonableness or otherwise of the procedure that is prescribed by any law relating to preventive detention, for that would involve a consideration of the precise scope and meaning of article 21; but this much is beyond controversy that so far as substantive law is concerned, article 22 of the Constitution gives a clear authority to the legislature to take away the fundamental rights relating to arrest and detention, which are secured by the first two clauses of the article. Any legislation on the subject would only have to conform to the requirements of clauses (4) to (7) and provided that is done, there is nothing in the language employed nor in the context in which it appears which affords any ground for suggestion that such law must be reasonable in its character and that it would be reviewable by the Court on that ground.
Both articles 19 and 22 occur in the same Part of the Constitution and both of them purport to lay down the fundamental rights which the Constitution guarantees. It is well settled that the
Constitution must be interpreted in a board and liberal manner giving effect to all its parts, and the presumption should be that no conflict or repugnancy was intended by its framers. …
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It seems to me that there is no conflict or repugnancy between the two provisions of the
Constitution and an examination of the scheme and language of the catena of articles which deal with the rights to freedom would be sufficient to show that what clause (1)(d) of article 19 contemplates is not freedom from detention, either punitive or preventive; it relates to and speaks of a different aspect or phase of civil liberty.
Article 19, which is the first of this series of articles, enumerates seven varieties or forms of freedom beginning with liberty of speech and expression and ending with free right to practise any trade, profession or business. The rights declared in articles 19 to 22 do not certainly exhaust the whole list of liberties which people possess under law. The object of the framers of the Constitution obviously is to enumerate and guarantee those forms of liberty which come under well-known categories recognised by constitutional writers and are considered to be fundamental and of vital importance to the community.
… To me it seems that article 19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law so that they may not conflict with public welfare or general morality. On the other hand, article 20, 21 and 22 are primarily concerned with penal enactments or other laws under which personal safety or liberty of persons could be taken away in the interests of the society and they set down the limits within which the State control should be exercised. Article 19 uses the expression "freedom" and mentions the several forms and aspects of it which are secured to individuals, together with the limitations that could be placed upon them in the general interests of the society. Articles 20, 21 and 22 on the other hand do not make use of the expression "freedom" and they lay down the restrictions that are to be placed on State control where an individual is sought to be deprived of his life or personal liberty. The right to the safety of one 's life and limbs and to enjoyment of personal liberty in the sense of freedom from physical restraint and coercion of any sort, are the inherent birth-rights of a man. The essence of these rights consists in restraining others from interfering with them and hence they cannot be described in terms of "freedom" to do particular things. There is also no question of imposing limits on the activities of individuals so far as the exercise of these rights is concerned. For these reasons, I think, these rights have not been mentioned in article 19 of the
Constitution.
An individual can be deprived of his life or personal liberty only by action of the State, either under the provisions of any penal enactment or in the exercise of any other coercive process vested in it under law. What the Constitution does therefore is to put restrictions upon the powers of the State for protecting the rights of the individuals. The restraints on State authority operate as guarantees of individual freedom and secure to the people the enjoyment of life and personal liberty which are thus declared to be inviolable except in the manner indicated in these articles. In my opinion, the group of articles 20 to 22 embody the entire protection guaranteed by the Constitution in relation to deprivation of life and personal liberty both with regard to substantive as well as to procedural law. It is not correct to say, as I shall show more fully later on, that article 21 is confined to matters of procedure only. There must be a substantive law, under which the State is empowered to deprive a man of his life and personal liberty and such law must be a valid law which the legislature is competent to enact within the limits of the powers assigned to it and which does not transgress any of the fundamental rights that the Constitution lays down. Thus a person cannot be convicted or punished under an ex post facto law, or a law which compels the accused to incriminate himself in a criminal trial or punishes him for the same offence more than once. These are the protections provided for by article 20.
Again a law providing for arrest and detention must conform to the limitations prescribed by clauses (1) and (2) or article 22. These provisions indeed have been withdrawn expressly
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in case of preventive detention and protections of much more feeble and attenuated character have been substituted in their place; but this is a question of the policy adopted by the
Constitution which does not concern us at all. The position, therefore, is that with regard to life and personal liberty, the Constitution guarantees protection to this extent that no man could be deprived of these rights except under a valid law passed by a competent legislature within the limits mentioned above and in accordance with the procedure which such laws lays down. Article 19, on the other hand, enunciates certain particular forms of civil liberty quite independently of the rights dealt with under article 21. Most of them may be connected with or dependent upon personal liberty but are not identical with it; and the purpose of article 19 is to indicate the limits within which the State could, by legislation, impose restrictions on the exercise of these rights by the individuals. The reasonableness or otherwise or such legislation can indeed be determined by the Court to the extent laid down in the several clauses of article 19, though no such review is permissible with regard to laws relating to deprivation of life and personal liberty. This may be due to the fact that life and personal freedom constitute the most vital and essential rights which people enjoy under any State and in such matters the precise and definite expression of the intention of the legislature has been preferred by the
Constitution to the variable standards which the judiciary might lay down.
… Mr. Nambiar 's endeavour throughout has been to establish that article 19(1)(d) of the
Constitution read with article 19(5) enunciates the fundamental rights of the citizens regarding the substantive law of personal liberty, while article 21 embodies the protection as regards procedural law. This, in my opinion, would be looking at these provisions from a wrong angle altogether. Article 19 cannot be said to deal with substantive law merely, nor article 21 with mere matters of procedure. It cannot also be said that the provisions of article 19(1)(d) read with clause (5) and article 21 are complementary to each other. The contents and subject matter of the two provisions are not identical and they proceed on totally different principles.
There is no mention of any "right to life" in article 19, although that is the primary and the most important thing for which provision is made in article 21. If the contention of the learned counsel is correct, we would have to hold that no protection is guaranteed by the Constitution as regards right to life so far as substantive law is concerned. In the second place, even if freedom of movement may be regarded as one of the ingredients of personal liberty, surely there are other elements included in the concept and admittedly no provision for other forms of personal liberty are to be found in article 19(5) of the Constitution. Furthermore article 19 is applicable to citizen only, while the rights guaranteed by article 21 are for all persons, citizens as well as aliens. The only proper way of avoiding these anomalies is to interpret the two provisions as applying to different subjects and this would be the right conclusion if we have in mind the scheme which underlies this group of articles.
JUSTICE DAS (for himself)
… The first part of the argument is put broadly, namely, that personal liberty is generally guaranteed by the Constitution by article 19(1) and that the Preventive Detention Act, 1950 has imposed unreasonable restrictions thereon in violation of the provisions of clauses (2) to
(6) of that article. The very first question that arises, therefore, is as to whether the freedom of the person which is primarily and directly suspended or destroyed by preventive detention is at all governed by article 19(1). If personal liberty as such is guaranteed by any of the subclauses of article 19(1) then why has it also been protected by article 21? The answer suggested by learned counsel for the petitioner is that personal liberty as a substantive right is protected by article 19(1) and article 21 gives only an additional protection by prescribing the procedure according to which that right may be taken away. I am unable to accept this contention. If this argument were correct, then it would follow that our Constitution does not guarantee to any
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person, citizen or non-citizen, the freedom of his life as a substantive right at all, for the substantive right to life does not fall within any of the sub-clauses of clause (1) of article 19.
It is restored in reply that no constitution or human laws can guarantee life which is the gift of
God who alone can guarantee and protect it. On a parity of reasoning no Constitution or human laws can in that sense guarantee freedom of speech or free movement, for one may be struck dumb by disease or may lose the use of his legs by paralysis or as a result of amputation.
Further, what has been called the procedural protection of article 21 would be an act of supererogation, for when God takes away one 's life whatever opportunity He may have had given to Adam to explain his conduct before sending him down. He is not likely in these degenerate days to observe the requirements of notice or fair trial before any human tribunal said to be required by article 21.
The Fifth Amendment and the Fourteenth Amendment of the American Constitution give specific protection to life as a substantive right. So does article 31 of the Japanese Constitution of 1946. There is no reason why our Constitution should not do the same. The truth is that article 21 has given that protection to life as a substantive right and that as will be seen hereafter, that article properly understood does not purport to prescribe any particular procedure at all. The further astounding result of the argument of counsel for the petitioner will be that the citizen of India will have only the rights enumerated in article 19 clause (1) and no other right attached to his person. As I have already stated, besides the several rights mentioned in the several sub-clauses of article 19(1) there are many other personal liberties which a free man, i.e., a man who has the freedom of his person, may exercise. Some of those other rights have been referred to by Harries C.J., of Calcutta in his unreported judgment in
Miscellaneous Case No. 166 of 1950 (Kshitindra v. Chief Secretary of West Bengal) while referring the case to a Full Bench in the following words:"It must be remembered that a free man has far more and wider rights than those stated in article 19(1) of the Constitution. For example, a free man can eat what he likes subject to rationing laws, work as much as he likes or idle as much as he likes. He can drink anything he likes subject to the licensing laws and smoke and do a hundred and one things which are not included in article 19. If freedom of person was the result or article 19, then a free man would only have the seven rights mentioned in that article. But obviously the free man in India has far greater rights."
I find myself in complete agreement with the learned Chief Justice on this point. If it were otherwise, the citizen 's right to eat what he likes will be liable to be taken away by the executive fiat of the Civil Supply Department without the necessity of any rationing laws. The
Government may enforce prohibition without any prohibition laws or licensing laws and so on. I cannot accept that our Constitution intended to give no protection to the bundle of rights which, together with the rights mentioned in sub-clauses (a) to (e) and (g) make up personal liberty. Indeed, I regard it as a merit of our Constitution that it does not attempt to enumerate exhaustively and the personal rights but uses the compendious expression "personal liberty" in article 21, and protects all of them.
It is pointed out that in the original draft the word "liberty" only was used as in the
American Constitution but the Drafting Committee added the work "personal" to make it clear that what was being protected by what is now article21 was not what had already been protected by what is now article 19. If it were permissible to refer to the Drafting Committee 's report, it would be another answer to the contentions of learned counsel for the petitioner that personal liberty as a substantive right was protected by article 19. I do not, however, desire to base my judgment on the Drafting Committee 's report and I express no opinion as to its admissibility. Whatever the intentions of the Drafting Committee might have been, the
Constitution as finally passed has in article 21 used the words "personal liberty" which have
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a definite connotation in law as I have explained. It does not mean only liberty of the person but it means liberty or the rights attached to the person (jus personarum). The expressions
"freedom of life" or "personal liberty" are not to be found in article 19 and it is straining the language of article 19 to squeeze in personal liberty into that article. In any case the right to life cannot be read into article 19.
Article 19 being confined, in its operation, to citizens only, a non-citizen will have no protection for his life and personal liberty except what has been called the procedural protection of article 21. If there be no substantive right what will the procedure protect? I recognise that it is not imperative that a foreigner should have the same privileges as are given to a citizen, but if article 21 is construed in the way I have suggested even a foreigner will have equal protection for his life and personal liberty before the laws of our country under our
Constitution. I am unable, therefore, for all the reasons given above, to agree that personal liberties are the result of article 19 or that that article purports to protect all of them.
…… Learned counsel for the petitioner before us does not contend that we should import this American doctrine of due process of law in its full glory but that we should adopt the procedural part of it and insist that no person shall be deprived of his life or personal liberty except by the observance of the formalities which justice and fair play require to be observed.
The arguments of learned counsel for the petitioner are attractive and in the first blush certainly appeal to our sentiment but on serious reflection I find several insuperable objections to the introduction of the American doctrine of procedural due process of law into our
Constitution. That doctrine can only thrive and work where the legislature is subordinate to the judiciary in the sense that the latter can sit in judgment over and review all acts of the legislature. Such a doctrine can have no application to a field where the legislature is supreme.
That is why the doctrine of "due process of law" is quite different in England where Parliament is supreme. …
This basic distinction between the two systems should never be lost sight of, if confusion of thought is to be avoided. Although our Constitution has imposed some limitations on the legislative authorities, yet subject to and outside such limitations our Constitution has left our
Parliament and the State Legislatures supreme in their respective legislative fields. In the main, subject to the limitations I have mentioned, our Constitution has preferred the supremacy of the Legislature to that of the Judiciary. The English principle of due process of law is, therefore, more in accord with our Constitution than the American doctrine which has been evolved for serving quite a different system. … In the next place, it is common knowledge that our Constitution-makers deliberately declined to adopt the uncertain and shifting American doctrine of due process of law and substituted the words "except in due process of law" that were in the original draft by the more specific expression "except in accordance with procedure established by law." To try to bring in the American doctrine, in spite of this fact, will be to stultify the intention of the Constitution as expressed in article 21.
In the third place, in view of the plain meaning of the language of that article as construed and explained above it is impossible to let in what have been called the principles of natural justice as adopted in the procedural due process of law by the American Supreme Court. Again, even the all-pervading little word "due" does not find a place in article 21 so as to qualify the procedure. It speaks of procedure and not "due" procedure and, therefore, "the intellectual yardstick" of the Court is definitely ruled out. Finally, it will be incongruous to import the doctrine of due process of law without its palliative, the doctrine of police powers. It is impossible to read the last mentioned doctrine into article 21.
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MANEKA GANDHI V. UNION OF INDIA
AIR 1978 SC 597, (1978) 1 SCC 248
Decided On: January 25, 1978
BENCH – CHIEF JUSTICE M. H. BEG, JUSTICES Y. V. CHANDRACHUD, V. R. KRISHNA IYER, P.
N. BHAGWATI, N. L. UNTWALIA, S. M. FAZAL ALI & P. S. KAILASAM
JUSTICE BHAGWATI (FOR JUSTICES UNTWALIA, FALAL ALI AND HIMSELF)
The Petitioner is the holder of the passport issued to her on 1st June, 1976 under the
Passport Act, 1967. On 4th My, 1977 the Petitioner received a letter dated 2nd July, 1977 from the Regional Passport Officer, Delhi intimating to her that it has been decided by the
Government of India to impound her passport under Section 10(3)(c) of the Act in public interest and requiring her to surrender the passport within seven days from the date of receipt of the letter. The petitioner immediately addressed a letter to the Regional Passport Officer requesting him to furnish a copy of the statement of reasons for making the order as provided in Section 10(5) to which a reply was sent by the Government of India, Ministry of External
Affairs on 6th July, 1977 stating inter alia that the Government has decided "in the interest of the general public" not to furnish her a copy of the statement of reasons for making of the order. ' The Petitioner thereupon filed the present petition challenging the action of the
Government in impounding her passport and declining to give reasons for doing so. The action of the Government was impugned inter alia on the ground that it was mala fide, but this challenge was not pressed before us at the time of the hearing of the arguments and hence it is not necessary to state any facts bearing on that question. The principal challenge set out in the petition against the legality of the action of the Government was based mainly on the ground that Section 10(3)(c), in so far as it empowers the Passport Authority to impound a passport "in the interests of the general public" is violative of the equality clause contained in
Article 14 of the Constitution, since the condition denoted by the words "in the interests of the general public" limiting the exercise of the power is vague and undefined and the power conferred by this provision is, therefore, excessive and suffers from the vice of "over-breath."
The petition also contained a challenge that an order under Section 10(3)(c) impounding a passport could not be made by the Passport Authority without giving an opportunity to the holder of the passport to be heard in defence and since in the present case, the passport was impounded by the Government without affording an opportunity of hearing to the petitioner, the order was null and void, and, in the alternative, if Section 10(3)(c) were read in such a manner as to exclude the right of hearing, the section would be infected with the vice of arbitrariness and it would be void as offending Article 14. These were the only grounds taken in the Petition as originally filed and on 20th July, 1977 the petition was admitted and rule issued by this Court and an interim order was made directing that the passport of the petitioner should continue to remain deposited with the Registrar of this Court pending the hearing and final disposal of the Petition.
The hearing of the petition was fixed on 30th August 1977, but before that, the petitioner filed an application for urging additional grounds and by this application, two further grounds were sought to be urged by her. One ground was that Section 10(3)(c) is ultra vires
Article 21 since it provides for impounding of passport without any procedure as required by that Article, or, in any event, even if it could be said that there is some procedure prescribed under the passport Act, 1967, it is wholly arbitrary and unreasonable and, therefore, not in compliance with the requirement of that article. The other ground urged on behalf of the petitioner was that Section 10(3)(c) is violative of Articles 19(1)(a) and 19(1)(g) inasmuch as it authorises imposition of restrictions on freedom of Speech and expression guaranteed under
Article 19(1)(a) and freedom to practise any profession or to carry on any occupation, or
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business guaranteed under Article 19(1)(g) and these restrictions are impermissible under
Article 19(2) and Article19(6) respectively. The application for urging these two additional grounds was granted by this Court and ultimately at the hearing of the petition these were the two principal grounds which were pressed on behalf of the petitioner.
Before we examine the rival arguments urged on behalf of the parties in regard to the various questions arising in this petition, it would be convenient, to set out the relevant provisions of the Passport Act, 1967. This Act was enacted on 24th June, 1967 in view of the decision of this Court in Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport
Officer, [1967] 3 SCR 525. The position which obtained prior to the coming into force of this
Act was that there was no law regulating the issue of passports for leaving the shores of India and going abroad. The issue of passports was entirely within the discretion of the executive and this discretion, was unguided and unchannelled. This Court, by a majority, held that the expression "personal liberty" in Article 21 takes in the right of locomotion and travel abroad and under Article 21 no person can be deprived of his right to go abroad except according to the procedure established by law and since no law had been made by the State regulating or prohibiting the exercise of such right, the refusal of passport was in violation of Article 21 and moreover the discretion with the executive in the matter of issuing or refusing passport being unchannelled and arbitrary, it was plainly violative of Article 14 and hence the order refusing passport to the petitioner was also invalid under that Article. This decision was accepted by
Parliament and the infirmity pointed out by it was set right by the enactment of the Passports
Act, 1967. This Act, as its preamble shows, was enacted to provide for the issue of passports and travel documents to regulate the departure from India of citizens of India and other persons and for incidental and ancillary matters. … [Section 6] Sub-section (3) provides that the passport authority may impound or cause to tie impounded or revoke a passport or travel document on the grounds set out in Clauses (a) to (h). The order impounding the passport in the present case was made by the Central Government under Clause (c) which reads as follows:(c) if the passport authority deems it necessary so to do in the interest of the
Sovereignty and Integrity of India, the security of India, friendly relations of
India with any foreign country, or in the interests of the general public;
The particular ground relied upon for making the order was that set out in the last part of
Clause (c), namely, that the Central Government deems it necessary to impound the passport
"in the interests of the general public." Then follows Sub-section (5) which requires the passport authority impounding or revoking a passport or travel document or varying or cancelling an endorsement made upon it to "record in writing a brief statement of the reasons for making such order and furnish to the holder of the passport or travel document on demand a copy of the same unless, in, any case, the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such a copy."
It was in virtue of the provision contained in the latter part of this sub-section that the
Central Government declined to furnish a copy of the statement of reasons for impounding the passport of the petitioner on the ground that it was not in the interests of the general public to furnish such copy to the petitioner. It is indeed a matter of regret that the Central
Government should have taken up this attitude in reply to the request of the petitioner to be supplied a copy of the statement of reasons, because ultimately, when the petition came to be filed, the Central Government did disclose the reasons in the affidavit in reply to the petition which shows that it was not really contrary to public interest and if we look at the reasons given in the affidavit in reply, it will be clear that no reasonable person could possibly have
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taken the view that the interests of the general public would be prejudiced by the disclosure of the reasons. This is an instance showing how power conferred on a statutory authority to act in the interests of general public can sometimes be improperly exercised. If the petitioner had not filed the petition, she would perhaps never have been able to find out what were the reasons for which her passport was impounded and she was deprived of her right to go abroad.
The necessity of giving reasons has obviously been introduced in Sub-section (5) so that it may act as a healthy check against abuse or misuse of power. If the reasons given are not relevant and there is no nexus between the reasons and the ground on which the passport has been impounded, it would be open to the holder of the passport to challenge the order impounding it in a court of law and if the court is satisfied that the reasons are extraneous or irrelevant, the court would strike down the order. This liability to be exposed to judicial scrutiny would by itself act as a safeguard against improper or mala fide exercise of power.
The court would, therefore, be very slow to accept, without close scrutiny, the claim of the passport authority that it would not be in the interests of the general public to disclose the reasons. The passport authority would have to satisfy the court by placing proper material that the giving of reasons would be clearly and indubitably against the interests of the general public; and if the Court is not so satisfied, the Court may require the passport authority to disclose the reasons, subject to any valid and lawful claim for privilege which may be set up on behalf of the Government. Here in the present case, as we have already pointed out, the
Central Government did initially claim that it would be against the interests of the general public to disclose the reasons for impounding the passport, but when it came to filing the affidavit in reply, the Central Government very properly abandoned this unsustainable claim and disclosed the reasons. The question whether these reasons have any nexus with the interests of the general public or they are extraneous and irrelevant is a matter which we shall examine when we deal with the arguments of the parties. Meanwhile, proceeding further with the resume of the relevant provisions, reference may be made to Section 11 which provides for an appeal inter alia against, the order impounding or revoking a passport or travel document under Sub-section (3) of Section 10. But there is a proviso to this section which says that if the order impounding or revoking a passport or travel document is passed by the
Central Government, there shall be no right to appeal. These are the relevant provisions of the
Act in the light of which we have to consider the constitutionality of Sub-section (3)(c) of
Section 10 and the validity of the order impounding the passport of the petitioner.
… The first contention urged on behalf of the petitioner in support of the petition was that the right to go abroad is part of ‘personal liberty’ within the meaning of that expression as used in Article 21 and no one can be deprived of this right except according to the procedure prescribed by law. There is no procedure prescribed by the Passport Act, 1967 far impounding or revoking a passport and thereby preventing the holder of the "passport from going abroad and in any event, even if some procedure can be traced in the relevant provisions "of the Act, it is unreasonable and arbitrary, inasmuch as it does not provide for giving an opportunity to the holder of the passport to be heard against the making of the order and hence the action of the Central Government in impounding the passport of the petitioner is in violation of
Article 21. This contention of the petitioner raises a question as to the true interpretation of
Article 21, what is the nature and extent of the protection afforded by this article?
What is the meaning of ‘personal liberty’: does it include the right to go abroad so that this right cannot be abridged or taken away except in accordance with the procedure prescribed by law? What is the inter-relation between Article 14 and Article 21? Does Article 21 merely require that there must be some semblance of procedure, howsoever arbitrary or fanciful, prescribed by law before a person can be deprived of his personal liberty or that the procedure must satisfy certain requisites in the sense that it must be fair and reasonable?
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Article 21 occurs in Part III of the Constitution which confers certain fundamental rights.
… These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a " 'pattern of guarantees on the basic-structure of human lights" and impose negative obligations on the State not to encroach on individual liberty in its various dimensions.
… It is obvious that Article 21, though couched in negative language, confers the fundamental right to life and personal liberty. So far as the right to personal liberty is concerned, it is ensured by providing that no one shall be deprived of personal liberty except according to procedure prescribed by law. The first question that arises for consideration on the language of Article 21 is: what is the meaning and content of the words ‘personal liberty’ as used in this article? This question incidentally came up for discussion in some of the judgments in A. K. Gopalan v. State of Madras [1950] S.C.R. 88 and the observations made by Patanjali Sastri, J., Mukherjee, J., and S. R. Das, J., seemed to place a narrow interpretation on the words ‘personal liberty’ so as to confine the protection of Article 21 to freedom, of the person against unlawful detention. But there was no definite pronouncement made on this point since the question before the Court was not so much the interpretation of the words
‘personal liberty’ as the inter-relation between Article 19 and 21.
It was in Kharak Singh v. State of U.P. 1963 Cri L.J. 329 that the question as to the proper scope and meaning of the expression 'personal liberty ' came up pointedly for consideration for the first time before this Court. The majority of the Judges took the view that 'personal liberty ' is used in the article as a compendious term, to include within itself all the varieties of rights which go to make up the 'personal liberties ' of man other than those dealt with in the several clauses of Article 19(1). In other words, while Article 19(1) deals with particular species or attributes, of that freedom, 'personal liberty ' in Article 21 takes in and comprises the residue.
The minority judges, however, disagreed with this view taken by the majority and explained their position in the following words: "No doubt the expression 'personal liberty ' is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression 'personal liberty ' in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental, right of life and personal liberty bas many attributes and some of them are found in Article 19. If a person 's fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 39(1) are concerned".
There can be no doubt that in view of the decision of this Court in R. C. Cooper v. Union of India [1973] 3 S.C.R. 530 the minority view must be regarded as correct and the majority view must be held to have been overruled. We shall have occasion to analyse and discuss the decision in R. C. Cooper a little later when we deal with the arguments based on infraction of
Articles 19(1)(a) and19(1)(g), but it is sufficient to state for the present that according to this decision, which was a decision given by the full Court, the fundamental rights conferred by
Part III are not distinct and mutually exclusive rights. Each freedom has different dimensions and merely because the limits of interference with one freedom are satisfied, the Law is not freed from the necessity to meet the challenge of another guaranteed freedom.
The decision in A. K. Gopalan gave rise to the theory that the freedoms under
Articles 19, 21, 22 and 31 are exclusive - each article enacting a code relating to the protection of distinct rights, but this theory was over-turned in R. C. Cooper where Shah, J., speakingon behalf of the majority pointed out that "Part III of the Constitution weaves a pattern of
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guarantees on the texture of basic human rights. The guarantees delimit the protection of those rights in their allotted fields: they do not attempt to enunciate-distinct rights." The conclusion was summarised in these terms: "In our judgment, the assumption in A. K. Gopalan that certain articles in the Constitution exclusively deal with specific matters cannot be accepted as correct". It was held in R. C. Cooper and that is clear from the judgment of Shah, J., because
Shah, J., in so many terms disapproved of the contrary states merit of law contained in the opinions of Kania, C.J., Patanjali Sastri, J., Mahajan, J., Mukherjee, J., and S. R. Das, J., in A.
K. Gopalan that even where a person is detained in accordance with the procedure prescribed by law, as mandated by Article 21, the protection conferred by the various clauses of
Article 19(1) does not cease to be available to him and the law authorising such detention has to satisfy the test of the applicable freedom under Article 19, Clause (1). This would clearly show that Articles 19(1) and 21 are not mutually exclusive, for, if they were, there would be no question of a law depriving a person of personal liberty within the meaning of Article 21 having to meet the challenge of a fundamental right under Article 19(1). Indeed, in that event, a law of preventive detention which deprives a person of 'personal liberty ' in the narrowest sense, namely, freedom from detention and thus falls indisputably within Article 21 would not require to be tested on the touchstone of Clause (d) of Article 19(1) and yet it was held by a
Bench of seven Judges, of this Court in Shambhu Nath Sarkar v. State of West Bengal, [1973]
1 SCR 856 that such a law would have to satisfy the requirement inter alia of Article 19(1),
Clause (d) and in Haradhan Saha v. State of West Bengal, 1974 Cri L.J. 1479, which was a decision given by a Bench of five judges, this Court considered the challenge of Clause (d) of
Article 19(f) to the constitutional validity of the Maintenance of Internal Security Act, 1971 and held that that Act did not violate the constitutional guarantee embodied in that article.
It is indeed difficult to see on what principle we can refuse to give its plain natural meaning to the expression 'personal liberty ' as used in Article 21 and read it in a narrow and restricted sense so as to exclude those attributes of personal liberty which are specifically dealt with in
Article 19. We do not think that this would be a correct way of interpreting the provisions of the Constitution conferring fundamental rights. The attempt of the court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction. The wave length for comprehending the scope and ambit of the fundamental rights has been set by this Court in R. C. Cooper and our approach in the interpretation of the fundamental rights must now be in tune with this wave length. … The expression 'personal liberty ' in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19,
Now, it has been held by this Court in Satwant Singh that 'personal liberty ' within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law. Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh was struck down as invalid. It will be seen at once from the language of Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive interference which is not supported by law; and law here means 'enacted law ' or 'State Law '. …
Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passports Act, 1967 that is lays down the circumstances under which a passport may be issued or refused or cancelled or impounded
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and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21. Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned Attorney General who with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law. There was some discussion in A. K. Gopalan 's case in regard to the nature of the procedure required to be prescribed under Article 21 and at least three of the learned Judges out of five expressed themselves strongly in favour of the view that the procedure cannot be any arbitrary, fantastic or oppressive procedure. Fazal Ali, J., who was in a minority, went to the farthest limit in saying that the procedure must include the four essentials set out in Prof. Willi 's book on
Constitutional Law, namely, notice, opportunity to be heard, impartial tribunal and ordinary course of procedure. Patanjali Sastri, J. did not go as far as that but he did say that "certain basic principles emerged as the constant factors known to all those procedures and they formed the core of the procedure established by law." Mahajan, J., also observed that
Article 21 requires that "there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty" and "it negatives the idea of fantastic, arbitrary and oppressive forms of proceedings". But apart altogether from these observations in A. K. Gopalan, which have great weight, we find that even on principle the concept of reasonableness must be projected in the procedure contemplated by Article 21, having regard to the impact of Article 14 on Article 21.
The inter-relationship between Articles 14, 19 and 21
We may at this stage consider the inter-relation between Article 21 on the one hand and
Articles 14 and 19 on the other. We have already pointed out that the view taken by the majority in A. K. Gopalan was that so long as a law of preventive detention satisfies the requirements of Article 22, it would be within the terms of Article 21 and it would not be required, to meet the challenge of Article 19. This view proceeded on the assumption that
"certain articles in the Constitution exclusively deal with specific matters" and where the requirements of an article dealing with the particular matter in question are satisfied and there is no infringement of the fundamental right guaranteed by that article, no recourse can be had to a fundamental right conferred by another article. This doctrine of exclusivity was seriously questioned in R. C. Cooper and it was over-ruled by a majority of the Full Court, only Ray,
J., as he then was, dissenting. The majority judges held that though a law of preventive detention may pass the test of Article 22, it has yet to satisfy the requirements of other fundamental rights such as Article 19.
… Now, if a law depriving a person of ' 'personal liberty ' and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given, situation, ex hypothesi it must also be liable to be tested with reference to Article 14.
The nature and requirement of the procedure under Article 21
Now, the question immediately arises as to what is the requirement of Article 14: what is the content and reach of the great equalising principle enunciated in this article? …
Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment.
The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades. Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the best of reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary,
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fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of
Article 21 would not be satisfied.
………
The question immediately arises: does the procedure prescribed by the Passports Act,
1967 for impounding a passport meet the test of this requirement? Is it ‘right or fair or just’?
The argument of the petitioner was that it is not, because it provides for impounding of a passport without affording reasonable opportunity to the holder of the passport to be heard in defence. To impound the passport of a person, said the petitioner, is a serious matter, since it prevents him from exercising his constitutional right to go abroad and such a drastic consequence cannot in fairness be visited without observing the principle of audi alterant partem. Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of
Article 21. Now, it is true that there is no express provision in the Passports Act, 1967 which requires that the audi alteram partem rule should be followed before impounding a passport, but that is not conclusive of the question. If the statute makes itself clear on this point, then no more question arises. But even when the statute is silent, the law may in a given case make an implication and apply the principle stated by Bytes, J., in Cooper v. Wandsworth Board of
Works [1863] 14C B.N.S. 180. "A long course of decisions, beginning with Dr. Bentley 's case and ending with some very recent cases, establish that, although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission off the legislature". The principle of audi alterant partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice. In fact, there are two main principles in which the rules of natural justice are manifested, namely,
Nemo Judex in Sua Causa and audi alterant partem. We are not concerned here with the former, since there is no case of bias urged here. The question is only in regard to the right of hearing which involves the audi alterant partem rule. Can it be imported in the procedure for impounding a passport?
We may commence the discussion of this question with a few general observations to emphasise the increasing importance of natural justice in the field of administrative law.
Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. …
The aim of both administrative inquiry as well as quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice, or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasijudicial inquiry and not to administrative inquiry. It must logically apply to both. On what principle can distinction be made between one and the other? Can it be said; that the requirement of 'fair play it action ' is any the less in an administrative inquiry than in a quasijudicial one? Sometimes an unjust decision in an administrative inquiry may have far more serious consequences than a decision in a quasi-judicial inquiry and hence the rules of natural justice must apply equally in an administrative inquiry which entails civil consequences. There was, however, a time in the early stages of the development of the doctrine of natural justice when the view prevailed that the rules of natural justice have application only to a quasijudicial proceeding as distinguished from an administrative proceeding and the distinguishing feature of a quasi-judicial proceeding is that the authority concerned is required by the law under which it is functioning to act judicially. … The Court was constrained, in every case that came before it, to make a search for the duty to act judicially sometimes from tenuous
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material and sometimes in the services of the statute and this led to over-subtlety and overrefinement resulting in confusion and uncertainty in the law. But this was plainly contrary to the earlier authorities and in the epoch-making decision of the House of Lords in Ridge v.
Baldwin [1964] A.C. 40, which marks a turning point in the history of the development of the doctrine of natural justice. ... Lord Reid observed: "If Lord Hewart meant that it is never enough that a body has a duty to determine what the rights of an individual should be, but that there must always be something more to impose on it a duty to act judicially, then that appears to me impossible to reconcile with the earlier authorities". The learned law Lord held that the duty to act judicially may arise from the very nature of the function intended to be performed and it need not be shown to be superadded. … This development in the law had its parallel in
India in the Associated Cement Companies v. P. N. Sharma, (1965) I LLJ 433 (SC) where this
Court approvingly referred to the decision in Ridge v. Baldwin and, later in State of Orissa
v. Dr. Binapani, (1967) II LLJ 266 (SC) observed that: "If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power". This Court also pointed out in A.K. Kraipak v. Union of India, [1970] 1 SCR 457 another historic decision in this branch of the law, that in recent years the concept of quasijudicial power has been undergoing radical change and said: "The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated, for determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised".
The net effect of these and other decisions was that the duty to act judicially need not be superadded, but it may be spelt out from the nature of the power conferred, the manner of exercising it and its impact on the rights of the person effected and where it is found to exist, the rules of natural justice would be attracted.
This was the advance made by the law as a result of the decision in Ridge v. Baldwin in
England and the decision in Associated Cement Companies and other cases following upon it, in India. But that was not to be the end of the development of the law on this subject. The proliferation of administrative law provoked considerable fresh thinking on the subject and soon it came to be recognised that ‘fair play in action’ required that in administrative proceeding also, the doctrine of natural justice must be held to be applicable. We have already discussed this aspect of the question on principal and shown why no distinction can be made between an administrative and a quasi-judicial proceeding for the purpose of applicability of the doctrine of natural justice.
… Now, here, the power conferred on the Passport Authority is to impound a passport and the consequence of impounding a passport would be to impair the constitutional right of the holder of the passport to go abroad during the time that the passport is impounded.
Moreover, a passport can be impounded by the Passport Authority only on certain specified grounds set out in Sub-section (3) of Section 10 and the Passport Authority would have to apply its mind to the facts and circumstances of a given case and decide whether any of the specified grounds exists which would justify impounding of the passport. The Passport
Authority is also required by Sub-section (5) of Section 10 to record in writing a brief statement of the reasons for making an order impounding a passport and, save in certain exceptional situations, the Passport Authority is obliged to furnish a copy of the statement of reasons to the holder of the passport. Where the Passport Authority which has impounded a passport is other than the Central Government, a right of appeal against the order impounding the passport is given by Section 11, and in the appeal, the validity of the reasons given by the
Passport Authority for impounding the passport can be canvassed before the Appellate
Authority. It is clear on a consideration of these circumstances that the test laid down in the
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decisions of this Court for distinguishing between a quasi-judicial power and an administrative power is satisfied and the power conferred on the Passport Authority to impound a passport is quasi-judicial power. The rules of natural justice would, in the circumstances, be applicable in the exercise of the power of impounding a passport even on the orthodox view which prevailed prior to A. K. Kraipak. The same result must follow in view of the decision in A. K.
Kraipak, even if the power to impound a passport were regarded as administrative in character, because it seriously interferes with the constitutional right of the holder of the passport to go abroad and entails adverse civil consequences.
Now, as already pointed out, the doctrine of natural justice consists principally of two rules, namely… no one shall be a judge in his own cause, and audi alterant partem: no decision shall be given against a party without affording him a reasonable hearing. We are concerned here with the second rule and hence we shall confine ourselves only to a discussion of that rule. The learned Attorney General, appearing on behalf of the Union of India, fairly conceded that the audi alteram partem rule is a highly effective tool devised by the courts to enable a statutory authority to arrive at a just decision and it is calculated to act-as a healthy check on abuse or misuse of power and hence its reach should not be narrowed and its applicability circumscribed. He rightly did not plead for reconsideration of the historic advances made in the law as a result of the decisions of this Court and did not suggest that the Court should retrace its steps. That would indeed have been a most startling argument coming from the
Government of India and for the Court to accede to such an argument would have been so act of utter retrogression. But fortunately no such argument was advanced by the learned Attorney
General.
What he urged was a very limited contention, namely that having regard to the nature of the action involved in the impounding of a passport, the audi alteram partem rule must be held to be excluded, because if notice were to be given to the holder of the passport and reasonable opportunity afforded to him to show cause why his passport should not be impounded, he might immediately, on the strength of the passport, make good his exit from the country and the object of impounding the passport would be frustrated. The argument was that if the audi alteram partem rule were applied, its effect would be to stultify the power of impounding the passport and it would defeat and paralyse the administration of the law and hence the audi alteram partem rule cannot in fairness be applied while exercising the power to impound a passport. … Now, it is true that since the right to prior notice and opportunity of hearing arises only by implication from the duty to act fairly… it may equally be excluded where, having regard to the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provision, fairness in action does not demand its implication and even warrants its exclusion. There are certain well recognised exceptions to the audi alteram partem rule established by judicial decisions… Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same time it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. It is a wholesome rule designed to secure the rule of law and the court should not be too ready to eschew it in its application to a given case. True it is that in questions of this kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded. The
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court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that "natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances". The audi alteram partem rule is not cast in a rigid mold and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise. …
What opportunity may be regarded as reasonable would necessarily depend on the practical necessities of the situation. It may be a sophisticated full-fledged hearing or it may be a hearing which is very brief and minimal: it may be a hearing prior to the decision or it may even, be a post-decisional remedial hearing. The audi alteram partem rule is sufficiently flexible to permit modifications and variations to suit the exigencies of myriad kinds of situations which may arise. This circumstantial flexibility of the audi alteram partem rule was emphasised by Lord Reid in, Wiseman v. Someman (supra) when he said that he would be
"sorry to see this fundamental general principle degenerate into a series of hard and fast rules" and Lord Hailsham, L.C., also observed in Pearl-Berg v. Party [1971] 1 LR.728 that the courts
"have taken in increasingly sophisticated view of what is required in individual cases". It would not, therefore, be right to conclude that the audi alteram partem rule is excluded merely because the power to impound a passport might be frustrated, if prior notice and hearing were to be given to the person concerned before impounding his passport.
The Passport Authority may proceed to impound the passport without giving any prior opportunity to the person concerned to be heard, but as soon as the order impounding the passport is made, and opportunity of hearing, remedial in aim, should be given to him so that he may present his case and controvert that of the Passport Authority and point out why his passport should not be impounded and the order impounding it recalled. This should not only be possible but also quite appropriate, because the reasons for impounding the passport are required to be supplied by the Passport Authority after the making of the order and the person affected would, therefore, be in a position to make a representation setting forth his case and plead for setting aside the action impounding his passport. A fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice and a provision requiring giving of such opportunity to the person concerned can and should be read by implication in the Passports Act, 1967. If such a provision were held to be incorporated in the Passports Act, 1967 by necessary implication, as we hold it must be, the procedure prescribed by the Act for impounding a passport would be right, fair and just and it would not suffer from the vice of arbitrariness or unreasonableness. We must, therefore, hold that the procedure 'established ' by the Passports Act, 1967 for impounding a passport is in conformity with the requirement of Article 21 and does not fall foul of that article. But the question then immediately arises whether the Central Government has complied with this procedure in impounding the passport of the Petitioner. Now, it is obvious and indeed this could not be controverted, that the Central Government not only did not give an opportunity of hearing to the petitioner after making the impugned order impounding her passport but even declined to furnish to the petitioner the reasons for impounding her passport despite request made by her. We have already pointed out that the Central Government was wholly unjustified in withholding the reasons for impounding the passport from the petitioner and this was not only in breach of the statutory provision, but it also amounted to denial of opportunity of hearing to the petitioner. The order impounding the passport of the petitioner was, therefore, clearly in violation of the rule of natural justice embodied in the maxim audi alterant partem and it was not in conformity with the procedure prescribed by the Passports
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Act, 1967. Realising that this was a fatal defect which would void the order impounding the passport, the learned Attorney-General made a statement on behalf of the Government of India to the following effect:
The Government is agreeable to considering any representation that may be made by the petitioner in respect of the impounding of her passport and giving her an opportunity in the matter. The opportunity will be given within two weeks of the receipt of the representation. It is clarified that in the present case the grounds for impounding the passport are those mentioned in the affidavit in reply dated 18th August, 1977 of Shri Ghosh except those mentioned in para 2(xi).
The representation of the petitioner will be dealt with expeditiously in accordance with law.
This statement removes the vice from the order impounding the passport and it can no longer be assailed on the ground that it does not comply with the audi alteram partem rule or is not in accord with the procedure prescribed by the Passports Act, 1967.
………
LIFE AND PERSONAL LIBERTY
FRANSCIS CORALIE MULLIN V. ADMINISTRATOR, UNION TERRITORY OF DELHI
AIR 1981 SC 746, (1981) 1 SCC 608
Decided On: January 13, 1981
BENCH – JUSTICE P. N. BHAGWATI & S. M. FAZAL ALI
JUSTICE BHAGWATI (for the Court)
This petition under Article 32 of the Constitution raises a question in regard of the right of a detenu under the Conservation of Foreign Exchange & Prevention of Smuggling
Activities Act (hereinafter referred to as COFEPOSA Act) to have interview with a lawyer and the members of his family. The facts giving rise to the petition are few and undisputed and may be briefly stated as follows:
The petitioner, who is a British national, was arrested and detained in the Central Jail,
Tihar under an Order dated 23rd November 1979 issued under Section 3 of the COFEPOSA
Act. She preferred a petition in this Court for a writ of habeas corpus challenging her detention, but by a judgment delivered by this Court on 27th February 1980, her petition was rejected with the result that she continued to remain under detention in the Tihar Central Jail. Whilst under detention, the petitioner experienced considerable difficulty in having interview with her lawyer and the members of her family. Her daughter aged about five years and her sister, who was looking after the daughter, were permitted to have interview with her only once in a month and she was not allowed to meet her daughter more often, though a child of very tender age. It seems that some criminal proceeding was pending against the petitioner for attempting to smuggle hashish out of the country and for the purpose of her defence in such criminal proceeding, it was necessary for her to consult her lawyer, but even her lawyer found it difficult to obtain an interview with her because in order to arrange an interview, he was required to obtain prior appointment from the District Magistrate, Delhi and the interview could take place only in the presence of a Customs Officer nominated by the Collector of
Customs. This procedure for obtaining interview caused considerable hardship and inconvenience and there were occasions when, even after obtaining prior appointment from the District Magistrate, Delhi, her lawyer could not have an interview with her since no
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Customs Officer nominated by the Collector of Customs remained present at the appointed time. The petitioner was thus effectively denied the facility of interview with her lawyer and even her young daughter 5 years old could not meet her except once in a month. This restriction on interviews was imposed by the Prison Authorities by virtue of Clause 3 (b) Subclauses (i) and (ii) of the Conditions of Detention laid down by the Delhi Administration under an Order dated 23rd August 1975 issued in exercise of the powers conferred under Section 5 of the COFEPOSA Act. These two sub-clauses of Clause 3(b) provided inter alia as under:
The conditions of detention in respect of classification and interviews shall be as under: (a) …
(b) Interviews : Subject to the direction issued by the Administrator from time to time, permission for the grant of interviews with a detenu shall be granted by the
District Magistrate, Delhi as under :(i) Interview with legal adviser:
Interview with legal adviser in connection with defence of a detenu in a criminal case or in regard to writ petitions and the like, may be allowed by prior appointment, in the presence of an officer of Customs/Central
Excise/Enforcement to be nominated by the local Collector of Customs/Central
Excise or Deputy Director of Enforcement who sponsors the case for detention.
(ii) Interview with family members:
A monthly interview may be permitted for members of the family consisting of wife, children or parents of the detenu…
The petitioner, therefore, preferred a petition in this Court under Article 32 challenging the constitutional validity of Sub-clauses (i) and (ii) of Clause 3(b) of the Conditions of
Detention Order and praying that the Administrator of the Union Territory of Delhi and the
Superintendent of Tihar Central Jail be directed to permit her to have interview with her lawyer and the members of her family without complying with the restrictions laid down in those sub-clauses.
The principal ground on which the constitutional validity of Sub-clauses (i) and (ii) of
Clause 3(b) of the Conditions of Detention Order was challenged was that these provisions were violative of Articles 14 and 21 of the Constitution inasmuch as they were arbitrary and unreasonable. It was contended on behalf of the petitioner that allowing interview with the members of the family only once in a month was discriminatory and unreasonable, particularly when undertrial prisoners were granted the facility of interview with relatives and friends twice in a week under Rule 559A and convicted prisoners were permitted to have interview with their relatives and friends once in a week under Rule 550 of the Rules set out in the
Manual for the Superintendence and Management of Jails in the Punjab. The petitioner also urged that a detenu was entitled under Article 22 of the Constitution to consult and be defended by a legal practitioner of his choice and she was, therefore entitled to the facility of interview with a lawyer whom he wanted to consult or appear for him in a legal proceeding and the requirement of prior appointment for interview and of the presence of a Customs or Excise
Officer at the interview was arbitrary and unreasonable and therefore violative of Articles 14 and 21. The respondents resisted the contentions of the petitioner and submitted that Subclauses (i) and (ii) of Clause 3(b) were not violative of Articles 14 and 21, since the restrictions imposed by them were reasonable, fair and just, but stated that they would have no objection if instead of a monthly interview, the petitioner was granted the facility of interview with her daughter and sister twice in a week as in the case of undertrial prisoners and so far as interview with the lawyer is concerned, they would not insist on the presence of a customs or excise officer at the interview. Though these two concessions were made on behalf of the respondents
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at the hearing of the petition before us, the question still remains whether Sub-clause (i) and
(ii) of Clause 3(b) are valid and it is necessary that we should examine this question in the context of our constitutional values, since there are a large number of detenus under the
COFEPOSA Act and the conditions of their detention in regard to interviews must be finally settled by this Court.
Now it is necessary to bear in mind the distinction between 'preventive detention ' and punitive detention ', when we are considering the question of validity of conditions of detention. There is a vital distinction between these two kinds of detention. 'Punitive detention ' is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence, while 'preventive detention ' is not by way of punishment at all, but it is intended to pre-empt a person from indulging in conduct injurious to the society. The power of preventive detention has been recognised as a necessary evil and is tolerated in a free society in the larger interest of security of the State and maintenance of public order. It is a drastic power to detain a person without trial and there are many countries where it is not allowed to be exercised except in times of war or aggression. Our Constitution does recognise the existence of this power, but it is hedged-in by various safeguards set out in Articles 21 and 22.
Article 22 in Clauses (4) to (7), deals specifically with safeguards against preventive detention and any law of preventive detention or action by way of preventive detention taken under such law must be in conformity with the restrictions laid down by those clauses on pain of invalidation. But apart from Article 22, there is also Article 21 which lays down restrictions on the power of preventive detention.
Until the decision of this Court in Maneka Gandhi v. Union of India [1979] 2 SCR 338, a very narrow and constricted meaning was given to the guarantee embodied in Article 21 and that article was understood to embody only that aspect of the rule of law, which requires that no one shall be deprived of his life or personal liberty without the authority of law. It was construed only as a guarantee against executive action unsupported by law. So long as there was some law, which prescribed a procedure authorising deprivation of life or personal liberty, it was supposed to meet the requirement of Article 21. But in Maneka Gandhi, this Court for the first time opened-up a new dimension of Article 21 and laid down that Article 21 is not only a guarantee against executive action unsupported by law, but is also a restriction on law making. It is not enough to secure compliance with the prescription of Article 21 that there should be a law prescribing some semblance of a procedure for depriving a person of his life or personal liberty, but the procedure prescribed by the law must be reasonable, fair and just and if it is not so, the law would be void as violating the guarantee of Article 21.
This Court expanded the scope and ambit of the right to life and personal liberty enshrined in Article 21 and sowed the seed for future development of the law enlarging this most fundamental of Fundamental Rights. This decision in Maneka Gandhi became the starting point-the-spring-board-for a most spectacular evolution of the law culminating in the decisions in M.O. Hoscot v. State of Maharashtra 1978 Cri L.J. 1678 , Hussainara Khatoon 's case 1979 Cri L.J. 1036 , the first Sunil Batra case 1978 Cri L.J. 1741 and the second Sunil
Batra case 1978 Cri L.J. 1741.
The position now is that Article 21 as interpreted in Maneka Gandhi requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful and it is for the Court to decide in the exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure, which is reasonable, fair and just or it is otherwise. The law of preventive detention has therefore now to pass the test not only of Article 22, but also of Article 21 and if the constitutional validity of any such law is challenged, the Court would have to decide whether the procedure laid down by such
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law for depriving a person of his personal liberty is reasonable, fair and just. But despite these safeguards laid down by the Constitution and creatively evolved by the Courts, the power of preventive detention is a frightful and awesome power with drastic consequences affecting personal liberty, which is the most cherished and prized possession of man in a civilised society. It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused. It must always be remembered that preventive detention is qualitatively different from punitive detention and their purposes are different. In case of punitive detention, the person concerned is detained by way of punishment after he is found guilty of wrong doing as a result of trial where he has the fullest opportunity to defend himself, while in case of preventive detention, he is detained merely on suspicion with a view to preventing him from doing harm in future and the opportunity that he has for contesting the action of the Executive is very limited. Having regard to this distinctive character of preventive detention, which aims not at punishing an individual for a wrong done by him, but at curtailing his liberty with a view to pre-empting his injurious activities in future, it has been laid down by this Court in Sampat Prakash v. State of Jammu and Kashmir 1969 Cri L.J. 1555 "that the restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal."
The question which then arises is whether a person preventively detained in a prison has any rights which he can enforce in a Court of law. Once his freedom is curtailed by incarceration in a jail, does he have any fundamental rights at all or does he leave them behind, when he enters the prison gate? The answer to this question is no longer res integra. It has been held by this Court in the two Sunil Batra cases that "fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration." The prisoner or detenu has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration. Even before the two Sunil Batra cases, this position was impliedly accepted in
State of Maharashtra v. Prabhakar Sanzgiri 1966 Cri L.J. 311 and it was spelt-out clearly and in no uncertain terms by Chandrachud, J. as he then was, in D.B. Patnaik v. State of Andhra
Pradesh 1975 Cri L.J. 556:
Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails to by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to "practise" a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise, even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law.
This statement of the law was affirmed by a Bench of five Judges of this Court in the first
Sunil Batra case and by Krishna Iyer, J. speaking on behalf of the Court in the second Sunil
Batra case. Krishna Iyer, J. in the latter case proceeded to add in his characteristic style; "The jurisdictional reach and range of this Court 's writ to hold prison caprice and cruelty in constitutional leash is incontestable" and concluded by observing; "Thus it is now clear law that a prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through 'writ ' aid. The Indian human has a constant companion-the Court armed with the Constitution." It is interesting to note that the Supreme Court of the United States has also taken the same view in regard to rights of prisoners. Mr. Justice Douglas struck a humanistic note when he said in Eve Pall case 417 U.S. 817:
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Prisoners are still persons entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirements of due process.
So also in Charles Wolff case 41 L. Ed. 935, Mr. Justice White made the same point in emphatic terms.
But, though his rights may be diminished by environment, a prisoner is not wholly stripped off constitutional protections, when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country.
Mr. Justice Douglas reiterated his thesis when he asserted:
Every prisoner 's liberty i.e. of courses, circumscribed by the very fact of his confinement, but his interest in the limited liberty left to him is then only the more substantial. Conviction of a crime does not render one a non-person whose rights are subject to the whim of the prison administration, and therefore, the imposition of any serious punishment within the system requires procedural safeguards.
Mr. Justice Marshall also expressed himself clearly and explicitly in the same terms:
I have previously stated my view that a prisoner does not shed his basic constitutional rights at the prison gate, and I fully support the court 's holding that the interest of inmates in freedom from imposition of serious discipline is a 'liberty ' entitled to due process protection.
What is stated by these learned Judges in regard to the rights of a prisoner under the
Constitution of the United States applies equally in regard to the rights of a prisoner or detenu under our constitutional system. It must, therefore, now be taken to be well-settled that a prisoner or detenu is not stripped of his fundamental or other legal rights, save those which are inconsistent with his incarceration, and if any of these rights are violated, the Court which is to use the words of Krishna Iyer, J., "not a distant abstraction omnipotent in the books but an activist institution which is the cynosure of public hope," will immediately spring into action and run to his rescue.
We must therefore proceed to consider whether any of the Fundamental Rights of the detenu are violated by Sub-clauses (i) and (ii) of Clause 3(b) so as to result in their invalidation wholly or in part. We will first take up for consideration the Fundamental Right of the detenu under Article 21 because that is a Fundamental Right which has, after the decision in Maneka
Gandhi, a highly activist magnitude and it embodies a constitutional value of supreme importance in a democratic society. It provides that no one shall be deprived of his life or personal liberty except according to procedure established by law and such procedure shall be reasonable fair, and just.
Now what is the true scope and ambit of the right to life guaranteed under this Article?
While arriving at the proper meaning and content of the right to life, we must remember that it is a constitutional provision which we are expounding and moreover it is a provision enacting a Fundamental right and the attempt of the court should always be to expand the reach and ambit of the fundamental right rather than to attenuate its meaning and content. The luminous guideline in the interpretation of a constitutional provision is provided by the
Supreme Court of United States in Weems v. U.S. 54 L. Ed. 801:
Legislation, both statutory and constitutional is enacted, it is true, from an experience of evils, but-its general language should not, therefore, be necessarily confined to the form that evil had, therefore taken. Time works changes, brings into existence new conditions and purposes. Therefore, a principle, to be vital, must be capable of wider application than mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments designed to meet passing occasions. They are, to use the words of Chief Justice Marshall,
"designed to approach immorality as nearly as human institutions can approach
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it" The future is their care, and provisions for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule a Constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into important and lifeless formulas. Rights declared in the words might be lost in reality. And this has been recognised. The meaning and vitality of the Constitution have developed against narrow and restrictive construction.
This principle of interpretation which requires that a Constitutional provision must be construed, not in a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the Constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challenges, applies with greater force in relation to a fundamental right enacted by the Constitution. The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person.
Now obviously, the right to life enshrined in Article 21 can not be restricted to mere animal existence. It means something much more than just physical survival. In Kharak Singh
v. State of Uttar Pradesh [1964] 1 S.C.R. 232 Subba Rao J. quoted with approval the following passage from the judgment of Field, J. in Munn v. Illinois [1877] 94 U.S. 113 to emphasize the quality of life covered by Article 21: “By the term "life" as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world” and this passage was again accepted as laying down the correct law by the Constitution Bench of this
Court in the first Sunil Batra case. Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiorari, this would include the faculties of thinking and feeling.
Now deprivation which is inhibited by Article 21 may be total or partial, neither any limb or faculty can be totally destroyed nor can it be partially damaged. Moreover it is every kind of deprivation that is hit by Article 21, whether such deprivation be permanent or temporary and, furthermore, deprivation is not an act which is complete once and for all: it is a continuing act and so long as it lasts, it must be in accordance with procedure established by law. It is therefore clear that any act which damages or injures or interferes with the use of, any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of
Article 21.
But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights.
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Now obviously, any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21. It would thus be seen that there is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the International Covenant on Civil and
Political Rights. This right to live which is comprehended within the broad connotation of the right to life can concededly be abridged according to procedure established by law and therefore when a person is lawfully imprisoned, this right to live is bound to suffer attenuation to the extent to which it is incapable of enjoyment by reason of incarceration. The prisoner or detenu obviously cannot move about freely by going outside the prison walls nor can he socialise at his free will with persons outside the jail. But, as part of the right to live with human dignity and therefore as a necessary component of the right to life, he would be entitled to have interviews with the members of his family and friends and no prison regulation or procedure laid down by prison regulation regulating the right to have interviews with the members of the family and friends can be upheld as constitutionally valid under Articles 14 and 21, unless it is reason able, fair and just.
The same consequence would follow even if this problem is considered from the point of view of the right to personal liberty enshrined in Article 21, for the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that Article. The expression 'personal liberty ' occurring in Article 21 has been given a broad and liberal interpretation in Maneka Gandhi and it has been held in that case that the expression 'personal liberty used in that Article is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and it also includes rights which "have been raised to the status of distinct Fundamental Rights and given additional protection under Article 19". There can therefore be no doubt that 'personal liberty ' would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non-arbitrary. If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, it would be liable to be struck down as invalid as being violative of Articles 14 and 21.
Now obviously, when an undertrial prisoner is granted the facility of interviews with relatives and friends twice in a week under Rule 559A and a convicted prisoner is permitted to have interviews with his relatives and friends once in a week under Rule 550, it is difficult to understand how Sub-clause (ii) of Clause 3(b) of the Conditions of Detention Order, which restricts the interview only to one in a month in case of a detenu, can possibly be regarded as reasonable and nonarbitrary, particularly when a detenu stands on a higher pedestal than an undertrial prisoner or a convict and, as held by this Court in Sampath Prakash (1978) 4 SCC
494 restrictions placed on a detenu must "consistent with the effectiveness of detention, be minimal." We would therefore unhesitatingly hold Sub-clause (ii) of Clause 3(b) to be violative of
Articles 14 and 21 in so far as it permits only one interview in a month to a detenu. We are of the view that a detenu must be permitted to have atleast two interviews in a week with relatives and friends and it should be possible for a relative or friend to have interview with the detenu at any reasonable hour on obtaining permission from the Superintendent of the Jail and it
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should not be necessary to seek the permission of the District Magistrate, Delhi, as the latter procedure would be cumbrous and unnecessary from the point of view of security and hence unreasonable. We would go so far as to say that even independently of Rules 550 and 559A, we would regard the present norm of two interviews in a week for prisoners as furnishing a criterion of what we would consider reasonable and non-arbitrary.
The same reasoning must also result in invalidation of Sub-clause (i) of Clause 3(b) of the
Conditions of Detention Order which prescribes that a detenu can have interview with a legal adviser only after obtaining prior permission of the District Magistrate, Delhi and the interview has to take place in the presence of an officer of Customs/Central
Excise/Enforcement to be nominated by the local Collector of Customs/Central Excise or
Deputy Director of Enforcement who has sponsored the case for detention. The right of a detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceeding but also for securing release from preventive detention of filing a writ petition or prosecuting any claim or proceeding, civil or criminal, is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable, fair and just procedure established by a valid law. A prison regulation may, therefore, regulate the right of a detenu to have interview with a legal adviser in a manner which is reasonable, fair and just but it cannot prescribe an arbitrary or unreasonable procedure for regulating such an interview and if it does so, it would be violative of Articles 14 and 21.
Now in the present case the legal adviser can have interview with a detenu only by prior appointment after obtaining permission of the District Magistrate, Delhi. This would obviously cause great hardship and inconvenience because the legal adviser would have to apply to the District Magistrate, Delhi well in advance and then also the time fixed by the
District Magistrate, Delhi may not be suitable to the legal adviser who would ordinarily be a busy practitioner and, in that event, from a practical point of view the right to consult a legal adviser would be rendered illusory. Moreover, the interview must take place in the presence of an officer of Customs/Central Excise/Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who has sponsored the detention and this too would seem to be an unreasonable procedural requirement because in order to secure the presence of such officer at the interview, the District Magistrate, Delhi would have to fix the time for the interview in consultation with the Collector of
Customs/Central Excise or the Deputy Director of Enforcement and it may become difficult to synchronise the time which suits the legal adviser with the time convenient to the concerned officer and furthermore if the nominated officer does not, for any reason, attend at the appointed time, as seems to have happened on quite a few occasions in the case of the petitioner, the interview cannot be held at all and the legal adviser would have to go back without meeting the detenu and the entire procedure for applying for an appointment to the
District Magistrate, Delhi would have to be gone through once again. We may point out that no satisfactory explanation has been given on behalf of the respondents disclosing the rationale of this requirement.
We are therefore of view that a Sub-clause (i) of Clause 3 (b) regulating the right of a detenu to have interview with a legal adviser of his choice is violative of Articles 14 and 21 and must be held to be unconstitutional and void. We think that it would be quite reasonable if a detenu were to be entitled to have interview with his legal adviser at any reasonable hour during the day after taking appointment from the Superintendent of the Jail, which appointment should be given by the Superintendent without any avoidable delay. We may add that the interview need not necessarily take place in the presence of a nominated officer of
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Customs/Central Excise/Enforcement but if the presence of such officer can be conveniently secured at the time of the interview without involving any postponement of the interview, then such officer and if his presence cannot be so secured, then any other Jail official may, if thought necessary, watch the interview but not so as to be within hearing distance of the detenu and the legal adviser.
We accordingly allow the writ petition and grant relief to the extent indicated above.
OLGA TELLIS V. BOMBAY MUNICIPAL CORPORATION
AIR 1986 SC 180, (1985) 3 SCC 545
Decided On: July 10, 1985
BENCH – CHIEF JUSTICE Y. V. CHANDRACHUD, JUSTICE S. M. FAZAL ALI, V. D.
TULZAPURKAR, O. CHINNAPPA REDDY & A. VARADARAJAN
CHIEF JUSTICE CHANDRACHUD (for the Court)
These Writ Petitions portray the plight of lakhs of persons who live on pavements and in slums in the city of Bombay. They constitute nearly half the population of the city. The first group of petitions relates to pavement dwellers while the second group relates to both pavement and Basti or Slum dwellers. Those who have made pavements their homes exist in the midst of filth and squalor, which has to be seen to be believed. Rabid dogs in search of stinking meat and cats in search of hungry rats keep them company. They cook and sleep where they ease, for no conveniences are available to them. Their daughters, come of age, bathe under the nosy gaze of passers by, unmindful of the feminine sense of bashfulness. The cooking and washing over, women pick lice from each other 's hair. The boys beg. Menfolk, without occupation, snatch chains with the connivance of the defenders of law and order; when caught, if at all, they say: "Who doesn 't commit crimes in this city?"
It is these men and women who have come to this Court to ask for a judgment that they cannot be evicted from their squalid shelters without being offered alternative accommodation.
They rely for their rights on Article 21 of the Constitution which guarantees that no person shall be deprived of his life except according to procedure established by law. They do not contend that they have a right to live on the pavements. Their contention is that they have a right to live, a right which cannot be exercised without the means of livelihood. They have no option but to flock to big cities like Bombay, which provide the means of bare subsistence.
They only choose a pavement or a slum which is nearest to their place of work. In a word, their plea is that the right to life is illusory without a right to the protection of the means by which alone life can be lived. And, the right to life can only be taken away or abridged by a procedure established by law, which has to be fair and reasonable, not fanciful or arbitrary such as is prescribed by the Bombay Municipal Corporation Act or the Bombay Police Act. They also rely upon their right to reside and settle in any part of the country which is guaranteed by Article
19(1)(e).
… On July 13, 1981 the then Chief Minister of Maharashtra, Shri A.R. Antulay, made an announcement which was given wide publicity by the newspapers that all pavement dwellers in the city of Bombay will be evicted forcibly and deported to their respective places of origin or removed to places outside the city of Bombay. The Chief Minister directed the
Commissioner of Police to provide the necessary assistance to respondent 1, the Bombay
Municipal Corporation, to demolish the pavement dwellings and deport the pavement dwellers.
The apparent justification which the Chief Minister gave to his announcement was: "It is a very
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inhuman existence. These structures are flimsy and open to the elements. During the monsoon there is no way these people can live comfortably."
On July 23, 1981 the pavement dwelling of P. Angamuthu [one of the petitioners] was demolished by the officers of the Bombay Municipal Corporation. He and the members of his family were put in a bus for Salem. His wife and daughters stayed back in Salem but he returned to Bombay in search of a job and got into a pavement house once again. The dwelling of the other petitioner was demolished even earlier, in January 1980 but he rebuilt it. It is like a game of hide and seek. The Corporation removes the ramshackle shelters on the pavements with the aid of police, the pavement dwellers flee to less conspicuous pavements in by-lanes and, when the officials are gone, they return to their old habitats. …
… The decision or the respondents to demolish the huts is challenged by the petitioners on the ground that it is violative of Articles 19 and 21 of the Constitution. The petitioners also ask for a declaration that the provisions of Sections 312, 313 and 314 of the Bombay Municipal
Corporation Act, 1888 are invalid as violating Articles 14, 19 and 21 of the Constitution. The reliefs asked for in the two groups of writ petitions are that the respondents should be directed to withdraw the decision to demolish the pavement dwellings and the slum hutments and, where they are already demolished, to restore possession of the sites to the former occupants.
On behalf of the Government of Maharashtra, a counter-affidavit has been filed by V.S.
Munje, Under Secretary in the Department of Housing. The counter-affidavit meets the case of the petitioners thus. The Government of Maharashtra neither proposed to deport any pavement dweller out of the city of Bombay nor did it, in fact, deport anyone. Such of the pavement dwellers, who expressed their desire in writing, that they wanted to return to their home towns and who sought assistance from the Government in that behalf were offered transport facilities up to the nearest rail head and were also paid railway fare or bus tare and incidental expenses for the onward journey. The Government of Maharashtra had issued instructions to its officers to visit specific pavements on July 23, 1961 and to ensure that no harassment was caused to any pavement dweller. Out of 10,000 hutment-dwellers who were likely to be affected by the proposed demolition of hutments constructed on the pavements, only 1024 persons opted to avail of the transport facility and the payment of incidental expenses.
The counter-affidavit says that no person has any legal right to encroach upon or to construct any structure on a footpath, public street or on any place over which the public has a right of way. Numerous hazards of health and safety arise if action is not taken to remove such encroachments. Since, no civic amenities can be provided on the pavements, the pavement dwellers use pavements or adjoining streets for easing themselves. Apart from this, some of the pavement dwellers indulge in anti-social acts like chain-snatching, illicit distillation of liquor and prostitution. The lack of proper environment leads to increased criminal tendencies, resulting in more crime in the cities. It is, therefore, in public interest that public places like pavements and paths are not encroached upon. The Government of Maharashtra provides housing assistance to the weaker sections of the society like landless labourers and persons belonging to low income groups, within the frame work, of its planned policy of the economic and social development of the State. Any allocation for housing has to be made after balancing the conflicting demands from various priority sectors. The paucity of resources is a restraining factor on the ability of the State to deal effectively with the question of providing housing to the weaker sections of the society.
The Government of Maharashtra has issued policy directives that 75 percent of the housing programme should be allocated to the lower income groups and the weaker sections of the society. One of the objects of the State 's planning policy is to ensure that the influx of population from the rural to the urban areas is reduced in the interest of a proper and balanced
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social and economic development of the State and of the country. This is proposed to be achieved by reversing the rate of growth of metropolitan cities and by increasing the rate of growth of small and medium towns. The State Government has therefore, devised an
Employment Guarantee Scheme to enable the rural population, which remains unemployed or underemployed at certain periods of the year, to get employment during such periods. A sum of about Rs. 180 crores was spent on that scheme during the years 1979-60 and 1980-81.
On October 2, 1980 the State Government launched two additional schemes for providing employment opportunities for those who cannot get work due to old age or physical infirmities.
The State Government has also launched a scheme for providing self-employment opportunities under the 'Sanjay Gandhi Niradhar Anudan Yojana '. A monthly pension of Rs.
60 is paid to chose who are too old to work or are physically handicapped. In this scheme, about
1,56,943 persons have been identified and a sum of Rs. 2.25 crores was disbursed. Under another scheme called 'Sanjay Gandhi Swawalamban Yojana ', interest-free loans, subject to a maximum of Rs. 2,500, were being given to persons desiring to engage themselves in gainful employment of their own. About 1,75,000 persons had benefited under this scheme, to whom a total sum of Rs. 5.82 crores was disbursed by way of loan. In short, the objective of the State
Government was to place greater emphasis on providing infrastructural facilities to small and medium towns and to equip them so that they could act as growth and service centers for the rural hinterland. The phenomenon of poverty which is common to all developing countries has to be tackled on an All-India basis by making the gains of development available to all sections of the society through a policy of equitable distribution of income and wealth. Urbanisation is a major problem facing the entire country, the migration of people from the rural to the urban areas being a reflection of the colossal poverty existing in the rural areas. The rural poverty cannot, however, be eliminated by increasing the pressure of population on metropolitan cities like Bombay. The problem of poverty has to be tackled by changing the structure of the society in which there will be a more equitable distribution of income and greater generation of wealth.
The State Government has stepped up the rate of construction of tenements for the weaker sections of the society from 2500 to 9500 per annum.
It is denied in the counter-affidavit that the provisions of Sections 312, 313 and 314 of the
Bombay Municipal Corporation Act violate the Constitution. Those provisions are conceived in public interest and great care is taken by the authorities to ensure that no harassment is caused to any pavement dweller while enforcing the provisions of those sections. The decision to remove such encroachments was taken by the Government with specific instructions that every reasonable precaution ought to be taken to cause the least possible inconvenience to the pavement dwellers. What is more important, so the counter-affidavit says, the Government of
Maharashtra had decided that, on the basis of the census carried out in 1976, pavement dwellers who would be uprooted should be offered alternate developed pitches at Malvani where they could construct their own hutments. According to that census, about 2,500 pavement hutments only were then in existence.
The counter-affidavit of the State Government describes the various steps taken by the
Central Government under the Five year Plan of 1978-83, in regard to the housing programmes.
The plan shows that the inadequacies of Housing policies in India have both quantitative and qualitative dimensions. The total investment in housing shall have to be of the magnitude of
Rs. 2790 crores, if the housing problem has to be tackled even partially.
On behalf of the Bombay Municipal Corporation, a counter-affidavit has been filed by Shri
D.M. Sukthankar, Municipal Commissioner of Greater Bombay. That affidavit shows that he had visited the pavements on the Tulsi Pipe Road (Senapati Bapat Marg) and the Western
Express High Way, Vile Parle (east), Bombay. On July 23, 1981, certain hutments on these pavements were demolished under Section 314 of the Bombay Municipal Corporation Act. No
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prior notice of demolition was given since the section does not provide for such notice. The affidavit denies that the intense speculation in land prices, as alleged, owes its origin to the
High rise buildings which have come up in the city of Bombay. It is also denied that there are vast vacant pieces of land in the city which can be utilised for housing the pavement dwellers.
Section 61 of the B.M.C. Act lays down the obligatory duties of the Corporation. Under Clauses
(c) and (d) of the said section, it is the duty of the Corporation to remove excrementitious matters, refuse and rubbish and to take measures for abatement of every kind of nuisance.
Under Clause (g) of that section, the Corporation is under an obligation to take measures for preventing and checking the spread of dangerous diseases. Under Clause (o), obstructions and projections in or upon public streets and other public places have to be removed. Section 63(k) empowers the Corporation to take measures to promote public safety, health or convenience, not specifically provided otherwise.
The object of Sections 312 to 314 is to keep the pavements and foot-paths free from encroachment so that the pedestrians do not have to make use of the streets on which there is heavy vehicular traffic. The pavement dwellers answer the nature 's call, bathe, cook and wash their clothes and utensils on the foot-paths and or parts of public streets adjoining the footpaths. Their encroachment creates serious impediments in repairing the roads, foot-paths and drains. The refusal to allow the petitioners and other persons similarly situated to use footpaths as their abodes is, therefore, not unreasonable, unfair, or unlawful. The basic civic amenities, such as drainage, water and sanitation, cannot possibly be provided to the pavement dwellers.
Since the pavements are encroached upon, pedestrains are compelled to walk on the streets, thereby increasing the risk of traffic accidents and impeding the free flow of vehicular movement. The Municipal Commissioner disputes in his counter-affidavit that any fundamental right of the petitioners is infringed by removal of the encroachment committed by them on public property, especially the pavements. In this behalf, reliance is placed upon an order dated July 27, 1981 of Lentin, J. of the Bombay High Court, which records that counsel for the petitioners had stated expressly on July 24, 1981, that no fundamental right could be claimed to put up a dwelling on public foot-paths and public roads.
The Municipal Commissioner has stated in his counter-affidavit in Writ Petitions 5068-79 of 1981 that the huts near the Western Express Highway, Vile Parle, Bombay, were constructed on an accessory road which is a part of the Highway itself. These hutments were never regularised by the Corporation and no registration numbers were assigned to them.
In answer to the Municipal Commissioner 's counter-affidavit, petitioner no. 12.
Prafullachandra Bidwai who is a journalist, has filed a rejoinder asserting that Kamraj Nagar is not located on a foot-path or a pavement. According to him, Kamraj Nagar is a basti off the
Highway, in which the huts are numbered, the record in relation to which is maintained by the
Road Development Department and the Bombay Municipal Corporation. Contending that petitioners 1 to 5 have been residing in the said basti for over 20 years, he reiterates that the public has no right of way in or over the Kamraj Nagar. He also disputes that the huts on the foot-paths cause any obstruction to the pedestrains or to the vehicular traffic or that those huts are a source of nuisance or danger to public health and safety. His case in paragraph 21 of his reply-affidavit seems to be that since, the foot-paths are in the occupation of pavement dwellers for a long time, foot-paths have ceased to be foot-paths. He says that the pavement dwellers and the slum or basti dwellers, who number about 47.7 lakhs, constitute about 50 per cent of the total population of Greater Bombay, that they supply the major work force for Bombay from menial jobs to the most highly skilled jobs, that they have been living in the hutments for generations, that they have been making a significant contribution to the economic life of the city and that, therefore, it is unfair and unreasonable on the part of the State Government and the Municipal Corporation to destroy their homes and deport them : A home is a home wherever
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it is. The main theme of the reply-affidavit is that "The slum dwellers are the sine qua non of the city. They are entitled to a quid pro quo. "It is conceded expressly that the petitioners do not claim any fundamental right to live on the pavements. The right claimed by them is the right to live, at least to exist.
Only two more pleadings need be referred to, one of which is an affidavit of Shri Anil V.
Gokak, Administrator of Maharashtra Housing and Areas Development Authority, Bombay, who was then holding charge of the post of Secretary, Department of Housing. He filed an affidavit in answer to an application for the modification of an interim order which was passed by this Court on October 19, 1981. He says that the legislature of Maharashtra had passed the
Maharashtra Vacant Land (Prohibition of unauthorised Occupation and Summary Eviction)
Act, 1975 in pursuance of which the Government had decided to compile a list of slums which were required to be removed in public interest. It was also decided that after a spot inspection,
500 acres of vacant land in and near the Bombay Suburban District should be allocated for resettlement of the hutment dwellers who were removed from the slums. A Task Force was constituted by the Government for the purpose of carrying out a census of the hutments standing on lands belonging to the Government of the Maharashtra, the Bombay Municipal
Corporation and the Bombay Housing Board. A Census was, accordingly, carried out on
January 4, 1976 by deploying about 7,000 persons to enumerate the slum dwellers spread over approximately 850 colonies all over Bombay. About 67 per cent of the hutment dwellers from a total of about 2,60,000 hutments produced photographs of the heads of their families, on the basis of which hutments were numbered and their occupants were given identity cards. It was decided that slums which were in existence for a long time and which were improved and developed would not normally be demolished unless the land was required for a public purpose.
In the event that the land was so required, the policy of the State Government was to provide alternative accommodation to the slum dwellers who were censured and possessed identity cards. This is borne out by a circular of the Government dated February 4, 1976 (No. SIS
1176/D. 41). Shri Gokak says that the State Government has issued instructions directing, inter alia, that "action to remove the slums excepting those which are on the foot-paths or roads or which are new or casually located should not, therefore, be taken without obtaining approval from the Government to the proposal for the removal of such slums and their rehabilitation."
Since, it was never the policy of the Government to encourage construction of hutments on foot-paths, pavements or other places over which the public has a right of way, no census of such hutments was ever intended to be conducted. But, sometime in July 1981, when the
Government officers made an effort to ascertain the magnitude of the problem of evicting pavement dwellers, it was discovered that some persons occupying pavements, carried census cards of 1976. The Government then decided to allot pitches to such occupants of pavements.
The only other pleading which deserves to be noticed is the affidavit of the journalist petitioner, Ms. Olga Tellis, in reply to the counter-affidavit of the Government of Maharashtra.
According to her, one of the important reasons of the emergence and growth of squattersettlements in the Metropolitan cities in India is, that the Development and Master Plans of most of the cities have not been adhered to. The density of population in the Bombay
Metropolitan Region is not high according to the Town Planning standards. Difficulties are caused by the fact that the population is not evenly distributed over the region, in a planned manner. New constructions of commercial premises, small-scale industries and entertainment houses in the heart of the city, have been permitted by the Government of Maharashtra contrary to law and even residential premises have been allowed to be converted into commercial premises. This, coupled with the fact that the State Government has not shifted its main offices to the northern region of the city, has led to the concentration of the population in the southern region due to the availability of job opportunities in that region. Unless economic and leisure activity is decentralised, it would be impossible to find a solution to the problems arising out
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of the growth of squatter colonies. Even if squatters are evicted, they come back to the city because, it is there that job opportunities are available. The alternate pitches provided to the displaced pavement-dwellers on the basis of the so-called 1976 census, are not an effective means to their resettlement because, those sites are situated far away from the Malad Railway
Station involving cost and time which are beyond their means. There are no facilities available at Malavani like schools and hospitals, which drives them back to the stranglehold of the city.
The permission granted to the 'National center of Performing Arts ' to construct an auditorium at the Nariman Point, Backbay Reclamation, is cited as a 'gross ' instance of the short-sighted, suicidal and discriminatory policy of the Government of Maharashtra. It is as if the sea is reclaimed for the construction of business and entertainment houses in the center of the city, which creates job opportunities to which the homeless flock. They work therein and live on pavements. The grievance is that, as a result of this imbalance, there are not enough jobs available in the northern tip of the city. The improvement of living conditions in the slums and the regional distribution of job opportunities are the only viable remedies for relieving congestion of the population in the center of the city. The increase allowed by the State
Government in the Floor Space Index over and above 1.33, has led to a further concentration of population in the center of the city.
In the matter of housing, according to Ms. Tellis ' affidavit, Government has not put to the best use the finances and resources available to it. There is a wide gap between the demand and supply in the area of housing which was in the neighbourhood of forty five thousand units in the decade 1971-81. A huge amount of hundreds of crores of rupees shall have to be found by the State Government every year during the period of the Sixth Plan if adequate provision for housing is at all to be made. The Urban Land Ceiling Act has not achieved its desired objective nor has it been properly implemented. The employment schemes of the State Government are like a drop in the ocean and no steps are taken for increasing job opportunities in the rural sector. The neglect of health, education transport and communication in that sector drives the rural folk to the cities, not only in search of a living but in search of the basic amenities of life.
The allegation of the State Government regarding the criminal propensities of the pavement dwellers is stoutly denied in the reply-affidavit and it is said to be contrary to the studies of many experts. Finally, it is stated that it is no longer the objective of the Sixth Plan to reverse the rate of growth of metropolitan cities. The objective of the earlier plan (1978-83) has undergone a significant change and the target now is to ensure the growth of large metropolitan cities in a planned manner. The affidavit claims that there is adequate land in the Bombay metropolitan region to absorb a population of 20 million people, which is expected to be reached by the year 2000 A.D.
The arguments advanced before us by Ms. Indira Jaisingh, Mr. V.M. Tarkunde and Mr.
Ram Jethmalani cover a wide range but the main thrust of the petitioners ' case is that evicting a pavement dweller or slum dweller from his habitat amounts to depriving of his right to livelihood, which is comprehended in the right guaranteed by Article 21 of the Constitution that no person shall be deprived of his life except according to procedure established by law.
The question of the guarantee of personal liberty contained in Article 21 does not arise and was not: raised before us. Counsel for the petitioners contended that the Court must determine in these petitions the content of the right to life, the function of property in a welfare state, the dimension and true meaning of the constitutional mandate that property must subserve common good, the sweep of the right to reside and settle in any part of the territory of India which is guaranteed by Article 19(1)(e) and the right to carry on any occupation, trade or business which is guaranteed by Article 19(1)(g), the competing claims of pavement dwellers on the one hand and of the pedestrians on the other and, the larger question of ensuring equality before the law.
It is contended that it is the responsibility of the courts to reduce inequalities and social imbalances by striking down statutes which perpetuate them. One of the grievances of the
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petitioners against the Bombay Municipal Corporation Act, 1888 is that it is a century old antiquated piece of legislation passed in an era when pavement dwellers and slum dwellers did not exist and the consciousness of the modern notion of a welfare state was not present to the mind of the colonial legislature. According to the petitioners, connected with these issues and yet independent of them, is the question of the role of the Court in setting the tone of values in a democratic society.
The argument which bears on the provisions of Article 21 is elaborated by saying that the eviction of pavement and slum dwellers will lead, in a vicious circle, to the deprivation of their employment, their livelihood and, therefore, to the right to life. Our attention is drawn in this behalf to an extract from the judgment of Douglas, J in Baksey v. Board of Regents 347 US 442
(1954) in which the learned Judge said:
The right to work I have assumed was the most precious liberty that man possesses. Man has Indeed, as much right to work as he has to live, to be free and to own property. To work means to eat and it also means to live.
The right to live and the right to work are integrated and inter-dependant and, therefore, if a person is deprived of his job as a result of his eviction from a slum or a pavement, his very right to life is put in jeopardy. It is urged that the economic compulsions under which these persons are forced to live in slums or on pavements impart to their occupation the character of a fundamental right.
It is further urged by the petitioners that it is constitutionally impermissible to characterise the pavement dwellers as "trespassers" because, their occupation of pavements arises from economic compulsions. The State is under an obligation to provide to the citizens the necessities of life and, in appropriate cases, the courts have the power to issue order directing the State, by affirmative action, to promote and protect the right to life. The instant situation is one of crisis, which compels the use of public property for the purpose of survival and sustenance. Social commitment is the quintessence of our Constitution which defines the conditions under which liberty has to be enjoyed and justice has to be administered. Therefore,
Directive Principles, which are fundamental in the governance of the country, must serve as a beacon light to the interpretation of the Constitutional provisions. Viewed in this context, it is urged, the impugned action of the State Government and the Bombay Municipal Corporation is violative of the provisions contained in Articles 19(1)(e), 19(1)(g) and 21 of the Constitution.
The paucity of financial resources of the State is no excuse for defeating the fundamental rights of the citizens.
In support of this argument, reliance is placed by the petitioners on what is described as the 'factual context '. A publication dated January 1982 of the Planning Commission,
Government of India, namely, The Report of the Expert Group of Programmes for the
Alleviation of Poverty, is relied on as showing the high incidence of poverty in India. That
Report shows that in 1977-78, 48% of the population lived below the poverty line, which means that out of a population of 303 million who lived below the poverty line, 252 million belonged to the rural areas. In 1979-80 another 8 million people from the rural areas were found to live below the poverty line. A Government of Maharashtra Publication Budget and the new 20 Point
Socio-Economic Programme estimates that there are about 45 lakh families in rural areas of
Maharashtra who live below the poverty line. Another 40% was in the periphery of that area.
One of the major causes of the persistent rural poverty of landless labourers, marginal farmers, shepherds, physically handicapped persons and others is the extremely narrow base of production available to the majority of the rural population. The average agricultural holding of a farmer is 0.4 hectares, which is hardly adequate to enable him to make both ends meet.
Landless labourers have no resource base at all and they constitute the hardcore of poverty.
Due to economic pressures and lack of employment opportunities, the rural population is forced
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to migrate to urban areas in search of employment. The Economic Survey of Maharashtra published by the State Government shows that the bulk of public investment was made in the cities of Bombay, Pune and Thane, which created employment opportunities attracting the starving rural population to those cities. The slum census conducted by the Government of
Maharashtra in 1976 shows that 79% of the slum-dwellers belonged to the low income group with a monthly income below Rs. 600. The study conducted by P. Ramachandran of the Tata
Institute of Social Sciences shows that in 1972, 91% of the pavement dwellers had a monthly income of less than Rs. 200. The cost of obtaining any kind of shelter in Bombay is beyond the means of a pavement dweller. The principal public housing sectors in Maharashtra, namely,
The Maharashtra Housing and Area Development Agency (MHADA) and the City and
Industrial Development Corporation of Maharashtra Ltd. (CIDCO) have been able to construct only 3000 and 1000 units respectively as against the annual need of 60,000 units. In any event, the cost of housing provided even by these public sector agencies is beyond the means of the slum and pavement-dwellers. Under the Urban Land (Ceiling and Regulation) Act 1975, private land owners and holders are given facility to provide housing to the economically weaker sections of the society at a stipulated price of Rs. 90 per sq. ft., which also is beyond the means of the slum and pavement-dwellers. The reigning market price of houses in Bombay varies from Rs. 150 per sq. ft. outside Bombay to Rs. 2000 per sq. ft. in the center of the city.
The petitioners dispute the contention of the respondents regarding the non-availability of vacant land for allotment to houseless persons. According to them, about 20,000 hectares of unencumbered land is lying vacant in Bombay. The Urban Land (Ceiling and Regulation; Act,
1975 has failed to achieve its object as is evident from the fact that in Bombay, 5% of the landholders own 55% of the land. Even though 2952.53 hectares of Urban land is available for being acquired by the State Government as being in excess of the permissible ceiling area, only
41.51% of this excess land was, so far, acquired. Thus, the reason why there are homeless people in Bombay is not that there is no land on which homes can be built for them but, that the planning policy of the State Government permits high density areas to develop with vast tracts of land lying vacant. The pavement-dwellers and the slum-dwellers who constitute 50% of the population of Bombay, occupy only 25% of the city 's residential land. It is in these circumstances that out of sheer necessity for a bare existence, the petitioners are driven to occupy the pavements and slums. They live in Bombay because they are employed in Bombay and they live on pavements because there is no other place where they can live. This is the factual context in which the petitioners claim the right under Articles 19(1)(e) and (g) and
Article 21 of the Constitution.
The petitioners challenge the vires of Section 314 read with Sections 312 and 313 of the
Bombay Municipal Corporation Act, which empowers the Municipal Commissioner to remove, without notice, any object or structure or fixture which is set up in or upon any street.
It is contended that, in the first place, Section 314 does not authorise the demolition of a dwelling even on a pavement and secondly, that a provision which allows the demolition of a dwelling without notice is not just, fair or reasonable. Such a provision vests arbitrary and unguided power in the Commissioner. It also offends against the guarantee of equality because, it makes an unjustified discrimination between pavement dwellers on the one hand and pedestrains on the other. If the pedestrains are entitled to use the pavements for passing and repassing, so are the pavement dwellers entitled to use pavements for dwelling upon them. So the argument goes Apart from this, it is urged, the restrictions which are sought to be imposed by the respondents on the use of pavements by pavement-dwellers are not reasonable. A State which has failed in its constitutional obligation to usher a socialistic society has no right to evict slum and pavement-dwellers who constitute half of the city 's population. Therefore,
Sections 312, 313 and 314 of the B.M.C. Act must either be read down or struck down.
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According to the learned Attorney-General, Mr. K.K. Singhvi and Mr. Shankaranarayanan who appear for the respondents, no one has a fundamental right, whatever be the compulsion, to squat on or construct a dwelling on a pavement, public road or any other place to which the public has a right of access. The right conferred by Article 19(1)(e) of the Constitution to reside and settle in any part of India cannot be read to confer a licence to encroach and trespass upon public property. Sections 3(w) and (x) of the B.M.C. Act define "Street" and "Public Street" to include a highway, a footway or a passage on which the public has the right of passage or access. Under Section 289(1) of the Act, all pavements and public streets vest in the
Corporation and are under the control of the Commissioner. In so far as Article 21 is concerned, no deprivation of life, either directly or indirectly, is involved in the eviction of the slum and pavement-dwellers from public places. The Municipal Corporation is under an obligation under
Section 314 of the B.M.C. Act to remove obstructions on pavements, public streets and other public places. The Corporation does not even possess the power to permit any person to occupy a pavement or a public place on a permanent or quasi-permanent basis. The petitioners have not only violated the provisions of the B.M.C. Act, but they have contravened Sections 111 and 115 of the Bombay Police Act also. These sections prevent a person from obstructing any other person in the latter 's use of a street or public place or from committing a nuisance. Section
117 of the Police Act prescribes punishment for the violation of these sections.
We will first deal with the preliminary objection raised by Mr. K.K. Singhvi, who appears on behalf of the Bombay Municipal Corporation, that the petitioners are estopped from contending that their huts cannot be demolished by reason of the fundamental rights claimed by them. It appears that a writ petition, No. 986 of 1961, was filed on the Original Side of the
Bombay High Court by and on behalf of the pavement dwellers claiming reliefs similar to those claimed in the instant batch of writ petitions. A learned Single Judge granted an ad-interim injunction restraining the respondents from demolishing the huts and from evicting the pavement dwellers. When the petition came up for hearing on July 27, 1981, counsel for the petitioners made a statement in answer to a query from the court, that no fundamental right could be claimed to put up dwellings on foot-paths or public roads. Upon this statement, respondents agreed not to demolish until October 15, 1981, huts which were constructed on the pavements or public roads prior to July 23, 1981. On August 4, 1981, a written undertaking was given by the petitioners agreeing, inter alia, to vacate the huts on or before October 15,
1981 and not to obstruct the public authorities from demolishing them. Counsel appearing for the State of Maharashtra responded to the petitioners ' undertaking by giving an undertaking on behalf of the State Government that, until October 15, 1981, no pavement: dweller will be removed out of the city against his wish. On the basis of these undertakings, the learned Judge disposed of the writ petition without passing any further orders. The contention of the Bombay
Municipal Corporation is that since the pavement dwellers had conceded in the High Court that they did not claim any fundamental right to put up huts on pavements or public roads and since they had given an undertaking to the High Court that they will not obstruct the demolition of the huts after October 15, 1981 they are estopped from contending in this Court that the huts constructed by them on the pavements cannot be demolished because of their right to livelihood, which is comprehended within the fundamental right to life guaranteed by Article
21 of the Constitution.
It is not possible to accept the contention that the petitioners are estopped from setting up their fundamental rights as a defence to the demolition of the huts put up by them on pavements or parts of public roads. There can be no estoppel against the Constitution. The Constitution is not only the paramount law of the land but, it is the source and substance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. The doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs. If a person makes a representation to another, on the
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faith of which the latter acts to his prejudice, the former cannot resile from the representation made by him. He must make it good. This principle can have no application to representations made regarding the assertion or enforcement of fundamental rights. For example, the concession made by a person that he does not possess and would not exercise his right to free speech and expression or the right to move freely throughout the territory of India cannot deprive him of those constitutional rights, any more than a concession that a person has no right of personal liberty can justify his detention contrary to the terms of Article 22 of the
Constitution. Fundamental rights are undoubtedly conferred by the Constitution upon individuals which have to be asserted and enforced by them, if those rights are violated. But, the high purpose which the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger interests of the community.
… No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all-powerful state could easily tempt an individual to forego his precious personal freedoms on promise of transitory, immediate benefits. Therefore, notwithstanding the fact that the petitioners had conceded in the Bombay High Court that they have no fundamental right to construct hutments on pavements and that they will not object to their demolition after October 15, 1981, they are entitled to assert that any such action on the part of public authorities will be in violation of their fundamental rights. How far the argument regarding the existence and scope of the right claimed by the petitioners is well-founded is another matter. But, the argument has to be examined despite the concession.
The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day-today transactions. In Basheshar Nath v. Commissioner of Income
Tax Delhi [1959] Supp. 1 S.C.R. 528 a Constitution Bench of this Court considered the question whether the fundamental rights conferred by the Constitution can be waived. Two members of the Bench (Das C.J. and Kapoor J.) held that there can be no waiver of the fundamental right founded on Article 14 of the Constitution. Two others (N.H. Bhagwati and Subba Rao, JJ.) held that not only could there be no waiver of the right conferred by Article 14, but there could be no waiver of any other fundamental right guaranteed by Part III of the Constitution. The
Constitution makes no distinction, according to the learned Judges, between fundamental rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy.
We must, therefore, reject the preliminary objection and proceed to consider the validity of the petitioners ' contentions on merits.
… As we have stated while summing up the petitioners ' case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition
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and execution of the death senctence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be In accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which people their desertion of their hearths and homes in the villages that struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas J. in Baksey that the right to work is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois 94 U.S. 113 (1877), means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. …
Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Article 41, which is another
Directive Principle, provides, inter alia, that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though not enforceable by any court, are nevertheless fundamental in the governance of the country. The Principles contained in Articles 39(a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21.
… Turning to the factual situation, how far is it true to say that if the petitioners are evicted from their slum and pavement dwellings, they will be deprived of their means of livelihood? It is impossible, in the very nature of things, together reliable data on this subject in regard to each individual petitioner and, none has been furnished to us in that form. That the eviction of a person from a pavement or slum will inevitably lead to the deprivation of his means of livelihood, is a proposition which does not have to be established in each individual case. That is an inference which can be drawn from acceptable data. Issues of general public importance, which affect the lives of large sections of the society, defy a just determination if their consideration is limited to the evidence pertaining to specific individuals. In the resolution of such issues, there are no symbolic samples which can effectively project a true picture of the grim realities of life. The writ petitions before us undoubtedly involve a question relating to dwelling houses but, they cannot be equated with a suit for the possession of a house by one private person against another. In a case of the latter kind, evidence has to be led to establish
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the cause of action and justify the claim. In a matter like the one before us, in which the future of half of the city 's population is at stake, the Court must consult authentic empirical data compiled by agencies, official and non-official. It is by that process that the core of the problem can be reached and a satisfactory solution found. It would be unrealistic on our part to reject the petitions on the ground that the petitioners have not adduced evidence to show that they will be rendered jobless if they are evicted from the slums and pavements. Commonsense, which is a cluster of life 's experiences, is often more dependable than the rival facts presented by warring litigants.
It is clear from the various expert studies to which we have referred while setting out the substance of the pleadings that, one of the main reasons of the emergence and growth of squatter-settlements in big Metropolitan cities like Bombay, is the availability of job opportunities which are lacking in the rural sector. The undisputed fact that even after eviction, the squatters return to the cities affords proof of that position. The Planning Commission 's publication, The Report of the Expert Group of Programmes for the Alleviation of Poverty
(1982) shows that half of the population in India lives below the poverty line, a large part of which lives in villages. A publication of the Government of Maharashtra, Budget and the New
20 Point Socio-Economic Programme shows that about 45 lakhs of families in rural areas live below the poverty line and that, the average agricultural holding of a farmer, which is 0.4 hectares, is hardly enough to sustain him and his comparatively large family. The landless labourers, who constitute the bulk of the village population, are deeply imbedded in the mire of poverty. It is due to these economic pressures that the rural population is forced to migrate to urban areas in search of employment. The affluent and the not-so-affluent are alike in search of domestic servants. Industrial and Business Houses pay a fair wage to the skilled workman that a villager becomes in course of time. Having found a job, even if it means washing the pots and pans, the migrant sticks to the big city. If driven out, he returns in quest of another job. The cost of public sector housing is beyond his modest means and the less we refer to the deals of private builders the better for all", excluding none. Added to these factors is the stark reality of growing insecurity in villages on account of the tyranny of parochialism and casteism.
The announcement made by the Maharashtra Chief Minister regarding the deportation of willing pavement dwellers afford some indication that they are migrants from the interior areas, within and outside Maharashtra. It is estimated that about 200 to 300 people enter Bombay every day in search of employment. These facts constitute empirical evidence to justify the conclusion that persons in the position of petitioners live in slums and on pavements because they have small jobs to nurse in the city and there is no where else to live. Evidently, they choose a pavement or a slum in the vicinity of their place of work, the time otherwise taken in commuting and its cost being, forbidding for their slender means. To loss the pavement or the slum is to lose the job. The conclusion, therefore, in terms of the constitutional phraseology is that the eviction of the petitioners will lead to deprivation of their livelihood and consequently to the deprivation of life.
Two conclusions emerge from this discussion: one, that the right to life which is conferred by Article 21 includes the right to livelihood and two, that it is established that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. But the Constitution does not put an absolute embargo on the deprivation of life or personal liberty. By Article 21, such deprivation has to be according to procedure established by law. In the instant case, the law which allows the deprivation of the right conferred by Article 21 is the Bombay Municipal
Corporation Act, 1888, the relevant provisions of which are contained in Sections 312(1),
313(1)(a) and 314. These sections which occur in Chapter XI entitled 'Regulation of Streets ' read thus:
Section 312 - Prohibition of structures or fixtures which cause obstruction in streets. Page 411 of 610
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(1) No person shall, except with the permission of the Commissioner under
Section 310 or 317 erect or set up any wall, fence, rail, post, step, booth or other structure or fixture in or upon any street or upon or over any open channel, drain well or tank in any street so as to form an obstruction to, or an encroachment upon, or a projection over, or to occupy, any portion or such street, channel, drain, well or tank.
Section 313 - Prohibition of deposit, etc., of things in streets.
(1) No person shall, except with the written permission of the Commissioner,(a) place or deposit upon any street or upon any open channel drain or well in any streets (or in any public place) any stall, chair, bench, box, ladder, bale or other thing so as to form an obstruction thereto or encroachment thereon.
Section 314 - Power to remove without notice anything erected deposited or hawked in contravention of Sections 312, 313 or 313A.
The Commissioner may, without notice, cause to be removed(a) any wall, fence, rail, post, step, booth or other structure or fixture which shall be erected or set up in or any street, or upon or over any open channel, drain, well or tank contrary to the provisions of Sub-section (1) of Section 312, after the same comes into force in the city or in the suburbs, after the date of the coming into force of the Bombay Municipal (Extension of Limits) Act, 1950 or in the extended suburbs after the date of the coming into force of the Bombay Munic
(b) any stall, chair, bench, box, ladder, bale, board or shelf, or any other thing whatever placed, deposited, projected, ttached, or suspended in, upon, from or to any place in contravention of Sub-section (1) of Section 313;
(c) any article whatsoever hawked or exposed for sale in any public place or in any public street in contravention of the provisions of Section 313A and any vehicle, package, box, board, shelf or any other thing in or on which such article is placed or kept for the purpose of sale.
By Section 3(w), "street" includes a causeway, footway, passage etc., over which the public have a right of passage or access.
These provisions, which are clear and specific, empower the Municipal Commissioner to cause to be removed encroachments on footpaths or pavements over which the public have a right of passage or access. It is undeniable that, in these cases, wherever constructions have been put up on the pavements, the public have a right of passage or access over those pavements. The argument of the petitioners is that the procedure prescribed by Section 314 for the removal of encroachments from pavements is arbitrary and unreasonable since, not only does it not provide for the giving of a notice before the removal of an encroachment but, it provides expressly that the Municipal Commission may cause the encroachment to be removed
"without notice".
It is far too well-settled to admit of any argument that the procedure prescribed by law for the deprivation of the right conferred by Article 21 must be fiar, just, and reasonable. … Just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike, it is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right, in this case the right to life, must confirm to the norms of justice and fairplay. Procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it. Any action taken by a public authority which is invested with statutory powers has, therefore, to be tested by the application of two standards: The action must be within the scope of the authority conferred by law and secondly, it must be reasonable.
It any action, within the scope of the authority conferred by law, is found to be unreasonable, it must mean that the proceudre established by law under which that action is taken is itself
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unreasonable. The substance of the law cannot be divorced from the procedure which it prescribe for, how reasonable the law is, depends upon how fair is the procedure prescribed by it… … Having given our anxious and solicitous consideration to this question, we are of the opinion that the procedure prescribed by Section 314 of the Bombay Municipal Corporation
Act for removal of encroachments on the footpaths or pavements over which the public has the right of passage or access, cannot be regarded as unreasonable, unfair or unjust. There is no static measure of reasonableness which can be applied to all situations alike. Indeed, the question "is this procedure reasonable?" implies and postulates the inquiry as to whether the procedure prescribed is reasonable in the circumstances of the case…
… In the first place, footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets. The main reason for laying out pavements is to ensure that the pedestrains are able to go about their daily affairs with a reasonable measure of safety and security. That facility, which has matured into a right of the pedestrains, cannot be set at naught by allowing encroachments to be made on the pavements. There is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrains to make use of the pavements for passing and repassing, are competing claims and that, the former should be preferred to the latter. No one has the right to make use of a public property for a private purpose without the requisite authorisation and, therefore, it is erroneous to contend that the pavement dwellers have the right to encroach upon pavements by constructing dwellings thereon. Public streets, of which pavements form a part, are primarily dedicated for the purpose of passage and, even the pedestrains have but the limited right of using pavements for the purpose of passing and repassing. So long as a person does not transgress the limited purpose for which pavements are made, his use thereof is legitimate and lawful. But, if a person puts any public property to a use for which it is not intended and is not authorised so to use it, he becomes a trespasser.
… Putting up a dwelling on the pavement is a case which is clearly on one side of the line showing that it is an act of trespass. Section 61 of the Bombay Municipal Corporation Act lays down the obligatory duties of the Corporation, under Clause (d) of which, it is its duty to take measures for abatement of all nuisances. The existence of dwellings on the pavements is unquestionably a source of nuisance to the public, at least for the reason that they are denied the use of pavements for passing and repassing. They are compelled, by reason of the occupation of pavements by dwellers, to use highways and public streets as passages. The affidavit filed on behalf of the Corporation shows that the fall-out of pedestrians in large numbers on highways and streets constitutes a grave traffic hazzard. Surely, pedestrians deserve consideration in the matter of their physical safety, which cannot be sacrificed in order to accommodate persons who use public properties for a private purpose, unauthorizedly.
Under Clause (c) of Section 61 of the B.M.C. Act, the Corporation is under an obligation to remove obstructions upon public streets another public places. The counter-affidavit of the
Corporation shows that the existence of hutments on pavements is a serious impediment in repairing the roads, pavements, drains and streets. Section 63(k), which is discretionary, empowers the Corporation to take measures to promote public safety, health or convenience not specifically provided otherwise. Since it is not possible to provide any public conveniences to the pavement dwellers on or near the pavements, they answer the nature 's call on the pavements or on the streets adjoining them. These facts provide the background to the provision for removal of encroachments on pavements and footpaths.
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The challenge of the petitioners to the validity of the relevant provisions of the Bombay
Municipal Corporation Act is directed principally at the procedure prescribed by Section 314 of that Act, which provides by Clause (a) that the Commissioner may, without notice, take steps for the removal of encroachments in or upon any street, channel, drain, etc. By reason of
Section 3(w), 'street ' includes a causeway, footway or passage. In order to decide whether the procedure prescribed by Section 314 is fair and reasonable, we must first determine the true meaning of that section because, the meaning of the law determines its legality.
If a law is found to direct the doing of an act which is forbidden by the Constitution or to compel, in the performance of an act, the adoption of a procedure which is impermissible under the Constitution, it would have to be struck down. Considered in its proper perspective, Section
314 is in the nature of an enabling provision and not of a compulsive character. It enables the
Commissioner, in appropriate cases, to dispense with previous notice to persons who are likely to be affected by the proposed action. It does not require and, cannot be read to mean that, in total disregard of the relevant circumstances pertaining to a given situation, the Commissioner must cause the removal of an encroachment without issuing previous notice. The primary rule of construction is that the language of the law must receive its plain and natural meaning. What
Section 314 provides is that the Commissioner may, without notice, cause an encroachment to be removed. It does not command that the Commissioner shall, without notice, cause an encroachment to be removed. Putting it differently, Section 314 confers on the Commissioner the discretion to cause an encroachment to be removed with or without notice. That discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable. We must lean in favour of this interpretation because it helps sustain the validity of the law. Reading
Section 314 as containing a command not to issue notice before the removal of an encroachment will make the law invalid.
It must further be presumed that, while vesting in the Commissioner the power to act without notice, the Legislature intended that the power should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partem rule ( 'Hear the other side ') could be presumed.to have been intended. Section 314 is so designed as to exclude the principles of natural justice by way of exemption and not as a general rule. There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place the apprehended danger and so on. The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence. …
… Any discussion of this topic would be incomplete without reference to an important decision of this Court in S.L. Kapoor v. Jagmohan [1981] 1 SCR746. In that case, the suppression of the New Delhi Municipal Committee was challenged on the ground that it was in violation of the principles of natural justice since, no show cause notice was issued before the order of superession was passed. Linked with that question was the question whether the failure to observe the principles of natural justice matters at all, if such observance would have made no difference, the admitted or indisputable facts speaking for themselves. After referring to the decisions in Ridge v. Baldwin [1964] A.C. 40 … Chinnappa Reddy, J. Said :
In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any
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man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will comes from a person who has denied justice that the person who has been denied justice is not prejudiced.
These observations sum up the true legal position regarding the purport and implications of the right of hearing.
The jurisprudence requiring hearing to be given to those who have encroached on pavements and other public properties evoked a sharp response from the respondents counsel.
"Hearing to be given to trespassers who have encroached on public properties? To persons who commit crimes?", they seemed to ask in wonderment. There is no doubt that the petitioners are using pavements and other public properties for an unauthorised purpose, but, their intention or object in doing so is not to "commit an offence or intimidate, insult or annoy any person", which is the gist or the offence of 'Criminal trespass ' under Section 441 of the Penal Code.
They manage to find a habitat in places which are mostly filthy or marshy, out of sheer helplessness. It is not as if they have a free choice to exercise as to whether to commit an encroachment and if so, where. The encroachments committed by these persons are involuntary acts in the sense that those acts are compelled by inevitable circumstances and are not guided by choice. Trespass is a tort. But, even the law of Torts requires that though a trespasser may be evicted forcibly, the force used must be no greater than what is reasonable and appropriate to the occasion and, what is even more important, the trespasser should be asked and given a reasonable opportunity to depart before force is used to expel him. (See Ramaswamy Iyer 's 'Law of Torts ' 7th Ed. by Justice and Mrs. S.K. Desai, (page 98, para 41). Besides, under the
Law of Torts, necessity is a plausible defence, which enables a person to escape liability on the ground that the acts complained of are necessary to prevent greater damage, inter alia, to himself. "Here, as elsewhere in the law of torts, a balance has to be struck between competing sets of values..." (See Salmond and Heuston, 'Law of Torts ', 18th Ed. (Chapter 21, page 463,
Article 185 - 'Necessity ').
… Normally, we would have directed the Municipal Commissioner to afford an opportunity to the petitioners to show why the encroachments committed by them on pavements or footpaths should not be removed. But, the opportunity which was denied by the
Commissioner was granted by us in an ample measure, both sides having made their contentions elaborately on acts as well as on law. Having considered those contentions, we are of the opinion that the Commissioner was justified in directing the removal of the encroachments committed by the petitioners on pavements, footpaths or accessory roads. As observed in S.L. Kapoor, "where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs". Indeed, in that case, the Court did not set aside the order of supersession in view of the factual position stated by it. But, though we do not see any justification for asking the Commissioner to hear the petitioners, we propose to pass an order which, we believe, he would or should have passed, had he granted a hearing to them and heard what we did. We are of the opinion that the petitioners should not be evicted from the pavements, footpaths or accessory roads until one month after the conclusion of the current monsoon season, that is to say, until October 31, 1985. In the meanwhile, as explained later, steps may be taken to offer alternative pitches to the pavement dwellers who were or who happened to be censured in 1976. The offer of alternative pitches to such pavement dwellers should be made good in the spirit in which it was made, though we do not propose to make it a condition precedent to the removal of the encroachments committed by them.
… To summarise, we hold that no person has the right to encroach, by erecting a structure or otherwise, on footpaths, pavements or any other place reserved or ear-marked for a public
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purpose like, for example, a garden or a playground; that the provision contained in Section
314 of the Bombay Municipal Corporation Act is not unreasonable in the circumstances of the case; and that, the Kamraj Nagar Basti is situated on an accessory road leading to the Western
Express Highway. We have referred to the assurances given by the State Government in its pleadings here which, we repeat, must be made good. Stated briefly, pavement dwellers who were censured or who happened to be censured in 1976 should be given, though not as a condition precedent to their removal, alternate pitches at Malavani or at such other convenient place as the Government considers reasonable but not farther away in terms of distance; slum dwellers who were given identity cards and whose dwellings were numbered in the 1976 census must be given alternate sites for their re-settlement; slums which have been in existence for a long time, say for twenty years or more, and which have been improved and developed will not be removed unless the land on which they stand or the appurtenant land, is required for a public purposes, in which case, alternate sites or accommodation will be provided to them, the 'Low
Income Scheme Shelter Programme ' which is proposed to be undertaken with the aid of the
World Bank will be pursued earnestly; and, the Slum Upgradation Programme (SUP) 'under which basic amenities are to be given to slum dwellers will be implemented without delay. In order to minimise the hardship involved in any eviction, we direct that the slums, wherever situated, will not be removed until one month after the end of the current monsoon season, that is, until October 31, 1985 and, thereafter, only in accordance with this judgment. If any slum is required to be removed before that date, parties may apply to this Court. Pavement dwellers, whether censured or uncensured, will not be removed until the same date viz. October 31, 1985.
The Writ Petitions will stand disposed of accordingly. There will be no order as to costs.
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UNIT 9 – RIGHT TO EDUCATION (ARTICLE 21A)
SOCIETY FOR UNAIDED PRIVATE SCHOOLS V. UNION OF INDIA
AIR 2012 SC 3445, (2012) 6 SCC 1
Decided On: April 12, 2012
BENCH – CHIEF JUSTICE KAPADIA, K. S. P. RADHADRISHNAN & SWATANTER KUMAR
JUSTICE KAPADIA (for Justice Kumar & himself, MAJORITY OPINION)
We have had the benefit of carefully considering the erudite judgment delivered by our esteemed and learned Brother Radhakrishnan, J. Regretfully, we find ourselves in the unenviable position of having to disagree with the views expressed therein concerning the non-applicability of the Right of Children to Free and Compulsory Education Act, 2009 (for short "the 2009 Act") to the unaided non-minority schools.
The judgment of Brother Radhakrishnan, J. fully sets out the various provisions of the
2009 Act as well as the issues which arise for determination, the core issue concerns the constitutional validity of the 2009 Act.
Introduction
… Education is a process which engages many different actors: the one who provides education (the teacher, the owner of an educational institution, the parents), the one who receives education (the child, the pupil) and the one who is legally responsible for the one who receives education (the parents, the legal guardians, society and the State). These actors influence the right to education. The 2009 Act makes the Right of Children to Free and
Compulsory Education justiciable. The 2009 Act envisages that each child must have access to a neighbourhood school. The 2009 Act has been enacted keeping in mind the crucial role of Universal Elementary Education for strengthening the social fabric of democracy through provision of equal opportunities to all. The Directive Principles of State Policy enumerated in our Constitution lay down that the State shall provide free and compulsory education to all children up to the age of 14 years. The said Act provides for right (entitlement) of children to free and compulsory admission, attendance and completion of elementary education in a neighbourhood school. The word "Free" in the long title to the 2009 Act stands for removal by the State of any financial barrier that prevents a child from completing 8 years of schooling.
The word "Compulsory" in that title stands for compulsion on the State and the parental duty to send children to school. To protect and give effect to this right of the child to education as enshrined in Article 21 and Article 21A of the Constitution, the Parliament has enacted the
2009 Act.
The 2009 Act received the assent of the President on 26.8.2009. It came into force w.e.f.
1.4.2010. The provisions of this Act are intended not only to guarantee right to free and compulsory education to children, but it also envisages imparting of quality education by providing required infrastructure and compliance of specified norms and standards in the schools. The Preamble states that the 2009 Act stands enacted inter alia to provide for free and compulsory education to all children of the age of 6 to 14 years. The said Act has been enacted to give effect to Article 21A of the Constitution. Scope of the 2009 Act
Section 3(1) of the 2009 Act provides that every child of the age of 6 to 14 years shall have a right to free and compulsory education in a neighbourhood school till completion of elementary education. Section 3(2)inter alia provides that no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing the elementary education. An educational institution is charitable. Advancement
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of education is a recognised head of charity. Section 3(2) has been enacted with the object of removing financial barrier which prevents a child from accessing education. The other purpose of enacting Section 3(2) is to prevent educational institutions charging capitation fees resulting in creation of a financial barrier which prevents a child from accessing or exercising its right to education which is now provided for vide Article 21A. Thus, Sub-section (2) provides that no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing or completing the elementary education. Section 4 inter alia provides for special provision for children not admitted to or who have not completed elementary education. Section 5 deals with the situation where there is no provision for completion of elementary education, then, in such an event, a child shall have a right to seek transfer to any other school, excluding the school specified in Sub-clauses (iii) and (iv) of Clause (n) of
Section 2, for completing his or her elementary education.
Chapter III provides for duties of appropriate government, local authority and parents.
Section 6 imposes an obligation on the appropriate government and local authority to establish a school within such areas or limits of neighbourhood, as may be prescribed, where it is not so established, within 3 years from the commencement of the 2009 Act. The emphasis is on providing "neighbourhood school" facility to the children at the Gram Panchayat level.
Chapter IV of the 2009 Act deals with responsibilities of schools and teachers.
Section 12(1)(c) read with Section 2(n)(iii) and (iv) mandates that every recognised school imparting elementary education, even if it is an unaided school, not receiving any kind of aid or grant to meet its expenses from the appropriate government or the local authority, is obliged to admit in Class I, to the extent of at least 25% of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion. As per the proviso, if the School is imparting pre-school education, the same regime would apply.
By virtue of Section 12(2) the unaided school which has not received any land, building, equipment or other facilities, either free of cost or at concessional rate, would be entitled for reimbursement of the expenditure incurred by it to the extent of per child expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed. Such reimbursement shall not exceed per child expenditure incurred by a school established, owned or controlled by the appropriate government or a local authority.
Section 13 envisages that no school or person shall, while admitting a child, collect any capitation fee and subject the child or his or her parents to any screening procedure.
Section 15 mandates that a child shall be admitted in a school at the commencement of the academic year or within the prescribed extended period. Sections 16 and 17 provide for prohibition of holding back and expulsion and of physical punishment or mental harassment to a child. Section 18 postulates that after the commencement of the 2009 Act no school, other than the excepted category, can be established or can function without obtaining a certificate of recognition from the appropriate authority. The appropriate authority shall be obliged to issue the certificate of recognition within the prescribed period specifying the conditions there for, if the school fulfills the norms and standards specified under Sections 19 and 25read with the Schedule to the 2009 Act. In the event of contravention of the conditions of recognition, the prescribed authority can withdraw recognition after giving an opportunity of being heard to such school. The order of withdrawal of recognition should provide a direction to transfer the children studying in the de-recognised school to be admitted to the specified neighbourhood school. Upon withdrawal of recognition, the de-recognised school cannot continue to function, failing which, is liable to pay fine as per Section 19(5). If any person establishes or runs a school without obtaining certificate of recognition, or continues to run a school after withdrawal of the recognition, shall be liable to pay fine as specified in
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Section 19(5). The norms and standards for establishing or for grant of recognition to a school are specified in Section 19 read with the Schedule to the 2009 Act. All schools which are established before the commencement of the 2009 Act in terms of Section 19(2) are expected to comply with specified norms and standards within 3 years from the date of such commencement. Failure to do so would entail in de-recognition of such school.
Section 22 postulates that the School Management Committee constituted under
Section 21, shall prepare a School Development Plan in the prescribed manner.
Section 22(2) provides that the School Development Plan so prepared shall be the basis for the grants to be made by the appropriate government or local authority, as the case may be.
That plan, however, cannot have any impact on consideration of application for grant of recognition for establishing an unaided school. To ensure that teachers should contribute in imparting quality education in the school itself, Section 28 imposes total prohibition on them to engage in private tuition or private teaching activities. Chapter VI inter alia provides for protection of rights of children. Section 32 thus provides that any person having grievance relating to the right of child under the 2009 Act, may make a written complaint to the local authority having jurisdiction, who in turn is expected to decide it within three months after affording a reasonable opportunity of being heard to the parties concerned. In addition, in terms of Section 31, the Commissions constituted under the provisions of the Commissions for Protection of Child Rights Act, 2005 can monitor the child 's right to education, so as to safeguard the right of the child upon receiving any complaint in that behalf relating to free and compulsory education.
By virtue of the 2009 Act, all schools established prior to the commencement of the said
Act are thus obliged to fulfill the norms and standards specified inter alia in
Sections 25, 26 and the Schedule of that Act (See Section 19(2)). The State is also expected to first weed out those schools which are non-performing, or under-performing or noncompliance schools and upon closure of such schools, the students and the teaching and nonteaching staff thereof should be transferred to the neighbourhood school. The provision is meant not only to strengthen the latter school by adequate number of students but to consolidate and to impart quality education due to the addition of teaching staff. Needless to observe, that if there is inadequate response to the government funded school, it is but appropriate that either the divisions thereof or the school itself be closed and the students and staff of such schools be transferred to a neighbourhood school by resorting to Section 18(3) of the 2009 Act. Only after taking such decisions could the School Development Plan represent the correct position regarding the need of government aided schools in every locality across the State. Besides, it will ensure proper and meaningful utilization of public funds. In absence of such exercise, the end result would be that on account of existing non- performing or underperforming or non-compliance schools, the School Development Plan would not reckon that locality for establishment of another school. In our view, even the State Government(s), by resorting to the provision of the 2009 Act, must take opportunity to re-organise its financial outflow at the micro level by weeding out the non-performing or under-performing or noncompliance schools receiving grant- in- aid, so as to ensure that only such government funded schools, who fulfill the norms and standards, are allowed to continue, to achieve the object of the 2009 Act of not only providing free and compulsory education to the children in the neighbourhood school but also to provide quality education. Thus, there is a power in the 2009
Act coupled with the duty of the State to ensure that only such government funded schools, who fulfill the norms and standards, are allowed to continue with the object of providing free and compulsory education to the children in the neighbourhood school.
Validity and applicability of the 2009 Act qua unaided non-minority schools
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To begin with, we need to understand the scope of Article 21A. It provides that the State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine. Thus, under the said Article, the obligation is on the State to provide free and compulsory education to all children of specified age. However, under the said Article, the manner in which the said obligation will be discharged by the State has been left to the State to determine by law. Thus, the State may decide to provide free and compulsory education to all children of the specified age through its own schools or through government aided schools or through unaided private schools. The question is whether such a law transgresses any constitutional limitation?
In this connection, the first and foremost principle we have to keep in mind is that what is enjoined by the directive principles (in this case Articles 41, 45 and 46) must be upheld as a
"reasonable restriction" under Articles 19(2) to 19(6). As far back as 1952, in State of Bihar
v. Kameshwar Singh (1952) SCR 889, this Court has illustrated how a directive principle may guide the Court in determining crucial questions on which the validity of an important enactment may be hinged. Thus, when the courts are required to decide whether the impugned law infringes a fundamental right, the courts need to ask the question whether the impugned law infringes a fundamental right within the limits justified by the directive principles or whether it goes beyond them. For example, the scope of the right of equality of opportunity in matters relating to employment (Article 16) to any office in the State appears more fully defined when read with the obligation of the State to promote with special care the economic and other interests of the weaker sections (Article 46). Similarly, our understanding of the right “to practice any profession or occupation” (Article 19(1)(g)) is clarified when we read along with that right the obligation of the State to see that the health of the workers and the tender age of the children are not abused (Article 39). Thus, we need to interpret the fundamental rights in the light of the directive principles. The above principles are very relevant in this case because the very content of Article 21A comes from reading of
Articles 41, 45 and 46 and, more particularly, from Article 45 (as it then stood before the
Constitution (Eighty sixth Amendment) Act, 2002).
It has been urged before us that Article 45, as it then stood, imposed obligation on the
State to provide for free and compulsory education for all children until they complete the age of 14 years and that the said obligation cannot be shifted or passed on to an unaided school, as defined in Section 2(n)(iv) of the 2009 Act. To answer the said contention, one needs to appreciate the scope of Articles 21, 21A, 19(1)(g) and Articles 41, 45 and 46 of the
Constitution. At the outset, it may be stated, that fundamental rights have two aspects they act as fetter on plenary legislative powers and, secondly, they provide conditions for fuller development of our people including their individual dignity. Right to live in Article 21 covers access to education. But unaffordability defeats that access. It defeats the State 's endeavour to provide free and compulsory education for all children of the specified age. To provide for free and compulsory education in Article 45 is not the same thing as to provide free and compulsory education. The word "for" in Article 45 is a preposition. The word "education" was read into Article 21 by the judgments of this Court. However, Article 21 merely declared
"education" to fall within the contours of right to live. To provide for right to access education,
Article 21A was enacted to give effect to Article 45 of the Constitution.
Under Article 21A, right is given to the State to provide by law "free and compulsory education". Article 21A contemplates making of a law by the State. Thus,
Article 21Acontemplates right to education flowing from the law to be made which is the
2009 Act, which is child centric and not institution centric. Thus, as stated,
Article 21A provides that the State shall provide free and compulsory education to all children of the specified age in such manner as the State may, by law, determine. The manner in which
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this obligation will be discharged by the State has been left to the State to determine by law.
The 2009 Act is thus enacted in terms of Article 21A. It has been enacted primarily to remove all barriers (including financial barriers) which impede access to education. One more aspect needs to be highlighted. It is not in dispute that education is a recognised head of "charity"
(see T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481). Therefore, even according to T.M.A. Pai, if an educational institution goes beyond "charity" into commercialization, it would not be entitled to protection of Article 19(1)(g). This is where the paradox comes in. If education is an activity which is charitable, could the unaided nonminority educational institution contend that the intake of 25% children belonging to weaker section and disadvantaged group only in class I as provided for in Section 12(1)(c) would constitute violation of Article 19(1)(g)? Would such a provision not be saved by the principle of reasonable restriction imposed in the interest of the general public in Article 19(6) of the
Constitution?
Coming to the principle of reasonableness, it may be stated, that though subject-wise,
Article 21A deals with access to education as against right to establish and administer educational institution in Article 19(1)(g), it is now not open to anyone to contend that the law relating to right to access education within Article 21A does not have to meet the requirement of Article 14 or Article 19 for its reasonableness. … Article 21 (right to life) remains the core of the Constitution around which Article 14, Article 19 and others revolve. In other words, all other fundamental rights in Part III would be dependent upon right to life in Article 21 as interpreted by this Court to include right to live with dignity, right to education, etc. At the end of the day, whether one adopts the pith and substance test or the nature and character of the legislation test or the effect test, one finds that all these tests have evolved as rules of interpretation only as a matter of reasonableness. They help us to correlate Article 21 with
Article 14, Article 19 and, so on.
Applying the above principle of reasonableness, though the right to access education falls as a subject matter under Article 21A and though to implement the said Article, Parliament has enacted the 2009 Act, one has to judge the validity of the said Act in the light of the principle of reasonableness in Article 19(6), particularly, when in T.M.A. Pai it has been held that right to establish and administer an educational institution falls under Article 19(1)(g) of the Constitution. Thus, the question which arises for determination is whether
Section 12(1)(c) of the 2009 Act is a reasonable restriction on the non-minority 's right to establish and administer an unaided educational institution under Article 19(6) Article 21 says that “no person shall be deprived of his life except according to the procedure established by law” whereas Article 19(1)(g) under the chapter “right to freedom” says that all citizens have the right to practice any profession or to carry on any occupation, trade or business which freedom is not absolute but which could be subjected to social control under Article 19(6) in the interest of general public.
By judicial decisions, right to education has been read into right to life in Article 21. A child who is denied right to access education is not only deprived of his right to live with dignity, he is also deprived of his right to freedom of speech and expression enshrined in
Article 19(1)(a). The 2009 Act seeks to remove all those barriers including financial and psychological barriers which a child belonging to the weaker section and disadvantaged group has to face while seeking admission. It is true that, as held in T.M.A. Pai as well as P.A.
Inamdar, the right to establish and administer an educational institution is a fundamental right, as long as the activity remains charitable under Article19(1)(g), however, in the said two decisions the correlation between Articles 21 and 21A, on the one hand, and Article 19(1)(g), on the other, was not under consideration. Further, the content of Article 21A flows from
Article 45 (as it then stood). The 2009 Act has been enacted to give effect to Article 21A. For
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the above reasons, since the Article 19(1)(g) right is not an absolute right as Article 30(1), the
2009 Act cannot be termed as unreasonable. To put an obligation on the unaided non-minority school to admit 25% children in class I under Section 12(1)(c) cannot be termed as an unreasonable restriction. Such a law cannot be said to transgress any constitutional limitation.
The object of the 2009 Act is to remove the barriers faced by a child who seeks admission to class I and not to restrict the freedom under Article 19(1)(g).
The next question that arises for determination is whether Section 12(1)(c) of the 2009
Act impedes the right of the non- minority to establish and administer an unaided educational institution? At the outset, it may be noted that Article 19(6) is a saving and enabling provision in the Constitution as it empowers the Parliament to make a law imposing reasonable restriction on the Article 19(1)(g) right to establish and administer an educational institution while Article 21A empowers the Parliament to enact a law as to the manner in which the State will discharge its obligation to provide for free and compulsory education. If the Parliament enacts the law, pursuant to Article 21A, enabling the State to access the network (including infrastructure) of schools including unaided non-minority schools would such a law be said to be unconstitutional, not saved under Article 19(6) Answer is in the negative. Firstly, it must be noted that the expansive provisions of the 2009 Act are intended not only to guarantee the right to free and compulsory education to children, but to set up an intrinsic regime of providing right to education to all children by providing the required infrastructure and compliance of norms and standards. Secondly, unlike other fundamental rights, the right to education places a burden not only on the State, but also on the parent/ guardian of every child
(Article 51A(k)). The Constitution directs both burdens to achieve one end: the compulsory education of children free from the barriers of cost, parental obstruction or State inaction.
Thus, Articles 21Aand 51A(k) balance the relative burdens on the parents and the State. Thus, the right to education envisages a reciprocal agreement between the State and the parents and it places an affirmative burden on all stakeholders in our civil society. Thirdly, right to establish an educational institution has now been recognized as a fundamental right within the meaning of Article 19(1)(g). This view is enforced by the opinion of this Court in T.M.A. Pai and P.A. Inamdar that all citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26 but that right is subject to the provisions of
Articles 19(6) and 26(a). The constitutional obligation of the State to provide for free and compulsory education to the specified category of children is co-extensive with the fundamental right guaranteed under Article19(1)(g) to establish an educational institution.
Lastly, the fundamental right to establish an educational institution cannot be confused with the right to ask for recognition or affiliation. The exercise of a fundamental right to establish and administer an educational institution can be controlled in a number of ways. Indeed, matters relating to the right to grant of recognition and/ or affiliation are covered within the realm of statutory right, which, however, will have to satisfy the test of reasonable restrictions
(see Article19(6)). Thus, from the scheme of Article 21A and the 2009 Act, it is clear that the primary obligation is of the State to provide for free and compulsory education to children between the age of 6 to 14 years and, particularly, to children who are likely to be prevented from pursuing and completing the elementary education due to inability to afford fees or charges. Correspondingly, every citizen has a right to establish and administer educational institution under Article 19(1)(g) so long as the activity remains charitable. Such an activity undertaken by the private institutions supplements the primary obligation of the State. Thus, the State can regulate by law the activities of the private institutions by imposing reasonable restrictions under Article 19(6). The 2009 Act not only encompasses the aspects of right of children to free and compulsory education but to carry out the provisions of the 2009 Act, it also deals with the matters pertaining to establishment of school (s) as also grant of recognition
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(see Section 18). Thus, after the commencement of the 2009 Act, the private management intending to establish the school has to make an application to the appropriate authority and till the certificate is granted by that authority, it cannot establish or run the school. The matters relevant for the grant of recognition are also provided for in Sections 19, 25 read with the
Schedule to the Act. Thus, after the commencement of the 2009 Act, by virtue of
Section 12(1)(c)read with Section 2(n)(iv), the State, while granting recognition to the private unaided non-minority school, may specify permissible percentage of the seats to be earmarked for children who may not be in a position to pay their fees or charges. In T.M.A. Pai, this Court vide para 53 has observed that the State while prescribing qualifications for admission in a private unaided institution may provide for condition of giving admission to small percentage of students belonging to weaker sections of the society by giving them freeships, if not granted by the government. Applying the said law, such a condition in Section 12(1)(c) imposed while granting recognition to the private unaided non-minority school cannot be termed as unreasonable. Such a condition would come within the principle of reasonableness in
Article 19(6). Indeed, by virtue of Section 12(2) read with Section 2(n)(iv), private unaided school would be entitled to be reimbursed with the expenditure incurred by it in providing free and compulsory education to children belonging to the above category to the extent of per child expenditure incurred by the State in a school specified in Section 2(n)(i) or the actual amount charged from the child, whichever is less. Such a restriction is in the interest of the general public. It is also a reasonable restriction. Such measures address two aspects, viz., upholding the fundamental right of the private management to establish an unaided educational institution of their choice and, at the same time, securing the interests of the children in the locality, in particular, those who may not be able to pursue education due to inability to pay fees or charges of the private unaided schools.
We also do not see any merit in the contention that Section 12(1)(c) violates Article 14.
As stated, Section 12(1)(c) inter alia provides for admission to class I, to the extent of 25% of the strength of the class, of the children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education to them till its completion. The emphasis is on "free and compulsory education". Earmarking of seats for children belonging to a specified category who face financial barrier in the matter of accessing education satisfies the test of classification in Article 14. Further, Section 12(1)(c) provides for level playing field in the matter of right to education to children who are prevented from accessing education because they do not have the means or their parents do not have the means to pay for their fees. As stated above, education is an activity in which we have several participants. There are number of stakeholders including those who want to establish and administer educational institutions as these supplement the primary obligation of the State to provide for free and compulsory education to the specified category of children. Hence,
Section 12(1)(c) also satisfies the test of reasonableness, apart from the test of classification in Article 14.
The last question which we have to answer under this head is whether
Section 12(1)(c) runs counter to the judgments of this Court in T.M.A. Pai and P.A. Inamdar or principles laid down therein? According to the petitioners, T.M.A. Pai defines various rights and has held vide para 50 that right to establish and administer broadly comprises the following: (i) right to admit students (ii) right to set up a reasonable fee structure etc. (the rest are not important for discussion under this Head). That, T.M.A. Pai lays down the essence and structure of rights in Article 19(1)(g) insofar as they relate to educational institutions in compliance with (a) the Charity Principle (b) the Autonomy Principle (c) the Voluntariness
Principle (d) Anti-nationalisation (e) Co-optation Principle. In support, reliance is placed by the Petitioners on number of paras from the above two judgments. At the outset, we may reiterate that Article 21A of the Constitution provides that the State shall provide free and
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compulsory education to all children of the specified age in such manner as the State may, by law, determine. Thus, the primary obligation to provide free and compulsory education to all children of the specified age is on the State. However, the manner in which this obligation will be discharged by the State has been left to the State to determine by law. The State may do so through its own schools or through aided schools or through private schools, so long as the law made in this regard does not transgress any other constitutional limitation. This is because Article 21A vests the power in the State to decide the manner in which it will provide free and compulsory education to the specified category of children. As stated, the 2009 Act has been enacted pursuant to Article 21A. In this case, we are concerned with the interplay of
Article 21, Article 21A, on the one hand, and the right to establish and administer educational institution under Article 19(1)(g) read with Article 19(6). That was not the issue in T.M.A. Pai nor in P.A. Inamdar.
In this case, we are concerned with the validity of Section 12(1)(c) of the 2009 Act. Hence, we are concerned with the validity of the law enacted pursuant to Article 21A placing restrictions on the right to establish and administer educational institutions (including schools) and not the validity of the Scheme evolved in Unni Krishnan v. State of Andhra
Pradesh (1993) 1 SCC 645. … It is true that the above two judgments have held that all citizens have a right to establish and administer educational institutions under Article 19(1)(g), however, the question as to whether the provisions of the 2009 Act constituted a restriction on that right and if so whether that restriction was a reasonable restriction under Article 19(6) was not in issue. Moreover, the controversy in T.M.A. Pai arose in the light of the scheme framed in Unni Krishnan and the judgment in P.A. Inamdar was almost a sequel to the directions in
Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697 in which the entire focus was Institution centric and not child centric and that too in the context of higher education and professional education where the level of merit and excellence have to be given a different weightage than the one we have to give in the case of Universal Elementary
Education for strengthening social fabric of democracy through provision of equal opportunities to all and for children of weaker section and disadvantaged group who seek admission not to higher education or professional courses but to Class I. In this connection, the relevant paras from T.M.A. Pai make the position clear. They are paras 37, 39, 40, 42, 45,
48, 49 and 50 (read together), 51, 53, 56, 58 - 61, 62, 67, 68, 70 etc., similarly, paras 26, 35,
104, 146 of P.A. Inamdar. We quote the relevant para in support of what we have stated above:
T.M.A. Pai
48. Private education is one of the most dynamic and fastest-growing segments of post-secondary education at the turn of the twenty-first century. A combination of unprecedented demand for access to higher education and the inability or unwillingness of the Government to provide the necessary support has brought private higher education to the forefront. Private institutions, with a long history in many countries, are expanding in scope and number, and are becoming increasingly important in parts of the world that relied almost entirely on the public sector.
50. The right to establish and administer broadly comprises the following rights:
(a) to admit students;
(b) to set up a reasonable fee structure;
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching); and
(e) to take action if there is dereliction of duty on the part of any employees.
58. For admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant
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who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate Regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions.
59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school-leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies.
60. Education is taught at different levels, from primary to professional. It is, therefore, obvious that government Regulations for all levels or types of educational institutions cannot be identical; so also, the extent of control or
Regulation could be greater vis-à-vis aided institutions.
61. In the case of unaided private schools, maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged. At the school level, it is not possible to grant admissions on the basis of merit. It is no secret that the examination results at all levels of unaided private schools, notwithstanding the stringent Regulations of the governmental authorities, are far superior to the results of the government-maintained schools.
There is no compulsion on students to attend private schools. The rush for admission is occasioned by the standards maintained in such schools, and recognition of the fact that State-run schools do not provide the same standards of education. The State says that it has no funds to establish institutions at the same level of excellence as private schools. But by curtailing the income of such private schools, it disables those schools from affording the best facilities because of a lack of funds. If this lowering of standards from excellence to a level of mediocrity is to be avoided, the State has to provide the difference which, therefore, brings us back in a vicious circle to the original problem viz. the lack of State funds. The solution would appear to lie in the States not using their scanty resources to prop up institutions that are able to otherwise maintain themselves out of the fees charged, but in improving the facilities and infrastructure of State-run schools and in subsidizing the fees payable by the students there. It is in the interest of the general public that more good quality schools are established; autonomy and non- Regulation of the school administration in the right of appointment, admission of the students and the fee to be charged will ensure that more such institutions are established. The fear that if a private school is allowed to charge fees commensurate with the fees affordable, the degrees would be "purchasable" is an unfounded one since the standards of education can be and are controllable through the Regulations relating to recognition, affiliation and common final examinations.
P.A. Inamdar
26. These matters have been directed to be placed for hearing before a Bench of seven Judges under orders of the Chief Justice of India pursuant to the order dated 15-7-2004 in P.A. Inamdar v. State of Maharashtra and order dated 29-72004 in Pushpagiri Medical Society v. State of Kerala. The aggrieved persons before us are again classifiable in one class, that is, unaided minority and nonminority institutions imparting professional education. The issues arising for decision before us are only three:
(i) the fixation of "quota" of admissions/students in respect of unaided professional institutions;
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(ii) the holding of examinations for admissions to such colleges, that is, who will hold the entrance tests; and
(iii) the fee structure.
104. Article 30(1) speaks of "educational institutions" generally and so does
Article 29(2). These articles do not draw any distinction between an educational institution dispensing theological education or professional or non-professional education. However, the terrain of thought as has developed through successive judicial pronouncements culminating in Pai Foundation is that looking at the concept of education, in the backdrop of the constitutional provisions, professional educational institutions constitute a class by themselves as distinguished from educational institutions imparting non-professional education. It is not necessary for us to go deep into this aspect of the issue posed before us inasmuch as Pai Foundation has clarified that merit and excellence assume special significance in the context of professional studies. Though merit and excellence are not anathema to non-professional education, yet at that level and due to the nature of education which is more general, the need for merit and excellence therein is not of the degree as is called for in the context of professional education.
146. Non-minority unaided institutions can also be subjected to similar restrictions which are found reasonable and in the interest of the student community. Professional education should be made accessible on the criterion of merit and on non- exploitative terms to all eligible students on a uniform basis.
Minorities or non-minorities, in exercise of their educational rights in the field of professional education have an obligation and a duty to maintain requisite standards of professional education by giving admissions based on merit and making education equally accessible to eligible students through a fair and transparent admission procedure and based on a reasonable fee structure.
P.A. Inamdar holds that right to establish and administer educational institution falls in
Article 19(1)(g). It further holds that seat-sharing, reservation of seats, fixing of quotas, fee fixation, cross-subsidization, etc. imposed by judge-made scheme in professional/ higher education is an unreasonable restriction applying the principles of Voluntariness, Autonomy,
Co-optation and Anti-nationalisation, and, lastly, it deals with inter-relationship of
Articles 19(1)(g), 29(2) and 30(1) in the context of the minority and non-minority 's right to establish and administer educational institutions. The point here is how does one read the above principles of Autonomy, Voluntariness, Co-optation and Anti-nationalisation of seats.
On reading T.M.A. Pai and P.A. Inamdar in proper perspective, it becomes clear that the said principles have been applied in the context of professional/ higher education where merit and excellence have to be given due weightage and which tests do not apply in cases where a child seeks admission to class I and when the impugned Section 12(1)(c) seeks to remove the financial obstacle. Thus, if one reads the 2009 Act including Section 12(1)(c) in its application to unaided non-minority school(s), the same is saved as reasonable restriction under
Article 19(6).
However, we want the Government to clarify the position on one aspect. There are boarding schools and orphanages in several parts of India. In those institutions, there are day scholars and boarders. The 2009 Act could only apply to day scholars. It cannot be extended to boarders. To put the matter beyond doubt, we recommend that appropriate guidelines be issued under Section 35 of the 2009 Act clarifying the above position.
Validity and applicability of the 2009 Act qua unaided minority schools
The inspiring preamble to our Constitution shows that one of the cherished objects of our
Constitution is to assure to all its citizens the liberty of thought, expression, belief, faith and worship. To implement and fortify these purposes, Part III has provided certain fundamental rights including Article 26 of the Constitution which guarantees the right of every religious
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denomination or a section thereof, to establish and maintain institutions for religious and charitable purposes; to manage its affairs in matters of religion; to acquire property and to administer it in accordance with law. Articles 29 and 30 confer certain educational and cultural rights as fundamental rights.
Article 29(1) confers on any section of the citizens a right to conserve its own language, script or culture by and through educational institutions and makes it obvious that a minority could conserve its language, script or culture and, therefore, the right to establish institutions of its choice is a necessary concomitant to the right to conserve its distinctive language, script or culture and that right is conferred on all minorities by Article 30(1). That right, however, is subject to the right conferred by Article 29(2).
Article 30(1) gives the minorities two rights: (a) to establish and (b) to administer educational institutions of their choice. The real import of Article29(2) and Article 30(1) is that they contemplate a minority institution with a sprinkle of outsiders admitted into it. By admitting a non-member into it the minority institution does not shed its character and cease to be a minority institution.
The key to Article 30(1) lies in the words "of their choice".
The right established by Article 30(1) is a fundamental right declared in terms absolute unlike the freedoms guaranteed by Article 19 which is subject to reasonable restrictions.
Article 30(1) is intended to be a real right for the protection of the minorities in the matter of setting up educational institutions of their own choice. However, Regulations may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition. However, such Regulation must satisfy the test of reasonableness and that such
Regulation should make the educational institution an effective vehicle of education for the minority community or for the persons who resort to it. Applying the above test in the case of
Rev. Sidhajbhai Sabhai v. State of Bombay (1963) SCR 837, this Court held the rule authorizing reservation of seats and the threat of withdrawal of recognition under the impugned rule to be violative of Article 30(1).
The above well-settled principles have to be seen in the context of the 2009 Act enacted to implement Article 21A of the Constitution. At the very outset, the question that arises for determination is what was the intention of the Parliament? Is the 2009 Act intended to apply to unaided minority schools? In answer to the above question, it is important to note that in the case of P.A. Inamdar, this Court held that there shall be no reservations in private unaided colleges and that in that regard there shall be no difference between the minority and nonminority institutions. However, by the Constitution (Ninety-third Amendment) Act, 2005,
Article 15 is amended. It is given Article 15(5). The result is that P.A. Inamdar has been overruled on two counts: (a) whereas this Court in P.A. Inamdar had stated that there shall be no reservation in private unaided colleges, the Amendment decreed that there shall be reservations; (b) whereas this Court in P.A. Inamdar had said that there shall be no difference between the unaided minority and non- minority institutions, the Amendment decreed that there shall be a difference. Article 15(5) is an enabling provision and it is for the respective
States either to enact a legislation or issue an executive instruction providing for reservation except in the case of minority educational institutions referred to in Article 30(1). The intention of the Parliament is that the minority educational institution referred to in
Article 30(1) is a separate category of institutions which needs protection of Article 30(1) and viewed in that light we are of the view that unaided minority school(s) needs special protection under Article30(1). Article 30(1) is not conditional as Article 19(1)(g). In a sense, it is absolute as the Constitution framers thought that it was the duty of the Government of the day to protect the minorities in the matter of preservation of culture, language and script via establishment
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of educational institutions for religious and charitable purposes (See: Article 26). Reservations of 25% in such unaided minority schools result in changing the character of the schools if right to establish and administer such schools flows from the right to conserve the language, script or culture, which right is conferred on such unaided minority schools. Thus, the 2009
Act including Section 12(1)(c) violates the right conferred on such unaided minority schools under Article 30(1). However, when we come to aided minority schools we have to keep in mind Article 29(2). As stated, Article 30(1) is subject to Article 29(2). The said Article confers right of admission upon every citizen into a State-aided educational institution.
Article 29(2) refers to an individual right. It is not a class right. It applies when an individual is denied admission into an educational institution maintained or aided by the State. The 2009
Act is enacted to remove barriers such as financial barriers which restrict his/her access to education. It is enacted pursuant to Article 21A. Applying the above tests, we hold that the
2009 Act is constitutionally valid qua aided minority schools.
Conclusion (according to majority)
Accordingly, we hold that the Right of Children to Free and Compulsory Education Act,
2009 is constitutionally valid and shall apply to the following:
(i) a school established, owned or controlled by the appropriate Government or a local authority; (ii) an aided school including aided minority school(s) receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;
(iii) a school belonging to specified category; and
(iv) an unaided non-minority school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority.
However, the said 2009 Act and in particular Sections 12(1)(c) and 18(3) infringes the fundamental freedom guaranteed to unaided minority schools under Article 30(1) and, consequently, applying the R.M.D. Chamarbaugwalla v. Union of India 1957 SCR 930 principle of severability, the said 2009 Act shall not apply to such schools.
This judgment will operate from today. In other words, this will apply from the academic year 2012-13. However, admissions given by unaided minority schools prior to the pronouncement of this judgment shall not be reopened.
Subject to what is stated above, the writ petitions are disposed of with no order as to costs.
JUSTICE RADHAKRISHNAN (for himself, DISSENTING)
… In Mohini Jain v. State of Karnataka (1992) 3 SCC 666, this Court held that the right to education is a fundamental right guaranteed under Article 21 of the Constitution and that dignity of individuals cannot be assured unless accompanied by right to education and that charging of capitation fee for admission to educational institutions would amount to denial of citizens ' right to education and is violative of Article 14 of the Constitution. The ratio laid down in Mohini Jain was questioned in Unni Krishnan v. State of A.P. (1993) 1 SCC 645 contending that if the judgment in Mohini Jain was given effect to, many of the private educational institutions would have to be closed down.
Mohini Jain was affirmed in Unni Krishnan to the extent of holding that the right to education flows from Article 21 of the Constitution and charging of capitation fee was illegal.
The Court partly overruled Mohini Jain and held that the right to free education is available only to children until they complete the age of 14 years and after that obligation of the State
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to provide education would be subject to the limits of its economic capacity and development.
Private unaided recognized/affiliated educational institutions running professional courses were held entitled to charge the fee higher than that charged by government institutions for similar courses but that such a fee should not exceed the maximum limit fixed by the State.
The Court also formulated a scheme and directed every authority to impose that scheme upon institutions seeking recognition/affiliation, even if they are unaided institutions. Unni
Krishnan introduced the concept of "free seats" and "payment seats" and ordered that private unaided educational institutions should not add any further conditions and were held bound by the scheme. Unni Krishnan also recognized the right to education as a fundamental right guaranteed under Article 21 of the Constitution and held that the right is available to children until they complete the age of 14 years.
The Department of Education, Ministry of Human Resources Development, Government of India after the judgment in Unni Krishnan made a proposal to amend the Constitution to make the right to education a fundamental right for children up to the age of 14 years and also a fundamental duty of citizens of India so as to achieve the goal of universal elementary education. The Department also drafted a Bill (Constitution (Eighty-third Amendment) Bill,
1997) so as to insert a new Article 21A in the Constitution which read as follows:
21A. Right to education.
21A (1) The State shall provide free and compulsory education to all citizens of the age of six to fourteen years.
Clause (2) The Right to Free and Compulsory Education referred to in Clause
(1) shall be enforced in such manner as the State may, by law, determine.
Clause (3) The State shall not make any law, for free and compulsory education under Clause (2), in relation to the educational institutions not maintained by the
State or not receiving aid out of State funds.
The draft Bill was presented before the Chairman, Rajya Sabha on 28.07.1997, who referred the Bill to a Committee for examination and report. The Committee called for suggestions/views from individuals, organisations, institutions etc. and ultimately submitted its report on 4.11.1997. The Committee in its Report … on Clause (3) of the proposed
Article 21, the… stated as follows:
Clause (3) of the proposed Article 21 provides that the State shall not make any law for free and compulsory education under clause (2), in relation to the educational institutions not maintained by the State or not receiving aid out of
State funds. However, strong apprehensions were voiced about Clause (3) of the proposed new Article 21A. Many of the people in the written memoranda and also educational experts in the oral evidence have expressed displeasure over keeping the private educational institutions outside the purview of the fundamental right to be given to the children. The Secretary stated that the
Supreme Court in the Unni Krishnan judgment said that wherever the State is not providing any aid to any institution, such an institution need not provide free education. The Department took into account the Supreme Court judgment in the
Unni Krishnan case which laid down that no private institution, can be compelled to provide free services. Therefore, they provided in the Constitutional amendment that this concept of free education need not be extended to schools or institutions which are not aided by the Government, the Secretary added. He, however, stated that there was no intention, to exclude them from the overall responsibility to provide education.
The Committee specifically referred to the judgment in Unni Krishnan in paragraph 15.14 of the Report. Reference was also made to the dissenting note of one of the members. Relevant portion of the report is extracted below:
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15.14. Clause (3) of the proposed Article 21(A) prohibits the State from making any law for free and compulsory education in relation to educational institutions not maintained by the State or not receiving aid out of State funds. This issue was discussed by the Members of the Committee at length. The members were in agreement that even though the so called private institutions do not receive any financial aid, the children studying in those institutions should not be deprived of their fundamental right. As regards the interpretation as to whether the private institutions should provide free education or not, the Committee is aware of the Supreme Court judgment given in the Unni Krishnan case. This judgment provides the rule for application and interpretation. In view of the judgment, it is not necessary to make a clause in the Constitution. It would be appropriate to leave the interpretation to the courts instead of making a specific provision in black and white. Some members, however, felt that the private institutions which do not get any financial aid, provide quality education.
Therefore, it would be inappropriate to bring such institutions under the purview of free education. Those members, accordingly, felt that Clause (3) should not be deleted.
15.15. The Committee, however, after a thorough discussion feels that this provision need not be there. The Committee recommends that Clause (3) of the proposed Article 21(A) may be deleted. Smt. Hedwig Michael Rego, M.P. a
Member of the Committee gave a Minute of Dissent. It is appended to the report.
15.16. The Committee recommends that the Bill be passed subject to the recommendations made in the preceding paragraphs.
MINUTES of DISSENT
I vehemently oppose the State wanting to introduce free and compulsory education in private, unaided schools.
Clause 21A (3) must be inserted as I do not wish the State to make laws regarding free and compulsory education in relation to educational institutions not maintained by the State or not receiving aid out of State funds.
A Committee of State Education Ministers have already considered the issue in view of the Unni Krishnan case, and found it not feasible to bring unaided private educational institutions within the purview of the Bill.
Hence, I state once again that the proposed clause “21A(3)” must be inserted in the Bill.
Yours sincerely,
Sd/(SMT. HEDWIG MICHAEL REGO)
(Emphasis supplied)
Report referred to above was adopted by the Parliamentary Standing Committee on
Human Resource Development and submitted the same to the Rajya Sabha on 24.11.1997 and also laid on the Table of the Lok Sabha on 24.11.1997. The Lok Sabha was however dissolved soon thereafter and elections were declared and that Bill was not further pursued.
The Chairman of the Law Commission who authored Unni Krishnan judgment took up the issue suo moto. Following the ratio in Unni Krishnan, the Law Commission submitted its
165th Report to the Ministry of Law, Justice and Company Affairs, Union of India vide letter dated 19.11.1998. Law Commission in that letter stated as follows: "Law Commission had taken up the aforesaid subject suo moto having regard to the Directive Principle of the
Constitution of India as well as the decision of the Supreme Court of India."
Referring to the Constitution (Eighty-third Amendment) Bill, 1997, Law Commission in its report in paragraph 6.1.4 stated as under:
6.1.4 (page 165.35): The Department of Education may perhaps be right in saying that as of today the private educational institutions which are not in receipt
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of any grant or aid from the State, cannot be placed under an obligation to impart free education to all the students admitted into their institutions. However, applying the ratio of Unni Krishnan case, it is perfectly legitimate for the State or the affiliating Board, as the case may be, to require the institution to admit and impart free education to fifty per cent of the students as a condition for affiliation or for permitting their students to appear for the Government/Board examination.
To start with, the percentage can be prescribed as twenty. Accordingly, twenty per cent students could be selected by the concerned institution in consultation with the local authorities and the parent-teacher association. This proposal would enable the unaided institutions to join the national endeavour to provide education to the children of India and to that extent will also help reduce the financial burden upon the State.
The Law Commission which had initiated the proceedings suo moto in the light of Unni
Krishnan suggested deletion of Clause (3) from Article 21A stating as follows:
So far as Clause (3) is concerned, the Law Commission states that it should be totally recast on the light of the basic premise of the decision in Unni Kirshnan which has been referred to hereinabove. It would neither be advisable nor desirable that the unaided educational institutions are kept outside the proposed
Article altogether while the sole primary obligation to provide education is upon the State, the educational institutions, whether aided or unaided supplement this effort. Para 6.6.2 of the report reads as under:
6.6.2. The unaided institutions should be made aware that recognition, affiliation or permission to send their children to appear for the Government/Board examination also casts a corresponding social obligation upon them towards the society. The recognition/affiliation/permission aforesaid is meant to enable them to supplement the effort of the State and not to enable them to make money.
Since they exist and function effectively because of such recognition/affiliation/permission granted by public authorities, they must and are bound to serve the public interest. For this reason, the unaided educational institutions must be made to impart free education to 50% of the students admitted to their institutions. This principle has already been applied to medical, engineering and other colleges imparting professional education and there is no reason why the schools imparting primary/elementary education should not be placed under the same obligation. Clause (3) of proposed Article 21A may accordingly be recast to give effect to the above concept and obligation.
… Law Commission was giving effect to the ratio of Unni Krishnan and made suggestions to bring in Article 21A mainly on the basis of the scheme framed in Unni Krishnan providing
"free seats" in private educational institutions.
The Law Commission report, report of the Parliamentary Standing Committee, judgment in Unni Krishnan etc. were the basis on which the Constitution (Ninety-third Amendment)
Bill, 2001 was prepared and presented. Statement of objects and reasons of the Bill given below would indicate that fact:
2. With a view to making right to education free and compulsory education a fundamental right, the Constitution (Eighty-third Amendment) Bill, 1997 was introduced in the Parliament to insert a new article, namely,
Article 21A conferring on all children in the age group of 6 to14 years the right to free and compulsory education. The said Bill was scrutinized by the
Parliamentary Standing Committee on Human Resource Development and the subject was also dealt with in its 165 th Report by the Law Commission of India.
3. After taking into consideration the report of the Law Commission of India and the recommendations of the Standing Committee of Parliament, the proposed amendments in Part III, Part IV and Part IVA of the Constitution are being made which are as follows:
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(a) to provide for free and compulsory education to children in the age group of
6 to 14 years and for this purpose, a legislation would be introduced in parliament after the Constitution (Ninety-third Amendment) Bill, 2001 is enacted;
(b) to provide in article 45 of the Constitution that the State shall endeavour to provide early childhood care and education to children below the age of six years; and
(c) to amend article 51A of the Constitution with a view to providing that it shall be the obligation of the parents to provide opportunities for education to their children. 4. The Bill seeks to achieve the above objects.
The above Bill was passed and received the assent of the President on 12.12.2002 and was published in the Gazette of India on 13.12.2002 and the following provisions were inserted in the Constitution; by the Constitution (Eighty-sixth Amendment) Act, 2002.
Part III Fundamental Rights
… Unni Krishnan had created mayhem and raised thorny issues on which the Law
Commission had built up its edifice, suo moto. The Law Commission had acknowledged the fact that but for the ratio in Unni Kirshnan the unaided private educational institutions would have no obligation to impart free and compulsory education to the children admitted in their institutions. Law Commission was also of the view that the ratio in Unni Krishnan had legitimized the State or the affiliating Board to require unaided educational institutions to provide free education, as a condition for affiliation or for permitting the students to appear for the Government/Board examination.
Unni Krishnan was questioned contending that it had imposed unreasonable restrictions under Article 19(6) of the Constitution on the administration of the private educational institutions and that the rights of minority communities guaranteed under Article 29 and
Article 30 were eroded. Unni Krishnan scheme which insisted that private unaided educational institutions should provide for "free seats" as a condition for recognition or affiliation was also questioned contending that the same would amount to nationalisation of seats.
… T.M.A. Pai examined the correctness of the ratio laid down in Unni Krishnan and also the validity of the scheme. The correctness of the rigid percentage of reservation laid down in
St. Stephen 's College v. University of Delhi (1992) 1 SCC 558 in the case of minority aided educational institutions and the meaning and contents of Articles 30 and 29(2) were also examined. T.M.A. Pai acknowledged the right of all citizens to practice any profession, trade or business under Article 19(1)(g) and Article 26 and held those rights would be subject to the provisions that were placed under Article19(6) and 26(a) and the rights of minority to establish and administer educational institutions under Article 30 was also upheld.
Unni Krishnan scheme was held unconstitutional, but it was ordered that there should be no capitation fee or profiteering and reasonable surplus to meet the cost of expansion and augmentation of facilities would not mean profiteering. Further, it was also ordered that the expression “education” in all the Articles of the Constitution would mean and include education at all levels, from primary education level up to post graduate level and the expression “educational institutions” would mean institutions that impart education as understood in the Constitution.
T.M.A. Pai has also recognised that the expression “occupation” in Article 19(1)(g) is an activity of a person undertaken as a means of livelihood or a mission in life and hence
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charitable in nature and that establishing and running an educational institution is an occupation, and in that process a reasonable revenue surplus can be generated for the purpose of development of education and expansion of the institutions. The right to establish and administer educational institutions, according to T.M.A. Pai, comprises right to admit students, set up a reasonable fee structure, constitute a governing body, appoint staff, teaching and nonteaching and to take disciplinary action. So far as private unaided educational institutions are concerned, the Court held that maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fee to be charged etc. and that the authority granting recognition or affiliation can certainly lay down conditions for the grant of recognition or affiliation but those conditions must pertain broadly to academic and educational matters and welfare of students and teachers. The Court held that the right to establish an educational institution can be regulated but such regulatory measures must be in general to ensure proper academic standards, atmosphere and infrastructure and prevention of maladministration. The necessity of starting more quality private unaided educational institutions in the interest of general public was also emphasised by the Court by ensuring autonomy and non- Regulation in the school administration, admission of students and fee to be charged. T.M.A. Pai rejected the view that if a private school is allowed to charge fee commensurate with the fee affordable, the degrees would be purchasable as unfounded since the standards of education can be and are controllable through recognition, affiliation and common final examination. Casting burden on other students to pay for the education of others was also disapproved by T.M.A.
Pai holding that there should be no cross-subsidy.
T.M.A. Pai has also dealt with the case of private aided professional institutions, minority and non-minority, and also other aided institutions and stated that once aid is granted to a private professional educational institution, the government or the state agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution. T.M.A. Pai also acknowledged that there are large number of educational institutions, like schools and non-professional colleges, which cannot operate without the support of aid from the state and the Government in such cases, would be entitled to make Regulations relating to the terms and conditions of employment of the teaching and non-teaching staff. In other words, autonomy in private aided institutions would be less than that of unaided institutions.
T.M.A. Pai also acknowledged the rights of the religious and linguistic minorities to establish and administer educational institutions of their choice under Article 30(1) of the
Constitution and held that right is not absolute as to prevent the government from making any
Regulation whatsoever. The Court further held that as in the case of a majority run institution, the moment a minority institution obtains a grant or aid, Article 28 of the Constitution comes into play.
T.M.A. Pai further held that the ratio laid down in St. Stephen is not correct and held that even if it is possible to fill up all the seats with students of the minority group, the moment the institution is granted aid, the institution will have to admit students of the non-minority group to a reasonable extent, whereby the character of the institution is not annihilated, and at the same time, the rights of the citizen engrafted under Article 29(2) are not subverted. The judgment in T.M.A. Pai was pronounced on 31.10.2002, 25.11.2002 and Article 21A, new
Article 45 and Article 51A(k) were inserted in the Constitution on 12.12.2002, but the basis for the introduction of Article 21A and the deletion of original Clause (3) from Article 21A, was due to the judgment of Unni Krishnan. Parliament, it may be noted, was presumed to be aware of the judgment in T.M.A. Pai, and hence, no obligation was cast on unaided private educational institutions but only on the State, while inserting Article 21A.
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The judgment in T.M.A. Pai, after the introduction of the above mentioned articles, was interpreted by various Courts, State Governments, educational institutions in different perspectives leading to the enactment of various statutes and Regulations as well, contrary to each other. A Bench of five Judges was, therefore, constituted to clarify certain doubts generated out of the judgment in Pai Foundation and its application. Rights of unaided minority and non-minority institutions and restrictions sought to be imposed by the State upon them were the main issues before the Court and not with regard to the rights and obligations of private aided institutions run by minorities and non- minorities. The five Judges ' Bench rendered its judgment on 14.8.2003 titled Islamic Academy of Education and another v. State of Karnataka (2003) 6 SCC 697. Unfortunately, Islamic Academy created more problems and confusion than solutions and, in order to steer clear from that predicament, a seven Judges
Bench was constituted …in P.A. Inamdar v. State of Maharashtra (2005) 6 SCC 537 and the
Court cleared all confusion and doubts, particularly insofar as unaided minority and nonminority educational institutions are concerned.
P.A.
Inamdar specifically examined the inter-relationship between Articles 19(1)(g), 29(2) and 30(1) of the Constitution and held that the right to establish an educational institution (which evidently includes schools as well) for charity or a profit, being an occupation, is protected by Article 19(1)(g) with additional protection to minority communities under Article 30(1). P.A. Inamdar, however, reiterated the fact that, once aided, the autonomy conferred by protection of Article 30(1) is diluted, as the provisions of
Articles 29(2) will be attracted and certain conditions in the nature of Regulations can legitimately accompany the State aid. Reasonable restrictions pointed out by P.A. Inamdar may be indicated on the following subjects: (i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business; (ii) the carrying on by the State, or by a corporation owned or controlled by the State of any trade, business, industry or service whether to the exclusion, complete or partial of citizens or otherwise. Referring to the judgments in Kerala Education Bill, In Re 1959 SCR 995 and St. Stephen, the Court took the view that once an educational institution is granted aid or aspires for recognition, the State may grant aid or recognition accompanied by certain restrictions or conditions which must be followed as essential to the grant of such aid or recognition. P.A.
Inamdar, as I have already indicated, was mainly concerned with the question whether the
State can appropriate the quota of unaided educational institutions both minority and nonminority. Explaining T.M.A. Pai, the Court in P.A. Inamdar held as follows:
A minority educational institution may choose not to take any aid from the State and may also not seek any recognition or affiliation. It may be imparting such instructions and may have students learning such knowledge that do not stand in need of any recognition. Such institutions would be those where instructions are imparted for the sake of instructions and learning is only for the sake of learning and acquiring knowledge. Obviously, such institutions would fall in the category of those who would exercise their right under the protection and privilege conferred by Article 30(1) "to their hearts ' content" unhampered by any restrictions excepting those which are in national interest based on considerations such as public safety, national security and national integrity or are aimed at preventing exploitation of students or the teaching community. Such institutions cannot indulge in any activity which is violative of any law of the land. They are free to admit all students of their own minority community if they so choose to do.
… As per our understanding, neither in the judgment of T.M.A. Pai nor in the Constitution
Bench decision in Kerala Education Bill which was approved by T.M.A. Pai is there anything
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which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalisation of seats which has been specifically disapproved in T.M.A. Pai. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of the minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the
State to make admissions available on the basis of reservation policy to less meritorious candidates. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non- exploitative and based on merit.
T.M.A. Pai, it was pointed out by P.A. Inamdar, merely permitted the unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat sharing with the State or adopting selection based on common entrance test of the State.
Further, it was also pointed that unaided educational institutions can frame their own policy to give free-ships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the state to cater to the educational needs of weaker and poorer sections of the society not out of compulsion, but on their own volition. P.A. Inamdar reiterated that nowhere in T.M.A. Pai, either in the majority or in the minority opinion, have they found any justification for imposing seat sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota seats or management seats. Further, it was pointed that the fixation of percentage of quota is to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State.
… Comparing the judgments in P.A. Inamdar and T.M.A. Pai, what emerges is that so far as unaided educational institutions are concerned, whether they are established and administered by minority or non-minority communities, they have no legal obligation in the matter of seat sharing and up to the level of under-graduate education they enjoy total freedom.
State also cannot compel them to give up a share of the available seats to the candidates chosen by the State. Such an appropriation of seats, it was held, cannot be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution since they have unfettered fundamental right and total freedom to run those institutions subject to the law relating to taxation, sanitation, social welfare, economic legislation, public order and morality.
Parliament, in its wisdom, brought in a new legislation Right to Education Act to provide free and compulsory education to children of the age 6 to 14 years, to discharge the constitutional obligation of the State, as envisaged under Article 21A. Provisions have also been made in the Act to cast the burden on the non-state actors as well, to achieve the goal of
Universal Elementary Education. …
… Right to education, so far as children of the age 6 to 14 years are concerned, has been elevated to the status of fundamental right under Article 21A and a corresponding obligation has been cast on the State, but through Sections 12(1)(b) and 12(1)(c) of the Act the constitutional obligation of the State is sought to be passed on to private educational institutions on the principle of social inclusiveness. Right to Education has now been declared as a fundamental right of children of the age 6 to 14 years and other comparable rights or even
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superior rights like the Right to food, healthcare, nutrition, drinking water, employment, housing, medical care may also get the status of fundamental rights, which may be on the anvil. Right guaranteed to children under Article 21A is a socio-economic right and the Act was enacted to fulfil that right. Let us now examine how these rights have been recognized and given effect to under our Constitution and in other countries.
Rights traditionally have been divided into civil rights, political rights and socio-economic rights; the former rights are often called the first generation rights and the latter, the second generation rights. First generation rights have also been described as negative rights because they impose a duty and restraint on the state and generally no positive duties flow from them with some exceptions. Over lapping of both the rights are not uncommon. It is puerile to think that the former rights can be realised in isolation of the latter or that one overrides the others.
Socio-economic rights generally serve as a vehicle for facilitating the values of equality, social justice and democracy and the state is a key player in securing that goal. The preamble of the Indian Constitution, fundamental rights in Part III and the Directive Principles of State
Policy in Part IV are often called and described as "conscience of the Constitution" and they reflect our civil, political and socio- economic rights which we have to protect for a just and humane society.
Supreme Court through various judicial pronouncements has made considerable headway in the realization of socio-economic rights and made them justiciable despite the fact that many of those rights still remain as Directive Principles of State Policy. Civil, political and socio-economic rights find their expression in several international conventions like U.N.
Convention on Economic, Social and Cultural Rights 1966 (ICESCR), International Covenant on Civil and Political Rights 1966 (ICCPR), Universal Declaration of Human Rights 1948
(UDHR), United Nations Convention on Rights of Child 1989 (UNCRC) etc. Reference to some of the socio-economic rights incorporated in the Directive Principles of the State Policy in this connection is useful. Article 47 provides for duty of the State to improve public health.
Principles enshrined in Articles 47 and 48 are not pious declarations but for guidance and governance of the State policy in view of Article 37 and it is the duty of the State to apply them in various fact situations.
… The Constitutional Court of South Africa rendered several path-breaking judgments in relation to socio- economic rights. Soobramoney v. Minister of Health (KwaZulu-Natal) 1998
(1) SA 765 (CC) was a case concerned with the right of emergency health services. Court held that the State owes no duty to provide the claimant, a diabetic sufferer, with kidney dialysis on a plea of socio- economic right. Petitioner was denied dialysis by a local hospital on the basis of a prioritization policy based on limited resources. The Court emphasised that the responsibility of fixing the health care budget and deciding priorities lay with political organization and medical authorities, and that the court would be slow to interfere with such decisions if they were rational and "taken in good faith".
In Government of the Republic of South Africa. v. Grootboom 2001 (1) SA 46 (CC) was a case where the applicants living under appalling conditions in an informal settlement, had moved into private land from which they were forcibly evicted. Camping on a nearby sports field, they applied for an order requiring the government to provide them with basic shelter.
The Constitutional Court did not recognize a directly enforceable claim to housing on the part of the litigants, but ruled that the State is obliged to implement a reasonable policy for those who are destitute. The Court, however, limited its role to that of policing the policy making process rather than recognizing an enforceable individual right to shelter, or defining a minimum core of the right to be given absolute priority.
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Another notable case of socio-economic right dealt with by the South African Court is
Minister of Health v. Treatment Action Campaign 2002 (5) SA 721 (CC). The issue in that case was whether the state is obliged under the right of access to health care (Sections 27(1) and (2) of 1996 Constitution) to provide the anti-retroviral drug Nevirapine to HIV-positive pregnant women and their new born infants. Referring the policy framed by the State, the
Court held that the State is obliged to provide treatment to the patients included in the pilot policy. The decision was the closest to acknowledging the individual 's enforceable right.
… South African Constitution, unlike many other constitutions of the world, has included socio-economic rights, health services, food, water, social security and education in the
Constitution to enable it to serve as an instrument of principled social transformation enabling affirmative action and horizontal application of rights. To most of the social rights, the State 's responsibility is limited to take reasonable legislative and other measures within its available resources to achieve the progressive realisation of those rights (Sections 26(2), and 27(2)).
Few exceptions, however, give rise to directly enforceable claims, namely, right not to be evicted (Section 26(3)); not to be refused emergency medical treatment (Section 27(3)); the rights of prisoners to adequate nutrition and medical treatment (Section 35(2)) and rights of
Children (defined as those under 18 years) to basic nutrition, shelter, basic health care and social services.
… I have referred to the rulings of India and other countries to impress upon the fact that even in the jurisdictions where socio-economic rights have been given the status of constitutional rights, those rights are available only against State and not against private state actors, like the private schools, private hospitals etc., unless they get aid, grant or other concession from the State. Equally important principle is that in enjoyment of those socioeconomic rights, the beneficiaries should not make an inroad into the rights guaranteed to other citizens.
REMOVAL OF OBSTACLES TO ACHIEVE SOCIO-ECONOMIC RIGHTS
Socio-economic rights, I have already indicated, be realized only against the State and the
Statute enacted to protect socio-economic rights is always subject to the rights guaranteed to other non-state actors under Articles 19(1)(g), 30(1), 15(1), 16(1) etc. Parliament has faced many obstacles in fully realizing the socio-economic rights enshrined in Part IV of the
Constitution and the fundamental rights guaranteed to other citizens were often found to be the obstacles. Parliament has on several occasions imposed limitations on the enjoyment of the rights guaranteed under Part III of the Constitution, through constitutional amendments.
Parliament, in order to give effect to Article 39 and to remove the obstacle for realization of socio-economic rights, inserted Article 31A vide Constitution (First Amendment) Act, 1951 and later amended by the Constitution (Fourth Amendment) Act, 1955 and both the amendments were given retrospective effect from the commencement of the Constitution. The purpose of the first amendment was to eliminate all litigations challenging the validity of legislation for the abolition of proprietary and intermediary interests in land on the ground of contravention of the provisions of Articles 14, 19 and31. Several Tenancy and Land Reforms
Acts enacted by the State also stood protected under Article 31A from the challenge of violation of Articles 14 and19.
Article 31B also saves legislations coming under it from inconsistency with any of the fundamental rights included in Part III for example Article 14, Article 19(1)(g) etc.
Article 31B read with Ninth Schedule protects all laws even if they are violative of fundamental rights. However, in I.R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1, it was held that laws included in the Ninth Schedule can be challenged, if it violates the basic structure of the Constitution which refer to Articles 14, 19, 21 etc.
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Article 31C was inserted by the Constitution (Twenty-fifth Amendment) Act, 1971 which gave primacy to Article 39(b) and (c) over fundamental rights contained under
Article 14 and 19. Article 31C itself was amended by the Constitution (Forty-second
Amendment) Act, 1976 and brought in all the provisions in Part-IV, within Article 31C for protecting laws from challenge under article 14 and 19 of the Constitution.
I have referred to Articles 31A to 31C only to point out how the laws giving effect to the policy of the State towards securing all or any of the principles laid down in Part-IV stood saved from the challenge on the ground of violation or infraction of the fundamental rights contained in Articles 14 and 19. The object and purpose of those constitutional provisions is to remove the obstacles which stood in the way of enforcing socio-economic rights incorporated in Part-IV of the Constitution and also to secure certain rights, guaranteed under
Part III of the Constitution.
Rights guaranteed under Article 19(1)(g) can also be restricted or curtailed in the interest of general public imposing reasonable restrictions on the exercise of rights conferred under
Article 19(1)(g). Laws can be enacted so as to impose Regulations in the interest of public health, to prevent black marketing of essential commodities, fixing minimum wages and various social security legislations etc., which all intended to achieve socio-economic justice.
Interest of general public, it may be noted, is a comprehensive expression comprising several issues which affect public welfare, public convenience, public order, health, morality, safety etc. all intended to achieve socio-economic justice for the people.
The law is however well settled that the State cannot travel beyond the contours of Clauses
(2) to (6) of Article 19 of the Constitution in curbing the fundamental rights guaranteed by
Clause (1), since the Article guarantees an absolute and unconditional right, subject only to reasonable restrictions. The grounds specified in Clauses (2) to (6) are exhaustive and are to be strictly construed. The Court, it may be noted, is not concerned with the necessity of the impugned legislation or the wisdom of the policy underlying it, but only whether the restriction is in excess of the requirement, and whether the law has over-stepped the
Constitutional limitations. Right guaranteed under Article 19(1)(g), it may be noted, can be burdened by constitutional limitations like Sub-clauses (i) to (ii) to Clause (6).
Article 19(6)(i) enables the State to make law relating to professional or technical qualifications necessary for practicing any profession or to carry on any occupation, trade or business. Such laws can prevent unlicensed, uncertified medical practitioners from jeopardizing life and health of people. Sub Clause (ii) to Article 19(6) imposes no limits upon the power of the State to create a monopoly in its favour. State can also by law nationalize industries in the interest of general public. Clause (6)(ii) of Article 19 serves as an exception to Clause (1)(g) of Article 19 which enable the State to enact several legislations in nationalizing trades and industries. Reference may be made to Chapter-4 of the Motor
Vehicles Act, 1938, The Banking Companies (Acquisition and Transfer of Undertakings) Act,
1970, General Insurance Business (Nationalization) Act, 1972 and so on. Sub-clause 6(ii) of
Article 19exempts the State, on the conditions of reasonableness, by laying down that carrying out any trade, business, industry or services by the State Government would not be questionable on the ground that it is an infringement on the right guaranteed under
Article 19(1)(g).
I have referred to various provisions under sub- clauses (i) and (ii) of Article 19(6) to impress upon the fact that it is possible to amend the said Article so that socio- economic rights could be realized by carving out necessary constitutional limitations abrogating or abridging the right guaranteed under Article 19(1)(g).
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Constitutional amendments have also been made to Articles 15 and 16 so as to achieve socio-economic justice. Articles 15 and 16 give power to the State to make positive discrimination in favour of the disadvantaged and particularly, persons belonging to
Scheduled Castes and Scheduled Tribes. Socio-economic empowerment secures them dignity of person and equality of status, the object is to achieve socio-economic equality.
Faced with many obstacles to achieve the above objectives and the Directive Principles of the State Policy, Articles 15 and 16 of the Constitution had to be amended on several occasions so as to get over the obstacles in achieving the socio-economic justice. In State of
Madras v. Champakam Dorairajan (1951) SCR 525, this Court laid down the law that
Article 29(2) was not controlled by Article 46 of the Directive Principles of the State Policy and that the Constitution did not intend to protect the interest of the backward classes in the matter of admission to educational institutions. In order to set right the law and to achieve social justice, Clause (4) was added to Article 15 by the Constitutional (First Amendment)
Act, 1951 enabling the State to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled
Tribes. The object of Clause (4) was to bring Articles 15 and 29 in line with
Articles 16(4), 46 and 340 of the Constitution, so as to make it constitutional for the State to reserve seats for backward classes citizens, Scheduled Castes and Scheduled Tribes in the public educational institutions, as well as to make special provisions, as may be necessary, for the advancement, e.g. to provide housing accommodation for such classes. In other words,
Article 15(4) enables the State to do what would otherwise have been unconstitutional.
Article 15(4) has to be read as a proviso or an exception to Article 29(2) and if any provision is defined by the provisions of Article 15(4), its validity cannot be questioned on the ground that it violates Article 29(2). Under Article 15(4), the State is entitled to reserve a minimum number of seats for members of the backward classes, notwithstanding Article 29(2) and the obstacle created under Article 29(2) has been removed by inserting Article 15(4).
The Parliament noticed that the provisions of Article 15(4) and the policy of reservation could not be imposed by the State nor any quota or percentage of admission be carved out to be appropriated by the State in minority or non- minority unaided educational institution, since the law was clearly declared in T.M.A. Pai and P.A. Inamdar. It was noticed that the number of seats available in aided or State maintained institutions particularly in respect of professional educational institutions were limited in comparison to those in private unaided institutions. Article 46 states that the State shall promote, with special care, the educational and economic interests of the weaker sections of the people, and, in particular of the Scheduled
Castes and Scheduled Tribes, and shall protect them from social injustice. Access to education was also found to be an important factor and in order to ensure advancement of persons belonging to Scheduled Castes, Scheduled Tribes, socially and economically backward classes, it was proposed to introduce Clause (5) to Article 15 to promote educational advancement of socially and educationally backward classes of citizens i.e. OBCs, Scheduled
Castes and Scheduled Tribes and the weaker sections of the society by securing admission in unaided educational institutions and other minority educational institutions referred to in
Clause (1) of Article 30 of the Constitution.
The Parliament has, therefore, removed the obstacles created by the law as ruled by the
Court in T.M.A. Pai and P.A. Inamdar so as to carry out the obligation under the Directive
Principles of the State Policy laid down under Article 46. Later, the Parliament enacted the
Central Educational Institutions (Reservation and Admission) Act, 2006 (for short ‘the CEI
Act’), but the Act never intended to give effect to the mandate of the newly introduced Clause
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Constitutional validity of Clause (5) to Article 15 and the CEI Act came up for consideration before a Constitutional Bench of this Court in Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1. CEI Act was enacted by the Parliament under Article 15(5), for greater access to higher education providing for 27 per cent reservation for "Other Backward
Classes" to the Central Government controlled educational institutions, but not on privately managed educational institutions. Constitutional validity of Article 15(5) was challenged stating that it had violated the basic structure doctrine. The majority of the Judges in Ashok
Kumar Thakur declined to pronounce on the question whether the application of
Article 15(5) to private unaided institutions violated the basic structure of the Constitution, in my view, rightly because that issue did not arise for consideration in that case. Justice Dalveer
Bhandari, however, examined the validity of Article 15(5) with respect to private unaided institutions and held that an imposition of reservation of that sort would violate
Article 19(1)(g) and thus the basic structure doctrine. Article 19(1)(g), as such, it may be pointed out, is not a facet of the basic structure of the Constitution, and can be constitutionally limited in its operation, with due respect, Justice Bhandari has overlooked this vital fact.
T.M.A. Pai as well as P.A. Inamdar held that Article 19(1)(g) prevents the State from creating reservation quotas or policy in private unaided professional educational institutions and, as indicated earlier, it was to get over that obstacle that Clause (5) was inserted in Article 15. In
Ashok Kumar Thakur, the majority held that Clause (5) to Article 15 though, moderately abridges or alters the equality principle or the principles under Article 19(1)(g), insofar as it dealt with State maintained and aided institutions, it did not violate the basic structure of the
Constitution. I have referred to Articles 15(4) and 15(5) and Ashok Kumar Thakur to highlight the fact that the State in order to achieve socio-economic rights, can remove obstacles by limiting the fundamental rights through constitutional amendments.
Applicability of Article 15(5), with regard to private unaided non-minority professional institutions, came up for consideration in Medical Association. A two judges Bench of this
Court has examined the constitutional validity of Delhi Act 80 of 2007 and the notification dated 14.8.2008 issued by the Government of NCT, Delhi permitting the Army College of
Medical Sciences to allocate 100% seats to the wards of army personnel. The Court also examined the question whether Article 15(5) has violated the basic structure of the
Constitution. The Court proceeded on the basis that Army Medical College is a private nonminority, unaided professional institution. Facts indicate that the College was established on a land extending to approximately 25 acres, leased out by the Ministry of Defence,
Government of India for a period of 30 years extendable to 99 years. Ministry of Defence also offered various facilities like providing clinical training at Army Hospital, NCT, Delhi and also access to the general hospitality. The constitutional validity of Article 15(5) was upheld holding that Clause (5) of Article 15 did not violate the basic structure of the Constitution.
While reaching that conclusion, Court also examined the ratio in T.M.A. Pai as well as P.A.
Inamdar. Some of the findings recorded in Medical Association, on the ratio of T.M.A. Pai and P.A. Inamdar, in my view, cannot be sustained.
… Clause (5) of Article 15 is an enabling provision and inserted by the Constitution
(Ninety-third Amendment) Act, 2005 by use of powers of amendment in Article 368. The
Constitution (Ninety-third Amendment) Act, 2005 was in response to this Court 's explanation, in P.A. Inamdar, of the ratio in T.M.A. Pai, that imposition of reservations on non-minority unaided educational institutions, covered by Sub-clause (g) of Clause (1) of Article 19, to be unreasonable restrictions and not covered by Clause (6) of Article 19. The purpose of the amendment was to clarify or amend the Constitution in a manner that what was held to be unreasonable would now be reasonable by virtue of the constitutional status given to such measures. Page 440 of 610
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Referring to T.M.A. Pai, the Court also stated, having allowed the private sector into the field of education including higher education, it would be unreasonable, pursuant to Clause
(6) of Article 19, for the State to fix the fees and also impose reservations on private unaided educational institutions. Nevertheless, the Court opined that taking into consideration the width of the original powers under Clause (6) of Article 19, one would necessarily have to find the State would at least have the power to make amendments to resurrect some of those powers that it had possessed to control the access to higher education and achieve the goals of egalitarianism and social justice.
Article 15(5), it may be noted, gives no protection to weaker sections of the society, except members belonging to Scheduled Castes/Scheduled Tribes and members of Other Backward
Community.
… The constitutional validity of Article 16(4A) substituted by the Constitution (Eightyfifth Amendment) Act, 2001 came up for consideration before this Court in M. Nagaraj v.
Union of India (2006) 8 SCC 212. The validity of the Constitution (Seventy-seventh
Amendment) Act, 1995, the Constitution (Eighty-first Amendment) Act, 2000, the
Constitution (Eighty-second Amendment) Act, 2000 and the Constitution (Eighty-fifth
Amendment) Act, 2001 were also examined and held valid. This Court held that they do not infringe either the width of the Constitution amending power or alter the identity of the
Constitution or its basic structure. This Court held that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
I have referred extensively to the constitutional amendments effected to Articles 31A to
31C, Articles 15, 16 and 19 to show that whenever the Parliament wanted to remove obstacles so as to make affirmative action to achieve socio-economic justice constitutionally valid, the same has been done by carrying out necessary amendments in the Constitution, not through legislations, lest they may make an inroad into the fundamental rights guaranteed to the citizens. Rights guaranteed to the unaided non-minority and minority educational institutions under Article 19(1)(g) and Article 30(1) as explained in T.M.A. Pai Foundation and reiterated in P.A. Inamdar have now been limited, restricted and curtailed so as to impose positive obligation on them under Section 12(1)(c) of the Act and under Article 21A of the
Constitution, which is permissible only through constitutional amendment.
Constitutional principles laid down by T.M.A. Pai and P.A. Inamdar on
Articles 19(1)(g), 29(2) and 30(1) so far as unaided private educational institutions are concerned, whether minority or non-minority, cannot be overlooked and Article 21A,
Sections 12(1)(a), (b) and 12(1)(c) have to be tested in the light of those constitutional principles laid down by T.M.A. Pai and P.A. Inamdar because Unni Krishnan was the basis for the introduction of the proposed Article 21A and the deletion of Clause (3) from that
Article. Interpretation given by the courts on any provision of the Constitution gets inbuilt in the provisions interpreted, that is, Articles 19(1)(g), 29(2) and 30.
… Principles laid down by T.M.A. Pai and P.A. Inamdar while interpreting
Articles 19(1)(g), 29(2) and 30(1) in respect of unaided non-minority and minority educational institutions like schools up to the level of under-graduation are all weighty and binding constitutional principles which cannot be undone by statutory provisions like Section 12(1)(c), since those principles get in-built in Article 19(1)(g), Article 29(2) and Article 30(1) of the
Constitution. Further Parliament, while enacting Article 21A, never thought if fit to undo those principles and thought it fit to cast the burden on the State.
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PART III
OBLIGATIONS/RESPONSIBILITIES of NON-STATE ACTORS IN REALIAZATION of
CHILDREN 'S RIGHTS
… Provisions referred to above and other provisions of International Conventions indicate that the rights have been guaranteed to the children and those rights carry corresponding State obligations to respect, protect and fulfill the realization of children 's rights. The obligation to protect implies the horizontal right which casts an obligation on the State to see that it is not violated by non-state actors. For non-state actors to respect children 's rights cast a negative duty of non-violation to protect children 's rights and a positive duty on them to prevent the violation of children 's rights by others, and also to fulfill children 's rights and take measures for progressive improvement. In other words, in the spheres of non-state activity there shall be no violation of children 's rights.
Article 24 of the Indian Constitution states that no child below the age of 14 years shall be employed to work in any factory or be engaged in any hazardous employment. The
Factories Act, 1948 prohibits the employment of children below the age of 14 years in any factory. Mines Act, 1952 prohibits the employment of children below 14 years. Child Labour
(Prohibition and Regulation) Act, 1986 prohibits employment of children in certain employments. Children Act, 1960 provides for the care, protection, maintenance, welfare, training, education and rehabilitation of neglected or delinquent children. Juvenile Justice
(Care and Protection of Children) Act, 1986 (the Amendment Act 33 of 2006) provide for the care, protection, development and rehabilitation of neglected and delinquent juveniles. There are also other legislations enacted for the care and protection of children like Immoral
Trafficking Prevention Act, 1956, Prohibition of Child Marriage Act, 2006 and so on.
Legislations referred to above cast an obligation on non-state actors to respect and protect children 's rights and not to impair or destroy the rights guaranteed to children, but no positive obligation to make available those rights.
Primary responsibility for children 's rights, therefore, lies with the State and the State has to respect, protect and fulfill children 's rights and has also got a duty to regulate the private institutions that care for children, to protect children from violence or abuse, to protect children from economic exploitation, hazardous work and to ensure human treatment of children. Non-state actors exercising the state functions like establishing and running private educational institutions are also expected to respect and protect the rights of the child, but they are, not expected to surrender their rights constitutionally guaranteed.
Article 21A requires non-state actors to achieve the socio-economic rights of children in the sense that they shall not destroy or impair those rights and also owe a duty of care. The
State, however, cannot free itself from obligations under Article 21A by offloading or outsourcing its obligation to private State actors like unaided private educational institutions or to coerce them to act on the State 's dictate. Private educational institutions have to empower the children, through developing their skills, learning and other capacities, human dignity, self-esteem and self-confidence and to respect their constitutional rights.
… T.M.A. Pai and P.A. Inamdar also cast a negative obligation on the private educational institutions in the sense that there shall be no profiteering, no demand of excessive fee, no capitation fee, no maladministration, no cross subsidy etc. Further, this Court, while interdicting the State in appropriating seats in private educational institutions, restrained them from interfering with the autonomy of those institutions and adopted a balancing approach laying down the principle of voluntariness, co-operation, concession, and so on.
T.M.A. Pai and P.A. Inamdar have categorically held that any action of the State to regulate or control admissions in the unaided professional educational institutions, so as to
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compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions, would amount to nationalization of seats. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions, it was held, are acts constituting serious encroachment on the right and autonomy of private unaided professional educational institutions and such appropriation of seats cannot be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution, so far as the unaided minority institutions are concerned.
PART IV
Article 21A has used the expression "State shall provide" not "provide for" hence the constitutional obligation to provide education is on the State and not on non-state actors, the expression is clear and unambiguous and to interpret that expression to mean that constitutional obligation or responsibility is on private unaided educational institutions also, in my view, doing violence to the language of that expression. The obligation of the State to provide free and compulsory education is without any limitation. Parliament in its wisdom has not used the expression "provide for". If the preposition "for" has been used then the duty of the State would be only to provide education to those who require it but to provide for education or rather to see that it is provided. In this connection it is useful to refer to the judgment of the Supreme Court of Ireland in Crowley v. Ireland (1980) IR 102, where the expression "provide for" came up for interpretation. It was held that the use of the preposition
"for" keeps the State at one remove from the actual provision of education indicating that once the State has made an arrangement for the provision of education provided the buildings, pay teachers and set the curriculum - it is absolved of the responsibility when the education is not actually delivered. The absence of the preposition "for" in Article 21A makes the duty on the
State imperative. State has, therefore, to "provide" and "not provide for" through unaided private educational institutions.
Article 21A has used the expression "such manner" which means the manner in which the
State has to discharge its constitutional obligation and not offloading those obligations on unaided educational institutions. If the Constitution wanted that obligation to be shared by private unaided educational institutions the same would have been made explicit in Article
21A. Further, un-amended Article 45 has used the expression "state shall endeavor … for" and when Article 21A was inserted, the expression used therein was that the "State shall provide" and not "provide for" the duty, which was directory earlier made mandatory so far as State is concerned. Article 21 read with 21A, therefore, cast an obligation on the State and
State alone.
The State has necessarily to meet all expenses of education of children of the age 6 to 14 years, which is a constitutional obligation under Article 21A of the Constitution. Children have also got a constitutional right to get free and compulsory education, which right can be enforced against the State, since the obligation is on the State. Children who opt to join an unaided private educational institution cannot claim that right as against the unaided private educational institution, since they have no constitutional obligation to provide free and compulsory education under Article 21A of the Constitution. Needless to say that if children are voluntarily admitted in a private unaided educational institution, children can claim their right against the State, so also the institution. Article 51A(k) of the Constitution states that it shall be the duty of every citizen of India, who is a parent or guardian, to provide opportunities for education to his child. Parents have no constitutional obligation under Article 21A of the
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Constitution to provide free and compulsory education to their children, but only a constitutional duty, then one fails to see how that obligation can be offloaded to unaided private educational institutions against their wish, by law, when they have neither a duty under the Directive Principles of State policy nor a constitutional obligation under Article 21A, to those 25% children, especially when their parents have no constitutional obligation.
… I am, therefore, of the considered view that Article 21A, as such, does not cast any obligation on the private unaided educational institutions to provide free and compulsory education to children of the age 6 to 14 years. Article 21A casts constitutional obligation on the State to provide free and compulsory education to children of the age 6 to 14 years.
CONSTITUTIONALLY IMPERMISSIBLE PROCEDURE ADOPTED TO ACHIEVE
SOCIAL INCLUSIVENESS UNDER THE ACT
I may endorse the view that the purpose and object of the Act is laudable, that is, social inclusiveness in the field of elementary education but the means adopted to achieve that objective is faulty and constitutionally impermissible. Possibly, the object and purpose of the
Act could be achieved by limiting or curtailing the fundamental rights guaranteed to the unaided non-minority and minority educational institutions under Article 19(1)(g) and
Article30(1) or imposing a positive obligation on them under Article 21A, but this has not been done in the instant case. I have extensively dealt with the question - how the socio economic rights could be achieved by making suitable constitutional amendments in Part II of this judgment.
Sections 12(1)(b) and 12(1)(c) are vehicles through which the concept of social inclusiveness is sought to be introduced into the private schools both aided and unaided including minority institutions, so as to achieve the object of free and compulsory education of the satisfactory quality to the disadvantaged groups and weaker sections of the society. The purpose, it is pointed out, is to move towards composite classrooms with children from diverse backgrounds, rather than homogenous and exclusive schools and it was felt that heterogeneity in classrooms leads to greater creativity.
… Section 12(1)(c) read with Section 2(n)(iv) of the Act never envisages any distinction between unaided minority schools and non-minority schools. Constitution Benches of this
Court have categorically held that so far as appropriation of quota by the State and enforcement of reservation policy is concerned, there is not much difference between unaided minority and non-minority educational institutions … Further, it was also held that both unaided minority and non-minority educational institutions enjoy "total freedom" and can claim "unfettered fundamental rights" in the matter of appropriation of quota by the State and enforcement of reservation policy. This Court also held that imposition of quota or enforcing reservation policy are acts constituting serious encroachment on the right and autonomy of such institutions both minority (religious and linguistic) and non-minority and cannot be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. Therefore, no distinction or difference can be drawn between unaided minority schools and unaided nonminority schools with regard to appropriation of quota by the State or its reservation policy under Section 12(1)(c) of the Act.
I am of the view, going by the ratio laid down by T.M.A. Pai and P.A. Inamdar, to compel the unaided non-minority and minority private educational institutions, to admit 25% of the students on the fee structure determined by the State, is nothing but an invasion as well as appropriation of the rights guaranteed to them under Article 19(1)(g) and Article 30(1) of the
Constitution. Legislature cannot under the guise of interest of general public "arbitrarily cast
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burden or responsibility on private citizens running a private school, totally unaided".
Section 12(1)(c) was enacted not only to offload or outsource the constitutional obligation of the State to the private unaided educational institutions, but also to burden them with duties which they do not constitutionally owe to children included in Section 2(d) or (e) of the Act or to their parents.
… Private unaided educational institutions are established with lot of capital investment, maybe with loan and borrowings. To maintain high standard of education, well qualified and experienced teachers have to be appointed, at times with hefty salary. Well-equipped library, laboratory etc. have also to be set up. In other words considerable money by way of capital investment and overhead expenses would go into for establishing and maintaining a good quality unaided educational institution. Section 12(1)(c), in my view, would amount to appropriation of one 's labour and makes an inroad into the autonomy of the institution.
Unaided educational institutions, over a period of time, might have established their own reputation and goodwill, a quantifiable asset. Nobody can be allowed to rob that without their permission, not even the State. Section 12(1)(c) is not a restriction which falls under
Article 19(6)but cast a burden on private unaided educational institutions to admit and teach children at the state dictate, on a fee structure determined by the State which, in my view, would abridge and destroy the freedom guaranteed to them under Article 19(1)(g) of the
Constitution.
Parliament can enact a social legislation to give effect to the Directive Principles of the
State Policy, but so far as the present case is concerned, neither the Directive Principles of the
State Policy nor Article 21A cast any duty or obligation on the unaided private educational institutions to provide free and compulsory education to children of the age of 6 to 14.
Section 12(1)(c) has, therefore, no foundation either on the Directive Principles of the State
Policy or Article 21A of the Constitution, so as to rope in unaided educational institutions.
Directive Principles of the State Policy as well as Article 21A cast the constitutional obligation on the State and State alone. State, cannot offload or outsource that Constitutional obligation to the private unaided educational institutions and the same can be done only by a constitutional provision and not by an ordinary legislation.
… Section 12(1)(c) seeks to achieve what cannot be achieved directly especially after the interpretation placed by T.M.A. Pai and P.A. Inamdar on Article 19(1)(g) and Article 30(1) of the Constitution. … Section 12(1)(c), in my view, can be given effect to, only on the basis of principles of voluntariness and consensus laid down in T.M.A. Pai and P.A. Inamdar or else, it may violate the rights guaranteed to unaided minority and non-minority institutions. …
Section 12(1)(c), if upheld would resurrect Unni Krishnan scheme which was nullified by
T.M.A. Pai and P.A. Inamdar.
… I am, therefore, of the view that so far as unaided educational institutions both minority and non-minority are concerned the obligation cast under Section 12(1)(c) is only directory and the said provision is accordingly read down holding that it is open to the private unaided educational institutions, both minority and non-minority, at their volition to admit children who belong to the weaker sections and disadvantaged group in the neighbourhood in their educational institutions as well as in pre-schools.
… Section 12(1)(b) deals with the schools receiving aid or grants to meet whole or part of its expenses from the appropriate government or local authority. Those schools are bound to provide free and compulsory elementary education to such proportion of children subject to a minimum of 25% depending upon its annual recurring aid or grants so received. …
Applying the principle laid down in T.M.A. Pai, P.A. Inamdar, St. Stephen and in Kerala
Education Bill, I am of the view that Clause 12(1)(b) directing the aided educational
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institutions minority and non-minority to provide admission to the children of the age group of 6 to 14 years would not affect the autonomy or the rights guaranteed under
Article 19(1)(g) or Article 30(1) of the Constitution of India. I, therefore, reject the challenge against the validity of Section 12(1)(b) and hold that the provision is constitutionally valid.
PART V
Private unaided educational institutions, apart from challenging Section 12(1)(c), have also raised various objections with regard to other provisions of the Act. … I am of the view that not only Section12(1)(c), but rest of the provisions in the Act are only directory so far as those institutions are concerned, but they are bound by the declaration of law by T.M.A. Pai and P.A. Inamdar, like there shall be no profiteering, no maladministration, no demand for capitation fee and so on and they have to follow the general laws of the land like taxation, public safety, sanitation, morality, social welfare etc.
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UNIT 10 – RELIGIOUS FREEDOM (ARTICLES 25, 26, 27 & 28)
DOCTRINE OF ESSENTIAL PRACTICES
COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS V. SWAMIAR OF SHIRUR
AIR 1954 SC 282
Decided On: March 16, 1954
BENCH – CHIEF JUSTICE M. C. MAHAJAN, JUSTICES B. K. MUKHERJEA, S. R. DAS, VIVIAN
BOSE, GHULAM HASAN. N. H. BHAGWATI & T.L.V. IYER
JUSTICE MUKHERJEA (for the Court)
This appeal is directed against a judgment of a Division Bench of the Madras High Court, dated the 13th of December, 1951, by which the learned Judges allowed a petition, presented by the respondent under article 226 of the Constitution, and directed a writ of prohibition to issue in his favour prohibiting the appellant from proceeding with the settlement of a scheme in connection with a Math, known as the Shirur Math, of which the petitioner happens to be the head or superior. It may be stated at the outset that the petition was filed at a time when the Madras Hindu Religious Endowments Act (Act II of 1927), was in force and the writ was prayed for against the Hindu Religious Endowment Board constituted under that Act, which was the predecessor in authority of the present appellant and had initiated proceedings for settlement of a scheme against the petitioner under section 61 of the said Act.
The petition was directed to be heard along with two other petitions of a similar nature relating to the temple at Chidambaram in the district of South Arcot and questions were raised in all of them regarding the validity of Madras Act II of 1927, hereinafter referred to as the
Earlier Act. While the petitions were still pending, the Madras Hindu Religious and Charitable
Endowments Act, 1951 (hereinafter called the ‘New Act’), was passed by the Madras
Legislature and came into force on the 27th of August, 1951. In view of the Earlier Act being replaced by the new one, leave was given to all the petitioners to amend their petitions and challenge the validity of the New Act as well. Under section 103 of the New Act, notifications, orders and acts under the Earlier Act are to be treated as notifications, orders and acts issued, made or done by the appropriate authority under the corresponding provisions of the New Act, and in accordance with this provision, the Commissioner, Hindu Religious Endowments,
Madras, who takes the place of the President, Hindu Religious Endowments Board under the
Earlier Act, was added as a party to the proceedings.
So far as the present appeal is concerned, the material facts may be shortly narrated as follows: The Math, known as Shirur Math, of which the petitioner is the superior or
Mathadhipati, is one of the eight Maths situated at Udipi in the district of South Kanara and they are reputed to have been founded by Shri Madhwacharya, the well-known exponent of dualistic theism in the Hindu Religion. Besides these eight maths, each one of which is presided over by a Sanyasi or Swami, there exists another ancient religious institution at Udipi, known as Shri Krishna Devara Math, also established by Madhwacharya which is supposed to contain an image of God Krishna originally made by Arjun and miraculously obtained from a vessel wrecked at the coast of Tulava. There is no Mathadhipati in the Shri Krishna Math and its affairs are managed by the superiors of the other eight Maths by turns and the custom is that the Swami of each of these eight Math presides over the Shri Krishna Math in turn for a period of two years in every sixteen years. The appointed time of change in the headship of the Shri Krishna Math is the occasion of a great festival, known as Pariyayam, when a vast concourse of devotees gather at Udipi from all parts of Southern India, and an ancient usage
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imposes a duty upon the Mathadhipati to feed every Brahmin that comes to the place at that time. The petitioner was installed as Mathadhipati in the year 1919, when he was still a minor, and he assumed management after coming of age some time in 1926. At that time the Math was heavily in debt. Between 1926 and 1930 the Swami succeeded in clearing off a large portion of the debt. In 1931, however, came the turn of his taking over management of the
Shri Krishna Math and he had to incur debts to meet the heavy expenditure attendant on the
Pariyayam ceremonies. The financial position improved to some extent during the years that followed, but troubles again arose in 1946, which was the year of the second Pariyayam of the
Swami. Owing to scarcity and the high price of commodities at that time, the Swami had to borrow money to meet the expenditure and the debts mounted up to nearly a lakh of rupees.
The Hindu Religious Endowment Board, functioning under the Earlier Act of 1927, intervened at this stage and in exercise of its powers under section 61-A of the Act called upon the Swami to appoint a competent manager to manage the affairs of the institution. The petitioner 's case is that the action of the Board was instigated by one Lakshminarayana Rao, a lawyer of Udipi, who wanted to have control over the affairs of the Math. It appears that in pursuance of the direction of the Board, one Sripath Achar was appointed an agent and a
Power of Attorney was executed in favour on the 24th of December, 1948.
The agent, it is alleged by the petitioner, wanted to have his own way in all the affairs of the Math and paid no regard whatsoever to the wishes of the Mahant. He did not even submit accounts to the Mahant and deliberately flouted his authority. In this state of affairs the Swami, on the 26th of September, 1950, served a notice upon the agent terminating his agency and calling upon him to hand over to the Mathadhipati all account papers and vouchers relating to the institution together with the cash in hand. Far from complying with this demand, the agent, who was supported by the aforesaid Lakshminarayana Rao, questioned the authority of the
Swami to cancel his agency and threatened that he would refer the matter for action to the
Board. On the 4th of October, 1950, the petitioner filed a suit against the agent in the SubCourt of South Kanara for recovery of the account books and other articles belonging to the
Math, for rendering an account of the management and also for an injunction restraining the said agent from interfering with the affairs of the Math under colour of the authority conferred by the Power of Attorney which the plaintiff had canceled. The said Sripath Achar anticipating this suit filed an application to the Board on the 3rd of October, 1950, complaining against the cancellation of the Power of Attorney and his management of the Math. The Board on the 4th
October, 1950, issued a notice to the Swami proposing to inquire into the matter on the 24th of October following at 2 p.m. at Madras and requesting the Swami either to appear in person or by a pleader. To this the Swami sent a reply on 21st October, 1950, stating that the subjectmatter of the very enquiry was before the court in the original suit filed by him and as the matter was sub judice, the enquiry should be put off. A copy of the plaint filed in that suit was also sent along with the reply. The Board, it appears, dropped that enquiry, but without waiting for the result of the suit, initiated proceedings suo moto under section 62 of the Earlier Act and issued a notice upon the Swami on the 6th of November, 1950, stating that it had reason to believe that the endowments of the said Math were being mismanaged and that a scheme should be framed for the administration of its affairs. The notice was served by officer on the
Swami and the 8th of December, 1950, was fixed as the date of enquiry. On that date at the request of the counsel for the Swami, it was adjourned to the 21st of December, following.
On the 8th of December, 1950, an application was filed on behalf of the Swami praying to the Board to issue a direction to the agent to hand over the account papers and other documents, without which it was not possible for him to file his objections. As the lawyer appearing for the Swami was unwell, the matter was again adjourned till the 10th of January,
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1951. The Swami was not ready with his objections even on that date as his lawyer had not recovered from his illness and a telegram was sent to the Board on the previous day requesting the latter to grant a further adjournment. The Board did not accede to this request and as no explanation was filed by the Swami, the enquiry was closed and orders reserved upon it. On the 13th of January, 1951, the Swami, it appears, sent a written explanation to the Board, which the latter admittedly received on the 15th. On the 24th of January, 1951, the Swami received a notice from the Board stating inter alia that the Board was satisfied that in the interests of proper administration of the Math and its endowments, the settlement of a scheme was necessary. A draft scheme was sent along with the notice and if the petitioner had any objections to the same, he was required to send in his objections on or before the 11th of
February, 1951, as the final order regarding the scheme would be made on the 15th of February
1951. On the 12th of February, 1951, the petitioner filed the petition, out of which this appeal arises, in the High Court of Madras, praying for a writ of prohibition to prohibit the Board from taking further steps in the matter of settling a scheme for the administration of the Math.
It was alleged inter alia that the Board was actuated by bias against the petitioner and the action taken by it with regard to the settling of a scheme was not a bona fide act at all. The main contention, however, was that having regard to the fundamental rights guaranteed under the Constitution in matters of religion and religious institutions belonging to particular religious denominations, the law regulating the framing of a scheme interfering with the management of the Math and its affairs by the Mathadhipati conflicted with the provisions of articles 19(1)(f) and 26 of the Constitution and was hence void under article 13. It was alleged further that the provisions of the Act were discriminatory in their character and offended against article 15 of the Constitution. As has been stated already, after the New Act came into force, the petitioner was allowed to amend his petition and the attack was now directed against the constitutional validity of the New Act which replaced the earlier legislation.
The learned Judges, who heard the petition, went into the matter with elaborate fullness, both on the constitutional questions involved in it as well as on its merits. On the merits, it was held that in the circumstances of the case the action of the Board was a perverse exercise of its jurisdiction and that it should not be allowed to proceed in regard to the settlement of the scheme. On the constitutional issues raised in the case, the learned Judges pronounced quite a number of sections of the New Act to be ultra vires the Constitution by reason of their being in conflict with the fundamental rights of the petitioner guaranteed under articles
19(1)(f), 25, 26, and 27 of the Constitution. In the result, the rule nisi issued on the petition was made absolute and the Commissioner, Hindu Religious Endowments, Madras, was prohibited from proceeding further with the framing of a scheme in regard to the petitioner 's
Math. The Commissioner has now come up on appeal before us on the strength of a certificate granted by the High Court under article 132(1) of the Constitution.
The learned Advocate-General for Madras, who appeared in support of the appeal, confined his arguments exclusively to the constitutional points involved in this case. Although he had put in an application to urge grounds other than the constitutional grounds, that application was not pressed and he did not challenge the findings of fact upon which the High
Court based its decision on the merits of the petition. The position, therefore, is that the order of the High Court issuing the writ of prohibition against the appellant must stand irrespective of the decision which we might arrive at on the constitutional points raised before us.
It is not disputed that a State Legislature is competent to enact laws on the subject of religious and charitable endowments, which is covered by entry 28 of List III in Schedule VII of the Constitution. No question of legislative incompetency on the part of the Madras
Legislature to enact the legislation in question has been raised before us with the exception of the provision relating to payment of annual contribution contained in section 76 of the
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impugned Act. The argument that has been advanced is, that the contribution is in reality a tax and not a fee and consequently the State Legislature had no authority to enact a provision of this character. We will deal with this point separately later on. All the other points canvassed before us relate to the constitutional validity or otherwise of the several provisions of the Act which have been held to be invalid by the High Court of Madras on grounds of their being in conflict with the fundamental rights guaranteed under articles 19(1)(f), 25, 26 and 27 of the
Constitution. In order to appreciate the contentions that have been advanced on these heads by the learned counsel on both sides, it may be convenient to refer briefly to the scheme and the salient provisions of the Act.
The object of the legislation, as indicated in the preamble, is to amend and consolidate the law relating to the administration and governance of Hindu religious and charitable institutions and endowments in the State of Madras. As compared with the Earlier Act, its scope is wider and it can be made applicable to purely charitable endowments by proper notification under section 3 of the Act. The Earlier Act provided for supervision of Hindu religious endowments through a statutory body known as the Madras Hindu Religious
Endowments Board. The New Act has abolished this Board and the administration of religious and charitable institutions has been vested practically in a department of the Government, at the head of which is the Commissioner. The powers of the Commissioner and of the other authorities under him have been enumerated in Chapter II of the Act. Under the Commissioner are the Deputy Commissioners, Assistant Commissioners and Area Committees. The
Commissioner, with the approval of the Government, has to divide the State into certain areas and each area is placed in charge of a Deputy Commissioner, to whom the powers of the
Commissioners can be delegated. The State has also to be divided into a number of divisions and an Assistant Commissioner is to be placed in charge of each division. Below the Assistant
Commissioner, there will be an Area Committee in charge of all the temples situated within a division or part of a division. Under section 18, the Commissioner is empowered to examine the records of any Deputy Commissioner, Assistant Commissioner, or Area Committee, or of any trustee not being the trustee of a Math, in respect of any proceeding under the Act, to satisfy himself as to the regularity, correctness, or propriety of any decision or order. Chapter
III contains the general provisions relating to all religious institutions. Under section 20, the administration of religious endowments is placed under the general superintendence and control of the Commissioner and he is empowered to pass any orders which may be deemed necessary to ensure that such endowments are properly administered and their income is duly appropriated for the purposes for which they were founded or exist. Section 21 gives the
Commissioner, the Deputy and Assistant Commissioners and such other officers as may be authorised in this behalf, the power to enter the premises of any religious institution or any place of worship for the purpose of exercising or any power conferred, or discharging any duty imposed, by or under the Act. The only restriction is that the officer exerting the power must be a Hindu. Section 23 makes it obligatory on the trustee of a religious institution to obey all lawful orders issued under the provisions of this Act by the Government, the
Commissioner, the Deputy Commissioner, the Area Committee or the Assistant
Commissioner. Section 24 lays down that in the administration of the affairs of the institution, a trustee should use as much care as a man of ordinary prudence would use in the management of his own affairs. Section 25 deals with the preparation of registers of all religious institutions and section 26 provides for the annual verification of such registers. Section 27 imposes a duty on the trustee to furnish to the Commissioner such accounts, returns, reports and other information as the Commissioner may require. Under section 28, power is given to the
Commissioner or any other office authorized by him to inspect all movable and immovable properties appertaining to a religious institution. Section 29 forbids alienation of all immovable properties belonging to the trust, except leases for a term not exceeding five years,
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without the sanction of the Commissioner. Section 30 lays down that although a trustee may incur expenditure for making arrangements for securing the health and comfort of pilgrims, worshipers and other people, when there is a surplus left after making adequate provision for purpose specified in section 79(2), he shall be guided in such matters by all general or special instructions which he may receive from the Commissioner or the Area Committee. Section 31 deals with surplus funds which the trustee may apply wholly or in part with the permission, in writing, of the Deputy Commissioner for any of the purpose specified in section 59(1).
Chapter IV deals specifically with Maths. Section 52 enumerates the grounds on which a suit would lie to remove a trustee. Section 54 relates to what is called "dittam" or scale of expenditure. The trustee has got to submit to the Commissioner proposals for fixing the
"dittam" and the amounts to be allotted to the various objects connected with the institution.
The proposals are to be published and after receiving suggestions, if any, from persons interested in the institution, they would be scrutinised by the Commissioner. If the
Commissioner thinks that a modification is necessary, he shall submit the case to the
Government and the orders of the Government would be final. Section 55 empowers the trustee to spend at his discretion and for purposes connected with the Math the "Pathakanikas" or gifts made to him personally, but he is required to keep regular accounts of the receipts and expenditure of such personal gifts. Under section 56, the Commissioner is empowered to call upon the trustee to appoint a manager for the administration of the secular affairs of the institution and in default of such appointment, the Commissioner may make the appointment himself. Under section 58, a Deputy Commissioner is competent to frame a scheme for any religious institutions if he has reason to believe that in the interests of the proper administration of the trust any such scheme is necessary. Sub-section (3) of this section provides that a scheme settled for a Math may contain inter alia a provision for appointment of a paid executive office professing the Hindu religion, whose salary shall be paid out of the funds of the institution. Section 59 makes provision for application of the "by pass" doctrine when the specific objects of the trust fail. Chapter VI of the Act, which comprises sections 63 to 69, deals with the notification of religious institutions. A religious institution may be notified in accordance with the provisions laid down in this chapter. Such notification remains in force for five years and the effect of it is to take over the administration and vest it in an executive officer appointed by the Commissioner. Chapter VII deals with budgets, accounts and audit and Chapter VIII relates to finance. Section 76 of Chapter VIII makes it compulsory for all religious institutions to pay annually to the Government a contribution not exceeding 5 per cent. of their income on account of the services rendered to them by the Government and their officers functioning under this Act. Chapter IX is not material for our purpose, and Chapter X deals with provisions of a miscellaneous nature. Section 89 in Chapter X prescribes the penalty for refusal by a trustee to comply with the provisions of the Act. Section 92 lays down that nothing contained in the Act shall be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination under clauses (a), (d) and
(c) of article 26 of the Constitution. Section 99 vests a revisional jurisdiction in the
Government to call for and examine the records of the Commissioner and other subordinate authorities to satisfy themselves as to the regularity and propriety of any proceeding taken or any order or decision made by then, in brief, are the provisions of the Act material for our present purpose.
The learned Judges of the High Court have taken the view that the respondent as
Mathadhipati has certain well defined rights in the institution and its endowments which could be regarded as rights to property within the meaning of article 19(1)(f) of the Constitution.
The provisions of the Act to the extent that they take away or unduly restrict the power to exercise these rights are not reasonable restrictions within the meaning of article 19(5) and must consequently be held invalid. The High Court has held in the second place that the
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respondent, as the head and representative of a religious institution, has a right guaranteed to him under article 25 of the Constitution to practice and propagate freely the religion of which he and his followers profess to be adherents. This right, in the opinion of the High Court, has been affected by some of the provisions of the Act. The High Court has held further that the
Math in question is really an institution belonging to Sivalli Brahmins, who are a section of the followers of Madhwacharya and hence constitutes a religious denomination within the meaning of article 26 of the Constitution. This religious denomination has a fundamental right under article 26 to manage its own affairs in matters of religious through the Mathadhipati who is their spiritual head and superior, and those provisions of the Act, which substantially take away the rights of the Mathadhipati in this respect, amount to violation of the fundamental right guaranteed under article 26. Lastly, the High Court has held that the provision for compulsory contribution made in section 76 of the Act comes within the mischief of article
27 of the Constitution. This last point raises a wide issue and we propose to discuss it separately later on. So far as the other three points are concerned, we will have to examine first of all the general contentions that have been raised by the learned Attorney-General, who appeared for the Union of India as an intervener in this and other connected case, and the questions are raised are, whether these articles of the Constitution are at all available to the respondent in the present case and whether they give him any protection regarding the rights and privileges, of the infraction of which he complains.
… So far as article 25 of the Constitution is concerned, the point raised is, whether this article which, it is said, is intended to protect religious freedom only so far as individuals are concerned, can be invoked in favour of an institution or organisation? With regard to article
26, the contention is that a Math does not come within the description of a religious denomination as provided for in the article and even if it does, what cannot be interfered with is its right to manage its own affairs in matters of religion only and nothing else. It is said, that the word "religion", as used in this article, should be taken in its strict etymological sense as distinguished from any kind of secular activity which may be connected in some way with religion but does not form an essential part of it. Reference is made in this connection to clause
(2)(a) of article 25 and clause (d) of article 26…
… [A]rticle 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others.
A question is raised as to whether the word "person" here means individuals only or includes corporate bodies as well. The question, in our opinion, is not at all relevant for our present purpose. A Mathadhipati is certainly not a corporate body; he is the head of a spiritual fraternity and by virtue of his office has to perform the duties of a religious teacher. It is his duty to practice and propagate the religious tenants, of which he is an adherent and if any provision of law prevents him from propagating his doctrines, that would certainly affect the religious freedom which is guaranteed to every person under article 25. Institutions as such cannot practice or propagate religion; it can be done only by individual persons and whether these persons propagate their personal views or the tenants for which the institution stands is really immaterial for purposes of article 25. It is the propagation of belief that is protected, no matter whether the propagation takes place in a church or monastery, or in a temple or parlor meeting. As regards article 26, the first question is, what is the precise meaning or connotation of the expression "religious denomination" and whether a Math could come within this expression. The word "denomination" has been defined in the Oxford Dictionary to mean "a collection of individuals classed together under same name: a religious sect or body having a
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common faith and organisation and designated by a distinctive name." It is well know that the practice of setting up Maths as centers of theological teaching was stated by Shri
Sankaracharya and was followed by various teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the
Hindu religion that we find in India at the present day. Each one of such sects or sub-sects can certainly be called a religious denomination, as it is designated by a distinctive name, - in many cases it is the name of the founder, - and has a common faith and common spiritual organization. The followers of Ramanuja, who are known by the name of Shri Vaishnabas, undoubtedly constitute a religious denomination; and so do the followers of Madhwacharya and other religious teachers. It is a fact well established by tradition that the eight Udipi Maths were founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teacher. The High Court has found that the Math in question is in charge of the Sivalli Brahmins who constitute a section of the followers of Madhwacharya.
As article 26 contemplates not merely a religious denomination but also a section thereof, the
Math or the spiritual fraternity represented by it can legitimately come within the purview of this article.
The other thing that remains to be considered by it regard to article 26 is, what is the scope of clause (b) of the article which speaks of management "of its own affairs in matters of religion ?" The language undoubtedly suggests that there could be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply. The question is, where is the line to be drawn between what are matters of religion and what are not?
It will be seen that besides the right to manage its own affairs in matters of religion, which is given by clause (b), the next two clauses of article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law.
The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of the article applies. What then are matters of religion?
The word "religion" has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition. In an American case (Vide Davis v. Benson, 133 U.S. 333 at 342.), it has been said
"that the term 'religion ' has reference to one 's views of his relation to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His will. It is often confounded with cults of form or worship of a particular sect, but is distinguishable from the latter."
We do not think that the above definition can be regarded as either precise or adequate.
Articles 25 and 26 of our Constitution are based for the most part upon article 44(2) of the
Constitution of Eire and we have great doubt whether a definition of "religion" as given above could have been in the minds of our Constitution-makers when they framed the Constitution.
Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being, but it would not be correct to say that religion is nothing else but a doctrine of belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes
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of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.
The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a relation and this is made clear by the use of the expression "practice of religion" in article 25. Latham C.J. of the High Court of Australian while dealing with the provision of section 116 of the Australian Constitution which inter alia forbids the Commonwealth to prohibit the "free exercise of any religion" made the following weighty observations (Vide Adelaide Company v. Commonwealth 67 C.L.R. 116, 127):
"It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil Government should not interfere with religious opinions, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of section 116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion."
These observations apply fully to the protection of religion as guaranteed by the Indian
Constitution. Restrictions by the State upon free exercise of religion are permitted both under articles 25 and 26 on grounds of public order, morality and health. Clause (2)(a) of article 25 reserves the right of the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice and there is a further right given to the State by sub-clause (b) under which the State can legislate for social welfare and reform even though by so doing it might interfere with religious practices. The learned
Attorney-General lays stress upon clause (2)(a) of the article and his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation.
The contention formulated in such broad terms cannot, we think, be supported. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of article
26(b). What article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices.
We may refer in this connection to a few American and Australian cases, all of which arose out of the activities of persons connected with the religious association known as “Jehova 's
Witnesses." This association of persons loosely organised throughout Australia, U.S.A. and other countries regard the literal interpretation of the Bible as fundamental to proper religious beliefs. This belief in supreme authority of the Bible colours many of their political ideas.
They refuse to take oath of allegiance to the king or other constituted human authority and even to show respect to the national flag, and they decry all wars between nations and all kinds of war activities. In 1941 a company of "Jehova 's Witnesses" incorporated in Australia commenced proclaiming and teaching matters which were prejudicial to war activities and the
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defence of the Commonwealth and steps were taken against them under the National Security
Regulations of the State. The legality of the action of the Government was questioned by means of a writ petition before the High Court and the High Court held that the action of the
Government was justified and that section 116, which guaranteed freedom of religion under the Australian Constitution, was not in any way infringed by the National Security Regulations
(Vide Adelaide Company v. Commonwealth 67 C.L.R. 116.). These were undoubtedly political activities though arising out of religious belief entertained by a particular community.
Such cases, as Chief Justice Latham pointed out, the provision for protection of religion was not an absolute protection to be interpreted and applied independently of other provisions of the Constitution. These privileges must be reconciled with the right of the State to employ the sovereign power to ensure peace, security and orderly living without which constitutional guarantee of civil liberty would be a mockery.
The courts of America were at one time greatly agitated over the question of legality of a
State regulation which required the pupils in public schools on pain of compulsion to participate in daily ceremony of saluting the national flag, while reciting in unison, a pledge of allegiance to it in a certain set formula. The question arose in Minersville School District,
Board of Education v. Gobitis (310 U.S. 586.). In that case two small children, Lillian and
William Gobitis, were expelled from the public school of Minersville, Pennsylvania, for refusing to salute the national flag as part of the daily exercise. The Gobitis family were affiliated with "Jehova 's Witnesses" and had been brought up conscientiously to believe that such a gesture of respect for the flag was forbidden by the scripture. The point for decision by the Supreme Court was whether the requirement of participation in such a ceremony exacted from a child, who refused upon sincere religious ground, infringed the liberty of religion guaranteed by the First and the Fourteenth Amendments? The court held by a majority that it did not and that it was within the province of the legislature and the school authorities to adopt appropriate means to evoke and foster a sentiment of national unity amongst the children in public schools. The Supreme Court, however, changed their views on this identical point in the later case of West Virginia State Board of Education v. Barnette (319 U.S. 624). There it was held overruling the earlier decision referred to above that the action of a State in making it compulsory for children in public schools to salute the flag and pledge allegiance constituted a violation of the First and the Fourteenth Amendments. This difference in judicial opinion brings out forcibly the difficult task which a court has to perform in cases of this type where the freedom or religious convictions genuinely entertained by men come into conflict with the proper political attitude which is expected from citizens in matters of unity and solidarity of the State organization.
As regards commercial activities, which are prompted by religious beliefs, we can cite the case of Murdock v. Pennsylvania (319 U.S. 105). Here also the petitioners were "Jehova 's
Witnesses" and they went about from door to door in the city of Jeannette distributing literature and soliciting people to purchase certain religious books and pamphlets, all published by the Watch Tower Bible and Tract Society. A municipal ordinance required religious colporteurs to pay a licence tax as a condition to the pursuit of their activities. The petitioners were convicted and fined for violation of the ordinance. It was held that the ordinance in question was invalid under the Federal Constitution as constituting a denial of freedom of speech, press and religion; and it was held further that upon the facts of the case it could not be said that Jehova 's Witnesses" were engaged in a commercial rather than in a religious venture. Here again, it may be pointed out that a contrary view was taken only a few years before in the case of Jones v. Opelika (316 U.S. 584), and it was held that a city ordinance, which required that licence be procured and taxes paid for the business of selling books and pamphlets on the streets from house to house, was applicable to a member of a
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religious organisation who was engaged in selling the printed propaganda pamphlets without having complied with the provisions of the ordinance.
It is to be noted that both in the American as well as in the Australian Constitutions the right to freedom of religion has been declared in unrestricted terms without any limitation whatsoever. Limitations, therefore, have been introduced by courts of law in these countries on grounds of morality, order and social protection. An adjustment of the competing demands of the interests of Government and constitutional liberties is always a delicate and a difficult task and that is why we find difference of judicial opinion to such an extent in cases decided by the American courts where questions of religious freedom were involved. Our
Constitution-makers, however, have embodied the limitations which have been evolved by judicial pronouncements in America or Australia in the Constitution itself and the language of articles 25 and 26 is sufficiently clear to enable us to determine without the aid of foreign authorities as to what matters come within the purview of religion and what do not. As we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the
Constitution itself has laid down. Under article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. Of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the injunction of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies. It should be noticed, however, that under article 26(d), it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of right guaranteed under clause (d) of article 26.
Having thus disposed of the general contentions that were raised in this appeal, we will proceed now to examine the specific grounds that have been urged by the parties before us in regard to the decision of the High Court so far as it declared several sections of the new Act to be ultra vires the Constitution by reason of their conflicting with the fundamental rights of the respondent. …
Section 20 of the Act describes the powers of the Commissioner in respect to religious endowments and they include power to pass any orders that may be deemed necessary to ensure that such endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded. Having regard to the fact that the
Mathadhipati occupies the position of a trustee with regard to the Math, which is a public institution, some amount of control or supervision over the due administration of the endowments and due appropriation of their funds is certainly necessary in the interest of the public and we do not think that the provision of this section by itself offends any fundamental right of the Mahant. We do not agree with the High Court that the result of this provisions would be to reduce the Mahant to the position of a servant. No doubt the Commissioner is invested with powers to pass orders, but orders can be passed only for the purposes specified in the section and not for interference with the rights of the Mahant as are sanctioned by usage or for lowering his position as the spiritual head of the institution. The saving provision contained in section 91 of the Act makes the position quite clear. An apprehension that the
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powers conferred by this section may be abused in individual cases does not make the provision itself had or invalid in law.
We agree, however, with the High Court in the view taken by it about section 21. This section empowers the Commissioner and his subordinate officers and also persons authorised by them to enter the premises of any religious institution or place of worship for the purpose of exercising any power conferred or any duty imposed by or under the Act. It is well known that there could be no such thing as an unregulated and unrestricted right of entry in a public temple or other religious institution, for persons who are not connected with the spiritual functions thereof. It is a traditional custom universally observed not to allow access to any outsider to the particularly sacred parts of a temple as for example, the place where the deity is located. There are also fixed hours of worship and rest for the idol when no disturbance by any member of the public is allowed. Section 21, it is to be noted, does not confine the right of entry to the outer portion of the premises; it does not even exclude the inner sanctuary "the
Holy of Holies" as it is said, the sanctity of which is zealously preserved. It does not say that the entry may be made after due notice to the head of the institution and at such hours which would not interfere with the due observance of the rites and ceremonies in the institution. We think that as the section stands, it interferes with the fundamental rights of the Mathadhipati and the denomination of which he is head guaranteed under articles 25 and 26 of the
Constitution. Our attention has been drawn in this connection to section 91 of the Act which, it is said, provides a sufficient safeguard against any abuse of power under section 21. We cannot agree with this contention. Clause (a) of section 91 excepts from the saving clause all express provisions of the Act within which the provision of section 21 would have to be included. Clause (b) again does not say anything about custom or usage obtaining in an institution and it does not indicate by whom and in what manner the question of interference with the religious and spiritual functions of the Math would be decided in case of any dispute arising regarding it. In our opinion, section 21 has been rightly held to be invalid.
Section 23 imposes a duty upon the trustees to obey all lawful orders issued by the
Commissioner or any subordinate authority under the provisions of the Act. No exception can be taken to the section if those provisions of the Act, which offend against the fundamental rights of the respondent, are left out of account as being invalid. Nobody can make a grievance if he is directed to obey orders issued in pursuance of valid legal authority. The same reason would, in our opinion, apply to section 24. It may be mentioned here that sections 23 and 24 have not been specifically mentioned in the concluding portion of the judgment of the High
Court set out above, though they have been attacked by the learned Judges in course of their discussion. As regards section 25, the High Court has taken exception only to clause (4) of the section.
If the preparation of registers for religious institutions is not wrong and does not affect the fundamental rights of the Mahant, one fails to see how the direction for addition to or alteration of entries in such registers, which clause (4) contemplates and which will be necessary as a result of enquiries made under clause (3), can, in any sense, be held to be invalid as infringing the fundamental rights of the Mahant. The enquiry that is contemplated by clauses (3) and (4) is an enquiry into the actual state of affairs, and the whole object of the section is to keep an accurate record of the particulars specified in it. We are unable, therefore, to agree with the view expressed by the learned Judges. For the same reasons, section 26, which provides for annual verification of the registers, cannot be held to be bad.
According to the High Court section 28 is itself innocuous. The mere possibility of its being abused is no ground for holding it to be invalid. As all endowed properties are ordinarily inalienable, we fail to see why the restrictions placed by section 29 upon alienation of endowed properties should be considered bad. In our opinion, the provision of clause (2) of section 29,
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which enables the Commissioner to impose conditions when he grants sanction to alienation of endowed property, is perfectly reasonable and to that no exception can be taken.
The provision of section 30(2) appears to us to be somewhat obscure. Clause (1) of the section enables a trustee to incur expenditure out of the funds in his charge after making adequate provision for the purposes referred to in section 70(2), for making arrangements for the health, safety and convenience of disciples, pilgrims, etc. Clause (2), however, says that in incurring expenditure under clause (1), the trustee shall be guided by such general or special instruction as the Commissioner or the Area Committee might give in that connection. If the trustee is to be guided but not fettered by such directions, possibly no objection can be taken to this clause; but if he is bound to carry out such instructions, we do think that it constitutes an encroachment on his right. Under the law, as it stands, the Mahant has large powers of disposal over the surplus income and the only restriction is that he cannot spend anything out of it for his personal use unconnected with the dignity of his office. But as the purposes specified in sub-clauses (a) and (b) of section 30(1) are beneficial to the institution there seems to be no reason why the authority vested in the Mahant to spend the surplus income for such purposes should be taken away from him and he should be compelled to act in such matters under the instructions of the Government officers. We think that this is an unreasonable restriction on the Mahant 's right of property which is blended with his office.
The same reason applies in our opinion to section 31 of the Act, the meaning of which also is far from clear. If after making adequate provision for the purposes referred to in section
70(2) and for the arrangements mentioned in section 30(2) there is still a surplus left with the trustee, section 31 enables him to spend it for the purposes specified in section 59(1) with the previous sanction of the Deputy Commissioner. One of the purposes mentioned in section
59(1) is the propagation of the religious tenants of the institution, and it is not understood why sanction of the Deputy Commissioner should be necessary for spending the surplus income for the propagation of the religious tenets of the order which is one of the primary duties of a
Mahant to discharge. The next thing that strikes one is, whether sanction is necessary if the trustee wants to spend the money for purposes other than those specified in section 59(1) ? If the answer is in the negative, the whole object of the section becomes meaningless. If, on the other hand, the implication of the section is that the surplus can be spent only for the purposes specified in section 59(1) and that too with the permission of the Deputy Commission, it undoubtedly places a burdensome restriction upon the property rights of the Mahant which are sanctioned by usage and which would have the effect of impairing his dignity and efficiency as the head of the institution. We think that sections 30(2) and 31 have been rightly held to be invalid by the High Court.
Sections 39 and 42, as said already, are not applicable to Maths and hence can be left out of consideration. Section 53 has been condemned by the High Court merely on the ground that the court has ample jurisdiction to provide for the contingencies that this section is intended to meet. But that surely cannot prevent a competent legislature from legislating on the topic, provided it can do so without violating any of the fundamental rights guaranteed by the Constitution. We are unable to agree with the High Court on this point. There seems to be nothing wrong or unreasonable in section 54 of the Act which provides for fixing the standard scale of expenditure. The proposals for this purpose would have to be submitted by the trustee; they are then to be published and suggestions invited from persons having interest in the amendment. The commissioner is to scrutinise the original proposals and the suggestions received and if in his opinion a modification of the scale is necessary, he has to submit a report to the Government, whose decision will be final. This we consider to be quite a reasonable and salutary provision.
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Section 55 deals with a Mahant 's power over Pathakanikas or personal gifts. Ordinarily a
Mahant has absolute power of disposal over such gifts, though if he dies without making any disposition, it is reckoned as the property of the Math and goes to the succeeding Mahant. The first clause of section 55 lays down that such Pathakanikas shall be spent only for the purposes of the Math. This is an unwarranted restriction on the property right of the Mahant. It may be that according to customs prevailing in a particular institution, such personal gifts are regarded as gifts to the institution itself and the Mahant receives them only as the representative of the institution; but the general rule is otherwise. As section 55(1) does not say that this rule will apply only when there is a custom of that nature in a particular institution, we must say that the provision in this unrestricted form is an unreasonable encroachment upon the fundamental right of the Mahant. The same objection can be raised against clause (2) of the section; for if the Pathakanikas constitute the property of a Mahant, there is no justification for compelling him to keep accounts of the receipts and expenditure of such personal gifts. As said already, if the Mahant dies without disposing of these personal gifts, they may form part of the assets of the Math, but that is no reason for restricting the powers of the Mahant over these gifts so long as he is alive.
Section 56 has been rightly invalidated by the High Court. It makes provision of an extremely dramatic character. Power has been given to the Commissioner to require the trustee to appoint a manager for administration of the secular affairs of the institution and in case of default, the commissioner can make the appointment himself. The manager thus appointed though nominally a servant of the trustee, has practically to do everything according to the directions of the Commissioner and his subordinates. It is to be noted that this power can be exercised at the mere option of the Commissioner without any justifying necessity whatsoever and no pre-requisites like mismanagement of property or maladministration of trust funds are necessary to enable the trustee to exercise such drastic power. It is true that the section contemplates the appointment of a manager for administration of the secular affairs of this institution. But no rigid demarcation could be made as we have already said between the spiritual duties of the Mahant and his personal interest in the trust property. The effect of the section really is that the Commissioner is at liberty at any moment he chooses to deprive the
Mahant of his right to administer the trust property even if there is no negligence or maladministration on his part. Such restriction would be opposed to the provision of article
26(d) of the Constitution. It would cripple his authority as Mahant altogether and reduce his position to that of an ordinary priest or paid servant.
We find nothing wrong in section 58 of the Act which relates to the framing of the scheme by the Deputy Commissioner. It is true that it is a Government officer and not the court who is given the power to settle the scheme, but we think that ample safeguards have been provided in the Act to rectify any error or unjust decision made by the Deputy Commissioner. Section
61 provides for an appeal to the Commissioner against the order of the Deputy Commissioner and there is a right of suit given to a party who is aggrieved by the order of the Commissioner with a further right of appeal to the High Court.
The objection urged against the provision of clause (3)(b) of section 58 does not appear to us to be of much substance. The executive officer mentioned in that clause could be nothing else but a manager of the properties of the Math, and he cannot possibly be empowered to exercise the functions of the Mathadhipati himself. In any event, the trustee would have his remedy against such order of the Deputy Commissioner by way of appeal to the Commissioner and also by way of suit as laid down in sections 61 and 62. Section 59 simply provides a scheme for the application of the cy pres doctrine in case the object of the trust fails either from the inception or by reason of subsequent events. Here again the only complaint that is raised is, that such order could be made by the Deputy Commissioner. We think that this
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objection has not much substance. In the first place, the various objects on which the trust funds could be spent are laid down in the section itself and the jurisdiction of the Deputy
Commissioner is only to make a choice out of the several heads. Further an appeal has been provided from an order of the Deputy Commissioner under this section to the Commissioner.
We, therefore, cannot agree with the High Court that sections 58 and 59 of the Act are invalid.
Chapter VI of the Act, which contains sections 63 to 69, relates to notification of religious institutions. The provisions are extremely drastic in their character and the worst feature of it is that no access is allowed to the court to set aside an order of notification. The AdvocateGeneral for Madras frankly stated that he could not support the legality of these provisions.
We hold, therefore, in agreement with High Court that these sections should be held to be void. Section 70 relates to the budget of religious institutions. Objection has been taken only to clause (3) which empowers the Commissioner and the Area Committee to make any additions to or alterations in the budget as they deem fit. A budget is indispensable in all public institutions and we do not think that it is per se unreasonable to provide for the budget of a religious institution being prepared under the supervision of the Commissioner or the Area
Committee. It is to be noted that if the order is made by an Area Committee under clause (3), clause (4) provides an appeal against it to the Deputy Commissioner.
Section 89 provides for penalties for refusal by the trustee to comply with the provisions of the Act. If the objectionable portions of the Act are eliminated, the portion that remains will be perfectly valid and for violation of these valid provisions, penalties can legitimately be provided. Section 99 vests an overall revisional power in the Government. This, in our opinion, is beneficial to the trustee, for he will have an opportunity to approach the
Government in case of any irregularity, error or omission made by the Commissioner or any other subordinate officer.
The only other point that requires consideration is the constitutional validity of section 76 of the Act which runs as follows:
"76. (1) In respect of the services rendered by the Government and their officers, every religious institution shall, from the income derived by it, pay to the
Government annually such contribution not exceeding five per cent of its income as may be prescribed.
(2) Every religious institution, the annual income of which for the fasli year immediately preceding as calculated for the purposes of the levy of contribution under sub-section (1), is not less than one thousand rupees, shall pay to the
Government annually, for meeting the cost of auditing its accounts, such further sum not exceeding one and a half per centum of its income as the Commissioner may determine.
(3) the annual payments referred to in sub-sections (1) and (2) shall be made, notwithstanding anything to the contrary contained in any scheme settled or deemed to be settled under this Act for the religious institution concerned.
(4) The Government shall pay the salaries, allowances, pensions and other beneficial remuneration of the Commissioner, Deputy Commissioners, Assistant
Commissioners and other officers and servants (other than executive officers of religious institutions) employed for the purposes of this Act and the other expenses incurred for such purposes, including the expenses of Area Committees and the cost of auditing the accounts of religious institutions."
Thus the section authorises the levy of an annual contribution on all religious institutions, the maximum of which is fixed at 5 per cent of the income derived by them. The Government is to frame rules for the purposes fixing rates within the permissible maximums and the section expressly states that the levy is in respect of the services rendered by the Government and its
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officers. The validity of the provision has been attacked on a two-fold ground: the first is, that the contribution is really a tax and as such it was beyond the legislative competence of the
State Legislature to enact such provision. The other is, that the contribution being a tax or imposition, the proceeds of which are specifically appropriated for the maintenance of a particular religion or religious denomination, it comes within the mischief or article 27 of the
Constitution and is hence void.
So far as the first ground is concerned, it is not disputed that the legislation in the present case is covered by entries 10 and 28 of List III in Schedule VII of the Constitution. If the contribution payable under section 76 of the Act is a "fee", it may come under entry 47 of the
Concurrent List which deals with "fees" in respect of any of the matters included in that list.
On the other hand, if it is a tax, as this particular tax has not been provided for in any specific entry in any of the three lists, it could come only under entry 97 of List or article 248(1) of the
Constitution and in either view the Union Legislature alone would be competent to legislate upon it. On behalf of the appellant, the contention raised is that the contribution levied is a fee and not a tax and the learned Attorney-General, who appeared for the Union of India as intervener in this as well as in the other connected appeals, made a strenuous attempt to support this position. The point is certainly not free from doubt and requires careful consideration. The learned Attorney-General has argued in the first place that our Constitution makes a clear distinction between taxes and fees. It is true, as he has pointed out, that there are a number of entries in List I of the Seventh Schedule which relate to taxes and duties of various sorts; whereas the last entry, namely entry 96, speaks of "fees" in respect of any of the matters dealt with in the list. Exactly the same is with regard to entries 46 to 62 in List II all of which relate to taxes and here again the last entry deals only with "fees" leviable in respect of the different matters specified in the list. It appears that articles 110 and 119 of the Constitution which deal with "Money Bills" lay down expressly that a bill will not be deemed to be a "Money Bill" by reason only that it provides for the imposition of fines.... or for the demand or payment of fees for licences or fees for services rendered, whereas a bill dealing with imposition or regulation of a tax will always be a Money Bill. Article 277 also mentions taxes, cesses and fees separately. It is not clear, however, whether the word "tax" as used in article 265 has not been used in the wider sense as including all other impositions like cesses and fees; and that at least seems to be the implication of clause (28) of article 366 which defines taxation as including the imposition of any tax or impost, whether general, local or special. It seems to us that though levying of fees is only a particular form of the exercise of the taxing power of the State, our
Constitution has placed fees under a separate category for purposes of legislation and at the end of each one of the three legislative lists, it has given a power to the particular legislature to legislate on the imposition of fees in respect to every one of the items dealt with in the list itself. Some idea as to what fees are may be gathered from clause (2) of articles 110 and 119 referred to above which speak of fees for licences and for services rendered. The question for our consideration really is, what are the indices or special characteristics that distinguish a fee from a tax proper? On this point we have been referred to several authorities by the learned counsel appearing for the different parties including opinions expressed by writers of recognised treatises on public finance.
A neat definition of what "tax" means has been given by Latham C.J. of the High Court of Australia in Matthews v. Chicory Marketing Board (60 C.L.R. 263, 276):
"A tax", according to the learned Chief Justice, "is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered".
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This definition brings out, in our opinion, the essential characteristics of a tax as distinguished from other forms of imposition which, in a general sense, are included within it.
It is said that the essence of taxation is compulsion, that is to say, it is imposed under statutory power without the taxpayer 's consent and the payment is enforced by law (Vide Lower
Mainland Dairy v. Orystal Dairy Ltd. 1933 A.C. 168.). The send characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax. This is expressed by saying that the levy of tax is for the purposes of general revenue, which when collected form part of the public revenues of the
State. As the object of a tax is not to confer any special benefit upon any particular individual, there is, as it is said, no element of quid pro quo between the taxpayer and the public authority
(See Findlay Shirras on "Science of Public Finance", Vol. p. 203.). Another feature of taxation is that as it is a part of the common burden, the quantum of imposition upon the taxpayer depends generally upon his capacity to pay.
Coming now to fees, a 'fee ' is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases the costs are arbitrarily assessed. Ordinarily, the fees are uniform and no account is taken of the varying abilities of different recipients to pay (Vide Lutz on "Public Finance"
p. 215.). These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable to all cases. As regards the distinction between a tax and a fee, it is argued in the first place on behalf of the respondent that a fee is something voluntary which a person has got to pay if he wants certain services from the Government; but there is no obligation on his part to seek such services and if he does not want the services, he can avoid the obligation. The example given is of a licence fee. If a man wants a licence that is entirely his own choice and then only he has to pay the fees, but not otherwise. We think that a careful examination will reveal that the element of compulsion or coerciveness is present in all kinds of imposition, though in different degrees and that it is not totally absent in fees. This, therefore, cannot be made the sole or even a material criterion for distinguishing a tax from fees. It is difficult, we think, to conceive of a tax except, it be something like a poll tax, the incidence of which falls on all person within a State. The house tax has to be paid only by those who own houses, the land tax by those who possess lands, municipal taxes or rates will fall on those who have properties within a municipality. Persons, who do not have houses, lands or properties within municipalities, would not have to pay these taxes, but nevertheless these impositions come within the category of taxes and nobody can say that it is a choice of these people to own lands or houses or specified kinds of properties, so that there is no compulsion on them to pay taxes at all.
Compulsion lies in the fact that payment is enforceable by law against a man in spite of his unwillingness or want of consent; and this element is present in taxes as well as in fees. Of course, in some cases whether a man would come within the category of a service receiver may be a matter of his choice, but that by itself would not constitute a major test which can be taken as the criterion of this species of imposition. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as a part of a common burden, while a fee is a payment for a special benefit or privilege. Fees confer a special capacity, although the special advantage, as for example in the case of registration fees for documents or marriage licences, is secondary to the primary motive of regulation in the public interest (Vide Findlay Shirras on "Science of Public Finance" Vol. I, p. 202.). Public interest seems to be at the basis of all impositions, but in a fee it is some special benefit which the individual receives. As Seligman says, it is the special benefit accruing to the individual which is the reason for payment in the
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case of fees; in the case of a tax, the particular advantage if it exists at all is an incidental result of State action (Vide Seligman 's Essays on Taxation, p. 408.).
If, as we hold, a fee is regarded as a sort of return or consideration for services rendered, it is absolutely necessary that the levy of fees should, on the face of the legislative provision, be co-related to the expenses incurred by Government in rendering the services. As indicated in article 110 of the Constitution, ordinarily there are two classes of cases where Government imposes 'fees ' upon persons. In the first class of cases, Government simply grants a permission or privilege to a person to do something, which otherwise that person would not be competent to do and extracts fees either heavy or moderate from that person in return for the privilege that is conferred. A most common illustration of this type of cases is furnished by the licence fees for motor vehicles. Here the costs incurred by the Government in maintaining an office or bureau for the granting of licences may be very small and the amount of imposition that is levied is based really not upon the costs incurred by the Government but upon the benefit that the individual receives. In such cases, according to all the writers on public finance, the tax element is predominant (Vide Seligman 's Essays on Taxation, p. 409.), and if the money paid by licence holders goes for the upkeep of roads and other matters of general public utility, the licence fee cannot but be regard as a tax.
In the other class of cases, the Government does some positive work for the benefit of persons and the money is taken as the return for the work done or services rendered. If the money thus paid is set apart and appropriated specifically for the performance of such work and is not merged in the public revenues for the benefit of the general public, it could be counted as fees and not a tax. There is really no generic difference between the tax and fees and as said by Seligman, the taxing power of a State may manifest itself in three different forms known respectively as special assessments, fees and taxes (Ibid, p. 406.).
Our Constitution has, for legislative purposes, made a distinction between a tax and a fee and while there are various entries in the legislative lists with regard to various forms of taxes, there is an entry at the end of each one of the three lists as regards fees which could be levied in respect of any of the matters that is included in it. The implication seems to be that fees have special reference to governmental action undertaken in respect to any of these matters.
Section 76 of the Madras Act speaks definitely of the contribution being levied in respect to the services rendered by the Government; so far it has the appearance of fees. It is true that religious institution do not want these services to be rendered to them and it may be that they do not consider the State interference to be a benefit at all. We agree, however, with the learned
Attorney-General that in the present day concept of a State, it cannot be said that services could be rendered by the State only at the request of those who require these services. If in the larger interest of the public, a State considers it desirable that some special service should be done for certain people, the people must accept these services, whether willing or not (Vide
Findlay Shirras on "Science of Public Finance" Vol. I, p. 202.). It may be noticed, however, that the contribution that has been levied under section 76 of the Act has been made to depend upon the capacity of the payer and not upon the quantum of benefit that is supposed to be conferred on any particular religious institution. Further the institutions, which come under the lower income group and have income less than Rs. 1,000 annually, are excluded from the liability to pay the additional charges under clause (2) of the section. These are undoubtedly some of the characteristics of a 'tax ' and the imposition bears a close analogy to income-tax.
But the material fact which negatives the theory of fees in the present case is that the money raised by levy of the contribution is not ear-marked or specified for defraying the expenses that the Government has to incur in performing the services. All the collections go to the consolidated funds of the State and all the expenses have to be met not out of these collections but out of the general revenues by a proper method of appropriation as is done in case of other
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Government expenses. That in itself might not be conclusive, but in this case there is total absence of any co-relation between the expenses incurred by the Government and the amount raised by contribution under the provision of section 76 and in these circumstances the theory of a return or counter-payment or quid pro quo cannot have any possible application to this case. In our opinion, therefore, the High Court was right in holding that the contribution levied under section 76 is a tax and not a fee and consequently it was beyond the power of the State
Legislature to enact this provision.
In view of our decision on this point, the other ground hardly requires consideration. We will indicate, however, very briefly our opinion on the second point raised. The first contention, which has been raised by Mr. Nambiar in reference to article 27 of the Constitution is that the word "taxes", as used therein, is not confined to taxes proper but is inclusive of all other impositions like cesses, fees, etc. We do not think it necessary to decide this point in the present case, for in out opinion on the facts of the present case, the imposition, although it is a tax, does not come within the purview of the latter part of the article at all. What is forbidden by the article is the specific appropriation of the proceeds of any tax in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. The reason underlying this provision is obvious. Ours being a secular State and there being freedom of religion guaranteed by the Constitution, both to individuals and to groups, it is against the policy of the Constitution to pay out of public funds any money for the promotion or maintenance of any particular religion or religious denomination. But the object of the contribution under section 76 of the Madras Act is not the fostering or preservation of the
Hindu religion or any denomination within it. The purpose is to see that religious trusts and institutions, wherever they exist, are properly administered. It is a secular administration of the religious institutions that the legislature seeks to control and the object, as enunciated in the Act, is to ensure that the endowments attached to the religious institutions are properly administered and their income is duly appropriated for the purposes for which they were founded or exist. There is no question of favouring any particular religion or religious denomination in such cases. In our opinion, article 27 of the Constitution is not attracted to the facts of the present case. The result, therefore, is that in our opinion sections 21, 30(2), 31,
56 and 63 to 69 are the only sections which should be declared invalid as conflicting with the fundamental rights of the respondent as Mathadhipati of the Math in question and section
76(1) is void as beyond the legislative competence of the Madras State Legislature. The rest of the Act is to be regarded as valid. The decision of the High Court will be modified to this extent, but as the judgment of the High Court is affirmed on its merits, the appeal will stand dismissed with costs to the respondent.
Appeal dismissed.
ACHARYA JAGDISHWARANAND AVADHUTA V. COMMISSIONER OF POLICE, CALCUTTA
AIR 1984 SC 51, (1983) 4 SCC 522
Decided On: October 20, 1983
BENCH – JUSTICES P. N. BHAGWATI, AMARENDRA NATH SEN & RANGANATH MISRA
JUSTICE MISRA (for the Court)
The petitioner in Writ Petition No. 6890/82 a monk of the Ananda Marga and currently
General Secretary, Public Relations Department of the Ananda Marga Pracharak Sangh, has filed this petition under Article 32 of the Constitution for a direction to the Commissioner of
Police Calcutta and the State of West Bengal to allow processions to be carried in the public
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streets and meetings to be held in public places by the followers of the Ananda Marga cult accompanied by the performance of Tandava dance within the State of West Bengal. …
In the original petition certain factual assertions have been made and after counter affidavits were filed several further affidavits have been placed before the Court on behalf of the petitioner and counter affidavits too have been filed. Shorn of unnecessary details, the averments on behalf of the respective contenders are as follows:
Shri Pravat Ranjan Sarkar otherwise known as Shri Ananda Murti, founded a sociospiritual organisation claimed to have been dedicated to the service of humanity in different spheres of life such as physical mental and spiritual irrespective of caste, creed or colour, in the year 1955. In the initial period the Headquarters of this organisation was located near
Ranchi in the State of Bihar but later it has been shifted to a place within the City of Calcutta in West Bengal. It has been pleaded that Ananda Marga contains no dogmatic beliefs and teaches the yogic and spiritual science to every aspirant. In order to realise the Supreme,
Ananda Marga does not believe that it is necessary to abandon home profession or occupation and spiritual sadhana is possible at any place and concurrently with fulfilling all duties and responsibilities of family life. It has been pleaded that Ananda Marga shows the way and explains the methods for spiritual advancement and this helps man to practice his dharma.
According to the petitioner Lord Shiva had performed Tandava Dance in 108 forms but
Shaivite literature has given details of 64 kinds only. Seven forms out of these 64 appear to have been commonly accepted and they are called Kalika, Gouri, Sandhya, Sambhara, Tripura,
Urdhava and Ananda. The first of these forms elaborates the main aspects of Shiva while the seventh, i.e. the Ananda Tandava portrays all the manifold responsibilities of the Lord. Ananda
Tandava is claimed to have taken place at Tillai, the ancient name of Chidambaram now situated in the State of Tamil Nadu. It is the petitioner 's stand that the word Tandava is derived from the root Tandu which means to jump about and Shiva was the originator of Tandava about
6500 years ago. Ananda Murtiji as the petitioner maintains, is the Supreme Father of the
Ananda Margis. It is customary for every Ananda Margi after being duly initiated to describe
Ananda Murtiji as his father. One of the prescriptions of religious rites to be daily performed by an Ananda Margi is Tandava Dance and this is claimed to have been so introduced from the year 1966 by the preceptor. This dance is to be performed with a skull, a small, symbolic knife and a Trishul. It is also customary to hold a lathi and a damroo. It is explained that the knife or the sword symbolises the force which cuts through the fetters of the mundane world and allows human beings to transcend towards perfection; the trishul or the trident symbolises the fight against static forces in the three different spheres of human existence - spiritual, mental and physical; the lathi which is said to be a straight stick stands out as the symbol of straightforwardness or simplicity; the damroo is the symbol to bring out rhythmic harmony between eternal universal music and the entitative sound; and the skull is the symbol of death reminding every man that life is short and therefore, every moment of life should be utilised in the service of mankind and salvation should be sought. The petitioner has further maintained that Ananda Margis greet their spiritual preceptor Shri Ananda Murti with a dance of Tandava wherein one or two followers use the skull and the symbolic knife and dance for two or three minutes. At intervals processions are intended to be taken out in public places accompanied by the Tandava dance as a religious practice.
Though in subsequent affidavits and in the course of argument an attempt was made by
Mr. Tarkunde to assert that Ananda Marga is a new religious order; we do not think there is any justification to accept such a contention when it runs counter to the pleadings in paragraphs
4 and 17 of the writ petition. In paragraph 4 it was specifically pleaded that "Ananda Marga is more a denomination than an institutionalised religion", and in paragraph 17 it was pleaded that "Ananda Margis are Shaivites" We shall, therefore, proceed to deal with this petition on
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the footing that, as pleaded by the petitioner, Ananda Marga is a religious denomination of the
Shaivite order which is a well-known segment of Hindu religion.
Though the petitioner had pleaded that Tandava dance has been practiced and performed by every Ananda Margi for more than three decades, it has been conceded in the course of the hearing that Tandava Dance was introduced for the first time as a religious rite for Ananda
Margis in or around 1966. Therefore, by the time of institution of this writ petition the practice was at best prevalent for about 16 years.
The Commissioner of Police, respondent 1 before us is alleged to have made repetitive orders Under Section 144 of the CrPC, 1973 ( 'Code ' for short) from August 1979 directing that
"no member of a procession or assembly of five or more persons should carry any fire arms, explosives, swords, spears, knives, tridents, lathis or any article which may be used as weapon of offence or any article likely to cause annoyance to the public for example skulls…" A petition was filed before the Calcutta High Court under Article 226 of the Constitution by the
General Secretary of Ananda Marga for a writ of mandamus against the respondents for a direction not to interfere with or place restraints on the freedom of conscience and free profession, practice and propagation of their religion, including Tandava Dance in matter No.
903 of 1980. The Calcutta High Court rejected the said petition on September 23, 1980 and observed: It is open to anyone in this country to practice any religion but the religious practice must not be inconsistent with the susceptibility or sensibility or fairness or public order. Tandava dance as such may not be objectionable. In the streets of
Calcutta all kinds of demonstrations and procession are being held every day which may on many occasions cause disturbance to others and interrupt the free flow of traffic. In spite of the same such demonstrations and processions are allowed to take place particularly every day by the authority concerned. If the petitioners or any member of their group want to hold a procession or reception or demonstration accompanied by any dance or music, that by itself may not be objectionable. However, brandishing fire torches or skulls or daggers in the public places including streets cannot come under the same category. Here other things are involved. The interests of other members of the public are involved, the sense of security of the others is also involved. The authorities concerned have to keep in mind the question of the feelings of other members of the public and the question of the possibility of any attempt to retaliate or counter-act to the same are also to be considered. Taking into consideration all these factors I am of the opinion that the petitioners do not have any legal right and they have not established any legal right to carry fire torches, skulls and daggers in public places or public streets and do not intend to pass any order entitling the petitioners to do so. However, the petitioners shall be entitled to go in procession or hold any demonstration without any such fire torches, daggers or skulls. However, this would be subject to prevailing law of the land in the particular area. For example, in the High Court, Dalhousie Square and Assembly order Under Section 144 of the Criminal Procedure Code is promulgated from time to time. This order would not entitle the petitioners to hold any such procession demonstration in violation of such promulgation if any. This order would also not entitle the petitioners to hold any procession or demonstration without the permission of the authority concerned when such permission is required for such purposes under any existing law. On March 29, 1982, respondent 1 made a fresh order Under Section 144 of the Code wherein the same restraints as mentioned in the earlier order were imposed. An application for permission to take out a procession on the public street accompanied with Tandava dance was rejected and that led to the filing of this petition.
The petitioner asserts that tandava dance is an essential part of the religious rites of the
Ananda Margis and that they are entitled to practise the same both in private as also in public
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places and interference by the respondents is opposed to the fundamental rights guaranteed under Articles 25 and 26 of the Constitution. The order Under Section 144 of the Code has been assailed mainly on the ground that it does not state the material facts of the case though the statute requires such statement as a condition precedent to the making of the order.
Repetitive orders Under Section 144 of the Code, it has been contended, are not contemplated by the Code and, therefore, making of such orders is an abuse of the law and should not be countenanced. Two separate returns have been made to the rule nisi. Respondent 1 has filed a counter affidavit alleging that Ananda Marga is an organisation which believes in violence and if
Ananda Margis are permitted to carry open swords or daggers in public processions it is bound or likely, to disturb public peace and tranquility and is fraught with the likelihood of breach of public order and would affect public morality. Carrying of human skulls and indulging in provocative dances with human skulls is not only repulsive to public taste and morality, but is bound, and is likely, to raise fears in the minds of the people particularly children thereby affecting public order, morality, peace and tranquility. It has been further pleaded that the petitioner, or for the matter of that, Ananda Margis can have no fundamental right to carry weapons in the public, in procession or otherwise, nor have they any right to perform tandava dance with daggers and human skulls. It is stated that Ananda Marga is a politico-religious organisation started in 1961 by Shri Pravat Ranjan Sarkar alias Sri Ananda Murti, who is a selfstyled tantrik yogi. Reference has been made to an incident of 1971 which led to prosecution of Sri Ananda Murti and some of his followers. It is stated that militancy continues to be the main feature of the organisation. Prior to promulgation of the prohibitory orders, it has been pleaded, Ananda Margis took out processions carrying lethal weapons like tridents, lathis as well as human skulls and knives from time to time and caused much annoyance to the public in general and onlookers in particular, and this tended to disturb public peace, tranquility and public order. In spite of the prohibitory orders in force from August 10, 1979, a procession was taken out on the following day within the city of Calcutta by Ananda Margis with lathis, tridents, knives, skulls, and the procession became violent. The assembly was declared unlawful and the police force was obliged to intervene. The police personnel on duty including a Deputy Commissioner of Police received injuries. Reference to several other incidents has also been made in the counter-affidavit of the Police Commissioner. The State Government has supported the stand of the Police Commissioner in its separate affidavit.
We have already indicated that the claim that Ananda Marga is a separate religion is not acceptable in view of the clear assertion that is was not an institutionalised religion but was a religious denomination. The principle indicated by Gajendragadkar, C.J., while speaking for the Court in Sastri Yagnapurushadji v. Muldas Bhudardos Vaishya [1966] 3 SCR 242 also supports the conclusion that Ananda Marga cannot be a separate religion by itself. In that case the question for consideration was whether the followers of Swaminarayan belonged to a religion different from that of Hinduism. The learned Chief Justice observed:
Even a cursory study of the growth and development of Hindu religion through the ages shows that whenever a saint or a religious reformer attempted the task of reforming Hindu religion and fighting irrational or corrupt practices which had crept into it, a sect was born which was governed by its own tenets but which basically subscribed to the fundamental notions of Hindu religion and Hindu philosophy. The averments in the writ petition would seem to indicate a situation of this type. We have also taken into consideration the writings of Shri Ananda Murti in books like Carya-Carya,
Namah Shivaya Shantaya, A Guide to Human Conduct, and Ananda Vachanamritam. These
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writings by Shri Ananda Murti are essentially founded upon the essence of Hindu philosophy.
The test indicated by the learned Chief Justice in the case referred to above and the admission in paragraph 17 of the writ petition that Ananda Margis belong to the Shaivite order lead to the clear conclusion that Ananda Margis belong to the Hindu religion. Mr. Tarkunde for the petitioner had claimed protection of Article 25 of the Constitution but in view of our finding that Ananda Marga is not a separate religion, application of Article 25 is not attracted.
The next aspect for consideration is whether Ananda Marga can be accepted to be a religious denomination. In Shirur Mutt Mukherjee, J. (as the learned Judge then was), spoke for the Court thus:
As regards Article 26, the first question is, what is the precise meaning or connotation of the expression 'religious denomination ' and whether a Math could come within this expression. The word 'denomination ' has been defined in the
Oxford Dictionary to mean 'a collection of individuals classed together under the same name: a religious sect or body having a common faith and organisation and designated by a distinctive name’.
This test has been followed in Durgah Committee, Ajmer v, Syed Hussain Ali [1962] 1
SCR383. In the majority judgment in S. P. Mittal v. Union of India [1983] 1 SCC 51 reference to this aspect has also been made and it has been stated:
The words 'religious denomination ' in Article 26 of the Constitution must take their colour from the word 'religion ' and if this be so, the expression 'religious denomination ' must also satisfy three conditions:
(1) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith; (2) common organisation; and
(3) designation by a distinctive name.
Ananda Marga appears to satisfy all the three conditions, viz., it is a collection of individuals who have a system of beliefs which they regard as conducive to their spiritual wellbeing; they have a common organisation and the collection of these individuals has a distinctive name. Ananda Marga, therefore, can be appropriately treated as a religious denomination, within the Hindu religion. Article 26 of the Constitution provides that subject to public order morality and health, every religious denomination or any section thereof shall have the right to manage its own affairs in matters of religion. …
Courts have the power to determine whether a particular rite of observance is regarded as essential by the tenets of a particular religion. … The question for consideration now, therefore, is whether performance of Tandava dance is a religious rite or practice essential to the tenets of the religious faith of the Ananda Margis. We have already indicated that tandava dance was not accepted as an essential religious rite of Ananda Margis when in 1955 the Ananda Marga order was first established It is the specific case of the petitioner that Shri Ananda Murti introduced tandava as a part of religious rites of Ananda Margis later in 1966. Ananda Marga as a religious order is of recent origin and tandava dance as a part of religious rites of that order is still more recent. It is doubtful as to whether in such circumstances tandava dance can be taken as an essential religious rite of the Ananda Margis. Even conceding that it is so, it is difficult to accept Mr. Tarkunde 's argument that taking out religious processions with tandava dance is an essential religious rite of Ananda Margis. In paragraph 17 of the writ petition the petitioner pleaded that "Tandava Dance lasts for a few minutes where two or three persons dance by lifting one leg to the level of the chest, bringing it down and lifting the other." In paragraph 18 it has been pleaded that "when the Ananda Margis greet their spiritual preceptor at the airport, etc. they arrange for a brief welcome dance of tandava wherein one or two persons
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use the skull and symbolic knife and dance for two or three minutes." In paragraph 26 it has been pleaded that "Tandava is a custom among the sect members and it is a customary performance and its origin is over four thousand years old, hence it is not a new invention of
Ananda Margis." On the basis of the literature of the Ananda Marga denomination it has been contended that there is prescription of the performance of tandava dance by every follower of
Ananda Marga. Even conceding that tandava dance has been prescribed as a religious rite for every follower of the Ananda Marg it does not follow as a necessary corollary that tandava dance to be performed in the public is a matter of religious rite. In fact, there is no justification in any of the writings of Shri Ananda Murti that tandava dance must be performed in public.
At least none could be shown to us by Mr. Tarkunde despite an enquiry by us in that behalf.
We are, therefore, not in a position to accept the contention of Mr. Tarkunde that performance of tandava dance in a procession or at public places is an essential religious rite to be performed by every Ananda Margi.
One we reach this conclusion, the claim that the petitioner has a fundamental right within the meaning of Articles 25 or 26 to perform tandava dance in public streets and public places has to be rejected. In view of this finding it is no more necessary to consider whether the prohibitory order was justified in the interest of public order as provided in Article 25.
… It is appropriate to take note of the fact that the impugned order Under Section 144 of the Code did not ban processions or gatherings at public places even by Ananda Margis. The prohibition was with reference to the carrying of daggers, trishuls and skulls. Even performance of tandava dance in public places, which we have held is not an essential part of religious rites to be observed by Ananda Margis, without these, has not been prohibited.
The writ petitions have to fail on our finding that performance of tandava dance in procession in the public streets or in gatherings in public places is not an essential religious rite of the followers of Ananda Marga. In the circumstance there will be no order as to costs.
BIJOE EMMANUEL V. STATE OF KERALA
AIR 1987 SC 748, (1986) 3 SCC 615
Decided On: August 11, 1986
BENCH – JUSTICES O. CHINNAPPA REDDY & M. M. DUTT
JUSTICE CHINNAPPA REDDY (for the Court)
The three child appellants, Bijoe, Binu Mol and Bindu Emmanuel, are the faithful of
Jehovah 's Witnesses. They attend school. Daily, during the morning Assembly, when the
National Anthem 'Jana Gana Mana ' is sung, they stand respectfully but they do not sing. They do not sing because, according to them, it is against the tenets of their religious faith not the words or the thoughts of the Anthem but the singing of it. This they and before them their elder sisters who attended the same school earlier have done all these several years. No one bothered,
No one worried. No one thought it disrespectful or unpatriotic. The children were left in peace and to their beliefs. That was until July, 1985, when some patriotic gentleman took notice. The gentleman thought it was unpatriotic of the children not to sing the National Anthem. He happened to be a Member of the Legislative Assembly. So, he put a question in the Assembly.
A Commission was appointed to enquire and report. We do not have the report of the
Commission. We are told that the Commission reported that the children are 'law-abiding ' and that they showed no disrespect to the National Anthem. Indeed it is nobody 's case that the children are other than well-behaved or that they have ever behaved disrespectfully when the
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National Anthem was sung. They have always stood up in respectful silence. But these matters of conscience, which though better left alone, are sensitive and emotionally evocative. So, under the instructions of Deputy Inspector of Schools, the Head Mistress expelled the children from the school from July 26, 1985. The father of the children made representations requesting that his children may be permitted to attend the school pending orders from the Government.
The Head Mistress expressed her helplessness in the matter. Finally the children filed a Writ
Petition in the High Court seeking an order restraining the authorities from preventing them from attending School. First a learned single Judge and then a Division Bench rejected the prayer of the children. They have now come before us by special leave under Article 136 of the Constitution.
We are afraid the High Court misdirected itself and went off at a tangent. They considered, in minute detail, each and every word and thought of the National Anthem and concluded that there was no word or thought in the National Anthem which could offend anyone 's religious susceptibilities. But that is not the question at all. The objection of the petitioners is not to the language or the sentiments of the National Anthem: they do not sing the National Anthem wherever, ‘Jana Gana Mana’ in India, ‘God save the Queen’ in Britain, the ‘Star-spangled banner’ in the United States and so on. In their words in the Writ Petition they say, "The students who are Witnesses do not sing the Anthem though they stand up on such occasions to show their respect to the National Anthem. They desist from actual singing only because of their honest belief and conviction that their religion does not permit them to join any rituals except it be in their prayers to Jehovah their God.”
That the petitioners truly and conscientiously believe what they say is not in doubt. They do not hold their beliefs idly and their conduct is not the outcome of any perversity. The petitioners have not asserted these beliefs for the first time or out of any unpatriotic sentiment.
Jehovah 's Witnesses, as they call themselves, appear to have always expressed and stood up for such beliefs all the world over as we shall presently show. Jehovah 's Witnesses and their peculiar beliefs though little noticed in this country, have been noticed, we find, in the
Encyclopaedia Britannica and have been the subject of judicial pronouncements elsewhere.
In 'The New Encyclopaedia Britannica ' (Macropaedia) Vol. 10 page 538, after mentioning that Jehovah 's Witnesses are “the adherents of the apocalyptic sect organized by Charles Taze
Russell in the early 1870”, it is further mentioned, “They believe that the Watch Tower Bible and Tract Society, their legal agency and publishing arm, exemplifies the will of God and proclaims the truths of the Bible against the evil triumvirate of organized religion, the business world, and the state The Witnesses also stand apart from civil society, refusing to vote, run for public office, serve in any armed forces, salute the flag, stand for the national anthem, or recite the pledge of allegiance. Their religious stand have brought clashes with various governments, resulting in law suits, mob violence, imprisonment, torture, and death. At one time more than
6,000 Witnesses were inmates of Nazi concentration camps. Communist and Fascist states usually forbid Watch Tower activities. In the U.S. the society has taken 45 cases to the Supreme
Court and has won significant victories for freedom of religion and speech. The Witnesses have been less successful in claiming exemptions as ministers from military service and in seeking to withhold blood transfusions from their children.”
Some of the beliefs held by Jehovah 's Witnesses are mentioned in a little detail in the statement of case in Adelaide Company of Jehovah 's Witnesses v. Commonwealth (1943) 67
CLR 116 a case decided by the Australian High Court. It is stated:
Jehovah 's Witnesses are an association of persons loosely organized throughout
Australia and elsewhere who regard the literal interpretation of the Bible as
Fundamental to proper religious beliefs.
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Jehovah 's Witnesses believe that God, Jehovah, is the Supreme ruler of the universe. Satan or Lucifer was originally part of God 's organization and the perfect man was placed under him. He rebelled against God and set up his own organization in challenge to God and through that organization has ruled the world. He rules and controls the world through material agencies such as organized political, religious, and financial bodies. Christ, they believe, came to earth to redeem all men who would devote themselves entirely to serving God 's will and purpose and He will come to earth again (His second coming has already begun) and will overthrow all the powers of evil.
These beliefs lead Jehovah 's Witnesses to proclaim and teach publicly both orally and by means of printed books and pamphlets that the British Empire and also other organized political bodies are organs of Satan, unrighteously governed and identifiable with the Beast in the thirteenth chapter of the Book of Revelation.
Also that Jehovah 's Witnesses are Christians entirely devoted to the Kingdom of
God, which is "The Theocracy", that they have no part in the: political affairs of the world and must not interfere in the least manner with war between nations.
They must be entirely neutral and not interfere with the drafting of men of nations they go to war. And also that wherever there is a conflict between the laws of
Almighty God and the Laws of man the Christian must always obey God 's law in preference to man 's law. All laws of men, however, in harmony with God 's law the Christian obeys. God 's law is expounded and taught by Jehovah 's Witnesses.
Accordingly they refuse to take an oath of allegiance to the King or other constituted human authority.
The case of Adelaide Company of Jehovah 's Witnesses v. Commonwealth arose out of an action to restrain the Commonwealth of Australia from enforcing the National Security
(Subversive Associations) Regulations to the Jehovah 's Witnesses.
Minersvill School District v. Gobitis 310 US 586 and West Virginia State Board of
Education v. Barnette 319 US 624 are two cases decided by the American Supreme Court in which Jehovah 's Witnesses claimed that they could not be compelled to salute the flag of the
United States while reciting pledge of allegiance. In the latter case, Jackson, J. referred to the particular belief of the Witnesses which was the subject matter of that case, as follows:
The Witnesses are an unincorporated body teaching that the obligation imposed by law of God is superior to that of laws enacted by temporal government. Their religious beliefs include a literal version of Exodus, Chapter XX, verses 4 and 5, which says "Thou shall not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them, nor serve them.
They consider that the flag is an "image" within this command. For this reason they refuse to salute it.
… It is evident that Jehovah 's Witnesses, wherever they are, do hold religious beliefs which may appear strange or even bizarre to us, but the sincerity of their beliefs is beyond question.
Are they entitled to be protected by the Constitution?
Article 19(1)(a) of the Constitution guarantees to all citizens freedom of speech and expression, but Article 19(2) provides that nothing in Article 19(1)(a) shall prevent a State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in; relation to contempt of Court, defamation or incitement to an offence. Article
25(1) guarantees to all persons freedom of conscience and the right freely to profess, practise and propagate religion, subject to public order, morality and health and to the other provisions of Part III of the Constitution. Now, we have to examine whether the ban imposed by the Kerala
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Education Authorities against silence when the National Anthem is: sung on pain expulsion from the school is consistent with the fights guaranteed by Articles 19(1)(a) and 25 of the
Constitution.
We may at once say that there is no provision of law which obliges anyone to sing the
National Anthem nor do we think that it is disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the signing. It is true Article 51-A(a) of the Constitution enjoins a duty on every citizen of India "to abide by the Constitution and respect its ideals and institutions, the National Flag and the National
Anthem." Proper respect is shown to the National Anthem by standing up when the National
Anthem is sung. It will not be right to say that disrespect is shown by not joining in the singing.
Parliament has not been unmindful of ‘National Honour’. The Prevention of Insults to
National Honour Act was enacted in 1971. While Section 2 deals with insult to the Indian
National Flag and the Constitution of India, Section 3 deals with the National Anthem and enacts, Whoever, intentionally prevents the singing of the National Anthem or causes disturbance to any assembly engaged in such singing shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both. Standing up respectfully when the National Anthem is sung but not singing oneself clearly does not either prevent the singing of the National Anthem or cause disturbance to an assembly engaged in such singing so as to constitute the offence mentioned in Section 3 of the Prevention of Insults to National Honour Act.
The Kerala Education Act contains no provision of relevance. Section 36, however, enables the Government to make rules for the purpose of carrying into effect the provisions of the Act and in particular to provide for standards of education and courses of study. The Kerala
Education Rules have been made pursuant to the powers conferred by the Act. Chapter VIII of the Rules provides for the organisation of instruction and progress of pupils. Rule 8 of Chapter
VIII provides for moral instruction and expressly says "Moral instruction should form a definite programme in every school but it should in no way wound the social or religious susceptibilities of the peoples generally." The rule goes on to say that 'the components of a high character ' should be impressed upon the pupils. One of the components is stated to be 'love of one 's country '. Chapter IX deals with discipline. Rule 6 of Chapter IX provides for the censure, suspension or dismissal of a pupil found guilty of deliberate insubordination, mischief, fraud, mal-practice in examinations, conduct likely to cause unwholesome influence on other pupils etc. It is not suggested that the present appellants have ever been found guilty of misconduct such as that described in: Chapter IX, Rule 6. On the other hand, the report of the Commission, we are told, is to the effect that the children have always been well-behaved, law-abiding and respectful. The Kerala Education Authorities rely upon two circulars of September 1961 and February
1970 issued by the Director of Public Instruction, Kerala. The first of these circulars is said to be a Code of Conduct for Teachers and Pupils and stresses the importance of moral and spiritual values. Several generalisations have been made and under the head patriotism it is mentioned:
Patriotism
1. Environment should be created in the school to develop the right kind of patriotisms in the children. Neither religion nor party nor anything of this kind should stand against one 's love of the country.
2. For national integration, the basis must be the school.
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3. National Anthem, as a rule, the whole school should participate in the singing of the National anthem.
In the second circular also instructions of a general nature are given and para 2 of the circular, with which we are concerned, is as follows:
It is compulsory that all schools shall have the morning Assembly every day before actual instruction begins. The whole school with all the pupils and teachers shall be gathered for the Assembly. After the singing of the National Anthem the whole school shall, in one voice, take the National Pledge before marching back to the classes.
Apart from the fact that the circulars have no legal sanction behind them in the sense that they are not issued under the authority of any statute, we also notice that (the circulars do not oblige each and every pupil to join in the singing even if he has any conscientious objection based on his religious faith, nor is any penalty attached to not joining the singing. On the other hand, one of the circulars (the first one) very rightly emphasises the importance of religious tolerance. It is said there, "All religions should be equally respected.”
If the two circulars are to be so interpreted as to compel each and every pupil to join in the singing of the National Anthem despite his genuine, conscientious religious objection, then such compulsion would clearly contravene the rights guaranteed by Article 19(1)(a) and Article
25(1).
We have referred to Article 19(1)(a) which guarantees to all citizens freedom of speech and expression and to Article 19(2) which provides that nothing in Article 19(1)(a) shall prevent a State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by Article 19(1)(a) in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence.
The law is now well settled that any law which may be made, under Clauses (2) to (6) of Article
19 to regulate the exercise of the right to the freedoms guaranteed by Article 19(1)(a) to (e) and
(g) must be 'a law ' having statutory force and not a mere executive or departmental instruction.
In Kharak Singh v. State of U.P., AIR 1963 SC 1295 the question arose whether a police regulation which was a mere departmental instruction, having no statutory basis could be said to be a law for the purpose of Article 19(2) to (6). The Constitution Bench answered the question in the negative and said:
Though learned Counsel for the respondent started by attempting such a justification by invoking Section 12 of the Indian Police Act he gave this up and conceded that the regulations contained in Chap. XX had no such statutory basis but were merely executive or departmental instructions framed for the guidance of the police officers. They would not therefore be "a law" which the State is entitled to make under the relevant Clauses (2) to (6) of Article 19 in order to regulate or curtail fundamental rights guaranteed by the several sub-clauses of
Article 19(1), nor would the same be "a procedure established by law" within
Article 21. The position therefore is that if the action of the police which is the arm of the executive of the State is found to infringe any of the freedoms guaranteed to the petitioner the petitioner would be entitled to the relief of mandamus which he seeks, to restrain the State from taking action under the regulations. The two circulars on which the department has placed reliance in the present case have no statutory basis and are mere departmental instructions. They cannot, therefore, form the foundation of any action aimed at denying to citizen 's Fundamental Right under Article
19(1)(a). Further it is not possible to hold that the two circulars were issued 'in the interest of the sovereignty and integrity of India, the security of the State, friendly relation with foreign
Stales, public order, decency or morality, or in relation to contempt of Court, defamation or
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incitement to an offence and if not so issued, they cannot again be invoked to deny a citizen 's
Fundamental Right under Article 19(1)(a). …
Turning next to the Fundamental Right guaranteed by Article 25 … Article 25 is an article of faith in the Constitution, incorporated in recognition of the principle that the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country 's Constitution. This has to be borne in mind in interpreting Article 25.
We see that the right to freedom of conscience and freely to profess, practise and propagate religion guaranteed by Article 25 is subject to (1) public order, morality and health; (2) other provisions of Part III of the Constitution; (3) any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated ' with religious practice; or (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Thus while on the one hand, Article 25(1) itself expressly subjects the right guaranteed by it to public order, morality and health and to the other provisions of Part III, on the other hand, the State is also given the liberty to make a law to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practise and to provide for social welfare and reform, even if such regulation, restriction or provision affects the right guaranteed by Article
25(1). therefore, whenever the Fundamental Right to freedom of conscience and to profess, practise and propagate religion is invoked, the act complained of as offending the Fundamental
Right must be examined to discover whether such act is to protect public order, morality and health, whether it is to give effect to the other provisions of Part III of the Constitution or whether it is authorised by a law made to regulate or restrict any economic, financial, political or secular activity which may be associated with religious practise or to provide for social welfare and reform. It is the duty and function of the Court so to do. Here again as mentioned in connection with Article 19(2) to (6), it must be a law having the force of a statute and not a mere executive or a departmental instruction. We may refer here to the observations of Latham,
C.J. in Adelaide Company of Jehovah 's Witnesses v. The Commonwealth, 1943 CLR 116
(supra), a decision of the Australian High Court quoted by Mukherjea, J. in the Shirur Mutt case AIR 1954 SC 282. Latham, C. J. had said:
The Constitution protects religion within a community organized under a
Constitution, so that the continuance of such protection necessarily assumes the continuance of the community so organized. This view makes it possible to reconcile religious freedom with ordered government. It does not mean that the mere fact that the Commonwealth Parliament passes a law in the belief that it will promote the peace, order and good government of Australia precludes any consideration by a Court of the question whether or not such a law infringes religious freedom. The final determination of that question by Parliament would remove all; reality from the Constitutional guarantee. That guarantee is intended to limit the sphere of action of the legislature. The interpretation and application of the guarantee cannot, under our Constitution, be left to Parliament. If the guarantee is to have any real significance it must be left to the Courts of justice to determine its meaning and to give effect to it by declaring the invalidity of laws which infringe it and by declining to enforce them. The Courts will therefore have the responsibility of determining whether a particular law can fairly be regarded, as a law to protect the existence of the community, or whether, on the other hand, it is a law "for prohibiting the free exercise of any religion." The word "for" shows that the purpose of the legislation in question may properly be taken into account in determining whether or not it is a law of the prohibited character.
What Latham, C.J. has said about the responsibility of the Court accords with what we have said about the function of the Court when a claim to the Fundamental Right guaranteed by Article 25 is put forward.
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The meaning of the expression 'Religion ' in the context of the Fundamental Right to freedom of conscience and the right to profess, practise and propogate religion, guaranteed by
Article 25 of the Constitution, has been explained in the well-known cases of Commissioner,
Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt
AIR 1954 SC 282; Rati Lal Panachand Gandhi v. State of Bombay 1954 SCR1055 and S.P.
Mittal v. Union of India [1983] 1 SCC 51. It is not necessary for our present purpose to refer to the exposition contained in these judgments except to say that in the first of these cases
Mukherjea, J. made a reference to "Jehova 's Witnesses" and appeared to quote with approval the views of Latham, C.J. of the Australian High Court in Adelaide Company v. The
Commonwealth and those of the American Supreme Court in West Virginia State Board of
Education v. Barnette. In Ratilal 's case we also notice that Mukherjea, J. quoted as appropriate
Davar, J.’s following observations in Jamshedji v. Soonabai (1909) 33 Bom. 122:
If this is the belief of the Community and it is proved undoubtedly to be the belief of the Zoroastrian community,a secular Judge is bound to accept that beliefit is not for him to sit in judgment on that belief, he has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of his religion and the welfare of his community or mankind.
We do endorse the view suggested by Davar, J. 's observation that the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion.
Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject, of course, to the inhibitions contained therein. … We are satisfied, in the present case, that the expulsion of the three children from the school for the reason that because of their conscientiously held religious faith, they do not join the singing of the national anthem in the morning assembly though they do stand-up respectfully when the anthem is sung, is a violation of their fundamental right ‘to freedom of conscience and freely to profess, practise and propagate religion.’
… We, therefore, find that the Fundamental Rights of the appellants under Articles 19(1)(a) and 25(1) have been infringed and they are entitled to be protected. We allow the appeal, set aside the judgment of the High Court and direct the respondent authorities to re-admit the children into the school, to permit them to pursue their studies without hindrance and to facilitate the pursuit of their studies by giving them the necessary facilities. We only wish to add: our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practises tolerance; let us not dilute it.
The appellants are entitled to their costs.
SEPARATION OF RELIGION AND STATE
P. M. BHARGAVA V. UNIVERSITY GRANTS COMMISSION
(2004) 6 SCC 661
Decided On: May 5, 2004
BENCH – CHIEF JUSTICE S. RAJENDRA BAB & JUSTICE G. P. MATHUR
JUSTICE MATHUR (for the Court)
The introduction of “Jyotir Vigyan”, (science of astrology) as a course of study by the
University Grants Commission is subject matter of challenge in the present appeal which has
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been preferred by special leave against the judgment and order dated April 27, 2001 of High
Court of Andhra Pradesh.
A writ petition by way of public interest litigation was filed in the High Court of Andhra
Pradesh praying that a writ of mandamus be issued commanding the University Grants
Commission not to start and give any funds for Graduate and Post-Graduate Courses (B.Sc. and M.Sc.) in Jyotir Vigyan. The petition was preferred by Dr. P.M. Bhargava who was founder
Director of center for Cellular and Molecular Biology, Hyderabad and had received many awards including “Padma Bhushan"”in the year 1986 for his research, work and contribution to science. The other petitioners were Prof. K. Subash Chandra Reddy who was Head of
Department of Political Science, Osmania University, and Mrs. Chandana Chakrabarti who is a writer and consultant. It was pleaded in the writ petition that the University Grants
Commission (for short “the UGC”) had taken a decision to start and give grants for Graduate and Post Graduate (B.Sc. and M.Sc.) courses in Vedic Astrology called “Jyotir Vigyan” from the year 2001 onwards in various Universities and for teaching such a course posts of one
Professor, one Reader, two Lecturers, one Library Attendant and one Computer Operator shall be created for which a non-recurring grant of Rs. 15 lakhs shall be given to the said department in the Universities. Thus the total expenditure which will be required in starting the course in various universities would run into several crores. The course in Vedic Astrology cannot be termed as a course of scientific study as astrology had never been regarded as a science. Science is defined as knowledge acquired through the use of the scientific methods and the attributes of such knowledge include fallibility, verifiability and repeatability. Scientific truths are not dependant on whims and fancies of individuals. That apart science is international and if and when differences of opinion arise, scientists all over the world work honestly and diligently to resolve them. Astrology can not be regarded as a science, as it lacks the above mentioned features. It has never been supported by any scientific research or study conducted according to stringent scientific procedure. It was further averred that the proposal to introduce “Jyotir
Vigyan” is a clear attempt on the part of the respondents to saffronise education and of thrusting their hidden agenda of imposing Hindu values in higher education. It was also pleaded that research in the fields of pure science was being affected for want of funds and therefore there was no justification in spending huge amounts on a pseudo-science called Vedic Astrology which is a giant leap backwards.
The High Court after taking note of the meaning and other attributes of Astrology held that
Astrology is a subject which according to opinion of the experts require pursuit of further studies. It was a policy decision and while exercising power of judicial review under Article
226 of the Constitution, the High Court would not interfere with the aforesaid policy decision of the UGC to start a course in “Jyotir Vigyan”. The High Court was also of the opinion that the averments made in the writ petition and the relief sought showed that the UGC had not taken any final decision in the matter and therefore it should not interfere at this stage. The writ petition was accordingly dismissed summarily as not maintainable.
Shri Shanti Bhushan, learned senior counsel for the appellants has submitted that Vedic
Astrology is not a science and cannot be introduced in University curriculum as a scientific subject. Science is attributed with provable knowledge than with beliefs or opinions and it is defined as a branch of study which is concerned either with a concerned body of demonstrated truths or with observed facts systematically classified and more or less colligated by being brought under general laws, and which includes trustworthy methods for discovery of new truth within its domain. For a field to be science the knowledge must be acquired through the use of scientific methods and should have attributes like verifiability, fallibility and repeatability. If tested against these accepted and essential attributes of science, Vedic Astrology will unarguably fail on most, if not all, parameters mentioned above. Learned counsel has also
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submitted that the scientific community all over India has unanimously protested against the introduction of Vedic Astrology as a scientific stream of study in Universities. An appeal signed by a large number of reputed members of Indian Scientific Community and others against the decision of the respondents to start courses of Vedic Astrology was sent to the UGC wherein the impugned decision of UGC was termed as a giant leap backwards, undermining whatever scientific credibility the country has so far achieved. It has also been urged that the decision to introduce Vedic Astrology would erode and negate Article 51A of the Constitution which entrusts a fundamental duty upon the citizens of the country to develop a scientific temper, humanism and spirit of enquiry and reform. The teaching of Vedic Astrology will go diametrically against fundamental duties as enshrined in the Constitution. Lastly, it has been urged that the attempt of the respondents to introduce courses of Vedic Astrology in the
Universities is malafide and it amounts to saffronising education.
In support of his submission Shri Shanti Bhushan has referred two passages from 68
American Jurisprudence 2d paragraphs 343-345 which read as under:
343. Constitutional implications of teaching creationism and evolution. Legislation forbidding the teaching in public schools of the Darwinian theory of evolution has been found to constitute an impermissible state endorsement of a particular religious viewpoint. The mandated teaching of evolution as a major theme of science is not a violation of the Establishment Clause since evolution is not religion. The allegedly religious aspects of evolution theory have been ruled too insubstantial to make its teaching an establishment clause violation, particularly in the absence of any official policy regarding evolution.
Teaching or using books referring to evolution has been found not to violate the free exercise rights of persons believing in the literal truth of the Biblical story of creation, since the mere exposure to objectionable ideas, without governmental compulsion to affirm or deny a religious belief is insufficient to support a free exercise complaint.
A state statute, providing that the public schools are not required to teach either the theory of evolution or "creation science", but that if either one is taught, the other must also be taught, advances a religious doctrine in violation of the First Amendment 's establishment of religion clause, where state officials charged with implementing the statute fail to identify a clear secular purpose for it. Even though the statute 's stated purpose is to protect academic freedom, it violates the establishment clause where the evidence shows that the statute is primarily designed either to promote a particular religious tenet or to prohibit the teaching of a scientific theory disfavored by certain religious sects.
344. Wearing of religious garb by teachers. According to some decisions, the wearing by teachers in the public schools of clothing distinctive of some religious order is violative of a constitutional provision forbidding the use of public money in support of any school or institution in which any sectarian doctrine is taught or forbidding sectarianism in public schools. And it has been held that the prohibition of the wearing of any sectarian costume, either by regulation or statute is valid. On the other hand, other decisions hold that the mere wearing of religious garb by teachers, where there is no attempt to give instruction in religious or sectarian subjects, is not violative of any constitutional provision, and that absent a prohibiting statute or regulation, religious garb may be worn by teachers in public schools.
345. Use of school as place of worship or for religious purposes, generally. Neither
Congress nor the Supreme Court has seen fit to require a school district to open its doors to non students who wish to use school facilities for the purpose of conducting religious activities within a school. If the intended use of school facilities is not required or authorized by statute, there is no constitutional right to such use where a school district has not, by policy or practice, permitted a similar use in the past.
However, where a school district denies an organisation the use of its facilities for a religious purpose, having permitted other religious uses of school property in the past,
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the denial may be viewed as lacking viewpoint-neutrality, and may therefore be deemed unconstitutional.
It has been stated that the power of school authorities to prohibit the use of a schoolhouse for religious worship is well- recognized. Some statutes authorising or providing for the authorization of the use of public school premises for non school purposes, but not specifically permitting religious meetings or utilizations, have been construed by the courts as providing authority for the use of the school building as a place for holding church or other religious meetings at times when the school is not in session. In most cases in which persons applying to use a public school building during non schooltime for the holding of church services or some other religious meeting have contested the legality of the school authorities refusal to permit the particular use of the school premises, the courts have found that the school authorities acted lawfully in refusing the application.
An agreement entered by school officials to lease a high school auditorium during noninstructional hours to a nondenominational student study group for the purpose of conducting a baccalaureate service featuring religious speakers does not violate the
Establishment Clause, where :
•
•
•
the school board maintains an "open forum" policy toward all civic, private, and student groups, both religious and nonreligious, which seek to use its facilities during non-instructional hours; allowing the service to occur in the school auditorium would not have the primary effect of advancing religion, particularly since the school board had already formally and publicly dissociated itself from the baccalaureate service and refused to lend any financial support to the sponsoring group, and faculty and board members, while invited to attend, would not be involved in any aspect of the service either in their official or personal capacities; and the school board would have a minimal role in custodial oversight of the service. Under the Federal Equal Access Act, a school which provides a limited open forum by allowing non curriculum- related student groups to meet on school premises during non-instructional time cannot discriminate among groups on the basis of the content of speech. A public high school violates the Equal Access Act by denying students permission to form a Christian club which would meet on school premises during noninstructional time for purposes of Bible study, where the school 's existing student groups include a number which are noncurriculum related.
… On the strength of the above mentioned authorities it has been vehemently contended that teaching of “Jyotir Vigyan” would saffronise the education as it is not a scientific study but something peculiar to Hindus and associated with Hindu religion and, therefore, it will erode the concept of secularism which is the basic feature of the Constitution.
A counter-affidavit on behalf of the UGC has been filed in this Court. It is averred therein that under the University Grants Commission Act, 1956, the UGC has been entrusted with the duty, inter alia, to recommend measures for the improvement of university education. The decision in relation to academic matters are arrived at collectively by the Commission, which is a multi-member body established under Section 5 of the said Act. The members include persons, who are teachers in universities and also others who are experienced and knowledgeable in various other fields. The purpose of university education is multi-directional, its object is to provide structured instruction in all subjects of relevance and interests. In a country like India, there are various subjects in which instructions need to be imparted in a structured manner in view of the relevance of these subjects to society. For example, various forms of medicines and treatments, which are not prevalent in the western world, such as 'ayurvedic ', 'unani ' and 'tibia ' systems, are also parts of medical education in India. Indian wisdom, for example, encompasses things, such as belief in rebirth and cosmic existence.
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Mysteries of nature have not been fully fathomed by the human mind and therefore it would not be proper to denounce any such belief as being utterly unworthy of recognition. It is submitted that education and instruction should, in a liberal and pluralistic society, must accommodate as far as possible all points of view and provide for all sections of society. In fact a number of National dailies and magazines carry astrological columns as a regular feature, which are read by large number of people with interest.
The counter-affidavit of UGC also gives details regarding various steps which were taken by the Commission before taking a final decision for introducing 'Jyotir Vigyan ' as a part of graduation, post-graduation and Ph.D. courses and they are as under:
(i) This matter was first mooted on June 16, 2000.
(ii) On August 14, 2000, the Chairman, UGC, constituted a nine member Expert
Committee to report and recommend on the subject of opening of “Vedic Astrology” at the select universities. The expert committee held its meetings and discussed the matter with different bodies and persons.
(iii) On January 10, 2001, at its first meeting the Expert Committee recommended opening of the departments of “Jyotir Vigyan” instead of “Vedic Astrology” in universities for course studies and research leading to the award of certificate, diploma, degrees - both in undergraduate and post-graduate and Ph.D.
(iv) After the expert committee examined the matter, it placed a set of proposed guidelines, which were adopted by the Commission on January 25, 2001.
(v) On February 23, 2001, proposals were invited from the various universities on the basis of these guidelines for setting up of departments of “Jyotir Vigyan” for providing teaching and training in the subject leading to certificate, diploma, undergraduate, post- graduate and Ph.D. degrees. The universities were requested to submit their proposals as per the guidelines, latest by March 15, 2001. The last date was later on extended to May 5, 2001.
(vi) On June 13, 2001, the second meeting of the Expert Committee examined the proposals received from 41 universities for opening of departments of Jyotir Vigyan to conduct the degree courses in “Jyotir Vigyan”. The proposals came from 16 States of the country. The Committee recommended that the independent departments be created to conduct degree courses in 'Jyotir Vigyan ' only in 20 out of 41 universities who had applied for it.
(vii) On June 27, 2001, the Commission at its 397th meeting, approved the recommendations of the Expert Committee and decided that the independent departments of 'Jyotir Vigyan ' be created at 20 selected universities to conduct the courses leading to award of B.A./B.A. (Hons.)/M.A./Ph.D. degrees in “Jyotir Vigyan”.
The Commission also decided that the aforesaid selected universities be allowed to frame the required syllabus for respective B.A. and M.A. degree courses in “Jyotir
Vigyan” and while doing so, they may prefer to include among other subjects Astronomy, Cosmology and Mathematics etc. besides “Jyotir Vigyan” as the main subject. (viii) On July 21, 2001, the selected 20 universities were communicated the decision of the Commission for opening of an independent department of 'Jyotir Vigyan ' in their universities for conducting courses leading to award of B.A./B.A. (Hons.) M.A. and Ph.D. degrees in “Jyotir Vigyan”.
In pars 14 to 19 of the counter-affidavit details of the various other courses introduced by
UGC have been given which were hitherto not being taught as conventional subjects like
Functional Hindi, Functional Sanskrit, Functional English, Tourism and Travel Management,
Agro Services, namely, Animal Farming, Forestry & Wildlife Management, Soil Conservation
& Water Management, Hill Agriculture, Non-Conventional Energy Sources, Dryland
Agriculture, Rural Handicrafts, Gemology & Jewelry Designing, Cosmetology etc. It is also averred that UGC is processing to introduce certain other subjects in degree courses in selected
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universities like B.Sc./M.Sc. in Electronic Media, Clinical Nutrition and Dietetics, Water harvesting and Oceanography etc.
Before dealing with the contentions raised it will be useful to understand the meaning of the word 'Astrology ' as given in various dictionaries.
The science or doctrine of stars, and formerly often used as equivalent to astronomy, but now restricted in meaning to the pseudo science which claims to foretell the future by studying the supposed influence of the relative positions of the moon, sun and stars on human affairs [Webster 's New International dictionary] Either a science or a pseudo science, astrology - the forecasting of earthly and human events by means of observing and interpreting the fixed stars, the sun, the moon and the planets - has exerted a sometimes extensive and a sometimes peripheral influence in many civilizations, both ancient and modern. As a science, astrology has been utilized to predict or affect the destinies in individuals, groups or nations by means of what is believed to be a correct understanding of the influence of the planets and stars on earthly affairs. As a pseudo science, astrology is considered to be diametrically opposed to the findings and theories of modern
Western science. [Encyclopedia Britannica (2nd edition)]
According to the above mentioned standard books Astrology is a science which claims to foretell the future or make predictions by studying the supposed influence of the relative positions of the moon, sun, planets and other stars on human affairs. It, therefore, requires study of celestial bodies, of their positions, magnitudes, motions, and distances, etc. Astronomy is a pure science. It was studied as a subject in ancient India and India has produced great astronomers, long before anyone in the western world studied it as a subject. Since Astrology is partly based upon study of movement of sun, earth, planets and other celestial bodies, it is a study of science at least to some extent.
The Counter-affidavit filed on behalf of the UGC shows that the UGC constituted a ninemember Committee which after discussion and deliberations recommended opening of the departments of “Jyotir Vigyan” in universities for award of degrees. The Committee has recommended to create such courses only in 20 out of 41 universities which had applied for the same and the degree which would be awarded will be B.A./B.A.(Hons.)/M.A./Ph.D. The decision to start the course has been taken by an expert body constituted by the UGC. The courts are not expert in academic matters and it is not for them to decide as what course should be taught in university and what should be their curriculum. This caution was sounded in
University of Mysore v. Govinda Rao [1964] 4 SCR 575 wherein Gajendragadkar, J. (as His
Lordship then was) speaking for the Constitution Bench held that it would normally be wise and safe for the courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than the courts generally can be. In this case challenge was made to certain appointments and the Bench held that what the High Court should consider is whether the appointment made by the Chancellor on the recommendation of the Board had contravened any statutory or binding rule or ordinance, and in doing so, the High Court should show due regard to the opinion expressed by the Board and its recommendations on which the
Chancellor has acted. This principle was reiterated in J.P. Kulshreshtha v. Chancellor,
Allahabad University (1980) 3 SCC 418 wherein it was held as under:
While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies. But university organs, for that matter any authority in our system are bound by the rule of law and cannot be law unto themselves. If the Chancellor or any other authority lesser in level decides an academic matter or an educational question, the court keeps its hands off; but where a provision of law has to be read and understood, it is not fair to keep the court out.
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The above mentioned principle has been consistently followed by this Court and it is not necessary to burden this judgment by giving references of those cases.
The appellants do not allege breach of any statutory provision, rule or regulation. Their complaint is that the inclusion of Jyotir Vigyan as a course of study in the university is wrong as the accuracy or correctness of the subject, namely Jyotir Vigyan has not been established by the scientific tests or experiments. The precise question as to whether Jyotir Vigyan should be included as a course of study having been considered and examined by an Expert Body of UGC and they having recommended for including the said course for study and award of degree in universities, it will not be proper for this Court to interfere with the aforesaid decision specially when no violation of any statutory provisions is demonstrated.
We are unable to accept the contention of the learned counsel for the appellants that the prescription of Jyotir Vigyan as a course of study has the effect of saffronising education or that it in any manner militates against the concept of secularism which is part of the basic structure of the Constitution and is essential for the governance of the country.
In DAV College v. State of Punjab AIR 1971 SC 1737, challenge was made to certain provisions of Guru Nanak University Amritsar Act (Act 21 of 1969) which made a provision for study and research on the life and teachings of Guru Nanak and their cultural and religious impact in the context of national and world civilisations on the ground that such a provision would propagate Sikh religion and would violate the rights of the writ petitioners therein guaranteed under Article 30(1) of the Constitution. Violation of Articles 14 and 19(1)(c) was also pleaded. The Constitution Bench repelled the challenge in the context of section 4(2) of the relevant Act which provided for study and research on the life and teachings of Guru Nanak and it was held as under:
Religious instruction is that which is imparted for inculcating the tenets, the rituals, the observances, ceremonies and modes of worship of a particular sect or denomination. To provide for academic study of life and teaching or the philosophy and culture of any great saint of India in relation to or the impact on the Indian and world civilizations cannot be considered as making provision for religious instructions.
In Santosh Kumar v. Secretary, Ministry of Human Resources AIR 1995 SC 293 it was held that teaching of Sanskrit alone as an elective subject can in no way be regarded as against secularism. The decision of the United States Supreme Court cited by learned counsel for the appellants can hardly have any application here as teaching of “Jyotir Vigyan” can under no circumstances be equated with teaching of any particular religion. We are, therefore, of the opinion that the challenge made to the inclusion of Jyotir Vigyan as a course of study on the ground that the same will violate or impinge upon the concept of secularism enshrined in the
Constitution has therefore no merit and must be rejected.
A similar challenge to the inclusion of “Jyotir Vigyan” as a course of study was made by one Dr. K. Natarajan by filing WP no. 13540 of 2001 (Dr. K. Natarajan v. Union of India) before the Madras High Court. Mr. Justice F.M. Ibrahim Kalifulla who heard the writ petition held that the very purpose of imparting education is to gain knowledge and therefore there should be every scope for making a study on very many subjects in order to enrich ones craving for knowledge. Any such attempt from any quarters in furtherance of that pursuit should not be stultified. The learned Judge further held that it was for the pupil concerned to select any particular field or subject in furtherance of his future career, and merely because the subject has got its basis or origin traceable to some cult, it cannot be held that the same would only result in propagation of a particular religion. On these findings the writ petition was dismissed.
We are in agreement with the view taken by the Madras High Court.
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For the reasons discussed above, the appeal lacks merit and hereby dismissed with costs.This appeal is directed against a judgment of a Division Bench of the Madras High Court, dated the 13th of December
PRAFULL GORADIA V. UNION OF INDIA
(2011) 2 SCC 568
Decided On: January 28, 2011
BENCH – JUSTICES MARKANDEY KATJU & GYAN SUDHA MISRA
ORDER PER COURT [the law reports do not indicate who authored the opinion]
… This Writ Petition under Article 32 of the Constitution had been initially filed challenging the constitutional validity of the Haj Committee Act 1959, but thereafter by an amendment application the Haj Committee Act of 2002 which replaced the 1959 Act, has been challenged. The ground for challenge is that the said Act is violative of Articles 14, 15, and 27 of the
Constitution. The grievance of the Petitioner is that he is a Hindu but he has to pay direct and indirect taxes, part of whose proceeds go for the purpose of the Haj pilgrimage, which is only done by Muslims. For the Haj, the Indian Government inter alia grants a subsidy in the air fare of the pilgrims.
Particular emphasis has been given by the Petitioner to Article 27 of the Constitution which states: 27. Freedom as to payment of taxes for promotion of any particular religion.--No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
The Petitioner contends that his fundamental right under Article 27 of the Constitution is being violated. We have, therefore, to correctly understand and interpret Article 27.
There are not many decisions which have given an indepth interpretation of Article 27. The decision in Commissioner, Hindu Religious Endowments v. Swamiar of Shirur Mutt AIR 1954
SC 282… that since the object of the Madras Hindu Religious and Charitable Endowments
Act, 1951 is not to foster or preserve the Hindu religion but to see that religious trusts and institutions are properly administered, Article 27 is not attracted. The same view was taken in
Jagannath Ramanuj Das v. State of Orissa, AIR 1954 SC 400. …
There can be two views about Article 27. One view can be that Article 27 is attracted only when the statute by which the tax is levied specifically states that the proceeds of the tax will be utilized for a particular religion. The other view can be that Article 27 will be attracted even when the statute is a general statute, like the Income Tax Act or the Central Excise Act or the
State Sales Tax Acts (which do not specify for what purpose the proceeds will be utilized) provided that a substantial part of such proceeds are in fact utilized for a particular religion.
In our opinion Article 27 will be attracted in both these eventualities. This is because
Article 27 is a provision in the Constitution, and not an ordinary statute. Principles of interpreting the Constitution are to some extent different from those of interpreting an ordinary statute … The object of Article 27 is to maintain secularism, and hence we must construe it from that angle.
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… In our opinion Article 27 would be violated if a substantial part of the entire income tax collected in India, or a substantial part of the entire central excise or the customs duties or sales tax, or a substantial part of any other tax collected in India, were to be utilized for promotion or maintenance of any particular religion or religious denomination. In other words, suppose
25 per cent of the entire income tax collected in India was utilized for promoting or maintaining any particular religion or religious denomination, that, in our opinion, would be violative of
Article 27 of the Constitution.
However, the Petitioner has not made any averment in his Writ Petition that a substantial part of any tax collected in India is utilized for the purpose of Haj. All that has been said in paragraph 5 (i) and (ii) of the Writ Petition is:
(i) That the Respondent herein has been imposing and collecting various kinds of direct and indirect taxes from the Petitioner and other citizens of the country.
(ii) That a part of the taxes so collected have been utilized for various purposes including promotion and maintenance of a particular religion and religious institutions. Thus, it is nowhere mentioned in the Writ Petition as to what percentage of any particular tax has been utilized for the purpose of the Haj pilgrimage. The allegation in para 5(ii) of the
Writ Petition is very vague.
In our opinion, if only a relatively small part of any tax collected is utilized for providing some conveniences or facilities or concessions to any religious denomination, that would not be violative of Article 27 of the Constitution. It is only when a substantial part of the tax is utilized for any particular religion that Article 27 would be violated.
As pointed out in para 8 (iv), (v) and (viii) of the counter affidavit filed on behalf of the
Central Government, the State Government incurs some expenditure for the Kumbh Mela, the
Central Government incurs expenditure for facilitating Indian citizens to go on pilgrimage to
Mansarover, etc. Similarly in para 8 (vii) of the counter affidavit it is mentioned that some State
Governments provide facilities to Hindu and Sikh pilgrims to visit Temples and Gurudwaras in Pakistan. These are very small expenditures in proportion to the entire tax collected.
Moreover, in para 8(iii) of the counter affidavit the Central Government has stated that it is not averse to the idea of granting support to the pilgrimage conducted by any community.
In our opinion, we must not be too rigid in these matters, and must give some free play to the joints of the State machinery. A balanced view has to be taken here, and we cannot say that even if one paisa of Government money is spent for a particular religion there will be violation of Article 27.
… Hence, in our opinion, there is no violation of Article 27 of the Constitution.
There is also no violation of Articles 14 and 15 because facilities are also given, and expenditures incurred, by the Central and State Governments in India for other religions. Thus there is no discrimination. … Parliament has the legislative competence to enact the Haj
Committee Act in view of entry 20 to List 1 of the Seventh Schedule to the Constitution which states: "Pilgrimages to places outside India".
Thus there is no force in this petition and it is dismissed.
Before parting with this case we would like to mention that India is a country of tremendous diversity, which is due to the fact that it is broadly a country of immigrants (like North America) as explained in detail by us in Kailas v. State of Maharashtra (2011) 1 SCC 793. As observed in paragraph 32 of the said decision, since India is a country of great diversity, it is absolutely essential if we wish to keep our country united to have tolerance and equal respect for
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communities and sects (see also in this connection the decision in Hinsa Virodhak Sangh v.
Mirzapur Moti Kuresh Jamaat AIR 2008 SC 1892 vide paragraphs 41 to 60). It is due to the wisdom of our founding fathers that we have a Constitution which is secular in character, and which caters to the tremendous diversity in our country.
It may be mentioned that when India became independent in 1947 there were partition riots in many parts of the sub-continent, and a large number of people were killed, injured and displaced. Religious passions were inflamed at that time, and when passions are inflamed it is difficult to keep a cool head. It is the greatness of our founding fathers that under the leadership of Pandit Jawaharlal Nehru they kept a cool head and decided to declare India a secular country instead of a Hindu country. This was a very difficult decision at that time because Pakistan had declared itself an Islamic State and hence there must have been tremendous pressure on Pandit
Jawaharlal Nehru and our other leaders to declare a Hindu State. It is their greatness that they resisted this pressure and kept a cool head and rightly declared India to be a secular state.
This is why despite all its tremendous diversity India is still united. In this sub-continent, with all its tremendous diversity (because 92 per cent of the people living in the sub continent are descendants of immigrants) the only policy which can work and provide for stability and progress is secularism and giving equal respect to all communities, sects, denominations, etc.
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UNIT 11 – MINORITY RIGHTS (ARTICLES 29 AND 30)
S. AZEEZ BASHA V. UNION OF INDIA
AIR 1968 SC 662
Decided On: October 20, 1967
BENCH – JUSTICES K. N. WANCHOO, R. S. BACHAWAT, V. RAMASWAMI, G. K. MITTER & K.
S. HEGDE
JUSTICE WANCHOO (FOR THE COURT)
These five writ petitions raise common questions and will be dealt with together. They attack the constitutionality of the Aligarh Muslim University (Amendment) Act, No. 62 of 1951
(hereinafter referred to as the ‘1951-Act’) and the Aligarh Muslim University (Amendment) Act,
No. 19 of 1965, (hereinafter referred to as the ‘1965-Act’). The principal attack is based on the provisions of Art. 30(1) which lays down that "all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice".
The case of all the petitioners is that the Aligarh Muslim University (hereinafter referred to as the
Aligarh University) was established by the Muslim minority and therefore the Muslims had the right to administer it and in so far as the Acts of 1951 and 1965 take away or abridge any part of that right they are ultra vires Art. 30(1). Besides this principal attack, the two Acts are also subsidiarily attacked for violating the fundamental rights guaranteed under Articles 14, 19, 25, 26,
29 and 31 of the Constitution. It is unnecessary to set out the nature of the attack under these
Articles for that will appear when we deal with the matter in detail later; suffice it to say that all the petitions do not make the attack under all these Articles, but the sum total of the subsidiary attack in all these petitions takes in its sweep all these six Articles.
The petitions have been opposed on behalf of the Union of India and its main contention is that the Aligarh University was established in 1920 by the Aligarh Muslim University Act, No.
XL of 1920, (hereinafter refereed to as the ‘1920-Act’) and that this establishment was not by the
Muslim minority but by the Government of India by virtue of a statute namely, the 1920-Act and therefore the Muslim minority could not claim any fundamental right to administer the Aligarh
University under Art. 30(1). It was further contended that as the Aligarh University was established by the 1920-Act by the Government of India, Parliament had the right to amend that statute as it thought fit in the interest of education and the amendments made by the Acts of 1951 and 1965 were perfectly valid as there was no question of their taking away the right of the Muslim minority to administer the Aligarh University, for the minority not having established the University could not claim the right to administer it. It was further contended that the fact that under the provisions of the 1920-Act the Court of the Aligarh University was to be composed entirely of Muslims, did not give any right to the Muslim community as such to administer the University when had been administered by the authorities established by the 1920-Act. It was further contended that the attack based on the six Articles of the Constitution to which we have referred already had no substance and did not in any manner make the Acts of 1951 and 1965 unconstitutional. We do not think it necessary at this stage to give in detail the reply of the Government of India on these points and shall refer to it as and when the occasion arises.
It is necessary to refer to the history previous to the establishment of the Aligarh University in
1920 in order to understand the contentions raised on either side. It appears that as far back as 1870
Sir Syed Ahmed Khan thought that the backwardness of the Muslim community was due to their neglect of modern education. He therefore conceived the idea of imparting liberal education to
Muslims in literature and science while at the same time instruction was to be given in Muslim religion and traditions also. With this object in mind, he organised a Committee to devise ways
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and means for educational regeneration of Muslims and in May 1872 a society called the
Muhammadan Anglo-Oriental College Fund Committee was started for collecting subscriptions to realise the goal that Sir Syed Ahead khan had conceived. In consequence of the activities of the committee a school was opened in May 1873. In 1876, the school become a High School and in
1877 Lord Lytton, then Viceroy of India, laid the foundation stone for he establishments of a college. The Muhammadan Anglo Oriental College. Aligarh (hereinafter referred to as the M.A.O.
College) was established thereafter and was, it is said a flourishing institution by the time sir Syed
Ahmed Khan died in 1898.
It is said that thereafter the idea of establishing a Muslim University gathered strength from year to year at the turn of the century and by 1911 some funds were collected and a Muslim
University Association was established for the purpose of establishing a teaching University at
Aligarh. Long negotiations took place between the Association and the Government of India, which eventually resulted in the establishment of the Aligarh University in 1920 by the 1920-Act.
It may be mentioned that before that a large sum of money was collected by the Association for the University as the Government of India had made it a condition that rupees thirty lakhs must be collected for University before it could be established. Further it seems that the existing M.A.O.
College was made the basis of the University and was made over to the authorities established by the 1920-Act for the administration of the University along with the properties and funds attached to the college, the major part of which had been contributed by Muslims though some contritions were made by other communities as well.
It is necessary now to refer in some detail to the provisions of the 1920-Act to see how the
Aligarh University came to be established. The long title of the 1920-Act is in these words:
An Act to establish and incorporate a teaching and residential Muslim University at Aligarh.
The preamble says that "it is expedient to establish and incorporate a teaching and residential
Muslim University at Aligarh, and to dissolve the Societies registered under the Societies
Registration Act, 1860, which are respectively known as the Muhammadan Anglo-Oriental
College, Aligarh and the Muslim University Association, and to transfer and vest in the said
University all properties and rights of the said Societies and the Muslim University Foundation
Committee". It will be seen from this that the two earlier societies, one of which was connected with the M.A.O. College and the other had been formed for collecting funds for the establishment of the University at Aligarh, were dissolved and all their properties and rights and also of the
Muslim University Foundation Committee, which presumably collected funds for the proposed
University were transferred and vested in the University established by the 1920-Act.
Section 3 of the 1920-Act laid down that "the First Chancellor, Pro-Chancellor and ViceChancellor shall be the persons appointed in this behalf by a notification of the Governor General in Council in the Gazette of India and the persons specified in the schedule [shall be] the first members of the Court" and they happened to be all Muslim. Further s. 3 constituted a body corporate by the name of the Aligarh Muslim University and this body corporate was to have perpetual succession and a Common Seal and could sue and be sued by that name. Section 4 dissolved that M.A.O. College and the Muslim University Association and all property, movable and immovable, and all rights, powers and privileges of the two said societies, and all property, movable and immovable, and all rights, powers and privileges of the Muslim University
Foundation Committee were transferred and vested in the Aligarh University and were to be applied to the object and purposes for which the Aligarh University was incorporated. All dates, liabilities and obligations of the said societies and Committee were transferred to the University, which was made responsible for discharging and satisfying them. All references in any enactment to either of the societies or to the said Committee were to be construed as references to the
University. It was further provided that any will, deed or other documents, whether made or
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executed before or after the commencement of the 1920-Act, which contained any bequest, gift or trust in favor of any of the said societies or of the said Committee would, on the commencement of the 1920-Act be construed as if the University had been named therein instead of such society or Committee. The effect of this provision was that the properties endowed for the purpose of the
M.A.O. College were to be used for the Aligarh University after it came into existence. These provisions will show that the three previous bodies legally came to an end and every thing that they were possessed of was vested in the University as established by the 1920-Act. Section 5 provides for the powers of the University including the power to hold examinations and to grant and confer degrees and other academic distinctions.
Section 6 is important. It laid down that "the degrees, diplomas and other academic distinctions granted or conferred to or on person by the University shall be recognised by the Government as are the corresponding degrees, diplomas and other academic distinctions granted by any other
University incorporated under any enactment". Section 7 provided for reserve funds including the sum of rupees thirty lakhs. Section 8 provided that "the University shall, subject to the provisions of this Act and the Ordinances, be open to all persons of either sex and of whatever race, creed or class", which shows that the University was not established for Muslim alone. Under section 9 the
Court was given the power to make Statutes providing that instruction in the Muslim religion would be compulsory in the case of Muslim students. Sections 10, 11 and 12 made other provisions necessary for the functioning of a University but they are not material for our purpose.
Section 13 is another important section. It provided that "the Governor General shall be the
Lord Rector of the University". Further sub-s. (2) of s. 13 provided that "the Lord Rector shall have the right to cause an inspection to be made by such person or persons as he may direct, of the
University, its buildings, laboratories, and equipment, and of and institution maintained by the
University, and also of the examinations, teaching and other work conducted or done by the
University, and to cause an inquiry to be made in like manner in respect of any matter connected with the University. The Lord Rector shall in every case give notice to the University of his intention to cause an inspection or inquiry." After the enquiry, the Lord Rector had the power to address the Vice-Chancellor with reference to the result of such inspection and inquiry and the
Vice-Chancellor was bound to communicate to the Court the views of the Lord Rector with such advice as the Lord Rector might offer upon the action to be taken thereon. The Court was then required to communicate through the Vice-Chancellor to the Lord Rector such action if any as was proposed to be taken or was taken upon the result of such inspection or inquiry. Finally the Lord
Rector was given the power where the Court did not, within reasonable time, take action to the satisfaction of the Lord Rector to issue such directions as he thought fit after considering any explanation furnished or representation made by the Court and the Court was bound to comply with such directions. There provisions clearly bring out that the final control in the matter was with the Lord Rector who was the Governor-General of India.
Then comes s. 14 which is again an important provision, which provided for the Visiting Board of the University, which consisted of the Governor, the members of the Executive Council the
Ministers, one member nominated by the Governor and one member nominated by the Minister in charge of Education. The Visiting Board had the power to inspect the University and to satisfy itself that the proceedings of the University were in conformity with the Act, Statutes and
Ordinances, after giving notice to the University of its intention to do so. The Visiting Board was also given the power, by order in writing, to annul any proceedings not in conformity with the Act,
Statutes and Ordinances, provided that before making such and order, the Board had to call upon the University to show cause why such an order should not be made, and to consider such cause if shown within reasonable time. This provision, though not so all - pervasive as the provision in s.
13 of the 1920-Act, shows that the Visiting Board had also certain over-riding power in case the
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University authorities acted against the Act, Statutes and Ordinances. There is no condition that the Lord Rector and the members of the Visiting Board must belong to the Muslim community.
Sections 15 to 21 are not material for our purposes. They made provisions for officers of the
University and Rectors and laid down that "the Powers of officers of the University other than the
Chancellor, the Pro-Chancellor, the Vice-Chancellor and the Pro-Vice-Chancellor shall be prescribed by the Statutes and the Ordinances". Section 22 provided for the authorities of the
University, namely, the Court, the Executive Council and the Academic Council and such other authorities as might be declared by the Statutes to be authorities of the University. Section 23 provided for the constitution of the Court, and the proviso to sub-section (1) has been greatly stressed on behalf of the petitioners which laid down that "no person other than a Muslim shall be a member thereof". It may be added here that the Select Committee which went into the Bill before the 1920-Act was passed was not very happy about this proviso and observed that:
In reference to the constitution of the Court we have retained the provision that no person other than Muslim shall be a member thereof. We have done this as we understand that such a provision is in accordance with the preponderance of
Muslim feeling though some of us are by no means satisfied that such a provision is necessary.
By section 23(2), the Court was to be the supreme governing body of the University and would exercise all the powers of the University, not otherwise provided for by the 1920-Act, the Statutes, the Ordinances and the Regulations. It was given the power to review the acts of the Executive and the Academic Councils, save where such Councils had acted in accordance with powers conferred on them under the Act, the Statutes or the Ordinances and to direct that necessary action be taken by the Executive or the Academic Council, as the case might be, on any recommendation of the Lord Rector. The power of making Statutes was also conferred on the Court along with other powers necessary for the functioning of the University.
Section 24 dealt with the Executive Council, s. 25 with the Academic Council and s. 26 with other authorities of the University. Section 27 laid down what the Statues might provide. Section
28 dealt with the question of the first Statutes and how they were to be amended, repealed and added to. There is an important provision in s. 28 which laid down that "no new Statute or amendment or repeal of an existing Statute shall have any validity, until it has been submitted through the Visiting Board (which may record its opinion thereon) to the Governor General in
Council, and has been approved by the latter, who may sanction, disallow or remit it for further consideration." This provision clearly shows that the final power over the administration of the
University rested with the Governor General in Council. Section 29 dealt with Ordinances and what they could provide and s. 30 provided which authorities of the University could make
Ordinances. Section 30(2) provided that "the first Ordinances shall be framed as directed by the
Governor General in Council…" and sub-s. (3) thereof laid down that "no new Ordinances, or amendment or repeal of an existing Ordinance shall have any validity until it has been submitted through the Court and the Visiting Board (which may record its opinion thereon) to the Governor
General in Council, and has obtained the approval of the latter, who may sanction, disallow or remit it for further consideration". This again shows that even Ordinances could not be made by the University with out the approval of the Governor General in Council. If any dispute arose between the Executive and the Academic Council as to which had the power to make an Ordinance, either Council could represent the matter to the Visiting Board and the Visiting Board had to refer the same to a tribunal consisting of three members, one of whom was to be nominated by the
Executive Council, one by the Academic Council, and one was to be a Judge of the High Court nominated by the Lord Rector. This again shows that in the matter of such disputes, the Court which is called the supreme governing body of the University, did not have the power to resolve it. Section 31 provided for the making of Regulations, which had to be consistent with the Statutes and Ordinances. It is only the Regulations which did not require the approval of the Governor
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General before they came into force. Section 32 provided for admission of students to the
University and sub-s. (4) thereof provided that "the University shall not save with the previous sanction of the Governor General in Council recognise (for the purpose of admission to a course of study for a degree) as equivalent to its own degrees, any degree conferred by any other
University or as equivalent to the Intermediate Examination of an Indian University, any examination conducted by any other authority". This shows that in the matter of admission the
University could not admit students of other institutions unless the Governor General in Council approved the degree or any other examination of the institutions other than Indian Universities established by law. Section 33 provided for examinations, s. 34 for annual report and s. 35 for annual accounts. Section 36 to 38 provided for supplementary matters like conditions of service of officers and teachers, provident and pension funds, filling of casual vacancies and are not material for our purposes. Section 39 laid down that "no act or proceeding of any authority of the
University shall be invalidated merely by reason of the existence of vacancy or vacancies among its members". Section 40 is important and laid down that "if any difficulty arises with respect to the establishment of the University or any authority of the University or in connection with the first meeting of any authority of the University, the Governor General in Council may by order make any appointment or do anything which appears to him necessary or expedient for the proper establishment of the University or any authority thereof or for the first meeting of any authority of the University." This again shows the power of the Governor General in Council in the matter of establishment of the University.
This brings us to the end of the sections of the 1920-Act. There is nothing anywhere in any section of the Act which vests the administration of the University in the Muslim community. The fact that in the proviso to s. 23(1) it is provided that the Court of the University shall consist only of Muslims does not necessarily mean that the administration of the University was vested or was intended to be vested in the Muslim minority. If anything, some of the important provisions to which we have already referred show that the final power in almost every matter of importance was in the Lord Rector, who was the Governor General or in the Governor General in Council.
Then follows the schedule which provided for the first Statutes of the Aligarh University.
These Statutes provided for the Rectors of the University, the Vice-Chancellor, Pro-ViceChancellor, Treasurer, Register, Proctor and Librarian, the Court, constitution of the Court, the first Court, meetings of the Court and the powers of the Court, the Executive Council, the powers of the Executive Council, the Academic Council and its powers, departments of studies, appointments, register of graduates, convocations, Committees and so on. The Annexure to the
1920-Act gave the names of the Foundation Members of the Court numbering 124 who were all
Muslims and who were to hold office for five years from the commencement of the Court.
Such were the provisions of the 1920-Act. They continued in force till 1951 without any substantial amendment. In 1951, the 1951-Act was passed. It made certain changes in the 1920Act mainly on account of the coming into force of the Constitution. We shall refer only to such changes as are material for our purposes. The first material change was the deletion of s. 9 of the
1920-Act which gave power to the Court to make Statutes providing for compulsory religious instruction in the case of Muslim students. This amendment was presumably made in the interest of the University in view of Art. 28(3) of the Constitution which lays down that "no person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto." It was necessary to delete s. 9 as otherwise the University might have lost the grant which was given to it by the Government of India. Further s. 8 of the 1920-Act was amended and the new section provided that "the University shall be open to persons of either sex and of whatever race,
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creed, caste, or class, and it shall not be lawful for the University to adopt or impose on any person, any test whatsoever of religious belief or profession in order to entitle him to be admitted therein, as a teacher or student, or to hold any office therein, or to graduate thereat, or to enjoy or exercise any privilege thereof, except in respect of any particular benefaction accepted by the University, where such test is made a condition thereof by any testamentary or other instrument creating such benefaction." The new s. 8 had also a proviso laying down that "nothing in this section shall be deemed to prevent religious instruction being given in the manner prescribed by the Ordinances to those who have consented to receive it". Clearly section 9 was deleted and s. 8 was amended in this manner to bring the law into conformity with the provisions of the Constitution and for the benefit of the University so that it could continue to receive aid from the Government. Some amendment was also made in s. 13 in view of the changed constitutional set-up and in place of the
Lord Rector, the University was to have a Visitor. Section 14 was also amended and the power of the Visiting Board was conferred on the Visitor by addition of a new sub-s. (6).
The next substantial change was that the proviso to s. 23(1) which required that all members of the Court would only be Muslims was deleted. Other amendments are not material for our purpose as they merely relate to administrative details concerning the University.
It will thus be seen that by virtue of the 1951-Act non-Muslims could also be members of the
Court. But the Court still remained the supreme governing body of the University as provided by
s. 23(1) of the 1920-Act. It is remarkable that though the proviso to s. 23(1) was deleted as far back as 1951, there was no challenge to the 1951 Act till after Ordinance No. II of 1965 was passed. The reason for this might be that there was practically no substantial change in the administrative set-up of the 1920-Act and it was only when a drastic change was made by the
Ordinance of 1965, followed by the 1965-Act, that challenge was made not only to the 1965 Act but also to the 1951 Act in so far as it did away with the proviso to s. 23(1). It is not our function in the present petitions to consider the policy underlying the amendments made by the 1965 Act; nor do we propose to go into the merits of the amendments made by the 1965-Act. We are in the present petitions concerned only with the constitutionality of the provisions of the 1965-Act. If the provisions are constitutional, they were within the legislative competence of Parliament.
This brings us to the changes made in the 1965-Act which have occasioned the present challenge. The main amendment in the 1965-Act was in s. 23 of the 1920-Act with respect to the composition and the powers of the Court of the University. Sub-sections (2) and (3) of the 1920Act were deleted, with the result that the Court no longer remained the supreme governing body and could no longer exercise the powers conferred on it by Sub-ss. (2) and (3) of s. 23. In place of these two sub-sections, a new sub-section (2) was put in which reduced the functions of the Court to three only, namely, "(a) to advise the Visitor in respect of any matter which may be referred to the Court for advise; (b) to advise any other authority of the University in respect of any matter which may be referred to the Court for advise; and (c) to perform such other duties and exercise such other powers as may be assigned to it by the Visitor or under this Act". It further appears from the amendments of Sections 28, 29, 34 and 38 that the powers of the Executive Council were correspondingly increased. The Statutes were also amended and many of the powers of the Court were transferred by the amendment to the Executive Council. Further the constitution of the Court was drastically changes by the amendment of the 8th Statute and it practically became a body nominated by the Visitor except for the Chancellor, the Pro-Chancellor, the members of the
Executive Council who were exofficio members and three members of Parliament, two to be nominated by the speaker of the House of the People and one by the Chairman of the Council of
States. Changes were also made in the constitution of the Executive Council. Finally the 1965-Act provided that "every person holding office as a member of the Court or the Executive Council, as the case may be, immediately before the 20th day of May 1965 (on which date Ordinance No. II of 1965 was promulgated) shall on and from the said date cease to hold office as such". It was also
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provided that until the Court or the Executive Council was reconstituted, the Visitor might by general or special order direct any officer of the University to exercise the powers and perform the duties conferred or imposed by or under the 1920-Act as amended by the 1965-Act on the Court or the Executive Council as the case may be.
The contention of the petitioners is that by these drastic amendments in 1965 the Muslim minority was deprived of the right to administer the Aligarh University and that this deprivation was in violation of Art. 30(1) of the Constitution; and it is to this question we turn now.
Under Article 30(1), “all minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice”. We shall proceed on the assumption in the present petitions that Muslims are a minority based on religion. What then is the scope of Art. 30(1) and what exactly is the right conferred therein on the religious minorities. It is to our mind quite clear that Art. 30(1) postulates that the religious community will have the right to establish and administer educational institutions of their choice meaning thereby that where a religious minority establishes an educational institution, it will have the right to administer that.
An argument has been raised to the effect that even though the religious minority may not have established the educational institution, it will have the right to administer it, if by some process it had been administering the same before the Constitution came into force. We are not prepared to accept this argument.
The Article in our opinion clearly shows that the minority will have the right to administer educational institutions of their choice provided they have established them, but not otherwise.
The Article cannot be read to mean that even if the educational institution has been established by somebody else, any religious minority would have the right to administer it because, for some reason or other, it might have been administering it before the Constitution came into force. The words "establish and administer" in the Article must be read conjunctively and so read it gives the right to the minority to administer an educational institution provided it has been established by it.
In this connection our attention was drawn to In Re: The Kerala Education Bill, 1957 [1959] 1
SCR 995 where, it is argued, this Court had held that the minority can administer an educational institution even though it might not have established it. In that case an argument was raised that under Art. 30(1) protection was given only to educational institutions established after the
Constitution came into force. That argument was turned down by this Court for the obvious reason that if that interpretation was given to Art. 30(1) it would be robbed of much of its content. But that case in our opinion did not lay down that the words “establish and administer” in Art. 30(1) should be read disjunctively, so that though a minority might not have established an educational institution it had the right to administer it. It is true that at p. 1062 the Court spoke of Art. 30(1) giving two right to a minority i.e. (i) to establish and (ii) to administer. But that was said only in the context of meeting the argument that educational institutions established by minorities before the Constitution came into force did not have the protection of Art. 30(1). We are of opinion that nothing in that case justifies the contention raised on behalf of the petitioners that the minorities would have the right to administer an educational institution even thought the institution may not have been established by them. The two words in Art. 30(1) must be read together and so read the
Article gives the right to the minority to administer institutions established by it. If the educational institution has not been established by a minority it cannot claim the right to administer it under
Art. 30(1). We have therefore to consider whether the Aligarh University was established by the
Muslim minority; and if it was so established, the minority would certainly have the right to administer it.
We should also like to refer to the observations in Durgah Committee, Ajmer v. Syed Hussain
Ali [1962] 1 SCR 383. In that case this Court observed while dealing with Art. 26(a) and (d) of the
Constitution that even if it be assumed that a certain religious institution was established by a
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minority community it may lose the right to administer it in certain circumstances. We may in this connection refer to the following observations… for they apply equally to Art. 30(1):
If the right to administer the properties never vested in the denomination or had been validly surrendered by it or had otherwise been effectively and irretrievably lost to it, Art. 26 cannot be successfully invoked.
We shall have to examine closely what happened in 1920 when the 1920-Act was passed to decide (firstly) whether in the face of that Act it could be said that the Aligarh University was established by the Muslim minority, (secondly) whether the right to administer it ever vested in the minority, and (thirdly) even if the right to administer some properties that came to the
University vested in the minority before the establishment of the Aligarh University, whether it had been surrendered when the Aligarh University came to established.
Before we do so we should like to say that the words "educational institutions" are of very wide import and would include a university also. This was not disputed on behalf of the Union of
India and therefore it may be accepted that a religious minority had the right to establish a university under Art. 30(1). The position with respect to the establishment of Universities before the Constitution came into force in 1950 was this. There was no law in India which prohibited any private individual or body from establishing a university and it was therefore open to a private individual or body to establish a university. There is a good deal in common between educational institutions which are not universities and those which are universities. Both teach students and both have teachers for the purpose. But what distinguished a university from any other educational institution is that a university grants degrees of its own while other educational institutions cannot.
It is this granting of degrees by a university which distinguished it from the ordinary run of education institutions. [See St. David 's College, Lampeter v. Ministry of Education [1951] 1 All
E.R. 559]. Thus in law in India there was no prohibition against establishment of universities by private individuals or bodies and if any university was so established it must of necessity be granting degrees before it could be called a university.
But though such a university might be granting degrees it did not follow that the Government of the country was bound to recognise those degrees. As a matter of fact as the laws stood up to the time the Constitution came into force, the Government was not bound to recognise degrees of universities established by private individuals or bodies and generally speaking the Government only recognised degrees of universities established by it by law. No private individual or body could before 1950 insist that the degrees of any university established by him or it must be recognised by Government. Such recognition depended upon the will of Government generally expressed through statue. The importance of the recognition of Government in matters of this kind cannot be minimised. This position continued even after the Constitution came into force. It was only in 1956 that by sub-s. (1) of s. 22 of University Grants Commission Act, (No. 3 of 1956) it was laid down that "the right of conferring or granting degrees shall be exercised only by a
University established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a University under section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees". Sub-section (2) thereof further provided that
"save as provided in sub-s. (1), no person or authority shall confer, or grant, or hold himself or itself as entitled to confer or grant any degree". Section 23 further prohibited the use of the word
"university" by an educational institution unless it is established by law. It was only thereafter that no private individual or body could grant a degree in India. Therefore it was possible for the
Muslim minority to establish a university before the Constitution came into force, though the degrees conferred by such a university were not bound to be recognised by Government.
There was nothing in 1920 to prevent the Muslim minority, if it so chose, to establish a university; but if it did so the degrees of such a university were not bound to be recognised by
Government. It may be that in the absence of recognition of the degrees granted by a university, it
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may not have attracted many students, and that is why we find that before the Constitution came into force, most of the universities in India were established by legislation. The Aligarh University was also in the same way established by legislation and it provided under s. 6 of the 1920-Act that
"the degrees, diplomas and other academic distinctions granted or conferred to or on persons by the University shall be recognised by the Government as are the corresponding degrees, diplomas and other academic distinctions granted by any other university incorporated under any enactment." It is clear therefore that even though the Muslim minority could have established at
Aligarh in 1920 a university, it could not insist that degrees granted by such a university should be recognised by Government. Therefore when the Aligarh university was established in 1920 and by
s. 6 its degrees were recognised by Government, an institution was brought into existence which could not be brought into existence by any private individual or body for such individual or body could not insist upon the recognition of the degrees conferred by any university established by it.
The enactment of s. 6 in the 1920-Act is a very important circumstance which shows that the
Aligarh University when it came to be established in 1920 was not established by the Muslim minority, for the minority could not insist on the recognition by Government of the degrees conferred by any university established by it.
It is true, as is clear from the 1920-Act, that the nucleus of the Aligarh University was the
M.A.O. College, which was till then a teaching institution under the Allahabad University. The conversion of that college (if we may use that expression) into a university was however not by the Muslim minority; it took place by virtue of the 1920-Act which was passed by the Central legislature. There was no Aligarh University existing till the 1920-Act was passed. It was brought into being by the 1920-Act and must therefore be held to have been established by the Central
Legislature which by passing the 1920-Act incorporated it. The fact that it was based on the
M.A.O. College, would make no difference to the question as to who established the Aligarh
University. The answer to our mind as to who established the Aligarh University is clear and that is that it was the Central Legislature by enacting the 1920-Act that the established the said
University. As we have said already, the Muslim minority could not establish a university whose degrees were bound to be recognised by Government as provide by s. 6 of 1920-Act; that one circumstance along with the fact that without the 1920-Act the University in the form that it had, could not come into existence shows clearly that the Aligarh University when it came into existence in 1920 was established by the Central Legislature by the 1920-Act. It may be that the
1920 Act was passed as a result of the efforts of the Muslim minority. But that does not mean that the Aligarh University when it came into being under the 1920-Act was established by the Muslim minority. … What does the word "establish" used in Art. 30(1) mean? In Bouvier 's Law Dictionary,
Third Edition, Vol. I, it has been said that the word "establish" occurs frequently in the Constitution of the United States and it is there used in different meanings; and five such meanings have been given, namely (1) to settle firmly, to fix unalterably, as to establish justice; (2) to make or form : as, to establish a uniform rule of naturalization; (3) to found, to create, to regulate; as, Congress shall have power to establish post offices; (4) to found, recognize, confirm or admit : as, Congress shall make no laws respecting an establishment of religion; (5) to create, to ratify, or confirm, as
We, the people, etc., do ordain and establish this constitution. Thus it cannot be said that the only meaning of the word "establish" is to found in the sense in which an eleemosynary institution is founded and we shall have to see in what sense the ward has been used in our Constitution in the
Article. In Shorter Oxford English Dictionary, Third Edition, the word "establish" has a number of meanings i.e. to ratify, confirm, settle, to found, to create. Here again founding is not the only meaning of the word "establish" and it includes creation also. In Webster ' Third New International
Dictionary, the word "establish" has been given a number of meanings, namely, to found or base squarely, to make firm or stable, to bring into assistance, create, make, start, originate. It will be seen that here also founding is not the only meaning; and the word also means "to bring into
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existence". We are of opinion that for the purpose of Art. 30(1) the word means "to bring into existence", and so the right given by Art. 30(1) to the minority is to bring into existence an educational institution, and if they do so, to administer it. We have therefore to see what happened in 1920 and who brought the Aligarh University into existence.
From the history we have set out above, it will be clear that those who were in-charge of the
M.A.O. College, the Muslim University Association and the Muslim University Foundation
Committee were keen to bring into existence a university at Aligarh. There was nothing in laws then to prevent them from doing so, if they so desired without asking Government to help them in the matter. But if they had brought into existence a university on their own, the degrees of that university were not bound to be recognised by Government. It seems to us that it must have been felt by the persons concerned that it would be no use bringing into existence a university, if the degrees conferred by the said university were not to be recognised by Government. That appears to be the reason why they approached the Government for bringing into existence a university at
Aligarh, whose degrees would be recognised by Government and that is why we find s. 6 of the
1920-Act laying down that "the degrees, diplomas and other academic distinctions granted or conferred to or on persons by the university shall be recognised by the Government…"
It may be accepted for present purposes that the M.A.O. College and the Muslim University
Association and the Muslim University Foundation Committee were institutions established by the Muslim minority and two of them were administered by Societies registered under the Societies
Registration Act, (No. 21 of 1860). But if the M.A.O. College was to be covered into a university of the kind whose degrees were bound to be recognised by Government, it would not be possible for those who were in-charge of the M.A.O. College to do so. That is why the three institutions to which we have already referred approached the Government to bring into existence a university whose degrees would be recognised by Government. The 1920-Act was then passed by the Central
Legislature and the university of the type that was established thereunder, namely, one whose degrees would be recognised by Government, came to be established. It was clearly brought into existence by the 1920-Act for it could not have been brought into existence otherwise. It was thus the Central Legislature which brought into existence the Aligarh University and must be held to have established it. It would not be possible for the Muslim minority to establish a university of the kind whose degrees were bound to be recognised by Government and therefore it must be held that the Aligarh University was brought into existence by the Central Legislature and the
Government of India. If that is so, the Muslim minority cannot claim to administer it, for it was not brought into existence by it. Art. 30(1), which protects educational institutions brought into existence and administered by a minority, cannot help the petitioners and any amendment of the
1920-Act would not be ultra vires Art. 30(1) of the Constitution. The Aligarh University not having been established by the Muslim minority, any amendment of the 1920-Act by which it was established, would be within the legislative power of Parliament subject of course to the provisions of the Constitution. The Aligarh University not having been established by the Muslim minority, no amendment of the Act can be struck down as unconstitutional under Art. 30(1).
Nor do we think that the provisions of the Act can bear out the contention that it as the Muslim minority which was administering the Aligarh University, after it was brought into existence. It is true that the proviso to s. 23(1) of 1920-Act said that "no person other a Muslim shall be member of the Court", which was declared to be the supreme governing body of the Aligarh University and was to exercise all the powers of the University, not otherwise provided for by that Act. We have already referred to the fact that the Select Committee was not happy about this provision and only permitted it in the Act out of deference to the wishes of preponderating Muslim opinion.
It appears from paragraph 8 of the Schedule that even though the members of the Court had to be Muslims, the electorates were not exclusively Muslims. For example, sixty members of the
Court had to be elected by persons who had made or would make donations of five hundred rupees
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and upwards to or for the purposes of the University. Some of these persons were and could be non-Muslims. Forty persons were to be elected by the Registered Graduates of the University, and some of the Registered Graduates were and could be non-Muslims, for the University was open to all persons of either sex and of whatever race, creed or class. Further fifteen members of the Court were to be elected by the Academic Council, the membership of which was not confined only to
Muslims.
Besides there were other bodies like the Executive Council and the Academic Council which were concerned with the administration of the Aligarh University and there was no provision in the constitution of these bodies which confined their members only to Muslims. It will thus be seen that beside the fact that the members of the Court had to be all Muslims, there was nothing in the Act to suggest that the administration of the Aligarh University was in the Muslim minority as such. Besides the above, we have already referred to s. 13 which showed how the Lord Rector, namely, the Governor General had overriding powers over all matters relating to the administration of the University. Then there was s. 14 which gave certain over-riding powers to the Visiting
Board. The Lord Rector was then the Viceroy and the Visiting Board consisted of the Governor of the United Provinces, the members of his Executive Council, the Ministers, one member nominated by the Governor and one member nominated by the Minister in charge of Education.
These people were not necessarily Muslims and they had over-riding powers over the administration of the University. Then reference may be made to s. 28(2)(c) which laid down that no new Statute or amendment or repeal of an existing Statute, made by the University, would have any validity until it had been approved by the Governor General in Council who had power to sanction, disallow or remit it for further consideration. Same powers existed in the Governor
General in Council with respect to Ordinances. Lastly reference may be made to s. 40, which gave power to the Governor General in Council to remove any difficulty which might arise in the establishment of the University. These provisions in our opinion clearly show that the administration was also not vested in the Muslim minority; on the other hand it was vested in the statutory bodies created by the 1920-Act, and only in one of them, namely, the Court, there was a bar to the appointment of any one else except a Muslim, though even there some of the electors for some of the members included non-Muslims. We are therefore of opinion that the Aligarh
University was neither established nor administered by the Muslim minority and therefore there is no question of any amendment to the 1920-Act being unconstitutional under Art. 30(1) for that
Article does not apply at all to the Aligarh University.
… The next Article of the Constitution on which reliance is placed is Art. 29. That Article provides that "any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same". We have not been able to understand how the amendments made by the 1965-Act in the 1920-Act in any way interfere with the right of the Muslim minority to conserve any distinct language, script or culture which they might have. Here again we may add that no serious argument was raised before us on the basis of Art. 29.
... We are therefore of opinion that there is no force in any of these petitions. It is not disputed that the 1951 and 1965 Acts are within the competence of Parliament unless they are hit by any of the constitutional provisions to which we have referred above. As they are not hit by any of these provision, these Acts are good and are not liable to be struck down as ultra vires the Constitution.
The petitions therefore fail and hereby dismissed. In the circumstances we make no order as to costs. Page 495 of 610
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DAYANAND ANGLO VEDIC COLLEGE V. COLLEV. STATE OF PUNJAB
AIR 1971 SC 1737, (1971) 2 SCC 269
Decided On: May 5, 1971
BENCH – CHIEF JUSTICE S. M. SIKRI, JUSTICES G. K. MITTER, K. S. HEGDE. A. N. GROVER &
P. JAGANMOHAN REDDY
JUSTICE REDDY (FOR THE COURT)
These are fourteen Writ Petitions by various Colleges managed and administered by Dayanand
Anglo Vedic College (D.A.V. College) Trust and the Managing Society, against the Respondents challenging the Constitutional validity of certain provisions of Guru Nanak University, Amritsar,
Act 21 of 1969 (hereinafter called the 'University ' or the 'Act ', as the context may permit) and in particular Sections 4, 4(2), 4(3) and 5 of the Act as being violative of Articles 14, 19(1)(c) and (f),
26, 29(1) and 30(1) of the Constitution of India. There was also a prayer for quashing the
Notification No. 2201-4-RDI-70/7147 dated 16th March 1970 issued under Sub-section (1) of
Section 5, by the first Respondent, the State of Punjab as being illegal, unconstitutional and void.
As all these petitions raised a common question as to the validity of the provisions of the Act the
Notification issued by the Government pursuant to that Act and certain provisions of the statutes made thereunder it would be sufficient if facts in Writ Petition No. 256 are set out.
The Managing Committee of the D.A.V. College is composed of 24 members and manages a score of other D.A.V. Institutions established in the Country. The D.A.V. College Trust and the
Managing Society was formed to perpetuate the memory of Swami Dayanand Saraswati who was the founder of an organisation known as Arya Samaj, which organisation it is claimed has a fixed religious programme and its Constitution is designed to perpetuate the religious teaching and philosophy of its founder. The Arya Samaj it is stated has its own philosophy conception of God worship, religious tenets, rituals, social work, educational work etc., as would appear from the
Constitution of the Arya Samaj. It is therefore claimed that it being a religious sect and denomination, is a minority within the meaning of Article 30(1) of the Constitution. These Schools and Colleges were established 'on the lines teachings and principles of Arya Samaj ' in which 'the imparting of the Vedic culture and religious instructions and worship based on the concept of
Vedas, was and has its essential ingredient '.
The Institutions which have filed the Writ Petitions were before the Punjab Reorganisation
Act (hereinafter called the 'Reorganisation Act ') affiliated to the Punjab University constituted under the East Punjab Act 7 of 1947 (hereinafter called the 'Punjab Uniersity ' or the 'Punjab
University Act ' as the context admits). Before the partition of India some of these Institutions were affiliated to the Punjab University, Lahore. After the partition other Universities were set up in
Punjab State like the Punjabi University, the Kurukshetra University, the Agricultural University etc., each of which had its own territorial jurisdiction.
There being a strong movement in the State of Punjab by the Sikhs to have a State of their own and others who did not want it, the Government of India being faced with this problem ultimately decided to reorganise the State of Punjab on linguistic basis. A Boundary Commission was appointed under the Chairmanship of Shah, J., as he then was, and on the basis of that report
Parliament ultimately passed the Reorganisation Act by and under which the State of Punjab and the State of Haryana were formed and certain other territories were added to Himachal Pradesh.
Chandigarh, the erstwhile Capital was to be a Union territory and was to serve as Capital of both these States. A provision was made in this Act for the continuance of certain Corporations and
Institutions which had served the needs of the people of both areas to continue as heretofore subject to the special provisions enacted in the Act. Three of such institutions were the Punjab University, the Punjab Agricultural University and the Board constituted under the provisions of Part III of
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Sikh Gurdwaras Act 1925. The continuance of the aforementioned two Universities was dealt along with other statutory Corporations under the general provisions contained in Section 72 of the Reorganisation Act. As already pointed out at the time of the reorganisation of the State other
Universities other than the University of Punjab were in existence namely the Punjabi University in Punjab, and Kurukshetra University in Haryana. After the reorganisation the various Colleges which were in the State of Punjab other than those over which the Punjabi University had jurisdiction were continued to be affiliated to the Punjab University. While this was the position till 1969 the Punjab Legislature in order to mark the 500th Birth anniversary of Shri Guru Nanak
Devji established a University to perpetuate his name. The Act received the assent of the Governor on 28th November 1969. On the 16th March 1970 the first Respondent in exercise of the powers conferred on it by Sub-section (1) of Section 5 of the Act specified the Districts of Amritsar,
Gurdaspur, Jullundur and Kapurthala in the State of Punjab as the area in which the University shall exercise its power and perform its duties. It further notified on 16th March 1970 in exercise of the powers under Sub-section (3) of Section 5, 30th June 1970 as the date for the purpose of the said Sub-section in respect of the educational institutions situated within the limits of the aforesaid area, which meant that as and from that date the Colleges in the areas specified above which were affiliated to the Punjab University ceased to be affiliated to that University and were deemed to be associated with and admitted to the privileges of the University.
The contentions urged before us are that the main purpose and object of the University as constituted by the University Act is to propagate Sikh religion and promote Punjabi language in
Gurmukhi script, that since the Petitioners institutions belong to a minority based on religion and language in that they being adherents of Arya Samaj Sect and denomination their compulsory affiliation to the University violates Article 29(1) and 30(1) of the Constitution of India. In support of this main contention it is submitted that Section 5(3) of the Act and also Clauses 2(1)(a), 17 and
18 of the statutes in Chapter V which inter-alia interfere with the management of the minority institutions are ultra-vires being violative of the guarantee under Article 30(1). It is also contended that the minority educational institutions have the freedom to choose to which University they will be affiliated and that the legislature cannot compel affiliation to any particular University. In any case in view of Section 72 of the Reorganisation Act it is the Central Government which must determine whether Colleges affiliated to the Punjab University can be disaffiliated before any
Notification under the Act can be issued specifying the areas in which educational institutions are to be affiliated and admitted to the privileges of the University as from the date notified. On this view it is submitted that the notification of the 16th March '70 is bad and must be struck down. It is also submitted that this statutory affiliation being compulsory affects the Petitioners right of
Association guaranteed under Article 19(1)(c) and that Article 14 is contravened because Section
4(2) and 4(3) discriminate against the Hindus, for while providing for the study of the teachings of Guru Nanak and the encouragement of the Punjabi language no provision is made for the study of the religion or teachings of the Hindus or of their language-the Hindi.
Now the question is, have the Petitioners been established and administered by a religious or linguistic minority, having a distinct script or culture of its own within the meaning of Articles
29(1) and 30(1) of the Constitution and do the provisions of the Act or any statute or ordinance or
Notification made thereunder offend any of the rights guaranteed to them. This in turn leads to an enquiry whether the Arya Samaj Sect is a religious or linguistic minority. …
It will be observed that Article 29(1) is wider than Article 30(1), in that, while any Section of the citizens including the minorities, can invoke the rights guaranteed under Article 29(1), the rights guaranteed under Article 30(1) are only available to the minorities based on religion or language. It is not necessary for Article 30(1) that the minority should be both a religious minority as well as a linguistic minority. It is sufficient if it is one or the other or both. A reading of these two Articles together would lead us to conclude that a religious or linguistic minority has a right
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to establish and administer educational institutions of its choice for effectively conserving its distinctive language, script or culture, which right however is subject to the regulatory power of the State for maintaining and facilitating the excellence of its standards. This right is further subject to Clause (2) of Article 29 which provides that no citizen shall be denied admission into any educational institution which is maintained by the State or receives aid out of State funds, on grounds only of religion, race, caste, language or any of them. While this is so these two articles are not inter-linked nor does it permit of their being always read together.
In Rev. Father W. Proost v. State of Bihar [1969] 2 SCR 73 where while conceding that the
Jesuits of Ranchi who were a religious minority established the petitioner Institution the St.
Xaviers College which was admitting students of other communities also, the Attorney General had contended that as the protection to minorities in Article 29(1) is only a right to conserve a distinct language, script or culture of its own the College did not qualify for the protection of
Article 30(1) because (i) it was not founded to conserve them, and (ii) it was open to all sections of people. An attempt was made to read into the protection granted by Article 30(1) a corollary taken from Article 29(1). While conceding that the Jesuit community is a minority community based on religion and therefore it has a right to establish and administer educational institutions of its choice, it was contended that as the protection to minorities in Article 29(1) is only a right to conserve the distinct language, script or culture of its own, the College does not qualify for the protection of Article 30(1) because it is not founded to conserve them. Hidayatullah, C.J., rejected the interpretation sought to be placed on Article 29(1) and 30(1) as if they have to be read together.
At page 80 he said:
In our opinion, the width of Article 30(1) cannot be cut down by introducing in it considerations on which Article 29(1) is based. The latter article is a general protection which is given to minorities to conserve their language, script or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institution, seeking to conserve language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. That is a circumstance irrelevant for the application of Article 30(1) since no such limitation is expressed and none can be implied. The two articles create two separate rights, although it is possible that they may meet in a given case.
The next question is what constitutes a religious or linguistic minority and how is it to be determined? It was submitted that in In Re: Kerala Education Bill [1959] SCR 995 this Court did not in fact lay down any test for ascertaining what is meant by minority community or how it is to be ascertained because in that case it had assumed that question (2) itself proceeded on the footing that there were minorities in Kerala who are entitled to the rights conferred under Article 30(1).
No doubt to some extent this is true. Das, C.J., had observed … that "strictly speaking for answering question (2) we need not enquire as to what a minority community means or how is it to be ascertained". Nonetheless earlier he did consider these matters … and laid down the principles which govern it, including an examination of the figures relating to the total population of the Kerala State and the population of the minorities, the Christians, the Muslim and the Anglo
Indians.
Though there was a faint attempt to canvas the position that religious or linguistic minorities should be minorities in relation to the entire population of the country, in our view they are to be determined only in relation to the particular legislation which is sought to be impugned, namely that if it is the State legislature these minorities have to be determined in relation to the population of the State. On this aspect Das, C.J., in Kerala Education Bill case speaking for the majority thought that there was a fallacy in the suggestion that a minority or Section envisaged Article 30(1) and Article 29(1) could mean only such persons as constitute numerically, minority in the particular region where the educational institution was situated or resided under local authority.
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He however, thought, it was not necessary to express a final opinion as to whether education being the subject matter of item 11 of the State list, subject only to the provisions of entry 62, 63, 64 and
66 of List I and entry 25 of List III, the existence of a minority community should in all circumstances and for purposes of all laws of that State be determined on the basis of the population of the whole State or whether it should be determined on the said basis only when the validity of a law extending to the whole State is in question or whether it should be determined on the basis of a population of a locality when the law under that Act applies only to that locality, because in that case the Bill before the Court extended to the whole of the State of Kerala and consequently the minority must be determined by reference to the entire population of that State.
It is undisputed, and it was also conceded by the State of Punjab, that the Hindus of Punjab are a religious minority in the State though they may not be so in relation to the entire country.
The claim of Arya Samaj to be a linguistic minority was however contested. A linguistic minority for the purpose of Article 30(1) is one which must at least have a separate spoken language. It is not necessary that that language should also have a distinct script for those who speak it to be a linguistic minority. There are in this country some languages which have no script of their own, but nonetheless those sections of the people who speak that language will be a linguistic minority entitled to the protection of Article 30(1).
The Punjab Boundary Commission Report under the Chairmanship of Shah, J. as he then was dealt not only with the several scripts in use but also the language of the dominant sections residing in Punjab. Earlier the States Reorganisation Report also went into the question and noted the controversies between Akali Dal sponsoring Punjabi with Gurmukhi script and Hindus who while at home they speak Punjabi asserted that in their religious ceremonies and festivals, in their
Schools and Colleges they use Hindi. In any case they never accepted Gurmukhi script. At page
143 it was observed "The problem of language in the Punjab is therefore primarily one of scripts; and in this battle of scripts; sentiment is arrayed against sentiment". This matter was dealt with, in somewhat great detail in Shah 's report at page 2 and 3:
History of the language controversy in the Punjab is over fifty years old. In the
Punjab of pre-British days, the Court language was Persian, and Punjabi was almost invariably written in the Persian script. Under the British rule, Urdu was the language of the Courts and of district administration in addition to English.
During the last decades of the 19th Century two important social reform movements gained strong foothold in the Punjab. The Arya Samaj movement took hold among the urban Hindu population and use of Hindi in the Devnagri script was propagated. After Swami Dayanand, founder of the Arya Samaj movement, published his 'Satyarath Prakash ' in the eyes of a section of the Hindus the Hindi language and the Devnagri script acquired religious, significance. During the same period, the cause of Punjabi was espoused by the Chief Khalsa Dewan. They published a large number of books and pamphlets dealing with the lives of Gurus and diverse facets of the Sikh religion. These books were written in Punjabi and in Gurmukhi script which had been given its present form by the second Guru of the Sikhs, and in which the holy Granth is written. The language issue in course of time got linked up with the politics of the province. Demands for giving better status in the administrative scheme to Punjabi in Gurmukhi script and Hindi in
Devnagri script gained strength, and the Government of the day agreed to accede to those demands and recognised the status of both Punjabi and Hindi in the educational curricula.
In our view it is unnecessary to consider whether Arya Samajis are a linguistic minority, because if they can be considered to be a religious minority they will be entitled to invoke the protection under Article 30(1).
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For the purposes of Article 29(1) even though it may not be necessary to enquire whether all the Hindus of Punjab as also the Arya Samajis speak Hindi as a spoken language, nonetheless there can be no doubt that the script of the Arya Samajis is distinct from that of the Sikhs who form the majority. It is claimed that while the Sikhs have Gurmukhi as their script the Arya Samajis have their own script which is the Devnagri script. Their claim to be a religious minority with distinct script of their own seems to us to be justified as would appear from the following:
The Arya Samaj is a reformist movement, believes in one God and in the Vedas as the books of true knowledge. It holds that it is the duty of every Arya Samaj to read the Vedas and have them read, to teach or preach them to others. It has a distinct organisation, the membership of which is open to all those who subscribe to its aims and objects. The Arya Samajis worship before the Vedic fire and it begins with the burning of incence (the homa 'sacrifice ') accompanied by the chanting of the Vedic verses.
Encyclopaedia Britannica (Vol. II-1968) has this to say about Arya Samaj at page 558:
Arya Samaj, a vigorously reforming Sect of modern Hinduism, founded in 1875 by Swami Dayanand Saraswati (1824-83) at Bombay… The Vedas as interpreted by the method laid down by Dayanand may be said to be the theology of the Arya
Samaj and are held to contain all truth and all knowledge, including the basis for modern science. The Arya Samaj is completely opposed to idolatry, is sternly monotheistic and denies the efficacy of priestly intervention. Its organization and services are strongly reminiscant of Protestantism… The Arya Samaj opposes the caste system based upon birth, as un-vedic and insists that caste should reflect merit.... The Arya Samaj has sought to revitalize Hindu life and to instill selfconfidence and national pride among Hindus. It has established a network of excellent Schools and Colleges, including the Dayanand Anglo-Vedic College in
Lahore, which teach rigorously in the Vedas and in modern sciences…
To show the affinity between Arya Samaj and Protestantism a comparison is made in the
Encyclopaedia of Religion and Ethics between Dayanand Saraswati and Martin Luther. In Volume
2 at page 58-59, it is said:
As Luther the German monk was a child of the European Renaissance, so
Dayanand the Gujrati monk was a child of the Indian Renaissance. Luther attacked indulgences, while Dayanand attacked idolatry. Luther appealed from the Roman church and the authority of tradition to the scriptures of the Old and
New Testaments. Swami Dayanand appealed from the Brahmanical Church and the authority of Smriti to the earliest and most sacred of Indian Scriptures. The watchword of Luther was 'Back to the Bible '; the watchword of Dayanand was 'back to the Vedas '... but be it noted to the Vedas as interpreted, not by the traditional scholarship of Indian orthodoxy or by the critical scholarship of the
West, but by the scholarship of the Arya Samaj alone.... The scripture basis of the
Arya Samaj then, while formally the Vedas, is in reality a certain interpretation of the Vedas, which is not recognized as legitimate by a single Sanskrit scholar, either Indian or European, outside of the Arya Samaj.
Shri Motilal Setalvad learned advocate for the respondents contends that there is nothing to indicate that the Arya Samajis should be Hindus. This argument however overlooks the basic tenets of the Sect in that it admits to membership only those Hindus who subscribe to the decalogue and its beliefs in the cannons of vedic interpretation laid down by Swami Dayanand but all outsiders who are non-Hindus such as Muslim and Christians must undergo a ceremony of purification or
Shudhi.
The passages read above show beyond doubt that the Arya Samaj by "rejecting the manifold absurdities found in Smriti and in tradition and in seeking a basis in the early literature for a purer and more rational faith" can be considered to be a religious minority, at any rate as part of the
Hindu religious minority in the State of Punjab.
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… Now coming to the question whether the Arya Samajis have a distinct script of their own bye-law 32 of their Constitution shows that the proceedings of all meetings and sub-committees will have to be written in Arya Bhasha in Hindi languages and Devnagri character, All Aryas and
Arya Sabhasads should know Arya Bhasha, Hindi or Sanskrit. The belief is that the name of the script Devnagri is derived from Deva and therefore has divine origin. From what has been stated it is clear that the Arya Samajis have a distinct script of their own, namely Devnagri. They are therefore entitled to invoke the right guaranteed under, Article 29(1) because they are a section of citizens having a distinct script and under Article 30(1) because of their being a religious minority.
It is now to be ascertained whether any of the provisions of the Act, statutes or Ordinances offend the guaranteed rights of the petitioners. The petitioners contend that Sub-sections (2) and
(3) of Section 4 directly infringe the fundamental rights guaranteed under Article 29(1) and 30(1) of the Constitution. Under these provisions the Arya Samaj through its educational institutions have the right to conserve its script, culture and its language.
Sub-section (2) of the Act, it is submitted enacts a provision for making it imperative to study and conduct research on the life and teachings of Guru Nanak and their cultural and religious impact on Indian and World civilizations while Sub-section (3) contemplates the adopting of measures for the study of Punjabi language literature and culture which provisions according to the petitioners directly aim at strangulating the growth of Hindi while encouraging the growth of
Punjabi. Their apprehension is that Punjabi with Gurmukhi script will be made the sole medium of instruction in the University and that all Colleges affiliated to this University may be forced to impart education through that medium.
The State of Punjab in its counter denied that the provisions of Sub-sections (2) and (3) of
Section 4 seek to strangulate the development and growth of Hindi language. It is stated that there is nothing in these provisions which offends the religious susceptibilities of the Petitioners nor can the provision for the promotion of and research in Punjabi language, literature and culture in the
State of Punjab, which has as its declared policy the adoption of Punjabi as the sole language of the Punjabi speaking area, be construed as offending the rights of the minorities.
The second Respondent the University traversed the Petitioners allegations on grounds similar to those taken by the State of Punjab except that it was further stated that Respondent 3 the
University of Punjab has also set up a Guru Nanak Chair and that the Punjab Government has offered to set up Guru Nanak Chairs in the Universities of Calcutta, Dharwar, Madras, Kurushetra,
Bombay as also in the Khalsa College, Amritsar.
Assuming for the moment that the Punjab Legislature had the competence to enact the Act, about which considerable argument was addressed before us particularly in respect of the scope and ambit of Section 72 of the Reorganisation Act-Sub-section (2) and (3) of Section 4 do not in our view offend by themselves any of the rights of the petitioners either under Article 29(1) or
Article 30(1) of the Constitution. Sub-section (2) & (3) of Section 4 are as follows:
24. Section 4.-The University shall exercise the following powers and perform the following duties:
(1) ….
(2) To make provision for study and research on the life and teachings of Guru
Nanak and their cultural and religious impact in the context of Indian and World civilizations; (3) To promote studies to provide for research in Punjabi language and literature and to undertake measures for the development of Punjabi language, literature and culture. Page 501 of 610
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It will be seen from the language of Sub-section (2) that nowhere is there a mandate for compelling Colleges affiliated to it either to study the religious teachings of Guru Nanak or to adopt in any way the culture of the Sikhs.
Guru Nanak is the founder of the Sikh religion. His teachings were inspired by a need to synthesis the essentials of the Hindu and Mohamadan faith which were always irreconcilable, by preaching that in no essentials of faith did they differ. His was intensely a monotheistic philosophy of the unit of God largely directed against idolatory hypocrisy distinction of castes, creeds and the pretentions of priest craft. He was an inspired soul from his very childhood, travelled widely and his pilgrimages extended to Mecca and Madina. If the University makes provision for an academic study and research of the life and teachings of any saint it cannot on any reasonable view be considered to require Colleges affiliated to the University to compulsorily study his life and teachings or to do research in them. The impugned provision would merely indicate that the
University can institute courses of study or provide research facilities for any student of the
University whether he belongs to the majority or the minority community to engage himself in such study or research but be it remembered that this study and research on the life and teachings of the Guru Nanak must be a study in relation to their culture and religious impact in the contact of Indian and world civilizations which is mostly an academic and philosophical study.
It is however contended that as the Guru Nanak University is wholly maintained out of the
State funds the provision under 4(2) offends Article 28(1) which is not saved by Clause 2 thereof.
The petitioners pointed out that Section 23(1) of the Act enjoins on the State Government to provide from time to tune 'such amounts by way of grants for meeting the capital, recurring or other expenditure of the University as it may deem fit ' and at any rate require it to provide a minimum annual grant of Rs. 50 lakhs to the University for meeting its recurring expenditure provided that if during any financial year the entire amount of the aforesaid grant is not utilized for meeting the recurring expenditure the unutilized balance may with the previous consent of the
State Government be utilised for meeting capital expenditure of the University. Neither the State
Government nor the University in their counter denied this allegation and even in the counter filed during the course of the hearing by the State of Punjab nothing was stated to controvert the assertion that the University is wholly maintained out of State funds. During the course of the arguments however learned Advocate appearing on behalf of the State and the University suggested that this was not so because the University gets income from affiliation fees and examination fees as such it cannot be said that the University is wholly maintained out of State funds. We can only say that this was not a serious attempt to deny the averment. The income from affiliation fees and the examination fees as the term 'fee ' itself indicates is something that is charged for rendering the service in respect of those two items which is a sort of quid-pro quo and could hardly be said to be an income for the purposes of running the University.
Even so the Petitioners have still to make out that Section 4(2) implies that religious instruction will be given. We think that such a contention is too remote and divorced from the object of the provision. Religious instruction is that which is imparted for inculcating the tenets, the rituals, the observances, ceremonies and modes of worship of a particular Sect or denomination. To provide for academic study of life and teaching or the philosophy and culture of any great saint of India in relation to or the impact on the Indian and world civilizations cannot be considered as making provision for religious instructions.
Sub-section (3) of Section 4 also does not in our view transgress the guarantee under Article
29(1). Whether one may like it or not, linguistic States in this country have come to stay. The purpose and object of these linguistic states is to provide with greater facility the development of the people of that area educationally, socially and culturally, in the language of that region but while the State or the University has every right to provide for the education of the majority in the regional medium, it is subject to the restrictions contained in Article 25 to 30. Neither the
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University nor the State can provide for imparting education in a medium of instruction in a language and script which stifles the language and script of any Section of the citizens. Such a course will trespass on the rights of those Sections of the citizens which have a distinct language or script and which they have a right to conserve through educational institutions of their own. In our view Section 4(3) does not lend itself to the interpretation that the medium of instruction of all affiliated Colleges has to be Punjabi. The provision, as we construe it, is for the promotion of
Punjabi studies and research in and the development of the Punjabi language, literature and culture which is far from saying that the University can under that provision compel the affiliated Colleges particularly those of the minority to give instruction in the Punjabi language or in any way impede the right to conserve their language script and culture.
… The next ground of attack is in respect of the statutes made in exercise of the powers conferred under Sub-section (1) of Section 19 of the University Act which according to the petitioners interferes with the management of their institutions as such violates Article 30(1) of the
Constitution. The relevant impugned statutes are contained in Chapter V relating to admission to
Colleges. These are 2(1)(a)17, and 18 read with Clause 1(2) and (3) which are as follows:1(1) …
1(2) Colleges shall be of two types namely University Colleges and affiliated
Colleges.
1(3) The educational institutions and Colleges situated in the Districts of
Amritsar, Jullundur, Gurdaspur and Kapurthalla are deemed to be associated with and admitted to the privileges of the University with effect from 30th day of June
1970. These institutions shall observe the conditions for admission to the privileges of the University failing which the rights conferred may be withdrawn.
2(1)(a) A College applying for admission to the privileges of the University shall send a letter of application to the Registrar and shall satisfy the Senate:(a) that the College shall have a regularly constituted governing body consisting of not more than 20 persons approved by the Senate and including, among others,
2 representatives of the University and the Principal of the College Ex-officio.
Provided that the said condition shall not apply in the case of Colleges maintained by Government which shall however have an advisory Committee consisting of among others the principal of the College (Ex-officio) and two representatives of the University.
The staff initially appointed shall be approved by the Vice Chancellor. All subsequent changes shall be reported to the University for Vice Chancellor 's approval. In the case of training institutions the teacher, pupil ratio shall not be less than 1:12. Non-Government Colleges shall comply with the requirements laid down in the ordinance governing service and conduct of teachers in non-Government Colleges as may be framed by the University.
Non-Government Colleges shall comply with the requirements laid down in the ordinances governing service and conduct of teachers in non-Government Colleges as may be framed by the
University.
It is contended that these provisions interfere with the Petitioners in the management of their institutions, in that the Colleges are required to constitute a regular governing body for each of them, of not more than 20 persons to be approved by the University Senate. Of these, two representatives of the University and the Principal of the College are to be ex-officio members.
According to the Petitioners the Managing Committee of their institution is composed of 24 members under the D.A.V. College Trust and Management Society registered under the Societies
Registration Act (Act 21 of 1960). It will be observed that under Clause 1(3) if the petitioners do not comply with the requirements under Ha) their affiliation is liable to be withdrawn. Similarly it is stated that Clause 17 also interferes with the petitioners right to administer their College as the
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appointment of all the staff has to be approved by the Vice-Chancellor and that subsequent changes will also have to be reported to the University for Vice Chancellor 's approval. We have already held that the Petitioners institutions are established by a religious minority and therefore under
Article 30 this minority has the right to administer their educational institutions according to their choice. Clauses 2(1)(a) and 17 of Chapter V in our view certainly interferes with that right.
In Kerala Education Bill dealing with Article 30(1) this Court observed:
The key to the understanding of the true meaning and implication of the Article under consideration are the words "of their own choice". It is said that the dominant word is "choice" and the content of that Article is as wide as the choice of the particular minority community may make it. The ambit of the rights conferred by Article 30(1) has therefore to be determined on a consideration of the matter from the points of view of the educational institutions themselves.
While so stating it was nonetheless observed:
That the Constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institution to be aided.
Similarly in Rev. Sidhajbhai Sabhai v. State of Bombay [1963] 3 SCR 837 it was held that:
Unlike Article 19 the fundamental freedom under Clause (1) of Article 30 is absolute in terms; it is not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Article 19 may be subjected to. All minorities, linguistic or religious have by Article 30(1) an absolute right to establish and administer educational institutions of their choice; and any law or executive direction which seeks to infringe the substance of that right under
Article 30(1) would to that extent be void. This, however, is not to say that it is not open to the State to impose regulations upon the exercise of this right....
Regulation made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed; they secure the proper functioning of the institution, in matters educational. We have already seen that in Rev. Father W. Proost the provisions of Section 48(A) which required to selection of the teachers of all affiliated Colleges including the Colleges established by the minorities, to be made by the University Service Commission, was held to interfere with the rights of the petitioners in that case. In that case, while the petition was pending in the Court,
Section 48 (B) was added to the Bihar State University Act whereby notwithstanding the provisions of Section 48 (A) exemption was given to the minority institutions to make appointments with the approval of the Commission and the Syndicate, the petitioners claimed exemption under Section 48(B) and submitted that as an affiliated College established by a minority based on religion or language they are exempted from Section 48 (A) and that if this petition was accepted they will withdraw the petition which had become superfluous. Even this prayer was not acceded to by the State and consequently it was held that they were entitled to the exemption claimed. This decision is not therefore an authority for the proposition that even the requirement that the staff of a minority educational institution be appointed, dismissed or removed only with the approval of the University or the State does not infringe the right to administer the institution guaranteed under Article 30(1).
In our view there is no possible justification for the provisions contained in Clauses 2(1)(a) and 17 of Chapter V of the statutes which decidedly interfere with the rights of management of the
Petitioners Colleges. These provisions cannot therefore be made as conditions of affiliation, the non-compliance of which would involve disaffiliation and consequently they will have to be struck down as offending Article 30(1). …
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TMA PAI FOUNDATION V. STATE OF KARNATAKA
AIR 2003 SC 355, (2002) 8 SCC 481
Decided On: November 25, 2002
BENCH – CHIEF JUSTICE B. N. KIRPAL, JUSTICES G. B. PATTANAIK, V. N. KHARE, S.
RAJENDRA BABU, SYED SHAH MOHAMMED QUADRI, RUMA PAL, S. N. VARIAVA, K. G.
BALAKRISHNAN, P. VENKATARAMA REDDI, ASHOK BHAN & ARIJIT PASAYAT
CHIEF JUSTICE KIRPAL (for himself, Justices Pattanaik, Babu, Balakrishnan, Reddi & Pasayat,
MAJORITY OPINION) [Justice Khare CONCURRING but wrote his separate opinion]
India is a land of diversity – of different castes, peoples, communities, languages, religions and culture. Although these people enjoy complete political freedom, a vast part of the multitude is illiterate and lives below the poverty line. The single most powerful tool for the upliftment and progress of such diverse communities is education. The state, with its limited resources and slowmoving machinery, is unable to fully develop the genius of the Indian people very often the impersonal education that is imparted by the state, devoid of adequate material content that will make the students self-reliant only succeeds in producing potential pen-pushers, as a result of which sufficient jobs are not available.
India is a land of diversity – of different castes, peoples, communities, languages, religions and culture. Although these people enjoy complete political freedom, a vast part of the multitude is illiterate and lives below the poverty line. The single most powerful tool for the upliftment and progress of such diverse communities is education. The state, with its limited resources and slow-moving machinery, is unable to fully develop the genius of the Indian people very often the impersonal education that is imparted by the state, devoid of adequate material content that will make the students self-reliant only succeeds in producing potential pen-pushers, as a result of which sufficient jobs are not available.
It is in this scenario where there is a lack of quality education and adequate number of schools and colleges that private educational institutions have been established by educationists, philanthropists and religious and linguistic minorities. Their grievance is that the necessary and unproductive load on their back in the form of governmental control, by way of rules and regulations, has thwarted the progress of quality education. It is their contention that the government must get off their back, and that they should be allowed to provide quality education uninterrupted by unnecessary rules and regulations, laid down by the bureaucracy for its own self-importance. The private educational institutions, both aided and unaided, established by minorities and non-minorities, in their desire to break free of the unnecessary shackles put on their functioning as modern educational institutions and seeking to impart quality education for the benefit of the community for whom they were established, and others, have filed the present writ petitions and appeals asserting their right to establish and administer educational institutions of their choice unhampered by rules and regulations that unnecessarily impinge upon their autonomy.
… On behalf of all these institutions, the learned counsel have submitted that the
Constitution provides a fundamental right to establish and administer educational institutions.
With regard to non-minorities, the right was stated to be contained in Article 19(1)(g) and/or
Article 26, while in the case of linguistic and religious minorities, the submission was that this right was enshrined and protected by Article 30. It was further their case that private educational institutions should have full autonomy in their administration. While it is
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necessary for an educational institution to secure recognition or affiliation, and for which purpose rules and regulations or conditions could be prescribed pertaining to the requirement of the quality of education to be provided, e.g., qualifications of teachers, curriculum to be taught and the minimum facilities which should be available for the students, it was submitted that the state should not have a right to interfere or lay down conditions with regard to the administration of those institutions. In particular, objection was taken to the nominations by the state on the governing bodies of the private institutions, as well as to provisions with regard to the manner of admitting students, the fixing of the fee structure and recruitment of teachers through state channels.
The counsel for these educational institutions, as well as the Solicitor General of India, appearing on behalf of the Union of India, urged that the decision of this Court in Unni
Krishnan v. State of Andhra Pradesh [1993] 1 SCR 594 case required reconsideration. It was submitted that the scheme that had been framed in Unni Krishnan had imposed unreasonable restrictions on the administration of the private educational institutions, and that especially in the case of minority institutions, the right guaranteed to them under Article 30(1) stood infringed. It was also urged that the object that was sought to be achieved by the scheme was, in fact, not achieved.
On behalf of the private minority institutions, it was submitted that on the correct interpretation of the various provisions of the Constitution, and Articles 29 and 30 in particular, the minority institutions have a right to establish and administer educational institutions of their choice. The use of the phrase "of their choice" in Article 30(1) clearly postulated that the religious and linguistic minorities could establish and administer any type of educational institution, whether it was a school, a degree college or a professional college; it was argued that such an educational institution is invariably established primarily for the benefit of the religious and linguistic minority, and it should be open to such institutions to admit students of their choice. While Article 30(2) was meant to ensure that these minority institutions would not be denied aid on the ground that they were managed by minority institutions, it was submitted that no condition which curtailed or took away the minority character of the institution while granting aid could be imposed. In particular, it was submitted that Article 29(2) could not be applied or so interpreted as to completely obliterate the right of the minority institution to grant admission to the students of its own religion or language.
It was also submitted that while secular laws relating to health, town planning, etc., would be applicable, no other rules and regulations could be framed that would in any way curtail or interfere with the administration of the minority educational institution. It was emphasized by the learned counsel that the right to administer an educational institution included the right to constitute a governing body, appoint teachers and admit students. It was further submitted that these were the essential ingredients of the administration of an educational institution, and no fetter could be put on the exercise of the right to administer. It was conceded that for the purpose of seeking recognition, qualifications of teachers could be stipulated, as also the qualification of the students who could be admitted; at the same time, it was argued that the manner and mode of appointment of teachers and selection of students had to be within the exclusive domain of the autochthones institution.
On behalf of the private non-minority unaided educational institutions, it was contended that since secularism and equality were part of the basic structure of the Constitution the provisions of the Constitution should be interpreted so that the right of the private nonminority unaided institutions were the same as that of the minority institutions. It was submitted that while reasonable restrictions could be imposed under Article 19(6), such private institutions should have the same freedom of administration of an unaided institution as was sought by the minority unaided institutions.
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The learned Solicitor General did not dispute the contention that the right in establish an institution had been confined on the non-minorities by Articles 19 and 26 and on the religious and linguistic minorities by Article 30. He agreed with the submission of the counsels for the appellants that the Unni Krishnan required reconsideration, and that the private unaided educational institutions were entitled to greater autonomy. He, however, contended that
Article 29(2) was applicable to minority institutions, and the claim of the minority institutions that they could preferably admit students of their own religion or language to the exclusion of the other communities was impermissible. In other words, he submitted that Article 29(2) made it obligatory even on the minority institutions not to deny admission on the ground of religion, race, caste, language or any of them.
Several States have totally disagreed with the arguments advanced by the learned Solicitor
General with regard to the applicability of Article 29(2) and 30(1). The States of Madhya
Pradesh, Chattisgarh and Rajasthan have submitted that the words "their choice" in Article
30(1) enabled the minority institutions to admit members of the minority community, and that the inability of the minority institutions to admit others as a result of the exercise of "their choice" would not amount to a denial as contemplated under Article 29(2). The State of
Andhra Pradesh has not expressly referred to the inter-play between Article 29(2) and Article
30(1), but has stated that "as the minority educational institutions are intended to benefit the minorities, a restriction that at least 50 per cent of the students admitted should come from the particular minority, which has established the institution should be stipulated as a working rule", and that an institution which fulfilled the following conditions should be regarded as minority educational institutions: 1. All the office bearers, members of the executive committee of the society must necessarily belong to the concerned religious/linguistic minority without exception; 2. The institution should admit only the concerned minority candidates to the extent of sanctioned intake permitted to be filed by the respective managements and that the Court "ought to permit the State to regulate the intake in minority educational institutions with due regard to the need of the community in the area which the institution is intended to serve. In no case should such intake exceed 50% of the total admissions every year."
The State of Kerala has submitted, again without express reference to Article 29(2), "that the constitutional right of the minorities should be extended to professional education also, but while limiting the right of the minorities to admit students belonging to their community to 50% of the total intake of each minority institution". The State of Karnataka has submitted that "aid is not a matter of right but receipt thereof does not in any way dilute the minority character of the institution. Aid can be distributed on non-discriminatory conditions but in so far as minority institutions are concerned, their core rights will have to be protected. On the other hand, the States of Tamil Nadu, Punjab, Maharashtra, West Bengal, Bihar and Uttar
Pradesh have submitted that Article 30(1) is subject to Article 29(2), arguing that a minority institution availing of state aid loses the right to admit members of its community on the basis of the need of the community.
The Attorney General, pursuant to the request made by the court, made submissions on the constitutional issues in a fair and objective manner. We recorded our appreciation for the assistance rendered by him and the other learned counsel.
………
The right to establish and maintain educational institutions may also be sourced to Article
26(a), which grants, in positive terms, the right to every religious denomination or any section
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thereof to establish and maintain institutions for religious and charitable purposes, subject to public order, morality and health. Education is a recognized head of charity. Therefore, religious denominations or sections thereof, which do not fall within the special categories carved out in Article 29(1) and 30(1), have the right to establish and maintain religious and educational institutions. This would allow members belonging to any religious denomination, including the majority religious community, to set up an educational institution. Given this, the phrase "private educational institution" as used in this judgment would include not only those educational institutions set up by the secular persons or bodies, but also educational institutions set up by religious denominations; the word "private" is used in contradistinction to government institutions.
………
IN CASE OF PRIVATE INSTITUTIONS, CAN THERE BE GOVERNMENT
REGULATIONS AND, IF SO, TO WHAT EXTENT?
Private educational institutions, both aided and unaided, are established and administered by religious and linguistic minorities, as well as by non-minorities. Such private educational institutions provide education at three levels, viz., school, college and professional level. It is appropriate to first deal with the case of private unaided institutions and private aided institutions that are not administered by linguistic or religious minorities. Regulations that can be framed relating to minority institutions will be considered while examining the merit and effect of Article 30 of the Constitution.
………
IN ORDER TO DETERMINE THE EXISTENCE OF A RELIGIOUS OR LINGUISTIC
MINORITY IN RELATION TO ARTICLE 30, WHAT IS TO BE THE UNIT - THE STATE
OR THE COUNTRY AS A WHOLE?
We now consider the question of the unit for the purpose of determining the definition of
"minority" within the meaning of Article 30(1).
Article 30(1) deals with religious minorities and linguistic minorities. The opening words of Article 30(1) make it clear that religious and linguistic minorities have been put at par, insofar as that Article is concerned. Therefore, whatever the unit - whether a state or the whole of India - for determining a linguistic minority, it would be the same in relation to a religious minority. India is divided into different linguistic states. The states have been carved out on the basis of the language of the majority of persons of that region. For example, Andhra
Pradesh was established on the basis of the language of that region. viz., Telugu. "Linguistic minority" can, therefore, logically only be in relation to a particular State. If the determination of "linguistic minority" for the purpose of Article 30 is to be in relation to the whole of India, then within the State of Andhra Pradesh, Telugu speakers will have to be regarded as a
"linguistic minority". This will clearly be contrary to the concept of linguistic states.
If, therefore, the state has to be regarded as the unit for determining "linguistic minority" vis-à-vis Article 30, then with "religious minority" being on the same footing, it is the state in relation to which the majority or minority status will have to be determined.
… It had been contended by the State of Kerala that for claiming the status of minority, the persons must numerically be a minority in the particular region in which the education institution was situated, and that the locality or ward or town where the institution was to be situated had to be taken as the unit to determine the minority community.
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In two cases pertaining to the DAV College, this Court had to consider whether the Hindus were a religious minority in the State of Punjab. In D.A.V. College v. State of Punjab 1971
(Supp.) SCR 688 the question posed was as to what constituted a religious or linguistic minority, and how it was to be determined. After examining the opinion of this Court in the
Kerala Education Bill, the Court held that the Arya Samajis, who were Hindus, were a religious minority in the State of Punjab, even though they may not have been so in relation to the entire country. In another case, D.A.V. College, Bhatinda v. State of Punjab AIR 1971
SC 1731, the observations in the first D.A.V. College case were explained, and … it was stated that “what constitutes a linguistic or religious minority must be judged in relation to the State inasmuch as the impugned Act was a State Act and not in relation to the whole of India.” The
Supreme Court rejected the contention that since Hindus were a majority in India, they could not be a religious minority in the state of Punjab, as it took the state as the unit to determine whether the Hindus were a minority community.
There can, therefore, be little doubt that this Court has consistently held that, with regard to a state law, the unit to determine a religious or linguistic minority can only be the state.
The Forty-Second Amendment to the Constitution included education in the Concurrent
List under Entry 25. Would this in any way change the position with regard to the determination of a "religious" or "linguistic minority" for the purposes of Article 30?
As a result of the insertion of Entry 25 into List III, Parliament can now legislate in relation to education, which was only a state subject previously. The jurisdiction of the Parliament is to make laws for the whole or a part of India. It is well recognized that geographical classification is not violative of Article 14. It would, therefore, be possible that, with respect to a particular State or group of States, Parliament may legislate in relation to education.
However, Article 30 gives the right to a linguistic or religious minority of a State to establish and administer educational institutions of their choice. The minority for the purpose of Article
30 cannot have different meanings depending upon who is legislating. Language being the basis for the establishment of different states for the purposes of Article 30 a “linguistic minority” will have to be determined in relation to the state in which the educational institution is sought to be established. The position with regard to the religious minority is similar, since both religious and linguistic minorities have been put at par in Article 30.
TO WHAT EXTENT CAN THE RIGHTS OF AIDED PRIVATE MINORITY
INSTITUTIONS TO ADMINISTER BE REGULATED?
… Article 28(1) prohibits any educational institution, which is wholly maintained out of state funds, to provide for religious instruction. Moral education dissociation from any demon national doctrine is not prohibited; but, as the state is intended to be secular, an educational institution wholly maintained out of state funds cannot impart or provide for any religious instruction. The exception to Article 28(1) is contained in Article 28(2). Article 28(2) deals with cases where, by an endowment or trust, an institution is established, and the terms of the endowment or the trust require the imparting of religious instruction, and where that institution is administered by the state. In such a case, the prohibition contained in Article 28(1) does not apply. If the administration of such an institution is voluntarily given to the government, or the government, for a good reason and in accordance with law, assumes or takes over the management of that institution, say on account of mal-administration, then the government, on assuming the administration of the institution, would be obliged to continue with the imparting of religious instruction as provided by the endowment or the trust.
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While Article 28(1) and Article 28(2) relate to institutions that are wholly maintained out of state funds, Article 28(3) deals with an educational institution that is recognized by the state or receives aid out of state funds. Article 28(3) gives the person attending any educational institution the right not to take part in any religious instruction, which may be imparted by an institution recognized by the state, or receiving aid from the state. Such a person also has the right not to attend any religious worship that may be conducted in such an institution, or in any premises attached thereto, unless such a person, or if he/she is a minor, his/her guardian, has given his/her consent. The reading of Article 28(3) clearly shows that no person attending an educational institution can be required to take part in any religious instruction or any religious worship, unless the person or his/her guardian has given his/her consent thereto, in a case where the educational institution has been recognized by the state or receives aid out of its funds. We have seen that Article 26(a) gives the religious denomination the right to establish an educational institution, the religious denomination being either of the majority community or minority community. In any institution, whether established by the majority or a minority religion, if religious instruction in imparted, no student can be compelled to take part in the said religious instruction or in any religious worship. An individual has the absolute right not to be compelled to take part in any religious instruction or worship. Article 28(3) thereby recognizes the right of an individual to practice or profess his own religion. In other words, in matters relating to religious instruction or worship, there can be no compulsion where the educational institution is either recognized by the state or receives aid from the state. Articles 29 and 30 are a group of articles relating to cultural and educational rights. Article
29(1) gives the right to any section of the citizens residing in India or any part thereof, and having a distinct language, script or culture of its own, to conserve the same. Article 29(1) does not refer to any religion, even though the marginal note of the Article mentions the interests of minorities. Article 29(1) essentially refers to sections of citizens who have a distinct language script or culture, even though their religion may not be the same. The common thread that runs through Article 29(1) in language, script or culture, and not religion.
For example, if in any part of the country, there is a section of society that has a distinct language, they are entitled to conserve the same, even though the persons having that language may profess different religions. Article 29(1) gives the right to all sections of citizens, whether they are in a minority or the majority religions, to conserve their language, script or culture.
In the exercise of this right to converse the language, script or culture, that section of the society can set up educational institutions. The right to establish and maintain institutions of its choice is a necessary concomitant to the right conferred by Article 30. The right under
Article 30 is not absolute. Article 29(2) provides that, where any educational institution is maintained by the state or receives aid out of state funds no citizen shall be denied admission on the grounds only of religion, race, caste, language or any of them. The use of the expression
"any educational institution" in Article 29(2) would refer to any educational institution established by anyone, but which is maintained by the state or receives aid out of state funds.
In other words, on a plain reading, state-maintained or aided educational institutions, whether established by the Government or the majority or a minority community cannot deny admission to a citizen on the grounds only of religion, race, caste or language.
The right of the minorities to establish and administer educational institutions is provided for by Article 30(1). To some extent, Article 26(1)(a) and Article 30(1) overlap, insofar as they relate to the establishment of educational institutions but whereas Article 26 gives the right both to the majority as well as minority communities to establish and maintain institutions for charitable purposes, which would inter alia, include educational institutions,
Article 30(1) refers to the right of minorities to establish and maintain educational institutions
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of their choice. Another difference between Article 26 and Article 30 is that whereas Article
26 refers only to religious denominations, Article 30 contains the right of religious as well as linguistic minorities to establish and administer educational institutions of their choice.
Article 30(1) bestows on the minorities, whether based on religion or language, the right to establish and administer educational institution of their choice. Unlike Article 25 and 26,
Article 30(1) does not specifically state that the right under Article 30(1) is subject to public order, morality and health or to other provisions of Part III. This Sub-Article also does not specifically mention that the right to establish and administer a minority educational institution would be subject to any rules or regulations.
Can Article 30(1) be so read as to mean that it contains an absolute right of the minorities, whether based on religion or language, to establish and administer educational institutions in any manner they desire, and without being obliged to comply with the provisions of any law?
Des Article 30(1) give the religious or linguistic minorities a right to establish an educational institution that propagates religious or racial bigotry or ill will amongst the people? Can the right under Article 30(1) be so exercised that it is opposed to public morality or health? In the exercise of its right, would the minority while establishing educational institutions not be bound by town planning rules and regulations? Can they construct and maintain buildings in any manner they desire without complying with the provisions of the building by-laws or health regulations?
In order to interpret Article 30 and its interplay, it any, with Article 29, our attention was drawn to the Constituent Assembly Debates. While referring to them, the learned Solicitor
General submitted that the provisions of Article 29(2) were intended to be applicable to minority institutions seeking protection of Article 30. He argued that if any educational institution sought aid, it could not deny admission only on the ground of religion, race, caste or language and, consequently giving a preference to the minority over more meritorious nonminority students was impermissible. It is now necessary to refer to some of the decisions of this Court insofar as they interpret Articles 29 and 30, and to examine whether any creases therein need ironing out.
In State of Madras v. Champakam Dorairajan [1951] SCR 525 the State had issued an order, which provided that admission to students to engineering and medical colleges in the
State should be decided by the Selection Committee strictly on the basis of the number of seats fixed for different communities. While considering the validity of this order this Court interpreted Article 29(2) and held that if admission was refused only on the grounds of religion, race, caste, language or any of them, then there was a clear breach of the fundamental right under Article 29(2). The said order was construed as being violative of Article 29(2), because students who did not fall in the particular categories were to be denied admission. In this connection it was observed as follows:So far as those seats are concerned, the petitioners are denied admission into any of them, not on any ground other than the sole ground of their being Brahmins and not being members of the community for whom those reservations were made. This government order was held to be violative of the Constitution and constitutive of a clear breach of Article 29(2). Article 30 did not come up for consideration in that case.
In State of Bombay v. Bombay Education Society [1955] SCR 568, the State had issued a circular, the operative portion of which directed that no primary or secondary school could, from the date of that circular admit to a class where English was used as a medium of instruction, any pupil other than pupils belonging to a section of citizens, the language of whom was English, viz, Anglo-Indians and citizens of non-Asiatic descent. The validity of
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the circular was challenged while admission was refused, inter alia, to a member of the
Gujarati Hindu Community. A number of writ petitions were filed and the High Court allowed them. In an application filed by the State of Bombay, this Court had to consider whether the said circular was ultra vires Article 29(2). In deciding this question, the Court analyzed the provisions of Articles 29(2) and 30, and repelled the contention that Article 29(2) guaranteed the right only to the citizens of the minority group. It was observed, in this connection, at page
579, as follows:
The language of Article 29(2) is wide and unqualified and may well cover all citizens whether they belong to the majority or minority group. Article 15 protects all citizens against the State whereas the protection of Article 29(2) extends against the State or anybody who denies the right conferred by it. Further
Article 15 protects all citizens against discrimination generally but Article 29(2) is a protection against a particular species of wrong namely denial of admission into educational institutions of the specified kind. In the next place Article 15 is quite general and wide in its terms and applies to all citizens, whether they belong to the majority or minority groups, and gives protection to all the citizens against discrimination by the State on certain specific grounds. Article 29(2) confers a special right on citizens for admission into educational institutions maintained or aided by the State. To limit this right only to citizens belonging to minority groups will be to provide a double protection for such citizens and to hold that the citizens of the majority group have no special educational rights in the nature of a right to be admitted into an educational institution for the maintenance of which they make contributions by way of taxes. We see no cogent reason for such discrimination. The heading under which Articles 29 and 30 are grouped together - namely "Cultural and Educational Rights" is quite general and does not in terms contemplate such differentiation. If the fact that the institution is maintained or aided out of State funds is the basis of this guaranteed right then all citizens, irrespective of whether they belong to the majority or minority groups; are alike entitled to the protection of this fundamental right.
It is clear from the aforesaid discussion that this Court came to the conclusion that in the case of minority educational institutions to which protection was available under Article 30, the provisions of Article 29(2) were indeed applicable. But, it may be seen that the question in the present from i.e., whether in the matter of admissions into aided minority educational institutions, minority students could be preferred to a reasonable extent, keeping in view the special protection given under Article 30(1), did not arise for consideration in that case.
... The interplay of Article 29 and Article 30 came up for consideration again before this
Court in the D.A.V. College 1971 (Supp.) SCR 688. Some of the provisions of the Guru Nanak
University Act established after the reorganization of the State of Punjab in 1969 provided for the manner in which the governing body was to be constituted; the body was to include a representative of the University and a member of the College. These and some other provisions were challenged on the ground that they were violative of Article 30. In this connection at page 695, it was observed as follows:It will be observed that Article 29(1) is wider than Article 30(1), in that, while any Section of the citizens including the minorities, can invoke the rights guaranteed under Article 29(1), the rights guaranteed under Article 30(1) are only available to the minorities based on religion or language. It is not necessary for Article 30(1) that the minority should be both a religion minority as well as a linguistic minority. It is sufficient if it is one or the other or both. A reading of these two Articles together would lead us to conclude that a religious or linguistic minority has a right to establish and administer educational institutions of its choice for effectively conserving its distinctive language, script or culture, which right however is subject to the regulatory power of the State for maintaining and facilitating the excellence of its standards. This right is further subject to Clause
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(2) of Article 29 which provides that no citizen shall be denied admission into any educational institution which is maintained by the State or receives aid out of State funds, on grounds only of religion, race, caste, language or any of them.
While this is so these two articles are not inter-linked nor does it permit of their being always read together.
Though it was observed that Article 30(1) is subject to 29(2), the question whether the preference to minority students is altogether excluded, was not considered.
… In the St. Stephen 's College, the right of minorities to administer educational institutions and the applicability of Article 29(2) to an institution to which Article 30(1) was applicable came up for consideration. St. Stephen 's College claimed to be a minority institution, which was affiliated to Delhi University, the College had its own provisions with regard to the admission of students. This provision postulated that applications would be invited by the college by a particular date. The applications were processed and a cut-off percentage for each subject was determined by the Head of the respective Departments and a list of potentially suitable candidates was prepared on the basis of 1:4 and 1:5 ratios for Arts and Science students respectively, and they were then called for an interview (i.e., for every available seat in the Arts Department, four candidates were called for interviews; similarly, for every available seat in the Science Department, five candidates were called for interviews).
In respect of Christian Students, a relaxation of up to 10% was given in determining the cutoff point. Thereafter, the interviews were conducted and admission was granted. The Delhi
University, however, had issued a circular, which provided that admission should be granted to the various courses purely on the basis of merit, i.e., the percentage of marks secured by the students in the qualifying examination. The said circular did not postulate any interview.
Thereafter, the admission policy of St. Stephen 's College was challenged by a petition under
Article 32. It was contended by the petitioners that the College was bound to follow the
University policy, rules and regulations regarding admission, and further argued that it was not a minority institution, and in the alternative, it was not entitled to discriminate against students on the ground of religion, as the college was receiving grant-in-aid from the government, and that such discrimination was violative of Article 29(2). The College had also filed a writ petition in the Supreme Court taking the stand that it was a religious minority institution, and that the circular of the University regarding admission violated its fundamental right under Article 30. This Court held that St. Stephen 's College was a minority institution.
With regard to the second question as to whether the college was bound by the University circulars regarding admission, this Court, by a majority of 4-1, upheld the admission procedure used by the College, even though it was different from the one laid down by the
University. In this context, the contention of the College was that it had been following its own admission programme for more than a hundred years and that it had built a tradition of excellence in a number of distinctive activities. The College challenged the University circular on the ground that it was not regulatory in nature, and that it violated its right under Article
30. Its submission was that if students were admitted purely on the basis of marks obtained by them in the qualifying examination, it would not be possible for any Christian student to gain admission. The college had also found that unless a concession was afforded, the Christian students could not be brought within the zone of consideration as they generally lacked merit when compared to the other applicants. This Court referred to the earlier decisions, and with regard to Article 30(1), observed … as follows:
The minorities whether based on religion or language have the right to establish and administer educational institutions of their choice. The administration of educational institutions of their choice under Article 30(1) means ‘management of the affairs of the institution’. This management must be free from control so that the founder or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the community in general
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and the institution in particular will be best served. But the standards of education are not a part of the management as such. The standard concerns the body politic and is governed by considerations of the advancement of the country and its people. Such regulations do not bear directly upon management although they may indirectly affect it. The State, therefore has the right to regulate the standard of education and allied matters. Minority institutions cannot be permitted to fall below the standards of excellence expected of educational institutions. They cannot decline to follow the general pattern of education under the guise of exclusive right of management. While the management must be left to them, they may be compelled to keep in step with others.
It was further noticed that the right under Article 30(1) had to be read subject to the power of the state to regulate education, educational standards and allied matters. … Dealing with the question of the selection of students, it was accepted that the right to select students for admission was a part of administration, and that this power could be regulated, but it was held that the regulation must be reasonable and should be conducive to the welfare of the minority institution or for the betterment of those who resort to it. Bearing this principle in mind, this
Court took note of the fact that if the College was to admit students as per the circular issued by the University, it would have to deny admissions to the students belonging to the Christian community because of the prevailing situation that even after the concession, only a small number of minority applicants would gain admission. It was the case of the College that the selection was made on the basis of the candidate 's academic record, and his/her performance at the interview keeping in mind his/her all round competence, his/her capacity to benefit from attendance at the College, as well as his/her capacity to benefit from attendance at the College, as well as his/her potential to contribute to the life of the College. While observing that the oral interview as a supplementary test and not as the exclusive test for assessing the suitability of the candidates for college admission had been recognized by this Court, this Court observed that the admission programme of the college "based on the test of promise and accomplishment of candidates seems to be better than the blind method of selection based on the marks secured in the qualifying examinations." The Court accordingly held that St.
Stephen 's College was not bound by the impugned circulars of the University. This Court then dealt with the question as to whether a preference in favour of, or a reservation of seats for candidates belonging to, its own community by the minority institutions would be invalid under Article 29(2) of the Constitution. After referring to the Constituent Assembly Debates and the proceedings of the Draft Committee that led to the incorporation of Articles 29 and
30, this Court proceeded to examine the question of the true import and effect of Articles 29(2) and 30(1) of the Constitution.
On behalf of the institutions, it was argued that a preference given to minority candidates in their own educational institutions, on the ground that those candidates belonged to that minority community, was not violative of Article 29(2), and that in the exercise of Article
30(1), the minorities were entitled to establish and administer educational institutions for the exclusive advantage of their own community 's candidates. This contention was not accepted by this Court on two grounds. Firstly, it was held that institutional preference to minority candidates based on religion was apparently an institutional discrimination on the forbidden ground of religion -- the Court stated that "if an educational institution says yes to one candidate but says no to other candidate on the ground of religion, it amounts to discrimination on the ground of religion. The mandate of Article 29(2) is that there shall not be any such discrimination." … The Court then dealt with the contention on behalf of the University that the minority institutions receiving government aid were bound by the mandate of Article 29(2), and that they could not prefer candidates from their own community. The Court referred to the decision in Champakam Dorairajan, but observed as follows:
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"… the fact that Article 29(2) applied to minorities as well as non-minorities did not mean that it was intended to nullify the special right guaranteed to minorities in Article 30(1). Article 29(2) deals with non-discrimination and is available only to individuals. General equality by non-discrimination is not the only need of minorities. Minority rights under majority rule implies more than nondiscrimination; indeed, it begins with non-discrimination. Protection of interests and institutions and the advancement of opportunity are just as important.
Differential treatment that distinguishes them from the majority is a must to preserve their basic characteristics."
Dealing with the submission that in a secular democracy the government could not be utilized to promote the interest of any particular community, and that the minority institution was not entitled to state aid as of right, this Court … held as follows:It is quite true that there is no entitlement to State grant for minority educational institutions. There was only a stop-gap arrangement under Article 337 for the
Anglo-Indian community to receive State grants. There is no similar provision for other minorities to get grant from the State. But under Article 30(2), the State is under an obligation to maintain equality of treatment in granting aid to educational institutions. Minority institutions are not to be treated differently while giving financial assistance. They are entitled to get the financial assistance much the same way as the institutions of the majority communities.
It was further held that the state could lay down reasonable conditions for obtaining grantin-aid and for its proper utilization, but that the state had no power to compel minority institutions to give up their rights under Article 30(1).
… The two competing rights are the right of the citizen not to be denied admission granted under Article 29(2), and right of the religious or linguistic minority to administer and establish an institution of its choice granted under Article 30(1). While treating Article 29(2) as a facet of equality, the Court gave a contextual interpretation to Articles 29(2) and 30(1) while rejecting the extreme contention on both sides, i.e., on behalf of the institutions that Article
29(2) did not prevent a minority institution to preferably admit only members belonging to the minority community, and the contention on behalf of the State that Article 29(2) prohibited any preference in favour of a minority community for whose benefit the institution was established. The Court concluded … as follows:In the light of all these principles and factors, and in view of the importance which the Constitution attaches to protective measures to minorities under
Article 30(1), the minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions subject of course to conformity with the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the institution is intended to serve. But in no case such intake shall exceed 50 per cent of the annual admission. The minority institutions shall make available at least 50 per cent of the annual admission to members of communities other than the minority community. The admission of other community candidates shall be done purely on the basis of merit.
If we keep these basic features, as highlighted in St. Stephen 's case, in view, then the real purposes underlying Articles 29(2) and 30 can be better appreciated.
We agree with the contention of the learned Solicitor General that the Constitution in Part
III does not contain or give any absolute right. All rights conferred in Part III of the
Constitution are subject to at least other provisions of the said Part. It is difficult to comprehend that the framers of the Constitution would have given such an absolute right to the religious or linguistic minority which would enable them to establish and administer educational institutions in manner so as to be in conflict with the other Parts of the
Constitution. We find difficult to accept that in the establishment and administration of
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educational institutions by the religious and linguistic minorities, no law of the land, even the
Constitution, is to apply to them.
Decisions of this Court have held that the right to administer does not include the right to mal-administer. It has also been held that the right to administer is not absolute, but must be subject to reasonable regulations for the benefit of the institutions as the vehicle of education, consistent with national interest. General laws of the land applicable to all persons have been held to be applicable to the minority institutions also -- for example, laws relating to taxation, sanitation, social welfare, economic regulation, public order and morality.
It follows from the aforesaid decisions that even though the words of Article 30(1) are unqualified, this Court has held that at least certain other laws of the land pertaining to health, morality and standards of education apply. The right under Article 30(1) has, therefore, not been held to be absolute or above other provisions of the law, and we reiterate the same. By the same analogy, there is no reason why regulations or conditions concerning, generally, the welfare of students and teachers should not be made applicable in order to provide a proper academic atmosphere, as such provisions do not in any way interfere with the right of administration or management under Article 30(1).
As we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality being two of the basic features of the Constitution,
Article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate against such minorities with regard to the establishment and administration of educational institutions visa-vis other educational institutions. Any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down. At the same time, there also cannot be any reverse discrimination. … [T]he essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. No one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another.
Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions. The minority institutions must be allowed to do what the non-minority institutions are permitted to do.
Like any other private unaided institutions, similar unaided educational institutions administered by linguistic or religious minorities are assured maximum autonomy in relation thereto; e.g., method of recruitment of teachers, charging of fees and admission of students.
They will have to comply with the conditions of recognition, which cannot be such as to whittle down the right under Article 30.
We have now to address the question of whether Article 30 gives a right to ask for a grant or aid from the state, and secondly, if it does get aid, to examine to what extent its autonomy in administration, specifically in the matter of admission to the educational institution established by the community, can be curtailed or regulated.
The grant of aid is not a constitutional imperative. Article 337 only gives the right to assistance by way of grant to the Anglo-Indian community for a specified period of time. If no aid is granted to anyone, Article 30(1) would not justify a demand for aid, and it cannot be said that the absence of aid makes the right under Article 30(1). The founding fathers have not incorporated the right to grants in Article 30, whereas they have done so under Article 337; what, then, is the meaning, scope and effect of Article 30(2)? Article 30(2) only means what it states, viz that a minority institution shall not be discriminated against when aid to
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educational institutions is granted. In other words the state cannot, when it chooses to grant aid to educational institutions, deny aid to a religious or linguistic minority institution only on the ground that the management of that institution is with the minority. We would, however, like to clarify that if an object surrender of the right to management is made a condition of aid, the denial of aid would be violative of Article 30(2). However, conditions of aid that do not involve a surrender of the substantial right of management would not be inconsistent with constitutional guarantees, even if they indirectly impinge upon some fact of administration.
If, however, aid were denied on the ground that the educational institution is under the management of a minority, then such a denial would be completely invalid.
The implication of Article 30(2) is also that it recognizes that the minority nature of the institution should continue, notwithstanding the grant of aid. In other words, when a grant is given to all institutions for imparting secular education, a minority institution is also entitled to receive it subject to the fulfillment of the requisite criteria, and the state gives the grant knowing that a linguistic or minority educational institution will also receive the same. Of course, the state cannot be compelled to grant aid, but the receipt of aid cannot be a reason for altering the nature of character of the incipient educational institution.
This means that the right under Article 30(1) implies that any grant that is given by the state to the minority institution cannot have such conditions attached to it, which will in any way dilute or abridge the rights of the minority institution to establish and administer that institution. The conditions that can normally be permitted to be imposed, on the educational institutions receiving the grant, must be related to the proper utilization of the grant and fulfillment of the objectives of the grant. Any such secular conditions so laid, such as a proper audit with regard to the utilization of the funds and the manner in which the funds are to be utilized, will be applicable and would not dilute the minority status of the educational institutions. Such conditions would be valid if they are also imposed on other educational institutions receiving the grant.
It cannot be argued that no conditions can be imposed while giving aid to a minority institution. Whether it is an institution run by the majority or the minority, all conditions that have relevance to the proper utilization of the grant-in-aid by an educational institution can be imposed. All that Article 30(2) states is that on the ground that an institution is under the management of a minority, whether based on religion or language, grant of aid to that educational institution cannot be discriminated against, if other educational institutions are entitled to receive aid. The conditions for grant or non-grant of aid to educational institutions have to be uniformly applied, whether it is a majority-run institution or a minority-run institution. As in the case of a majority-run institution, the moment a minority institution obtains a grant of aid, Article 28 of the Constitution comes into play. When an educational institution is maintained out of State funds, no religious institution can be provided therein.
Article 28(1) does not state that it applies only to educational institutions that are not established or maintained by religious or linguistic minorities. Furthermore, upon the receipt of aid, the provisions of Article 28(3) would apply to all educational institutions whether run by the minorities or the non-minorities. Article 28(3) is the right of a person studying in a state recognized institution or in an educational institution receiving aid from state funds, not to take part in any religious instruction, if imparted by such institution, without his/her consent
(or his/her guardian 's consent if such a person is a minor).
Just as Article 28(1) and (3) become applicable the moment any educational institution takes aid, likewise, Article 29(2) would also be attracted and become applicable to an educational institution maintained by the state or receiving aid out of state funds. It was strenuously contended that the right to give admission is one of the essential ingredients of the right to administer conferred on the religious or linguistic minority, and that this right
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should not be curtailed in any manner. It is difficult to accept this contention. If Article 23(1) and (3) apply to a minority institution that receives aid out of state funds, there is nothing in the language of Article 30 that would make the provisions of Article 29(2) inapplicable. Like
Article 28(1) and Article 28(3), Article 29(2) refers to "any educational institution maintained by the State or receiving aid out of State funds". A minority institution would fall within the ambit of Article 29(2) in the same manner in which Article 28(1) and Article 28(3) would be applicable to an aided minority institution. It is true that one of the rights to administer an educational institution is to grant admission to the students. As long as an educational institution, whether belonging to the minority or the majority community, does not receive aid, it would, in our opinion, be its right and discretion to grant admission to such students as it chooses or selects subject to what has been clarified before. Out of the various rights that the minority institution has in the administration of the institution, Article 29(2) curtails the right to grant admission to a certain extent. By virtue of Article 29(2), no citizen can be denied admission by an aided minority institution on the grounds only of religion, race, caste, language or any of them. It is no doubt true that Article 29(2) does curtail one of the powers of the minority institution, but on receiving aid, some of the rights that an unaided minority institution has are also curtailed by Article 28(1) and 28(3). A minority educational institution has a right to impart religious instruction - this right is taken away by Article 28(1), if that minority institution is maintained wholly out of state funds. Similarly on receiving aid out of state funds or on being recognized by the state, the absolute right of a minority institution requiring a student to attend religious instruction is curtailed by Article 28(3). If the curtailment of the right to administer a minority institution on receiving aid or being wholly maintained out of state funds as provided by Article 28 is valid, there is no reason why Article
29(2) should not be held to be applicable. There is nothing in the language of Article 28(1) and (3), Article 29(2) and Article 30 to suggest that on receiving aid, Article 28(1) and (3) will apply, but Article 29(2) will not. Therefore, the contention that the institutions covered by
Article 30 are outside the injunction of Article 29(2) cannot be accepted.
What is the true scope and effect of Article 29(2)? Article 29(2) is capable of two interpretations--one interpretation, which is put forth by the Solicitor General and the other counsel for the different States, is that a minority institution receiving aid cannot deny admission to any citizen on the grounds of religion, race, caste, language or any of them. In other words, the minority institution, once it takes any aid, cannot make any reservation for its own community or show a preference at the time of admission, i.e., if the educational institution was a private unaided minority institution, it is free to admit all students of its own community, but once aid is received, Article 29(2) makes it obligatory on the institution not to deny admission to a citizen just because he does not belong to the minority community that has established the institution.
The other interpretation that is put forth is that Article 29(2) is a protection against discrimination on the ground of religion, race, caste or language, and does not in any way come into play where the minority institution prefers students of its choice. To put it differently, denying admission, even though seats are available, on the ground of the applicant 's religion, race, caste or language, is prohibited, but preferring students of minority groups does not violate Article 29(2).
It is relevant to note that though Article 29 carries the head note "Protection of interests of minorities" it does not use the expression "minorities" in its text. The original proposal of the Advisory Committee in the Constituent Assembly recommended the following:(1) Minorities in every unit shall be protected in respect of their language, script and culture and no laws or regulations may be enacted that may operate
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oppressively or prejudicially in this respect" [B. Siva Rao, "Select Documents"
(1957) Vol. 2 page 281]
But after the clause was considered by the drafting Committee on 1st November, 1947, it emerged with substitute of 'section of citizen '. [B. Siva Rao, Select Documents (1957) Vol. 3, pages 525-26. Clause 23, Draft Constitution]. It was explained that the intention had always been to use 'minority ' in a wide sense, so as to include (for example) Maharashtrians who settled in Bengal. (7 C.A.D. pages 922-23)
Both Articles 29 and 30 from a part of the fundamental rights Chapter in Part III of the
Constitution. Article 30 is confined to minorities, be it religious or linguistic, and unlike
Article 29(1), the right available under the said Article cannot be availed by any section of citizens. The main distinction between Article 29(1) and Article 30(1) is that in the former, the right is confined to conservation of language, script or culture. …
Although the right to administer includes within it a right to grant admission to students of their choice under Article 30(1), when such a minority institution is granted the facility of receiving grant-in-aid, Article 29(2) would apply, and necessarily, therefore, one of the right of administration of the minorities would be eroded to some extent. Article 30(2) is an injunction against the state not to discriminate against the minority educational institution and prevent it from receiving aid on the ground that the institution is under the management of a minority. While, therefore, a minority educational institution receiving grant-in-aid would not be completely outside the discipline of Article 29(2) of the Constitution by no stretch of imagination can the rights guaranteed under Article 30(1) be annihilated. It is this context that some interplay between Article 29(2) and Article 30(1) is required. As observed quite aptly in
St. Stephen 's case "the fact that Article 29(2) applies to minorities as well as non-minorities does not mean that it was intended to nullify the special right guaranteed to minorities in
Article 30(1)." The word "only" used in Article 29(2) is of considerable significance and has been used for some avowed purpose. Denying admission to non-minorities for the purpose of accommodating minority students to a reasonable extent will not be only on grounds of religion etc., but is primarily meant to preserve the minority character of the institution and to effectuate the guarantee under Article 30(1). The best possible way is to hold that as long as the minority educational institution permits admission of citizens belonging to the nonminority class to a reasonable extent based upon merit, it will not be an infraction of Article
29(2), even though the institution admits students of the minority group of its own choice for whom the institution was meant. What would be a reasonable extent would depend upon variable factors, and it may not be advisable to fix any specific percentage. The situation would vary according to the type of institution and the nature of education that is being imparted in the institution. Usually, at the school level, although it may be possible to fill up all the seats with students of the minority group, at the higher level, either in colleges or in technical institutions, it may not be possible to fill up all the seats with the students of the minority group. However, even if it is possible to fill up all the seats with students of the minority group, the moment the institution is granted aid, the institution will have to admit students of the non-minority group to a reasonable extent, whereby the character of the institution is not annihilated, and at the same time, the rights of the citizen engrafted under
Article 29(2) are not subverted. It is for this reason that a variable percentage of admission of minority students depending on the type of institution and education is desirable, and indeed, necessary, to promote the constitutional guarantee enshrined in both Article 29(2) and Article
30.
… We would, however, like to clarify one important aspect at this stage. The aided linguistic minority educational institution is given the right to admit students belonging to the linguistic minority to a reasonable extent only to ensure that its minority character is preserved
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and that the objective of establishing the institution is not defeated. If so, such an institution is under an obligation to admit the bulk of the students fitting into the description of the minority community. Therefore, the students of that group residing in the state in which the institution is located have to be necessarily admitted in a large measure because they constitute the linguistic minority group as far as that state is concerned. In other words, the predominance of linguistic students hailing from the state in which the minority educational institution is established should be present. The management bodies of such institution cannot resort to the device of admitting the linguistic students of the adjoining state in which they are in a majority, under the facade of the protection given under Article 30(1). If not, the very objective of conferring the preferential right of admission by harmoniously constructing Articles 30(1) and
29(2), which we have done above, may be distorted.
We are rightly proud of being the largest democracy in the world. The essential ingredient of democracy is the will and the right of the people to elect their representatives from amongst a government is formed.
It will be wrong to presume that the government or the legislature will act against the
Constitution or contrary to the public or national interest at all times. Viewing every action of the government with skepticism, and with the belief that it must be invalid unless proved otherwise, goes against the democratic form of government. It is no doubt true that the Court has the power and the function to see that no one including the government acts contrary to the law, but the cardinal principle of our jurisprudence is that it is for the person who alleges that the law has been violated to prove it to be so. In such an event, the action of the government or the authority may have to be carefully examined, but it is improper to proceed on the assumption that, merely because an allegation is made, the action impugned or taken must be bad in law. Such being the position, when the government frames rules and regulations or lays down norms, specially with regard to deduction, one must assume that unless shown otherwise, the action taken is in accordance with law. Therefore, it will not be in order to so interpret a Constitution, and Article 29 and 30 in particular, on the presumption that the state will normally not act in the interest of the general public or in the interest of concerned sections of the society.
CONCLUSION
… Our country is often depicted as a person in the form of "Bharat Mata -- Mother India".
The people of India are regarded as her children with their welfare being in her heart. Like and loving mother, the welfare of the family is of paramount importance for her.
For a healthy family, it is important that each member is strong and healthy. But then, all members do not have the same constitution, whether physical and/or mental. For harmonious and healthy growth, it is natural for the parents, and the mother in particular, to give more attention and food to the weaker child so as to help him/her become stronger. Giving extra food and attention and ensuring private tuition to help in his/her studies will, in a sense, amount to giving the weaker child preferential treatment. Just as lending physical support to the aged and the infirm, or providing a special diet, cannot be regarded as unfair or unjust, similarly, conferring certain rights on a special class, for good reasons, cannot be considered inequitable. All the people of India are not alike, and that is why preferential treatment to a special section of the society is not frowned upon. Article 30 is a special right conferred on the religious and linguistic minorities because of their numerical handicap and to instill in them a sense of security and confidence, even though the minorities cannot be per se regarded as weaker sections or underprivileged segments of the society.
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The one billion population of India consists of six main ethnic groups and fifty-two major tribes; six major religions and 6,400 castes and sub-castes; eighteen major languages and
1,600 minor languages and dialects. The essence of secularism in India can best be depicted if a relief map of India is made in mosaic, where the aforesaid one billion people are the small pieces of marble that go into the making of a map. Each person, whatever his/her language, caste, religion has his/her individual identity, which has to be preserved, so that when pieced together it goes to form a depiction with the different geographical features of India. These small pieces of marble, in the form of human beings, which may individually be dissimilar to each other, when placed together in a systematic manner, produce the beautiful map of India.
Each piece, like a citizen of India, plays an important part in making of the whole. The variations of the colours as well as different shades of the same colour in a map is the result of these small pieces of different shades and colours of marble, but even when one small piece of marble is removed, the whole map of India would be scarred, and the beauty would be lost.
Each of the people of India has an important place in the formation of the nation. Each piece has to retain its own colour. By itself, it may be an insignificant stone, but when placed in a proper manner, goes into the making of a full picture of India in all its different colours and hues.
A citizen of India stands in a similar position. The Constitution recognizes the differences among the people of India, but it gives equal importance to each of them, their differences notwithstanding, for only then can there be a unified secular nation. Recognizing the need for the preservation and retention of different pieces that go into the making of a whole nation, the Constitution, while maintaining, inter alia, the basic principle of equality, contains adequate provisions that ensure the preservation of these different pieces.
The essence of secularism in India is the recognition and preservation of the different types of people, with diverse languages and different beliefs, and placing them together so as to form a whole and united India. Articles 29 and 30 do not more than seek to preserve the differences that exist, and at the same time, unite the people to form one strong nation.
ANSWERS TO ELEVEN QUESTIONS
Q.1. What is the meaning and content of the expression "minorities" in Article 30 of the
Constitution of India?
A. Linguistic and religious minorities are covered by the expression "minority" under
Article 30 of the Constitution. Since reorganisation of the State in India has been on linguistic lines, therefore, for the purpose of determining the minority the unit will be the State and note the whole of India. Thus, religious and linguistic minorities, who have been put at par in
Article 30, have to be considered State-wise.
Q.2. What is meant by the expression "religion" in Article 30(1)? Can the followers of a sect or denomination of a particular religion claim protection under Article 30(1) on the basis that they constitute a minority in the State, even though the followers of that religion are in majority in that State?
A. This question need not be answered by this Bench; it will be dealt with by a regular
Bench.
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Q.3(a) What are the indicia for treating an educational institution as a minority educational institution? Would an institution be regarded as a minority educational institution because it was established by a person(s) belonging to a religious or linguistic minority or its being administered by a person(s) belonging to a religious or linguistic minority?
A. This question need not be answered by this Bench; it will be dealt with by a regular
Bench.
Q3(b) To what extent can professional education be treated as a matter coming under minorities rights under Article 30?
A. Article 30(1) gives religious and linguistic minorities the right to establish and administer educational institutions of their choice. The use of the words "of their choice" indicates that even professional educational institutions would be covered by Article 30.
Q.4 Whether the admission of students to minority educational institution, whether aided or unaided, can be regulated by the State Government or by the University to which the institution is affiliated?
A. Admission of students to unaided minority educational institutions, viz., schools and undergraduates colleges where the scope for merit-based selection is practically nil, cannot be regulated by the concerned State or University, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards.
The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the state government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions.
A minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-minority students, so that the rights under Article
30(1) are not substantially impaired and further the citizens rights under Article 29(2) are not infringed. What would be a reasonable extent, would vary from the types of institution, the courses of education for which admission is being sought and other factors like educational needs. The concerned State Government has to notify the percentage of the non-minority students to be admitted in the light of the above observations. Observance of inter se merit amongst the applicants belonging to the minority group could be ensured. In the case of aided professional institutions, it can also be stipulated that passing of the common entrance test held by the state agency is necessary to seek admission. As regards non-minority students who are eligible to seek admission for the remaining seats, admission should normally be on the basis of the common entrance test held by the state agency followed by counselling wherever it exists.
Q5(a) Whether the minority 's rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students?
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A. A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not tantamount to mal-administration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence.
Q5(b) Whether the minority institutions ' right of admission of students and to lay down procedure and method of admission, if any, would be affected in any way by the receipt of
State aid?
A. While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe by-rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the state qua non-minority students. The merit may be determined either through a common entrance test conducted by the concerned University or the Government followed by counselling, or on the basis of an entrance test conducted by individual institutions--the method to be followed is for the university or the government to decide. The authority may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit. In the case of such institutions, it will be permissible for the government or the university to provide that consideration should be shown to the weaker sections of the society. Q5(c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and Principal including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities?
A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to an university or board have to be complied with, but in the mater of day-to-day management like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.
For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a Judicial Officer of the rank of District Judge.
The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution.
Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the state, without interfering with the overall administrative control of the management over the staff.
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Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee.
Q6(a) Where can a minority institution be operationally located? Where a religious or linguistic minority in State 'A" establishes an educational institution in the said State, can such educational institution grant preferential admission/reservations and other benefits to members of the religious/linguistic group from other States where they are non-minorities?
A. This question need not be answered by this Bench; it will be dealt with by a regular
Bench.
Q6(b) Whether it would be correct to say that only the members of that minority residing in
State 'A ' will be treated as the members of the minority vis-à-vis such institution?
A. This question need not be answered by this Bench; it will be dealt with by a regular
Bench.
Q.7 Whether the member of a linguistic non-minority in one State can establish a trust/society in another State and claim minority status in that State?
A. This question need not be answered by this Bench; it will be dealt with by a regular
Bench.
Q.8 Whether the ratio laid down by this Court in the St. Stephen 's is correct? If no, what order?
A. The basic ratio laid down by this Court in the St. Stephen 's is correct, as indicated in this judgment. However, rigid percentage cannot be stipulated. It has to be left to authorities to prescribe a reasonable percentage having regard to the type of institution, population and educational needs of minorities.
Q.9 Whether the decision of this Court in Unni Krishnan (except where it holds that primary education is a fundamental right) and the scheme framed thereunder required reconsideration/modification and if yes, what?
A. The scheme framed by this Court in Unni Krishnan and the direction impose the same, except where it holds that primary education is fundamental right, is unconstitutional.
However, the principle that there should not be capitation fee or profiteering is correct.
Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however amount to profiteering.
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UNIT 12 – FUNDAMENTAL RIGHTS AND THE DOCTRINE
BASIC STRUCTURE
DOCTRINE OF BASIC STRUCUTRE
KESAVANANDA BHARTI V. UNION OF INDIA
AIR 1974 SC 1461, (1973) 4 SCC 225
Decided On: April 24, 1973
BENCH – CHIEF JUSTICE S. M. SIKRI, JUSTICES A. N. GROVER, A. N. RAY, D. G. PALEKAR, H.
R. KHANNA, J. M. SHELAT, K. K. MATHEW, K. S. HEGDE, M. HAMEEDULLAH BEG, P.
JAGANMOHAN REDDY, S. N. DWIVEDI, A. K. MUKHERJEA & Y. V. CHANDRACHUD
CHIEF JUSTICE SIKRI (for himself)
I propose to divide my judgment into eight parts. Part I will deal with Introduction; Part II with interpretation of Golakhnath case; Part III with the interpretation of the original Article 368, as it existed prior to its amendment; Part IV with the validity of the Constitution (Twenty-fourth
Amendment) Act; Part V with the validity of Section 2 of the Constitution (Twenty-fifth
Amendment) Act; Part VI with the validity of Section 3 of the Constitution (Twenty-fifth
Amendment) Act; Part VII with Constitution (Twenty-ninth Amendment) Act; and Part VIII with conclusions. Part I – Introduction
All the six writ petitions involve common questions as to the validity of the Twenty-fourth,
Twenty-fifth and Twenty-ninth Amendments of the Constitution.
… The Constitution (Twenty-fifth Amendment) Act came into force on November 5, 1971, the Constitution (Twenty-fifth Amendment) Act came into force on April 20, 1972 and the
Constitution (Twenty-ninth Amendment) Act came into force on June 9, 1972. The effect of the
Twenty-ninth Amendment of the Constitution was that it inserted the following Acts in the Ninth
Schedule to the Constitution:
65. The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969)
66. The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971)
… It was then felt that it would be necessary to decide whether Golak Nath v. State of Punjab
[1967] 2 SCR 762 was rightly decided or not. However, as I see it, the question whether Golak
Nath was rightly decided or not does not matter because the real issue is different and of much greater importance, the issue being: what is the extent of the amending power conferred by Article
368 of the Constitution, apart from Article 13(2), on Parliament?
The respondents claim that Parliament can abrogate fundamental rights such as freedom of speech and expression, freedom to form associations or unions, and freedom of religion. They claim that democracy can even be replaced and one-party rule established. Indeed, short of repeal of the Constitution, any form of Government with no freedom to the citizens can be set up by
Parliament by exercising its powers under Article 368.
On the side of the petitioners it is urged that the power of Parliament is much more limited.
The petitioners say that the Constitution gave the Indian citizen freedoms which were to subsist for ever and the Constitution was drafted to free the nation from any future tyranny of the
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representatives of the people. It is this freedom from tyranny which, according to the petitioners, has been taken away by the impugned Article 31C which has been inserted by the Twenty-fifth
Amendment. If Article 31C is valid, they say, hereafter Parliament and State Legislatures and not the Constitution, will determine how much freedom is good for the citizens.
These cases raise grave issues. But however grave the issues may be, the answer must depend on the interpretation of the words in Article 368, read in accordance with the principles of interpretation which are applied to the interpretation of a Constitution given by the people to themselves. I must interpret Article 368 in the setting of our Constitution, in the background of our history and in the light of our aspirations and hopes, and other relevant circumstances. No other
Constitution in the world is like ours. No other Constitution combines under its wings such diverse peoples, numbering now more than 550 millions, with different languages and religions and in different stages of economic development, into one nation, and no other nation is faced with such vast socio-economic problems.
I need hardly observe that I am not interpreting an ordinary statute, but a Constitution which apart from setting up a machinery for government, has a noble and grand vision. The vision was put in words in the Preamble and carried out in part by conferring fundamental rights on the people.
The vision was directed to be further carried out by the application of directive principles.
… [Part II has been omitted. Chief Justice Sikri discusses all major cases till this case dealing with article 368 and cites from those decisions extensively. Since all these cases had opinions delivered by several judges, some of them being dissenting opinions expressing their reservations about fundamental rights being ‘playthings’ of a special majority, he quotes and highlights the conclusions of those dissenting opinions as well.] …
PART III – Interpretation of Article 368
Let me now proceed to interpret Article 368. Article 368, as originally enacted, read as follows:
An amendment of this Constitution may be initiated only by the introduction of a
Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change in(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States specified in Parts A and B of the First Schedule by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
It will be noticed that Article 368 is contained in a separate part and the heading is
“Amendment of the Constitution”, but the marginal note reads “Procedure for amendment of the
Constitution”.
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The expression “amendment of the Constitution” is not defined or expanded in any manner, although in other parts of the Constitution, the word “Amend” or “Amendment” has, as will be pointed out later, been expanded. In some parts they have clearly a narrow meaning. The proviso throws some light on the problem. First, it uses the expression “if such amendment seeks to make any change in”; it does not add the words “change of”, or omit “in”, and say “seeks to change” instead of the expression “seeks to make any change in”.
The articles which are included in the proviso may be now considered. Part V, Chapter I, deals with “the Executive”. Article 52, provides that there shall be a President of India, and Article 53 vests the executive power of the Union in the President and provides how it shall be exercised.
These two articles are not mentioned in the proviso to Article 368 but Articles 54 and 55 are mentioned. … Why were Articles 52 and 53 not mentioned in the proviso to Article 368 if the intention was that the States would have a say as to the federal structure of the country? One of the inferences that can be drawn is that the Constitution-makers never contemplated, or imagined that Article 52 will be altered and there shall not be a President of India. In other words they did not contemplate a monarchy being set up in India or there being no President.
Another article which has been included in the proviso to Article 368 is Article 73 which deals with the extent of executive powers of the Union. As far as the Vice-President is concerned, the
States have been given no say whether there shall be a Vice-President or not; about the method of his election, etc. But what is remarkable is that when we come to Part VI of the Constitution, which deals with the "States", the only provision which is mentioned in the proviso to Article 368 is
Article 162 which deals with the extent of executive power of States. The appointment of a
Governor, conditions of service of a Governor, and the Constitution and functions of the Council of Ministers, and other provisions regarding the Ministers and the conduct of government business are not mentioned at all in the proviso to Article 368. Another article which is mentioned in Clause
(a) of the proviso to Article 368 is Article 241 which originally dealt with High Courts for States in Part C of the First Schedule.
Chapter IV of Part V of the Constitution which deals with the Union Judiciary, and Chapter V of Part VI which deals with the High Courts in the State are included in the proviso to Article 368 but it is extra-ordinary that Chapter VI of Part VI which deals with subordinate Judiciary is not mentioned in Clause (b). Chapter I of Part XI is included and this deals with the Legislative
Relations between the Union and the States, but Chapter II of Part XI which deals with
Administrative Relations between the Union and the States, and various other matters in which the
States would be interested are not included. Provisions relating to services under the State and
Trade and Commerce are also not included in the proviso.
This analysis of the provisions contained in Clauses (a) and (b) of the proviso to Article 368 shows that the reason for including certain articles and excluding certain other from the proviso was not that all articles dealing with the federal structure or the status of the States had been selected for inclusion in the proviso.
Clause (c) of the proviso mentions the Lists in the Seventh Schedule, Clause (d) mentions the representation of States in Parliament, and Clause (e) the provisions of Article 368 itself. The provisions of Sub-clauses (c), (d) and (e) can rightly be said to involve the federal structure and the rights of the States.
What again is remarkable is that the fundamental rights are not included in the proviso at all.
Were not the States interested in the fundamental rights of their people? The omission may perhaps be understandable because of the express provision of Article 13(2) which provided that States shall not make any law which takes away or abridges the rights conferred by Part III and any law
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made in contravention of this clause shall to the extent of the contravention be void, assuming for the present that Article 13(2) operates on Constitutional amendments.
In construing the expression “amendment of this Constitution” I must look at the whole scheme of the Constitution. It is not right to construe words in vacuum and then insert the meaning into an article. Lord Greene observed in Bidie v. General Accident, Fire and Life Assurance
Corporation [1948] 2 All E.R. 995:
The first thing one has to do, I venture to think, in construing words in a section of an Act of Parliament is not to take those words in vacuo, so to speak, and attribute to them what is sometimes called their natural or ordinary meaning. Few words in the English language have a natural or ordinary meaning in the sense that they must be so read that their meaning is entirely independent of their context. The method of construing statutes that I prefer is not to take particular words and attribute to them a sort of prima facie meaning which you may have to displace or modify. It is to read the statute as a whole and ask oneself the question:
In this state, in this context, relating to this subject-matter, what is the true meaning of that word?
I respectfully adopt the reasoning of Lord Greene in construing the expression "the amendment of the Constitution.
… [Discussion of another English case supporting this observation on statutory interpretation made by
Lord Greene, by Chief Justice Gwyer of the Federal Court and of Justice Holmes of the U.S. Supreme
Court have been omitted] …
In the Constitution the word "amendment" or "amend" has been used in various places to mean different things. In some articles, the word "amendment" in the context has a wide meaning and in another context it has a narrow meaning. In Article 107, which deals with legislative procedure,
Clause (2) provides that "subject to the provisions of Articles 108 and 109, a Bill shall not be deemed to have been passed by the House of Parliament unless it has been agreed to by both
Houses, either without amendment or with such amendments only as are agreed to by both
Houses." It is quite clear that the word "amendment" in this article has a narrow meaning.
Similarly, in Article 111 of the Constitution, whereby the President is enabled to send a message requesting the Houses to consider the desirability of introducing amendments, the "amendments" has a narrow meaning.
The opening of Article 4(1) reads:
4(1) Any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law…
Here the word "amendment" has a narrower meaning. "Law" under Articles 3 and 4 must
"conform to the democratic pattern envisaged by the Constitution; and the power which the
Parliament may exercise… is not the power to over-ride the Constitutional scheme. No state can, therefore, be formed, admitted or set up by law under Article 4 by the Parliament which has no effective legislative, executive and judicial organs". (Per Shah J.Mangal Singh v. Union of India
[1967] 2 SCR 109)
Article 169(2) reads:
Any law referred to in Clause (1) shall contain such provisions for the amendment of this Constitution as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions as Parliament may deem necessary.
Here also the word "amendment" has a narrow meaning.
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Para 7 of Part D, Fifth Schedule, which deals with amendment of the schedule, reads:
7. Amendment of the Schedule. - (1) Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this
Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shall be construed as a reference to such schedule as so amended. Here the word "amend" has been expanded by using the expression "by way of addition, variation or repeal", but even here, it seems to me, the amendments will have to be in line with the whole Constitution. Similarly, under para 21 of the Sixth Schedule, which repeats the phraseology of para 7 of the Fifth Schedule, it seems to me, the amendments will have to be in line with the
Constitution.
I may mention that in the case of the amendments which may be made in exercise of the powers under Article 4, Article 169, para 7 of the Fifth Schedule, and para 21 of the Sixth Schedule, it has been expressly stated in these provisions that they shall not be deemed to be amendments of the
Constitution for the purposes of Article 368.
It is also important to note that the Constituent Assembly which adopted Article 368 on
September 17, 1949, had earlier on August 18, 1949, substituted the following section in place of the old Section 291 in the Government of India Act, 1935:
291. Power of the Governor-General to amend certain provisions of the Act and orders made thereunder(1) The Governor-General may at any time by order make such amendments as he considers necessary whether by way of addition, modification or repeal, in the provisions of this Act or of any order made thereunder in relation to any Provincial
Legislature with respect to any of the following matters, that is to say (a) the composition of the Chamber or Chambers of the Legislature;
(b) the delimitation of territorial constituencies for the purpose of elections under this Act.
Here, the word "amendment" has been expanded. It may be that there really is no expansion because every amendment may involve addition, variation or repeal of part of a provision.
According to Mr. Seervai, the power of amendment given by Article 4, read with Articles 2 and 3, Article 169, Fifth Schedule and Sixth Schedule, is a limited power limited to certain provisions of the Constitution, while the power under Article 368 is not limited. It is true every provision is prima facie amendable under Article 368 but this does not solve the problem before us. I may mention that an attempt was made to expand the word "amend" in Article 368 by proposing an amendment that "by way of variation, addition, or repeal" be added but the amendment was rejected.
Again, in Article 196(2), the word "amendment" has been used in a limited sense. Article
196(2) reads:
196(2). Subject to the provisions of Articles 197 and 198, a Bill shall not be deemed to have been passed by the Houses of the Legislature of a State having a
Legislative Council unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses.
Similar meaning may be given to the word "amendment" in Article 197(2), which reads:
197(2). If after a Bill has been so passed for the second time by the Legislative
Assembly and transmitted to the Legislative Council(a) the Bill is rejected by the Council; or
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(b) more than one month elapses from the date on which the Bill is laid before the
Council without the Bill being passed by it; or
(c) the Bill is passed by the Council with amendments to which the Legislative
Assembly does not agree,
(c) the Bill is passed by the Legislative Assembly does not agree, the Bill shall be deemed to have been passed by the Houses of the Legislature of the State in the form in which it was passed by the Legislative Assembly for the second time with such amendments, if any, as have been made or suggested by the Legislative
Council and agreed to by the Legislative Assembly.
Under Article 200 the Governor is enabled to suggest the desirability of introducing any such amendments as he may recommend in his message. Here again "amendment" has clearly a limited meaning. In Article 35(b) the words used are:
Any law in force immediately before the commencement of this
Constitution...subject to the terms thereof and to any adaptations and modifications that may be made therein under Article 372, continue in force until altered or repealed or amended by Parliament.
Here, all the three words are used giving a comprehensive meaning. Reliance is not placed by the draftsman only on the word "amend".
Similar language is used in Article 372 whereby existing laws continue to be in force until
"altered or repealed or amended ' by a competent Legislature or other competent authority.
In the original Article 243(2), in conferring power on the President to make regulations for the peace and good government of the territories in part D of the First Schedule, it is stated that "any regulation so made may repeal or amend any law made by Parliament." Here, the two words together give the widest power to make regulations inconsistent with any law made by Parliament
In Article 252 again, the two words are joined together to give a wider power. … In Article
320(5), "all regulations made under the proviso to Clause (3)" can be modified "whether by way of repeal or amendment" as both Houses of Parliament or the House or both Houses of the
Legislature of the States may make during the session in which they are so laid.
I have referred to the variation in the language of the various articles dealing with the question of amendment or repeal in detail because our Constitution was drafted very carefully and I must presume that every word was chosen carefully and should have its proper meaning. I may rely for this principle on the following observations of the United States Supreme Court in Holmes v.
Jennison (10) L. Ed. 579 and quoted with approval in William v. United States (77) L. Ed. 1372:
In expounding the Constitution of the United States, every word must have its due force, and appropriate meaning: for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added…
Reference was made to Section 6(2) of the Indian Independence Act, 1947, in which the last three lines read:
… and the powers of the Legislature of each Dominion include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the Dominion.
Here, the comprehensive expression "repeal or amend" gives power to have a completely new
Act different from an existing act of Parliament.
So, there is no doubt from a perusal of these provisions that different words have been used to meet different demands. In view of the great variation of the phrases used all through the
Constitution it follows that the word "amendment" must derive its colour from Article 368 and the
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rest of the provisions of the Constitution. There is no doubt that it is not intended that the whole
Constitution could be repealed. This much is conceded by the learned Counsel for the respondents.
Therefore, in order to appreciate the real content of the expression "amendment of this
Constitution", in Article 368 I must look at the whole structure of the Constitution. The
Constitution opens with a preamble which reads:
WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all;
FRATERNITY assuring the dignity of the individual and the unity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this Twenty-sixth day of November,
1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION.
This Preamble, and indeed the Constitution, was drafted in the light and direction of the
Objective Resolutions adopted on January 22, 1947, which runs as follows:
(1) THIS CONSTITUENT ASSEMBLY declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution:
(2) wherein the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States, as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and
(3) wherein the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of autonomous units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in of assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and
(4) wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and
(5) wherein shall be guaranteed and secured to all people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and
(6) wherein adequate safeguards shall be provided for minorities backward and tribal areas, and depressed and other backward classes; and
(7) whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilized nations, and
(8) this ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind.
While moving the resolution for acceptance of the Objectives Resolution, Pandit Jawaharlal
Nehru said:
It seeks very feebly to tell the world of what we have thought or dreamt for so long, and what we now hope to achieve in the near future. It is in that spirit that I venture to place this Resolution before the House and it is in that spirit that I trust
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the House will receive it and ultimately pass it. And may I, Sir, also with all respect, suggest to you and to the House that, when the time comes for the passing of this Resolution let it be not done in the formal way by the raising of hands, but much more solemnly, by all of us standing up and thus taking this pledge anew.
I may here trace the history of the shaping of the Preamble because this would show that the
Preamble was in conformity with the Constitution as it was finally accepted. Not only was the
Constitution framed in the light of the Preamble but the Preamble was ultimately settled in the light of the Constitution. This appears from the following brief survey of the history of the framing of the Preamble extracted from the Framing of India 's Constitution by B. Shiva Rao. In the earliest draft the Preamble was something formal and read: "We, the people of India, seeking to promote the common good, do hereby, through our chosen representatives, enact, adopt and give to ourselves this Constitution. (Shiva Rao 's Framing of India 's Constitution, p. 127)
After the plan of June 3, 1947, which led to the decision to partition the country and to set up two independent Dominions of India and Pakistan, on June 8, 1947, a joint sub-committee of the
Union Constitution and Provincial Constitution Committees, took note that the objective resolution would require amendment in view of the latest announcement of the British Government. The announcement of June 3 had made it clear that full independence, in the form of Dominion Status, would be conferred on India as from August 15, 1947. After examining the implications of partition the sub-committee thought that the question of making changes in the Objectives
Resolution could appropriately be considered only when effect had actually been given to the June
3 Plan. (Special Sub-Committee minutes June 9, 1947). Later on July 12, 1947, the special subcommittee again postponed consideration of the matter. Select Documents II, 20(ii), p. 617. (Shiva
Rao, Framing of India 's Constitution, p. 127 footnote). The Union Constitution Committee provisionally accepted the Preamble as drafted by B.N. Rao and reproduced it in its report of July
4, 1947 without any change, with the tacit recognition at that stage that the Preamble would be finally based on the Objectives Resolution. In a statement circulated to members of the Assembly on July 18, 1947 Pandit Jawaharlal Nehru inter alia, observed that the Preamble was covered more or less by the Objectives Resolution which it was intended to incorporate in the final Constitution subject to some modification on account of the political changes resulting from partition. Three days later, moving the report of the Union Constitution Committee for the consideration of the
Assembly, he suggested that it was not necessary at that stage to consider the draft of the Preamble since the Assembly stood by the basic principles laid down in the Objectives Resolution and these could be incorporated in the Preamble in the light of the changed situation (Shiva Rao, Framing of India 's Constitution, pp. 127-128, also see footnote 1 p. 128). The suggestion was accepted by the Assembly and further consideration of the Preamble was held over.
We need not consider the intermediate drafts, but in the meantime the declaration (See
Constituent Assembly Debates, Vol. 8, page 2) was adopted at the end of April, 1949 by the
Government of the various Commonwealth countries and the resolution was ratified by
Constituent Assembly on May 17; 1949 after two days ' debate.
In the meantime the process of merger and integration of Indian States had been completed and Sardar Vallabhbhai Patel was able to tell the Constituent Assembly on October 12, 1949, that the new Constitution was "not an alliance between democracies and dynasties, but a real union of the Indian people, built on the basic concept of the sovereignty of the people (Shiva Rao, Framing of India 's Constitution, pp. 130-132).
The draft Preamble was considered by the Assembly on October 17, 1949. Shiva Rao observes that "the object of putting the Preamble last, the President of the Assembly explained, was to see that it was in conformity with the Constitution as accepted." Once the transfer of power had taken place the question of British Parliament 's subsequent approval which was visualised in the British
Cabinet Commission 's original plan of May 1946 could no longer arise. The sovereign character
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of the Constituent Assembly thus became automatic with the rapid march of events without any controversy, and the words in the Preamble "give to ourselves this Constitution" became appropriate. The Preamble was adopted by the Assembly without any alteration. Subsequently the words and figure "this twenty-sixth day of November 1949" were introduced in the last paragraph to indicate the date on which the Constitution was finally adopted by the Constituent Assembly.
Regarding the use which can be made of the preamble in interpreting an ordinary statute, there is no doubt that it cannot be used to modify the language if the language of the enactment is plain and clear. If the language is not plain and clear, then the preamble may have effect either to extend or restrict the language used in the body of an enactment. "If the language of the enactment is capable of more than one meaning then that one is to be preferred which comes nearest to the purpose and scope of the preamble." (See Tribhuban Parkash Nayyar v. Union of India [1970] 2
SCR 732)
We are, however, not concerned with the interpretation of an ordinary statute. As Sir Alladi
Krishnaswami, a most eminent lawyer said, "so far as the Preamble is concerned, though in an ordinary statute we do not attach any importance to the Preamble, all importance has to be attached to the Preamble in a Constitutional statute". (Constituent Assembly Debates, Vol. 10, p. 417). Our
Preamble outlines the objectives of the whole Constitution. It expresses what we had thought or dreamt for so long.
… It is urged in the written submission of Mr. Palkhivala that there is a distinction between the Indian Constitution Statute and the Constitution of India. He urges as follows:
This Constitution is the Constitution which follows the Preamble. It starts with
Article 1 and ended originally with the Eighth Schedule and now ends with the
Ninth Schedule after the First Amendment Act, 1951. The way the Preamble is drafted leaves no doubt that what follows, or is annexed to, the Preamble, is the
Constitution of India.
He has also urged that the Preamble came into force on November 26, 1949 alongwith Articles
5, 6, 7 etc. as provided in Article 394 because Articles 5, 6, 7 and the other Articles mentioned therein could hardly come into force without the enacting clause mentioned in the Preamble having come into force. He says that the Preamble is a part of the Constitution statute and not a part of the
Constitution but precedes it. There is something to be said for his contention but, in my view, it is not necessary to base my decision on this distinction as it is not necessary to decide in the present case whether Article 368 enables Parliament to amend the Preamble. Parliament has not as yet chosen to amend the Preamble.
The Preamble was used by this Court as an aid to construction in Behram Khurshed Pasikaka
v. State of Bombay 1955 Cri L.J. 215. After referring to Part III, Mahajan, C.J., observed:
We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefits, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of Constitutional policy.
… In Sajjan Singh v. State of Rajasthan [1965] 1 SCR 933 Mudholkar, J. after assuming that the Preamble is not a part of the Constitution, observed:
While considering this question it would be of relevance to bear in mind that the preamble is not of the common run such as is to be found in an Act of a legislature.
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It has the stamp of deep deliberation and is marked by precision. Would this not suggest that the framers of the Constitution attached special significance to it?
… It seems to me that the Preamble of our Constitution is of extreme importance and the
Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble.
… [Chief Justice Sikri now goes into a discussion of the various provisions of the Constitution in order to describe the scheme of the Constitution and notes that the Fundamental Rights were considered of such importance that the aggrieved were given the right to move directly to the Supreme Court for enforcement of those rights. He also notes that the Directive Principles were not made judicially enforceable and that the Constituent Assembly was keenly aware of this fact.] …
I may here mention that while our fundamental rights and directive principles were being fashioned and approved of by the Constituent Assembly, on December 10, 1948 the General
Assembly of the United Nations adopted a Universal Declaration of Human Rights. The
Declaration may not be a legally binding instrument but it shows how India understood the nature of Human Rights. …
Do rights remain inalienable if they can be amended out of existence? The Preamble Articles
1, 55, 56, 62, 68 and 76 of the United Nations Charter had provided the basis for the elaboration in the Universal Declaration of Human Rights. Although there is a sharp conflict of opinion whether respect for human dignity and fundamental human rights is obligatory under the Charter
(see Oppenheim 's International Law; 8th ed. Vol. 1, pp. 740-41; footnote 3), it seems to me that, in view of Article 51 of the directive principles, this Court must interpret language of the
Constitution, if not intractable, which is after all a municipal law, in the light of the United Nations
Charter and the solemn declaration subscribed to by India. …
… I may here notice some relevant facts which constitute the background of the process of drafting the Constitution. The British Parliament knowing the complexities of the structure of the
Indian people expressly provided in Section 6(6) of the Indian Independence Act, 1947, that "the powers referred to in Sub-section (1) of this section extends to the making of laws limiting for the future the powers of the legislature of the Dominion." Sub-section (1) of Section 6 reads:
The legislature of each of the new Dominions shall have full power to make laws for that Dominion, including laws having extraterritorial operation.
That Section 6(1) included making provision as to the Constitution of the Dominion is made clear by Section 8(1) which provided:
In the case of each of the new Dominions, the powers of legislature of the
Dominion shall for the purpose of making provision as to the Constitution of the
Dominion be exercisable in the first instance by the Constituent Assembly of that
Dominion, and references in this Act to the legislature of the Dominion shall be construed accordingly.
… These provisions of the Indian Independence Act amply demonstrate that when the
Constituent Assembly started functioning, it knew, if it acted under the Indian Independence Act, that it could limit the powers of the future Dominion Parliaments.
No similar provisions exists in any of the Independence Acts in respect of other countries, enacted by the British Parliament, e.g., Ceylon Independence Act, 1947, Ghana Independence Act,
1957, Federation of Malaya Independence Act, 1957, Nigeria Independence Act, 1960, Sierra
Leone Independence Act, 1961, Tanganyika Independence Act, 1961, Southern Rhodesia Act,
1965, Jamaica Independence Act, 1962.
I may mention that the aforesaid provisions in the Indian Independence Act were enacted in line with the Cabinet Statement dated May 16, 1947 and the position of the Congress Party. Para
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20 (See: Shiva Rao, Framing of India 's Constitution, Vol. I, p. 216) of the Statement by the Cabinet
Mission provided:
The Advisory Committee on the rights of citizens, minorities, and tribal and excluded areas should contain full representation of the interests affected, and their function will be to report to the Union Constituent Assembly upon the list of
Fundamental Rights, the clauses for the protection of minorities, and a scheme for the administration of the tribal and excluded areas, and to advise whether these rights should be incorporated in the Provincial, Group, or Union Constitution.
In clarifying this statement Sir Stafford Cripps at a Press Conference dated May 16, 1946 stated: But in order to give these minorities and particularly the smaller minorities like the Indian Christians and the Anglo-Indians and also the tribal representatives a better opportunity of influencing minority provisions, we have made provision for the setting up by the Constitution-making body of an influential advisory
Commission which will take the initiative in the preparation of the list of fundamental rights, the minority protection clauses and the proposals for the administration of tribal and excluded areas. This Commission will make its recommendations to the Constitution making body and will also suggest at which stage or stages in the Constitution these provisions should be inserted, that is whether in the Union, Group or Provincial Constitutions or in any two or more of them. (P. 224, Supra).
In the letter dated May 20, 1946, from Maulana Abul Kalam Azad to the Secretary of State, it is stated:
The principal point, however, is, as stated above, that we look upon this
Constituent Assembly as a sovereign body which can decide as it chooses in regard to any matter before it and can give effect to its decisions. The only limitation, we recognise is that in regard to certain major communal issues the decision should be by a majority of each of the two major communities. (P. 251,
Supra).
In his reply dated May 22, 1946, the Secretary of State observed:
When the Constituent Assembly has completed its labours, His Majesty 's
Government will recommend to Parliament such action as may be necessary for the cession of sovereignty to the Indian people, subject only to two provisos which are mentioned in the statement and which are not, we believe, controversial, namely, adequate provision for the protection of minorities and willingness to conclude a treaty to cover matters arising out of the transfer of power.
In the Explanatory statement dated May 22, 1946, it was again reiterated as follows:
When the Constituent Assembly has completed its labours, His Majesty 's
Government will recommend to Parliament such action as may be necessary for the cession of sovereignty to the Indian people, subject only to two matters which are mentioned in the statement and which, we believe are not controversial, namely, adequate provision for the protection of the minorities (paragraph 20 of the statement) and willingness to conclude a treaty with His Majesty 's
Government to cover matters arising out of the transfer of power (paragraph 22 of the statement) (P. 258, Supra).
In pursuance of the above, a resolution for the setting up of an Advisory Committee on fundamental rights was moved by Govind Ballabh Pant in the Constituent Assembly on January
24, 1947. He laid special importance on the issue of minorities. The Advisory Committee met on
February 27, 1947 to constitute various sub-committees including the Minorities Sub-Committee.
The Sub-Committee on Minorities met later the same day. A questionnaire was drafted to enquire about political, economic, religious, educational and cultural safeguards. In other words all these safeguards were considered.
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Divergent views were expressed, and the Minorities Sub-Committee met on April 17, 18 and
19, 1947 to consider this important matter. At these meetings the sub-committee considered the interim proposals of the fundamental rights Sub-Committee in so far as these had a bearing on minority rights. These discussions covered such important matters as the prohibition of discrimination on grounds of race, religion, caste, etc.; the abolition of untouchability and the mandatory requirements that the enforcement of any disability arising out of untouchability should be made an offence punishable according to law; freedom to profess, practise and propagate one 's religion; the right to establish and maintain institutions for religious and charitable purposes; the right to be governed by one 's personal, law; the right to use one 's mother-tongue and establish denominational communal or language schools etc.
Having dealt with the question of fundamental rights for minorities, the Minorities SubCommittee met again on July 21, 1947, to consider the political safeguards for minorities and their presentation in the public services.
In forwarding the report of the Advisory Committee on the subject of Minority Rights, Sardar
Vallabhbhai Patel, in his report dated August 8, 1947, said:
… It should be treated as supplementary to the one forwarded to you with my letter No. CA/24/Com./47, dated the 23rd April 1947 and dealt with by the
Assembly during the April session. That report dealt with justiciable fundamental rights; these rights, whether applicable to all citizens generally or to members of minority communities in particular offer a most valuable safeguard for minorities over a comprehensive field of social life. The present report deals with what may broadly be described as political safeguards of minorities and covers the following points: (i) Representation in Legislature; joint versus separate electorates; and weightage.
(ii) Reservation of seats for minorities in Cabinets.
(iii) Reservation for minorities in the public services.
(iv) Administrative machinery to ensure protection of minority rights.
Sardar Patel, while moving the report for consideration on August 27, 1947, said:
You will remember that we passed the Fundamental Rights Committee 's Report which was sent by the Advisory Committee; the major part of those rights has been disposed of and accepted by this House. They cover a very wide range of the rights of minorities which give them ample protection; and yet there are certain political safeguards which have got to be specifically considered. An attempt has been made in this report to enumerate those safeguards which are matters of common knowledge, such as representation in legislatures, that is, joint versus separate electorate.
The above proceedings show that the minorities were particularly concerned with the fundamental rights which were the subject-matter of discussion by the Fundamental Rights
Committee.
The above brief summary of the work of the Advisory Committee and the Minorities SubCommittee shows that no one ever contemplated that fundamental rights appertaining to the minorities would be liable to be abrogated by an amendment of the Constitution. The same is true about the proceedings in the Constituent Assembly. There is no hint anywhere that abrogation of minorities rights was ever in the contemplation of the important members of the Constituent
Assembly. It seems to me that in the context of the British Plan, the setting up of Minorities SubCommittee, the Advisory Committee and the proceedings of these Committees, as well as the proceedings in the Constituent Assembly mentioned above, it is impossible to read the expression
"Amendment of the Constitution" as empowering Parliament to abrogate the rights of minorities.
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Both sides relied on the speeches made in the Constituent Assembly. It is, however, a sound rule of construction that speeches made by members of a legislature in the course of debates relating to the enactment of a statute cannot be used as aids for interpreting any of provisions of the statute. The same rule has been applied to the provisions of this Constitution by this Court in
State of Travancore-Cochin v. Bombay Co. Ltd. [1952] 1 SCR 1112. … In Golak Nath Subba Rao,
C.J., referred to certain portions of the speeches made by Pandit Nehru and Dr. Ambedkar but he made it clear at p. 792 that he referred to these speeches “not with a view to interpret the provisions of Article 368, which we propose to do on its own terms, but only to notice the transcendental character given to the fundamental rights by two of the important architects of the Constitution.”
… There is an additional reason for not referring to debates for the purpose of interpretation.
The Constitution, as far as most of the Indian States were concerned, came into operation only because of the acceptance by the Ruler or Rajpramukh. … [D]eclarations were issued by the Rulers or Rajpramukhs accepting the Constitution. It seems to me that when a Ruler or Rajpramukh or the people of the State accepted the Constitution of India in its final form, he did not accept it subject to the speeches made during the Constituent Assembly debates. The speeches can, in my view, be relied on only in order to see if the course of the progress of a particular provision or provisions throws any light on the historical background or shows that a common understanding or agreement was arrived at between certain sections of the people. …
In this connection reference was made to Article 305 of the draft Constitution which provided that notwithstanding anything contained in Article 304 of the Constitution, the provisions of the
Constitution relating to the reservation of seats for the Muslims etc., shall not be amended during the period of ten years from the commencement of the Constitution. Although this draft Article
305 has no counterpart in our Constitution, it was sought to be urged that this showed that every provision of the Constitution was liable to be amended. I have come to the conclusion that every provision is liable to be amended subject to certain limitations and this argument does not affect my conclusion as to implied limitations.
A very important decision of the Judicial Committee of the Privy Council in Bribery
Commissioner v. P. Ranasinghe [1965] A.C. 172 throws considerable light on the topic under discussion. The import of this decision was not realised by this Court in Golak Nath. Indeed, it is not referred to by the minority in its judgments, and Subba Rao, C.J., makes only a passing reference to it. In order to fully appreciate the decision of the Privy Council it is necessary to set out the relevant provisions of the Ceylon Independence Order in Council, 1947, hereinafter referred to as the ‘Ceylon Constitution’.
Part III of the Ceylon Constitution deals with "Legislature". Section 7 provides that "there shall be a Parliament of the Island which shall consist of His Majesty, and two Chambers to be known respectively as the Senate and the House of Representatives.
… Section 29 deals with the power of Parliament to make laws. It reads:
29(1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island.
(2) No such law shall(a) prohibit or restrict the free exercise of any religion, or
(b) make persons of any community or religion liable to disabilities or restrictions to which persons or other communities or religions are not made liable; or
(c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions; or
(d) alter the Constitution of any religious body except with the consent of the governing authority of that body. So, however, that in any case where a religious
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body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body.
Provided, however, that the preceding provisions of this subsection shall not apply to any law making provision for, relating to, or connected with the, election of
Members of the House of Representatives, to represent persons registered as citizens of Ceylon under the Indian & Pakistani Residents (Citizenship Act).
This proviso shall cease to have effect on a date to be fixed by the GovernorGeneral by Proclamation published in the Gazette.
(3) Any law made in contravention of Sub-section (2) of this section shall, to the extent of such contravention, be void.
(4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island:
Provided that no Bill for the amendment or repeal of any of the Provisions of this
Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than twothirds of the whole number of members of the House (including those not present).
Every certificate of the Speaker under this sub-section shall be conclusive for all purposes and shall not be questioned in any court of law.
According to Mr. Palkhivala, Section 29(1) corresponds to Articles 245 and 246, and Section
29(4) corresponds to Article 368 of our Constitution, and Sections 29(2) and 29(3) correspond to
Article 13(2) of our Constitution, read with fundamental rights.
The question which arose before the Judicial Committee of the Privy Council was whether
Section 41 of the Bribery Amendment Act, 1958 contravened Section 29(4) of the Ceylon
Constitution, and was consequently invalid. The question arose out of the following facts. The respondent, Ranasinghe, was prosecuted for a bribery offence before the Bribery Tribunal created by the Bribery Amendment Act, 1958. The Tribunal sentenced him to a term of imprisonment and fine. The Supreme Court on appeal declared the conviction and orders made against him null and inoperative on the ground that the persons composing the Tribunal were not validly appointed to the Tribunal.
Section 52 of the Ceylon Constitution provided for the appointment of the Chief Justice and
Puisne Judges of the Supreme Court. Section 53 dealt with the setting up of the Judicial Service
Commission, consisting of the Chief Justice, a Judge of the Supreme Court, and one other person who shall be, or shall have been, a Judge of the Supreme Court. It further provided that no person shall be appointed as, or shall remain, a member of the Judicial Service Commission, if he is
Senator or a Member of Parliament. Section 55 provided for the appointment of other Judicial
Officers. Section 55(1) reads:
55. (1) The appointment, transfer, dismissal and disciplinary control of judicial officers is hereby vested in the Judicial Service Commission.
The Judicial Committee deduced from these provisions thus:
Thus there is secured a freedom from political control, and it is a punishable offence to attempt directly or indirectly to influence any decision of the
Commission (Section 56).
The Judicial Committee then described the position of the Bribery Tribunal as follows:
A bribery tribunal, of which there may be any number, is composed of three members selected from a panel (Section 42). The panel is composed of not more than 15 persons who are appointed by the Governor-General on the advice of the
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Minister of Justice (Section 41). The members of the panel are paid remuneration
(Section 45).
The Judicial Committee held that the members of the Tribunal held judicial office and were judicial officers within Section 55 of the Ceylon Constitution. They found that there was a plain conflict between Section 55 of the Constitution and Section 41 of the Bribery Amendment Act under which the panel was appointed.
Then the Judicial Committee examined the effect of this conflict. After setting out Section 18,
Section 29(1) and Section 29(2)(a), the Judicial Committee observed:
There follow (b), (c) and (d), which set out further entrenched religious and racial matters, which shall not be the subject of legislation. They represent the solemn balance of rights, between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution; and these are, therefore unalterable under the Constitution.
After making these observations, the Judicial Committee set out Sub-sections (3) and (4) of
Section 29 of the Ceylon Constitution. The observations, which I have set out above, are strongly relied on by Mr. Palkhivala in support of his argument that Part III similarly entrenched various religious and racial and other matters and these represented solemn balance of rights between the citizens of India, the fundamental conditions on which inter se they accepted the Constitution of
India and these are, therefore, unalterable under the Constitution of India.
Mr. Seervai, in reply, submitted that the word "entrenched" meant nothing else that than these provisions were subject to be amended only by the procedure prescribed in Section 29(4) of the
Ceylon Constitution. But I am unable to accept this interpretation because in that sense other provisions of the Constitution were equally entrenched because no provision of the Ceylon
Constitution could be amended without following the procedure laid down in Section 29(4).
The interpretation urged by Mr. Palkhivala derives support in the manner the Judicial
Committee distinguished McCawley 's case [1920] A.C. 691 (McCawley v. King). I may set out here the observations of the Judicial Committee regarding McCawley. They observed:
It is possible now to state summarily what is the essential difference between the
McCawley case (supra) and this case. There the legislature, having full power to make laws by a majority, except upon one subject that was not in question, passed a law which conflicted with one of the existing terms of its Constitution Act. It was held that this was valid legislation, since it must be treated as pro tanto an alteration of the Constitution, which was neither fundamental in the sense of being beyond change nor so constructed as to require any special legislative process to pass upon the topic dealt with.
It is rightly urged that the expression "which was neither fundamental in the sense of being beyond change" has reference to Section 29(2) of the Ceylon Constitution. I have no doubt that the Judicial Committee held that the provisions of Section 29(2) in the Ceylon Constitution were unamendable. I may mention that Prof. S A de Smith in reviewing the book "Reflections on the
Constitution and the Constituent Assembly (Ceylon 's Constitution)" by L.J.M. Cooray, reads the obiter dicta in Bribery Commissioner v. Ranasinghe [1965] A.C. 172 indicating that certain provisions of the Constitution were unalterable by the prescribed amending procedure.
It may be that these observations are obiter but these deserve our careful consideration, coming as they do from the Judicial Committee.
Why did the Judicial Committee say that the provisions of Section 29(2) were "unalterable under the Constitution" or "fundamental in the sense of being beyond change"? There is nothing in the language of Section 29(4) to indicate any limitations on the power of the Ceylon Parliament.
It could "amend or repeal" any provision of the Constitution, which included Section 29(2) and
Section 29(4) itself. The reason could only be an implied limitation on the power to amend under
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Section 29(4) deducible from "the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution". Unless there was implied a limitation on the exercise of the amending power under Section 29(4), Section 29(4) could itself be amended to make it clear that Section 29(2) is amendable.
This case furnishes an exact example where implied limitations on the power to amend the
Constitution have been inferred by no less a body than the Judicial Committee of the Privy Council.
… I may mention that the Judicial Committee while interpreting the British North America
Act, 1867 had also kept in mind the preservation of the rights of minorities for they say In re The
Regulation and Control of Aeronautics in Canada [1933] A.C. 54:
Inasmuch as the Act (British North America Act) embodies a compromise under which the original Provinces agreed to federate, it is important to keep in mind that the preservation of the rights of minorities was a condition on which such minorities entered into the federation, and the foundation upon which the whole structure was subsequently erected. The process of interpretation as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction of the Provisions of Sections 91 and 92 should impose a new and different contract upon the federating bodies.
The words of the Judicial Committee in Ranasinghe, are apposite and pregnant. “They represent the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution and these are, therefore unalterable under the
Constitution.” It is true that the Judicial Committee in the context of minorities and religious rights in Ceylon used the word “unalterable”. But the India context is slightly different. The guarantee of fundamental rights extends to numerous rights and it could not have been intended that all of them would remain completely unalterable even if Article 13(2) of the Constitution be taken to include Constitutional amendments. A more reasonable inference to be drawn from the whole scheme of the Constitution is that some other meaning of “Amendment” is most appropriate. This conclusion is also reinforced by the concession of the Attorney-General and Mr. Seervai that the whole Constitution cannot be abrogated or repealed and a new one substituted. In other words, the expression “Amendment of this Constitution” does not include a revision of the whole
Constitution. If this is true – I say that the concession was rightly made – then which is that meaning of the word “Amendment” that is most appropriate and fits in with the while scheme of the Constitution. In my view that meaning would be appropriate which would enable the country to achieve a social and economic revolution without destroying the democratic structure of the
Constitution and the basic inalienable rights guaranteed in Part III and without going outside the contours delineated in the Preamble.
I come to the same conclusion by another line of reasoning. In a written Constitution it is rarely that everything is said expressly. Powers and limitations are implied from necessity or the scheme of the Constitution. …
… What is the necessary implication from all the provisions of the Constitution?
It seems to me that reading the Preamble, the fundamental importance of the freedom of the individual, indeed its inalienability, and the importance of the economic, social and political justice mentioned in the Preamble, the importance of directive principles, the non-inclusion in Article 368 of provisions like Articles 52, 53 and various other provisions to which reference has already been made an irresistible conclusion emerges that it was not the intention to use the word "amendment" in the widest sense.
It was the common understanding that fundamental rights would remain in substance as they are and they would not be amended out of existence. It seems also to have been a common
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understanding that the fundamental features of the Constitution, namely, secularism, democracy and the freedom of the individual would always subsist in the welfare state.
In view of the above reasons, a necessary implication arises that there are implied limitations on the power of Parliament that the expression “amendment of this Constitution” has consequently a limited meaning in our Constitution and not the meaning suggested by the respondents.
This conclusion is reinforced if I consider the consequences of the contentions of both sides.
The respondents, who appeal fervently to democratic principles, urge that there is ho limit to the powers of Parliament to amend the Constitution. Article 368 can itself be amended to make the
Constitution completely flexible or extremely rigid and unamendable. If this is so, a political party with a two-third majority in Parliament for a few years could so amend the Constitution as to debar any other party from functioning, establish totalitarianism, enslave the people, and after having effected these purposes make the Constitution unamendable or extremely rigid. This would no doubt invite extra-Constitutional revolution. Therefore, the appeal by the respondents to democratic principles and the necessity of having absolute amending power to prevent a revolution to buttress their contention is rather fruitless, because if their contention is accepted the very democratic principles, which they appeal to, would disappear and a revolution would also become a possibility.
However, if the meaning I have suggested is accepted a social and economic revolution can gradually take place while preserving the freedom and dignity of every citizen.
For the aforesaid reasons, I am driven to the conclusion that the expression “amendment of this Constitution” in Article 368 means any addition or change in any of the provisions of the
Constitution within the broad contours of the Preamble and the Constitution to carry out the objectives in the Preamble and the Directive Principles. Applied to fundamental rights, it would mean that, while fundamental rights cannot be abrogated reasonable abridgements of fundamental rights can be effected in the public interest.
It is of course for Parliament to decide whether an amendment is necessary. The Courts will not be concerned with wisdom of the amendment.
If this meaning is given it would enable Parliament to adjust fundamental rights in order to secure what the Directive Principles direct to be accomplished, while maintaining the freedom and dignity of every citizen.
It is urged by Mr. Seervai that we would be laying down a very unsatisfactory test which it would be difficult for the Parliament to comprehend and follow. He said that the Constitutionmakers had discarded the concept of “due process” in order to have something certain, and they substituted the words “by authority of law” in Article 21. I am unable to see what bearing the dropping of the words “due process” has on this question. The Constitution itself has used words like “reasonable restrictions” in Article 19 which do not bear an exact meaning, and which cannot be defined with precision to fit in all cases that may come before the courts; it would depend upon the facts of each case whether the restrictions imposed by the Legislature are reasonable or not.
It seems to me that the concept of amendment within the contours of the Preamble and the
Constitution cannot be said to be a vague and unsatisfactory idea which Parliamentarians and the public would not be able to understand.
The learned Attorney-General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the
Constitution can be amended provided in the result the basic foundation and structure of the
Constitution remains the same. The basic structure may be said to consist of the following features:
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(1) Supremacy of the Constitution;
(2) Republican and Democratic form of Government.
(3) Secular character of the Constitution;
(4) Separation of powers between the Legislature, the executive and the judiciary;
(5) Federal character of the Constitution.
The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.
The above foundation and the above basic features are easily discernible not only from the preamble but the whole scheme of the Constitution, which I have already discussed.
In connection with the question of abrogation of fundamental rights, Mr. Seervai boldly asserted that there was no such thing as natural or inalienable rights because the scheme of Part III itself shows that non-citizens have not been given all the fundamental freedoms; for example,
Article 19 speaks of only citizens. He says that if there were natural rights, why is it that they were not conferred on non-citizens. The answer seems to be that they are natural rights but our country does not think it expedient to confer these fundamental rights, mentioned in Article 19, on noncitizens. Other rights have been conferred on non-citizens because the Constitution-makers thought that it would not be detrimental to the interests of the country to do so.
He then said that even as far as citizens are concerned, there is power to modify those rights under Article 33 of the Constitution, which enables Parliament to modify rights in their application to the Armed Forces. This power has been reserved in order to maintain discipline among the armed forces, which is essential for the security of the country. But it does not mean that the rights cease to be natural or human rights. He then said that similarly Article 34 restricts fundamental rights while martial law is in force in any area. This again is a case where the security of the country is the main consideration. Citizens have to undergo many restrictions in the interest of the country.
He then pointed out Articles 358 and 359 where certain rights are suspended during
Emergency. These provisions are again based on the security of the country.
He also relied on the words “rights conferred” in Article 13(2) and “enforcement of any rights conferred by this Part” to show that they were not natural or inalienable and could not have been claimed by them. There is no question of the sovereign people claiming them from an outside agency. The people acting through the Constituent Assembly desired that the rights mentioned in
Part III shall be guaranteed and, therefore, Part III was enacted. In the context ‘conferred’ does not mean that some superior power had granted these rights. It is very much like a King bestowing the title of ‘His Imperial Majesty’ on himself.
I am unable to hold that these provisions show that some rights are not natural or inalienable rights. As a matter of fact, India was a party to the Universal Declaration of Rights which I have already referred to and that Declaration describes some fundamental rights as inalienable.
PART IV – Validity of 24th Amendment
Now I may deal with the question whether the Constitution (Twenty-Fourth Amendment) Act,
1971 is valid. It reads thus:
(2) In Article 13 of the Constitution, after Clause (3), the following clause shall be inserted, namely:
(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.
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(3) Article 368 of the Constitution shall be re-numbered as Clause (2) thereof, and(a) for the marginal heading to that article, the following marginal heading shall be substituted, namely:
Power of Parliament to amend the Constitution and procedure therefore;
(b) before Clause (2) as so re-numbered, the following clause shall be inserted, namely: (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article;
(c) in Clause (2) as so re-numbered, for the words "it shall be presented to the
President for his ascent and upon such assent being given to the Bill", the words
"it shall be presented to the President who shall give his attest to the Bill and thereupon" shall be substituted;
(d) after Clause (2) as so re-numbered, the following shall be inserted, namely:
(3) Nothing in Article 13 shall apply to any amendment made under this article.
According to the petitioner, the 24th Amendment has sought to achieve five results: (i) It has inserted an express provision in Article 368 to indicate that the source of the amending power will be found in that Article itself; (ii) It has made it obligatory on the President to give his assent to any Bill duly passed under that Article; (iii) It has substituted the words "amend by way of addition, variation or repeal" in place of the bare concept of "amendment" in the Article 368; (iv) It makes explicit that when Parliament makes a Constitutional amendment under Article 368 it acts "in exercise of its constituent power; (v) It has expressly provided, by amendments in Article 13 and
368, that the bar in Article 13 against abridging or taking away any of the fundamental rights should not apply to any amendment made under Article 368.
Mr. Palkhivala did not dispute that the amendments covered by (i) and (ii) above were within the amending power of Parliament. I do not find it necessary to go into the question whether Subba
Rao, C.J., rightly decided that the amending power was in List I entry 97, or Article 248, because nothing turns on it now.
Mr. Palkhivala rightly conceded that Parliament could validly amend Article 368 to transfer the source of amending power from List I entry 97 to Article 368.
Mr. Palkhivala however contended that "if the amendments covered by (iii) and (iv) above are construed as empowering Parliament to exercise the full constituent power of, the people themselves, and as vesting in Parliament the ultimate legal sovereignty of the people, and as authorising Parliament to alter or destroy all or any of the essential features, basic elements and fundamental principles of the Constitution (hereinafter referred to “essential features”), the amendments must be held, to be illegal and void. He further urges that "if the amendment covered by (v) is construed as authorising Parliament to damage or destroy the essence of all or any of the fundamental rights, the amendment must be held to be illegal and void."
He says that the 24th Amendment is void and illegal for the following reasons: A creature of the Constitution, as the Parliament is, can have only such amending power as is conferred by the
Constitution which is given by the people unto themselves. While purporting to exercise that amending power, Parliament cannot increase that very power. No doubt, Parliament had the power to amend Article 368 itself, but that does not mean that Parliament could so amend Article 368 as to change its own amending power beyond recognition. A creature of the Constitution cannot enlarge its own power over the Constitution, while purporting to act under it, any more than the creature of an ordinary law can enlarge its own power while purporting to act under that law. The power of amendment cannot possibly embrace the power to enlarge that very power of amendment,
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or to abrogate the limitations, inherent or implied, in the terms on which the power was conferred.
The contrary view would reduce the whole principle of inherent and implied limitations to an absurdity. It is contended on behalf of the respondents that the 24th Amendment does enlarge the power of Parliament to amend the Constitution, if Golak Nath limited it, and as Article 368 clearly contemplates amendment of Article 368 itself, Parliament can confer additional powers of amendment on it.
… It seems to me that it is not legitimate to interpret Article 368 in this manner. Clause (e) of the proviso does not give any different power than what is contained in the main article. The meaning of the expression “Amendment of the Constitution” does not change when one reads the proviso. If the meaning is the same, Article 368 can only be amended so as not to change its identity completely. Parliament, for instance, could not make the Constitution uncontrolled by changing the prescribed two third majority to simple majority. Similarly it cannot get rid of the true meaning of the expression “Amendment of the Constitution” so as to derive power to abrogate fundamental rights. If the words "notwithstanding anything in the Constitution" are designed to widen the meaning of the word "Amendment of the Constitution" it would have to be held void as beyond the amending power. But I do not read these to mean this. They have effect to get rid of the argument that Article 248 and Entry 97 List I contains the power of amendment. Similarly, the insertion of the words "in exercise of its constituent power" only serves to exclude Article 248 and Entry 97
List I and emphasize that it is not ordinary legislative power that Parliament is exercising under
Article 368 but legislative power of amending the Constitution.
It was said that if Parliament cannot increase its power of amendment Clause (d) of Section 3 of the 24th Amendment which makes Article 13 inapplicable to an amendment of the Constitution would be bad. I see no force in this contention. Article 13(2) as existing previous to the 24th
Amendment as interpreted by the majority in Golak Nath case prevented legislatures from taking away or abridging the rights conferred by Article 13. In other words, any law which abridged a fundamental right even to a small extent was liable to be struck down under Article 368 Parliament can amend every article of the Constitution as long as the result is within the limits already laid down by me. The amendment of Article 13(2) does not go beyond the limits laid down because
Parliament cannot even after the amendment abrogate or authorise abrogation or the taking away of fundamental rights. After the amendment now a law which has the effect of merely abridging a right while remaining within the limits laid down would not be liable to be struck down.
In the result, in my opinion, the 24th Amendment as interpreted by me is valid.
PART V – Validity of Section 2 of the Constitution (Twenty-fifth Amendment) Act, 1971.
Section 2 of the Constitution (Twenty-fifth Amendment) Act, 1971 enacted as follows:
(a) for Clause (2), the following clause shall be substituted, namely:
(2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquisition or requisitioning of the property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law; and no such law shall be called in question in any court on the ground that the amount so fixed or determined is not adequate or that the whole or any part of such amount is to be given otherwise than in cash:
Provided that in making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority,
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referred to in Clause (1) of Article 30, the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
(b) after Clause (2A), the following clause shall be inserted, namely:
(2B) Nothing in Sub-clause (f) of Clause (1) of Article 19 shall affect any such law as is referred to in Clause (2).
There cannot be any doubt that the object of the amendment is to modify the decision given by this Court in Rustom Cavasjee Cooper v. Union of India, [1970] 3 SCR 530 where it was held by ten Judges that the Banking Companies (Acquisition and Transfer of Undertakings) Act violated the guarantee of compensation under Article 31(2) in that it provided for giving certain amounts determined according to principles which were not relevant in the determination of compensation of the undertaking of the named Banks and by the method prescribed the amounts so declared could not be regarded as compensation.
If we compare Article 31(2) as it stood before and after the 25th Amendment, the following changes seem to have been effected. Whereas before the amendment, Article 31(2) required the law providing for acquisition to make provision for compensation by either fixing the amount of compensation or specifying the principles on which and the manner in which the compensation should be determined after the amendment Article 31(2) requires such a law to provide for an
"amount" which may be fixed by the law providing for acquisition or requisitioning or which may be determined in accordance with such principles and given in such manner as may be specified in such law. In other words, for the idea that compensation should be given, now the idea is that an "amount" should be given. This amount can be fixed directly by law or may be determined in accordance with such principles as may be specified.
It is very difficult to comprehend the exact meaning which can be ascribed to the word
"amount". In this context, it is true that it is being used in lieu of compensation, but the word
"amount" is not a legal concept as "compensation" is.
… Let us then see if the other part of the article throws any light on the word "amount". The article postulates that in some cases principles may be laid down for determining the amount and these principles may lead to an adequate amount or an inadequate amount. So this show that the word "amount" here means something to be given in lieu of the property to be acquired but this amount has to and can be worked out by laying down certain principles. These principles must then have a reasonable relationship to the property which is sought to be acquired, if this is so, the amount ultimately arrived at by applying the principles must have some reasonable relationship with the property to be acquired; otherwise the principles of the Act could hardly be principles within the meaning of Article 31(2).
If this meaning is given to the word "amount" namely, that the amount given in cash or otherwise is of such a nature that it has been worked out in accordance with the principles which have relationship to the property to be acquired, the question arises : what meaning is to be given, to the expression "the amount so fixed". The amount has to be fixed by law but the amount so fixed by law must also be fixed in accordance with some principles because it could not have been intended that if the amount is fixed by law, the legislature would fix the amount arbitrarily. It could not, for example, fix the amount by a lottery.
Law is enacted by passing a bill which is introduced. The Constitution and legislative procedure contemplate that there would be discussion, and in debate, the Government spokesman in the legislature would be able to justify the amount which has been fixed. Suppose an amendment is moved to the amount fixed. How would the debate proceed? Can the Minister say-"This amount is fixed as it is the government 's wish." Obviously not. Therefore, it follows that the amount, if
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fixed by the legislature, has also to be fixed according to some principles. These principles cannot be different from the principles which the legislature would lay down.
In this connection it must be borne in mind that Article 31(2) is still a fundamental right. Then, what is the change that has been brought about by the amendment? It is no doubt that a change was intended, it seems to me that the change effected is that a person whose property is acquired can no longer claim full compensation or just compensation but he can still claim that the law should lay down principles to determine the amount which he is to get and these principles must have a rational relation to the property sought to be acquired. If the law were to lay down a principle that the amount to be paid in lieu of a brick of gold acquired shall be the same as the market value of an ordinary brick or a brick of silver it could not be held to be a principle at all. Similarly if it is demonstrated that the amount that has been fixed for the brick of gold is the current value of an ordinary brick or a brick of silver the amount fixed would be illegal.
If I were to interpret Article 31(2) as meaning that even an arbitrary or illusory or a grossly low amount could be given which would shock not only the judicial conscience but the conscience of every reasonable human being, a serious question would arise whether Parliament has not exceeded its amending power under Article 368 of the Constitution. The substance of the fundamental right to property, under Article 31, consists of three things: one, the property shall be acquired by or under a valid law; secondly, it shall be acquired only for a public purpose; and, thirdly, the person whose property has been acquired shall be given an amount in lieu thereof, which, as I have already said, is not arbitrary, illusory or shocking to the judicial conscience or the conscience of mankind. I have already held that Parliament has no power under Article 368 to abrogate the fundamental rights but can amend or regulate or adjust them in its exercise of amending powers without destroying them. Applying this to the fundamental right of property,
Parliament cannot empower legislatures to fix an arbitrary amount or illusory amount or an amount that virtually amounts to confiscation, taking all the relevant circumstances of the acquisition into consideration. Same considerations apply to the manner of payment. I cannot interpret this to mean that an arbitrary manner of payment is contemplated. To give an extreme example, if an amount is determined or fixed at Rs. 10,000 a legislature cannot lay down that payment will be made at the rate of Rs. 10 per year or Rs. 10 per month.
… Although I am unable to appreciate the wisdom of inserting Clause (2B) in Article 31, the effect of which is to make Article 19(1)(f) inapplicable, I cannot say that it is an unreasonable abridgement of rights under Article 19(1)(f). While passing a law fixing principles, the legislatures are bound to provide a procedure for the determination of the amount, and if the procedure is arbitrary that provision may well be struck down under Article 14.
In view of the interpretation which I have placed on the new Article 31(2), as amended, it cannot be said that Parliament has exceeded its amending power under Article 368 in enacting the new Article 31(2).
For the reasons aforesaid I hold that Section 2 of the Constitution (Twenty-fifth Amendment)
Act, 1971, as interpreted by me, valid.
PART VI – Validity of Section 3 of the Constitution (Twenty-Fifth Amendment) Act, 1971.
Section 3 of the twenty-fifth amendment, reads thus:
3. After Article 31B of the Constitution, the following article shall be inserted, namely: 31. C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in Clause (b) or
Clause (c) of Article 39 shall be deemed to be void on the ground that it is
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inconsistent with, or takes away or abridges any of the rights conferred by Article
14, Article 19 or Article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy:
Provided that where such law is made by the legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.
It will be noted that Article 31C opens with the expression “notwithstanding anything contained in Article 13”. This however cannot mean that not only fundamental rights like Article
19(1)(f) or Article 31 are excluded but all fundamental rights belonging to the minorities and religious groups are also excluded. The article purports to save laws which a State may make towards securing the principles specified in Clauses (b) or (c) of Article 39 from being challenged on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by
Articles 14, 19 or 31. This is the only ground on which they cannot be challenged. It will be noticed that the article provides that if the law contains a declaration that it is for giving effect to such policy, it shall not be called in question in any court on the ground that it does not give effect to such policy. In other words, once a declaration is given, no court can question the law on the ground that it has nothing to do with giving effect to the policy; whether it gives effect to some other policy is irrelevant. Further, a law may contain some provisions dealing with the principles specified in Clauses (b) or (c) of Article 39 while other sections may have nothing to do with it, yet on the language it denies any court power or jurisdiction to go into this question.
In the face of the declaration, this Court would be unable to test the validity of incidental provisions which do not constitute an essential and integral part of the policy directed to give effect to Article 39(b) and Article 39(c).
… According to Mr. Palkhivala, Article 31C has four features of totalitarianism: (1) There is no equality. The ruling party could favour its own party members, (2) There need not be any freedom of speech, (3) There need be no personal liberty which is covered by Article 19(1)(b), and
(4) The property will be at the mercy of the State. In other words, confiscation of property of an individual would be permissible.
It seems to me that in effect, Article 31C enables States to adopt any policy they like and abrogate Articles 14, 19 and 31 of the Constitution at will. In other words, it enables the State to amend the Constitution. Article 14, for instance, would be limited by the State according to its policy and not the policy of the amending body, i.e., the Parliament, and so would be Articles 19 and 31, while these fundamental rights remain in the Constitution. It was urged that when an Act of Parliament or a State Legislature delegates a legislative power within permissible limits the delegated legislation derives its authority from the Act of Parliament. It was suggested that similarly the State law would derive authority from Article 31C. It is true that the State law would derive authority from Article 31C but the difference between delegated legislation and the State law made under Article 31C is this: It is permissible, within limits, for a legislature to delegate its functions, and for the delegate to make law. Further the delegated legislation would be liable to be challenged on the ground of violation of fundamental rights regardless of the validity of the State
Act. But a State legislature cannot be authorised to amend the Constitution and the State law deriving authority from Article 31C cannot be challenged on the ground that it infringes Articles
14, 19 and 31.
It will be recalled that Article 19 deals not only With the right to property but it guarantees various rights: freedom of speech and expression; right to assemble peaceably and without arms; right to form associations or unions; right to move freely throughout the territory of India; right to practice any profession or to carry on any occupation, trade or business. I am unable to appreciate the reason for giving such powers to the State legislature to abrogate the above freedoms. In effect,
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Parliament is enabling State legislatures to declare that "a citizen shall not be free; he will have no freedom of speech to criticise the policy of the State; he shall not assemble to protest against the policy; he shall be confined to a town or a district and shall not move outside his State; a resident of another state shall not enter the State which is legislating; he shall not, if a lawyer, defend people who have violated the law. It could indeed enable legislatures to apply one law to political opponents of the ruling party and leave members of the party outside the purview of the law. In short, it enables a State Legislature to set up complete totalitarianism in the State. It seems that its implications were not realised by Parliament though Mr. Palkhiwala submits that every implication was deliberately intended.
I have no doubt that the State legislatures and Parliament in its ordinary legislative capacity will not exercise this new power conferred on them fully but I am concerned with the amplitude of the power conferred by Article 31C and not with what the legislatures may or may not do under the powers so conferred.
I have already held that Parliament cannot under Article 368 abrogate fundamental rights.
Parliament equally cannot enable the legislatures to abrogate them. This provision thus enables legislatures to abrogate fundamental rights and therefore must be declared unconstitutional.
It has been urged before us that Section 3 of the 25th Amendment Act is void as it in effect delegates the constituent amending power to State legislatures. The question arises whether Article
368 enables Parliament to delegate its function of amending the Constitution to another body. It seems to me clear that it does not. It would be noted that Article 368 of this Constitution itself provides that amendment may be initiated only by the introduction of a bill for the purpose in either House of Parliament. In other words, Article 368 does not contemplate any other mode of amendment by Parliament and it does not equally contemplate that Parliament could set up another body to amend the Constitution.
… It has been urged before us that in fact there has been no delegation of the amending powers to the State legislatures by Article 31C and what has been done is that Article 31C lifts the ban imposed by Part III from certain laws. I am unable to appreciate this idea of the lifting of the ban.
Fundamental rights remain as part of the Constitution and on the face of them they guarantee to every citizen these fundamental rights. But as soon as the State legislates under Article 31C and the law abrogates or takes away these Constitutional rights, these fundamental rights cease to have any effect. The amendment is then made not by Parliament as the extent of the amendment is not known till the State legislates. It is when the State legislates that the extent of the abrogation or abridgement of the fundamental rights becomes clear. To all intents and purposes it seems to me that it is State legislation that effects an amendment of the Constitution. If it be assumed that
Article 31C does not enable the States to amend the Constitution then Article 31C would be ineffective because the law which in effect abridges or takes away the fundamental rights would have been passed not in the form required by Article 368, i.e. by 2/3rd of the majority of Parliament but by another body which is not recognised in Article 368 and would be void on that ground.
… It seems to me that Article 31C cannot be read to be an implied amendment of Article 368 because it opens with the words "notwithstanding anything contained in Article 13" and Article
31C does not say that "notwithstanding anything contained in Article 368." What Article 31C does is that it empowers legislatures, subject to the condition laid down in Article 31C itself, to take away or abridge rights conferred by Articles 14, 19 and 31. At any rate, if it is deemed to be an amendment of Article 368, it is beyond the powers conferred by Article 368 itself. Article 368 does not enable Parliament to constitute another legislature to amend the Constitution, in its exercise of the power to amend Article 368 itself.
For the aforesaid reasons I hold that Section 3 of the Constitution (Twenty-fifth Amendment)
Act 1971 is void as it delegates power to legislatures to amend the Constitution.
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PART VII – Twenty-Ninth Amendment
The Constitution (Twenty-Ninth Amendment) reads:
2. Amendment of Ninth Schedule
In the Ninth Schedule to the Constitution after entry 64 and before the
Explanation, the following entries shall be inserted, namely:
65. The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969).
66. The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971).
The effect of the insertion of the two Kerala Acts in the Ninth Schedule is that the provisions of Article 31-B get attracted. Article 31-B which was inserted by Section 5 of the Constitution (First Amendment) Act, 1951, reads:
Insertion of new Article 31B.
490. After Article 31A of the Constitution as inserted by Section 4, the following article shall be inserted, namaly:
31B. Validation of certain Acts and Regulations
Without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it continue in force.
The First Amendment had also inserted Article 31A and the ninth Schedule including 13 State enactments dealing with agrarian, reforms.
Before dealing with the points debated before us, it is necessary to mention that a new Article
31A was substituted by the Constitution (Fourth Amendment) Act, 1955, for the original article with retrospective effect. The new article contained original Article 31A(1) as Clause (a) and added
Clauses (b) to (e) and also changed the nature of the protective umbrella. The relevant part of
Article 31A(1) as substituted has already been set out.
Under Article 31-A as inserted by the First Amendment a law was protected even if it was inconsistent with or took away or abridged any rights conferred by any provisions of Part III.
Under the Fourth Amendment the protective umbrella extended to only Article 14, Article 19 or
Article 31. The Seventeenth Amendment further amended the definition of the word "estate" in
Article 31A. It also added seven Acts to the Ninth Schedule.
… I have held that Article 368 does not enable Parliament to abrogate or take away fundamental rights. If this is so, it does not enable Parliament to do this by any means, including the device of Article 31-B and the Ninth Schedule. This device of Article 31-B and the Ninth
Schedule is bad insofar as it protects statutes even if they take away fundamental rights. Therefore, it is necessary to declare that the Twenty-Ninth Amendment is ineffective to protect the impugned
Acts if they take away fundamental rights.
… Broadly speaking, Constitutional amendments hitherto made in, Article 19 and Article 15 and, the agrarian laws enacted by various States furnish illustrations of reasonable abridgement of fundamental rights in the public interest. …
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HARMONY BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES
OF STATE POLICY
MINERVA MILLS V. UNION OF INDIA
AIR 1980 SC 1789, (1980) 3 SCC 625
Decided On: May 09, 1980/July 31. 1980
BENCH – CHIEF JUSTICE Y. V. CHANDRACHUD, JUSTICES P. N. BHAGWATI, A. C. GUPTA, N.
L. UNTWALIA & P. S. KAILASAM
CHIEF JUSTICE CHANDRACHUD (for himself, Justices Gupta, Untwalia & Kailasam, MAJORITY
OPINION)
… Petitioner No 1 which is a limited company owned a textile undertaking called Minerva
Mills situated in the State of Karnataka. This undertaking was nationalised and taken over by the Central Government under the provisions of the Sick Textile Undertakings
(Nationalisation) Act, 1974. Petitioners 2 to 6 are shareholders of Petitioner No. 1, some of whom are also unsecured creditors and some secured creditors.
Respondent 1 is the Union of India. Respondent 2 is the National Textile Corporation
Limited in which the textile undertaking of Minerva Mills comes to be vested under Section
3(2) of the Nationalisation Act of 1974. Respondent 3 is a subsidiary of respondent 2.
On August 20, 1970, the Central Government appointed a Committee under Section 15 of the Industries (Development and Regulation) Act, 1951 to make a full and complete investigation of the affairs of the Minerva Mills Ltd., as it was of the opinion that there had been or was likely to be substantial fall in the volume of production. The said Committee submitted its report to the Central Government in January 1971, on the basis of which the
Central Government passed an order dated October 19, 1971 under Section 18A of the Act of
1951, authorising Respondent 2 to take over the management of the Minerva Mills Ltd. on the ground that its affairs were being managed in a manner highly detrimental to public interest.
By these petitions, the petitioners challenge the constitutional validity of certain provisions of the Sick Textile Undertakings (Nationalisation) Act and of the order dated October 19, 1971.
We are not concerned with the merits of that challenge at this stage. The petitioners further challenge the constitutionality of the Constitution (39th Amendment) Act which inserted the impugned Nationalisation Act as Entry 105 in the 9th Schedule to the Constitution. That raises a question regarding the validity of Article 31B of the Constitution with which we propose to deal in another batch of petitions. Finally, the petitioners challenge the constitutionality of
Sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 and it is this contention alone with which we propose to deal in these petitions.
The challenge to the validity of Sections 4 and 55 of the 42nd Amendment rests on the ratio of the majority judgment in Kesavananda Bharati (1973) 4 SCC 225. The several opinions rendered in that case have been discussed and analysed threadbare in texts and judgments too numerous to mention. All the same, we cannot avoid making a brief resume of the majority judgments since the petitioners must stand or fall by them. Those judgments, on the point now in issue, were delivered by Sikri, C. J., Shelat and Grover, JJ., Hegde and Mukherjea, JJ.,
Jaganmohan Ready, J. and Khanna, J.
Sikri C. J., held that the fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence. According
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to the learned Chief Justice, fundamental rights conferred by Part III of the Constitution cannot be abrogated, though a reasonable abridgement of those rights could be effected in public interest. There is a limitation on the power of amendment by necessary implication which was apparent from a reading of the preamble and therefore, according to the learned Chief Justice, the expression "amendment of this Constitution", in Article 368 means any addition or 'change in any of the provisions of the Constitution within the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution. Accordingly, every provision of the
Constitution was open to amendment provided the basic foundation or structure of the
Constitution was not damaged or destroyed.
Shelat and Grover, JJ. held that the preamble to the Constitution contains the clue to the fundamentals of the Constitution. According to the learned Judges, Parts HI and IV of the
Constitution which respectively embody the fundamental rights and the directive principles have to be balanced and harmonised. This balance and harmony between two integral parts of the Constitution forms a basic element of the Constitution which cannot be altered. The word 'amendment ' occurring in Article 368 must therefore be construed in such a manner as to preserve the power of the Parliament to amend the Constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution. There was thus an implied limitation on the amending power which precluded Parliament from abrogating or changing the identity of the Constitution or any of its basic features.
Hegde and Mukherjea, JJ. held that the Constitution of India which is essentially a social rather than a political document, is founded on a social philosophy and as such has two main features basic and circumstantial. The basic constituent remained constant, the circumstantial was subject to change. According to the learned Judges, the broad contours of the basic elements and the fundamental features of the Constitution are delineated in the preamble and the Parliament has no power to abrogate or emasculate those basic elements of fundamental features. The building of a welfare State, the learned Judges said, " the ultimate goal of every
Government .but that does not mean that in order to build a welfare State, human freedoms have to suffer a total destruction. Applying these tests, the learned Judges invalidated Article
31C even in its un-amended form.
Jaganmohan Reddy, J., held that the word 'amendment ' was used in the sense of permitting a change, in contradistinction to destruction, which the repeal or abrogation brings about. therefore, the width of the power of amendment could not be enlarged by amending the amending power itself. The learned Judge held mat the essential elements of the basic structure of the Constitution are reflected in its preamble and that some of the important features of the
Constitution are justice, freedom of expression and equality of status and opportunity. The word 'amendment ' could not possibly embrace the right to abrogate the pivotal features and the fundamental freedoms and therefore, that part of the basic structure could not be damaged or destroyed. According to the learned Judge, the provisions of Article31C, as they stood then, conferring power on Parliament and the State Legislatures to enact laws for giving effect to the principles specified in Clauses (b) and (c) of Article 39, altogether abrogated the right given by
Article 14 and were for that reason unconstitutional. In conclusion, the learned Judge held that though the power of amendment was wide, it did not comprehend the power to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements of the basic structure of the Constitution or to destroy the identity of the Constitution. Subject to these limitations, Parliament had the right to amend any and every provision of the Constitution.
Khanna, J. broadly agreed with the aforesaid views of the six learned Judges and held that the word 'amendment ' postulated that the Constitution must survive without loss of its identity, which meant that the basic structure or framework of the Constitution must survive any amendment of the Constitution. According to the learned Judge, although it was permissible to
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the Parliament, in exercise of its amending power, to effect changes so as to meet the requirements of changing conditions, it was not permissible to touch the foundation or to alter the basic institutional pattern. Therefore, the words "amendment of the Constitution" in spite of the width of their sweep and in spite of their amplitude, could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the
Constitution.
The summary of the various judgments in Kesavananda Bharati was signed by nine out of the thirteen Judges. Paragraph 2 of the summary reads to say that according to the majority.
"Article 368 does not enable Parliament to alter the basic structure 01 framework of the
Constitution; '. Whether or not the summary is a legitimate part of the judgment, or is per incuriam for the scholarly reasons cited by authors, it is undeniable that it correctly reflects the majority view.
The question which we have to determine on the basis of the majority view in Kesavananda
Bharati is whether the amendments introduced by Sections 4 and 55 of the Constitution (42nd
Amendment) Act, 1976 damage the basic structure of the Constitution by destroying any of its basic features or essential elements.
Section 4 of the 42nd Amendment, which was brought into force with effect from January
3, 1977 amended Article 31C of the Constitution by substituting the words and figures "all or any of the principles laid down in Part IV" for the words and figures "the principles specified in Clause (b) or Clause (c) of Article 39". Article31C, as amended by the 42nd Amendment Act reads thus:
31C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in
Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14. Article 19 of
Article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy:
Provided that where such law is made by the Legislature of a State the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.
Section 55 of the Constitution (Forty-second Amendment) Act, 1976, which was also brought into force with effect from January 3, 1977 inserted subsections (4) and (5) in Article
368 which read thus:
(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article (whether before or after the commencement-of Section 55 of the Constitution (Forty-second Amendment)
Act, 1976} shall be called in question in any court on any ground.
(5) Fox the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.
We will first take up for consideration the comparatively easier question as regards the validity of the amendments made by Section 55 of the 42nd Amendment. It introduces two new
Clauses in Article 368, namely, Clauses (4) and (5). Clause (5) speaks for itself and is selfexplanatory. Its avowed purpose is the "removal of doubts" but after the decision of this Court in Kesavananda Bharati. There could be no doubt as regards the existence of limitations on the
Parliament 's power to amend the Constitution. In the context of the constitutional history of
Article 368, the true object of the declaration contained in Article 368 is the removal of those limitations. Clause (5) confers upon the Parliament a vast and undefined power to amend the
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Constitution, even so as to distort it out of recognition. The theme song of the majority decision in Kesavananda Bharati is: ‘Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But, the
Constitution is a precious heritage; therefore, you cannot destroy its identity.’
The majority conceded to the Parliament the right to make alterations in the Constitution so long as they are within its basic framework. And what fears can that judgment raise or misgivings generate if it only means this and no more. The Preamble assures to the people of
India a polity whose basic structure is described therein as a Sovereign Democratic Republic;
Parliament may make any amendments to the Constitution as it deems expedient so long as they do not damage or destroy India s sovereignty and its democratic, republican character.
Democracy is not an empty dream. It is a meaningful concept whose essential attributes are recited in the preamble itself: Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; and Equality of status and opportunity. Its aim, again as set out in the preamble, is to promote among the people an abiding sense of 'Fraternity assuring the dignity of the individual and tile unity of the Nation '. The newly introduced Clause (5) of
Article 368 demolishes the very pillars on which the preamble rests by empowering the
Parliament to exercise its constituent power without any limitation whatever". No constituent power can conceivably go higher than t sky-high power conferred by Clause (5), for it even empowers the Parliament to "repeal the provisions of this Constitution", that is to say, to abrogate the democracy and substitute for it a totally antithetical form of Government. That can most effectively be achieved, without calling a democracy by any other name, by a total denial of social, economic and political Justice to the people, by emasculating liberty of thought, expression, belief, faith and worship and by abjuring commitment to the magnificent ideal of a society of equals. The power to destroy is not a power to amend.
Since the Constitution had conferred a limited amending power on the Parliament, the
Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our
Constitution and therefore, the limitations on that power cannot be destroyed. In other words,
Parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one,
The very 42nd Amendment which introduced clauses (4) and (5) in Article 368 made amendments to the preamble to which no exception can be taken. Those amendments are not only within the framework of the Constitution but they give vitality to its philosophy; they afford strength and succor to its foundations. By the aforesaid amendments, what was originally described as a 'Sovereign Democratic Republic ' became a "Sovereign Socialist Secular
Democratic Republic" and the resolution to promote the 'unity of the Nation ' was elevated into a promise to promote the "unity and integrity of the Nation". These amendments furnish the most eloquent example of how the amending power can be exercised consistently with the creed of the Constitution. They offer promise of more, they do not scuttle a precious heritage.
In Indira Nehru Gandhi v. Raj Narain [1976] 2 SCR 347 Khanna, J. struck down clause 4 of Article 329A of the Constitution which abolished the forum for adjudicating upon a dispute relating to the validity in an election, on the ground that the particular Article which was introduced by a constitutional amendment violated the principle of free and fair elections which is an essential postulate of democracy and which, in its turn, is a part of the basic structure of the Constitution. Mathew, J. also struck down the Article on the ground that it damaged the essential feature of democracy, One of us, Chandrachud, J. reached the same conclusion by holding that the provisions of the Article were an outright negation of the right of equality
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conferred by Article 14, aright which, more than any other, is a basic postulate of the
Constitution. Thus, whereas amendments made to the preamble by the 42nd Amendment itself afford an illustration of the scope of the amending power, the case last referred to afford an illustration of the limitations on the amending power.
Since, for the reasons above mentioned, clause (5) of Article 368 transgresses the limitations on the amending power, it must be held to be unconstitutional.
The newly introduced clause (4) of Article 368 must suffer the same fate as clause (5) because the two clauses are inter-linked. Clause (5) purports to remove all limitations on the amending power while clause (4) deprives the courts of, their power to call in question any amendment of the Constitution. Our Constitution is founded on a nice balance of power among the three wings of the State, namely, the Executive, the Legislature and the Judiciary. It is the function of the Judges, nay their duty, to pronounce upon the validity of laws. If courts are totally deprived of that power the fundamental rights conferred upon the people will become a mere adornment because rights without remedies are as writ in water. A controlled Constitution will then become uncontrolled. Clause (4) of Article 368 totally deprives the citizens it one of the most valuable modes of redress which is guaranteed by Article 32. The conferment of the right to destroy the identity of the Constitution coupled with the provision that no court or law shall pronounce upon the validity of such destruction seems to us a transparent case of transgression of the limitations on the amending power.
If a constitutional amendment cannot be pronounced to be invalid even if it destroys the basic structure of the Constitution, a law passed in pursuance of such an amendment will be beyond the pale of judicial review because it will receive the protection of the constitutional amendment which the courts ' will be powerless to strike down. Article 13 of me Constitution will then become a dead letter because even ordinary laws will escape the scrutiny of the courts on the ground that they are passed on the strength of a constitutional amendment which is not open to challenge.
Clause (4) of Article 368 is in one sense an appendage of clause (5), though we do not like to describe it as a logical consequence of clause (5). If it be true, as stated in Clause (5), that the Parliament has unlimited power to amend the Constitution, courts can have no jurisdiction to strike down any constitutional amendment as unconstitutional. Clause (4), therefore, says nothing more or less than what clause (5) postulates. If clause (5) is beyond the amending power of the Parliament, clause (4) must be equally beyond that power and must be struck down as such.
The next question which we have to consider is whether the amendment made by Section
4 of the 42nd Amendment to Article 31C of the Constitution is valid. Mr. Palkhivala did not challenge the validity of the unamended Article 31C and indeed that could not be done. The unamended Article 31C forms the subject-matter of a separate proceeding and we have indicated therein that it is constitutionally valid to the extent to which it was upheld in
Kesavananda Bharati.
By the amendment introduced by Section 4 of the 42nd Amendment, provision is made in
Article 31C saying that no law giving effect to the policy of the State towards securing "all or any of the principles laid down in Part IV" shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14, Article
19 or Article 31. It is manifest that the scope of laws which fall within Article 31C has been expanded vastly by the amendment. Whereas under the original Article 31C, the challenge was excluded only in respect of laws giving effect to the policy of the State towards securing "the principles specified in Clause (b) or Clause (c) of Article 39" under the amendment, all laws giving effect to the policy of the State towards securing "all or any of the principles laid down
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in Part IV" are saved from a constitutional challenge under Articles 14 and 19. (The reference to Article 31 was deleted by the 44th Amendment as a consequence of the abolition of the right to property as a fundamental right) The question for consideration in the light or this position is whether Section 4 of the 42nd Amendment has brought about a result which is basically and fundamentally different from the one arising under the unamended article. If the amendment does not bring about any such result its validity shall have to be upheld for the same reasons for which the validity of the unamended article was upheld.
The argument of Mr. Palkhivala, who appears on behalf of the petitioners, runs thus: The amendment introduced by Section 4 of the 42nd Amendment destroys the harmony between
Parts III and IV of the Constitution by making the fundamental rights conferred by Part III subservient to the directive principles of State Policy set out in Part IV of the Constitution. The
Constitution makers did not contemplate a disharmony or imbalance between the fundamental rights and the directive principles and indeed they were both meant to supplement each other.
The basic structure of the Constitution rests on the foundation that while the directive principles are the mandatory ends of government, those ends can be achieved only through permissible means which are set out in Part III of the Constitution. In other words, the mandatory ends set out in Part IV can be achieved not through totalitarian methods but only through those which are consistent with the fundamental rights conferred by Part III. If Article 31C as amended by the 42nd Amendment is allowed to stand, it will confer an unrestricted licence on the legislature and the executive, both at the center and in the States, to destroy democracy and establish an authoritarian regime. All legislative action and every governmental action purports to be related, directly or indirectly, to some directive principle of State policy. The protection of the amended article will therefore be available to every legislative action under the sun. Article
31C abrogates the right to equality guaranteed by Article 14, which is the very foundation of a republican form of government and is by itself a basic feature of the Constitution.
The learned Counsel further argues that it is impossible to envisage that a destruction of the fundamental freedoms guaranteed by Part III is necessary for achieving the object of some of the directive principles like equal justice and free legal aid. Organising village panchayats, providing living wages for workers and just and humane conditions of work, free and compulsory education for children, organisation of agriculture and animal husbandry, and protection or environment and wild life. What the Constituent Assembly had rejected by creating a harmonious balance between parts III and IV is brought back by the 42nd
Amendment.
Finally it is urged that the Constitution had made provision for the suspension of the right to enforce fundamental rights when an emergency is proclaimed by the President. Under the basic scheme of the Constitution, fundamental rights were to lose their supremacy only during the period that the proclamation of emergency is in operation. Section 4 of the 42nd Amendment has robbed the fundamental rights of their supremacy and made them subordinate to the directive principles of State policy as if there were a permanent emergency in operation. While
Article 359 suspends the enforcement of fundamental rights during the Emergency, Article 31C virtually abrogates them in normal times. Thus, apart from destroying one of the basic features of the Constitution, namely, the harmony between Parts III and IV, Section 4 of the 42nd
Amendment denies to the people the blessings of a free democracy and lays the foundation for the creation of an authoritarian State.
These contentions were stoutly resisted by the learned Attorney General thus: Securing the implementation of directive principles by the elimination of obstructive legal procedures cannot ever be said to destroy or damage the basic features of the Constitution. Further, laws made for securing the objectives of Part IV would necessarily be in public interest and will fall within Article 19(5) of the Constitution, in so far us clauses (d) and (e) of Article 19(1) are
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concerned. They would therefore be saved in any case. The history of the Constitution, particularly the incorporation of Articles 31(4) and 31(6) and the various amendments made by
Articles 31A, 31B and the amended Article 31C, which were all upheld by this Court, establish the width of the amending power under Article 368. The impugned amendment therefore manifestly falls within the sweep of the amending power.
The learned Attorney General further argues: A law which fulfils the directive of Article
38 is incapable of abrogating fundamental freedoms or of damaging the basic structure of the
Constitution inasmuch as that structure itself is founded on the principle of justice – social, economic and political. Article 38, which contains a directive principle, provides that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. A law which complies with Article 38 cannot conceivably abrogate the fundamental freedoms except certain economic rights and that too, for the purpose of minimising inequalities. A law which will abrogate fundamental freedoms will either bring about social injustice or economic injustice or political injustice. It will thereby contravene
Article 38 rather than falling within it and will for that reason be outside the protection of
Article 31C. In any event, each and every violation of Article 14 or Article 19 does not damage the basic structure of the Constitution.
………
The argument of the learned Additional Solicitor General proceeds thus: For extracting the ratio of Kesavananda Bharati one must proceed on the basis that there were as many cases as there were declarations sought for by the petitioners therein. The majority in regard to Article
368 is different from the majority in regard to the decision in respect of Article 31C. The binding ratio in regard to Article 368 as well as the ratio resulting in upholding the validity of the first part of Article 31C will both sustain the validity of Section 4 of the 42nd Amendment.
In regard to fundamental rights, the ratio of the judgments of 12 out of 13 Judges, i.e., all excepting Jaganmohan Reddy J. will empower amendment of each one of the articles in Part
III, so long as there is no total abrogation of the fundamental rights which constitute essential features of the basic structure of the Constitution. Abrogation of fundamental rights which do not constitute essential features of the basic structure or abridgement of fundamental rights which constitute such essential lectures is within the permissible limits of amendment. The unamended Article 31C having been upheld by the majority in Kesavananda Bharati both on the ground of stare decisis and on the ground of contemporaneous practical exposition, the amended Article 31C must be held to be valid, especially since it has not brought about a qualitative change in comparison with the provisions of the unamended article. A harmonious and orderly development of constitutional law would require that the phrases 'inconsistent with ' or ‘take away’ which occur in Articles 31A, 31B and 31C should be read down to mean 'restrict or 'abridge ' and not 'abrogate '. If two constructions of those expressions were reasonably possible, the Court should accept that construction which would render the constitutional amendment valid.
The learned Counsel further argues: The directive principles, including the one contained in Article 38, do not cover the exercise of each and every legislative power relatable to the
Seventh Schedule of the Constitution. Besides, the directive principles being themselves fundamental in the governance of the country, no amendment of the Constitution to achieve the ends specified in the directive principles can ever alter the basic structure of the
Constitution. If the unamended Article 31C is valid in reference to laws relatable to clause (b) and (c) of Article 39 no dichotomy can be made between laws relatable to these provisions on
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the one hand and laws relatable to other directive principles. A value judgment is not permissible to the Court in this area.
It is finally urged by the learned Additional Solicitor General that judicial review is not totally excluded by the amended Article 31C because it will still be open to the Court to consider: (i) whether the impugned law has 'direct and reasonable nexus ' with any of the directive principles;
(ii) whether the provisions encroaching on fundamental rights are integrally connected with and essential for effectuating the directive principles or are at least ancillary thereto;
(iii) whether the fundamental right encroached upon is an essential feature of the basic structure of the Constitution; and
(iv) if so, whether the encroachment, in effect, abrogates that fundamental right.
………
Both the Attorney General and the Additional Solicitor General have raised a preliminary objection to the consideration of the question raised by the petitioners as regards the validity of Sections 4 and 55 of the 42nd Amendment. It is contended by them that the issue formulated for consideration of the court: "whether the provisions of the Forty-second Amendment of the
Constitution which deprived the Fundamental Rights of their Supremacy and, inter alia, made them subordinate to the directive principles of State Policy are ultra vires the amending power of Parliament?" is too wide and academic. It is urged that since it is the settled practice of the court not to decide academic questions and since property rights claimed by the petitioners under Articles 19(1)(f) and 31 do not survive after the 44th Amendment, the court should not entertain any argument on the points raised by the petitioners.
………
But, we find it difficult to uphold the preliminary objection because, the question raised by the petitioners us regards the constitutionality of Sections 4 and 55 of the 42nd Amendment is not an academic or a hypothetical question. The 42nd Amendment is there for anyone to see and by its Sections 4 and 55 Amendments have been made to Articles 31C and 368 of the
Constitution. An order has been passed against the petitioners under Section 18A of the
Industries (Development and Regulation) Act, 1951 by which the petitioners are aggrieved.
Besides there are two other relevant considerations which must be taken into account while dealing with the preliminary objection. There is no constitutional or statutory inhibition against the decision of questions before they actually arise for consideration. In view of the importance of the question raised and in view of the fact that the question has been raised in many a petition, it is expedient in the interest of Justice to settle the true position, Secondly, what we are dealing with is not an ordinary law which may or may not be passed so that it could be said that our jurisdiction is being invoked on the hypothetical consideration that a law may be passed in future which will injure the rights of the petitioners. We are dealing with a constitutional amendment which has been brought into operation and which, of its own force, permits lie violation of certain freedoms through lows passed for certain purposes. We therefore, overrule the preliminary objection and proceed to determine the point raised by the petitioners.
The main controversy in these petitions centers round the question whether the directive principles of State policy contained in Part IV can have primacy over the fundamental rights conferred by Part III of the Constitution. That is the heart of the matter. Every Other consideration and all other contentions are in the nature of by-products of that central theme of
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the case. The competing claims of parts III and IV constitute the pivotal point of the case because, Article 31C as amended by Section 4 of the 42nd Amendment provides in terms that a law giving effect to any directive principle cannot be challenged as void on the ground that it violates the rights conferred by Article 14 or Article 19. The 42nd Amendment by its Section 4 thus subordinates the fundamental rights conferred by Articles 14 and 19 to the directive principles. The question of questions is whether in view of the majority decision in Kesavananda
Bharati it is permissible to the Parliament to so amend the Constitution as to give a position of precedence to directive principles over the fundamental rights. The answer to this question must necessarily depend upon whether Articles 14 and 19, which must now give way to laws passed in order to effectuate the policy of the State towards securing all or any of the principles of Directive Policy are essential features of the basic structure of the Constitution. It is only if the rights conferred by these two articles are not a part of the basic structure of the Constitution that they ran be allowed to be abrogated by a constitutional amendment. If they are a part of the basic structure, they cannot be obliterated out of existence in relation to a category of laws described in Article 31C or, for the matter of that, in relation to laws of any description whatsoever, passed in order to achieve any object or policy whatsoever. This will serve to bring out the point that a total emasculation of the essential features of the Constitution is, by the ratio in Kesavananda Bharati, not permissible to the Parliament.
There is no doubt that though the courts have always attached very great importance to the preservation of human liberties, no less importance has been attached to some of the Directive
Principles of State Policy enunciated in Part IV. In the words of Granville Austin, (The Indian
Constitution: Cornerstone of a Nation, p. 50) the Indian Constitution is first and foremost a social document and the majority of its provisions are aimed at furthering the goats of social revolution by establishing the conditions necessary for its achievement. Therefore, the importance of directive principles in the scheme of our Constitution cannot ever be overemphasized. Those principles project the high ideal which the Constitution aims to achieve. In fact directive principles of State policy are fundamental in the governance of the country and the Attorney General is right that there is no sphere of public life where delay can defeat justice with more telling effect than the one in which the common man seeks the realisation of his aspirations. The promise of a better tomorrow must be fulfilled today; day after tomorrow it runs the risk of being conveniently forgotten. Indeed, so many tomorrows have come and gone without a leaf turning that today there is a lurking danger that people will work out their destiny through the compelled cult of their own "dirty hands". Words bandied about in marbled halls say much but fail to achieve as much.
48. But there is another competing constitutional interest which occupies an equally important place in that scheme. That interest is reflected in the provisions of Part III which confer fundamental rights, some on citizens as Articles 15, 16 and 19 do and some on all persons alike as Articles 14, 20, 21 and 22 do. As Granville Austin says:
The core of the commitment to the social revolution lies in Parts III and IV …
These are the conscience of the Constitution.
………
The history of India 's struggle for independence and the debates of the Constituent
Assembly show how deeply our people value their personal liberties and how those liberties are regarded as an indispensable and integral part of our Constitution. It is significant that though Parts III and IV appear in the Constitution as two distinct fasciculus of articles, the leaders of our independence movement drew no distinction between the two kinds of State 's obligations – negative and positive. … The demand for inalienable rights traces its origin in
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India to the 19th Century and flowered into the formation of the Indian National Congress in
1885. Indians demanded equality with their British rulers on the theory that the rights of the subjects cannot in a democracy be inferior to those of the rulers. Out of that demand grew the plants of equality and free speech. Those and other basic rights found their expression in Article
16 of the Constitution of India Bill, 1895. A series of Congress resolutions reiterated that demand between 1917 and 1919. The emergence of Mahatma Gandhi on the political scene gave to the freedom movement a new dimension: it ceased to be merely anti-British; it became a movement for the acquisition of rights of liberty for the Indian Community. Mrs. Besant 's
Commonwealth of India Bill, 1925 and the Madras Congress resolution of 1928 provided a striking continuity for that movement. The Motilal Nehru Committee appointed by the Madras
Congress resolution said at pp. 89-90:
It is obvious that our first care should be to have our Fundamental Rights guaranteed in a manner which will not permit their withdrawal under any circumstances … Another reason why great importance attaches to a Declaration of Rights is the unfortunate existence of communal differences in the country.
Certain safeguards are necessary to create and establish a sense of security among those who look upon each other with distrust and suspicion. We could not better secure the full enjoyment of religious and communal rights to all communities than by including them among the basic principles of the Constitution.
India represents a mosaic of humanity consisting of diverse religious, linguistic and caste groups. The rationale behind the insistence on fundamental rights has not yet lost its relevance, alas or not. The Congress Session of Karachi adopted in 1931 the Resolution on Fundamental
Rights as well as on Economic and Social change. The Sapru Report of 1945 said that the fundamental rights should serve as a "standing warning" to all concerned that:
What the Constitution demands and expects is perfect equality between one section of the community and another in the matter of political and civic rights, equality of liberty and security in the enjoyment of the freedom of religion, worship, and the pursuit of the ordinary applications of life.
The Indian nation marched to freedom in this background. The Constituent Assembly resolved to enshrine the fundamental rights in the written text of the Constitution. The interlinked goals of personal liberty and economic freedom then came to be incorporated in two separate parts, nevertheless parts of an integral, indivisible scheme which was carefully and thoughtfully nursed over half a century. The seeds sown in the 19th Century saw their fruition in 1950 under the leadership of Jawaharlal Nehru and Dr. Ambedkar. To destroy the guarantees given by Part III in order purportedly to achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure.
Fundamental rights occupy a unique place in the lives of civilized societies and have been variously described in our Judgments as "transcendental", "inalienable and "primordial." For us, it has been said in Kesavananda Bharati, they constitute the ark of the Constitution.
The significance of the perception that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution is to be traced to a deep understanding of the scheme of the Indian Constitution. Granville Austin 's observation brings out the true position that Parts III and IV are like two wheels of a chariot, one no less important than the other. You snap one and the other will lose its efficacy. They are like a twin formula for achieving the social revolution, which is the ideal which the visionary founders of the Constitution set before themselves. In other words, the Indian
Constitution is founded on the bedrock of the balance between Parts III and IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.
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………
It is in this light that the validity of the amended Article 31C has to be examined. Article
13(2) says that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of that clause shall to the extent of the contravention be void. Article 31C begins with a non obstante clause by putting Article 13 out of harm 's way. It provides for a certain consequence notwithstanding anything contained in
Article 13. It then denudes Articles 14 and 19 of their functional utility by providing that the rights conferred by these Articles will be no barrier against passing laws for giving effect to the principles laid down in Part IV. On any reasonable interpretation, there can be no doubt that by the amendment introduced by Section 4 of the 42nd Amendment, Articles 14 and 19 stand abrogated at least in regard to the category of laws described in Article 31C. The startling consequence which the amendment has produced is that even if a law it in total defiance of the mandate of Article 13 read with Articles 14 and 19, its validity will not be open to question so long as its object is to secure a directive principle of State Policy. We are disposed to accept the submission of the learned Solicitor General, considering the two charts of cases submitted by him, that it is possible to conceive of laws which will not attract Article 31C since they may not bear direct and reasonable nexus with the provisions of Part IV. But, that, in our opinion, is beside the point. A large majority of laws, the bulk of them, can at any rate be easily justified as having been passed for the purpose of giving effect to the policy of the State towards securing some principle or the other laid down in Part IV. In respect of all such laws, which will cover an extensive gamut of the relevant legislative activity, the protection of Articles 14 and 19 will stand wholly withdrawn. It is then no answer to say, while determining whether the basic structure of the Constitution is altered, that at least some laws will fall outside the scope of
Article 31C.
We have to decide the matter before us not by metaphysical subtlety, nor as a matter of semantics, but by a broad and liberal approach. We must not miss the wood for the trees. A total deprivation of fundamental rights, even in a limited area, can amount to abrogation of a fundamental right just as partial deprivation in every area can. An author, who writes exclusively on foreign matters, shall have been totally deprived of the right of free speech and expression if he is prohibited from writing on foreign matters. The fact therefore that some laws may fall outside the scope of Article 31C is no answer to the contention that the withdrawal of protection of Articles 14 and 19 from a large number of laws destroys the basic structure of the Constitution.
It was repeatedly impressed upon us, especially by the Attorney General, that Article 38 of the Constitution is the kingpin of the directive principles and no law passed in order to give effect to the principle contained therein can ever damage or destroy the basic structure of the
Constitution. That Article provides that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. We are unable to agree that all the Directive Principles of State Policy contained in Part IV eventually verge upon Article 38. Article 38 undoubtedly contains a broad guideline, but the other directive principles are not mere illustrations of the principle contained in Article 38. Secondly, if it be true that no law passed for the purpose of giving effect to the directive principle contained in
Article 38 can damage or destroy the basic structure of the Constitution, what was the necessity, and more so the justification, for providing by a constitutional amendment that no law which is passed for giving effect to the policy of the State towards securing any principle laid down in Part IV shall be deemed to be void on the ground that it Is inconsistent with or takes away or bridges the rights conferred by Articles 14 and 19? The object and purpose of the amendment of Article 31C is really to save laws which cannot be saved under Article 19(2) to (6). Laws
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which fall under those provisions are in the nature of reasonable restrictions on the fundamental rights in public interest and therefore they abridge but do not abrogate the fundamental rights.
It was in order to deal with laws which do not get the protection of Article 19(2) to (6) that
Article 31C was amended to say that the provisions of Article 19, inter alia, cannot be invoked for voiding the laws of the description mentioned in Article 31C.
Articles 14 and 19 do not confer any fanciful rights. They confer rights which are elementary for the proper and effective functioning of a democracy. They are universally so regarded, as is evident from the Universal Declaration of Human Rights. Many countries in the civilised world have parted with their sovereignty in the hope and belief that their citizens will enjoy human freedoms. And they preferred to be bound by the decisions and decrees of foreign tribunals on matters concerning human freedoms. It Articles 14 and 19 are put out of operation in regard to the bulk of laws which the legislatures are empowered to pass, Article 32 will be drained of its life-blood. Article 32(4) provides that the right guaranteed by Article 32 shall not be suspended except as otherwise provided for by the Constitution. Section 4 of the 42nd
Amendment found an easy way to circumvent Article 32(4) by withdrawing totally the protection of Articles 14 and 19 in respect of a large category of laws, so that there will be no violation to complain of in regard to which redress can be sought under Article 32. The power to take away the protection of Article 14 is the power to discriminate without a valid basis for classification. By a long series of decisions this Court has held that Article 14 forbids class legislation but it does not forbid classification. The purpose of withdrawing the protection of
Article 14, therefore, can only be to acquire the power to enact class legislation. Then again, regional chauvinism will have a field day if Article 19(1)(d) is not available to the citizens.
Already, there are disturbing trends on a part of the Indian horizon. Those trends will receive strength and encouragement if laws can be passed with immunity, preventing the citizens from exercising their right to move freely throughout the territory of India. The nature and quality of the amendment introduced by Section 4 of the 42nd Amendment is therefore such that it virtually tears away the heart of basic fundamental freedoms.
Article 31C speaks of laws giving effect to the policy of the "State". Article 12 which governs the interpretation of Article 31C provides that the word "State" in Part III includes the
Government and Parliament of India and the Government and the Legislature of each of the
States and all local or other authorities within the territory of India or under the control of the
Government of India. Wide as the language of Article 31C is, the definition of the word "State" in Article 12 gives to Article 31C an operation of the widest amplitude. Even if a State
Legislature passes a law for the purpose of giving effect to the policy by a local authority towards securing a directive principle, the law will enjoy immunity from the provisions of
Articles 14 and 19. The State Legislatures are thus given an almost unfettered discretion to deprive the people of their civil liberties.
………
Mr. Palkhivala read out to us an extract from the speech of the then Law Minister who, while speaking on the amendment to Article 31C, said that the amendment was being introduced because the government did not want the “let and hindrance" of the fundamental rights. If the Parliament has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited. The principle of reading down cannot be invoked or applied in opposition to the clear intention of the legislature. We suppose that in the history of the constitutional law, no constitutional amendment has ever been read down to mean the exact opposite of what it says and intends. In fact, to accept the argument that we should read down Article 31C, so as to make it conform to the ratio of the majority decision in Kesavananda Bharati is to destroy the avowed purpose of
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Article 31C as indicated by the very heading "Saving of certain laws” under which Articles
31A, 31B and 31C are grouped. Since the amendment to Article 31C was unquestionably made with a view to empowering the legislatures to pass laws of a particular description even if those laws violate the discipline of Articles 14 and 19, it seems to us impossible to hold that we should still save Article 31C from the challenge of unconstitutionality by reading into that
Article words which destroy the rationale of that Article and an intendment which is plainly contrary to its proclaimed purpose.
………
Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are
Articles 14, 19 and 21. Article 31C has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the Preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual,
These then are our reasons for the order which we passed on May 9, 1980 to the following effect: Section 4 of the Constitution 42nd Amendment Act is beyond the amending power of the Parliament and is void since it damages the basic or essential features of the
Constitution and destroys its basic structure by a total exclusion of challenge to any law on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 of the Constitution, if the law is for giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV of the Constitution.
Section 55 of the Constitution 42nd Amendment Act is beyond the amending power of the Parliament and is void since it removes all limitations on the power of the Parliament to amend the Constitution and confers power upon it to amend the Constitution, so as to damage or destroy its basic or essential features or it basic structure.
There will be no order as to costs.
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UNIT 13 – PUBLIC INTEREST LITIGATION
BANDHUA MUKTI MORCHA V. UNION OF INDIA
AIR 1984 SC 802, (1984) 3 SCC 161
Decided On: December 16, 1983
BENCH – JUSTICES P. N. BHAGWATI, R. S. PATHAK & AMARNDRA NATH SEN
JUSTICE BHAGWATI (FOR HIMSELF) [JUSTICE PATHAK AND JUSTICE PATHAK CONCURRING
BUT WROTE THEIR SEPARATE OPINIONS]
The petitioner is an organisation dedicated to the cause of release of bonded labourers in the country. The system of bonded labour has been prevalent in various parts of the country since long prior to the attainment of political freedom and it constitutes an ugly and shameful feature of our national life. This system based on exploitation by a few socially and economically powerful persons trading on the misery and suffering of large numbers of men and holding them in bondage is a relic of a feudal hierarchical society which hypocritically proclaims the divinity of men but treats large masses of people belonging to the lower rungs of the social ladder or economically impoverished segments of society as dirt and chattel. This system under which one person can be bonded to provide labour to another for years and years until an alleged debt is supposed to be wiped out which never seems to happen during the life time of the bonded labourer, is totally incompatible with the new egalitarian socio-economic order which we have promised to build and it is not only an affornt to basic human dignity but also constitutes gross and revolting violation of constitutional values. …
They are non-beings, exiles of civilisation, living a life worst than that of animals, for the animals are at least free to roam about as they like and they can plunder or grab food whenever they are hungry but these out castes of society are held in bondage, robbed of their freedom and they are consigned to an existence where they have to live either in hovels or under the open sky and be satisfied with whatever little unwholesome food they can manage to get, inadequate though it be to fill their hungry stomachs. Not having any choice, they ate driven by poverty and hunger into a life of bondage a dark bottomless pit from which, in a cruel exploitative society, they cannot hope to be rescued.
This pernicious practice of bonded labour existed in many States and obviously with the ushering in of independence it could not be allowed to continue to blight the national life any longer and hence, when we framed our Constitution, we enacted Article 23 of the Constitution which prohibits "traffic in human beings and begar and other similar forms of forced labour" practised by any one. The system of bonded labour therefore stood prohibited by Article 23 and there could have been no more solemn and effective prohibition than the one enacted in the Constitution in Article 23. But, it appears that though the Constitution was enacted as far back as 26th January, 1950 and many years passed since then, no serious effort was made to give effect to Article 23 and to stamp out the shocking practice of to bonded labour. It was only in 1976 that Parliament enacted the Banded Labour System (Abolition) Act, 1976 providing for the abolition of bonded labour system with a view to preventing the economic and physical exploitation of the weaker sections of the people. But, unfortunately, as subsequent events have shown and that is borne out also by the Report made by the center for
Rural Development Administration, Indian Institute of Public Administration to the Ministry of Labour Government of India on "Rehabilitation of Bonded Labour in Monghyr District,
Bihar", the Report made by the Public Policy and Planning Division of the Indian Institute of
Public Administration to the Ministry of Labour, Government of India on "Evaluation Study of Bonded Labour Rehabilitation Scheme In Tehri Garhwal, U.P.", the Report of Laxmi Dhar
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Misra, the Director-General (Labour Welfare) of the Government of India based on On the
Spot Studies Regarding Identification, Release of Bonded Labourers and Rehabilitation of
Freed Labourers in Uttar Pradesh, Madhya Pradesh, Andhra Pradesh, Karnataka, Orissa,
Bihar, Rajasthan, Tamilnadu and Kerala and the Report of the National Seminar on
"Indentification and Rehabilitation of Bonded Labour" held from 7th to 9th February, 1983 that the pernicious practice of bonded labour has not yet been totally eradicated from the national scene and that it continues to disfigure the social and economic life of the country at certain places. There are still a number of bonded labourers in various parts of the country and significantly, as pointed out in the Report of the National Seminar on "Identification and
Rehabilitation of Bonded Labour" a large number of them belong to Scheduled Castes and
Scheduled Tribes account for the next largest number while the few who are not from
Scheduled Castes or Scheduled Tribes are generally landless agricultural labourers. It is absolutely essential we would unhesitatingly declare that it is a constitutional imperative-that the bonded labourers must be identified and released from the shackles of bondage so that they can assimilate themselves in the main stream of civilised human society and realise the dignity, beauty and worth of human existence. …
… [T]his problem has to be solved if we want to emancipate those who are living in bondage and serfdom and make them equal participants in the fruits of freedom and liberty. It is a problem which needs urgent attention of the Government of India and the State
Governments and when the Directive Principles of State Policy have obligated the Central and the State Governments to take steps and adopt measures for the purpose of ensuring social justice to the have-notes and the handicapped, it is not right on the part of the concerned governments to shut their eyes to the inhuman exploitation to which the bonded labourers are subjected. It is not uncommon to find that the administration in some States is not willing to admit the existence of bended labour, even though it exists in their territory and there is incontrovertible evidence that it does so exist. We fail to see why the administration should feel shy in admitting the existence of bonded labour, because it is not the existence of bonded labour that is a slur on the administration but its failure to take note of it and to take all necessary steps for the purpose of putting an end to the bonded labour system by quickly identifying, releasing and permanently rehabilitating bonded labourers: What is needed is determination, dynamism and a sense of social commitment of the part of the administration to free bonded labourers and rehabilitate them and wipe out this ugly inhuman practice which is a blot on our national life.
What happened recently in the Ranga Reddy District of Andrha Pradesh as a result of the initiative taken by this Court in Writ Petitions Nos. 1574 of 1982 and 54 of 1983 shows clearly that if the political and administrative apparatus has a sense of commitment to the constitutional values and is determined to take action for identifying releasing and rehabilitating bonded labourers despite pressures and pulls from different quarters, much can be done for securing emancipation and rehabilitation of bonded labourers. The District
Administration of Ranga Reddy District could in less than six months release over 3000 bonded labourers from the clutches of contractors in stone quarries in Ranga Reddy District and send them back to their homes with tickets and pocket expenses. It is therefore essential that whichever be the State Government it should, where there is bonded labour, admit the existence of such bonded labour and make all possible efforts to eradicate it. By doing so, it will not only be performing a humanitarian function but also discharging a constitutional obligation and strengthening the foundations of participatory democracy in the country.
We also find that in some cases the State Governments in order to shirk their obligation, take shelter under the plea that there may be some forced labour in their State but that is not bonded labour. We shall have occasion to deal with this plea a little later when we refer to the
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definition of 'bonded labour ' given in the Bonded Labour System (Abolition) Act, 1976 which at first blush appears to be a narrow definition limited only to a situation where a debtor is forced to provide labour to a creditor. The State of Haryana has in the present case tried to quibble with this definition of 'bonded labour ' and its argument has been that these labourers may be providing forced labour but they are not bonded labourers within the meaning of the
Bonded Labour System (Abolition) Act, 1976 and they may therefore be freed by the Court if it so pleases but the State of Haryana cannot be compelled to rehabilitate them. We are constrained to observe that this agrument, quite apart from its invalidity, ill-behoves a State
Government which is committed to the cause of socialism and claims to be striving to ensure social justice to the vulnerable sections of the community. But we do not wish to anticipate the discussion in regard to this argument and at the present stage we content ourselves by merely observing that it is unfortunate that any State Government should take up the plea that persons who are forced to provided labour may be forced labourers but unless it is shown by them by proper evidence tested by cross-examination that they are forced to provide labour against a bonded debt, they cannot be said to be bonded labourers and the State Government cannot be held to be under any obligation to rehabilitate them.
The petitioner made a survey of some of the stone quarries in Faridabad district near the city of Delhi and found that there were a large number of labourers from Maharashtra, Madhya
Pradesh, Uttar Pradesh and Rajasthan who were working in these stone quarries under
"inhuman and intolerable conditions" and many of whom were bonded labourers. The petitioner therefore addressed a letter to one of us on 25th February, 1982 pointing out that in the mines of Shri S.L. Sharma, Gurukula Indra Prastha, Post Amar Nagar Faridabad, District, a large number of labourers were languishing under abject conditions of bondage for last about ten years, and the petitioner gave the names of 11 bonded labourers who were from village
Asarha, Banner district of Rajasthan, 7 bonded labourers who were from village Bharol, district Jhansi of Madhya Pradesh and 23 bonded labourers who were from village Barodia,
Bhanger, Tehsil Khurai, district Sagar, M.P. The petitioner pointed out that there were "yet another 14 bonded labourers from Lalitpur in U.P." The petitioner also annexed to its letter, statements in original bearing the thumb marks or signatures as the case may be of these bended labourers referred to in the letter. The petitioner pointed out in the letter that the labourers working in these stone quarries were living under the most inhuman conditions and their pitiable lot was described by the petitioner in the following words:
Besides these cases of bonded labour, there are in-numerable cases of fatal and serious injuries caused due to accidents while working in the mines, while dynamiting the rocks or while crushing the stones. The stone-dust pollution near the stone crushers is so various that many a valuable lives are lost due to tuberculosis while others are reduced to mere skeletons because of T.B. and other diseases. The workers are not provided with any medical care, what to speak of compensating the poor worker for injury or for death. No cases are registered against the mine owners or the lessees for violation of safety rules under Mines
Act. We are enclosing herewith the statements of about 75 workers who have suffered or are suffering continuously due to non-implementation of the rules by the Central Government or by Haryana Government or by the employers.
Almost 99% of the workers are migrant from drought prone areas of Rajasthan,
Madhya Pradesh, Andhra Pradesh, Orissa, Maharashtra and Bihar. But if there is any one place where the Central legislation of Inter State Migrant Workmens Act
1979 is being most flagrantly violated it is here in these mines, without any residential accommodation, with the name-not even a thatched roof to fend against the icy winds and winter rain or against the scorching heat in midsummer, with scanty clothing, with very impure and polluted drinking water accumulated during rainy season in the clitches, with absolutely no facilities for schooling or childcare, braving all the hazards of nature and pollution and illtreatment, these
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thousands of sons and daughters of Mother India epitomise the "Wretched of the
Earth".
On top of all these forms of exploitation is the totally illegal system of
"Thekedars", middlemen who extract 30% of the poor miner 's wages as their ill gotten commission (Rs. 20 out of Rs. 60, wages for per truck load of stone ballast).
The trucks are invariably oversigned in some cases they doubt the prescribed size of 150 Sq. feet but payment remains the same. The hills are dotted with liquor vends-legal and illegal. Murders and molestation of women is very common.
The petitioner also set out the various provisions of the Constitution and the statutes which were not being implemented or observed in regard to the labourers working in these stone quarries. The petitioner in the end prayed that a writ be issued for proper implementation of these provisions of the Constitution and statutes with a view to ending the misery, suffering and helplessness of "these victims of most inhuman exploitation".
The letter dated 25th February 1982 addressed by the petitioner was treated as a writ petition and by an order dated 26th February 1982 this Court issued notice on the writ petition and appointed two advocates, namely, M/s. Ashok Srivastava and Ashok Panda as commissioners to visit the stone quarries of Shri S.L. Sharma in Godhokhor (Anangpur) and
Lakkarpur in Faridabad district and to interview each of the persons whose names were mentioned in the letter of the petitioner as also a cross section of the other workers with a view to finding out whether they are willingly working in these stone quarries and also to inquire about the conditions in which they are working. M/s. Ashok Srivastava and Ashok Panda were directed to visit these stone quarries on 27th and 28th February 1982 and to make a report to this Court on or before 2nd March 1982. Pursuant to this order made by us, M/s. Ashok
Srivastava and Ashok Panda visited the stone quarries of S.L. Shrma in Godhokhor and
Lakkarpur and carried out the assignment entrusted to them and submitted a report to this
Court on 2nd March 1982. The Report pointed out inter alia that in the stone quarries of S.L.
Sharma at Godhakhpur, "many stone crushing machines were operating with the result that the whole atmosphere was full of dust and it was difficult even to breathe".
The Report then referred to the statements of various workers interviewed by M/s. Ashok
Srivastava and Ashok Panda and according to the statements given by some of them, namely,
Lalu Ram, Dalla Ram, Thakur Lal, Budh Ram, Harda, Mahadev, Smt. Shibban, Hardev,
Anam, Punnu, Ghanshyam, Randhir and Mute, they were not allowed to leave the stone quarries and were providing forced labour and they did not have even pure water to drink but wire compelled in most cases to drink dirty water from a nallah and were living in Jhuggies with stones piled one upon the other as walls and straw covering at the top, which did not afford any protection against sun and rain and which were so low that a person could hardly stand inside them. The statements of these workers showed that a few of them were suffering from tuberculosis and even when injuries were caused due to accidents arising in the course of employment, no compensation was being paid to them and there were no facilities for medical treatment or schooling for children.
The Report proceeded to state that M/s. Ashok Srivastava and Ashok Panda then visited mine No. 8 in Godhokhor stone quarries and here they found that the condition of the jhuggies was much worse inasmuch as the jhuggies were made only of straw and most of the people living in jhuggies had no clothes to wear and were shivering from cold and even the small children were moving about without any proper clothing. M/s. Ashok Srivastava and Ashok
Panda found that none of the inmates of the jhuggies had any blanket or woolen clothes and they did not even have any mat on which they could sleep. The statements of Phool Chand,
Babu Lal, Bhoolu, Karaya, Ram Bahadur and Sallu also showed that all these workers were bonded labourers who were not allowed to leave the stone quarries and one of them, namely,
Sallu was seriously injured on his left leg only a day before the visit of M/s. Ashok Srivastava
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and Ashok Panda but be did not hope to get any compensation "because here no one gets any compensation for any injury". Most of the workers interviewed by M/s. Ashok Srivastava and
Ashok Panda stated that they got very little by way of wages from the mine lessees or owners of stone crushers since they had to purchase explosives with their own moneys and they had to incur other expenses which, according to Dr. Patwardhan 's report to which we shall refer hereafter, included 50 per cent of the expenses of drilling holes. M/s. Ashok Srivastava and
Ashok Panda also pointed out in the Report that the following persons working in the
Godhokhor stone quarries claimed that they were bonded labourers:
(1) Chand Bahadur son of Hastbir (2) Lal Bahadur son of Umbar Bahadur (3)
Chhotey Lal son of Jarau (4) Harak Bahadur son of Jeet Bahadur (5) Gopal
Bahadur son of Jhabu Singh (6) Roop Singh son of Govinda (7) Medh Bahadur son of Aspteir (8) Jiddey Bahadur son of Nunbahadur (9) Phool Bahadur son of
Ram Bahadur (10) Heera Bahadur son of Balbahadur (11) Veer Bahadur son of
Chhalvir (12) Nam Singh son of Lal Bahadur (13) Lal Bahadur son of Gang
Bahadur (14) Ganesh son of Gang Pahrdur (15) Amber Bahadur son of Sadhu
Bahadur (16) Hira Lal son of Atbahadur (17) Kamar Bahadur (18) Jagadh
Bahadur son of Top Bahadur (19) Gajender Bahadur son of Shyam Lal (20) Ganga
Ram son of Lal Bahadur (21) Nar Bahadur and (22) Sant Bahadur son of Bhag
Bahadur.
So far as the workers working in Lakkarpur stone quarries were concerned, the report of
M/s. Ashok Srivastava and Ashok Panda stated that out of about 250 persons living in straw jhuggies, 100 persons hailed from Bilaspur while 150 persons belonged to Allahabad and according to the report, 100 persons coming from Bilaspur stated that they were forcibly kept by the contractor and they were not allowed to move out of their place and they were bonded labourers. M/s. Ashok Srivastava and Ashok Panda described in the Report the pitiable condition in which these workers were living in straw jhuggies without any protection against sun and rain and with drinking water available only from the barsati nallah. The Report pointed out that while M/s. Ashok Srivastava and Ashok Panda were interviewing the workers in the
Lakkarpur stone quarry, it started raining heavily and thereupon they took shelter in one of the jhuggies "but inside the jhuggi it was not safe, as water was pouring inside" and they were completely drenched inside the jhuggi. The Report also stated that, according to these workers, there were no medical facilities available and even where workers were injured, they did not get any medical aid. The Report ended by observes that these workmen "presented a picture of helplessness, poverty and extreme exploitation at the hands of moneyed people" and they were found "leading a most miserable life and perhaps beasts and animals could be leading more comfortable life than these helpless labourers",
Thereafter, the writ petition came up for hearing on 5th March 1982 along with another writ petition filed by the present petitioner for release of some other bonded labourers and on this day the Court made an order directing that the copies of the Report of M/s. Ashok
Srivistava and Ashok Panda should be supplied to all the minelessees and stone crushers who are respondents to the writ petitions so that they may have an opportunity to file their reply to the facts found in the Report. The Court also appointed Dr. Patwardhan of Indian Institute of
Technology to carry out a socio-legal investigation in the following terms:
It is necessary that a socio-legal investigation should be carried out for the purpose of determining what are the condition prevailing in the various quarries in
Faridabad District and whether there are any workmen in those quarries against their will or without their consent and what are the conditions in which they are living and whether any of the provisions of the Bonded Labour System
(Abolition) Act and Inter-State Migrant Workmen (Regulation of Employment &
Conditions of Service) Act is being violated. We may make it clear that when we are directing a socio-legal investigation of these matters it is not in a spirit to criticise the State Government or any of its officers but with a view to find out the
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correctness of the state of affairs so that the State Government and its officers could take necessary steps for remedying the situation if a state of affairs exists which is contrary to the provisions of law and the basic human norms. The Court can take action only after the socio-legal investigation is carried out by some responsible person and a copy of the report of the socio-legal investigation is made available to the parties. We would, therefore, request Dr. Patwardhan of I.I.T. to be good enough to carry out a socio-legal investigation into the aforesaid matters in the quarries in Faridabad District a list of which will be supplied by Mr.
Mukhoty on behalf of the petitioners to Dr. Patwardhan within ten days from today after giving a copy to Mr. K.G. Bhagat, learned Counsel appearing for the
State of Haryana. Dr. Patwardhan is requested to carry out socio-legal investigation with a view to putting forward a scheme for improving the living conditions for the workers working in the stone quarries and after the scheme is submitted to us we propose to hear the parties on the scheme with a view to evolving a final scheme with the assistance of the State of Haryana for the purpose of economic regeneration of these workmen.
The Court permitted Dr. Patwardhan to take the assistance of any person other than the parties to the writ petition in order to help him in his task and at the suggestion of the Court, the State of Haryana agreed to deposit a sum of Rs. 1500 to meet the expenses of Dr.
Patwardhan in carrying out the socio-legal investigation. The Court also recorded in its order that when it was pointed out in the Report of M/s. Ashok Srivastava and Ashok Panda that the workers in the stone quarries did not have any pure drinking water but were using dirty water from the nallah for drinking purposes, Mr. K.G. Bhagat learned Additional Solicitor General appearing on behalf of the State of Haryana fairly stated that "though it may not be strictly the obligation of the State Government, the State Government will take necessary measures for providing drinking facilities to the workmen in the stone quarries". The Court also directed the the workmen whose names were set out in the writ petition and in the Report of M/s.
Ashok Srivastava and Ashok Panda and particularly in regard to whom a separate statement had been filed in Court on behalf of the petitioner, would be free to go wherever they liked and they should not be restrained from doing so by any one and "if they go to their respective villages, the district magistrates having jurisdiction over those villages" shall "take steps or measures to the extent possible for rehabilitating them.
Pursuant to this order made by the Court, the State of Haryana deposited a sum of Rs.
1500 in Court to meet the expenses of the socio-legal investigation and Dr. Patwardhan embarked upon his task with the assistance of Mr. Krishan Mahajan, the legal correspondent of the Hindustan Times. It took some time for Dr. Patwardhan to complete his assignment and prepare his report but having regard to the immensity of the task, the time within which Dr.
Patwardhan finished the inquiry and submitted his report was remarkably short. We shall have occasion to refer to this Report a little latter when we deal with the arguments advanced on behalf of the parties, but we may point out at this stage that the report of Dr. Patwardhan is a comprehensive, well documented socio-legal study of the conditions in which the workmen engaged in stone quarries and stone crushers live and work and it has made various constructive suggestions and recommendations for the purpose of improving the living conditions of these workmen. We are indeed grateful to Dr. Patwirdhan for carrying out this massive assignment so efficiently and in such a short time. Dr. Patwardhan has submitted a statement of the expenses incurred by him in carrying out this socio-legal investigation and this statement shows that he has incurred a total expense of Rs. 2078 which after withdrawal of the amount of Rs. 1500 deposited by the State of Haryana, leaves a balance of Rs. 578 to be reimbursed to Dr. Patwardhan. We are of the view that Dr. Patwardhan should also be paid a small honorarium of Rs. 1000. We would therefore direct the State of Haryana to deposit a sum of Rs. 1578 with the Registry of this Court within 4 weeks from today with liberty to Dr.
Patwardhan to withdraw the same.
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Though it was stated by Shri K.G. Bhagat on behalf of the State of Haryana that the State
Government will take necessary measures for providing drinking facilities to the workmen in the stone quarries referred to in the writ petition and in the report of M/s. Ashok Srivastava and Ashok Panda, it appears that either no such measures were taken on behalf of the State
Government or even if they were taken, they were short lived. The result was that the workmen working in most of these stone quarries had to remain without pure drinking water and they had to continue "to quench their thirst by drinking dirty and filthy water". Whether it is the obligation of the State Government to provide pure drinking water and if so what measures should be directed to be taken by the State Government in that behalf are matters which we shall presently consider. These are matters of some importance because there can be no doubt that pure drinking water is absolutely essential to the health and welfare of the workmen and some authority has to be responsible for providing it.
Before we proceed to consider the merits of the controversy between the parties in all its various aspects it will be convenient at this stage to dispose of a few preliminary objections urged on behalf of the respondents. The learned Additional Solicitor General appearing on behalf of the State of Haryana as also Mr. Phadke on behalf of one of the mine lessees contended that even if what is alleged by the petitioner in his letter which has been treated as a writ petition, is true, it cannot support a writ petition under Article 32 of the Constitution, because no fundamental right of the petitioner or of the workmen on whose behalf the writ petition has been filed, can be said to have been infringed. This contention is, in our opinion, futile and it is indeed surprising that the State Government should have raised it in answer to the writ petition. We can appreciate the anxiety of the mine lessees to resist the writ petition on any ground available to them, be it hyper-technical or even frivolous, but we find it incomprehensible that the State Government should urge such a preliminary objection with a view to stifling at the thresh-hold an inquiry by the Court as to whether the workmen are living in bondage and under inhuman conditions. We should have thought that if any citizen brings before the Court a complaint that a large number of peasants or workers are bonded serfs or are being subjected to exploitation by a few mine lessees or contractors or employers or are being denied the benefits of social welfare laws, the State Government, which is, under our constitutional scheme, charged with the mission of bringing about a new socio-economic order where there will be social and economic justice for every one and equality of status and opportunity for all, would welcome an inquiry by the court, so that if it is found that there are in fact bonded labourers or even if the workers are not bonded in the strict sense of the term as defined in the Bonded Labour System (Abolition) Act 1976 but they are made to provide forced labour or are consigned to a life of utter deprivation and degradation, such a situation can be set right by the State Government. Even if the State Government is on its own inquiry satisfied that the workmen are not bonded and are not compelled to provide forced labour and are living and working in decent conditions with all the basic necessities of life provided to them, the State Government should not baulk an inquiry by the court when a complaint is brought by a citizen, bat it should be anxious to satisfy the court and through the court, the people of the country, that it is discharging its constitutional obligation fairly and adequately and the workmen are being ensured social and economic justice. We have on more occasions thin one said that public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the signature time of our Constitution. The Government and its officers must welcome public interest litigation, because it would provide them an occasion to examine whether the poor and the down-trodden are getting their social and economic entitlements or whether they are continuing to remain victims of deception and exploitation at the hands of strong and powerful sections of the community and whether social and
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economic justice has become a meaningful reality for them or it has remained merely a teasing illusion and a promise of unreality, so that in case the complaint in the public interest litigation is found to be true, they can in discharge of their constitutional obligation root out exploitation and injustice and ensure to the weaker sections their rights and entitlements. When the Court entertains public interest litigation, it does not do so in a cavilling spirit or in a confrontational mood or with a view to tilting at executive authority or seeking to usurp it but its attempt is only to ensure observance of social and economic rescue programmes, legislative as well as executive, framed for the benefit of the have-nots and the handicapped and to protect them against violation of their basic human rights, which is also the constitutional obligation of the executive. The Court is thus merely assisting in the realisation of the constitutional objectives.
Moreover, when a complaint is made on behalf of workmen that they are held in bondage and are working and living in miserable conditions without any proper or adequate shelter over their heads, without any protection against sun and rain, without two square meals per day and with only dirty water from a nullah to drink, it is difficult to appreciate how such a complaint can be thrown out on the ground that it is not violative of the fundamental right of the workmen. It is the fundamental right of every one in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullen (1981) 1 SCC 608 to live with human dignity, free from exploitation. This right to live with human dignity enshrined in
Article 21 derives its life breath from the Directive Principles of State Policy and particularly
Clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State neither the Central
Government nor any State Government-has the right to take any action which will deprive a person of the enjoyment of these basic essentials.
Since the Directive Principles of State Policy contained in Clauses (e) and (f) of Article
39, Article 41 and 42 are not enforceable in a court of law, it may not be possible to compel the State through the judicial process to make provision by statutory enactment or executive fiat for ensuring these basic essentials which go to make up a life of human dignity but where legislation is already enacted by the State providing these basic requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 21, more so in the context of Article 256 which provides that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State. We have already pointed out in Asiad Construction Worker (1982) 3 SCC 235 that the State is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when he belongs to the weaker sections of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. The Central Government is therefore bound to ensure observance of various social welfare and labour laws enacted by Parliament for the purpose of securing to the workmen a life of basic human dignity in compliance with the Directive Principles of State Policy.
It must also follow as a necessary corollary that the State of Haryana in which the stone quarries are vested by reason of Haryana Minerals (Vesting of Rights) Act 1973 and which is therefore the owner of the mines cannot while giving its mines for stone quarrying operations, permit workmen to be denied the benefit of various social welfare and labour laws enacted
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with a view to enabling them to live a life of human dignity. The State of Haryana must therefore ensure that the mine-lessees or contractors, to whom it is giving its mines for stone quarrying operations, observe various social welfare and labour laws enacted for the benefit of the workmen. This is a constitutional obligation which can be enforced against the Central
Government and the State of Haryana by a writ petition under Article 32 of the Constitution.
The next preliminary objection urged by the learned Additional Solicitor General on behalf of the State of Haryana and Mr. Phadke on behalf of one of the mine-lessees was that the court had no power to appoint either Mr. Ashok Srivastava and Mr. Ashok Panda or Mr.
Patwardhan as commissioners and the Reports made by them had no evidentiary value since what was stated in the Reports was based only on ex-parte statements which had not been tested by cross-examination. The learned Additional Solicitor General as also Mr. Phadke relied on Order XLVI of the Supreme Court Rules 1966 which, as its heading shows, deals with commissions and contended that since the commissions issued by the court in the present case did not fall within the terms of any of the provisions of Order XLVI, they were outside the scope of the power of the court and the court was not entitled to place any reliance on their reports for the purpose of adjudicating the issues arising in the writ petition. This arguemnt, plausible though it may seem at first sight, is in our opinion not well founded and must be rejected. It is based upon a total misconception of the true nature of a proceeding under Article
32 of the Constitution.
Article 32 is so frequently used by lawyers and judges for enforcement of fundamental rights without any preliminary objection against its invocation being raised on behalf of the
State, that we have rarely any occasion to examine its language and consider how large is the width and amplitude of its dimension and range. We are so much accustomed to the concepts of Anglo-Saxon jurisprudence which require every legal proceeding including a proceeding for a high prerogative writ to be cast in a rigid or definitive mould and insist on observance of certain well settled rules of procedure, that we implicitly assume that the same sophisticated procedureal rules must also govern a proceeding under Article 32 and the Supreme Court cannot permit itself to be freed from the shackles of these rules even if that be necessary for enforcement of a fundamental right. It was on the basis of this impression fostered by long association with the Anglo-Saxon system of administration of justice that for a number of years this Court had taken the view that it is only a person whose fundamental right is violated who can approach the Supreme Court for relief under Article 32 or in other words, he must have a cause of action for enforcement of his fundamental right. It was only in the year 1981 in the Judges Appointment and Transfer Case [1982]2SCR365 that this Court for the first time took the view that where a person or class of persons to whom legal injury is caused by reason of violation of a fundamental right is unable to approach the court for judicial redress on account of poverty or disability or socially or economically disadvantaged position, any member of the public acting bona fide can move the court for relief under Article 32 and a fortiorari, also under Article 226, so that the fundamental rights may become meaningful not only for the rich and the well-to-do who have the means to approach the court but also for the large masses of people who are living a life of want and destitution and who are by reason of lack of awareness, assertiveness and resources unable to seek judicial redress. This view which we took in the Judges Appointment and Transfer Case is clearly within the terms of Article
32 if only we look at the language of this Article uninfluenced and uninhibited by any preconceptions and prejudices or any pre-conceived notions. …
While interpreting Article 32, it must be borne in mind that our approach must be guided not by any verbal or formalistic canons of construction but by the paramount object and purpose for which this Article has been enacted as a Fundamental Right in the Constitution and its interpretation must receive illumination from the trinity of provisions which permeate
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and energise the entire Constitution namely, the Preamble, the Fundamental Rights and the
Directive Principles of State Policy. Clause (1) of Article 32 confers the right to move the
Supreme Court for enforcement of any of the fundamental rights, but it does not say as to who shall have this right to move the Supreme Court nor does it say by what proceedings the
Supreme Court may be so moved. There is no limitation in the words of Clause (1) of Article
32 that the fundamental right which is sought to be enforced by moving the Supreme Court should be one belonging to the person who moves the Supreme Court nor does it say that the
Supreme Court should be moved only by a particular kind of proceeding. It is clear on the plain language of Clause (1) of Article 32 that whenever there is a violation of a fundamental right, any one can move the Supreme Court for enforcement of such fundamental right. Of course, the Court would not, in exercise of its discretion, intervene at the instance of a meddlesome interloper or busy body and would ordinarily insist that only a person whose fundamental right is violated should be allowed to activise the court, but there is no fetter upon the power of the court to entertain a proceeding initiated by any person other than the one whose fundamental right is violated, though the court would not ordinarily entertain such a proceeding, since the person whose fundamental right is violated can always approach the court and if he does not wish to seek judicial redress by moving the court, why should some one else be allowed to do so on his behalf. This reasoning however breaks down when we have the case of a person or class of persons whose fundamental right is violated but who cannot have resort to the court on account of their poverty or disability or socially or economically disadvantaged position and in such a case, therefore, the court can and must allow any member of live public acting bona fide to espouse the cause of such person or class of persons and move the court for judicial enforcement of the fundamental right of such person or class of persons. This does not violate, in the slightest measure, the language of the constitutional provision enacted in Clause (1) of Article 32.
Then again Clause (1) of Article 32 says that the Supreme Court can be moved for enforcement of a fundamental right by any 'appropriate ' proceeding. There is no limitation in regard to the kind of proceeding envisaged in Clause (1) of Article 32 except that the proceeding must be "appropriate" and this requirement of appropriateness must be judged in the light of the purpose for which the proceeding is to be taken, namely, enforcement of a fundamental right. The Constitution makers deliberately did not lay down any particular form of proceeding for enforcement of a fundamental right nor did they stipulate that such proceeding should conform to any rigid pattern or straight jacket formula as, for example, in
England, because they knew that in a country like India where there is so much of poverty, ignorance, illiteracy, deprivation and exploitation, any insistence on a rigid formula of proceeding for enforcement of a fundamental right would become self-defeating because it would place enforcement of fundamental rights beyond the reach of the common man and the entire remedy for enforcement of fundamental rights which the Constitution makers regarded as so precious and invaluable that they elevated it to the status of a fundamental right, would become a more rope of sand so far as the large masses of the people in this country are concerned. The Constitution makers therefore advisedly provided in Clause (1) of Article 32 that the
Supreme Court may be moved by any 'appropriate ' proceeding, 'appropriate ' not in terms of any particular form but 'appropriate ' with reference to the purpose of the proceeding. That is the reason why it was held by this Court in the Judges Appointment and Transfer Case tint where a member of the public acting bona fide moves the Court for enforcement of a fundamental right on behalf of a person or class of persons who on account of poverty or disability or socially or economical disadvantaged position cannot approach the court for relief, such member of the public may move the court even by just writing a letter, because it would not be right or fair to expect a person acting pro bono publico to incur expenses out of
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his own pocket for going to a lawyer and preparing a regular writ petition for being filed in court for enforcement of the fundamental right of the poor and deprived sections of the community and in such a case, a letter addressed by him can legitimately be regarded as an
"appropriate" proceeding.
But the question then arises as to what is the power which may be exercised by the
Supreme Court when it is moved by an "appropriate" proceeding for enforcement of a fundamental right. The only provision made by the Constitution makers in this behalf is to be found in Clause (2) of Article 32 which confers power on the Supreme Court "to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, which-ever may be appropriate, for enforcement of any of the fundamental rights. It will be seen that the power conferred by Clause (2) of Article
32 is in the widest terms. It is not confined to issuing the high prerogative writs of habeas corpus, mandamus, prohibition, certiorari and quo quarranto, which are hedged in by strict conditions differing from one writ to another and which to quote the words spoken by Lord
Atkin in United Australia Limited v. Barclays Bank Ltd. [1941] AC 1 in another context often
"stand in the path of justice Clanking their mediavel chains". But it is much wider and includes within its matrix, power to issue any directions, orders or writs which may be appropriate for enforcement of the fundamental right in question and this is made amply clear by the inclusive clause which refers to in the nature of habeas corpus, mandamus, prohibition, quo warranto and cartiorari. It is not only the high prerogative writs of mandamus is, habeas corpus, prohibition, quo warranto and certiorari which can be issued by the Supreme Court but also writs in the nature of these high prerogative writs and therefore even if the conditions for issue of any of these high prerogative writs are not fulfilled, the Supreme Court would not be constrained to fold its hands in despair and plead its inability to help the citizen who has come before it for judicial redress, but would have power to issue any direction, order or writ including a writ in the nature of any high prerogative writ.
This provision conferring on the Supreme Court power to enforce the fundamental rights in the widest possible terms shows the anxiety of the Constitution makers not to allow any procedureal technicalities to stand in the way of enforcement of fundamental rights. The
Constitution makers clearly intended that the Supreme Court should have the amplest power to issue whatever direction, order or writ may be appropriate in a given case for enforcement of a fundamental right But what procedure shall be followed by the Supreme Court in exercising the power to issue such direction, order or writ? That is a matter on which the
Constitution is silent and advisedly so, because the Constitution makers never intended to fetter the discretion of the Supreme Court to evolve a procedure appropriate in the circumstances of a given case for the purpose of enabling it to exercise its power of enforcing a fundamental right. Neither Clause (2) of Article 32 nor any other provision of the
Constitution requires that any particular procedure shall be followed by the Supreme Court in exercising its power to issue an appropriate direction, order or writ. The purpose for which the power to issue an appropriate direction, order or writ is conferred on the Supreme Court is to secure enforcement of a fundamental right and obviously therefore, whatever procedure is necessary for fulfilment of the purpose must be permissible to the Supreme Court. It is not at all obligatory that an adversarial procedure, where each party produces his own evidence tested by cross examination by the other side and the judge sits like an umpire and decides the case only on the basis of such material as may be produced before him by both parties, must be followed in a proceeding under Article 32 for enforcement of a fundamental right. In fact, there is no such constitutional compulsion enacted in Clause (2) of Article 32 or in any other pant of the Constitution. It is only because we have been following the adversarial procedure for over a century owing to the introduction of the Anglo-Saxon system of jurisprudence under the British Rule that it has become a part of our conscious as well as sub-conscious thinking
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that every judicial proceeding must be cast in the mould of adversarial procedure and that justice cannot be done unless the adversarial procedure is adopted. But it may be noted that there is nothing sacrosanct about the adversarial procedure and in fact it is not followed in many other countries where the civil system of law prevails. The adversarial procedure with evidence led either party and tested by cross-examination by the other party and the judge playing a passive role has become a part of our legal system because it is embodied in the
CPC and the Indian Evidence Act.
But these statutes obviously have no application where a new jurisdiction is created in the
Supreme Court for enforcement of a fundamental right. We do not think we would be justified in imposing any restriction on the power of the Supreme Court to adopt such procedure as it thinks fit in exercise of its new jurisdiction, by engrafting adversarial procedure on it when the Constitution makers have deliberately chosen not to insist on any such requirement and instead, left it open to the Supreme Court to follow such procedure as it thinks appropriate for the purpose of securing the end for which the power is conferred, namely, enforcement of a fundamental right. The adversarial procedure has, in fact, come in for a lot of criticism even in the country of its origin, and there is an increasing tendency even in that country to depart from its strict norms. Lord Delin speaking of the English judicial system said: "If our methods were as antiquated as our legal methods, we should be a bankrupt country". And Foster Q.C. observed: "I think the whole English system is non-sense. I would go to the root of it-the civil case between two private parties is a mimic battle … conducted according to rules of evidence." There is a considerable body of juristic opinion in our country also which believes that strict adherence to the adversarial procedure can some times lead to injustice, particularly where the parties are not evenly balanced in social or economic strength.
Where one of the parties to a litigation belongs to a poor and deprived section of the community and does not possess adequate social and material resources, he is bound to be at a disadvantage as against a strong and powerful opponent under the adversary system of justice, because of his difficulty in getting competent legal representation and more than anything else, his inability to produce relevant evidence before the court. Therefore, when the poor come before the court, particularly for enforcement of their fundamental rights, it is necessary to depart from the adversarial procedure and to evolve a new procedure which will make it possible for the poor and the weak to bring the necessary in material before the court for the purpose of securing enforcement of their fundamental rights. It must be remembered that the problems of the poor which are now coming before the court are qualitatively different from those which have hither to occupied the attention of the court and they need a different kind of lawyering skill and a different kind of judicial approach. If we blindly follow the adversarial procedure in their case, they would never be able to enforce their fundamental rights and the result would be nothing but a mockery of the Constitution. We have therefore to abandon the laissez faire approach in the judicial process particularly where it involves a question of enforcement of fundamental rights and forge new tools devise new methods and adopt new strategies for the purpose of making fundamental rights meaningful for the large masses of people. And this is clearly permissible on the language of Clause (2) of Article 32 because the Constitution makers while enacting that clause have deliberately and advisedly not used any words restricting the power of the court to adopt any procedure which it considers appropriate in the circumstances of a given case for enforcing a fundamental right.
It is true that the adoption of this non-traditional approach is not likely to find easy acceptance from the generality of lawyers because their minds are conditioned by constant association with the existing system of administration of justice which has become ingrained in them as a result of long years of familiarity and experience and become part of their mental make up and habit and they would therefore always have an unconscious predilection for the
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prevailing system of administration of justice. But if we want the fundamental rights to become a living reality and the Supreme Court to become a real sentinel on the quivive, we must free ourselves from the shackles of outdated and outmoded assumptions and bring to bear on the subject fresh outlook and original unconventional thinking.
Now it is obvious that the poor and the disadvantaged cannot possibly produce relevant material before the court in support of their case and equally where an action is brought on their behalf by a citizen acting pro 'bono publico, it would be almost impossible for him to gather the relevant material and place it before the court. What is the Supreme Court to do in such a case? Would the Supreme Court not be failing in discharge of its constitutional duty of enforcing a fundamental right if it refuses to intervene because the petitioner belonging to the underprivileged segment of society or a public spirited citizen espousing his cause is unable to produce the relevant material before the court. If the Supreme Court were to adopt a passive approach and decline to intervene in such a case because relevant material has not been produced before it by the party seeking its intervention the fundamental rights would remain merely a teasing illusion so far as the poor and disadvantaged sections of the community are concerned. It is for this reason that the Supreme Court has evolved the practice of appointing commissions for the purpose of gathering facts and data in regard to a complaint of breach of fundamental right made on behalf of the weaker sections of the society.
The Report of the commissioner would furnish prima facie evidence of the facts and data gathered by the commissioner and that is why the Supreme Court is careful to appoint a responsible person as commissioner to make an inquiry or investigation into the facts relating to the complaint. It is interesting to note that in the past the Supreme Court has appointed sometimes a district magistrate, sometimes a district Judge, sometimes a professor of law, sometimes a journalist, sometimes an officer of the court and sometimes an advocate practising in the court, for the purpose of carrying out an inquiry or investigation and making report to the court because the commissioner appointed by the Court must be a responsible person who enjoys the confidence of the court and who is expected to carry out his assignment objectively and impartially without any predilection or prejudice. Once the report of the
Commissioner is received, copies of it would be supplied to the parties so that either party, if it wants to dispute any of the facts or data stated in the Report, may do so by filing an affidavit and the court then consider the report of the commissioner and the affidavits which may have been filed and proceed to adjudicate upon the issue arising in the writ petition, It would be entirely for the Court to consider what weight to attach to the facts and data stated in the report of the commissioner and to what extent to act upon such facts and data. But it would not be correct to say that the report of the commissioner has no evidentiary value at all, since the statements made in it are not tested by cross-examination. To accept this contention would be to introduce the adversarial procedure in a proceeding where in the given situation, it is totally inapposite. The learned Additional Solicitor General and Mr. Phadke relied on Order XXVI of the CPC and Order XLVI of the Supreme Court Rules 1966 for the purpose of contending that a commission can be appointed by the Supreme Court only for the purpose of examining witnesses, making legal investigations and examining accounts and the Supreme Court has no power to appoint a commission for making an inquiry or investigation into facts relating to a complaint of violation of a fundamental right in a proceeding under Article 32. Now it is true that Order XLVI of the Supreme Court Rules 1966 makes, the provisions of Order XXVI of the CPC, except Rules 13, 14, 19, 20, 21 and 22 applicable to the Supreme Court and lays down the procedure for an application for issue of a commission, but Order XXVI is not exhaustive and does not detract from the inherent power of the Supreme Court to appoint a conmission, if the Appointment of such commission is found necessary for the purpose of securing enforcement of a fundamental right in exercise of its constitutional jurisdiction under
Article 32. Order XLVI of the Supreme Court Rules 1966 cannot in any way militate against
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the power of the Supreme Court under Article 32 and in fact Rule 6 of Order XLVII of the
Supreme Court Rules 1966 provides that nothing in those Rules "shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of justice." We cannot therefore accept the contention of the learned Addl. Solicitor
General and Mr. Phadke that the court acted beyond its power in appointing M/s. Ashok
Srivastava and Ashok Panda as commissioners in the first instance and Dr. Patwardhan as commissioner at a subsequent stage for the purpose of making an inquiry into the conditions of workmen employed in the stone quarries. The petitioner in the writ petition specifically alleged violation of the fundamental rights of the workmen employed in the stone quarries under Articles 21 and 23 and it was therefore necessary for the court to appoint these commissioners for the purpose of inquiring into the facts related to this complaint. The Report of M/s. Ashok Srivastava and Ashok Panda as also the Report of Dr Patwardhan were clearly documents having evidentiary value and they furnished prima facie evidence of the facts and data stated in those Reports. Of course, as we have stated above, it will be for us to consider what weight we should attach to the facts and data contained in these Reports in the light of the various affidavits filed in the proceedings.
We may point out that what we have said above in regard to the exercise of jurisdiction by the Supreme Court under Article 32 must apply equally in relation to the exercise of jurisdiction by the High Courts under Article 226, for the latter jurisdiction is also a new constitutional jurisdiction and it is conferred in the same wide terras as the jurisdiction under
Article 32 and the same powers can and must therefore be exercised by the High Courts while exercising jurisdiction under Article 226. In fact, the jurisdiction of the High Courts under
Article 226 is much wider, because the High Courts are required to exercise this jurisdiction not only for enforcement of a fundamental right but also for enforcement of any legal right and there are many rights conferred on the poor and the disadvantaged which are the creation of statute and they need to be enforced as urgently and vigorously as fundamental rights.
Having disposed of these preliminary objections, we shall now proceed to consider the writ petition on merits. …
………
Lastly, we must consider the provisions of the Bonded Labour System (Abolition) Act
1976. We have already pointed out that many of the States are not prepared to admit the existence of bonded labour in their territories and the State of Haryana is no exception. But, in order to determine whether there is any bonded labour in the stone quarries and stone crushers in the Faridabad area of the State of Haryana, it is necessary to examine some of the relevant provisions of the Bonded Labour System (Abolition) Act 1976. This Act was enacted with a view to giving effect to Article 23 of the Constitution which prohibits traffic in human beings and begar and other similar forms of forced labour. We have had occasion to consider the true scope and dimension of this Article of the Constitution in People 's Union for
Democratic Rights v. Union of India (1982) 3 SCC 235 commonly known as the Asiad
Workers case and it is not necessary for us to say anything more about it in the present judgment. Suffice it to state that this Act is intended to strike against the system of bonded labour which has been a shameful scar on the Indian social scene for decades and which has continued to disfigure the life of the nation even after independence. The Act was brought into force through out the length and breadth of the country with effect from 25th October 1975, which means that the Act has been in force now for almost 8 years and if properly implemented, it should have by this time brought about complete identification, freeing and rehabilitation of bonded labour. But as official, semi-official and non-official reports show, we have yet to go a long way in wiping out this outrage against humanity. Clause (d) of Section
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2 defines "bonded debt" to mean an advance obtained or presumed to have been obtained, by a bonded labourer, under or in pursuance of, the bonded labour system. The expression 'bonded labourer ' is defined in Clause (f) to mean "a labourer who incurs, or has or is presumed to have incurred a bonded debt". Clause (g) defines "bonded labour system" to mean: the system of forced, or partly forced, labour under which a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect that,(i) in consideration of an advance obtained by him or by any of his lineal ascendants or descendants (whether or not such advance is evidenced by any document) and in consideration of the interest, if any, due on such advance, or
(ii) in pursuance of any customary or social obligation, or
(iii) for any economic consideration received by him or by any of his lineal ascendants or descendants, or he would(1) render, by himself or through any member of his family, or any person dependent on him, labour or service to the creditor, or for the benefit of the creditor, for a specified period or for an unspecified period, either without wages or for nominal wages, or
(2) forfeit the freedom of employment or other means of livelihood for a specified period or for an un-specified period, or
(3) forfeit the right to move freely throughout the territory of India, or
(4) forfeit the right to appropriate or sell at market value any of his property of his product of his labour or the labour of a member of his family or any person dependent on him.
The expression "nominal wages" is defined in Clause (i) of Section 2 to mean, in relation to any labour, a wage which is less than(a) the minimum wages fixed by the Government, in relation to the same or similar labour, under any law for the time being in force, and
(b) where no such wage has been fixed in relation to any form of labour, the wages that are normally paid, for the same or similar labour, to the labourers working in the same locality.
Section 4 is the material section which provides for abolition of bonded labour system and it runs as follows:
4(1) On the commencement of this Act, the bonded labour system shall stand abolished and every bonded labourer shall, on such commencement, stand freed and discharged from any obligation to render any bonded labour.
(2) after the commencement of this Act, no person shall(a) make any advance under, or in pursuance of, the bonded labour system, or
(b) compel any person to render any bonded labour or other form of forced labour.
Section 5 invalidates any custom or tradition or any contract agreement or other instrument by virtue of which any person or any member of the family or dependent of such person is required to do any work or render any service as a bonded labourer. Section 6 provides inter alia that on the commencement of the Act, every obligation of a bonded labourer to repay any bonded debt or such part of any bonded debt as remains unsatisfied immediately before such commencement, shall be deemed to have been extinguished. There are certain other consequential provisions in Section 7 to 9 but it is not necessary to refer to them. Sections
10 to 12 impose a duty on every District Magistrate and every officer to whom power may be delegated by him, to inquire whether after the commencement of the Act, any bonded labour
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system or any other form of forced labour is being enforced by or on behalf of, any person resident within the local limits of his jurisdiction and if, as a result of such inquiry, any person is found to be enforcing the bonded labour system or any other system of forced labour, he is required forthwith to take the necessary action to eradicate the enforcement of such forced labour. Section 15 provides for Constitution of a Vigilance Committee in each District and each sub-division of a District and sets out what shall be the composition of each Vigilance
Committee. The functions of the Vigilance Committee are set out in Section 14 and among other things, that Section provides that the Vigilance Committee shall be responsible inter alia to advise the District Magistrate as to the efforts made and action taken, to ensure that the provisions of the Act or any Rule made thereunder are properly implemented, to provide for the economic and social rehabilitation of the freed bonded labourers and to keep an eye on the number of offences of which cognizance has been taken under the Act. Then comes Section
15 which lays down that whenever any debt is claimed by any labourer or a Vigilance
Committee to be a bonded debt, the burden of proof that such debt is not a bonded debt shall lie on the creditor. These are some of the material provisions of the Bonded Labour System
(Abolition) Act 1976 which need to be considered.
It is a matter of regret that though Section 13 provides for Constitution of a Vigilance
Committee in each District and each sub-division of a District, the Government of Haryana, for some reason or the other, did not constitute any Vigilance Committee until its attention was drawn to this requirement of the law by this Court. It may be that according to the
Government of Haryana there were not at any time any bonded labourers within its territories, but even so Vigilance Committees are required by Section 13 to be constituted because the function of the Vigilance Committee is to identify bonded labourers, if there are any, and to free and rehabilitate them and it would not be right for the State Government not to constitute
Vigilance Committees on the assumption that there are no bonded labour at all. But we are glad to find that the Government of Haryana has now constituted a Vigilance Committee in each District. It does not appear from the record whether a Vigilance Committee his been constituted also in each sub-division of a District but we have no doubt that the Government of Haryana will without any delay and at any rate within six weeks from today constituees a
Vigilance Committee in each sub-division and thus comply with the requirement of Section
13 of the Act. We may point out that in constituting Vigilance Committee in each District and sub-division, the Haryana Government would do well to include representatives of nonpolitical social action groups operating at the grass root level, for it is only through such social action groups and voluntary agencies that the problem of identification of bonded labour can be effectively solved.
It was contended by the learned Additional Solicitor General on behalf of the State of
Haryana that in the stone quarries and stone crushers there might be forced labourers but they were not bonded labourers within the meaning of that expression as used in the Act, since a labourer would be a bonded labourer only if he has or is presumed to have incurred a bonded debt and there was nothing in the present case to show that the workmen employed in the stone quarries and stone crushers had incurred or could be presumed to have incurred any bonded debt. It was not enough, contended the learned Additional Solicitor General, for the petitioner merely to show that the workmen were providing forced labour in that they were not allowed to leave the premises of the establishment, but it was further necessary to show that they were working under the bonded labour system. The learned Additional Solicitor
General also submitted that in any event, even if the workmen filed affidavits to the effect that they had taken advances from thekedar or jamadar and or mine lessees and/or stone crusher owners and they were not allowed to leave the premises of the establishment until the advances were paid of, that would not be enough evidence for the Court to hold that they were bonded labourers, because the mine-lessees and stone crusher owners had no opportunity to cross-
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examine the workmen making such affidavits. This contention was seriously pressed by the learned Additional Solicitor General on behalf of the State of Haryana, but as we shall presently show, there is no substance in this contention. We may point out that in the course of the arguments we did suggest to the learned Additional Solicitor General that even if the workmen were not bonded labourers in the strict sense of the term but were merely forced to provide labour, should the State Government not accept liability for freeing and rehabilitating them, particularly in view of the Directive Principles of State Policy. The State of Haryana was however not prepared to come forward with any proposal in this behalf.
Now it is clear that bonded labour is a form of forced labour and Section 12 of the Bonded
Labour System (Abolition) Act 1976 recognises this self-evident proposition by laying a duty on every District Magistrate and every officer specified by him to inquire whether any bonded labour system or any other form of forced labour is being enforced by or on behalf of any person and, if so, to take such action as may be necessary to eradicate the enforcement of such forced labour. The thrust of the Act is against the continuance of any form of forced labour. It is of course true that, strictly speaking, a bonded labourer means a labourer who incurs or has or is presumed to have incurred a bonded debt and a bonded debt means an advance obtained or presumed to have been obtained by a bonded labourer under or in pursuance of the bonded labour system and it would therefore appear that before a labourer can be regarded as a bonded labourer, he must not only be forced to provide labour to the employer but he must have also received an advance or other economic consideration from the employer unless he is made to provide forced labour in pursuance of any custom or social obligation or by reason of his birth in any particular caste or community. It was on the basis of this definitional requirement that the learned Additional Solicitor General on behalf of the State of Haryana put forward the argument that even if the workmen employed in the stone quarries and stone crushers were being compelled to provide forced labour, they were not bonded labourers, since it as not shown by them or by the petitioner that they were doing so in consideration of an advance or other economic consideration received from the mine-lessees and owners of stone crushers.
Now if this contention of the learned Additional Solicitor General were well founded, it would become almost impossible to enforce the provisions of the Bonded Labour System
(Abolition) Act 1976 because in every case where bonded labourers are sought to be identified for the purpose of release and rehabilitation under the provisions of the Act, the State
Authorities as also the employer would be entitled to insist that the bonded labourers must first prove that they are providing forced labour in consideration of an advance or other economic consideration received by them and then only they would be eligible of the benefits provided under the Act and this would make it extremely difficult, if not impossible, for the labourers to establish that they are bonded labourers because they would have no evidence at all to prove that any advance or economic consideration was provided to them by the employer and since employment of bonded labourers is a penal offence under the Act the employer would immediately, without any hesitation, disown having given any advance or economic consideration to the bonded labourers. It is indeed difficult to understand how the State
Government which is constitutionally mandated to bring about change in the life conditions of the poor and the down-trodden and to ensure social justice to them could possibly take up the stand that the labourers must prove that they are made to provide forced labour in consideration of an advance or other economic consideration received from the employer and are therefore bonded labourers.
It is indeed a matter of regret that the State Government should have insisted on a formal, rigid and legalistic approach in the matter of a statute which is one of the most important measures for ensuring human dignity to these unfortunate specimens of humanity who are exiles of civilization and who are leading a life of abject misery and destitution. It would be
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cruel to insist that a bonded labourer in order to derive the benefits of this social welfare legislation, should have to go through a formal process of trial with the normal procedure for recording of evidence. That would be a totally futile process because it is obvious that a bonded labourer can never stand up to the rigidity and formalism of the legal process due to his poverty, illiteracy and social and economic backwardness and if such a procedure were required to be followed, the State Government might as well obliterate this Act from the statute book. It is now statistically established that most of bonded labourers are members of
Scheduled Castes and Scheduled Tribes or other backward classes and ordinary course of human affairs would show, indeed judicial notice can be taken of it, that there would be no occasion for a labourer to be placed in a situation where he is required to supply forced labour for no wage or for nominal wage, unless he has received some advance or other economic consideration from the employer and under the pretext of not having returned such advance or other economic consideration, he is required to render service to the employer or is deprived of his freedom of employment or of the right to move freely wherever he wants. Therefore, whenever it is shown that a labourer is made to provide forced labour, the Court would raise a presumption that he is required to do so in consideration of an advance or other economic consideration received by him and he is therefore a bonded labourer. This presumption may be rebutted by the employer and also by the State Government if it so chooses but unless and until satisfactory material is produced for rebutting this presumption, the Court must proceed on the basis that the labourer is a bonded labourer entitled to the benefit of the provisions of the Act. The State Government cannot be permitted to repudiate its obligation to identify, release and rehabilitate the bonded labourers on the plea that though the concerned labourers may be providing forced labour, the State Government does not owe any obligation to them unless and until they show in an appropriate legal proceeding conducted according to the rules of adversary system of justice, that they are bonded labourers.
The first question that arises in regard to the implementation of the Bonded Labour System
(Abolition) Act 1976 is that of identification of bonded labour. One major handicap which impedes the identification of bonded labour is the reluctance of the administration to admit the existence of bonded labour, even where it is prevalent. It is therefore necessary to impress upon the administration that it does not help to ostrich-like bury its head in the sand and ignore the prevalence of bonded labour, for it is not the existence of bonded labour that is a slur on the administration but its failure to eradicate it and moreover not taking the necessary steps for the purpose of wiping out this blot on the fair name of the State is a breach of its constitutional obligation. We would therefore direct the Government of Haryana and also suggest to the other State Governments, to take steps to sensitised the officers concerned with the implementation of the Act to this acute human problems and its socio-economic parameters. Moreover it may be noted that the District Magistrates have a central role to play under the provisions of the Act and the State Governments would therefore do well to instruct the District Magistrates to take up the work of identification of bonded labour as one of their top priority tasks. There are certain areas of concentration of bonded labour which can be easily identified on the basis of various studies and reports made by governmental authorities, social action groups and social scientists from time to time. These areas of concentration of bonded labour are mostly to be found in stonequarries, brick kilns and amongst agricultural landless labourers and such areas must be mapped out by each State Government and task forces should be assigned for identification and release of bonded labour. Labour camps should be held periodically in these areas with a view to educating the labourers and for this purpose, the assistance of the National Labour Institute may be taken, because the National
Labour Institute has the requisite expertise and experience of holding such camps and it should be associated with the organisation and conduct of such camps and in each such camp, individuals with organisational capability or potential should be identified and given training
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in the work of identification and release of bonded labour. More importantly non-political social action groups and voluntary agencies and particularly those with a record of honest and competent service for Scheduled Castes and Scheduled Tribes, agricultural labourers and other unorganised workmen should be involved in the task of identification and release of bonded labourers, for it is primarily through such social action groups and voluntary agencies alone that it will be, possible to eradicate the bonded labour system, because social action groups and voluntary agencies comprising men and women dedicated to the cause of emancipation of bonded labour will be able to penetrate through the secrecy under which very often bonded labourers are required to work and discover the existence of bonded labour and help to identify and release bonded labourers. We would therefore direct the Vigilance
Committees as also the District Magistrates to take the assistance of non-political social action groups and voluntary agencies for the purpose of ensuring implementation of the provisions of the Bonded Labour System (Abolition) Act 1976.
The other question arising out of the implementation of the Bonded Labour System
(Abolition) Act 1976 is that of rehabilitation of the released bonded labourers and that is also a question of the greatest importance, because if the bonded labourers who are identified and freed, are not rehabilitated, their condition would be much worse than what it was before during the period of their serfdom and they would become more exposed to exploitation and slide back once again into serfdom even in the absence of any coercion. The bonded labourer who is released would prefer slavery to hunger, a world of 'bondage and (illusory) security ' as against a world of freedom and starvation. The State Governments must therefore concentrate on rehabilitation of bonded labour and evolve effective programmes for this purpose. Indeed they are under an obligation to do so under the provisions of the Bonded Labour System
(Abolition) Act 1976. It may be pointed out that the concept of rehabilitation has the following four main features as admirably set out in the letter dated 2nd September 1982 addressed by the Secretary. Ministry of Labour, Government of India to the various States Governments:
(i) Psychological rehabilitation must go side by side will be social and economic rehabilitation; (ii) The physical and economic rehabilitation has 15 major components namely allotment of house-sites and agricultural land, land development, provision of low cost dwelling units, agriculture, provision of credit, horticulture, animal husbandry, training for acquiring new skills and developing existing skills, promoting traditional arts and crafts, provision of wage employment and enforcement of minimum wages, collection and processing of minor forest produce, health, medical care and sanitation, supply of essential commodities, education of children of bonded labourers and protection civil rights;
(iii) There is scope for bringing about an integration among the various central and centrally sponsored schemes and the on-going schemes of the State
Governments for a more qualitative rehabilitation. ' The essence of such integration is to avoid duplication i.e. pooling resources from different sources for the same purpose. It should be ensured that while funds are not drawn from different sources for the same purpose drawn from different sectors for different components of the rehabilitation scheme are integrated skillfully; and
(iv) While drawing up any scheme/programme of rehabilitation of freed bonded labour, the latter must necessarily be given the choice between the various alternatives for their rehabilitation and such programme should be finally selected for execution as would need the total requirements of the families of freed bonded labourers to enable them to cross the poverty line on the one hand and to prevent them from sliding back to debt bondage on the other.
We would therefore direct the Government of Haryana to draw up a scheme on programme for "a better and more meaningful rehabilitation of the freed bonded labourers" in the light of the above guidelines set out by the Secretary to the Government of India, Ministry
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of Labour in his letter dated 2nd September 1982. The other State Governments are not parties before us and hence we cannot give any direction to them, but we hope and trust that they will also take suitable steps for the purpose of securing identification, release and rehabilitation of bonded labourers on the lines indicated by us in this Judgment.
We are not at all satisfied that the stand taken on behalf of the State of Haryana that there is no bonded labour at all in the stone quarries and stone crushers is correct. The Report of
M/s. Ashok Srivastava and Ashok Panda shows that, according to the statements given by some of the workers, they were not allowed to leave the stone quarries and were providing forced labour and this Report also stated that several persons working in the Ghodhokor and
Lakarpur stone quarries were forcibly kept by the contractors and they were not allowed to move out of their places and were bonded labourers.
The petitioner also filed the affidavits of a large number of workers on 24th August 1982, each of them stating that he is under heavy debt of the thekedar who does not allow him to leave the premises without settling the account. We cannot ignore this material which has been placed before us and unquestioningly accept the statement made on behalf of the State of
Haryana that there is no bonded labour in the stone quarries and stone crushers. But at the same time, we do not think that it would be right for us on the basis of this material to come to a definite finding that these workers whose names are given in the Report of M/s. Ashok
Srivastava and Ashok Panda or who have filed affidavits are providing forced labour or are bonded labourers. It is necessary to direct a further inquiry for the purpose of ascertaining whether any of the labourers working in the stone quarries and stone crushers in Faridabad
District are bonded labourers in the light of the law laid down by us in this judgment.
We would therefore direct Shri Laxmi Dhar Misra, Joint Secretary in the Ministry of
Labour, Government of India, who has considerable experience of the work of identification, release and rehabilitation of bonded labourers, to visit the stone quarries and stone crushers in
Faridabad District and ascertain by enquiring from the labourers in each stone quarry or stone crusher whether any of them are being forced to provide labour and are bonded laboureres.
While making this inquiry, Shri Laxmi Dhar Misra will take care to see that when he interviews the labourers either individually or collectively, neither the mine-lessees or owners of stone crushers nor the thekedar of jamadar nor any one else is present. Shri Laxmi Dhar
Misra will prepare in respect of each stone quarry or stone crusher a statement showing the names and particulars of those who, according to the inquiry made by him, are bonded labourers and he will also ascertain from them whether they want to continue to work in the stone quarry or stone crusher or they want to go back to their homes and if they want to go back, the District Magistrate of Faridabad will on receipt of the statement from Shri Laxmi
Dhar Misra, make necessary arrangements for releasing them and provide for their transportation back to their hromes and for this purpose the State Government shall make the requisite funds available to the District Magistrate.
Shri Laxmi Dhar Misra will also enquire from the mine-lessees and owners of stone crushers as also from the thekedar or jamadar whether there are any advances made by them to the labourers working in the stone quarry or stone crusher and if so, whether there is any documentary evidence in support of the same and he will also ascertain what, according to the mine-lessees and owners of stone crushers or the jamadar or thekedar, are the amounts of loans still remaining outstanding against such labourers. Shri Laxmi Dhar Misra will submit his report to this Court on or before 28th February 1984. We may make it clear that the object and purpose of this inquiry by Shri Laxmi Dhar Misra is not to fasten any liability on the minelessees and owners of stone crushers and the jamadar or thekedar on the basis of the
Report of Shri Laxmi Dhar Misra but to secure the release and repatriation of those labourers who claim to be bonded labourers and who want to leave the employment and go some where
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else. We may point out that the problem of bonded labourers is a difficult problem because unless, on being freed from bondage, they are provided proper and adequate rehabilitation, it would not help to merely secure their release. Rather in such cases it would be more in their interest to ensure proper working conditions with full enjoyment of the benefits of social welfare and labour laws so that they can live a healthy decent life. But of course this would only be the next best substitute for release and rehabilitation which must receive the highest priority. So far as implementation of the provisions of the Minimum Wages Act 1948 is concerned we would direct the Central Government and State of Haryana to take necessary steps for the purpose of ensuring that minimum wages are paid to the workmen employed in the stone quarries and stone crushers in accordance with the principles laid down by us in this judgment.
It may not be a matter of any consequence as to which mode of payment is followd, whether the workmen are paid on truck basis or on any other basis, but what is essential is and that is what the Minimum Wages Act 1948 requires that the workmen must not receive any wage less than the minimum wage. Even if payment of wages is made to the workmen on truck basis, a formula would have to be evolved by the Central Government and the State of Haryana to ensure that the workmen receive no less than the minimum wage and to facilitate this formula it would have to be provided that the expenses on explosives and drilling holes shall be borne by the mine-lessees and or the jamadar or thekedar and the work of drilling holes and shot firing shall be entrusted only to those who have received requisite training under the
Mines Vocational Training Rules 1966.
We would direct the Central Government and the State of Haryana to take the necessary steps in this behalf so that within the shortest possible time and as far as possible within six weeks from today the workmen start actually receiving in their hands a wage not less than the minimum wage. If payment of wages is continued to be made on truck basis, it is necessary that the appropriate officer of the Central Enforcement Machinery must determine the measurement of each truck as to how many cubic feet of stone it can contain and print or inscribe such measurement on the truck, so that appropriate and adequate wage is received by the workmen for the work done by them and they are not c heated out of their legitimate wage.
We would also direct the inspecting officers of Central Enforcement Machinery to carry out surprise checks for the purpose of ensuring that the trucks are not loaded beyond their true measurement capacity. Such surprise checks shall be carried out by the inspecting officers of the Central Enforcement Machinery at least once in a week and if it is found that the trucks are loaded in excess of their true measurement capacity and the workmen are thereby deprived of their legitimate wages, the inspecting officers carrying out such checks will immediately bring this fact to the notice of the appropriate authorities for initiation of necessary action against the defaulting mine owners and/or thekedar or jamadar.
We would also direct the Central Government and the State of Haryana to ensure that payment of wage is made directly to the workmen by the mine-lessees and stone-crusher owners or at any rate in the presence of a representative of the mine-lessees and stone crushers owners and the inspecting officers of the Central Government as also of the State of Haryana shall carry out periodic checks in order to ensure that payment of the stipulated wage is made to the workmen. Shri Laxmi Dhar Misra will also, while holding an inquiry pursuant to this order, ascertain, by carrying out sample check, whether the workmen employed in any particular stone quarry or stone crusher are actually in receipt of wage not less than the minimum wage and whether the directions given by us in this order are being implemented by the authorities.
There are also two other matters in respect of which it is necessary for us to give directions. The first is that, apart from poverty and helplessness, one additional reason why
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the workmen employed in stone quarries and stone crushers are deprived of the rights and benefits conferred upon them under various social welfare laws enacted for their benefit and are subjected to deception and exploitation, in that they are totally ignorant of their rights and entitlements. It is this ignorance which is to some extent responsible for the total denial of the rights and benefits conferred upon them. It is therefore necessary to educate the workmen employed in stone quarries and stone crushers so that they become aware as to what are the rights and benefits to which they are entitled under the various social welfare laws. The knowledge of their rights and entitlements will give them the strength to fight against their employers for securing their legitimate dues and it will go a long way towards reducing, if not eliminating, their exploitation. We have fortunately in our country the Central Board of
Workers Education which is entrusted with the function of educating workers in their rights and entitlements and we would therefore direct the Central Board of Workers Education to organise periodic camps near the sites of stone quarries and stone crushers in Faridabad
District for the purpose of creating awareness amongst the workmen about the rights and benefits conferred upon them by social welfare laws. This educational campaign shall be taken up by the Central Board of Workers Education as early as possible and the progress made shall be reported to this Court by the Central Board of Workers Education from time to time, at least once in three months.
The other matter in regard to which we find it necessary to give directions relates to the tremendous pollution of air by dust thrown out as a result of operation of the stone crushers.
When the stone crushers are being operated, they continually throw out large quantities of dust which not only pollute the air, but also affect the visibility and constitute a serious health hazard to the workmen. The entire air in the area where stone crushers are being operated is heavily laden with dust and it is this air which the workmen breathe day in and day out and it is no wonder that many of them contract tuberculosis. We would therefore direct the Central
Government and the State of Haryana to immediately take steps for the purpose of ensuring that the stone crushers owners do not continue to foul the air and they adopt either of two devices, namely, keeping a drum of water above the stone crushing machine with arrangement for continues spraying of water upon it or installation of dust sucking machine. This direction shall be carried out by the Central Government and the State of Haryana in respect of each stone crusher in the Faridabad District and a compliance report shall be made to this Court on or before 28th February, 1984.
So far as the provisions of the Contract Labour Act and the Inter-State Migrant Workmen
Act are concerned, we have already discussed those provisions and pointed out in what circumstances those provisions would be applicable in relation to workmen employed in the stone quarries and stone crushers. It is not possible for us on the material on record to come to a definite finding whether the provisions of the Contract Labour Act and the Inter-State
Migrant Workmen Act are applicable in the case of any particular stone quarry or stone crusher, because it would be a matter for investigation and determination, particularly since it has been disputed by the Central Government that there are any inter-State migrant workmen at all in any of the stone quarries or stone crushers.
We would therefore direct Shri Laxmi Dhar Misra to conduct an inquiry in each of the stone quarries and stone crushers in Faridabad District for the purpose of ascertaining whether there are any contract labourers or inter-State migrant workmen in any of these stone quarries or stone crushers, in the light of the interpretation laid down by us in this judgment, and, if so, what is the number of such contract labourers or inter-State migrant workmen in each stone quarry or stone crusher. If Shri Laxmi Dhar Misra finds as a result of his inquiry that the
Contract Labour Act and/or the Inter-State Migrant Workmen Act is applicable, he will make a report to that effect to the Court on or before 15th February 1984. We may make it clear that
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this inquiry by Shri Laxmi Dhar Misra is not directed for the purpose of fastening any liability on the mine-lessees and stone crusher owners or the jamadars and thekedars proprio vigore on the basis of such report, but merely for the purpose of considering whether a prima facie case exists on the basis of which action can be initiated by the Central Government, in which the mine-lessees and stone crusher owners and/or the jamadars or thekedars would have an opportunity of contesting the allegation that the Contract Labour Act and/or the Inter-State
Migrant Workmen Act applies to their stone quarry or stone crusher and defending such action. ………
We accordingly allow this writ petition and issue the above directions to the Central
Government and the State of Haryana and the various authorities mentioned in the preceding paragraphs of this judgment so that these poor unfortunate workmen who lead a miserable existence in small hovels, exposed to the vagaries of weather, drinking foul water, breathing heavily dust-laden polluted air and breaking and blasting stone all their life, may one day be able to realise that freedom is not only the monopoly of a few but belongs to them all and that they are also equally entitled along with others to participate in the fruits of freedom and development. VINEET NARAIN V. UNION OF INDIA
AIR 1998 SC 889, (1998) 1 SCC 226
Decided On: December 18, 1997
BENCH – CHIEF JUSTICE J. S. VERMA, JUSTICES S. P. BHARUCHA & S. C. SEN
CHIEF JUSTICE VERMA (for the Court)
These writ petitions under Article 32 of the Constitution of India brought in public interest, to begin with, did not appear to have the potential of escalating to the dimensions they reached or to give rise to several issues of considerable significance to the implementation of rule of law, which they have, during their progress. They began as yet another complaint of inertia by the Central Bureau of Investigation (CBI) in matters where the accusation made was against high dignitaries. It was not the only matter of its kind during the recent past.
The primary question was: Whether it is within the domain of judicial review and it could be an effective instrument for activating the investigative process which is under the control of executive? The focus was on the question, whether any judicial remedy is available in such a situation? However, as the case progressed, it required innovation of a procedure within the constitutional scheme of judicial review to permit intervention by the court to find a solution to the problem. This case had helped to develop a procedure within the discipline of law for the conduct of such a proceeding in similar situations. It has also generated awareness of the need of probity in public life and provided a mode of enforcement of accountability in public life. Even though the matter was brought to the court by certain individuals claiming to represent public interest, yet as the case progressed, in keeping with the requirement of public interest, the procedure devised was to appoint the petitioners ' counsel as the amicus curiae and to make such orders from time to time as were consistent with public interest. Intervention in the proceedings by everyone else was shut out but permission was granted to all, who so desired, to render such assistance as they could, and to provide the relevant material available with them to the amicus curiae for being placed before the court for its consideration. In short,
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the proceedings in this matter have had great educative value and it does appear that it has helped in future decision making and functioning of the public authorities.
We must at. the outset place on record our great appreciation of the assistance rendered by the amicus curiae, Shri Anil B. Divan and the lawyers assisting him, namely, Shri Abani
Kumar Sahu, Shri Anil Kumar Panda, Shri Mukul Mudgal, Shri Anil Nauriya and also Ms.
Latha Krishnamurthy. We also place on record equal appreciation of the law officers and the team which has assisted them in these proceedings. At the commencement of the proceedings, the then Solicitor General Shri Dipankar P. Gupta appeared for the Union of India and the government agencies. Later after Dipankar P. Gupta demitted office, the Attorney General
Shri Ashok H. Desai appeared in this case throughout. The law officers and their team of assistants, namely Shri K.N. Bhat, Additional Solicitor General, Shri Pallav Shishodia, Shri
P. Parmeswaran and Ms. Anuradha Bindra, rendered very able assistance throughout and discharged the duty expected of law officers. All of them, at great personal inconvenience and expense, rose to extraordinary heights in keeping with the true traditions of the Bar. In essence, everyone of them discharged the role of amicus curiae, without, at any stage, adopting the adversarial stance. If it has been possible to achieve some success in these proceedings to improve and innovate the procedure and fructify new ideas for betterment of the polity, it is only because of the positive response of the Bar and the assistance rendered by it. We must also record our appreciation of the officers of the CBI and the Revenue Department who actively participated in these proceedings and showed a definite improvement in their perception of the rule of law as the case progressed; and their ability to perform improved once they were assured of protection in the honest discharge of their duties.
This experience revealed to us the need for the insulation of these agencies from any extraneous influence to ensure the continuance of the good work they have commenced. It is this need which has impelled us to examine the structure of these agencies and to consider the necessary steps which would provide permanent insulation to the agencies against extraneous influences to enable them to discharge their duties in the manner required for proper implementation of the rule of law. Permanent measures are necessary to avoid the need of every matter being brought to the court for taking ad hoc measures to achieve the desired results. This is the occasion for us to deal with the structure, Constitution and the permanent measures necessary for having a fair and impartial agency. The faith and commitment to the rule of law exhibited by all concerned in these proceedings is the surest guarantee of the survival of democracy of which rule of law is the bedrock. The basic postulate of the concept of equality: 'Be you ever so high, the law is above you ', has governed all steps taken by us in these proceedings.
Facts
A brief narration of the facts of this case is necessary. On 25th March, 1991, one Ashfak
Hussain Lone, alleged to be an Official of the terrorist organisation Hizbul Mujahideen, was arrested in Delhi. Consequent upon his interrogation, raids were conducted by the Central
Bureau of Investigation (CBI) on the premises of Surender Kumar Jain, his brothers, relations and businesses. Along with Indian and foreign currency, the CBI seized two diaries and two note books from the premises. They contained detailed accounts of vast payments made to persons identified only by initials. The initials corresponded to the initials of various high ranking politicians, in power and out of power, and of high ranking bureaucrats. Nothing having been done in the matter of investigating the Jains or the contents of their diaries, the present writ petitions were filed on 4th October, 1993, in the public interest under Article 32 of the Constitution of India.
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The gist of the allegations in the writ petitions is that Government agencies like the CBI and the revenue authorities had failed to perform their duties and legal obligations inasmuch as they had failed to investigate matters arising out of the seizure of the "Jain diaries"; that the apprehension of terrorists had led to the discovery of financial support to them by clandestine and illegal means using tainted funds obtained through 'havala ' transactions; that this had also disclosed a nexus between politicians, bureaucrats and criminals, who were recipients of money from unlawful sources, given for unlawful consideration; that the CBI and other
Government agencies had failed to investigate the matter, take it to its logical conclusion and prosecute all persons who were found to have committed an offence; that this was done with a view to protect the persons involved, who were very influential and powerful; that the matter disclosed a nexus between crime and corruption at high places in public life and it posed a serious threat to the integrity, security and economy of the nation; that probity in public life, the rule of law and the preservation of democracy required that the Government agencies be compelled to duly perform their legal obligations and to proceed in accordance with law against every person involved, irrespective of where he was placed in the political hierarchy.
The writ petitions prayed, inter alia, for the following reliefs:
(a) that the above said offences disclosed by the facts mentioned in the petition be directed to be investigated in accordance with law;
(b) that this Hon 'ble Court may be pleased to appoint officers of the police or others in whose integrity, independence and competence this Hon 'ble Court has confidence for conducting and/or supervising the said investigation;
(c) that suitable directions be given by this Hon 'ble Court and orders issued to ensure that the culprits are dealt with according to law; xxx xxx xxx
(f) that directions be given so that such evil actions on the part of (he investigating agencies and their political superiors are not repeated in future.
It will be seen that the reliefs sought in the writ petitions fall into two broad classes. The first class relates to investigations in the matter of the "Jain diaries". The second class [prayer
(f)] relates to the manner in which investigations of offences of a similar nature that may occur hereafter should be conducted.
Procedure adopted
We have taken the view that, given the political personalities of the people to be investigated in the "Jain diaries" case and the time already lost in commencing the investigations, it was advantageous not to hear the matter through and issue a writ of mandamus, leaving it to the authorities to comply with it, but to keep the matter pending while the investigations were being carried on, ensuring that this was done by monitoring them from time to time and issuing orders in this behalf.
… The sum and substance of these orders is that the CBI and other Governmental agencies had not carried out their public duty to investigate the offences disclosed; that none stands above the law so that an alleged offence by him is not required to be investigated; that we would monitor the investigations, in the sense that we would do what we permissibly could to see that the investigations progressed while yet ensuring that we did not direct or channel those investigations or in any other manner prejudice the right of those who might be accused to a full and fair trial. We made it clear that the task of the monitoring court would end the moment a charge-sheet was filed in respect of a particular investigation and that the ordinary
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processes of the law would then take over. Having regard to the direction in which the investigations were leading, we found it necessary to direct the CBI not to report the progress of the investigations to the person occupying the highest office in the political executive; this was done to eliminate any impression of bias or lack of fairness or objectivity and to maintain the credibility of the investigations. In short, the procedure adopted was of ‘continuing mandamus’. Even after this matter was brought to the court complaining of the inertia of CBI and the other agencies to investigate into the offences because of the alleged involvement of several persons holding high offices in the executive, for quite some time the disinclination of the agencies to proceed with the investigation was apparent. The accusation, if true, revealed a nexus between high ranking politicians and bureaucrats who were alleged to have been funded by a source linked with the source funding the terrorists. In view of the funding also through foreign currency, some undesirable foreign elements appeared to be connected. This revealed a grave situation posing a serious threat even to the unity and integrity of the nation. The serious threat posed to the Indian polity could not be underscored. The obvious need for an expeditious and thorough probe which had already been delayed for several years could not but be countenanced. The continuing inertia of the agencies to even commence a proper investigation could not be tolerated any longer. In view of the persistence of that situation, it became necessary as the proceedings progressed to make some orders which would activate the CBI and the other agencies to at least commence a fruitful investigation. Merely issuance of a mandamus directing the agencies to perform their task would be futile and, therefore, it was decided to issue directions from time to time and keep the matter pending requiring the agencies to report the progress of investigation so that monitoring by the court could ensure continuance of the investigation. It was, therefore, decided to direct the CBI and other agencies to complete the investigation expeditiously, keeping the court informed from time to time of the progress of the investigation so that the court retained siesin of the matter till the investigation was completed and the chargesheets were filed in the competent court for being dealt with, thereafter, in accordance with law.
… The gist of the allegations in the writ petition are that Government agencies, like the
CBI and the revenue authorities have failed to perform their duties and legal obligations inasmuch as they have failed to properly investigate matters arising out of the seizure of the so called "Jain Diaries" in certain raids conducted by the CBI. It is alleged that the apprehending of certain terrorists led to the discovery of financial support to them by clandestine and illegal means, by use of tainted funds obtained through 'havala ' transactions; that this also disclosed a nexus between several important politicians, bureaucrats and criminals, who are all recipients of money from unlawful sources given for unlawful considerations; that the CBI and other Government agencies have failed to fully investigate into the mater and take it to the logical end point of the trial and to prosecute all persons who have committed any crime; that this is being done with a view to protect the persons involved, who are very influential and powerful in the present set up; that the matter discloses a definite nexus between crime and corruption in public life at high places in the country which poses a serious threat to the integrity, security and economy of the nation; that probity in public life, to prevent erosion of the rule of law and the preservation of democracy in the country, requires that the Government agencies be compelled to duly perform their legal obligations and to proceed in accordance with law against each and every person involved, irrespective of the height at which he is placed in the power set up.
The facts and circumstances of the present case do indicate that it is of utmost public importance that this matter is examined thoroughly by this Court to ensure that all Government agencies, entrusted with the duty to discharge their functions and obligations in accordance
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with law, do so, bearing in mind constantly the concept of equality enshrined in the
Constitution and the basic tenet of rule of law: "Be you ever so high, the law is above you".
Investigation into every accusation made against each and every person on a reasonable basis, irrespective of the position and status of that person, must be conducted and completed expeditiously. This is imperative to retain public confidence in the impartial working of the
Government agencies.
In this proceeding we are not concerned with the merits of the accusations or the individuals alleged to be involved, but only with the performance of the legal duly by the
Government agencies to fairly, properly and fully investigate into every such accusation against every person, and to take the logical final action in accordance with law.
In case of persons against whom a prima facie case is made out and a charge sheet is filed in the competent court, it is that court which will then deal with that case on merits, in accordance with law.
However, if in respect of any such person the final report after full investigation is that no prima facie case is made out to proceed further, so that the case must be closed against him, that report must be promptly submitted to this Court for its satisfaction that the concerned authorities have not failed to perform their legal obligations and have reasonably come to such conclusion. No such report having been submitted by the CBI or any other agency till now in this Court, action on such a report by this Court would be considered, if and when that occasion arises. We also direct that no settlement should be arrived at nor any offence compounded by any authority without prior leave of this Court.
We may add that on account of the great public interest involved in this matter, the CBI and other Government agencies must expedite their action to complete the task and prevent pendency of this matter beyond the period necessary. It is needless to observe that the results achieved so far do not match the available time and opportunity for a full investigation ever since the matter came to light. It is of utmost national significance that no further time is lost in completion of the task.
………
It is significant that the machinery of investigation started moving as a result of these orders and after investigation of the allegations made against several persons on the basis of the contents of the Jain Diaries, chargesheets were filed in the competent court in the first instance against 14 persons, as reported to the court on 22.2.1996. Chargesheets against many other persons were filed in the competent court thereafter as reported later from time to time.
In all, 34 chargesheets against 54 persons have been filed on this basis. Thus, as indicated earlier, the purpose of these proceedings to the extent to the complaint of inertia of the investigating agencies come to an end with the filing of these chargesheets, since the merits of the accusation against each individual has, thereafter, to be considered and dealt with by the competent court at the trial, in accordance with law. Trial in the competent court is now a separate proceeding.
… During the monitoring of the investigations, the Solicitor General/Attorney General, from time to time, reported the progress made during the course of investigation, in order to satisfy us that the agencies were not continuing to drag their feet and the "continuing mandamus" was having the effect of making the agencies perform their statutory function.
The procedure adopted by us was merely to hear what they had to report or the CBI Director and the Revenue Secretary had to tell us to be satisfied that the earlier inaction was not persisting. We maintained this stance throughout. We also ensured that no observation of any kind was made by us nor was any response given which may be construed as our opinion
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about the merits of the case or the accusation against any accused. We also did not identify or name any accused during performance of this task. At the very outset, the then Solicitor
General Shri Dipankar P. Gupta requested that a part of the proceedings be held 'in camera ' to enable him to state certain facts and, if necessary, place before us material, the secrecy of which was required to be maintained for integrity of the investigation and also to avoid any prejudice to the concerned accused. In these circumstances, such a procedure was adopted only to the extent necessary for this purpose, in the interest of justice, and that is how a part of some hearings was held in camera. This innovation in the procedure was made, on request, to reconcile the interest of justice with that of the accused.
It is settled that the requirement of a public hearing in a court of law for a fair trial is subject to the need of proceedings being held in camera to the extent necessary in public interest and to avoid prejudice to the accused. We consider it appropriate to mention these facts in view of the nature of these proceedings wherein innovations in procedure were required to be made from time to time to sub-serve the public interest, avoid any prejudice to the accused and to advance the cause of justice. The medium of "continuing mandamus", was a new tool forged because of the peculiar needs of this matter.
Inertia was the common rule whenever the alleged offender was a powerful person. Thus, it became necessary to take measures to ensure permanency in the remedial effect to prevent reversion to inertia of the agencies in such matters.
Everyone against whom there is reasonable suspicion of committing a crime has to be treated equally and similarly under the law and probity in public life is of great significance.
The Constitution and working of the investigating agencies revealed the lacuna of its inability to perform whenever powerful persons were involved. For this reason, a close examination of the Constitution of these agencies and their control assumes significance. No doubt, the overall control of the agencies and responsibility of their functioning has to be in the executive, but then a scheme giving the needed insulation from extraneous influences even of the controlling executive, is imperative. It is this exercise which became necessary in these proceedings for the future. This is the surviving scope of these writ petitions.
Point for consideration
As a result of the debate in these proceedings and the experience gained thereby the Union of India came to realise that an in-depth study of the selection of personnel of these agencies, particularly the CBI and the Enforcement Directorate of the Revenue Department, and their functioning is necessary. The Government of India, sharing this perception, by an Order No.
S/7937/SS(ISP)/93 dated 9th July, 1993 constituted a Committee headed by the then Home
Secretary Shri N.N. Vohra to take stock of all available information about the activities of crime syndicates/mafia organisations which had developed links with, and were being protected by, government functionaries and political personalities. It was stated that on the basis of recommendations of the Committee the Government shall determine the need, if any, to establish a special organization/agency to regularly collect information and pursue cases against such elements. The Committee was headed by the then Home Secretary Shri N.N.
Vohra and had as its Members-Secretary (Revenue), Director, Intelligence Bureau, Director,
CBI, Joint Secretary (PP), Ministry of Home Affairs. The Committee gave its recommendations dated 5.10.1993.
It has made scathing comments and has painted a dismal picture of the existing scene. It has said that the network of the mafia is virtually running a parallel government pushing the
State apparatus into irrelevance. The Committee recommended the creation of a nodal agency under the Ministry of Home Affairs for the collation and compilation of all information
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received from Intelligence Bureau (IB), Central Bureau of Investigation (CBI) and Research and Analysis Wing (R & AW) and the various agencies under the Department of Revenue.
The report is significant for the dismal picture of the existing scenario which discloses a powerful nexus between the bureaucracy and politicians with the mafia gangs, smugglers and the underworld. The report of the Vohra Committee is the opinion of some top bureaucrats and it confirmed our worst suspicions focusing the need of improving the procedure for
Constitution and monitoring the functioning of intelligence agencies. There is, thus, no doubt that this exercise cannot be delayed further.
The same perception of the Government of India led it to constitute another Committee by Order No. 226/2/97-AVD-II dated 8th September, 1997 comprising of Shri B.G.
Deshmukh, former Cabinet Secretary, Shri N.N. Vohra, Principal Secretary to the Prime
Minister and Shri S.V. Giri, Central Vigilance Commissioner, called the Independent Review
Committee (IRC). …
Before we refer to the report of the Independent Review Committee (IRC), it would be appropriate at this stage to refer to the Single Directive issued by the Government which requires prior sanction of the designated authority to initiate the investigation against officers of the Government and the Public Sector Undertakings (PSUs), nationalised banks above a certain level. The Single Directive is a consolidated set of instructions issued to the CBI by the various Ministries/Departments in this behalf. It was first issued in 1969 and thereafter amended on many occasions. The Single Directive contains certain instructions to the CBI regarding modalities of initiating an inquiry of registering a case against certain categories of civil servants. Directive No. 4.7(3) in its present form is as under:
4.7(3) (i) In regard to any person who is or has been a decision making level officer (Joint Secretary or equivalent or above in the Central Government or such officers as are or have been on deputation to a Public Sector Undertaking; officers of the Reserve Bank of India of the level equivalent to Joint Secretary or above in the Central Government, Executive Directors and above of the SEBI and
Chairman & Managing Director and Executive Directors and such of the Bank officers who are one level below the Board of Nationalised Banks), there should be prior sanction of the Secretary of the Ministry/Department concerned before
SPE takes up any enquiry (PE or RC), including ordering search in respect of them. Without such sanction, no enquiry shall be initiated by the SPE.
(ii) All cases referred to the administrative Ministries/Departments by CBI for obtaining necessary prior sanction as aforesaid, except those pertaining to any officer of the rank of Secretary or Principal Secretary, should be disposed of by them preferably within a period of two months of the receipt of such a reference.
In respect of the officers of the rank of Secretary or Principal Secretary to
Government, such references should be made by the Director, CBI to the Cabinet
Secretary for consideration of a Committee consisting of the Cabinet Secretary as its Chairman and the Law Secretary and the Secretary (Personnel) as its members.
The Committee should dispose of all such reference preferably within two months from the date of receipt of such a reference by the Cabinet Secretary.
(iii) When there is any difference of opinion between the Director, CBI and the
Secretary of the Administrative Ministry/Department in respect of an officer up to the rank of Additional Secretary or equivalent, the matter shall be referred by
CBI to Secretary (Personnel) for placement before the Committee referred to in
Clause (ii) above. Such a matter should be considered and disposed of by the
Committee preferably within two months from the date of receipt of such a reference by Secretary (Personnel).
(iv) In regard to any person who is or has been Cabinet Secretary, before SPE takes any step of the kind mentioned in (i) above the case should be submitted to the Prime Minister for orders.
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We were informed that the above Directive, in this application, is limited to officials at decision making levels in the Government and certain other public institutions like the RBI,
SEBI, nationalised banks, etc. and its scope is limited to official acts. The stated objective of the Directive is to protect decision making level officers from the threat and ignominy of malicious and vexatious inquiries/investigations. It is said that such protection to officers at the decision making level is essential to protect them and to relieve them of the anxiety from the likelihood of harassment for taking honest decisions. It was also stated that absence of any such protection to them could adversely affect the efficiency and efficacy of these institutions because of the tendency of such officers to avoid taking any decisions which could later lead to harassment by any malicious and vexatious inquiries/investigations. It was made clear that the Directive does not extend to any extraneous or non-official acts of the government functionaries and a time frame has been prescribed for grant of sanction in such cases to prevent any avoidable delay.
Two questions arise in relation to Directive No. 4.7(3) of the Single Directive, namely, its propriety/legality and the extent of its coverage, if it be valid.
The learned Attorney General categorically stated in response to our repeated query that the Single Directive acts as a restriction only on the CBI but is inapplicable against the general power of the State Police to register and investigate any such offence under the general law,
i.e. CrPC. He added that it is also not an inhibition against a complaint being lodged under the
Cr.P.C. before the competent court for any such offence. The Single Directive was sought to be supported by the Attorney General on the ground that the CBI being a special agency created by the Central Government, it: was required to function according to the mandate of the Central Government which has constituted this special agency for specified purpose. The desirability of the Single Directive was supported by the learned Attorney General on the ground that the officers at the decision making level need this protection against malicious or vexatious investigations in respect of honest decisions taken by them.
We were also informed that during hearing of this matter when this aspect was being debated, the Ministry of Finance has set up a High Power Board of experts in finance and a retired High Court Judge to examine the merits in every case for the purpose of grant of sanction to the CBI for recording the information and investigating into any such offence, and a time frame for the decision has also been specified. Similarly, in the case of government servants, the authority for grant of sanction with a provision for appeal in case the sanction is declined has been provided. It was submitted that such a structure to regulate the grant of sanction by a high authority together with a time frame to avoid any delay is sufficient to make the procedure reasonable and to provide for an objective decision being taken for the grant of sanction within the specified time. It was urged that refusal of sanction with reasons would enable judicial review of that decision in case of any grievance against refusal of the sanction.
…
The provision made for deciding the question of grant of sanction in the cases of officers to whom the Single Directive applies is, as under:
OFFICE MEMORANDUM DATED FEBRUARY 17, 1997 OF THE
RESERVE BANK OF INDIA, CENTRAL OFFICE, DEPARTMENT OF
ADMINISTRATION & PERSONNEL MANAGEMENT
Advisory Board on bank frauds
It has been decided to set-up an 'Advisory Board on bank frauds ' to advise the
Bank on the cases referred the Central Bureau of Investigation either directly or through the Ministry of Finance for investigation/registration of cases against bank officers of the rank of General Manager and above. The Constitution of the
Board will be as under:
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Shri S.S. Tarapore, Chairman Ex-Deputy Governor Reserve Bank of India Justice
Shri B.V. Chavan Member Retd. Judge of Bombay High Court & Member,
Reserve Bank of India Services Board. Shri B.N. Bhagwal, Member Retd.
Secretary, Government of India. Shri Satish Sawhney, Member Retd. Director
General of Police Maharashtra. Shri Y.H. Malegam, Mamber
Chartered Accountant & Senior Partner in M/s. S.S. Billimoria & Co.
Another action taken by the Government of India is, as under:
Letter No. I 11011/33/95-IS DI(B) dated 1st /2nd August, 1995 of Ministry of
Home Affairs, Government of India
Government had through its Order No. S-7937/SS(ISP)/93 dated 9th July, 1993 constituted a Committee under the Chairmanship of former Home Secretary (Shri
N.N. Vohra) to take stock of all available information about the activities of the crime syndicates/mafia organisations which had developed links with and were being protected by Government functionaries and political personalities. The
Vohra Committee in its Report submitted to the Government recommended a
Nodal Set-up directly under the Home Secretary to which all existing intelligence and enforcement agencies of the Government shall promptly pass on any information which they may come across, relating to links of crime syndicates with functionaries of the Government and political personalities.
Accordingly, Government have now decided to set up a Group under the
Chairmanship of the Home Secretary to act as a Nodal Set-up to collect and collate the information and to decide on the action that is required to be taken to ensure that the nexus of criminals with businessmen, politicians or bureaucrats is broken.
(3) The Group shall comprise :
(i) Home Secretary, Chairman (ii) Secretary (Revenue) Member (iii) Director, IB
Member (iv) Director, CBI Member (v) Secretary, R & AW Member
4. It is felt that it would be necessary for this Group to interact with various State
Governments in order to both make use of such information as may be available with the States as well as to utilise the expertise of the relevant agencies of the
State Governments. For this purpose, the above Group would interact appropriately from time to time with Chief Secretaries and other senior functionaries of the State Governments.
5. All the Intelligence and enforcement agencies under the Government like the
Intelligence Bureau, the CBI and various bodies functioning under the
Department of Revenue shall forthwith report to the Home Secretary whenever substantive information/evidence of collusion of officials/politicians with criminal syndicates comes to their knowledge in the course of their working. The
Group shall meet periodically to decide upon the action required to be taken and identify an agency or agencies to take up further investigations. The Nodal Group would also review the information in the above context already available with the various agencies and decide upon the follow up action that is required to be taken.
6. This issues with the approval of Home Minister.
Report of IRC
The IRC has in its report accepted the legality of the Single Directive placing reliance on the decision of this Court in K. Veeraswami (1991) 3 SCC 655. Alter considering the functions of the CBI and the Directorate of Enforcement, it has made certain recommendations which are as under:
MEASURES FOR SPEEDY INVESTIGATIONS AND TRIALS
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4.1. The Committee recommends that the following measures should be taken to ensure speedy investigations and trials:
(a) Special Courts should be got established at identified stations to deal exclusively with FERA offences so that cases can be decided speedily.
(b) To ensure against delays in investigations abroad, the Revenue Secretary should be the competent authority to approve filing of applications for Letters
Rogatory.
(c) The Directorate of Enforcement should be delegated powers to appoint special counsels for conducting trials, who may also act as legal advisers for the
Department in respect of the cases entrusted to them.
(d) In many of the major cases of the Directorate, the suspects have been able to abuse the process of law by stalling the investigations at the initial stages through litigation at various levels, obtaining stay orders from High Courts and injunctions on flimsy grounds. In consultation with the Attorney General, the Revenue
Department may examine the possibility of making a representation to the Apex
Court to consider issuing appropriate directions so that the pace and progress of cases is not thwarted by interlocutory procedures or stay orders issued by the
Courts below.
(e) Taking into account the instances in which suspected persons have been able to stall investigations on alleged health grounds, the Revenue Department should approach the Ministry of Health to establish standing medical boards in identified cities to examine such persons. Such boards should comprise outstanding medical experts of unimpeachable integrity. The Courts can be requested to refer the prayer of the accused for staying proceedings on health grounds to such medical boards before passing judgment."
CHECKS AND BALANCES
5.1. The Directorate must be provided adequate financial and administrative delegations to enable it to exercise autonomy in the conduct and pursuit of investigations without let or hindrance. Side by side, it is necessary to provide appropriate checks and balances to ensure against miscarriage of justice. In this context, the Committee recommends the following:
(a) The Revenue Department should undertake regular review of the progress of cases before the Directorate. To enable this, the Directorate should regularly furnish information regarding the number of cases instituted, progress of investigations, cases settled in adjudication and those put to Courts. The
Committee note that while such information is already being supplied in reply to
Parliament Questions, information to be placed before the Parliamentary
Committee/Standing Committee, etc ', there is no established procedure for the
Directorate to furnish relevant information in a well devised format.
(b) The present system of the Directorate furnishing fortnightly reports providing statistical information and brief outline of the cases taken up for investigation should be further fine tuned. These reports should be carefully examined by the
Revenue Department to ensure that the Directorate is performing its functions efficiently. The Revenue Secretary should hold regular review meeting with the
Director Enforcement, also involving the Director Revenue Intelligence and other concerned officers.
(c) Guidelines relating to interrogation, prosecution, adjudication, time frame for completion of investigation, etc., have been issued by the Directorate from time to time. These guidelines should be comprehensively reviewed and, based thereon, a circular should be released for the information of the public at large, to enable all concerned to know the systems and procedures followed by the
Directorate. This shall contribute to greater transparency. This effort should be concluded within 2-3 months.
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5.2. It is important that the Directorate lays down a clearly spelt out time frame for the completion of investigation, launching of prosecution and completion of adjudication proceedings and for the Director to ensure that the prescribed time limits are strictly adhered to. The Committee are of the view that the Directorate would be able to more efficiently discharge its functions if immediate steps are taken to upgrade the level and quality of its in-house legal advice mechanism. At our request, the Cabinet Secretary convened a meeting with the Revenue
Department, Enforcement Directorate and other concerned officers to consider various proposals for strengthening the Directorate. The Committee hope that the various decisions taken at the Cabinet Secretary 's level shall witness implementation within 6-8 weeks.
5.3. The Committee recommends that the Directorate should take time bound steps to establish a grievances redressal mechanism to promptly deal with complaints received from the public against actions of the Enforcement
Directorate. Insofar as complaints of arbitrary action by senior officers of the
Directorate are concerned, the Committee recommends that these should be looked into by a Committee headed by the Central Vigilance Commissioner and comprising Revenue Secretary, Director General Revenue Intelligence,
Enforcement Director and a senior representative of the Ministry of Law.
5.4. As regards the pursuit of cases which appear to have a politico-beaurocraicriminal nexus, the Home Secretary agreed with the Committee 's suggestion that the Nodal Agency in the Home Ministry (chaired by Home Secretary) shall also include Member (Investigation) of the Central Board of Direct Taxes, Director
General Revenue Intelligence and the Director Enforcement as members.
5.5. The Committee recommends that the Annual Report of the Department of
Revenue should have a section devoted exclusively to the functioning of the
Enforcement Directorate. This report should highlight the number of cases taken up for investigation by ED, raids and searches conducted, amount of Indian and foreign currency seized etc. The report should also indicate the number of persons arrested, prosecutions launched and convictions ordered by the Courts. The
Committee feels that enhanced public knowledge about the work being done by the Directorate shall demystify its operations and contribute to improved public confidence." SUMMARY OF RECOMMENDATIONS
I. CBI AND CVC
1. CVC to be conferred statutory status; appointment of Central Vigilance
Commissioner to be made under the hand and seal of the President (para 4.2.)
2. Constitution of a Committee for selection of CVC (para 4.3.)
3. CVC to overview CBI 's functioning (para 5)
4. CBI 's reporting to Government to be streamlined without diluting its functional autonomy (para 3.3)
5. CVC to have a separate section in its Annual Report on the CBI 's functioning after the supervisory function is transferred to it (para 6)
6. Constitution of a Selection Committee for identifying a panel of names for selection of Director CBI; final selection to be made by ACC from such panel
(para 8.2.)
7. Central Government to pursue with the State Governments to set up a credible mechanism for selection of Police Chief (para 3.3)
8. Director CBI to have a minimum tenure of 2 years (para 8.4)
9. Transfer of incumbent Director CBI would need endorsement of the Selection
Committee (para 8.5)
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10. Director CBI to ensure full freedom for allocation of work within the Agency, including Constitution of investigation teams (para 8.6)
11. Selection/extension of tenure of officers upto to the level of Joint Director
(JD) to be decided by a Board under Central Vigilance Commissioner; .ID and above would need the approval of ACC (para 8.7)
12. Change in the existing Tenure Rules not recommended (para 8.8)
13. Proposals for improvement of infrastructure, methods of investigation, etc., to be decided urgently (para 8.9.2.)
14. No need for creation of a permanent core group in the CBI (para 8.9.3)
15. Severe disciplinary action against officers who deviate from prescribed investigation procedures (para 9.1.)
16. Director CBI to be responsible for ensuring time limits for filing charge sheets in courts (para 9.2)
17. Document on CBI 's functioning to be published within three months (para 9.4)
18. Essential to protect officers at the decision making levels from vexatious enquiries/prosecutions (para 10.6)
19. Secretaries to adhere strictly to prescribe time frames for grant of permission for registration of PE/RC. CBI to be free to proceed if decision not conveyed within the specified lime (para 10.9)
20. Secretary of Administrative Ministry to convey a decision regarding registration of PE/RC within 2 months of receipt of request. If not satisfied with decision, Director CBI free to make fresh reference to the Committee headed by
Cabinet Secretary within a period of four weeks and the latter to decide thereon within a period of four weeks (para 10.10)
21. Protection under the Single Directive not to cover offences like bribery, when prima-facie established in a successful trap (para 10.12)
22. Cases of disproportionate assets of Central Government and All India Services
Officers to be brought within the ambit of the Single Directive (para 10.13)
23. Time limit of 3 months for sanction for prosecution. Where consultation is required with the Attorney General or the Solicitor General, additional time of one month could be allowed (paras 10.14 and 10.15)
24. Government to undertake a review of the various types of offences notified for investigation by the CBI to retain focus on anti-corruption activities which is its primary objective (para 11.1)
25. Cases falling within the jurisdiction of the State Police which do not have inter-state or inter-national ramifications should not be handed over to CBI by
States/Courts (para 11.2)
26. Government to establish Special Courts for the trial of CBI cases (11.3)
27. Severe action against officials found guilty of high handed-ness; prompt action against those officials chastised by the Courts (para 11.4)
28. Director CBI to conduct regular appraisal of personnel to weed out the corrupt and inefficient, and maintain strict discipline within the organisation (para 11.5)
II. ENFORCEMENT DIRECTORATE
1. Selection Committee headed by Central Vigilance Commissioner to recommend panel for appointment of Director Enforcement by the ACC (para 2.2)
2. Director Enforcement to have minimum tenure of 2 years. For his premature transfer, the Selection Committee headed by Central Vigilance Commissioner to make suitable recommendations to the ACC (para 2.3.)
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3. Post of Director Enforcement to be upgraded to that of Additional
Secretary/Special Secretary to the Government (para 2.4)
4. Officers of the Enforcement Directorate handling sensitive assignments to be provided adequate security for enabling fearless discharge of their functions (para
2.5)
5. Extension of tenures up to the level of Joint Directors in the Enforcement
Directorate to be decided by a Committee headed by Central Vigilance
Commissioner (para 2.6)
6. Proposals for foreign visits to conduct investigations to be cleared by the
Revenue Secretary and the Financial Adviser (para 2.7)
7. While enjoying full internal autonomy Enforcement Directorate to he made accountable. Responsibility of Government to ensure efficient and impartial functioning (para 3.1)
8. Premature media publicity to be ensured against (para 3.3)
9. Adjudication proceedings prosecution to be finalised by the Enforcement
Directorate within a period of one year (para 3.4)
10. Director Enforcement to monitor speedy completion of investigation and launching of adjudications/prosecution. Revenue Secretary to review regularly
(para 3.4)
11. The Director Enforcement to keep close watch against vexations search; action against functionaries who act without due care (para 3.5)
12. Special Courts to be established to deal with FER A offences for speedy completion of trials [para 4.1(a)]
13. For speedy conduct of investigations abroad, Revenue Secretary be authorised to approve filing of applications for Letters Rogatory [para 4.1(b)
14. The Enforcement Directorate to be delegated powers to appoint Special
Counsels for trials [para 4.1(c)]
15. The Revenue Department to consult Attorney General regarding measures against conclusion of cases being thwarted by stay orders, etc. (para 4.1(d)]
16. Revenue Department to approach Health Ministry to establish Standing
Medical Boards in identified cities for examination of accused persons seeking deferment of proceedings on health grounds [para 4.1(c)]
17. Revenue Department to undertake regular reviews of cases pending with the
Directorate [para 5.1(a) and (b)].
18. Comprehensive circular to be published by the Directorate to inform public about procedures/systems of its functioning [para 5.l(c)]
19. In-house legal advice mechanism to be strengthened (para 5.2)
20. Proposals for strengthening the Directorate to be implemented within 8 weeks
(para 5.2)
21. Directorate to establish a grievance redressal mechanism (para 5.3)
22. Committee headed by Central Vigilance Commissioner to decide complaints of arbitrary action by Directorate officials (para 5.3)
23. Nodal Agency headed by Home Secretary on politico-beaurocrai-criminal nexus to include Member investigation CBDT, Director General Revenue
Intelligence and Director Enforcement as members (para 5.4)
24. Annual Report of the Department of Revenue to contain an exhaustive section on the working of the Enforcement Directorate (para 5.5)
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25. Suitable incentives to be provided to functionaries of Enforcement Directorate at various levels, to attract best material, to be decided within two months (para
6.1)
III. NODAL AGENCY ON CRIMINAL NEXUS
1. Requirements of inter-agency co-ordination at field unit level to be evolved by
Home Secretary (para 2.1)
2. NA 's functioning to be watched for some time before considering need for structural changes (para 3)
3. Home Secretary will hold meetings of NA every month (para 3)
The reference to paragraphs within brackets at the end of each recommendation is to the paragraphs of the report containing discussion pertaining to the Central Bureau of
Investigation (CBI) and the Central Vigilance Commission (CVC) in Part I and Directorate of
Enforcement in Part II of the report. These recommendations have, therefore, to be read along with the discussion in the corresponding paras in Part I and Part II of the report.
Need for Court 's intervention
The IRC is a body constituted by the Central Government itself as a result of its perception that the Constitution and functioning of the CBI, CVC and Directorate of Enforcement require a close scrutiny in the background of the recent unsatisfactory functioning of these agencies with a view to improve their functioning. The view taken by the IRC is a reaffirmation of this belief shared by everyone. The preface to the report indicates the reason for the Constitution of the IRC and says that "In the past several years, there has been progressive increase in allegations of corruption involving public servants. Understandably, cases of this nature have attracted heightened media and public attention. A general impression appears to have gained ground that the concerned Central investigating agencies are subject to extraneous pressures and have been indulging in dilatory tactics in not bringing the guilty to book. The decisions of higher courts to directly monitor investigations in certain cases have added to the aforesaid belief." There can thus be no doubt that there is need for the exercise we were called upon to perform and which has occasioned consideration of this crucial issued by this Court in exercise of its powers conferred by the Constitution of India. The conclusions reached by the IRC and the recommendation it has made for improving the functioning and thereby the image of these agencies is a further reaffirmation of this general belief. There can also be no doubt that the conclusions reached by the IRC and its recommendations are the minimum which require immediate acceptance and implementation in a, bid to arrest any further decay of the polity.
It follows that the exercise to be performed now by this Court is really to consider whether any modifications/additions are required to be made to the recommendations of the IRC for achieving the object for which the Central Government itself constituted the IRC. We are informed by the learned Attorney General that further action on the report of the IRC could not be taken so far because of certain practical difficulties faced by the Central Government but there is no negative reaction to the report given by the Central Government.
The only caveat entered by the Attorney General is on the basis of a note by an individual
Minister in the Central Cabinet in which emphasis has been laid that the ultimate responsibility for the functioning of these agencies to the Parliament is that of the concerned Minister and this aspect may be kept in mind. It has been specifically mentioned that the Minister would remain the final disciplinary authority and would have the power to refer complaints against the agency or its officers to an appropriate authority for necessary action. There can be no quarrel with the Minister 's ultimate responsibility to the Parliament for the functioning of these
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agencies and he being the final disciplinary authority in respect of the officers of the agency with power to refer complaints them to the appropriate authority. Some other specific powers of the Minister were indicated as under:
1. The Minister has the power to review the working of the agencies which are under his Department.
2. The Minister has the power to give broad policy directions regarding investigation and prosecution of classes or categories of cases.
3. The Minister has the power to appraise the quality of the work of the Head of the agency as well as other senior officers of the agency.
4. The Minister has the power to call for information regarding progress of cases.
It is sufficient to say that the Minister 's general power to review the working of the agency and to give broad policy directions regarding the functioning of the agencies and to appraise the quality of the work of the Head of the agency and other officers as the executive head is in no way to be diluted. Similarly, the Minister 's power to call for information generally regarding the cases being handled by the agencies is not to be taken away. However, all the powers of the Minister are subject to the condition that none of them would extend to permit the Minister to interfere with the course of investigation and prosecution in any individual case and in that respect the concerned officers are to be governed entirely by the mandate of law and the statutory duty cast upon them.
It is useful to remember in this context what this Court has on several occasions in the past said about the nature of duty and functions of police officers in the investigation of an offence. It is sufficient to refer to one of them namely Union of India v. Sushil Kumar Modi
(1997) 4 SCC 770 (Bihar Fodder Scam Case):
… According to the CrPC the formation of the opinion as to whether or not there is a case to place the accused for trial is that of the police officer making the investigation and the final step in the investigation is to be taken only by the police and by no other authority, see Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC
117. This must be borne in mind as also that the scope and purpose of a proceeding like the present is to ensure a proper and faithful performance of its duty by the police officer by resort to the prerogative writ of mandamus.
The Minister 's power in these matters has, therefore, to be understood as circumscribed by these limitations under the law.
History of CBI
It is useful to refer at this stage to the history of the CBI. The Special Police Establishment was formed during the World War II when large sums of public money were being spent in connection with the War and there arose enormous potential for corruption amongst the officers dealing with the supplies. An executive order was made by the Government of India in 1941 setting up the Special Police Establishment (SPE) under a DIG in the then Department of War. The need for a central government agency to investigate cases of bribery and corruption by the Central Government servants continued and, therefore, the Delhi Special
Police Establishment Act was brought into force in 1946.
Under this Act, the superintendence of the Special Police Establishment was transferred to the Home Department and its functions were enlarged to cover all departments of the
Government of India. The jurisdiction of the SPE extended to all the Union Territories and could also be extended to the States with the consent of the concerned State Governments.
Then the SPE was put under the charge of Director, Intelligence Bureau. Later in 1948 a post of Inspector General of Police, SPE was created and the organisation was placed under his
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charge. The Central Bureau of Investigation was established on 1.4.1963 vide Government of
India 's Resolution No. 4/31/61-T/MHA. This was done to meet the felt need of having a central police agency at the disposal of the Central Government to investigate into cases not only of bribery and corruption but also those relating to the breach of central fiscal laws, frauds in government departments and PSUs and other serious crimes. On enlargement of the role of
CBI and Economic Offences Wing was added to the existing Divisions of the CBI. In 1987 two Divisions were created in the CBI known as Anti-Corruption Division and Special Crimes
Division, the latter dealing with cases of conventional crimes besides economic offences. In
1994 due to increased workload relating to bank frauds and economic offences a separate
Economic Offences Wing was established in CBI with the result that since then the CBI has three Investigation Divisions, namely, Anti-Corruption Division, Special Crimes Division and
Economic Offences Division. Further particulars thereof are not necessary in the present context. We are informed that almost all the State Governments have given concurrence for extension of the jurisdiction of the Delhi Special Police Establishment in the States with the exception of only a few. The result is that for all practical purposes, the jurisdiction in respect of all such offences is exercised in the consenting States only by the CBI and not by the Slate
Police. This is the significance of the role of the CBI in such matters and, therefore, technically the additional jurisdiction under the general law of the State Police in these matters is of no practical relevance. The pragmatic effect of the Single Directive is, therefore, to inhibit investigation against the specified category of officers without sanction in accordance with the Single Directive.
Validity of Directive No. 4.7(3) of the Single Directive
We may now refer to the two decisions on which specific reliance has been placed by the learned Attorney General before us as well as the IRC in its report.
… The other decision of this Court is in K. Veeraswami. That was a decision in which the majority held that the Prevention of Corruption Act applies even to the Judges of the High
Court and the Supreme Court. After taking that view, it was said by the majority (per Shetty,
J.) that in order to protect the independence of judiciary, it was essential that no criminal case shall be registered under Section 154 Cr.P.C. against a Judge of the High Court or of the
Supreme Court unless the Chief Justice of India is consulted and he assents to such an action being taken. The learned Attorney General contended that this decision is an authority for the proposition that in case of high officials, the requirement of prior permission/sanction from a higher officer or Head of the Department is permissible and necessary to save the concerned officer from harassment caused by a malicious or vexatious prosecution. We are unable to accept this submission.
The position of Judges of High Courts and Supreme Court, who are constitutional functionaries, is distinct, and the independence of judiciary, keeping it free from any extraneous influence, including that from executive, is the rationale of the decision in K.
Veerasawami. In strict terms the Prevention of Corruption Act, 1946 could not be applied to the superior Judges and, therefore, while bringing those Judges within the purview of the Act yet maintaining the independence of judiciary, this guideline was issued as a direction by the
Court. The feature of independence of judiciary has no application to the officers covered by the Single Directive. The need for independence of judiciary from the executive influence does not arise in the case of officers belonging to the executive. We have no doubt that the decision in K. Veeraswami has no application to the wide proposition advanced by the learned
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Attorney General to support the Single Directive. For the same reason, reliance on that decision by the IRC to uphold the Single Directive is misplaced.
The question, however, is whether, without the aid of these decisions, the Single Directive can be upheld. In this context, meaning of the word "superintendence" in Section 4(1) of the
Delhi Special Police Establishment Act, 1946 requires consideration.
The Delhi Special Police Establishment Act, 1946 is an Act to make provision for the
Constitution of a special police force in Delhi for the investigation of certain offences in the
Union Territories for the superintendence and administration of the said force and for the extension to other areas of the powers and jurisdiction of members of the said force in regard to the investigation of the said offences. Section 6 of the Act requires consent of the State
Government to exercise powers and jurisdiction under the Act by the Delhi Special Police
Establishment. This is because 'Police ' is a State subject, being in List II, Entry 2 of the
Seventh Schedule. For this reason, the learned Attorney General contended that the power and jurisdiction of the State Police in respect of an offence within its jurisdiction remains intact and is not inhibited by the Single Directive; and that the CBI alone is inhibited thereby. Section
2 of the Act deals with Constitution and powers of the Special Police Establishment (SPE).
This is how the CBI has been constituted. Section 3 provides for offences to be investigated by the SPE and says that the offences or class of offences to be investigated by the agency may be specified by notification in the Official Gazette by the Central Government.
Section 3 of the Police Act, 1861 is in pari materia with Section 4 of the Delhi Special
Police Establishment Act, 1946. These Sections read as under:
Section 3 of the Police Act, 1861:
3 Superintendence in the State Government. - The superintendence of the police throughout a general police district shall vest in and shall be exercised by the State
Government to which such district is subordinate, and except as authorised under the provisions of this Act, no person, officer or Court shall be empowered by the
State Government to supersede or control any police functionary.
Sections 3 and 4 of the Delhi Special Police Establishment Act, 1946:
Offences to be investigated by S.P.E.
3. The Central Government may, by notification in the Official Gazette specify the offences or classes of offences which are to be investigated by the Delhi
Special Police Establishment.
Superintendence & Administration of S.P.E.
4(1) The Superintendence of the Delhi Special Police Establishment shall vest in the Central Government.
(2) The administration of the said police establishment shall vest in an officer appointed in this behalf by the Central Government who shall exercise in respect of that police establishment such of the powers exercisable by an InspectorGeneral of Police in respect of the police force in a State, as the Central
Government may specify in this behalf."
The meaning of the word "superintendence" in Section 4(1) of the Delhi Special Police
Act, 1946 determines the scope of the authority of the Central Government in this context.
There can be no doubt that the overall administration of the said force, i.e., CBI vests in the Central Government, which also includes, by virtue of Section 3, the power to specify the offences or class of offences which are to be investigated by it. The general superintendence over the functioning of the Department and specification of the offences which are to be investigated by the agency is not the same as and would not include within it the control of the initiation and the actual process of investigation, i.e., direction. Once the CBI is
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empowered to investigate an offence generally by its specification under Section 3, the process of investigation, including its initiation, is to be governed by the statutory provisions which provide for the initiation and manner of investigation of the offence. This is not an area which can be included within the meaning of "superintendence" in Section 4(1).
It is, therefore, the notification made by the Central Government under Section 3 which confers and determines the jurisdiction of the CBI to investigate an offence; and once that jurisdiction is attracted by virtue of the notification under Section 3, the actual investigation is to be governed by the statutory provisions under the general law applicable to such investigations. This appears to us the proper construction of Section 4(1) in the context, and it is in harmony with the scheme of the Act, and Section 3 in particular. The word
"superintendence" in Section 4(1) cannot be construed in a wider sense to permit supervision of the actual investigation of an offence by the CBI contrary to the manner provided by the statutory provisions. The broad proposition urged on behalf of the Union of India that it can issue any directive to the CBI to curtail or inhibit its jurisdiction to investigate an offence specified in the notification issued under Section 3 by a directive under Section 4(1) of the
Act cannot be accepted. The jurisdiction of the CBI to investigate an offence is to be determined with reference to the notification issued under Section 3 and not by any separate order not having that character.
… Once the jurisdiction is conferred on the CBI to investigate an offence by virtue of notification under Section 3 of the Act, the powers of investigation are governed by the statutory provisions and they cannot be estopped or curtailed by any executive instruction issued under Section 4(1) thereof. This result follows from the fact that conferment of jurisdiction is under Section 3 of the Act and exercise of powers of investigation is by virtue of the statutory provisions governing investigation of offences. It is settled that statutory jurisdiction cannot be subject to executive control.
There is no similarity between a mere executive order requiring prior permission or sanction for investigation of the offence and the sanction needed under the statute for prosecution. The requirement of sanction for prosecution being provided in the very statute which enacts the offence, the sanction for prosecution is a pre-requisite for the court to take cognisance of the offence. In the absence of any statutory requirement of prior permission or sanction for investigation, it cannot be imposed as a condition precedent for initiation of the investigation once jurisdiction is conferred on the CBI to investigate the offence by virtue of the notification under Section 3 of the Act. The word "superintendence" in Section 4(1) of the
Act in the context must be construed in a manner consistent with the other provisions of the
Act and the general statutory powers of investigation which govern investigation even by the
CBI. The necessity of previous sanction for prosecution is provided in Section 6 of the
Prevention of Corruption Act, 1947 (Section 19 of the 1988 Act) without which no court can take cognizance of an offence punishable under Section 5 of that Act. There is no such previous sanction for investigation provided for either in the Prevention of Corruption Act or the Delhi Special Police Establishment Act or in any other statutory provision. The above is the only manner in which Section 4(1) of the Act can be harmonised with Section 3 and the other statutory provisions.
The Single Directive has to be examined in this background. The law does not classify offenders differently for treatment thereunder, including investigation of offences and prosecution for offences, according to their status in life. Every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The Single Directive is applicable only to certain persons above the specified level who are described as "decision making officers". The question is whether
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any distinction can be made for them for the purpose of investigation of an offence of which they arc accused.
Obviously, where the accusation of corruption is based on direct evidence and it does not require any inference to be drawn dependent on the decision making process, there is no rational basis to classify them differently. In other words, if the accusation be of bribery which is supported by direct evidence of illegal gratification by them, including trap cases, it is obvious that no other factor is relevant and the level or status of the offender is irrelevant. It is for this reason that it was conceded that such cases, i.e., of bribery, including trap cases, are outside the scope of the Single Directive. After some debate at the Bar, no serious attempt was made by the learned Attorney General to support inclusion within the Single Directive of cases in which the offender is alleged to be in possession of disproportionate assets. It is clear that the accusation of possession of disproportionate assets by a person is also based on direct evidence and no factor pertaining to the expertise of decision making is involved therein. We have, therefore, no doubt that the Single Directive cannot include within its ambit cases of possession of disproportionate assets by the offender. The question now is only with regard to cases other than those of bribery, including trap cases, and of possession of disproportionate assets being covered by the Single Directive.
There may be other cases where the accusation cannot be supported by direct evidence and is a matter of inference of corrupt motive for the decision, with nothing to prove directly any illegal gain to the decision maker. Those are cases in which the inference drawn is that the decision must have been made for a corrupt motive because the decision could not have been reached otherwise by an officer at that level in the hierarchy. This is, therefore, an area where the opinion of persons with requisite expertise in decision making of that kind is relevant and, may be even decisive in reaching the conclusion whether the allegation requires any investigation to be made. In view of the fact that the CBI or the Police force does not have the expertise within its fold for the formation of the requisite opinion in such cases, the need for the inclusion of such a mechanism comprising of experts in the field as a part of the infrastructure of the CBI is obvious, to decide whether the accusation made discloses grounds for a reasonable suspicion of the commission of an offence and it requires investigation. In the absence of any such mechanism within the infrastructure of the CBI, comprising of experts in the field who can evaluate the material for the decision to be made, introduction therein of a body of experts having expertise of the kind of business which requires the decision to be made, can be appreciated. But then, the final opinion is to be of the CBI with the aid of that advice and not that of anyone else. It would be more appropriate to have such a body within the infrastructure of the CBI itself.
The Single Directive cannot, therefore, be upheld as valid on the ground of it being permissible in exercise of the power of superintendence of the Central Government under
Section 4(1) of the Act. The matter has now to be considered de hors the Single Directive.
Power of the Supreme Court
In view of the common perception shared by everyone including the Government of India and the Independent Review Committee (IRC) of the need for insulation of the CBI from extraneous influence of any kind, it is imperative that some action is urgently taken to prevent the continuance of this situation with a view to ensure proper implementation of the rule of law. This is the need of equality guaranteed in the Constitution. The right to equality in a situation like this is that of the Indian polity and not merely of a few individuals. The powers conferred on this Court by the Constitution are ample to remedy this defect and to ensure enforcement of the concept of equality.
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There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of this Court as provided in Article 144 of the Constitution. In a catena of decisions of this Court, this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role. It is in the discharge of this duty that the IRC was constituted by the Government of India with a view to obtain its recommendations after an indepth study of the problem in order to implement them by suitable executive directions till proper legislation is enacted. The report of the IRC has been given to the Government of India but because of certain difficulties in the present context, no further action by the executive has been possible. The study having been made by a Committee considered by the Government of India itself as an expert body, it is safe to act on the recommendations of the IRC to formulate the directions of this Court, to the extent they are of assistance. In the remaining area, on the basis of the study of the IRC and its recommendation, suitable directions can be formulated to fill the entire vacuum. This is the exercise we propose to perform in the present case since this exercise can no longer be delayed. It is essential and indeed the constitutional obligation of this Court under the aforesaid provisions to issue the necessary directions in this behalf. We now consider formulation of the needed directions in the performance of this obligation. The directions issued herein for strict compliance are to operable till such time as they are replaced by suitable legislation in this behalf.
There is another aspect of rule of law which is of equal significance. Unless a proper investigation is made and it is followed by an equally proper prosecution, the effort made would not bear fruition. The recent experience in the field of prosecution is also discouraging.
To emphasise this point, some reference has to be made to a large number of prosecutions launched as a result of monitoring by the court in this matter which have resulted in discharge of the accused at the threshold. It took several years for the CBI to commence investigation and that too as a result of the monitoring by this Court. It is not as if the CBI, on conclusion of the investigation, formed the opinion that no case was made out for prosecution so that the earlier inaction may have been justified. The CBI did file numerous chargesheets which indicated that in its view a prima facie case for prosecution had been made out. This alone is sufficient to indicate that the earlier inaction was unjustified. However, discharge of the accused on filing of the chargesheet indicates, irrespective of the ultimate outcome of the matters pending in the higher courts, that the trial court at least was not satisfied that a prima fade case was made out by the investigation. These facts are sufficient to indicate that either the investigation or the prosecution or both were lacking. A similar result of discharge of the accused in such a large number of cases where chargesheets had been filed by the CBI is not consistent with any other inference. The need for a strong and competent prosecution machinery and not merely a fair and competent investigation by the CBI can hardly be overemphasised. This is the occasion for us to take the view that a suitable machinery for prosecution of the cases filed in court by the CBI is also essential to ensure discharge of its full responsibility by the CBI. Unless a competent prosecution follows a fair and competent investigation, the exercise in the ultimate analysis would be futile. Investigation and prosecution are inter-related and improvement of investigation without improving the prosecution machinery is of no practical significance. We would, therefore, consider the aspect of prosecution also in the formulation of the guidelines.
… As pointed out in Vishakha (1997) 6 SCC 241, it is the duty of the executive to fill the vacuum by executive orders because its field is coterminous with that the legislature, and where there is inaction even by the executive for whatever reason, the judiciary must step in,
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in exercise of its constitutional obligations under the aforesaid provisions to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field.
On this basis, we now proceed to give the directions enumerated hereafter for rigid compliance till such time as the legislature steps in to substitute them by proper legislation.
These directions made under Article 32 read with Article 142 to implement the rule of law wherein the concept of equality enshrined in Article 14 is embedded, have the force of law under Article 141 and by virtue of Article 144, it is the duty of all authorities, civil and judicial, in the territory of India to act in aid of this Court. In the issuance of these directions, we have accepted and are reiterating as far as possible the recommendations made by the IRC.
It is a similar perception in England which has led to the Constitution of a Committee headed by Lord Nolan on “Standards in Public Life”. …
The Seven Principles of Public Life are stated in the Report by Lord Nolan, thus:
The Seven Principles of Public Life
Selflessness
Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends.
Integrity
Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisation that might influence them in the performance of their official duties.
Objectivity
In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.
Accountability
Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office. Openness
Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.
Honesty
Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.
Leadership
Holders of public office should promote and support these principles by leadership and example.
These principles of public life arc of general application in every democracy and one is expected to bear them in mind while scrutinising the conduct of every holder of a public office.
It is trite that the holders of public offices are entrusted with certain power to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with instead of being pushed under the carpet. If the conduct amounts an
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offence, it must be promptly investigated and the offender against whom a prima jade, case is made out should be prosecuted expeditiously so that the majesty of law is upheld and the rule of law vindicated. It is the duly of the judiciary to enforce the rule of law and, therefore, to guard against erosion of the rule of law.
The adverse impact of lack of probity in public life leading to a high degree of corruption is manifold. It also has adverse effect on foreign investment and funding from the International
Monetary Fund and the World Bank who have warned that future aid to under-developed countries may be subject to the requisite steps being taken to eradicate corruption, which prevents international aid from reaching those for whom it is meant. Increasing corruption has led to investigative journalism which is of value to a free society. The need to highlight corruption in public life through the medium of public interest litigation invoking judicial review may be frequent in India but is not unknown in other countries : R v. Secretary of State for Foreign and Commonwealth Affairs (1955) 1 WLR 386.
Of course, the necessity of desirable procedures evolved by court rules to ensure that such a litigation is properly conducted and confined only to matters of public interest is obvious.
This is the effort made in these proceedings for the enforcement of fundamental rights guaranteed in the Constitution in exercise of powers conferred on this Court for doing complete justice in a cause. It cannot be doubted that there is a serious human rights aspect involved in such a proceeding because the prevailing corruption in public life, if permitted to continue unchecked, has ultimately the deleterious effect of eroding the Indian polity.
As a result of the aforesaid discussion, we hereby direct as under:
I CENTRAL BUREAU OF INVESTIGATION (CBI) AND CENTRAL VIGILANCE
COMMISSION (CVC)
1. The Central Vigilance Commission (CVC) shall be given statutory status.
2. Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Minister, Home Minister and the Leader of the Opposition from a panel of outstanding civil servants and others with impeccable integrity, to be furnished by the Cabinet Secretary. The appointment shall be made by the President on the basis of the recommendations made by the Committee. This shall be done immediately.
3. The CVC shall be responsible for the efficient functioning of the CBI. While
Government shall remain answerable for the CBI 's functioning, to introduce visible objectivity in the mechanism to be established for over viewing the CBI 's working, the
CVC shall be entrusted with the responsibility of superintendence over the CBPs functioning. The CBI shall V report to the CVC about cases taken up by it for investigation; progress of investigations; cases in which chargesheets are filed and their progress. The CVC shall review the progress of all cases moved by the CBI for sanction of prosecution of public servants which are pending with the competent authorities, specially those in which sanction has been delayed or refused.
4. The Central Government shall take all measures necessary to ensure that the CBI functions effectively and efficiently and is viewed as a non-partisan agency.
5. The CVC shall have a separate section in its Annual Report on the CBl 's functioning alter the supervisory function is transferred to it.
6. Recommendations for appointment of the Director, CBI shall be made by a Committee headed by the Central Vigilance Commissioner with the Home Secretary and Secretary
(Personnel) as members. The views of the incumbent Director shall be considered by the
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Committee for making the best choice. The Committee shall draw up a panel of IPS officers on the basis of their seniority, integrity, experience in investigation and anticorruption work. The final selection shall be made by the Appointments Committee of the
Cabinet (ACC) from the panel recommended by the Selection Committee. If none among the panel is found suitable, the reasons thereof shall be recorded and the Committee asked to draw up a fresh panel.
7. The Director, CBI shall have a minimum tenure of two years, regardless of the date of his superannuation. This would ensure that an officer suitable in all respects is not ignored merely because he has less than two years to superannuate from the date of his appointment. 8. The transfer of an incumbent Director, CBI in an extraordinary situation, including the need for him to take up a more important assignment, should have the approval of the
Selection Committee.
9. The Director, CBI shall have full freedom for allocation of work within the agency as also for constituting teams for investigations. Any change made by the Director, CBI in the Head of an investigative team should be for cogent reasons and for improvement in investigation, the reasons being recorded.
10. Selection/extension of tenure of officers upto the level of Joint Director (JD) shall be decided by a Board comprising the Central Vigilance Commissioner, Home Secretary and
Secretary (Personnel) with the Director, CBI providing the necessary inputs. The extension of tenure or premature repatriation of officers upto the level of Joint Director shall be with final approval of (his Board. Only cases pertaining to (he appointment or extension of (enure of officers of the rank of Joint Director or above shall be referred to the Appointments Committee of the Cabinet (ACC) for decision.
11. Proposals for improvement of infrastructure, methods of investigation, etc. should be decided urgently. In order to strengthen CBI 's in-house expertise, professionals from the revenue, banking and security sectors should be inducted into the CBI.
12. The CBI Manual based on statutory provisions of the Cr.P.C. provides essential guidelines for the CBI 's functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the concerned officials.
13. The Director, CBI shall be responsible for ensuring the filing of chargesheets in courts within the stipulated time limits, and the matter should be kept under constant review by the Director, CBI.
14. A document on CBI 's functioning should be published within three months to provide the general public with a feedback on investigations and information for redress of genuine grievances in a manner which does not compromise with the operational requirements of the CBI.
15. Time limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG 's office.
16. The Director, CBI should conduct regular appraisal of personnel to prevent corruption and/or inefficiency in the agency.
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II. ENFORCEMENT DIRECTORATE
1. A Selection Committee headed by the Central Vigilance Commissioner and including the Home Secretary, Secretary (Personnel) and Revenue Secretary, shall prepare a panel for appointment of the Director, Enforcement Directorate. The appointment to the post of
Director shall be made by the Appointments Committee of the Cabinet (ACC) from the panel recommended by the Selection Committee.
2. The Director, Enforcement Directorate like the Director, CBI shall have a minimum tenure of two years. In his case also, premature transfer for any extraordinary reason should be approved by the aforesaid Selection Committee headed by the Central Vigilance
Commissioner.
3. In view of the importance of the post of Director, Enforcement Directorate, it shall be upgraded to that of an Additional Secretary/Special Secretary to the Government.
4. Officers of the Enforcement Directorate handling sensitive assignments shall be provided adequate security to enable them to discharge their functions fearlessly.
5. Extensions of tenure upto the level of Joint Director in the Enforcement Directorate should be decided by the said Committee headed by the Central Vigilance Commissioner.
6. There shall be no premature media publicity by the CBI/Enforcement Directorate.
7. Adjudication/commencement of prosecution shall be made by the Enforcement
Directorate within a period of one year.
8. The Director, Enforcement Directorate shall monitor and ensure speedy completion of investigations/adjudications and launching of prosecutions. Revenue Secretary must review their progress regularly.
9. For speedy conduct of investigations abroad, the procedure to approve filing of applications for Letters Rogatory shall be streamlined and, if necessary, Revenue
Secretary authorised to grant the approval.
10. A comprehensive circular shall be published by the Directorate to inform the public about the procedures/systems of its functioning for the sake of transparency.
11. In-house legal advice mechanism shall be strengthened by appointment of competent legal advisers in the CBI/Directorate of Enforcement.
12. The Annual Report of the Department of Revenue shall contain a detailed account on the working of the Enforcement Directorate.
III. NODAL AGENCY
1. A Nodal Agency headed by the Home Secretary with Member (Investigation), Central
Board of Direct Taxes, Director General, Revenue Intelligence, Director, Enforcement and Director, CBI as members, shall he constituted for coordinated action in cases having politico-bureaucrat-criminal nexus.
2. The Nodal Agency shall meet at least once every month.
3. Working and efficacy of the Nodal Agency should be watched for about one year so as to improve it upon the basis of the experience gained within this period.
IV. PROSECUTION AGENCY
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1. A panel of competent lawyers of experience and impeccable reputation shall be prepared with the advice of the Attorney General. Their services shall be utilised as
Prosecuting Counsel in cases of significance. Even during the course of investigation of an offence, the advice of a lawyer chosen from the panel should be taken by the
CBI/Enforcement Directorate.
2. Every prosecution which results in the discharge or acquittal of the accused must be reviewed by a lawyer on the panel and, on the basis of the opinion given, responsibility should be fixed for dereliction of duly, if any, of the concerned officer. In such cases, strict action should be taken against the officer found guilty of dereliction of duty,
3. The preparation of the panel of lawyers with the approval of the Attorney General shall be completed within three months.
4. Steps shall be taken immediately for the Constitution of an able and impartial agency comprising persons of unimpeachable integrity to perform functions akin to those of the
Director of Prosecutions in U.K. On the Constitution of such a body, the task of supervising prosecutions launched by the CBI/Enforcement Directorate shall be entrusted to it.
5. Till the Constitution of the aforesaid body, Special Counsel shall be appointed for the conduct of important trials on the recommendation of the Attorney General or any other law officer designated by him.
The learned amicus curiae had urged us to issue directions for the appointment of an authority akin to the Special or Independent Counsel in the United States of America for the investigation of charges in politically sensitive matters and for the prosecution of those cases and to ensure that appointments to sensitive posts in the CBI and other enforcement agencies and transfers therefrom were not made by the political executive. We are of the view that the time for these drastic steps has not come. It is our hope that it never will, for we entertain the belief that the investigative agencies shall function far better now, having regard to all that has happened since these writ petitions were admitted and to the directions which are contained in this judgment. The personnel of the enforcement agencies should not now lack the courage and independence to go about their task as they should, even where those to be investigated are prominent and powerful persons.
In view of the problem in the States being even more acute, as elaborately discussed in the Report of the National Police Commission (1979), there is urgent need for the State
Governments also to set up credible mechanism for selection of the Police Chief in the States.
The Central Government must pursue the matter with the State Governments and ensure that a similar mechanism, as indicated above, is set up in each State for the selection/appointment, tenure, transfer and posting of not merely the Chief of the State Police but also all police officers of the rank of Superintendent of Police and above. It is shocking to hear, a matter of common knowledge, that in some States the tenure of a Superintendent of Police is on an average only a few months and transfers are made for whimsical reasons. Apart from demoralising the police force, it has also the adverse effect of politicizing the personnel. It is, therefore, essential that prompt measures are taken by the Central Government within the ambit of their constitutional powers in the federation to impress upon the State Governments that such a practice is alien to the envisaged constitutional machinery. The situation described in the National Police Commission 's Report (1979) was alarming and it has become much worse by now. The desperation of the Union Home Minister in his letters to the State
Governments, placed before us at the hearing, reveal a distressing situation which must be
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cured, if the rule of law is to prevail. No action within the Constitutional Scheme found necessary to remedy the situation is too stringent in these circumstances.
In the result, we strike down Directive No. 4.7(3) of the Single Directive quoted above and issue the above directions, which have to be construed in the light of the earlier discussion.
The Report of the Independent Review Committee (IRC) and its recommendations which are similar to this extent can be read, if necessary, for a proper appreciation of these directions.
To the extent we agree with the conclusions and recommendations of the IRC, and that is a large area, we have adopted the same in the formulation of the above directions. These directions require the strict compliance/adherence of the Union of India and all concerned.
The writ petitions are disposed of in the above terms. …
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Citations: In BALCO Employees Union v. Union of India, (2002) 2 SCC 333, this Court further pointed out that the Court ought to stay away from judicial review of efficacy of policy
CONSTITUTIONAL LAW I
CASES AND MATERIALS
KHAGESH GAUTAM
© KHAGESH GAUTAM | 2014
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TABLE OF CONTENTS
UNIT 1 – THE CONCEPT OF STATE (ARTICLE 12) ................................................................................... 5
RAJASTHAN STATE ELECTRICITY BOARD V. MOHAN LAL ............................................................. 5
R. D. SHETTY V. INT’L AIRPORT AUTHORITY OF INDIA ............................................................... 10
AJAY HASIA V. KHALID MUJIB .................................................................................................... 19
DALCO ENGINEERING V. S. P. PADHYE ....................................................................................... 29
PRADEEP KUMAR BISWAS V. INDIAN INSTITUTE OF CHEMICAL BIOLOGY ................................... 36
UNIT 2 – FUNDAMENTAL RIGHTS COMPLIANCE REVIEW (ARTICLE 13) .............................................. 52
KESHAVA MADHAVA MENON V. STATE OF BOMBAY .................................................................. 52
STATE OF GUJARAT V. SHRI AMBIKA MILLS ............................................................................... 66
UNIT 3 – EQUALITY CLAUSE (ARTICLE 14) ......................................................................................... 76
DOCTRINE OF REASONABLE CLASSIFICATION ..................................................................................... 76
STATE OF WEST BENGAL V. ANWAR ALI SARKAR ...................................................................... 76
DOCTRINE OF ARBITRARINESS ......................................................................................................... 112
NATURAL RESOURCES ALLOCATION, IN RE SPECIAL REFERENCE NO. 1 OF 2012 ..................... 112
UNIT 4 – AFFIRMATIVE ACTION (ARTICLES 15 AND 16) .................................................................... 135
RESERVATION IN EDUCATIONAL INSTITUTIONS ................................................................................. 135
STATE OF MADRAS V. CHAMPAKAM DORAIRAJAN .................................................................... 135
RESERVATION IN GOVERNMENT EMPLOYMENT ................................................................................. 139
STATE OF KERALA V. N. M. THOMAS ........................................................................................ 139
INDRA SAWHNEY V. UNION OF INDIA ........................................................................................ 151
UNIT 5 – FUNDAMENTAL FREEDOMS (ARTICLE 19)........................................................................... 190
POLITICAL SPEECH ......................................................................................................................... 190
ROMESH THAPAR V. STATE OF MADRAS ................................................................................... 190
BRIJ BHUSHAN V. STATE OF DELHI ........................................................................................... 194
FREEDOM OF THE PRESS ................................................................................................................ 195
BENNETT COLEMAN & CO. V. UNION OF INDIA ......................................................................... 195
REASONABLE RESTRICTIONS ON FREEDOM OF SPEECH .................................................................... 207
K. A. ABBAS V. UNION OF INDIA ............................................................................................... 207
AJAY GOSWAMI V. UNION OF INDIA .......................................................................................... 224
FREEDOM OF OCCUPATION ............................................................................................................ 235
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CHINTAMAN RAO V. STATE OF MADHYA PRADESH................................................................... 235
TMA PAI V. STATE OF KARNATAKA ......................................................................................... 237
FREEDOM OF MOVEMENT ............................................................................................................... 246
DR. N. B. KHARE V. STATE OF DELHI ........................................................................................ 246
FREEDOM TO FORM ASSOCIATIONS OR UNIONS ............................................................................... 252
STATE OF MADRAS V. V. G. ROW.............................................................................................. 252
JAMAAT-E-ISLAMI HIND V. UNION OF INDIA ............................................................................. 259
UNIT 6 – RIGHTS OF THE ACCUSED IN CRIMINAL TRIALS (ARTICLE 20) ............................................ 271
PROTECTION AGAINST SELF INCRIMINATION .................................................................................... 271
STATE OF BOMBAY V. KATHI KALU OGHAD ............................................................................. 271
SELVI V. STATE OF KARNATAKA ............................................................................................... 285
UNIT 7 – PREVENTIVE DETENTION (ARTICLE 22) .............................................................................. 318
A. K. GOPALAN V. STATE OF MADRAS ...................................................................................... 318
UNIT 8 – LIFE AND PERSONAL LIBERTY (ARTICLE 21) ...................................................................... 365
PROCEDURE ESTABLISHED BY LAW ................................................................................................. 365
A. K. GOPALAN V. STATE OF MADRAS ...................................................................................... 365
MANEKA GANDHI V. UNION OF INDIA ....................................................................................... 382
LIFE AND PERSONAL LIBERTY.......................................................................................................... 392
FRANSCIS CORALIE MULLIN V. ADMINISTRATOR, UNION TERRITORY OF DELHI ...................... 392
OLGA TELLIS V. BOMBAY MUNICIPAL CORPORATION .............................................................. 400
UNIT 9 – RIGHT TO EDUCATION (ARTICLE 21A) ............................................................................... 417
SOCIETY FOR UNAIDED PRIVATE SCHOOLS V. UNION OF INDIA................................................. 417
UNIT 10 – RELIGIOUS FREEDOM (ARTICLES 25, 26, 27 & 28)............................................................ 447
DOCTRINE OF ESSENTIAL PRACTICES .............................................................................................. 447
COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS V. SWAMIAR OF SHIRUR ............................ 447
ACHARYA JAGDISHWARANAND AVADHUTA V. COMMISSIONER OF POLICE, CALCUTTA ........... 464
BIJOE EMMANUEL V. STATE OF KERALA ................................................................................... 469
SEPARATION OF RELIGION AND STATE ............................................................................................. 475
P. M. BHARGAVA V. UNIVERSITY GRANTS COMMISSION .......................................................... 475
PRAFULL GORADIA V. UNION OF INDIA ..................................................................................... 482
UNIT 11 – MINORITY RIGHTS (ARTICLES 29 AND 30) ........................................................................ 485
S. AZEEZ BASHA V. UNION OF INDIA ......................................................................................... 485
DAYANAND ANGLO VEDIC COLLEGE V. COLLEV. STATE OF PUNJAB ........................................ 496
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TMA PAI FOUNDATION V. STATE OF KARNATAKA ................................................................... 505
UNIT 12 – FUNDAMENTAL RIGHTS AND THE DOCTRINE BASIC STRUCTURE ..................................... 525
DOCTRINE OF BASIC STRUCUTRE .................................................................................................... 525
KESAVANANDA BHARTI V. UNION OF INDIA ............................................................................. 525
HARMONY BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES OF STATE POLICY ............ 550
MINERVA MILLS V. UNION OF INDIA ......................................................................................... 550
UNIT 13 – PUBLIC INTEREST LITIGATION .......................................................................................... 563
BANDHUA MUKTI MORCHA V. UNION OF INDIA ........................................................................ 563
VINEET NARAIN V. UNION OF INDIA .......................................................................................... 585
Page 4 of 610
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UNIT 1 – THE CONCEPT OF STATE (ARTICLE 12)
RAJASTHAN STATE ELECTRICITY BOARD V. MOHAN LAL
AIR 1967 SC 1857
Decided On: April 3, 1967
BENCH – CHIEF JUSTICE K. SUBBA RAO, JUSTICES J. C. SHAH, J. M. SHELAT, V. BHARGAVA
& G. K. MITTER
JUSTICE BHARGAVA (FOR THE CHIEF JUSTICE, JUSTICES SHELAT, MITTER AND HIMSELF,
MAJORITY OPINION)
The appellant in this appeal is Electricity Board of Rajasthan Jaipur (hereinafter referred to as "the Board") a body corporate constituted on 1st July 1957, under the Electricity (Supply)
Act, 1948 (No. 54 of 1948). Before the constitution of the Board the supply of electricity in the State of Rajasthan was being controlled directly by a department of the State Government named as the Electrical and Mechanical Department. Respondent No. 1 Mohan Lal as well as respondents 4 to 14 were all permanent employees of the State Government holding posts of
Foremen in the Electrical and Mechanical Department. On the constitution of the Board the services of most the employees including all these respondents were provisionally placed at the disposal of the Board by a notification issued by the Government on 12th February, 1958 purporting to exercise its power under section 78A of Act 54 of 1948.
In this notification a direction was included that the Board was to frame its own new grades and service conditions under its regulations and the employees whose service were transferred to the Board were to exercise option either to accept these new grades and service conditions or to continue in their existing grades and service conditions except in regards to conduct and disciplinary rules or to obtain relief from Government service by claiming pension or gratuity as might be admissible on abolition of post under the Rajasthan Service
Rules. The Board however did not frame any new grades and service conditions at least up to the time that the present litigation arose.
Respondent No. 1 was however deputed by the State Government by its order dated 27th
January, 1960 after having worked under the Board for a period of about two years to the
Public Works Department of the Government On 10th August, 1960 an order was made by the
Government addressed to the Secretary of the Board indicating that respondent no. 1 as well as respondent no. 4 to 14 were to be treated as on deputation to the Board. On 24th November,
1962 the Public Work Department passed an order reverting respondent no. 1 to his parent department with effect from 1st December, 1962 but the period of deputation was later extended till 25th July, 1963. On 11th July, 1963 he was actually reverted to the Board from the Public Works Department and the Board issued orders posting respondents no. 1 as a
Foreman. In the interval while respondent No. 1 was working in the Public Works Department respondent 4 to 14 had been promoted by the Board as Assistant Engineers while respondent no. 1 was promoted to work as Assistant Engineer in the Public Works Department. On his reversion, respondent no. 1 claimed that he was also entitled to be promoted as Assistant
Engineer under the Board because some of the other respondents promoted were junior to him and in the alternative that in any case he was entitled to be considered for promotion.
This request made by him to the Board as well as to the State Government was turned down and thereupon respondent no. 1 filed a petition under Article 226 and 227 of the
Constitution in the High Court of Rajasthan. Respondent no. 1 claimed that he was entitled to equality of treatment with respondent 4 to 14 and inasmuch as he had not been considered for
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promotion with them by the Board, the Board had acted in violation of Article 14 and 16 of the Constitution. The Board contested the petition on two grounds. The first ground was that respondent no. 1 had never become a permanent servant of the Board and never held any substantive post under it so that he could not claim to be considered for promotion with respondents 4 to 14. The second ground was that the Board could not be held to be "State " as defined in Article 12 of the Constitution and consequently no direction could be issued to the
Board by the High Court under Art 226 or 227 of the Constitution on the basis that the action of the Board had violated Article 14 and 16 of the Constitution. The High Court rejected both these ground accepted the plea of respondent no. 1 and quashed the order of promotion of respondents 4 to 14 and issued a direction to the Board to consider promotions afresh after taking into account the claims of respondent no. 1. The Board has now come up in appeal to this Court by Special leave against this order of the High Court. Apart from the Board the
State of Rajasthan and the Chief Engineer & Technical Member of the Rajasthan State
Electricity Board Jaipur were also impleaded as opposite parties in the writ petition and they are respondents 2 and 3 in this appeal.
… [Arguments of counsel on the first ground have been omitted] …
On the second point that the Board cannot be held to be "State" within its meaning in
Art. 12 of the Constitution, Mr. Desai urged that, on the face of it, the Board could not be held to be covered by the authorities named therein, viz., the Government and Parliament of India and the Government and the Legislature of each of the States and local authorities, and the expression "other authorities", if read ejusdem generis with those named, cannot cover the
Board which is a body corporate having a separate existence and has been constituted primarily for the purpose of carrying on commercial activities. In support of his proposition that the expression "other authorities" should be interpreted ejusdem generis, he relied on a decision of the Madras High Court in University of Madras v. Shantha Bai, AIR 1954 Mad.
67. The High Court, considering the question whether a University can be held to be local or other authority as defined in Art. 12, held:
"These words must be construed 'ejusdem generis ' with Government or
Legislature, and, so construed, can only mean authorities exercising governmental functions. They would not include persons natural or juristic who cannot be regarded as instrumentalities of the Government. The University of
Madras is a body corporate created by Madras Act VII of 1923. It is not charged with the execution of any governmental functions; its purpose is purely to promote education. Though section 44 of the Act provides for financial contribution by the local Government, the University is authorised to raise its own funds of income from fees, endowments and the like. It is a State-aided institution, but it is not maintained by the State."
In B. W. Devadas v. Selection Committee for Admission of Students to the Karnatak
Engineering College, AIR 1964 Mys. 6, the High Court of Mysore similarly held:
"The term 'authority ' in the ordinary dictionary sense may comprise not merely a person or a group of persons exercising governmental power, but also any person or group of persons who, by virtue of their position in relation to other person or persons, may be able to impose their will upon that other person or persons. But there is an essential difference between a political association of persons called 'the State ' giving rise to political power connoted by the well-known expression 'imperative law ' and a non-political association of persons for other purposes by contract, consent or similar type of mutual understanding related to the common object of persons so associating themselves together giving rise to a power which operates not in the manner in which imperative law
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operates, but by virtue of its acceptance by such associating persons based upon contract, consent or mutual understanding."
Proceeding further, the Court held:
"The term 'authorities ' occurring in Art. 12 could only mean a person or a group of persons who exercise the legislative or executive functions of a State or through whom or through the instrumentality of whom the
State exercises its legislative or executive power."
The latest case on the point cited by Mr. Desai is the decision of the Punjab High Court in Krishan Gopal Ram Chand Sharma v. Punjab University, AIR 1966 P&H 34 where the decision given in the case of University of Madras, AIR 1954 Mad. 67 was followed and the principle laid down therein was approved and applied. On the basis of these decisions, and the principles laid down therein, it was urged that an examination of the provisions of the
Electricity Supply Act will show that the Board is an autonomous body which cannot be held to be functioning as an agent of the Executive Government and, consequently, it should be held that it is not "State" within the meaning of Art. 12 of the Constitution.
In our opinion, the High Courts fell into an error in applying the principle of ejusdem generis when interpreting the expression "other authorities" in Art. 12 of the Constitution, as they overlooked the basic principle of interpretation that, to invoke the application of ejusdem generis rule, there must be a distinct genus or category running through the bodies already named. Craies on Statute Law summarises the principle as follows:"The ejusdem generis rule is one to be applied with caution and not pushed too far... To invoke the application of the ejusdem generis rule there must be a distinct genus or category. The specific words must apply not to different objects of a widely differing character but to something which can be called a class or kind of objects. Where this is lacking, the rule cannot apply, but the mention of a single species does not constitute a genus."
Maxwell in his book on 'Interpretation of Statutes ' explained the principle by saying:
"But the general word which follows particular and specific words of the same nature as itself takes its meaning from them, and is presumed to be restricted to the same genus as those words.... Unless there is a genus or category, there is no room for the application of the ejusdem generis doctrine." In United Towns Electric Co., Ltd, v. Attorney-General for Newfoundland, (1939) 1 All
E.R. 423, the Privy Council held that, in their opinion, there is no room for the application of the principle of ejusdem generis in the absence of any mention of a genus, since the mention of a single species – for example, water rates - does not constitute a genus. In Art. 12 of the
Constitution, the bodies specifically named are the Executive Governments of the Union and the States, the Legislature of the Union and the States, and local authorities. We are unable to find any common genus running through these named bodies, nor can these bodies be placed in case single on any rational basis. The doctrine of ejusdem generis could not therefore, be applied to the interpretation of the expression "other authorities" in this article.
The meaning of the word "authority" given in Webster 's Third New International
Dictionary, which can be applicable, is "a public administrative agency or corporation having quasi-governmental powers and authorised to administer a revenue-producing public enterprise." This dictionary meaning of the word "authority" is clearly wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasi-governmental functions. The expression "other authorities" is wide enough to include within it every authority created by a statute and functioning within the territory of India, or
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under the control of the Government of India; and we do not see any reason to narrow down this meaning in the context in which the words "other authorities" are used in Art. 12 of the
Constitution.
In Ujjam Bai v. State of Uttar Pradesh, [1963] 1 SCR 778, Ayyangar, J., interpreting the words "other authorities" in Art. 12 held:
"Again, Art. 12 winds up the list of authorities falling within the definition by referring to 'other authorities within the territory of India which cannot obviously be read as ejusdem generis with either the
Government and the Legislatures or local authorities. The words are of wide amplitude and capable of comprehending every authority created under a statute and functioning within the territory of India or under the control of the Government of India. There is no characterisation of the nature of the 'authority ' in this residuary clause an consequently it must include every type of authority set up under a statute for the purpose of administering laws enacted by the Parliament or by the State including those vested with the duty to make decisions in order to implement those laws." In K. S. Ramamurthi Reddiar v. Chief Commissioner, Pondicherry, [1964] 1 SCR
656, this Court, dealing with Art. 12, held:
"Further, all local or other authorities within the territory of India include all authorities within the territory of India whether under the control of the Government of India or the Governments of various States and even autonomous authorities which may not be under the control of the
Government at all."
These decisions of the Court support our view that the expression "other authorities" in
Art. 12 will include all constitutional or statutory authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purpose of carrying on commercial activities. Under the Constitution, the State is itself envisaged as having the right to carry on trade or business as mentioned in Art, 19(1)(g). In Part IV, the
State has been given the same meaning as in Art. 12 and one of the Directive Principles laid down in Art. 46 is that the State shall promote with special care the educational and economic interests of the weaker sections of the people. The State, as defined in Art. 12, is thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people. The State, as constituted by our Constitution, is further specifically empowered under Art. 298 to carry on any trade or business. The circumstance that the Board under the Electricity Supply Act is required to carry on some activities of the nature of trade or commerce does not, therefore, give any indication that the Board must be excluded from the scope of the word "State" as used in Art. 12. On the other hand, there are provisions in the Electricity Supply Act which clearly show that the powers conferred on the
Board include power to give directions, the disobedience of which is punishable as a criminal offence. In [these] circumstances, we do not consider it at all necessary to examine the cases cited by Mr. Desai to urge before us that the Board cannot be held to be an agent or instrument of the Government. The Board was clearly an authority to which the provisions of Part III of the Constitution were applicable.
We have already held earlier that, in dealing with the case of respondent No. 1, the Board did not treat him on terms of equality with respondents Nos. 4 to 14 and did not afford to him the opportunity for being considered for promotion to which he was entitled on that basis. The
High Court was, therefore, right in allowing the petition of respondent No. 1. The appeal is dismissed with costs.
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JUSTICE SHAH (FOR HIMSELF, PARTLY CONCURRING)
I agree with the order proposed by Bhargava, J.
The Board is an authority invested by statute with certain sovereign powers of the State.
It has the power of promoting coordinated development, generation, supply and distribution of electricity and for that purpose to make, alter, amend and carry out schemes under Ch. V of the Electricity (Supply) Act, 1948, to engage in certain incidental undertakings; to organise and carry out power and hydraulic surveys; to conduct investigation for the improvement of the methods of transmission; to close down generating stations; to compulsorily purchase generating stations, undertakings, mains and transmission lines; to place wires, poles, brackets, appliances, apparatus, etc; to fix grid tariff; to issue directions for securing the maximum economy and efficiency in the operation of electricity undertakings; to make rules and regulations for carrying out the purposes of the Act; and to issue directions under certain provisions of the Act and to enforce compliance with those directions. The Board is also invested by statute with extensive powers of control over electricity undertakings. The power to make rules and regulations and to administer the Act is in substance the sovereign power of the State delegated to the Board. The Board is, in my judgment, "other authority" within the meaning of Art. 12 of the Constitution.
I am unable, however, to agree that every constitutional or statutory authority on whom powers are conferred by law is "other authority" within the meaning of Art. 12. The expression
"authority" in its etymological sense means a body invested with power to command or give an ultimate decision, or enforce obedience, or having a legal right to command and be obeyed.
The expression "State" is defined in Art. 12 for the purpose of Part III of the Constitution.
Article 13 prohibits the State from making any legislative or executive direction which takes away or abridges the rights conferred by Part III and declares any law or executive direction in contravention of the injunction void to the extent of such contravention. In determining what the expression "other authority" in Art. 12 connotes, regard must be had not only to the sweep of fundamental rights over the power of the authority, but also to the restrictions which may be imposed upon the exercise of certain fundamental rights (e.g., those declared by
Art. 19) by the authority. Fundamental rights within their allotted fields transcend the legislative and executive power of the sovereign authority. But some of the important fundamental rights are liable to be circumscribed by the imposition of reasonable restrictions by the State. The true content of the expression "other authority" in Art. 12 must be determined in the light of this dual phase of fundamental rights. In considering whether a statutory or constitutional body is an authority within the meaning of Art. 12, it would be necessary to bear in mind not only whether against the authority, fundamental rights in terms absolute are intended to be enforced, but also whether it was intended by the Constitution-makers that the authority was invested with the sovereign power to impose restrictions on very important and basic fundamental freedoms.
In my judgment, authorities constitutional or statutory invested with power by law but not sharing the sovereign power do not fall within the expression "State" as defined in Art. 12.
Those authorities which are invested with sovereign power i.e., power to make rules or regulations and to administer or enforce them to the detriment of citizens and others fall within the definition of "State" in Art. 12, and constitutional or statutory bodies which do not share that sovereign power of the State are not, in my judgment, "State" within the meaning of
Art. 12 of the Constitution.
Appeal dismissed.
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R. D. SHETTY V. INT’L AIRPORT AUTHORITY OF INDIA
AIR 1979 SC 1628, (1979) 3 SCC 489
Decided On: May 4, 1979
BENCH – JUSTICES P. N. BHAGWATI, V. D. TULZAPURKAR & R. S. PATHAK
JUSTICE P. N. BHAGWATI (FOR THE COURT)
This appeal by special leave raises interesting questions of law in the area of public law.
What are the constitutional obligations on the State when it takes action in exercise of its statutory or executive power? Is the State entitled to deal with its property in any manner it likes or award a contract to any person it chooses without any constitutional limitations upon it? What are the parameters of its statutory or executive power in the matter of awarding a contract or dealing with its property? These questions fell in the sphere of both administrative law and constitutional law and they assume special significance in a modern welfare State which is committed to egalitarian values and dedicated to the rule of law. But these questions cannot be decided in the abstract. They can be determined only against the back-ground of facts and hence we shall proceed to State the facts giving rise to the appeal.
On or about 3rd January, 1977 a notice inviting tenders for putting up and running a second class restaurant and two snack bars at the International Airport at Bombay was issued by the
1st respondent which is a corporate body constituted under the International Airport Authority
Act, 43 of 1971. The notice stated in the clearest terms in paragraph (1) that "Sealed tenders in the prescribed form are hereby invited from Registered IInd Class Hoteliers having at least
5 years ' experience for putting up and running a IInd Class Restaurant and two snack bars at this Airport for a period of 3 years". The 'latest point of time upto which the tenders could be submitted to the 1st respondent was stipulated in Paragraph 7 of the notice to be 12 p.m. on
25th January, 1977 and it was provided that the tenders would be opened on the same date at
12.30 hours. Paragraph (8) of the notice made it clear that "the acceptance of the tender will rest with the Airport Director who does not bind himself to accept any tender and reserves to himself the right to reject all or any of the tenders received without assigning any reasons therefore." There were six tenders received by the 1st respondent in response to the notice and one of them was from the 4th respondents of offering a licence fee of Rs. 6666.66 per month, and the others were from Cafe Mahim, Central Catering Service, one A.S. Irani, Cafe Seaside and Cafe Excelsior offering progressively decreasing licence fee very much lower than that offered by the 4th respondents. The tenders were opened in the office of the Airport Director at 12.30 p.m. on 25th January, 1977 and at that time the 4th respondents were represented by their sole proprietor Kurnaria. A.S. Irani was present on behalf of himself, Cafe Mahim, Cafe
Seaside and Cafe Excelsior and there was one representative of Central Catering Service.
The tenders of Cafe Mahim, Central Catering Service, Cafe Seaside and Cafe Excelsior were not complete since they were not accompanied by the respective income tax certificates, affidavits of immovable property and solvency certificates, as required by Clause (9) of the terms and conditions of the tender form. The tender of A.S. Irani was also not complete as it was not accompanied by an affidavit of immovable property held by him and solvency certificates. The only tender which was complete and fully complied with the terms and conditions of the tender form was that of the 4th respondents and the offer contained in that tender was also the highest amongst all the tenders. Now it is necessary to point out at this stage that while submitting their tender the 4th respondents had pointed out in their letter dated
24th January, 1977 addressed to the Airport Director that they had 10 years ' experience in catering to reputed commercial houses, training centers, banks and factories and that they were
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also doing considerable outdoor catering work for various institutions. This letter showed that the 4th respondents had experience only of running canteens and not restaurants and it appeared that they did not satisfy the description of "registered IInd Class Hotelier having at least 5 years ' experience" as set out in paragraph (1) of the notice inviting tenders. The Airport
Officer, therefore, by his letter dated 15th February, 1977 requested the 4th respondents to inform by return of post whether they were a "registered IInd Class Hotelier having at least 5 years’ experience" and to produce documentary evidence in this respect within 7 days.
The 4th respondents pointed out to the Airport Officer by their letter dated 22nd February,
1977 that they had, in addition to what was set out in their earlier letter dated 24th January,
1977, experience of running canteens for Phillips India Ltd. and Indian Oil Corporation and moreover, they held Eating House Licence granted by the Bombay Municipal Corporation since 1973 and had thus experience of 10 years in the catering line. It appears that before this letter of the 4th respondents could reach Airport Officer, another letter dated 22nd February,
1977 was addressed by the Airport Officer once again requesting the 4th respondents to produce documentary evidence to show if they were "a registered IInd Class Hotelier having at least 5 years’ experience". The 4th respondents thereupon addressed another letter dated 26th
February, 1977 to the Director pointing out that they had considerable experience of catering for various reputed commercial houses, clubs, messes and banks and they also held an Eating
House Catering Establishment (Canteen) Licence, as also a licence issued under the
Prevention of Food Adulteration Act.
The 4th respondents stated that their sole proprietor Kumaria had started his career in catering line in the year 1962 at Hotel Janpath, Delhi and gradually risen to his present position and that he had accordingly "experience equivalent to that of a IInd Class or even 1st Class hotelier." This position was reiterated by the 4th respondents in a further letter dated 3rd March,
1977 addressed to the Director. This information given by the 4th respondents appeared to satisfy the 1st respondent and by a letter dated 19th April, 1977 the 1st respondent accepted the tender of the 4th respondents on the terms and conditions set out in that letter. The 4th respondents accepted these terms and conditions by their letter dated 23rd April, 1977 and deposited with the 1st respondent by way of security a sum of Rs. 39,999.96 in the form of fixed Deposit Receipts in favour of the 1st respondent and paid to the 1st respondent a sum of
Rs. 6666.66 representing licence fee for one month and other amounts representing water, electricity and conservancy charges. The 4th respondents thereafter executed and handed over to the 1st respondent an agreement in the form attached to the tender on 1st May, 1977. The 4th respondents also got prepared furniture, counters and showcases as also uniforms for the staff, purchased inter alia deep freezers, water coolers, electrical appliances, ice cream cabinets, espreings and also engaged the necessary staff for the purpose of running the restaurant and the two snack bars. But the 1st respondent could not hand over possession of the requisite sites to the 4th respondents, since A.S. Irani was running his restaurant and snack bars on these sites under a previous contract with the 1st respondent and though that contract had come to an end,
A.S. Irani did not deliver possession of these sites to the 1st respondent. The 4th respondents repeatedly requested the 1st respondent and the Airport Director who is the 2nd respondent in the appeal, to hand over possession of the sites and pointed out to them that the 4th respondents were incurring losses by reason of delay in delivery of possession, but on account of the intransigence of A.S. Irani the 1st respondent could not arrange to hand over possession of the sites to the 4th respondents.
Meanwhile one K.S. Irani who owned Cafe Excelsior filed Suit No. 6544 of 1977 in the
City Civil Court, Bombay against the respondents challenging the decision of the 1st respondent to accept the tender of the 4th respondents and took out a notice of motion for restraining the 1st respondent from taking any further steps pursuant to the acceptance of the
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tender. K.S. Irani obtained an ad-interim injunction against the respondents but after hearing the respondents, the City Civil Court vacated the ad-interim injunction and dismissed the notice of motion by an order dated 10th October, 1977. An appeal was preferred by K.S. Irani against this order, but the appeal was dismissed by the High Court on 19th October, 1977.
Immediately thereafter, on the same day, the 1st respondent handed over possession of two sites to the 4th respondents and the 4th respondents proceeded to set up snack bars on the two sites and started business of catering at the two snack bars. These two sites handed over to the
4th respondents were different from the sites occupied by A.S. Irani, because A.S. Irani refused to vacate the sites in his occupation. So far as the site for the restaurant was concerned, the 1st respondent could not hand over the possession of it to the 4th respondents presumably because there was no other appropriate site available other than the one occupied by A.S. Irani. Since
A.S. Irani refused to hand over possession of the sites occupied by him to the 1st respondent, even though his contract had come to an end, and continued to carry on the business of running the restaurant and the snack bars on these sites, the 1st respondent was constrained to file suit
No. 8032 of 1977 against A.S. Irani in the City Civil Court at Bombay and in that suit, an injunction was obtained by the 1st respondent restraining A.S. Irani from running or conducting the restaurant and the snack bars or from entering the premises save and except for winding up the restaurant and der granting the injunction, but the appeal was rejected and ultimately a petition for special leave to appeal to this Court was also turned down on 31st
July, 1978.
This was, however, not to be the end of the travails of the 4th respondents, for, as soon as the appeal preferred by K.S. Irani against the order dismissing his notice of motion was rejected by the High Court on 19th October, 1977, A.S. Irani filed another suit being suit No.
8161 of 1977 in the City Civil Court, Bombay on 24th October, 1977 seeking mandatory injunction for removal of the two snack bars put up by the 4th respondents. This was one more attempt by A.S. Irani to prevent the 4th respondents from obtaining the benefit of the contract awarded to them by the 1st respondent. He, however, did not succeed in obtaining ad-interim injunction and we are told that the notice of motion taken out by him is still pending in the
City Civil Court.
It will thus be seen that A.S. Irani failed in his attempts to prevent the 4th respondents from obtaining the contract and enjoying its benefit. The 4th respondents put up two snack bars on the sites provided by the 1st respondent and started running the two snack bars from 19th
October, 1977. The restaurant however, could not be put up on account of the inability of the
1st respondent to provide appropriate site to the 4th respondents and, therefore, the licence fee for the two snack bars had to be settled and it was fixed at Rs. 4,500/- per month by mutual agreement between the parties. But it seems that the 4th respondents were not destined to be left in peace to run the two snack bars and soon after the dismissal of the appeal of A.S. Irani on 19th October, 1977 and the failure of A.S. Irani to obtain an ad-interim mandatory injunction in the suit filed by him against the 1st and the 4th respondents, the appellant filed writ petition No. 1582 of 1977 in the High Court of Bombay challenging the decision of the
1st respondent to accept the tender of the 4th respondents. The writ petition was moved before a Single Judge of the High Court on 8th November, 1977 after giving prior notice to the respondents and after hearing the parties, the learned Single Judge summarily rejected the writ petition. The appellant preferred an appeal to the Division Bench of the High Court against the order rejecting the writ petition and on notice being issued by the Division Bench, the 1st and the 4th respondents filed their respective affidavits in reply showing cause against the admission of the appeal. The Division Bench after considering the affidavits and hearing the parties rejected the appeal in limine on 21st February, 1978. The appellant thereupon filed a petition for special leave to appeal to this Court and since it was felt that the questions raised in the appeal were of seminal importance, this Court granted special leave and decided to hear
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the appeal at an early date after giving a further [opportunity to the] parties to file their respective affidavits. That is how the appeal has now come before us for final hearing with full and adequate material placed before us on behalf of both the parties.
The main contention urged on behalf of the appellant was that in paragraph (1) of the notice inviting tenders the 1st respondent had stipulated a condition of eligibility by providing that a person submitting a tender must be a "registered IInd class Hotelier having at least 5 years’ experience." This was a condition of eligibility to be satisfied by every person submitting a tender and if in case of [a] person, this condition was not satisfied, his tender was ineligible for being considered. The 1st respondent, being a State within the meaning of
Article 12 of the Constitution or in any event a public authority, was bound to give effect to the condition of eligibility set up by it and was not entitled to depart from it at its own sweet will without rational justification. The 4th respondents had experience of catering only in canteens and did not have 5 years ' experience of running a IInd class hotel or restaurant and hence they did not satisfy the condition of eligibility and yet the 1st respondent accepted the tender submitted by them. This was clearly in violation of the standard or norm of eligibility set up by the 1st respondent and the action of the 1st respondent in accepting the tender of the
4th respondents was clearly invalid. Such a departure from the standard or norm of eligibility had the effect of denying equal opportunity to the appellant and others of submitting their tenders and being considered for entering into contract for putting up and running the restaurant and two snack bars. The appellant too was not a registered 2nd class hotelier with 5 years ' experience and was in the same position as the 4th respondents vis-a-vis this condition of eligibility and he also could have submitted his tender and entered the field of consideration for award of the contract, but he did not do so because of this condition of eligibility which he admittedly did not satisfy. The action of the 1st respondent in accepting the tender of the 4th respondents had, therefore, opportunity in the matter of consideration for award of the contract and hence it was unconstitutional as being in violation of the equality clause.
… [Arguments of parties and discussion on interpretation of terms on which tender was to be awarded has been omitted]… To-day the Government, is a welfare State, is the regulator and dispenser of special services and provider of a large number of benefits, including jobs contracts, licences, quotas, mineral rights etc. The Government pours forth wealth, money, benefits, services, contracts, quotas and licences. The valuables dispensed by Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional forms of wealth.
These valuables which derive from relationships to Government are of many kinds. They comprise social security benefits, cash grants for political sufferers and the whole scheme of
State and local welfare. Then again, thousands of people are employed in the State and the
Central Governments and local authorities. Licences are required before one can engage in many kinds of business or work. The power of giving licences means power to withhold them and this gives control to the Government or to the agents of Government on the lives of many people. Many individuals and many more businesses enjoy largess in the form of Government contracts. These contracts often resemble subsidies. It is virtually impossible to lose money on them and many enterprises are set up primarily to do business with Government.
Government owns and controls hundreds of acres of public land valuable for mining and other purposes. These resources are available for utilisation by private corporations and individuals by way of lease or licence. All these mean growth in the Government largess and with the increasing magnitude and range of governmental functions as we move closer to a welfare
State, more and more of our wealth consists of these new forms. Some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges. Page 13 of 610
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But on that account, can it be said that they do not enjoy any legal protection? Can they be regarded as gratuity furnished by the State so that the State may withhold, grant or revoke it at its pleasure? Is the position of the Government in this respect the same as that of a private giver? We do not think so. The law has not been slow to recognise the importance of this new kind of wealth and the need to protect individual interest in it and with that end in view, it has developed new forms of protection. Some interests in Government largess, formerly regarded as privileges, have been recognised as rights while others have been given legal protection not only by forging procedural safeguards but also by confining/structuring and checking
Government discretion in the matter of grant of such largess. The discretion of the
Government has been held to be not unlimited in that the Government cannot give or withhold largess in its arbitrary discretion or at its sweet will. It is insisted, as pointed out by Prof. Reich in an especially stimulating article on "The New Property" in 73 Yale Law Journal 733, "that
Government action be based on standards that are not arbitrary or unauthorised." "The
Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith. The Government is still the Government when it acts in the matter of granting largess and it cannot act arbitrarily. It does not stand in the same position as a private individual.
We agree with the observations of Mathew, J., in V. Punnan Thomas v. State of Kerala,
AIR 1969 Ker. 81 that:
"The Government is not and should not be as free as an individual in selecting the recepients for its largess. Whatever its activity, the
Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic
Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal".
The same point was made by this Court in Erusian Equipment and Chemicals Ltd. v. State of West Bengal, [1975] 2 SCR 674 where the question was whether black-listing of a person without giving him an opportunity to be heard was bad? Ray, C.J., speaking on behalf of himself and his colleagues on the Bench pointed out that black-listing of a person not only affects his reputation which is in Poundian terms an interest both of personality and substance, but also denies him equality in the matter of entering into contract with the Government and it cannot, therefore, be supported without fair hearing. It was argued for the Government that no person has a right to enter into contractual relationship with the Government and the
Government, like any other private individual, has the absolute right to enter into contract with anyone it pleases. But the Court, speaking through the learned Chief Justice, responded that the Government is not like a private individual who can pick and choose the person with whom it will deal, but the Government is still a Government when it enters into contract or when it is administering largess and it cannot, without adequate reason, exclude any person from dealing with it or take away largess arbitrarily. The learned Chief Justice said that when the
Government is trading with the public, "the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions. The activities of the
Government have a public element and, therefore, there should be fairness and equality. The
State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure." This proposition would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in
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conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts, quotas, licences etc., must be confined and structured by rational, relevant and nondiscriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. Now, it is obvious that the Government which represents the executive authority of the
State, may act through the instrumentality or agency of natural persons or it may employ the instrumentality or agency of juridical persons to carry out its functions. In the early days, when the Government had limited functions, it could operate effectively through natural persons constituting its civil service and they were found adequate to discharge governmental functions, which were of traditional vintage. But as the tasks of the Government multiplied with the advent of the welfare State, it began to be increasingly felt that the framework of civil service was not sufficient to handle the new tasks which were often of specialised and highly technical character. The inadequacy of the civil service to deal with these new problems came to be realised and it became necessary to force a new instrumentality or administrative device for handling these new problems. It was in these circumstances and with a view to supplying this administrative need that the public corporation came into being as the third arm of the
Government.
As early as 1819 the Supreme Court of the United States in McCullough v. Maryland, 4
Wheat 315 held that the Congress has power to charter corporations as incidental to or in aid of governmental functions and, as pointed out by Mathew, J., in Sukhdev v. Bhagat Ram
(supra) such federal corporations would ex-hypothesi be agencies of the Government. In Great
Britain too, the policy of public administration through separate corporations was gradually evolved and the conduct of basic industries through giant corporations has now become a permanent feature of public life. So far as India is concerned, the genesis of the emergence, of corporations as instrumentalities or agencies of Government is to be found in the
Government of India Resolution on Industrial Policy dated 6th April, 1948 where it was stated inter alia that "management of State enterprises will as a rule be through the medium of public corporation under the statutory control of the Central Government who will assume such powers as may be necessary to ensure this." It was in pursuance of the policy envisaged in this and subsequent resolutions on Industrial Policy that corporations were created by Government for setting up and management of public enterprises and carrying out other public functions.
Ordinarily these functions could have been carried out by Government departmentally through its service personnel, but the instrumentality or agency of the corporations was resorted to in these cases having regard to the nature of the task to be performed. The corporations acting as instrumentality or agency of Government would obviously be subject to the same limitations in the field of constitutional and administrative law as Government itself, though in the eye of the law, they would be distinct and independent legal entities.
If Government acting through its officers is subject to certain constitutional and public law limitations, it must follow a fortiori that Government acting through the instrumentality or agency of corporations should equally be subject to the same limitations. But the question is how to determine whether a corporation is acting as instrumentality or agency of
Government. It is a question not entirely free from difficulty.
A corporation may be created in one of two ways. It may be either established by statute or incorporated under a law such as the Companies Act 1956 or the Societies Registration Act
1860. Where a Corporation is wholly controlled by Government not only in its policy making
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but also in carrying out the functions entrusted to it by the law establishing it or by the Charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of
Government. But ordinarily where a corporation is established by statute, it is autonomous in its working, subject only to a provision, often times made, that it shall be bound by any directions that may be issued from time to time by Government in respect of policy matters.
So also a corporation incorporated under law is managed by a board of directors or committee of management in accordance with the provisions of the statute under which it is incorporated.
When does such a corporation become an instrumentality or agency of Government? Is the holding of the entire share capital of the Corporation by Government enough or is it necessary that in addition, there should be a certain amount of direct control exercised by Government and, if so, what should be the nature of such control? Should the functions which the corporation is charged to carry out possess any particular characteristic or feature, or is the nature of the functions immaterial? Now, one thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. But, as is quite often the case, a corporation established by statute may have no shares or shareholders, in which case it would be a relevant factor to consider whether the administration is in the hands of a board of directors appointed by Government, though this consideration also may not be determinative, because even where the directors are appointed by Government, they may be completely free from governmental control in the discharge of their functions. What then are the tests to determine whether a corporation established by statute or incorporated under law is an instrumentality or agency of Government? It is not possible to formulate an all-inclusive or exhaustive test which would adequately answer this question. There is no cut and dried formula, which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those which are not.
The analogy of the concept of State action as developed in the United States may not, however, be altogether out of place while considering this question. The decisions of the court in the United States seem to suggest that a private agency, if supported by extraordinary assistance given by the State, may be subject to the same constitutional limitations as the State.
Of course, it may be pointed out that "the State 's general common law and statutory structure under which its people carry on their private affairs, own property and contract, each enjoying equality in terms of legal capacity, is not such State assistance as would transform private conduct into State action". But if extensive and unusual financial assistance is given and the purpose of the Government in giving such assistance coincides with the purpose for which the corporation is expected to use the assistance and such purpose is of public character, it may be a relevant circumstance supporting an inference that the corporation is an instrumentality or agency of Government.
The leading case on the subject in the United States is Kerr v. Eneck Pratt Free
Library 149 F.d. 212. The Library system in question in this case was established by private donation in 1882, but by 1944, 99 per cent of the system 's budget was supplied by the city, title to the library property was held by the city, employees were paid by the city payroll officer and a high degree of budget control was exercised or available to the city government.
On these facts the Court of Appeal required the trustees managing the system to abandon a discriminatory admission policy for its library training courses. It will be seen that in this case there was considerable amount of State control of the library system in addition to extensive financial assistance and it is difficult to say whether, in the absence of such control it would have been possible to say that the action of the trustees constituted State action. Thomas P.
Lewis has expressed the opinion in his article on "The meaning of State Action" (60 Columbia
Law Review 1083) that in this case "it is extremely unlikely that absence of public control would have changed the result as long as 99% of the budget of a nominally private institution
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was provided by government. Such extensive governmental support should be sufficient identification with the Government to subject the institution to the provisions of the Fourteenth
Amendment".
It may, therefore, be possible to say that where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. But where financial assistance is not so extensive, it may not by itself, without anything more, render the corporation an instrumentality or agency of government, for there are many private institutions which are in receipt of financial assistance from the State and merely on that account, they cannot be classified as State agencies. Equally a mere finding of some control by the State would not be determinative of the question "since a State has considerable measure of control under its police power over all types of business operations". But “a finding of State financial support plus an unusual degree of control over the management and policies might lead one to characterise an operation as State action" vide Sukhdev v. Bhagatram, AIR 1975 SC
1331.So also the existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality. It may also be a relevant factor to consider whether the corporation enjoys monopoly status which is State conferred or State protected.
There can be little doubt that State conferred or State protected monopoly status would be highly relevant in assessing the aggregate weight of the corporation 's ties to the State. Vide the observations of Douglas, J., in Jackson v. Metropolitan Edison Co. 419 U.S. 345.
There is also another factor which may be regarded as having a bearing on this issue and it is whether the operation of the corporation is an important public function. It has been held in the United States in a number of cases that the concept of private action must yield to a conception of State action where public functions are being performed. Vide Arthur S. Miller,
"The Constitutional Law of the Security State" 10 SLR 620. It was pointed out by Douglas, J., in Evans v. Newton, 382 U.S. 296 that "when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State". Of course, with the growth of the welfare State, it is very difficult to define what functions are governmental and what are not, because, as pointed out by Villmer, L.J., in Pfizer v. Ministry of Health [1964] 1 Ch. 614 there has been, since midVictorian times, "a revolution in political thought and a totally different conception prevails today as to what is and what is not within the functions of Government". Douglas, J., also observed to the same effect in New York v. United States 326 U.S. 572: "A State 's project is as much a legitimate governmental activity whether it is traditional or akin to private enterprise, or conducted for profit." Cf. Helvering v. Gerhardt 304 U.S. 405.
A State may deem it as essential to its economy that it own and operate a railroad, a mill, or an irrigation system as it does to own and operate bridges, street lights, or a sewage disposal plant. What might have been viewed in an earlier day as an improvident or even dangerous extension of state activities may today be deemed indispensable. It may be noted that besides the so called traditional functions, the modern State operates a multitude of public enterprises and discharges a host of other public functions. If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. This is precisely what was pointed out by Mathew, J., in Sukhdev v. Bhagatram (supra) where the learned Judge said that "institutions engaged in matters of high public interest or performing public functions are by virtue pf the nature of the functions performed government agencies. Activities which are too fundamental to the society are by definition too important not to be considered government functions."
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This was one of the principal tests applied by the United States Supreme Court in Marsh
v. Alabama 326 U.S. 501 for holding that a corporation which owned a Company town was subject to the same constitutional limitations as the State. This case involved the prosecution of Marsh, a member of the Jehovah’s Witnesses sect, under a state trespass statute for refusing to leave the side walk of the company town where she was distributing her religious pamphlets. She was fined $ 5/- and aggrieved by her conviction she carried the matter right upto the Supreme Court contending successfully that by reason of the action of the corporation her religious liberty had been denied. The Supreme Court held that administration of private property such as a town, though privately carried on, was, nevertheless, in the nature of a public function and that the private rights of the corporation must, therefore, be exercised within constitutional limitations and the conviction for trespass was reversed. The dominant theme of the majority opinion written by Mr. Justice Black was that the property of the corporation used as a town not recognisably different from other towns, lost its identification as purely private property. It was said that a town may be privately owned and managed but that does not necessarily allow the corporation to treat it as if it was wholly in the private sector and the exercise of constitutionally protected rights on the public street of a company town could not be denied by the owner. "The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.... Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation". Mr. Justice
Frankfurter, concurring, reduced the case to simpler terms. He found in the realm of civil liberties the need to treat a town, private or not, as a town. The function exercised by the corporation was in the nature of municipal function and it was, therefore, subject to the constitutional limitations placed upon State action.
We find that the same test of public or governmental character of the function was applied by the Supreme Court of the United States in Evans v. Newton (supra) and Smith v.
Allwight 321 U.S. 649. But the decisions show that even this test of public or governmental character of the function is not easy of application and does not invariably lead to the correct inference because the range of governmental activity is broad and varied and merely because an activity may be such as may legitimately be carried on by Government, it does not mean that a corporation, which is otherwise a private entity, would be an instrumentality or agency of Government by reason of carrying on such activity. In fact, it is difficult to distinguish between governmental functions and non-governmental functions. Perhaps the distinction between governmental and non-governmental functions is not valid any more in a social welfare State where the laissez faire is an outmoded concept and Herbert Spencer 's social static 's has no place. The contrast is rather between governmental activities which are private and private activities which are governmental. (Mathew, J. Sukhdev v. Bhagatram (supra) at
p. 652). But the public nature of the function, if impregnated with governmental character
"tied or entwined with Government" or fortified by some other additional factor, may render the corporation an instrumentality or agency of Government. Specifically, if a department of
Government is transferred to a corporation, it would be a strong factor supportive of this inference. It will thus be seen that there are several factors which may have to be considered in determining whether a corporation is an agency or instrumentality of Government. We have referred to some of these factors and they may be summarised as under: whether there is any financial assistance given by the State, and if so, what is the magnitude of such assistance whether there is any other form of assistance, given by the State, and if so, whether it is of the usual kind or it is extraordinary, whether there is any control of the management and policies
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of the corporation by the State and what is the nature and extent of such control, whether the corporation enjoys State conferred or State protected monopoly status and whether the functions carried out by the corporation are public functions closely related to governmental functions. This particularisation of relevant factors is however not exhaustive and by its very nature it cannot be, because with increasing assumption of new tasks, growing complexities of management and administration and the necessity of continuing adjustment in relations between the corporation and Government calling for flexibility, adapt ability and innovative skills, it is not possible to make an exhaustive enumeration of the tests which would invariably and in all cases provide an unfailing answer to the question whether a corporation is governmental instrumentality or agency. Moreover even amongst these factors which we have described, no one single factor will yield a satisfactory answer to the question and the court will have to consider the cumulative effect of these various factors and arrive at its decision on the basis of a particularised inquiry into the facts and circumstances of each case. "The dispositive question in any state action case," as pointed out by Douglas, J., in Jackson v.
Metropolitan Edison Company (supra) "is not whether any single fact or relationship presents a sufficient degree of state involvement, but rather whether the aggregate of all relevant factors compels a finding of state responsibility." It is not enough to examine seriatim each of the factors upon which a corporation is claimed to be an instrumentality or agency of Government and to dismiss each individually as being insufficient to support a finding of that effect. It is the aggregate or cumulative affect of all the relevant factors that is controlling.
Now, obviously where a corporation is an instrumentality or agency of Government, it would, in the exercise of its power or discretion, be subject to the same constitutional or public law limitations as Government. The rule inhibiting arbitrary action by Government which we have discussed above must apply equally where such corporation is dealing with the public, whether by way of giving jobs or entering into contracts or otherwise, and it cannot act arbitrarily and enter into relationship with any person it likes at its sweet will, but its action must be in conformity with some principle which meets the test of reason and relevance.
… [Discussion on Article 14 and Non-Arbitrariness in State Action has been omitted] …
We accordingly dismiss the appeal and confirm the order of the High Court rejecting the writ petition. But in the circumstances of the case there will be no order as to costs throughout.
AJAY HASIA V. KHALID MUJIB
AIR 1981 SC 487, (1981) 1 SCC 722
Decided On: November 13, 1980
BENCH – CHIEF JUSTICE Y. V. CHANDRACHUD, JUSTICES P. N. BHAGWATI, V. R. KRISHNA
IYER, S. M. FAZAL ALI & A. D. KOSHAL
JUSTICE BHAGWATI (FOR THE COURT)
These writ petitions under Article 32 of the Constitution challenge the validity of the admissions made to the Regional Engineering College, Srinagar for the academic year 197980.
The Regional Engineering College, Srinagar (hereinafter referred to as the College) is one of the fifteen Engineering Colleges in the country sponsored by the Government of India. The
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College is established and its administration and management are carried on by a Society registered under the Jammu and Kashmir Registration of Societies Act, 1898. The
Memorandum of Association of the Society in Clause 3 sets out the objects for which the
Society is incorporated and they include amongst other things establishment of the college with a view to providing instruction and research in such branches of engineering and technology as the college may think fit and for the advancement of learning and knowledge in such branches. Vide Sub-clause (i). The Society is empowered by Clause 3 Sub-clause (ii) of the Memorandum of Association to make rules for the conduct of the affairs of the Society and to add to, amend, vary or rescind them from time to time with the approval of the
Government of Jammu and Kashmir State (hereinafter referred to as the State Government) and the Central Government. Clause 3 Sub-clause (iii) of the Memorandum of Association confers power on the Society to acquire and hold property in the name of the State
Government. Sub-clause (v) of Clause 3 of the Memorandum of Association contemplates that monies for running the college would be provided by the State and Central Governments and Sub-clause (vi) requires the Society to deposit all monies credited to its fund in such banks or to invest them in such manner as the Society may, with the approval of the State
Government decide. The accounts of the Society as certified by a duly appointed auditor are mandatorily required by Sub-clause (ix) of Clause 3 of the Memorandum of Association to be forwarded annually to the State and Central Governments. Clause 6 of the Memorandum of
Association empowers the State Government to appoint one or more persons to review the working and progress of the Society, or the college and to hold inquiries into the affairs thereof and to make a report and on receipt of any such report, the State Government has power, with the approval of the Central Government, to take such action and issue such directions as it may consider necessary in respect of any of the matters dealt with in the report and the Society or the College, as the case may be, is bound to comply with such directions. There is a provision made in Clause 7 of the Memorandum of Association that in case the Society or the college is not functioning properly, the State Government will have the power to take over the administration and assets of the college with the prior approval of the Central Government.
The founding members of the Society are enumerated in Clause 9 of the Memorandum of
Association and they are the Chairman to be appointed by the State Government with the approval of the Central Government, two representatives of the State Government, one representative of the Central Government, two representatives of the All India Council for
Technical Education to be nominated by the northern Regional Committee, one representative of the University of Jammu and Kashmir, one non-official representative of each of the
Punjab, Rajasthan, U.P. and Jammu and Kashmir States to be appointed by the respective
Governments in consultation with the Central Government and the Principal who shall also be the ex-officio Secretary.
The Rules of the Society are also important as they throw light on the nature of the Society.
Rule 3 Clause (i) reiterates the composition of the Society as set out in Clause 9 of the
Memorandum of Association and Clause (ii) of that Rule provides that the State and the
Central Governments may by mutual consultation at any time appoint any other person or persons to be member or members of the Society. Rule 6 vests the general superintendence, direction and control of the affairs and its income and property in the governing body of the
Society which is called the Board of Governors. Rule 7 lays down the Constitution of the
Board of Governors by providing that it shall consist of the Chief Minister of the State
Government as Chairman and the following as members: Three nominees of the State
Government, three nominees of the Central Government, one representative of the All India
Council for Technical Education, Vice-Chancellor of the University of Jammu and Kashmir, two industrialists/technologists in the region to be nominated by the State Government, one nominee of the Indian Institute of Technology in the region, one nominee of the University
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Grants Commission two representatives of the Faculty of the College and the Principal of the college as ex-officio member-Secretary. The State Government is empowered by Rule 10 to remove any member of the Society other than a member representing the State or Central
Government from the membership of the Society with the approval of the Central
Government. Clause (iv) of Rule 15 confers power on the Board to make bye-laws for admission of students to various courses and Clause (xiv) of that Rule empowers the Board to delegate to a committee or to the Chairman such of its powers for the conduct of its business as it may deem fit, subject to the condition that the action taken by the committee of the
Chairman shall be reported for confirmation at the next meeting of the Board. Clause (xv) of
Rule; 15 provides that the Board shall have power to consider and pass resolution on the annual report, the annual accounts and other financial estimates of the college, but the annual report and the annual accounts together with the resolution passed thereon are required to be submitted to the State and the Central Governments. The Society is empowered by Rule 24,
Clause (i) to alter, extend or abridge any purpose or purposes for which it is established, subject to the prior approval of the State and the Central Governments and Clause (ii) of Rule
24 provides that the Rules may be altered by a Resolution passed by a majority of 2/3rd of the members present at the meeting of the Society, but such alteration shall be with the approval of the State and the Central Governments.
Pursuant to Clause (iv) of Rule 15 of the Rules, the Board of Governors laid down the procedure for admission of students to various courses in the college by a Resolution dated
4th June, 1974. We are not directly concerned with the admission procedure laid down by this
Resolution save and except that under this Resolution admissions to the candidates belonging to the State of Jammu and Kashmir were to be given on the basis of comparative merit to be determined by holding a written entrance test and a viva voce examination and the marks allocated for the written test in the subjects of English, Physics, Chemistry and Mathematics were 100, while for viva voce examination, the marks allocated were 50 divided as follows:
(i) General Knowledge and Awareness-15; (ii) Broad understanding of Specific Phenomenon15; (iii) Extra-curricular activities-10 and (iv) General Personality Trait-10, making up in the aggregate-50. The admissions to the college were governed by the procedure laid down in this
Resolution until the academic year 1979-80, when the procedure was slightly changed and it was decided that out of 250 seats, which were available for admission, 50% of the seats shall be reserved for candidates belonging to the Jammu & Kashmir State and the remaining 50% for candidates belonging to other States, including 15 seats reserved for certain categories of students. So far as the seats reserved for candidates belonging to States other than Jammu &
Kashmir were concerned, certain reservations were made for candidates belonging to
Scheduled Castes and Scheduled Tribes and sons and wards of defence personnel killed or disabled during hostilities and it was provided that "inter se merit will be determined on the basis of marks secured in the subjects of English, Physics, Chemistry and Mathematics only".
The provision made with regard to seats reserved for candidates belonging to Jammu &
Kashmir State was that "apart from 2 seats reserved for the sons and daughters of the permanent college employees, reservations shall be made in accordance with the Orders of
Jammu and Kashmir Government for admission to technical institutions and the seats shall be filled up on the basis of comparative merit as determined under the following scheme, both for seats to be filled on open merit and for reserved seats in each category separately; (1) marks for written test-100 and (2) marks for viva voce examination-50, marking up in the aggregate-150. It was not mentioned expressly that the marks for the written test shall be in the subjects of Physics, English, Chemistry and Mathematics nor were the factors to be taken into account in the viva voce examination and the allocation of marks for such factors indicated specifically in the admission procedure laid down for the academic year 1979-80,
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but we were told and this was not disputed on behalf of the petitioners in any of the writ petitions, that the subjects in which the written test was held were English, Physics, Chemistry and Mathematics and the marks at the viva voce examination were allocated under the same four heads and in the same manner as in, the case of admissions under the procedure laid down in the Resolution dated 4th June, 1974.
In or about April 1979, the college issued a notice inviting applications for admission to the first semester of the B.E. course in various branches of engineering and the notice set out the above admission procedure to be followed in granting admissions for the academic year
1979-80. The petitioners in the writ petitions before us applied for admission to the first semester of the B.E. course in one or the other branch of engineering and they appeared in the written test which was held on 16th and 17th June, 1979. The petitioners were thereafter required to appear before a Committee consisting of three persons for viva voce test and they were interviewed by the Committee. The case of the petitioners was that the interview of each of them did not last for more than 2 or 3 minutes per candidate on an average and the only questions which were asked to them were formal questions relating to their parentage and residence and hardly any question was asked which would be relevant to any of the tour factors for which marks were allocated at the viva voce examination. When the admissions were announced, the petitioners found that though they had obtained very good marks in the qualifying examination, they had not been able to secure admission to the college because the marks awarded to them at the viva voce examination were very low and candidates who had much less marks at the qualifying examination, had succeeded in obtaining very high marks at the viva voce examination and thereby managed to secure admission in preference to the petitioners. The petitioners filed before us a chart showing by way of comparison the marks obtained by the petitioners on the one hand and some of the successful candidates on the other at the qualifying examination, in the written test and at the viva voce examination. This chart shows beyond doubt that the successful candidates whose marks are given in the chart had obtained fairly low marks at the qualifying examination as also in the written test, but they had been able to score over the petitioners only on account of very high marks obtained by them at the viva voce examination. The petitioners feeling aggrieved by this mode of selection filed the present writ petitions challenging the validity of the admissions made to the college on various grounds. Some of these grounds stand concluded by the recent decision of this
Court in Nishi Maghu v. State of Jammu & Kashmir, [1980] 3 SCR 1253 and they were therefore not pressed before us. Of the other grounds, only one was canvassed before us and we shall examine it in some detail.
But before we proceed to consider the merits of this ground of challenge, we must dispose of a preliminary objection raised on behalf of the respondents against the maintainability of the writ petition. The respondents contended that the college is run by society which is not a corporation created by a statute but is a society registered under the Jammu & Kashmir
Societies Registration Act, 1898 and it is therefore not an 'authority ' within the meaning of
Article 12 of the Constitution and no writ petition can be maintained against it, nor can any complaint be made that it has acted arbitrarily in the matter of granting admissions and violated the equality clause of the Constitution.
Now it is obvious that the only ground on which the validity of the admissions to the college can be assailed is that the society adopted an arbitrary procedure for selecting candidates for admission to the college and this resulted in denial of equality to the petitioners in the matter of admission violative of Article 14 of the Constitution. It would appear that prima facie protection against infraction of Article 14 is available only against the State and complaint of arbitrariness and denial of equality can therefore be sustained against the society only if the society can be shown to be State for the purpose of Article 14. Now 'State ' is defined
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in Article 12 to include inter alia the Government of India and the Government of each of the
States and all local or other authorities within the territory of India or under the control of the
Government of India and the question therefore is whether the Society can be said to be 'State ' within the meaning of this definition. Obviously the Society cannot be equated with the
Government of India or the Government of any State nor can it be said to be a local authority and therefore, it must come within the expression "other authorities" if it is to fall within the definition of 'State '. That immediately leads us to a consideration of the question as to what are the "other authorities" contemplated in the definition of 'State ' in Article 13.
While considering this question it is necessary to bear in mind that an authority falling within the expression "other authorities" is, by reason of its inclusion within the definition of 'State ' in Article 12, subject to the same constitutional limitations as the Government and is equally bound by the basic obligation to obey the constitutional mandate of the Fundamental
Rights enshrined in Part III of the Constitution. We must therefore give such an interpretation to the expression "other authorities" as will not stultify the operation and reach of the fundamental rights by enabling the Government to its obligation in relation to the Fundamental
Rights by setting up an authority to act as its instrumentality or agency for carrying out its functions. Where constitutional fundamentals vital to the maintenance of human rights are at stake, functional realism and not facial cosmetics must be the diagnostic tool, for constitutional law must seek the substance and not the form.
Now it is obvious that the Government may act through the instrumentality or agency of natural persons or it may employ the instrumentality or agency of juridical persons to carry out its functions. In the early days when the Government had limited functions, it could operate effectively through natural persons constituting its civil service and they were found adequate to discharge governmental functions which were of traditional vintage. But as the tasks of the Government multiplied with the advent of the welfare State, it began to be increasingly felt that the frame work of civil service was not sufficient to handle the new tasks which were often specialised and highly technical in character and which called for flexibility of approach and quick decision making. The inadequacy of the civil service to deal with these new problems came to be realised and it became necessary to forge a new instrumentality or administrative device for handling these new problems. It was in these circumstances and with a view to supplying this administrative need that the corporation came into being as the third arm of the Government and over the years it has been increasingly utilised by the Government for setting up and running public enterprises and carrying out other public functions.
Today with increasing assumption by the Government of commercial ventures and economic projects, the corporation has become an effective legal contrivance in the hands of the Government for carrying out its activities, for it is found that this legal facility of corporate instrument provides considerable flexibility and elasticity and facilitates proper and efficient management with professional skills and on business principles and it is blissfully free from
"departmental rigidity, slow motion procedure and hierarchy of officers". The Government in many of its commercial ventures and public enterprises is resorting to more and more frequently to this resourceful legal contrivance of a corporation because it has many practical advantages and at the same time does not involve the slightest diminution in its ownership and control of the undertaking. In such cases "the true owner is the State, the real operator is the
State and the effective controllorate is the State and accountability for its actions to the community and to Parliament is of the State."
It is undoubtedly true that the corporation is a distinct juristic entity with a corporate structure of its own and it carries on its functions on business principles with a certain amount of autonomy which is necessary as well as useful from the point of view of effective business management, but behind the formal ownership which is cast in the corporate mould, the reality
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is very much the deeply pervasive presence of the Government. It is really the Government which acts through the instrumentality or agency of the corporation and the juristic veil of corporate personality worn for the purpose of convenience of management and administration cannot be allowed to obliterate the true nature of the reality behind which is the Government.
Now it is obvious that if a corporation is an instrumentality or agency of the Government, it must be subject to the same limitations in the field of constitutional law as the Government itself, though in the eye of the law it would be a distinct and independent legal entity.
If the Government acting through its officers is subject to certain constitutional limitations, it must follow a fortiorari that the Government acting through the instrumentality or agency of a corporation should equally be subject to the same limitations. If such a corporation were to be free from the basic obligation to obey the Fundamental Rights, it would lead to considerable erosion of the efficiency of the Fundamental Rights, for in that event the
Government would be enabled to over-ride the Fundamental Rights by adopting the stratagem of carrying out its functions through the instrumentality or agency of a corporation, while retaining control over it. The Fundamental Rights would then be reduced to little more than an idle dream or a promise of unreality. It must be remembered that the Fundamental Rights are constitutional guarantees given to the people of India and are not merely paper hopes or fleeting promises and so long as they find a place in the Constitution, they should not be allowed to be emasculated in their application by a narrow and constricted judicial interpretation. The courts should be anxious to enlarge the scope and width of the Fundamental
Rights by bringing within their sweep every authority which is an instrumentality or agency of the Government or through the corporate personality of which the Government is acting, so as to subject the Government in all its myriad activities, whether through natural persons or through corporate entities, to the basic obligation of the Fundamental Rights.
The constitutional philosophy of a democratic socialist republic requires the Government to undertake a multitude of socio-economic operations and the Government, having regard to the practical advantages of functioning through the legal device of a corporation, embarks on myriad commercial and economic activities by resorting to the instrumentality or agency of a corporation, but this contrivance of carrying on such activities through a corporation cannot exonerate the Government from implicit obedience to the Fundamental Rights. To use the corporate methodology is not to liberate the Government from its basic obligation to respect the Fundamental Rights and not to over-ride them. The mantle of a corporation may be adopted in order to free the Government from the inevitable constraints of red-tapism and slow motion but by doing so, the Government cannot be allowed to play truant with the basic human rights. Otherwise it would be the easiest thing for the government to assign to a plurality of corporations almost every State business such as Post and Telegraph, TV and
Radio, Rail Road and Telephones-in short every economic activity-and thereby cheat the people of India out of the Fundamental Rights guaranteed to them. That would be a mockery of the Constitution and nothing short of treachery and breach of faith with the people of India, because, though apparently the corporation will be carrying out these functions, it will in truth and reality be the Government which will be controlling the corporation and carrying out these functions through the instrumentality or agency of the corporation. We cannot by a process of judicial construction allow the Fundamental Rights to be rendered futile and meaningless and thereby wipe out Chapter III from the Constitution. That would be contrary to the constitutional faith of the post-Menka Gandhi era. It is the Fundamental Rights which along with the Directive Principles constitute the life force of the Constitution and they must be quickened into effective action by meaningful and purposive interpretation. If a corporation is found to be a mere agency or surrogate of the Government, "in fact owned by the
Government, in truth controlled by the government and in effect an incarnation of the government," the court must not allow the enforcement of Fundamental Rights to be frustrated
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by taking the view that it is not the government and therefore not subject to the constitutional limitations. We are clearly of the view that where a corporation is an instrumentality or agency of the government, it must be held to be an 'authority ' within the meaning of Article 12 and hence subject to the same basic obligation to obey the Fundamental Rights as the government.
We may point out that this very question as to when a corporation can be regarded as an 'authority ' within the meaning of Article 12 arose for consideration before this Court in R.D.
Shetty v. International Airport Authority of India, [1979] 1 S.C.R.1042 There, in a unanimous judgment of three Judges delivered by one of us (Bhagwati, J) this Court pointed out:
So far as India is concerned, the genesis of the emergence of corporations as instrumentalities or agencies of Government is to be found in the
Government of India Resolution on Industrial Policy dated 6th April,
1948 where it was stated inter alia that "management of State enterprises will as a rule be through the medium of public corporation under the statutory control of the Central Government who will assume such powers as may be necessary to ensure this." It was in pursuance of the policy envisaged in this and subsequent resolutions on Industrial policy that corporations were created by Government for setting up and management of public enterprises and carrying out other public functions. Ordinarily these functions could have been carried out by
Government departmentally through its service personnel but the instrumentality or agency of the corporation was resorted to in these cases having regard to the nature of the task to be performed. The corporations acting as instrumentality or agency of Government would obviously be subject to the same limitations in the field of constitutional and administrative law as Government itself, though in the eye of the law, they would be distinct and independent legal entities. If Government acting through its officers is subject to certain constitutional and public law limitations, it must follow a fortiori that Government acting through instrumentality or agency of corporations should equally be subject to the same limitations.
The Court then addressed itself to the question as to how to determine whether a corporation is acting as an instrumentality or agency of the Government and dealing with that question, observed: A corporation may be created in one of two ways. It may be either established by statute or incorporated under a law such as the Companies
Act 1956 or the Societies Registration Act 1860. Where a Corporation is wholly controlled by Government not only in its policy making but also in carrying out the functions entrusted to it by the law establishing it or by the Charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of Government. But ordinarily where a corporation is established by statute, it is autonomous in its working, subject only to a provision, often times made, that it shall be bound by any directions that may be issued from time to time by Government in respect of policy matters. So also a corporation incorporated under law is managed by a board of directors or committee of management in accordance with the provisions of the statute under which it is incorporated. When does such a corporation become an instrumentality or agency of Government? Is the holding of the entire share capital of the Corporation by Government enough or is it necessary that in addition there should be a certain amount of direct control exercised by
Government and, if so what should be the nature of such control? Should the functions which the Corporation is charged to carry out possess any particular characteristic or feature, or is the nature of the functions immaterial? Now, one thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of
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Government. But, as is quite often the case, a corporation established by statute may have no shares or shareholders, in which case it would be a relevant factor to consider whether the administration is in the hands of a board of directors appointed by Government though this consideration also may not be determinative, because even where the directors are appointed by Government, they may be completely free from governmental control in the discharge of their functions. What then are tests to determine whether a corporation established by statute or incorporated under law is an instrumentality or agency of Government?
It is not possible to formulate an inclusive or exhaustive test which would adequately answer this question. There is no cut and dried formula, which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those which are not.
The Court then proceeded to indicate the different tests, apart from ownership of the entire share capital:
...if extensive and unusual financial assistance is given and the purpose of the
Government in giving such assistance coincides with the purpose for which the corporation is expected to ' use the assistance and such purpose is of public character, it may be a relevant circumstance supporting an inference that the corporation is an instrumentality or agency of Government.... It may therefore be possible to say that where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character....
But a finding of State financial support plus an unusual degree of control over the management and policies might lead one to characterise an operation as State action-Vide Sukhdev v. Bhagatram … So also the existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality. It may also be a relevant factor to consider whether the corporation enjoys monopoly status which is State conferred or State protected. There can be little doubt that State conferred or State protected monopoly status would be highly relevant in assessing the aggregate weight of the corporation 's ties to the State.
There is also another factor which may be regarded as having a bearing on this issue and it is whether the operation of the corporation is an important public function. It has been held in the United States in a number of cases that the concept of private action must yield to a conception of State action where public functions are being performed. Vide Arthur S. Miller:
"The Constitutional Law of the Security State" (10 Stanford Law Review 620 at 664).
It may be noted that besides the so-called traditional functions, the modern state operates as multitude of public enterprises and discharges a host of other public functions. If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. This is precisely what was pointed out by Mathew, J., in Sukhdev v.
Bhagatram (supra) where the learned Judge said that "institutions engaged in matters of high public interest of performing public functions are by virtue of the nature of the functions performed government agencies. Activities which are too fundamental to the society are by definition too important not to be considered government functions.
The court however proceeded to point out with reference to the last functional test:
...the decisions show that even this test of public or governmental character of the function is not easy of application and does not invariably lead to the correct inference because the range of governmental activity is broad and varied and merely because an activity may be such as may legitimately be carried on by Government, it does not mean that a corporation, which is otherwise a private entity, would
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be an instrumentality or agency of Government by reason of carrying on such activity. In fact, it is difficult to distinguish between governmental functions and non-governmental functions. Perhaps the distinction between governmental and non-governmental functions is not valid any more in a social welfare State where the laissez faire is an outmoded concept and Herbert Spencer 's social statics has no place. The contrast is rather between governmental activities which are private and private activities which are governmental. [Mathew, J. Sukhdev v. Bhagatram
(supra) at p. 652]. But the public nature of the function, if impregnated with governmental character or "tied or entwined with Government" or fortified by some other additional factor, may render the corporation an instrumentality or agency of Government. Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of the inference.
These observations of the court in the International Airport Authority 's case (supra) have our full approval.
The tests for determining as to when a corporation can be said to be a instrumentality or agency of Government may now be called out from the judgment in the International Airport
Authority 's case. These tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression "other authorities", it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the International Airport Authority 's case as follows:
(1) One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.
(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.
(3) It may also be a relevant factor...whether the corporation enjoys monopoly status which is the State conferred or State protected.
(4) Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.
(5) If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.
(6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government.
If on a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of government, it would, as pointed out in the International Airport
Authority 's case, be an 'authority ' and, therefore, 'State ' within the meaning of the expression in Article 12.
………
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We may point out that it is immaterial for this purpose whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the
Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The corporation may be a statutory corporation created by a statute or it may be a Government Company or a company formed under the Companies Act, 1956 or it may be a society registered under the Societies
Registration Act, 1860 or any other similar statute. Whatever be its genetical origin, it would be an "authority" within the meaning of Article 12 if it is an instrumentality or agency of the
Government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression "authority" in Article 12.
It is also necessary to add that merely because a juristic entity may be an "authority" and therefore "State" within the meaning of Article 12, it may not be elevated to the position of
"State" for the purpose of Articles 309, 310 and 311 which find a place in Part XIV. The definition of "State" in Article 12 which includes an "authority" within the territory of India or under the control of the Government of India is limited in its application only to Part III and by virtue of Article 36, to Part IV. It does not extend to the other provisions of the
Constitution and hence a juristic entity which may be "State" for the purpose of Parts III and
IV would not be so for the purpose of Part XIV or any other provision of the Constitution.
That is why the decisions of this Court in S. L. Aggarwal v. Hindustan Steel Ltd. [1970] 3
S.C.R. 365 and other cases involving the applicability of Article 311 have no relevance to the issue before us.
………
It is in the light of this discussion that we must now proceed to examine whether the
Society in the present case is an "authority" falling within the definition of "State" in
Article 12. Is it an instrumentality or agency of the Government? The answer must obviously be in the affirmative if we have regard to the Memorandum of Association and the Rules of the Society. The composition of the Society is dominated by the representatives appointed by the Central Government and the Governments of Jammu & Kashmir, Punjab, Rajasthan and
Uttar Pradesh with the approval of the Central Government. The monies required for running the college are provided entirely by the Central Government and the Government of Jammu
& Kashmir and even if any other monies are to be received by the Society, it can be done only with the approval of the State and the Central Governments. The Rules to be made by the
Society are also required to have the prior approval of the State and the Central Governments and the accounts of the Society have also to be submitted to both the Governments for their scrutiny and satisfaction. The Society is also to comply with all such directions as may be issued by the State Government with the approval of the Central Government in respect of any matters dealt with in the report of the Reviewing Committee. The control of the State and the Central Governments is indeed so deep and pervasive that no immovable property of the
Society can be disposed of in any manner without the approval of both the Governments. The
State and the Central Governments have even the power to appoint any other person or persons to be members of the Society and any member of the Society other than a member representing the State or the Central Government can be removed from the membership of the Society by the State Government with the approval of the Central Government. The Board of Governors, which is in charge of general superintendence, direction and control of the affairs of Society and of its income and property is also largely controlled by nominies of the State and the
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Central Governments. It will thus be seen that the State Government and by reason of the provision for approval, the Central Government also, have full control of the working of the
Society and it would not be incorrect to say that the Society is merely a projection of the State and the Central Governments and to use the words of Ray, C.J. in Sukhdev Singh 's case
(supra), the voice is that of the State and the Central Governments and the hands are also of the State and the Central Governments. We must, therefore, hold that the Society is an instrumentality or agency of the State and the Central Governments and it is an 'authority ' within the meaning of Article 12.
… [Discussion on Article 14 and non arbitrariness in State Action has been omitted] …
DALCO ENGINEERING V. S. P. PADHYE
AIR 2010 SC 1576, (2010) 4 SCC 378
Decided On: March 31, 2010
BENCH – JUSTICES R. V. RAVEENDRAN, R. M. LODHA & C. K. PRASAD
JUSTICE RAVEENDRAN (FOR THE COURT)
… [One Mr. S. P. Padhye was in employment of a private limited company (incorporated under the Companies Act, 1956) for more than 20 years. The private company terminated the employment of Padhye because he had become deaf. Padhye approached the Disability Commissioner alleging that when he joined the service, he was fit and able and the hearing impairment that he had acquired was acquired during the period of service, thus, instead of terminating his employment, he should have been given alternate employment of a suitable nature. The Disability Commissioner found in favor of Padhye and suggested that the private company to re-employ Padhye. The company rejected the suggestion.
Padhye then approached the High Court arguing that the Commissioner should have made an order under Section 47 of the Person with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 (‘the 1995 Act’) and accordingly prayed that the the private company should be directed to re-employ him in a suitable post. The High Court allowed the Writ Petition and held that the private company was an ‘establishment’ as defined in Section 2(k) of the 1995 Act.
The private company brought the case to the Supreme Court arguing that they do not fall with the scope of an ‘establishment’ as defined in Section 2(k) of the 1995 Act. Article 12 of the Constitution and the doctrine of the Court on the point was then used to interpret provisions of the 1995 Act to decide whether a private company could come within the scope of an ‘establishment’ as defined therein.] …
Questions for decision
4. The employee relies on Section 47 which provides that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. Section 47 of the Act is extracted below:
47. Non-discrimination in Government employment.--(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:
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Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
(2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.
The term "establishment" employed in Section 47 is defined in Section 2(k) of the
Act as follows:
2. Definitions.--In this Act, unless the context otherwise requires, xxxxx
(k) "establishment" means a corporation established by or under a Central,
Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in
Section 617 of the Companies Act 1956 (1 of 1956) and includes Departments of a Government;
The question is, having regard to the definition of the word `establishment ' of
Section 2(k) of the Act, whether the requirement relating to non-discrimination of employees acquiring a disability during the course of service, embodied in Section 47, is to be complied with only by authorities falling within the definition of State (as defined in Article 12 of the
Constitution), or even by private employers. This leads us to the following two questions:
(i) Whether a company incorporated under the Companies Act (other than a Government company as defined in Section 617 of the Companies Act, 1956) is an "establishment" as defined in Section 2(k) of the Act?
(ii) Whether the respondent in the first case and the appellant in the second case are entitled to claim any relief with reference to Section 47 of the Act?
Re: Question (i)
Let us examine the meaning of the crucial word `establishment ' used in Sub-section (1) of
Section 47 of the Act. The definition of the word `establishment ' in Section2(k), when analyzed, shows that it is an exhaustive definition, and covers the following categories of employers: (i) a corporation established by or under a Central, Provincial, or State Act;
(ii) an authority or a body owned or controlled or aided by the Government;
(iii) a local authority;
(iv) a Government company as defined in Section 617 of the Companies Act, 1956; and
(v) Departments of a Government.
It is not in dispute that the employers in these two cases are companies incorporated under the Companies Act, 1956 which do not fall under categories (ii) to (v) specified in
Section 2(k) of the Act.
The employee contends that a company incorporated under the Companies Act is a
Corporation falling under the first category enumerated in Section 2(k), that is `Corporation established by or under a Central, Provincial or State Act ', on the following reasoning : that a corporation refers to a company; that Companies Act is a Central Act; and that therefore a company incorporated and registered under the Companies Act is a Corporation established
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under a Central Act. He contends that the use of the words "by or under" is crucial. According to him, `a corporation established by an Act ' would refer to a corporation brought into existence by an Act; and a `corporation established under an Act ' would refer to a company incorporated under the Companies Act. On the other hand, the employer contends that the term `Corporation established by or under a Central, Provincial or State Act ' refers to a statutory Corporation which is brought into existence by a statute, or under a statute and does not include a company which is registered under the Companies Act. It is submitted that
Companies Act merely facilitates and lays down the procedure for incorporation of a company which, when incorporated, will be governed by the provisions of the said Act and therefore, a company registered under the Companies Act, is not a corporation established under an Act.
The words "a Corporation established by or under a Central, Provincial or State Act" is a standard term used in several enactments to denote a statutory corporation established or brought into existence by or under statute. For example, it is used in Sub-clause (b) of
Clause Twelfth of Section 21 of the Indian Penal Code (`IPC ' for short) and Section 2(c)(iii) of the Prevention of Corruption Act, 1988 (`PC Act ' for short). Both these statutes provide that a person in the service of a `Corporation established by or under a Central, Provincial or
State Act ' is a public servant. The Prevention of Damage to Public Property Act, 1984 defines
`public property ' as meaning any property owned by, or in the possession of, or under the control of (i) the Central Government (ii) any state government; or (iii) any local authority; or
(iv) any corporation established by, or under, a Central, Provincial or State Act; or (v) any company as defined in Section 617 of the Companies Act, 1956; or (vi) any institution, concern or undertaking which the Central Government may, by notification in the Official
Gazette, specify in that behalf provided that the Central Government shall not specify any institution, concern or undertaking under that sub- clause unless such institution, concern or undertaking is financed wholly or substantially by funds provided directly or indirectly by the
Central Government or by one or more State Governments, or partly by the Central
Government and partly by one or more State Governments. Thus the term is always used to denote certain categories of authorities which are `State ' as contrasted from non-statutory companies which do not fall under the ambit of `State '.
9. The meaning of the term came up for consideration in S.S. Dhanoa v. Municipal
Corporation, Delhi, 1981 (3) SCC 431 with reference to Section 21 of IPC. This Court held:
Clause Twelfth does not use the words "body corporate", and the question is whether the expression "corporation" contained therein, taken in collocation of the words "established by or under a Central, Provincial or State Act" would bring within its sweep a cooperative society. Indubitably, the Cooperative Store Limited is not a corporation established by a Central or State Act. The crux of the matter is whether the word 'under ' occurring in Clause Twelfth of Section 21 of the Indian
Penal Code makes a difference. Does the mere act of incorporation of a body or society under a Central or a State Act make it a corporation within the meaning of Clause Twelfth of Section 21. In our opinion, the expression 'corporation ' must, in the context, mean a corporation created by the Legislature and not a body or society brought into existence by an act of a group of individuals. A cooperative society is, therefore, not a corporation established by or under an Act of the
Central or State Legislature.
A corporation is an artificial being created by law having a legal entity entirely separate and distinct from the individuals who compose it with the capacity of continuous existence and succession, notwithstanding changes in its membership.... The term 'corporation ' is, therefore, wide enough to include private corporations. But, in the context of Clause Twelfth of Section21 of the Indian
Penal Code, the expression 'corporation ' must be given a narrow legal connotation. Page 31 of 610
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Corporation, in its widest sense, may mean any association of individuals entitled to act as an individual. But that certainly is not the sense in which it is used here. Corporation established by or under an Act of Legislature can only mean a body corporate which owes its existence, and not merely its corporate status, to the Act. For example, a Municipality, a Zilla Parishad or a Gram Panchayat owes its existence and status to an Act of Legislature. On the other hand, an association of persons constituting themselves into a Company under the Companies Act or a Society under the Societies Registration Act owes its existence not to the Act of
Legislature but to acts of parties though, it may owe its status as a body corporate to an Act of Legislature.
There is a distinction between a corporation established by or under an Act and a body incorporated under an Act. The distinction was brought out by this Court in Sukhdev Singh v. Bhagatram, (1975) 1 SCC 421. It was observed:
A company incorporated under the Companies Act is not created by the
Companies Act but comes into existence in accordance with the provisions of the
Act.
There is thus a well-marked distinction between a body created by a statute and a body which, after coming into existence, is governed in accordance with the provisions of a statute.
(emphasis supplied)
In Executive Committee of Vaish Degree College v. Lakshmi Narain, 1976 (2) SCC 58, this Court explained the position further:
In other words the position seems to be that the institution concerned must owe its very existence to a statute which would be the fountainhead of its powers. The question in such case to be asked is, if there is no statute, would the institution have any legal existence. If the answer is in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body.
(emphasis supplied)
A `company ' is not `established ' under the Companies Act. An incorporated company does not `owe ' its existence to the Companies Act. An incorporated company is formed by the act of any seven or more persons (or two or more persons for a private company) associated for any lawful purpose subscribing their names to a Memorandum of Association and by complying with the requirements of the Companies Act in respect of registration. Therefore, a `company ' is incorporated and registered under the Companies Act and not established under the Companies Act. Per contra, the Companies Act itself establishes the National Company
Law Tribunal and National Company Law Appellate Tribunal, and those two statutory authorities owe their existence to the Companies Act.
Where the definition of `establishment ' uses the term `a corporation established by or under an Act ', the emphasis should be on the word `established ' in addition to the words `by or under '. The word `established ' refers to coming into existence by virtue of an enactment. It does not refer to a company, which, when it comes into existence, is governed in accordance with the provisions of the Companies Act. But then, what is the difference between
`established by a central Act ' and `established under a central Act '?
The difference is best explained by some illustrations. A corporation is established by an
Act, where the Act itself establishes the corporation. For example, Section 3 of State Bank of
India Act, 1955 provides that a Bank to be called the State Bank of India shall be constituted to carry on the business of banking. Section 3 of Life Insurance Corporation Act, 1956 provides that with effect from such date as the Central Government may by notification in the
Official Gazette appoint, there shall be established a corporation called the Life Insurance
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Corporation of India. State Bank of India and Life Insurance Corporation of India are two examples of corporations established by "a Central Act". We may next refer to the State
Financial Corporation Act, 1951 which provides for establishment of various Financial
Corporations under that Act. Section 3 of that Act relates to establishment of State Financial
Corporations and provides that the State Government may, by notification in the Official
Gazette establish a Financial Corporation for the State under such name as may be specified in the notification and such Financial Corporation shall be a body corporate by the name notified. Thus, a State Financial Corporation is established under a central Act. Therefore, when the words "by and under an Act" are preceded by the words "established", it is clear that the reference is to a corporation established, that it is brought into existence, by an Act or under an Act. In short, the term refers to a statutory corporation as contrasted from a nonstatutory corporation incorporated or registered under the Companies Act.
There is indication in the definition of `establishment ' itself, which clearly establishes that all companies incorporated under the Companies Act are not establishments. The enumeration of establishments in the definition of `establishment ' specifically includes "a Government
Company as defined in Section 617 of the Companies Act, 1956". This shows that the legislature, took pains to include in the definition of `establishment ' only one category of companies incorporated under the Companies Act, that is the `Government Companies ' as defined in Section 617 of the Companies Act. If, as contended by the employee, all Companies incorporated under the Companies Act are to be considered as `establishments ' for the purposes of Section 2(k), the definition would have simply and clearly stated that `a company incorporated or registered under the Companies Act, 1956 ' which would have included a
Government company defined under Section 617 of the Companies Act, 1956. The inclusion of only a specific category of companies incorporated under the Companies Act, 1956 within the definition of `establishment ' necessarily and impliedly excludes all other types of companies registered under the Companies Act, 1956, from the definition of `establishment '.
It is clear that the legislative intent was to apply Section 47 of the Act only to such establishments as were specifically defined as `establishment ' under Section 2(k) of the Act and not to other establishments. The legislative intent was to define `establishment ' so as to be synonymous with the definition of `State ' under Article 12 of the Constitution of India.
Private employers, whether individuals, partnerships, proprietary concerns or companies
(other than Government companies) are clearly excluded from the `establishments ' to which
Section 47 of the Act will apply.
There is yet another indication in Section 47, that private employers are excluded. The caption/ marginal note of Section 47 describes the purport of the section as non-discrimination in Government employment. The word `government ' is used in the caption, broadly to refer to
`State ' as defined in Article 12 of the Constitution. If the intention of the legislature was to prevent discrimination of persons with disabilities in any kind of employment, the marginal note would have simply described the provision as `non-discrimination in employment ' and
Sub-section (1) of Section 47 would have simply used the word `any employer ' instead of using the word `establishment ' and then taking care to define the word `establishment '. The non-use of the words `any employer ', and `any employment ' and specific use of the words
`Government employment ' and `establishment ' (as defined), demonstrates the clear legislative intent to apply the provisions of Section 47 only to employment under the State and not to employment under others. While the marginal note may not control the meaning of the body of the section, it usually gives a safe indication of the purport of the section to the extent possible. Be that as it may.
The learned Counsel for the employee submitted that the decision in Dhanoa was rendered with reference to a penal statute; and that words or terms in such statutes are used in a
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restrictive and strict sense. He contended that definition of words and terms in a penal statute will not provide a safe guide to interpret the same words employed in socio-economic legislations. He further contended that the terms used in a socio-economic statute like
Disabilities Act, providing for full participation and equality, for people with disabilities and to remove any discrimination against them vis-à-vis non- disabled persons, should be interpreted liberally. He submitted that any interpretation of the term `a corporation established by or under a central, provincial or state Act ' with reference to the Penal Code should not therefore be imported for understanding the meaning of that term when used in the
Act. He referred to and relied upon the Statement of Objects and Reasons of the Act which states that India as a signatory to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region, enacted the Statute to provide for the following:
(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-à-vis non-disabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities; (v) to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and
(vi) to make special provision of the integration of persons with disabilities into the social mainstream.
He submitted that keeping the said objects in view, the term `establishment ' should be extended to all corporations incorporated under the Companies Act 1956, irrespective of whether they are in the public sector or private sector. He also relied upon the following principle of contextual interpretation enunciated by this Court in Reserve Bank of India v.
Peerless General Finance and Investment Co. Ltd., 1987 (1) SCC 424:
Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say is the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. The interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.
He next relied upon the principle that words in a social welfare legislation should receive liberal and broad interpretation, stated by this Court in Workman of American Express
International Banking Corporation v. Management of American Express International
Banking Corporation, 1985 (4) SCC 71:
The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and human rights legislation are not to be put in Procrustean beds or shrunk to Liliputian
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dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognized and reduced. Judges ought to be more concerned with the `colour ', the `content ' and the `context ' of such statutes (we have borrowed the words from Lord
Wilberforce 's opinion in Prenn v. Simmonds 1971 (3) All ER 237). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. In one of the cases cited before us, that is, Surendra Kumar Verma v. Central Government Industrial Tribunal-cumLabour Court, (1981) 1 SCR 789, we had occasion to say, Semantic luxuries are misplaced in the interpretation of "bread and butter" statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions.
He next relied upon the following observations in Kunal Singh v. Union of India, 2003 (4)
SCC 524, where this Court, referring to the very section under consideration, observed thus:
Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service. We agree that the socio-economic legislations should be interpreted liberally. It is also true that Courts should adopt different yardsticks and measures for interpreting socioeconomic statutes, as compared to penal statutes, and taxing statutes. But a caveat. The courts cannot obviously expand the application of a provision in a socio-economic legislation by judicial interpretation, to levels unintended by the legislature, or in a manner which militates against the provisions of the statute itself or against any constitutional limitations. In this case, there is a clear indication in the statute, that the benefit is intended to be restricted to a particular class of employees, that is employees of enumerated establishments (which fall within the scope of ‘state’ under Article 12). Express limitations placed by the socio-economic statute cannot be ignored, so as to include in its application, those who are clearly excluded by such statute itself. We should not lose sight of the fact that the words "corporation established by or under a Central, Provincial or State Act" is a term used in several enactments, intended to convey a standard meaning. It is not a term which has any special significance or meaning in the context of the Disabilities Act or any other socio-economic legislations. It is a term used in various enactments, to refer to statutory corporations as contrasted from nonstatutory companies. Any interpretation of the said term, to include private sector, will not only amount to overruling the clear enunciation in Dhanoa which has held the field for nearly three decades, but more importantly lead to the erasure of the distinction maintained in the
Constitution between statutory corporations which are `state ' and non-statutory bodies and corporations, for purposes of enforcement of fundamental rights. The interpretation put forth by the employee would make employees of all companies, public servants, amenable to punishment under the provisions of Indian Penal Code and Prevention of Corruption Act; and would also result in all non-statutory companies and private sector companies being included in the definition of ‘State’ thereby requiring them to comply with the requirements of nondiscrimination, equality in employment, reservations etc.
The appellant next contended that the scheme of the Act, does not confine its applicability to government or statutory corporations. Reference is invited to some provisions of the Act to
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contend that obligations/duties/ responsibilities are fixed with reference to persons with disabilities, on establishments other than those falling under Section 2(k) of the Act. It was submitted that Section 39 casts an obligation on all educational institutions, to reserve not less than three percent of the seats for persons with disabilities. In fact, it is not so. Though, the marginal note of Section 29 uses the words `all educational institutions ' with reference to reservation of seats for persons with disabilities, the section makes it clear that only government educational institutions and educational institutions receiving aid from the government shall reserve not less than three percent seats for persons with disabilities. It is well recognized that an aided private school would be included within the definition of ‘State’ in regard to its acts and functions as an instrumentality of the State. Therefore, care is taken to apply the provisions of the Act to only educational institutions belonging to the government or receiving aid from the government and not to unaided private educational institutions.
Further, Section 39 of the Act, does not use the word ‘establishment’.
Reference is next made to the Section 44 which requires non-discrimination in transport.
This section requires establishments in the transport sector to take special measures (within the limits of their economic capacity) to permit easy access to persons with disabilities. The employee contends that this would mean that all establishments whether statutory corporations falling under the definition of Section 2(k) of the Act or non-statuary corporations, or even individuals operating in the transport sector should comply with Section 44 of the Act. We do not propose to consider whether Section 44 applies to non-statutory corporations in the transport sector, as that issue does not arise in this case. Further the use of the words "within the limits of their economic capacity" makes it virtually directory. Be that as it may.
Re : Question (ii)
As the appellant in CA No. 1886/2007 and the third respondent in CA No. 1858/2007, are not establishments, within the meaning of that expression in Section 2(k) of the Act,
Section 47 of the Act will not apply. In so far the CA No. 1858 of 2007, there is an additional factor. Third respondent therein was not the employer of any persons with disability.
Therefore, in that case, the entire question is academic. In neither of the cases, any relief can be granted under Section 47 of the Act.
Therefore CA No. 1886 of 2007 is allowed and CA No. 1858 of 2007 is dismissed resulting in the dismissal of the respective writ petitions. This will not come in the way of employee of any private company, who has been terminated on the ground of disability, seeking or enforcing any right available under any other statute, in accordance with the law.
PRADEEP KUMAR BISWAS V. INDIAN INSTITUTE OF CHEMICAL BIOLOGY
(2002) 5 SCC 111
Decided On: April 16, 2002
BENCH – CHIEF JUSTICE S. P. BHARUCHA, JUSTICES S. M. QUADRI, R. C. LAHOTI, N. S.
HEGDE, D. RAJU, RUMA PAL & ARIJIT PASAYAT
JUSTICE RUMA PAL (FOR THE CHIEF JUSTICE, JUSTICES QUADRI, HEGDE, PASAYAT AND
HERSELF, MAJORITY OPINION)
In 1972 Sabhajit Tewary, a Junior Stenographer with the Council of Scientific and
Industrial Research (CSIR) filed a write petition under Article 32 of the Constitution claiming parity of remuneration with the stenographers who were newly recruited to the CSIR. His
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claim was based on Article 14 of the Constitution. A Bench of five judges of this Court denied him the benefit of that Article because they held in Sabhajit Tewari v. Union of India that the writ application was not maintainable against CSIR as it was not an "authority" within the meaning of Article 12 of the Constitution. The correctness of the decision is before us for reconsideration.
The immediate cause for such re-consideration is a writ application filed by the appellant in Calcutta High Court challenging the termination of their services by the respondent no. 1 which is a unit of CSIR. They prayed for an interim order before the learned Single Judge.
That was refused by the Court on the prima view that the writ application was itself not maintainable against the respondent no. 1. The appeal was also dismissed in view of the decision of this Court in Sabhajit Tewary 's case.
Challenging the order of the Calcutta High Court, the appellants filed an appeal by way of special leave before this Court. On 5th August, 1986 a Bench of two Judges of this Court referred the matter to a Constitution Bench being of the view that the decision in Sabhajit
Tewary required re-consideration "having regard to the pronouncement of this Court in several subsequent decisions in respect of several other institutes of similar nature set up by the Union of India".
The questions therefore before us are – is the CSIR a State within the meaning of
Article 12 of the Constitution and if it is should this Court reverse a decision which has stood for over a quarter of a century?
The Constitution has to an extent defined the word 'State ' in Article 12 itself as including:
"the Government and Parliament of India and the Government and the Legislature of each of the State and all local or other authorities within the territory of India or under thecontrol of the Government of India".
That an 'inclusive ' definition is generally not exhaustive is a statement of the obvious and as far as Article 12 is concerned, has been so held by this Court. The words 'State ' and 'Authority ' used in Article 12 therefore remain, to use the words of Cardozo, among "the great generalities of the Constitution" the content of which has been and continues to be supplied by Courts from time to time.
It would be a practical impossibility and an unnecessary exercise to note each of the multitude of decisions on the point. It is enough for our present purposes to merely note that the decisions may be categorized broadly into those which express an arrow and those that express a more liberal view and to consider some decisions of this Court as illustrative of this apparent divergence. In the ultimate analysis the difference may perhaps be attributable to different stages in the history of the development of the law by judicial decisions on the subject. But before considering the decisions in must be emphasized that the significance of
Article 12 lies in the fact that it occurs in Part III of the Constitution which deals with fundamental rights. The various Articles in Part-III have placed responsibilities and obligations on the 'State ' vis-à-vis the individual to ensure constitutional protection of the individual 's rights against the state, including the right to equality under Article 14 and equality of opportunity in matters of public employment under Article 16 and most importantly the right to enforce all or any of the fundamental rights against the 'State ' as defined in Article 12 either under Article 32 by this Court or under Article 226 by the High
Courts by issuance of writs or directions or orders.
The range and scope of Article 14 and consequently Article 16 have widened by a process of judicial interpretation so that the right to equality now not only means the right not to be
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discriminated against but also protection against any arbitrary or irrational act of the State. It has been said that:
"Article 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment".
Keeping pace with this broad approach to the concept of equality under Article 14 and 16,
Courts have whenever possible, sought to curb an arbitrary exercise of power against individuals by 'centers of power ', and there was correspondingly an expansion in the judicial definition of 'State ' in Article 12.
Initially the definition of State was treated as exhaustive and confined to the authorities or those which could be read ejusdem generis with the authorities mentioned in the definition of Article 12 itself. The next stage was reached when the definition of 'State ' came to be understood with reference to the remedies available against it. For example, historically, a writ of mandamus was available for enforcement of statutory duties or duties of a public nature.
Thus a statutory corporation, with regulations farmed by such Corporation pursuant to statutory powers was considered a State, and the public duty was limited to those which were created by statute.
The decision of the Constitution Bench of this Court in Rajasthan Electricity Board
v. Mohan Lal is illustrative of this. The question there was whether the Electricity Board – which was a Corporation constituted under a statute primarily for the purpose of carrying on commercial activities could come within the definition of 'State ' in Article 12. After considering earlier decisions, it was said:
"These decisions of the Court support our view that the expression "other authorities" in Article 12 will include all constitutional or statutory authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purpose of carrying on commercial activities".
It followed that since a Company incorporated under the Companies Act is not formed statutorily and is not subject to any statutory duty vis-à-vis an individual, it was excluded from the preview of 'State '. In Praga Tools Corporation v. Shri C. A. Imanual where the question was whether an application under Article 226 for issuance of a writ of mandamus would lie impugning an agreement arrived at between a Company and its workmen, the Court held that:
"....there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty. The High Court, therefore, was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lie against the company".
By 1975 Mathew, J. in Sukhdev Singh v. Bhagatram noted that the concept of "State" in
Article 12 had undergone "drastic changes in recent year". The question in that case was whether the Oil and Natural Gas Commission, the Industrial Finance Corporation and the Life
Insurance Corporation each of which were public corporations set up by statutes were authorities and therefore within the definition of State in Article 12. The Court affirmed the decision in Rajasthan State Electricity Board v. MohanLal (supra) and held that the Court could compel compliance of statutory rules. But the majority view expressed by A.N. Ray,
C.J. also indicated that the concept would include a public authority which:
"is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private profit. Such an authority is not precluded from making profit for the public benefit".
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The use of the alternative is significant. The Court scrutinised the history of the formation of the three Corporations, the financial support given by the Central Government, the utilization of the finances so provided, the nature of service rendered and noted that despite the fact that each of the Corporations on profits earned by it nevertheless the structure of each of the Corporation showed that the three Corporations represented the 'voice and hands ' of the
Central Government. The Court came to the conclusion that although the employees of the three Corporations were not servants of the Union or the State, "these statutory bodies are 'authorities ' within the meaning of Article 12 of the Constitution".
Mathew J in his concurring judgment went further and propounded a view which presaged the subsequent developments in the law. He said:
"A state is an abstract entity. It can only act through the instrumentality or agency of natural or juridical persons. Therefore, there is nothing strange in the notion of the state acting through a corporation and making it an agency or instrumentality of the State… "
For identifying such an agency or instrumentality he propounded four indicia:
(1) "A finding of the state financial support plus an unusual degree of control over the management and policies might lead one to characterize an operation as state action." (2) "Another factor which might be considered is whether the operation is an important public function."
(3) "The combination of state aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a state agency.
If a given function is of such pubic importance and so closely related to a governmental functions as to be classified as a government agency, then even the presence or absence of state financial aid might be irrelevant in making a finding of state action. If the function does not fall within such a description then mere addition of state money would not influence the conclusion."
(4) "The ultimate question which is relevant for our purpose is whether such a corporation is an agency or instrumentality of the government for carrying on a business for the benefit of the public. In other words, the question is, for whose benefit was the corporation carrying on the business?"
Sabhajit Tewary was decided by the same Bench on the same day as Sukhdev
Singh (supra). The contentions of the employee was the CSIR is an agency of the Central
Government on the basis of the CSIR Rules which, it was argued, showed that the Government controlled the functioning of CSIR in all its aspect. The submission was somewhat cursorily negatived by this Court on the ground that all this:
… "will not establish anything more than the fact that the Government takes special care that the promotion, guidance and co-operation of scientific and
Industrial Research, the institution and financing of specific researches, establishment or development and assistance to special institutions or departments of the existing institutions for scientific study of problems affecting particular industry in a trade, the utilisation of the result of the researches conducted under the auspices of the Council towards the development of industries in the country are carried out in a responsible manner."
Although the Court noted that it was the Government which was taking the "special care" nevertheless the writ petition was dismissed ostensibly because the Court factored into its decision two premises:
i) "The society does not have a statutory character like the Oil and Natural Gas
Commission or the Life Insurance Corporation or Industrial Finance Corporation.
It is a Society incorporated in accordance with the provisions of the Society 's
Registration Act", and
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ii) "This Court has held in Praga Tools Corporation v. C. A. Imanual, Heavy
Engineering Mazdoor Union v. State of Bihar, and in S. L. Agarwal v. Hindustan
Steel Ltd. that the Praga Tools Corporation, Heavy Engineering Mazdoor Union and Hindustan Steel Ltd. are all companies incorporated under the Companies Act and the employees of these companies do not enjoy the protection available to
Government servants as contemplated in Article 311. The Companies were held in these cases to have independent existence of the Government and by the law relating to corporations. These could not be held to be departments of the
Government".
With respect, we are of the view that both the premises were not really relevant and in fact contrary to the 'voice ' and 'hands ' approach in Sukhdev Singh. Besides reliance by the
Court on decisions pertaining to Article 311 which is contained in Part XIV of the Constitution was inapposite. What was under consideration was Article 12 which by definition is limited to Part III and by virtue of Article 36 to Part IV of the Constitution. As said by another
Constitution Bench later in this context:
"Merely because a juristic entity may be an "authority" and therefore "State" within the meaning of Article 12, it may not be elevated to the position of "State" for the purpose of Articles 309, 310 and 311 which find a place in Part XIV. The definition of "State" in Article 12 which includes an "authority" within the territory of India or under the control of the Government of India is (sic) in its application only to Part III and by virtue of Article 36, to Part IV: it does not extend to the other provisions of the Constitution and hence a juristic entity which may be "State" for the purpose of Parts III and IV would not be so for the purpose of Part XIV or any other provision of the Constitution. This is why the decisions of this Court in S. L. Aggarwal v. Hindustan Steel Ltd., and other cases involving the applicability of Article 311 have no relevance to the issue before us".
Normally, a precedent like Sabhajit Tewary which has stood for a length of time should not be reversed, however erroneous the reasoning if it has stood unquestioned, without its reasoning being 'distinguished ' out of all recognition by subsequent decisions and if the principles enunciated in the earlier decision can stand consistently and be reconciled with subsequent decisions of this Court, same equally authoritative. In our view Sabhajit
Tewary fulfills both conditions.
Side-stepping the majority approach in Sabhajit Tewary, the 'drastic changes ' in the perception of 'State ' heralded in Sukhdev Singh by Mathew, J and the tests formulated by him were affirmed and amplified in R. D. Shetty v. International Airport Authority of India.
Although the International Airport Authority of India is a statutory corporation and therefore within the accepted connotation of State, the Bench of three Judges developed the concept of
State. The rationale for the approach was the one adopted Mathew J in Sukhdev Singh:
"In the early days, when the Government had limited functions, it could operate effectively through natural persons constituting its civil service and they were found adequate to discharge governmental functions, which were of traditional vintage. But as the tasks of the Government multiplied with the advent of the welfare State, it began to be increasingly felt that the frame work of civil service was not sufficient to handle the new tasks which were often of specialised and highly technical character. The inadequacy of the civil service to deal with these new problems came to be realized and it became necessary to forge a new instrumentality or administrative device for handling these new problems. It was in these circumstances and with a view to supplying this administrative need that the public corporation came into being as the third arm on the Government".
From this perspective, the logical sequitur is that it really does not matter what guise the
State adopts for this purpose, whether by a Corporation established by statute or incorporated under a law such as the Companies Act or formed under the Societies Registration Act, 1860.
Neither the form of the Corporation, nor its ostensible autonomy would take away from its
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character as 'State ' and its constitutional accountability under Part III vis-à-vis the individual if it were in fact acting as an instrumentality or agency of Government.
As far as Sabhajit Tewary was concerned it was explained and distinguished in R. D.
Shetty saying:
"The Court no doubt took the view on the basis of facts relevant to the constitution and functioning of the Council that it was not an 'authority ', but we do not find any discussion in this case as to what are the features which must be present before a corporation can be regarded as an 'authority ' within the meaning of Article 12.
This decision does not lay down any principle or test for the purpose of determining when a corporation can be said to be an 'authority '. If at all any test can be gleaned from the decision, it is whether the Corporation is 'really an agency of the Government '. The Court seemed to hold on the facts that the Council was not an agency of the Government and was, therefore, not an 'authority '".
The tests propounded by Mathew, J in Sukhdev Singh were elaborated in R. D. Shetty and were re-formulated two years later by a Constitution Bench in Ajay Hasia v. Khalid Mujib.
What may have been technically characterised as obiter dicta in Sukhdev Singh and R. D.
Shetty (since in both cases the "authority" in fact involved was a statutory corporation), formed the ratio decidendi of Ajay Hasia. The case itself dealt with a challenge under Article 32 to admissions made to a college established and administered by a Society registered under the
Jammu & Kashmir Registration of Societies Act 1898. The contention of the Society was that even if there were an arbitrary procedure followed for selecting candidates for admission, and that this may have resulted in denial of equality to the petitioners in the matter of admission in violation of Article 14, nevertheless Article 14 was not available to the petitioners because the Society was not a State within Article 12.
The Court recognised that:
"Obviously the Society cannot be equated with the Government of India or the
Government of any State nor can it be said to be a local authority and therefore, it must come within the expression "other authorities" if it is to fall within the definition of 'State ' ".
But it said that:
"The courts should be anxious to enlarge the scope and width of the Fundamental
Rights by bringing within their sweep every authority which is an instrumentality or agency of the government or through the corporate personality of which the government is acting, so as to subject the government in all its myriad activities, whether through natural persons or through corporate entities, to the basic obligation of the Fundamental Rights".
It was made clear that the genesis of the corporation was immaterial and that:
"The concept of instrumentality or agency of the government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the government so as to come within the meaning of the expression "authority" in
Article 12".
R. D. Shetty was noted and quoted with approval in extenso and the tests propounded for determining as to when a corporation can be said to be an instrumentality or agency of the
Government therein were culled out and summarised as follows:
(1) One thing is clear that if the entire share capital of the corporation is held by
Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.
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(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.
(3) It may also be a relevant factor.....whether the corporation enjoys monopoly status which is State conferred or State protected.
(4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality.
(5) If the functions of the corporation are of public importance and closely related a governmental functions it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.
(6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government.
In dealing with Sabhajit Tewary the Court in Ajay Hasia noted that since Sabhajit
Tewary was a decision given by a Bench of Five Judges of this Court it was undoubtedly binding. The Court read Sabhajit Tewary as implicitly assenting to the proposition that CSIR could have been an instrumentality of agency of the Government even though it was a
Registered Society and limited the decision to the facts of the case. It held that the Court in Sabhajit Tewari:
"did not rest its conclusion on the ground that the council was a society registered under the Societies Registration Act, 1860, but proceeded to consider various other features of the council for arriving at the conclusion that it was not an agency of the government and therefore not an 'authority '".
The conclusion was then reached applying the test formulated to the facts that the Society in Ajay Hasia was an authority falling within the definition of "State" in Article 12. On the same day that the decision in Ajay Hasia was pronounced came the decision of Som Prakash
Rekhi v. Union of India. Here too, the reasoning in R. D. Shetty was followed and Bharat
Petroleum Corporation was held to be a 'State ' within the "enlarged meaning of Article 12.
Sabhajit Tewary was criticised and distinguished as being limited to the facts of the case. It was said:
"The rulings relied on are, unfortunately, in the province of Article 311 and it is clear that a body may be 'State ' under Part III but not under Part XIV. Ray, C.J., rejected the argument that merely because the Prime Minister was the President or that the other members were appointed and removed by Government did not make the Society a 'State '. With great respect, we agree that in the absence of the other features elaborated in [R. D. Shetty] the composition of the Government
Body alone may not be decisive. The laconic discussion and the limited ratio in
Tewary hardly help either side here."
The tests to determine whether a body falls within the definition of 'State ' in Article 12 laid down in R. D. Shetty with the Constitution Bench imprimatur in Ajay Hasia form the keystone of the subsequent jurisprudential superstructure judicially crafted on the subject which is apparent from a chronological consideration of the authorities cited.
In P. K. Ramachandra Iyer v. Union of India, it was held that both the Indian Council of
Agricultural Research (ICAR) and its affiliate Indian Veterinary Research Institute were bodies as would be comprehended in the expression 'other authority ' in Article 12 of the
Constitution. Yet another judicial blow was dealt to the decision in Sabhajit Tewary when it was said:
"Much water has flown down the Jamuna since the dicta in Sabhajit Tewary and conceding that it is not specifically overruled in later decision, its ratio is considerably watered down so as to be a decision confined to its own facts."
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B. S. Minhas v. Indian Statistical Institute held that the Indian Statistical Institute, a registered Society is an instrumentality of the Central Government and as such is an 'authority ' within the meaning of Article 12 of the Constitution. The basis was that the composition of respondent no. 1 is dominated by the representatives appointed by the Central Government.
The money required for running the Institute is provided entirely by the Central Government and even if any other moneys are to be received by the Institute it can be done only with the approval of the Central Government, and the accounts of the Institute have also to be submitted to the Central Government for its scrutiny and satisfaction. The Society has to comply with all such directions as may be issued by the Central Government. It was held that the control of the Central Government is deep and pervasive.
The decision in Central Inland Water Transport Corporation Ltd. v. Brojo Nath
Ganguli held that the appellant company was covered by Article 12 because it is financed entirely by three Governments and is completely under the control of the Central Government and is managed by the Chairman and Board of Directors appointed by the Central Government and removable by it and also that the activities carried on by the Corporation are of vital national importance.
However, the tests propounded in Ajay Hasia were not applied in Tekraj Vasandi alias
K.S. Basandhi v. Union of India, 1988 (1) SCC 237, where the Institute of Constitutional and
Parliamentary Studies (ICPS), a society registered under the Societies Registration Act, 1860 was held not to be an "other authority" within the meaning of Article 12. The reasoning is not very clear. All that was said was:
"Having given our anxious consideration to the facts of this case, we are not in a position to hold that ICPS is either an agency or instrumentality of the State so as to come within the purview of 'other authorities ' in Article 12 of the Constitution".
However, the Court was careful to say that "ICPS is a case of its type – typical in many ways and the normal tests may perhaps not properly apply to test its character".
All India Sainik Schools Employees ' Association v. Defence Minister, 1989 Supp. (1) SCC
205 held applying the tests indicated in Ajay Hasia that the Sainik School Society is a 'State '.
Perhaps this rather over-enthusiastic application of the broad limits set by Ajay Hasia may have persuaded this Court to curb the tendency in Chander Mohan Khanna v. National
Council of Educational Research and Training. The Court referred to the tests formulated in Sukhdev Singh, Ramana, Ajay Hasia, and Som Prakash Rekhi but striking a note of caution said that "these are merely indicative indicia and are by no means conclusive or clinching in any case". In that case, the question arose whether the National Council of Educational
Research (NCERT) was a 'State ' as defined under article 12 of the Constitution. The NCERT is a society registered under the Societies Registration Act. After considering the provisions of its Memorandum of Association as well as the rules of NCERT, this Court came to the conclusion that since NCERT was largely an autonomous body and the activities of the
NCERT were not wholly related to governmental functions and that the Government control was confined only to the proper utilisation of the grant and since its funding was not entirely from Government resources, the case did not satisfy the requirements of the State under
Article 12 of the Constitution. The Court relied principally on the decision in Tekraj Vasandi.
However, as far as the decision in Sabhajit Tewary was concerned, it was noted that "the decision has been distinguished and watered down in the subsequent decisions".
Fresh off the judicial anvil is the decision in the Mysore Paper Mills Ltd. v. The Mysore
Paper Mills Officers Association which fairly represents what we have seen as a continuity of thought commencing from the decision in Rajasthan Electricity Board in 1967 up to the present time. It held that a company substantially financed and financially controlled by the
Government, managed by a Board of Directors nominated and removable at the instance of
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the Government and carrying on important functions of public interest under the control of the Government is 'an authority ' within the meaning of Article 12.
The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be
– whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.
Coming now to the facts relating to CSIR, we have no doubt that it is well within the range of Article 12, a conclusion which is sustainable when judged according to the tests judicially evolved for the purpose.
The Formation of CSIR
On 27th April 1940 the Board of Scientific and Industrial Research and on 1st February
1941, the Industrial Research Utilisation Committee were set up by the Department of
Commerce, Government of India with the broad objective of promoting industrial growth in this country. On 14th November1941, a resolution was passed by the Legislative Assembly and accepted by the Government of India to the following effect:
"This Assembly recommends to the Governor General in Council that a fund called the Industrial Research Fund be constituted, for the purpose of fostering industrial development in this country and that provision be made in the Budget for an annual grant of rupees ten lakhs to the fund for a period of five years."
For the purpose of coordinating and exercising administrative control over the working of the two research bodies already set up by the Department of Commerce, and to oversee the proper utilisation of the Industrial Research Fund, by a further resolution dated 26th September
1942, the Government of India decided to set up a Council of Industrial Research on a permanent footing which would be a registered society under the Registration of Societies
Act, 1860. Pursuant to the resolution, on 12th March, 1942 the CSIR was duly registered. Byelaws and Rules were framed by the Governing Body of the Society in 1942 which have been subsequently revised and amended. Unquestionably this shows that the CSIR was 'created ' by the Government to carry on in an organized manner what was being done earlier by the
Department of Commerce of the Central Government. In fact the two research bodies which were part of the Department of Commerce have since been subsumed in the CSIR.
Objects and Functions
The 26th September 1942 Resolution had provided that the functions of the CSIR would be: (a) to implement and give effect to the following resolution moved by the Hon 'ble
Dewan Bahadur Sir A. R. Mudaliar and passed by the Legislative Assembly on the 14th Nov. 1941 and accepted by the Government of India … (quoted earlier in this Judgment)
(b) the promotion, guidance and co-ordination of scientific and Industrial
Research in India including the institution and the financing of specific researches: (c) the establishment or development and assistance to special institutions or
Department of existing institutions for scientific study of problems affecting particular industries and trade;
(d) the establishment and award of research studentships and fellowships;
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(e) the utilisation of the results of the researches conducted under the auspices of the Council towards the development of industrial in the country and the payment of a share of royalties arising out of the development of the results of researches to those who are considered as having contributed towards the pursuit of such researches; (f) the establishment, maintenance and management of laboratories, workshops, institutes, and organisation to further scientific and industrial research and utilise and exploit for purposes of experiment or otherwise any discovery or invention likely to be of use Indian Industries.
(g) the collection and dissemination or information in regard not only to research but to industrial matters generally;
(h) publication of scientific papers and a journal of industrial research and development, and
(i) any other activities to promote generally the objects of the resolution mentioned in (a) above.
These objects which have been incorporated in the Memorandum of Association of CSIR manifestly demonstrate that CSIR was set up in the national interest to further the economic welfare of the society by fostering planned industrial development in the country. That such a function is fundamental to the governance of the country has already been held by a
Constitution Bench of this Court as far back as in 1967 in Rajasthan Electricity Board where it was said:
"The State, as defined in Article 12, as thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people".
We are in respectful agreement with this statement of the law. The observations to the contrary in Mohan Khanna v. NCERT (supra) relied on by the Learned Attorney General in this context, do not represent the correct legal position.
Incidently, the CSIR was and continues to be a non-profit making organization and according to clause (4) of CSIR 's Memorandum of Association, all its income and property, however derived shall be applied only 'towards the promotion of those objects subject nevertheless in respect of the expenditure to such limitations as the Government of India may from time to time impose '.
Management and Control
When the Government of India resolved to set up the CSIR on 26th February, 1942 it also decided that the Governing Body would consist of the following members:
(1) The Hon’ble Member of the Council of His Excellency the Governor General in charge of the portfolio of Commerce (Ex-officio).
(2) A representative of the Commerce Department of the Government of India, appointed by the Government of India.
(3) A representative of the Finance Department of the Government of India, appointed by the Government of India.
(4) Two members of the Board of Scientific and Industrial Research elected by the said Board.
(5) Two members of the Industrial Research Utilisation committee elected by the said Committee.
(6) The Director of Scientific and Industrial Research.
(7) One or more members to be nominated by the Government of India to represent interests not otherwise represented.
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The present Rules and Regulations 1999 of CSIR provide that:
(a) The Prime Minister of India shall be the ex-office President of the Society.
(b) The Minister-in-Charge of the Ministry or Deptt. dealing with the Council of
Scientific & Industrial Research shall be the ex-officio Vice President of the
Society.
Provided that during any period when the Prime Minister is also such Minister, any person nominated in this behalf by the Prime Minister shall be the VicePresident.
(c) Ministers In charge of Finance and Industry (ex-officio).
(d) The members of the Governing Body.
(e) Chairman, Advisory Board.
(f) Any other person or persons appointed by the President, CSIR."
The Governing Body of the Society is constituted by the:
(a) Director General,
(b) Member Finance,
(c) Directors of two National Laboratories,
(d) Two eminent Scientists/Technologists, one of whom shall be from Academia;
(e) Heads of two Scientific Departments/Agencies of the Government of India.
The dominant role played by the Government of India in the Governing Body of CSIR is evident. The Director-General who is ex-officio Secretary of the Society is appointed by the
Government of India [Rule 2(iii)]. The submission of the learned Attorney General that the
Governing Body consisted of members, the majority of whom were non-governmental members is, having regard to the facts on record, unacceptable. Furthermore, the members of the Governing Body who are not there ex officio are nominated by the President and their membership can also be terminated by him and the Prime Minister is the ex officio President of CSIR. It was then said that although the Prime Minister was ex officio President of the
Society but the power being exercised by the Prime Minister is as President of the Society.
This is also the reasoning in Sabhajit Tewary. With respect, the reasoning was and the submission is erroneous. An ex officio appointment means that the appointment is by virtue of the office; without any other warrant or appointment than that resulting from the holding of a particular office. Powers may be exercised by an officer, in this case the Prime Minister, which are not specifically conferred upon him, but are necessarily implied in his office (as
Prime Minister), these are ex officio.
The control of the Government in the CSIR is ubiquitous. The Governing Body is required to administer, direct and control the affairs and funds of the Society and shall, under Rule 43, have authority 'to exercise all the powers of the Society subject nevertheless in respect of expenditure to such limitations as the Government of India may from time to time impose '.
The aspect of financial control by the Government is not limited to this and is considered separately. The Governing Body also has the power to frame, amend or repeal the bye-laws or CSIR but only with the sanction of the Government of India. Bye-law44 of the 1942 Byelaws had provided 'any alteration in the bye-laws shall require the prior approval of the
Governor General in Council '.
Rule 41 of the present Rules provide that:
"The President may review/amend/vary any of the decisions of the Governing
Body and pass such orders as considered necessary to be communicated to the
Chairman of the Governing Body within a month of the decision of the Governing
Body and such order shall be binding on the Governing Body. The Chairman may
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also refer any question which in his opinion is of sufficient importance to justify such a reference for decision of the President, which shall be binding on the
Governing Body."
Given the fact that the President of CSIR is the Prime Minister, under this Rule the subjugation of the Governing Body to the will of the Central Government is complete.
As far as the employees of the CSIR are concerned the Central Civil Services
(Classification, Control & Appeal) Rules and the Central Civil Services (Conduct) Rules, for the time being in force, are from the outset applicable to them subject to the modification that references to the President and 'Government Servant ' in the Conduct Rules would be construed as 'President of the Society ' and 'Officer & establishments in the service of the Society ' respectively. (Bye Law 12). The scales of pay applicable to all the employees of CSIR are those prescribed by the Government of India for similar personnel, save in the case of specialists (Bye Law 14) and in regard to all matters concerning service conditions of employees of the CSIR, the Fundamental and Supplementary Rules framed by the Govt. of
India and such other rules and orders issued by the Govt. of India from time to time are also, under Bye Law 15 applicable to the employees of the CSIR. Apart from this, the rules/Orders issued by Government of India regarding reservation of posts for SC/ST apply in regard to appointments to posts to be made in CSIR. (Bye Law 19). The CSIR cannot lay down or change the terms and conditions of service of its employees and any alteration in the bye-laws can be carried out only with the approval of Government of India. (Bye Laws 20).
Financial Aid
The initial capital of the CSIR was Rs. 10 lakhs, made available pursuant to the Resolution of the Legislative Assembly on 14th November, 1941. Paragraph 5 of the 26th September, 1942
Resolution of the Government of India pursuant to which CSIR was formed reads:
"The Government of India have decided that a fund, viz., the Industrial Research
Fund, should be constituted by grants from the Central Revenues to which additions are to be made from time to time as moneys flow in from other sources.
These 'other sources ' will comprise grants, if any, by Provincial Governments by industrialists for special or general purposes, contributions from Universities or local bodies, donations or benefactions, royalties, etc., received from the development of the results of Industrial Research, and miscellaneous receipts. the
Council of Scientific and Industrial Research will exercise full powers in regard to the expenditure to be met out of the Industrial Research Fund subject to its observing the Bye-laws framed by the Governing Body of the Council, from time to time, with the approval of the Governor General-in-Council, and to its annual budget being approved by the Governor General-in-Council."
As already noted, the initial capital of Rs. 10 lakhs was made available by the Central
Government. According to the statement handed up to the Court on behalf of CSIR the present financial position of CSIR is that at least 70% of the funds of CSIR are available from grants made by the Government of India. For example out of the total funds available to CSIR for the years 1998-99, 1999-2000, 2000-01 of Rs. 1023.68 crores, Rs. 1136.69 crores and Rs.
1219.04 crores respectively, the Government of India has contributed Rs. 713.32 crores, Rs.
798.74 crores and Rs. 877.88 crores. A major portion of the balance of the funds available is generated from charges for rendering research and development works by CSIR for projects such as the Rajiv Gandhi Drinking Water Mission Technology Mission on oilseeds and pulses and maize or grant in aid projects from other Government Departments. Funds are also received by CSIR from sale proceeds of its products, publications, royalties etc. Funds are also received from investments but under Bye-Law 6 of CSIR, funds of the Society may be invested only in such manner as prescribed by the Government of India. Some contributions are made by the state Governments and to a small extent by 'individuals, institutions and other
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agencies '. The non-governmental contributions are a pittance compared to the massive governmental input.
As far as expenditure is concerned, under Bye-law (1) as it stands at present, the budget estimates of the Society are to be prepared by the Governing Body 'keeping in view the instructions issued by the Government of India from time to time in this regard '. Apart from an internal audit, the accounts of the CSIR are required to be audited by the controller and
Auditor General and placed before the table of both Houses of Parliament (Rule 69).
In the event of dissolution, unlike other registered societies which are governed by
Section 14 of the Societies Registration Act, 1860, the members of CSIR have no say in the distribution of its assets and under clause (5) of the Memorandum of Association of CSIR, on the winding up or dissolution of CSIR any property remaining after payment of all debts shall have to be dealt with "in such manner as the Government of India may determine". CSIR is therefore both historically and in its present operation subject to the financial control of the
Government of India. The assets and funds of CSIR though nominally owned by the Society are in the ultimate analysis owned by the Government.
From whichever perspective the facts are considered there can be no doubt that the conclusion reached in Sabhajit Tewary was erroneous. If the decision of Sabhajit Tewary had sought to lay down as a legal principle that a society registered under the Societies Act or a company incorporated under the Companies Act is, by that reason alone, excluded from the concept of State under Article 12, it is a principle which has long since been discredited.
"Judges have made worthy, if shamefaced, efforts, while giving lip service to the rule, to riddle it with exceptions and by distinctions reduce it to a shadow".
In the assessment of the facts, the Court had assumed certain principles, and sought precedential support from decisions which were irrelevant and had "followed a groove chased amidst a context which has long since crumbled". Had the facts been closely scrutinised in the proper perspective, it could have led and can only lead to the conclusion that CSIR is a State within the meaning of Article 12.
Should Sabhajit Tewary still stand as an authority even on the facts merely because it has stood for 25 years? We think not. Parallels may be drawn even on the facts leading to an untenable interpretation of Article 12 and a consequential denial of the benefits of fundamental rights to individuals who would otherwise be entitled to them and "there is nothing in our
Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public." Since on a reexamination of the question we have come to the conclusion that the decision was plainly erroneous, it is our duty to say so and not perpetuate our mistake.
………
Sabhajit Tewary must be and is in the circumstances overruled. Accordingly the matter is remitted back to the appropriate Bench to be dealt with in the light of our decision. There will be no order as to costs.
JUSTICE LAHOTI (FOR D. RAJU AND HIMSELF, DISSENTING)
65. We have had the advantage of reading the judgment proposed by our learned sister Rama
Pal, J. With greatest respect to her, we find ourselves not persuaded to subscribe to her view overruling Sabhajit Tewary and holding Council for Scientific and Industrial Research (CSIR) 'the State ' within the meaning of Article 12 of the Constitution. The development of law has
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travelled through apparently a zig-zag track of judicial pronouncements, rhythmically traced by Rama Pal, J. in her judgment. Of necessity, we shall have to retread the track, for, we find that though the fundamentals and basic principles for determining whether a particular body is 'the State ' or not many substantially remain the same but we differ in distributing the emphasis within the principles in their applicability to the facts found. We also feel that a distinction has to be borne in mind between an instrumentality or agency of 'the State ' and an authority includible in 'other authorities '. The distinction cannot be obliterated.
… [Discussion on prior cases, argument of counsel and other authorities on the subject is omitted] …
Simply by holding a legal entity to be an instrumentality or agency of the State it does not necessarily become an authority within the meaning of 'other authorities ' in Article 12, To be an authority, the entity should have been created by a statute or under a statute and functioning with liability and obligations to public. Further the statute creating the entity should have vested that entity with power to make law or issue binding directions amounting to law within the meaning of Article 13(2) governing its relationship with other people or the affairs of other people – their rights, duties, liabilities or other legal relations. If created under a statute, then there must exist some other statute conferring on the entity such powers. In either case, it should have been entrusted with such functions as are governmental or closely associated therewith by being of public importance or being fundamental to the life of the people and hence governmental. Such authority would be the State, for, one who enjoys the powers or privileges of the State must also be subjected to limitations and obligations of the State. It is this strong statutory flavour and clear indicia of power – constitutional or statutory and its potential or capability to act to the detriment of fundamental rights of the people, which makes it an authority; though in a case, depending on the facts and circumstances, an authority may also be found to be an instrumentality or agency of the State and to that extent they may overlap. Tests 1, 2 and 4 in Ajay Hasia enable determination of Governmental ownership or control. Tests 3, 5and 6 are 'functional ' tests. The propounder of the tests himself has used the words suggesting relevancy of those tests for finding out if an entity was instrumentality or agency of the State. Unfortunately thereafter the tests were considered relevant for testing if an authority is the State and this fallacy has occurred because of difference between 'instrumentality and agency ' of the state and an 'authority ' having been lost sight of subsilentio, unconsciously and un-deliberated. In our opinion, and keeping in view the meaning which 'authority ' carries, the question whether an entity is an 'authority ' cannot be answered by applying Ajay Hasia tests.
The tests laid down in Ajay Hasia are relevant for the purpose of determining whether an entity is an instrumentality or agency of the State. Neither all the tests are required to be answered to positive nor a positive answer to one or two tests would suffice. It will depend upon a combination of one or more of the relevant factors depending upon the essentiality and overwhelming nature of such factors in identifying the real source of governing power, if need be by removing the mask or piercing the veil disguising the entity concerned. When an entity has an independent legal existence, before it is held to be the State, the person alleging it to be so must satisfy the Court of brooding presence of government or deep and pervasive control of the government so as to hold it to be an instrumentality or agency of the State.
CSIR if 'the State '?
Applying the tests formulated hereinabove, we are clearly of the opinion that CSIR is not an 'authority ' so as to fall within the meaning of expression 'other authorities ' under Article 12.
It has no statutory flavour -- neither it owes its birth to a statute nor is there any other statute
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conferring it with such powers as would enable it being branded an authority. The indicia of power is absent. It does not discharge such functions as are governmental or closely associated therewith or being fundamental to the life of the people.
We may now examine the characteristics of CSIR. On a careful examination of the material available consisting of the memorandum of association, rules and regulations and bye-laws of the society and its budget and statement of receipts and outgoings, we proceed to record our conclusions. The Government does not hold the entire share capital of CSIR. It is not owned by the Government. Presently, the Government funding is about 70% and grant by
Government of India is one out of five categories of avenues to derive its funds. Receipts from other sources such as research, development, consultation activities, monies received for specific projects and job work, assets of the society, gifts and donations are permissible sources of funding of CSIR without any prior permission/consent/sanction from the
Government of India. Financial assistance from the Government does not meet almost all expenditure of the CSIR and apparently it fluctuates too depending upon variation from its own sources of income. It does not enjoy any monopoly status, much less conferred or protected by Government. The governing body does not consist entirely of Government nominees. The membership of the Society and the manning of its governing body - both consist substantially of private individuals of eminence and independence who cannot be regarded as hands and voice of the State. There is no provision in the rules or the byelaws that the government can issue such directives as it deems necessary of CSIR and the latter is bound to carry out the same. The functions of the CSIR cannot be regarded as governmental or of essential public importance or as closely related to governmental functions or being fundamental to the life of the people or duties and obligations to public at large. The functions entrusted to CSIR can as well be carried out by any private (sic) organization. Historically it was not a department of government which was transferred to CSIR. There was a Board of
Scientific and Industrial Research and an Industrial Research Utilisation Committee. The
CSIR was set up as a society registered under the Societies Registration Act, 1860 to coordinate and generally exercise administrative control over the two organizations which would tender their advice only to CSIR. The membership of the society and the Governing body of the counsel may be terminated by the President not by the Government of India. The governing body is headed by the Director General of CSIR and not by the President of Society
(i.e. the Prime Minister). Certainly the board and the committee, taken over by CSIR, did not discharge any regal, governmental or sovereign functions. The CSIR is not the offspring or the blood and bones or the voice and hands of the government. The CSIR does not and cannot make law.
However, the Prime Minister of India is the President of the Society. Some of the members of the society and of the governing body are persons appointed ex-officio by virtue of their holding some office under the Government also. There is some element of control exercised by the government in matters of expenditure such as on the quantum and extent of expenditure more for the reason that financial assistance is also granted by the Government of India and the later wishes to see that its money is properly used and not misused. The President is empowered to renew, amend and vary any of the decisions of the governing body which is in the nature of residual power for taking corrective measures vesting in the President but then the power is in the President in that capacity and not as Prime Minister of India. On winding up or dissolution of CSIR any remaining property is not available to members but 'shall be dealt with in such manner as Government of India may determine '. There is nothing special about such a provision in Memorandum of Association of CSIR as such a provision is a general one applicable to all societies under Section 14 of the Societies Registration Act, 1860.
True that there is some element of control of the government but not a deep and pervasive control. To some extent, it may be said that Government 's presence or participation is felt in
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the society but such presence cannot be called a brooding presence or the over-lordship of government. We are satisfied that the tests in Ajay Hasia are not substantially or on essential aspects even satisfied to call CSIR an instrumentality or agency of the State. A mere governmental patronage, encouragement, push or recognition would not make an entity 'the
State '.
On comparison, we find that in substance CSIR stands on a footing almost similar to the
Institute of Constitutional and Parliamentary Studies (in Tekraj Vasandi @ K.S.
Basandhi v. Union of India) and National Council of Educational Research and Training
(in Chander Mohan Khanna v. NCERT) and those cases were correctly decided.
………
For the foregoing reasons, we are the opinion that Council for Scientific and Industrial
Research (CSIR) is not the State within the meaning of Article 12 of the Constitution. Sabhajit
Tewary was correctly decided and must hold the field. The High Court has rightly followed the decision of this Court in Sabhajit Tewary. The appeal is liable to be dismissed.
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UNIT 2 – FUNDAMENTAL RIGHTS COMPLIANCE REVIEW
(ARTICLE 13)
KESHAVA MADHAVA MENON V. STATE OF BOMBAY
AIR 1951 SC 128
Decided On: January 22, 1951
BENCH – CHIEF JUSTICE H. L. KANIA, JUSTICES S. FAZL ALI, PATANJALI SASTRI, M. C.
MAHAJAN, MUKHERJEA, DAS & C. AIYAR
JUSTICE DAS (FOR HIMSELF)
At all material times the petitioner, who is the appellant before us, was the Secretary of People 's Publishing House, Ltd., a company incorporated under the Indian Companies Act with its registered office at 190-B, Khedwadi Main Road in Bombay. In September, 1949, a pamphlet entitled "Railway Mazdooron ke khilaf Nai Zazish" is alleged to have been published in Bombay by the petitioner as the secretary of that company. Learned counsel for the petitioner states that the pamphlet was published as a "book" within the meaning of section 1 of the Press and Registration of Books Act (XXV of 1867) and that the provisions of that Act had been duly complied with. The Bombay Government authorities, however, took the view that the pamphlet was a "news sheet" within the meaning of section 2(6) of the Indian
Press (Emergency Powers) Act, 1931, and that as it had been published without the authority required by section 15(1) of that Act, the petitioner had committed an offence punishable under section 18(1) of the same Act. A prosecution under that Act was accordingly started against the petitioner in the Court decided that question of law. This was followed and was registered as Case No. 1102/P of 1949. During the pendency of the proceedings the
Constitution of India came into force on January 26, 1950. On March 3, 1950, the petitioner filed a written statement submitting, inter alia, that the definition of "news sheet" as given in section 2(6) of the Indian Press (Emergency Powers) Act, 1931 and sections 15 and 18 thereof were ultra vires and void in view of article 19(1)(a) read with article 13 and that the hearing of the case should be stayed till the High Court decided that question of law. This was followed up by a petition filed in the High Court on March 7, 1950, under article 228 of the Constitution, praying that the record of Case No. 1102/P of 1949 be sent for, that it be declared that sections
15 and 18 read with section 2(6) and (10), in so far as they create liability for restrictive measure for a citizen, are ultra vires of article 19(1)(a) and are, therefore, void and inoperative and that the petitioner be ordered to be acquitted. During the pendency of this petition the
Chief Presidency Magistrate on March 23, 1950, framed a charge against the petitioner under section 18 of the Press (Emergency Powers) Act, 1931.
The petition under article 228 was heard on April 12, 1950, by a Bench of the Bombay
High Court consisting of Chagla, C.J. and Bavdekar and Shah, JJ. Two questions were raised before the Bench, namely: (1) Whether sections 15(1) And 18(1) read with the definitions contained in sections 2(6) and 2(10) of the Indian Press (Emergency Powers) Act, 1931, were inconsistent with article 19(1)(a)read with clause (2) of that article? And (2) Assuming that they were inconsistent, whether the proceedings commenced under section 18(1) of that Act before the commencement of the Constitution could nevertheless be proceeded with?
The High Court considered it unnecessary to deal with or decide the first question and disposed of the application only on the second question. The High Court took the view that the word "void" was used in article 13(1) in the sense of "repealed" and that consequently it attracted section 6 of the General Clauses Act, which Act by article 367 was made applicable
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for the interpretation of the Constitution. The High Court, therefore, reached the conclusion that proceedings under the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of the commencement of the Constitution were not affected, even if the Act were inconsistent with the fundamental rights conferred by article 19(1)(a) and as such became void under article 13(1) of the Constitution after January 26, 1950. The High Court accordingly answered the second question in the affirmative and dismissed the petitioner 's application. The petitioner has now come up on appeal before us on the strength of a certificate granted by the
High Court under article 132(1) of the Constitution.
Learned counsel appearing in support of this appeal urged that the Indian Press
(Emergency Powers) Act, 1931, was one of the many repressive laws enacted by an alien
Government with a view to stifle the liberty of the Indian subjects and particularly of the
Indian Press; that, with the advent of independence the people of India began to breathe freely and by the Constitution which they gave unto themselves they took care to guarantee to themselves the fundamental rights of free citizens of a democratic republic and that article 13(1) of that Constitution brushed aside all vestiges of subordination which the tyranny of the alien rulers had imposed upon them and declared all laws inconsistent with the fundamental rights to be void as if they had never been passed and had never existed. It was, therefore, against the spirit of the Constitution, argued the learned counsel, that a free citizen of India still continue to be persecuted under such a retrograde law which, being inconsistent with the fundamental rights, must be declared to be void. Learned counsel urged that it was not necessary for him to contend that such inconsistent laws became void ab initio or that all past and closed transactions could be reopened but he contended that on and from January 26,
1950, when the constitution came into force such inconsistent laws which became void could not be looked at for any purpose and far less could they be utilised for the purpose of framing a charge or punishing a free citizen. As the void law cannot be utilised any longer, the pending prosecutions, according to learned counsel, must fall to the ground. To permit pending proceedings under a law which, after the commencement of the Constitution had become void, to proceed further, after the Constitution has taken effect, is to prolong the efficacy of the law notwithstanding that it has become void on and from the date the Constitution came into force and that is against the spirit of the Constitution.
An argument founded on what is claimed to be the spirit of the Constitution is always attractive, for it has a powerful appeal to sentiment and emotion; but a court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or think to be the spirit of the Constitution cannot prevail if the language of the
Constitution does not support that view. Article 372(2) gives power to the President to adapt and modify existing laws by way of repeal or amendment. There is nothing to prevent the
President, in exercise of the powers conferred on him by that article, from repealing, say the whole or any part of the Indian Press (Emergency Powers) Act, 1931. If the President does so, then such repeal will at once attract section 6 of the General Clauses Act. In such a situation all prosecutions under the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of its repeal by the President would be saved and must be proceeded with notwithstanding the repeal of that Act unless an express provision was otherwise made in the repealing Act. It is therefore clear that the idea of the preservation of past inchoate rights or liabilities and pending proceedings to enforce the same is not foreign or abhorrent to the
Constitution of India. We are, therefore, unable to accept the contention about the spirit of the
Constitution as invoked by the learned counsel in aid of his plea that pending proceedings under a law which has become void cannot be proceeded with. Further, if it is against the spirit of the Constitution to continue the pending prosecutions under such a void law, surely it should be equally repugnant to that spirit that men who have already been convicted under such repressive law before the Constitution of India came into force should continue to rot in jail.
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It is, therefore, quite clear that the court should construe the language of article 13(1) according to the established rules of interpretation and arrive at its true meaning uninfluenced by an assumed spirit of the Constitution.
Article 13(1) with which we are concerned for the purposes of this application is in these terms:"All laws in force in the territory of Indian immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void."
It will be noticed that all that this clause declares is that all existing laws, in so far as they are inconsistent with the provisions of Part III shall, to the extent of such inconsistency, be void. Every statute is prima facie prospective unless it is expressly or by necessary implications made to have retrospective operation. There is no reason why this rule of interpretation should not be applied for the purpose of interpreting our Constitution. We find nothing in the language of article 13(1) which may be read as indicating an intention to give it retrospective operation. On the contrary, the language clearly points the other way. The provisions of Part III guarantee what are called fundamental rights. Indeed, the headings of
Part III is "Fundamental Rights". These rights are given, for the first time, by and under our
Constitution. Before the Constitution came into force there was no such thing as fundamental right. What article 13(1) provides is that all existing laws which clash with the exercise of the fundamental rights (which are for the first time created by the Constitution) shall to that extent be void. As the fundamental rights became operative only on and from the date of the
Constitution the question of the inconsistency of the existing laws with those rights must necessarily arise on and from the date those rights came into being. It must follow, therefore, that article 13(1) can have no retrospective effect but is wholly prospective in its operation.
After this first point is noted, it should further be seen that article13(1) does not in terms make the existing laws which are inconsistent with the fundamental rights void ab initio or for all purposes. On the contrary, it provides that all existing laws, in so far as they are inconsistent with the fundamental rights, shall be void to the extent of their inconsistency.
They are not void for all purposes but they are void only to the extent they come into conflict with the fundamental rights. In other words, on and after the commencement of the
Constitution no existing law will be permitted to stand in the way of the exercise of any of the fundamental rights. Therefore, the voidness of the existing law is limited to the future exercise of the fundamental rights. Article 13(1) cannot be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the statute book, for to do so will be to give them retrospective effect which, we have said, they do not possess. Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution.
Learned counsel for the appellant has drawn our attention to articles 249(3), 250, 357, 358 and 369 where express provision has been made for saving things done under the laws which expired. It will be noticed that each of those articles was concerned with expiry of temporary statutes. It is well known that on the expiry of a temporary statute no further proceedings can be taken under it, unless the statute itself saved pending proceedings. If, therefore, an offence had been committed under a temporary statute and the proceedings were initiated but the offender had not been prosecuted and punished before the expiry of the statute, then, in the absence of any saving clause, the pending prosecution could not be proceeded with after the expiry of the statute by efflux of time. It was on this principle that express provision was made in the several articles noted above for saving things done or omitted to be done under the expiring laws referred to therein. As explained above,
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article 13(1) is entirely prospective in its operation and as it was not intended to have any retrospective effect there was no necessity at all for inserting in that article any such saving clause. The effect of article 13(1) is quite different from the effect of the expiry of a temporary statute or the repeal of a statute by a subsequent statute. As already explained, article 13(1) only has the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with respect to the exercise of fundamental rights on and after the date of the commencement of the Constitution.
It has no retrospective effect and if, therefore, an act was done before the commencement of the Constitution in contravention of the provisions of any law which, after the Constitution, becomes void with respect to the exercise of any of the fundamental rights, the inconsistent law is not wiped out so far as the past act is concerned, for, to say that it is, will be to give the law retrospective effect. There is no fundamental right that a person shall not be prosecuted and punished for an offence committed before the Constitution came into force. So far as the past acts are concerned the law exists, notwithstanding that it does not exist with respect to the future exercise of fundamental rights. We, therefore, agree with the conclusion arrived at by the High Court on the second question, although on different grounds. In view of that conclusion, we do not consider it necessary to examine the reasons of the High Court for its conclusion. In our opinion, therefore, this appeal fails, and is dismissed.
JUSTICE FAZL ALI (FOR HIMSELF)
I regret that I cannot agree with the view which the majority of my colleagues are inclined to take in this case.
… [Narration of facts is omitted] …
One of the points discussed elaborately by the learned counsel appearing for the parties in the course of their arguments was as to what was the effect upon pending proceedings when an Act was repealed or when a temporary Act expired. In Craies on Statute
Law, the effect of the expiry of a temporary Act is stated to be as follows:"As a general rule, and unless it contains some special provision to the contrary, after a temporary Act has expired no proceedings can be taken upon it, and it ceases to have any further effect. Therefore, offences committed against temporary Acts must be prosecuted and punished before the Act expires, and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate." (4th Ed., pp. 347-348)
This statement of law by Craies was referred to with approval and adopted by the Federal
Court in J. K. Gas Plant Manufacturing v. King Emperor,[1947] F.C.R. 141. As to the effect of the repeal of an Act, the following passage from Craies ' book seems to sum up the legal position as it obtained in England before the enactment of the Interpretation Act of 1889 :"When an Act of Parliament is repealed," said Lord Tenterden in Surtees v. Ellison
(1829) 9 B.&C. 752 "it must be considered (except as to transactions past and closed) as if it had never existed. That is the general rule." Tindal, C.J. states the exception more widely. He says (in Kay v. Goodwin) (1830) 6 Bing. 576: "The effect of repealing a statute is to obliterate it as completely from the records of the
Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law." (P. 350)
Again, Crawford in his book on "Statutory Construction" dealing with the general effect of the repeal of an Act states the law in America to be as follows :-
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"A repeal will generally, therefore, divest all inchoate rights which have arisen under the repealed statute, and destroy all accrued causes of action based thereon.
As a result, such a repeal, without a saving clause, will destroy any proceedings whether not yet begun, or whether pending at the time of the enactment of the repealing Act, and not already prosecuted to a final judgment so as to create a vested right." (Pp. 599-600)
In a footnote relating to the cases which the learned author cites in support of the above proposition, he adds:"See Cleveland, etc., R. Co. v. Mumford (Ind.) 197 N.E. 826 where the repeal of a statute during the trial prevented a judgment from being rendered. Similarly, there can be no legal conviction for an offence, unless the act be contrary to law at the time it is committed; nor can there be a judgment, unless the law is in force at the time of the indictment and judgment. If the law ceases to operate, by its own limitation or by a repeal, at any time before judgment, no judgment can be given.
Hence, it is usual in every repealing law to make it operate prospectively only, and to insert a saving clause, preventing the retroactive operation of the repeal and continuing the repealed law in force as to all pending prosecutions, and often as to all violations of the existing law already committed."
The author then proceeds to quote the following passage from Wall v. Chesapeake & Ohio
Ry., Company 125 N.E. 20:"It is well settled that if a statute giving a special remedy is repealed without a saving clause in favour of pending suits all suits must stop where the repeal finds them. If final relief has not been granted before, the repeal went into effect, it cannot be after. If a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the case under the law in force when its decision was rendered. The effect of the repeal is to obliterate the statute repealed as completely as if it had never been passed, and it must be considered as a law which never existed, except for the purposes of those actions or suits which were commenced, prosecuted and concluded while it was an existing law. Pending judicial proceedings based upon a statute cannot proceed after its repeal. This rule holds true until the proceedings have reached a final judgment in the court of last resort, for that court, when it comes to announce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was correct when pronounced in the subordinate tribunal from whence the appeal was taken, if it appears that pending the appeal a statute which was necessary to support the judgment of the lower court has been withdrawn by an absolute repeal." (P. 601)
It is well known that formerly the practice in England used to be to insert in most of the repealing statutes a clause saving anything duly done or suffered under the repealed statutes and any pending legal proceeding or investigations. Ultimately, to dispense with the necessity of having to insert a saving clause in almost every repealing Act, section 38(2) was inserted in the Interpretation Act, 1889, which provides that a repeal, unless the contrary intention appears, does not affect the previous operation of the repealed enactment or anything duly done or suffered under it, and any investigations, legal proceedings or remedies may be instituted, continued or enforced in respect of rights, liabilities and penalties under the repealed Act, as if the repealing Act had not been passed.
Crawford in his book to which I have referred adverts in these words to a similar difficulty which was experienced in America and to the manner in which it has been met:"Due to the numerous troublesome problems which constantly arose with the repeal of statutes, as well as to the numerous cases where hardship was caused, statutes have been enacted in several States expressly providing that the repeal of a statute shall not affect any rights, causes of action, penalties, forfeitures, and pending suits, accrued or instituted under the repealed statute."
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In India, the earliest attempt that was made to guard against the normal legal effect of a repeal is to be found in section 6 of Act I of 1868. This provision was further elaborated by section 6 of the General Clauses Act of 1897 which is on the same lines as section 38(2) of the Interpretation Act of England. The position therefore now in India as well as in England is that a repeal has not the drastic effect which it used to have before the enactment of the
Interpretation Act in England or the General Clauses Act in this country. But this is due entirely to the fact that an express provision has been made in these enactments to counteract that effect. Hence, in those cases which are not covered by the language of the General Clauses
Act, the principle already enunciated will continue to operate. The learned Attorney-General had to concede that it was doubtful whether section 6 of that Act is applicable where there is a repeal by implication, and there can be no doubt that the law as to the effect of the expiry of a temporary statute still remains as stated in the books, because section6 of the General
Clauses Act and section 38(2) of the Interpretation Act have no application except where an
Act is repealed. It should be remembered that the soundness of the law which has been consistently applied to cases governed by statutes which have ceased to be in force, by reason having been repealed or having expired, has never been questioned, and it cannot be brushed aside as if it embodied some archaic or obsolete rule peculiar only to the common law of
England. It is the law which has been enunciated by eminent Judges both in England and in
America and is based on good sense and reason.
I shall now proceed to consider what would be the correct legal position, when a provision of an existing law is held to be void under article 13(1) of the Constitution. From the earlier proceedings before the Constituent Assembly, it appears that in the original draft of the
Constitution, the words "shall stand abrogated" were used instead of "shall be void," in article 13(1), and one of the questions directly before the Assembly was what would be the effect of the use of those words upon pending proceedings and anything duly done or suffered under the existing law. Ultimately, the article emerged in the form in which it stands at present, and the words "shall stand abrogated" were replaced by the words "shall be void." If the words
"stand abrogated" had been there, it would have been possible to argue that those words would have the same effect as repeal and would attract section 6 of the General Clauses Act, but those words have been abandoned and a very strong expression, indeed the strongest expression which could be used, has been used in their place. The meaning of the word "void" is stated in Black 's Law Dictionary (3rd Edn.) to be as follows:"null and void; ineffectual; nugatory; having no legal force or binding effect; unable in law to support the purpose for which it was intended; nugatory and ineffectual so that nothing can cure it; not valid."
A reference to the Constitution will show that the framers thereof have used the word
"repeal" wherever necessary (see articles 252, 254, 357, 372 and 395). They have also used such words as "invalid" (see articles 245,255 and 276), "cease to have effect" (see articles 358 and372), "shall be inoperative", etc. They have used the word "void" only in two articles, these being article 13(1) and article 154, and both these articles deal with cases where a certain law is repugnant to another law to which greater sanctity is attached. It further appears that where they wanted to save things done or omitted to be done under the existing law, they have used apt language for the purpose; see for example articles 249, 250, 357, 358 and 369. The thoroughness and precision which the framers of the
Constitution have observed in the matters to which reference has been made, disinclines me to read into article 13(1) a saving provision of the kind which we are asked to read into it.
Nor can I be persuaded to hold that treating an Act as void under article 13(1) should have a milder effect upon transactions not past and closed than the repeal of an Act or its expiry in due course of time. In my opinion, the strong sense in which the word "void" is normally used
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and the context in which it has been used are not to be completely ignored. Evidently, the framers of the Constitution did not approve of the laws which are in conflict with the fundamental rights, and, in my judgment, it would not be giving full effect to their intention to hold that even after the Constitution has come into force, the laws which are inconsistent with the fundamental rights will continue to be treated as good and effectual laws in regard to certain matters, as if the Constitution had never been passed. How such a meaning can be read into the words used in article 13(1), it is difficult for me to understand. There can be no doubt that article 13(1) will have no retrospective operation, and transactions which are past and closed, and rights which have already vested, will remain untouched. But with regard to inchoate matters which were still not determined when the Constitution came into force, and as regards proceedings whether not yet begun, or pending at the time of the enforcement of the Constitution and not yet prosecuted to a final judgment, the very serious question arises as to whether a law which has been declared by the Constitution to be completely ineffectual can yet be applied. On principle and on good authority, the answer to this question would appear to me to be that the law having ceased to be effectual can no longer be applied. In R. v. Mawgan
(Inhabitants) (1888) 8 A. & E. 496 a presentment as to the non-repair of a highway had been made under 13 Geo. 3, c. 78, s. 24, but before the case came on to be tried, the Act was repealed. In that case, Lord Denman C.J. said:
"If the question had related merely to the presentment, that no doubt is complete.
But dum loquimur, we have lost the power of giving effect to anything that takes place under that proceeding."
And Littledale J. added:
"I do not say that what is already done has become bad, but that no more can be done." In my opinion, this is precisely the way in which we should deal with the present case.
It was argued at the Bar that the logical outcome of such a view would be to hold that all the convictions already recorded and all the transactions which are closed, should be reopened, but, in my opinion, to argue on those lines is to overlook what has been the accepted law for centuries, namely, that when a law is treated as dead, transactions which are past and closed cannot be revived and actions which were commenced, prosecuted and concluded whilst the law was operative cannot be reopened.
In the course of the arguments, a doubt was also raised as to what would be the effect in the case of an appeal pending when the Constitution came into force, from a conviction already recorded before the 26th January, 1950. The law applicable to such a situation is well-known and has been correctly summed up by Crawford in these words:"Pending judicial proceedings based upon a statute cannot proceed after its repeal.
The rule holds true until the proceedings have reached a final judgment in the court of last resort, for that court, when it comes to announce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was correct when pronounced in the subordinate tribunal from whence the appeal was taken, if it appears that pending the appeal a statute which was necessary to support the judgment of the lower court has been withdrawn by an absolute repeal." I think I should at this state deal briefly with two points which were raised in the course of the arguments in support of the opposite view. It was urged in the first place that without there being a saving clause to govern article 13(1), it can be so construed as to permit offences committed prior to the 26th January, 1950, to be punished. The argument has been put forward more or less in the following form. The law which is said to be in conflict with the fundamental rights was a good law until the 25th January, and, since article 13(1) is to be construed prospectively, and not retrospectively, every act constituting an offence under the old law
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remains an offence and can be punished even after the 26th January. It seems to me that the same argument could be urged with reference to matters which constituted offences under a repealed Act or a temporary Act which has expired. But such an argument has never succeeded. The real question is whether a person who has not been convicted before the Act has ceased to exist or ceased to be effectual can still be prosecuted under such an Act. The answer to this question has always been in the negative, and I do not see why a different answer should be given in the case of an Act which has been come void, i.e., which has become so ineffectual that it cannot be cured.
The second argument which also has failed to impress me is that if section 6 of the General
Clauses Act does not in terms apply, the principle underlying that section should be applied.
The answer to this argument is that the Legislature in its wisdom has confined that section to a very definite situation, and, though it was open to it to make the section more comprehensive and general, it has not done so. It is well-known that situations similar to those which arise by reason of the repeal of an Act have arisen in regard to Acts which have expired or Acts which have been declared to be void, and, though such situations must have been well-known to the
Legislature, they have not been provided for. In these circumstances, I do not see how the very clear and definite provision can be enlarged in the manner in which it is attempt to be enlarged.
Besides, I have not come across any case in which the principle underlying section 38(2) of the Interpretation Act or section 6 of the General Clauses Act has been invoked or applied.
In the present case, we have to look at the state of the law at the time when the question arises as to whether a person has committed any offence. If we find that the law which made the act an offence has become completely ineffectual and nugatory, then neither can a charge be framed nor can the accused person be convicted. In my opinion, if the assumption on which the High Court has proceeded is correct, the appellant is entitled to a declaration that he cannot be convicted for the offence of which he is accused.
JUSTICE MUKHERJEA (CONCURRING WITH JUSTICE FAZL ALI)
I am in entire agreement with the view taken by my learned brother Fazl Ali J. In his judgment and I concur both in his reasons and his conclusion.
JUSTICE MAHAJAN (FOR HIMSELF)
The appellant is the secretary of the People 's Publishing House Ltd., Bombay. In
September, 1949, he published a pamphlet entitled "Railway Mazdoorum Ke Khilaf Nai
Sazish." On the 9th December, 1949, he was arrested and a prosecution was launched against him under section 18(1) of the Indian Press (Emergency Powers) Act (XXIII of 1931) in the
Court of the Chief Presidency Magistrate at Bombay in respect of this pamphlet, as it had been published without any authority as required under section 16 of the said Act. On the 8th March,
1950, an application was made on his behalf in the High Court of Judicature at Bombay under article 228 of the Constitution of India for quashing the proceedings started against him and it was contended that sections 16 and 18 of Act XXIII of 1931 were ultra vires of Part III of the Constitution of India and were thus void and had no effect whatsoever and no prosecution launched under these sections could be proceeded with after the coming into force of the
Constitution. The High Court refused this application and held that the proceedings instituted against the appellant before the commencement of Constitution could not be affected by the provisions of the Constitution that came into force on the 26th January, 1950. Dissatisfied with this decision, the appellant has preferred the present appeal to this court.
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The sole point to decide in the appeal is whether proceedings instituted under section 18(1) of the Indian Press (Emergency Powers) Act, XXIII of 1931, before the commencement of the Constitution of India are affected by its provisions. The High Court has answered this question in the negative and, in my opinion, rightly.
I am in respectful agreement with the observations of the learned Chief Justice of Bombay that it is difficult to believe that the Constituent Assembly contemplated that with regard to the laws which it was declaring to be void under article 13 all vested rights and all proceedings taken should be disturbed and affected by particulars laws ceasing to be in force as a result of inconsistencies with the fundamental rights guaranteed to the citizens. It is not arguable and was not argued that Part III of the Constitution has any retrospective operation. The appellant was not possessed of any fundamental rights in September, 1949, when he published the pamphlet in question and his act clearly came within the mischief of the provisions of section
18 of Act XXIII of 1931 and he thus became liable to the penalties prescribed therein.
It was, however, contended by Mr. Chari, the learned counsel for the appellant, that the effect of the language employed in article 13(1) of the Constitution was that the proceedings commenced before the coming into force of the Constitution could not be continued after its commencement under the laws that became inconsistent with its provisions. For this proposition he placed reliance on the rule of construction stated in Maxwell on "Interpretation of Statutes", p. 404, which is to the following effect:"Where an Act expired or was repealed, it was formerly regarded, in the absence of provision to the contrary, as having never existed, except as to matters and transactions passed and closed. Where, therefore, a penal law was broken, the offender could not be punished under it if it expired before he was convicted, although the prosecution was begun while the Act was still in force."
This rule seems to be based on a statement of Tindal C.J. in Kay v. Goodwin 130 E.R.
1403; (1830) 6 Bing. 576. The learned Chief Justice made the following observations:"I take the effect of repealing a statute to be, to obliterate, it as completely from the records of Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law."
This was the rule of the English common law which was applied in cases of statutes which were repealed and under this rule all pending actions and prosecutions could not be proceeded with after the repeal of the law under which they were started. This rule was however changed by the Interpretation Act of 1889, section 38. Therein it was enacted that unless the contrary intention appears, no repeal is to affect any investigation, legal proceeding, including the initiation of criminal proceedings, or remedy in respect of any such right, privilege, obligation, liability penalty, forfeiture, or punishment and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed. A similar provision exists in India in section 6 of the General Clauses Act of 1868 and 1897. The High Court held that the provisions of article 13(1) were analogous to the repeal of a statute and therefore section 6 of the General Clauses Act had application to the construction of these provisions and that being so, the coming into force of the Constitution did not in any way affect the continuance of the proceedings that had been commenced against the appellant under the law that was in force at the time of the publication of the pamphlet.
Mr. Chari contended that the High Court was in error in applying the provisions of section 6 of the General Clauses Act to the interpretation of article 13(1) of the Constitution inasmuch as the provisions of this article were not analogous to repeal and did not amount to a repeal of the existing law. He contended that a repeal of the law could only be by the
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legislature but that under article 13 power had been given to the court to declare any law inconsistent with the Constitution to be void; in other words, the power given was larger in scope and effect than the power of repeal and the effect of the declaration that a certain statute was void as it was repugnant to the freedom guaranteed by the Constitution was to wipe out the statute altogether from the date of the coming into force of the Constitution and that nothing could be done under that statute with effect from the 26th January, 1950, and therefore the court could not frame a charge under the law that was declared void, or pass a judgment of conviction against a person under a law that had been declared void.
Mr. Chari went to the length of saying that a statute which was inconsistent with the
Constitution became dead on the coming into force of the Constitution and under a dead statute no action could be taken whatsoever. He emphasised his contention by stressing the fact that freedoms guaranteed by Part III of the Constitution could not be tainted by keeping alive prosecutions and actions under laws framed by a foreign government which were inconsistent with those freedoms. It was said that some of the laws which the Constitution intended to be declared void by the court because of their repugnancy to the fundamental rights guaranteed to the citizen by the Constitution were those which a foreign government had enacted to keep the people of this country under its domination and that to continue prosecutions under these laws after the coming into force of the Constitution would be wholly contrary and repugnant not only to the letter of the Constitution but also to its spirit. It was conceded that transactions finally closed under such laws could not be reopened but that prosecutions and actions which were still continuing should be stopped and further action concerning them would become illegal and would be contrary to the freedoms guaranteed by the Constitution. Reference was made to articles 249, 250, 357, 358 and 369 to show that the scheme of the Constitution was that wherever it intended that the proceedings commenced under existing laws which became in-operative on the 26th January, 1950, were to continue after that date, apt phraseology had been used to indicate that intention but that in article 13 no such saving words were used and therefore it must be presumed that the Constituent Assembly did not intend that proceedings taken under such laws were to be continued after the 26th January, 1950.
Article 13(1) of the Constitution is in these terms:"All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void."
The freedom guaranteed to the citizen which has application to the case of the appellant is in article 19(1)(a)and this article is in these terms :"All citizens shall have the right to freedom of speech and expression."
It is admitted that after the 26th January, 1950, there has been no infringement of the appellant 's right of freedom of speech or expression. In September 1949, he did not enjoy either complete freedom of speech or full freedom of expression. It is in relation to the freedom guaranteed in article 19(1) of the Constitution to the citizen that the provisions of article 13(1) come into play. This article does not declare any law void independently of the existence of the freedoms guaranteed by Part III. A citizen must be possessed of a fundamental right before he can ask the court to declare a law which is inconsistent with it void; but if a citizen is not possessed of the right, he cannot claim this relief. The appellant in the present case was not possessed of any fundamental right on the day that he published the pamphlet and in these circumstances the question is whether he can claim protection under the rights guaranteed to him on 26th January, 1950, for escaping the consequence of his act on any principles of construction of statutes.
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According to the contention of the learned counsel, the principles applicable to repealed statutes are not in terms applicable to such a case, whether they are to be found in the rules of the common law of England or whether they are contained in the Interpretation Act or the
General Clauses Act. Those rules are applicable to cases either of repeal or to cases of a statute dying a natural death by efflux of time. None of those however have any application to the construction of statutes framed in languages like the one contained in article 13(1) of the
Constitution. Besides the rule of construction which applies to repealed statutes or to temporary statutes our attention was not drawn to any other rule of construction under which a person who commits an offence against an Act during its existence as a law becomes unpunishable on its termination.
Both on considerations of convenience and also on grounds of justice and reason I am inclined to think that penalties incurred under a law in force at the time when the act was committed would survive its extinction so that persons who violate its provisions might afterwards be punished. Persons who during the continuance of a statute have obtained rights under it cannot be affected by a declaration that the statute with effect from a certain date will become an inoperative statute. When in the case of repeal of a statute, which according to
Tindal C.J. obliterates it completely from the records of Parliament as if it had never been passed, the common law rule has been abrogated by statute, it is difficult to apply that rule on any sentimental grounds at this date to the case of statutes which are declared void or declared to have no effect whatsoever after a certain date only.
The expression "void" has no larger effect on the statute so declared than the word
"repeal". The expression "repeal" according to common law rule obliterates a statute completely as if it had never been passed and thus operates retrospectively on past transactions in the absence of a saving clause or in the absence of provisions such as are contained in the
Interpretation Act, 1889, or in the General Clauses Act, 1897, while a provision in a statute that with effect from a particular date an existing law would be void to the extent of the repugnancy as no such retrospective operation and cannot affect pending prosecutions or actions taken under such laws. There is in such a situation no necessity of introducing a saving clause and it does not need the aid of a legislative provision of the nature contained in the
Interpretation Act or the General Clauses Act. To hold that a prospective declaration that a statute is void affects pending cases is to give it indirectly retrospective operation and that result is repugnant to the clear phraseology employed in the various articles in Part III of the
Constitution.
The contention of the learned Attorney-General that the phraseology employed in article 13(1) of the Constitution clearly indicates that there was no intention to give any retrospective operation to the provisions of Part III of the Constitution and that of the declaration that laws repugnant to Part III of the Constitution are void only operates from 26th
January, 1950, has, in my opinion, force. It seems clear that an existing statute in spite of a declaration by court that it is void remains in force till the 25th January, 1950, and continues to remain on the statute book even after the 26th January, 1950, except that no effect can be given to any of its provisions which are repugnant to the fundamental rights guaranteed by the
Constitution. The effect of article 13(1) is only prospective and it operates in respect to the freedoms which are infringed by the State subsequent to the coming into force of the
Constitution but the past acts of a person which came within the mischief of the law then in force are not affected by Part III of Constitution. The reference made by Mr. Chari to different articles of the Constitution where saving clauses have been inserted to save pending proceedings or acts is not very helpful inasmuch as where a certain provision has retrospective effect, then it is necessary to introduce a saving clause if things done in the past have to be saved from the retrospective effect of the statute; but where the provision is clearly not
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intended to be retrospective, then the necessity of saving clause does not arise. The provisions of the Constitution to which Mr. Chari made reference were of the nature that but for the saving clause the effect of them would be retrospective in character under the accepted canons of construction of statutes.
Mr. Chari 's argument that it could not have been intended by the Constitution makers that prosecutions started under laws passed by a foreign power and which affect the freedoms guaranteed to the citizen under the Constitution in Part III were to be continued after the dawn of independence and after India had become a democratic republic to a certain extent seems to me to be plausible; but on further thought I have come to the conclusion that this argument appeals more to the heart than to the head and is not based on any sound principle of construction of statutes. Under the accepted canons of construction of statutes, if a law has no retrospective operation of any kind whatsoever, then such a law cannot affect pending prosecutions or actions and the Constitution not being retrospective in its operation could not therefore in any way affect prosecutions started for offences that were complete under the law in force at the time they were committed. The cure for such an incongruous state of affairs and the relief for such situation lies with the Government and the legislature and not with the courts. If a case of sedition against an alien government is continued after the coming into force of the Constitution, the court cannot decline to proceed with it and to pass some sentence howsoever lenient, against an accused by placing a construction on the Constitution which gives it retrospective operation, but the government of the republic or its legislature can always by executive or legislative action bring to a close all such distasteful proceedings and not only can it do so in the case of pending prosecutions but it can give relief also to persons who have suffered under laws of sedition against an alien government and are suffering terms of imprisonment in the jails of the Republic. If punishment for contravention of such laws cannot be given to offenders because decision in their case has been delayed beyond the 26th January,
1950, it will be highly unreasonable not to give relief and to let punishments continue in case of persons, the sentence against whom have already been passed under laws which were solely enacted to maintain the alien rule. Both cases, in my opinion, stand on the same footing and relief in those cases lies not with courts but with the executive government of the Republic.
If Mr. Chari 's argument that on the commencement of the Constitution on 26th January,
1950, all proceedings started under laws that became repugnant and inconsistent with the
Constitution were to be stopped was accepted, it would lead to very strange results, and Mr.
Chari had to concede that it would be so. Suppose a person was convicted of the offence of sedition or of an offence under one of the safety Acts, the provisions of which are repugnant to the Constitution, but his appeal was pending in the High Court against his conviction, then, according to the contention of Mr. Chari, the court has no power to hear the appeal because the law being void, no further action could be taken in the matter. The result would be that the
Court would not be able to hear an appeal and to give relief to the accused if he had been erroneously convicted. If a court cannot frame a charge or convict a person under a law that is repugnant to the Constitution equally it would not be entitled to continue any proceeding for the benefit of the accused under cover of such a law.
Great deal of emphasis was laid during the course of the argument on the meaning to be given to the word "void" and it was said that this word in its widest sense meant that the law declared void was void ab initio, i.e., from the very inception of the law it was bad. If that meaning was given to this word, then it would mean that all laws existing on the 26th January,
1950, and which were declared void by article 13(1) because of their being repugnant to the
Constitution were bad when they were passed by the legislature, though at the same time the
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subject enjoyed no fundamental rights. It was sought to give to this word "void" the same wide meaning as was given to the word "repeal" by Tindal C.J. in the case above mentioned.
With every respect to the great Judges who administered the common law in England during the earlier period of British history and in all humility I venture to say that the rule evolved by them qua "repeal" was of an artificial nature. The dictum of the learned Chief
Justice that a repeal of a statute obliterates it completely from the records of Parliament as if it had never been passed is to my mind based on an extended meaning of that expression than its ordinary dictionary sense. When a statute has been in operation, say for a period of fifty years, people have suffered penalties under it or have acquired rights thereunder and the law has been enforced by courts for such a long period, then to say that when it is repealed it is completely obliterated and that it never had any existence and was never passed by Parliament, is rather saying too much and is ignoring hard real facts and amounts to shutting one 's eyes to the actualities of the situation.
It would be more consonant with reason and justice to say that the law existed and was good at the time when it was passed but that since the date of its repeal it has no longer any effect whatsoever. The Parliament may however say in the repealing statute that it will have retrospective operation and it may also prescribe the limits of its retrospectivity and to that extent past transactions may be affected by it. Because the rule of common law evolved by the English Judges was not in consonance with reason and justice, a legislative practice was evolved under which each repealing statute contained a saving clause under which past transactions were not allowed to be affected by the repeal. Eventually the rule of common law was completely abrogated by the enactment of the Interpretation Act, 1889. In India in the year 1868, section 6 of the General Clauses Act enacted what was later on enacted in England in the Interpretation Act and for over eighty years it is this rule of construction that has been adopted in this country, the rule being that past transactions, whether closed or inchoate cannot be affected by the repeal of an earlier statute or by the coming into effect of a new one. In my opinion, the rule contained in the General Clauses Act and in the English Interpretation Act is more in consonance with reason and justice and is also a rule of convenience and should be followed in this country, in preference to the rule evolved by the English Judges in the earlier part of English legal history. Be that as it may, it is unnecessary in this case to have resort either to the rule of common law or to the General Clauses Act as the language of article 13 itself furnishes a solution to the problem.
Reference was also made to the rule of construction applicable to temporary statutes. In the case of such statutes, the rule of English law is that after the expiry of the life of the statute no action can be taken under the expired statute unless an intention can be gathered from its provisions to the contrary, but transactions already completed during the period that these statutes had the force of law are not in any way affected. That rule seems to be quite logical and is consonant with reason and justice. When the life of a statute is limited and it dies a natural death, then no question either of its retrospective or of prospective nature arises. If the intention of the statute was that anything done under it has to continue, then it will be allowed to continue; otherwise nothing done under it will be continued after its natural death. Any rule applicable to construction of such a statute has no application to the interpretation of the
Constitution of Indian and the reference to this rule, in my opinion, is not relevant for the decision of this matter.
Reference was also made to the rule of construction laid down by the American courts in respect of statutes declared void because of their being repugnant to the Constitution of the
United States of America. It is obvious that if a statute has been enacted and is repugnant to the Constitution, the statute is void since its very birth and anything done under it is also void and illegal. The courts in America have followed the logical result of this rule and even
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convictions made under such an unconstitutional statute have been set aside by issuing appropriate writs. If a statute is void from its very birth then anything done under it, whether closed, completed, or inchoate, will be wholly illegal and relief in one shape or another has to be given to the person affected by such an unconstitutional law. This rule, however, is not applicable in regard to laws which were existing and were constitutional according to the
Government of India Act, 1935. Of course, if any law is made after the 25th January, 1950, which is repugnant to the Constitution, then the same rule will have to be followed by courts in India as is followed in America and even convictions made under such an unconstitutional law will have to be set aside by resort to exercise of powers given to this court by the
Constitution.
The only rule of construction applicable to the interpretation of article 13 of the
Constitution is the one that concerns the determination of the question whether a statute is intended to have any retrospective operation. If the well-known canons of construction on this point are applied, then it has to be held that article 13 was not intended to have any retrospective effect whatever; on the other hand, its language denotes that it recognized the validity of the existing laws up to the date of the commencement of the Constitution and even after its commencement except to the extent of their repugnancy to any provisions of Part III of the Constitution. On this construction of article 13 it cannot affect any past transactions, whether closed or inchoate. Reference in this connection may be made to the provisions of article 372(2) of the Constitution. Under this article the President has been given power to adapt existing laws and to bring them in accordance with the articles of the Constitution by a process of amendment, repeal or adaptation. The President could have repealed the Press
(Emergency Powers) Act and brought the law in accordance with the provisions of Part III of the Constitution and if he had used the powers of repeal given to him by this article, the provisions of the General Clauses Act would have been immediately attracted to that situation and pending prosecution of the appellant would have to be continued in view of those provisions. If in that situation the Constitution contemplates the continuance of pending proceedings under existing laws, it becomes difficult to place a different interpretation on the phraseology employed in article 13(1) of the Constitution, that the one that is in accord with that situation. By the construction that I have placed on this article that incongruous result is avoided. In view of the decision above arrived at it seems unnecessary to pronounce on the alternative argument of the learned Attorney-General to the effect that the expression "void", used in article 13 of the Constitution is synonymous with the word "repeal" and that it was an apt word used in the context to indicate the same intention. It was said that the word "repeal" was not used in the article but instead the expression "void" was employed therein by the draftsmen in order to include within its ambit cases of custom and usage where such custom and usage were also repugnant to the provisions of Part III of the Constitution. It was also urged that by article 13(1) the Constitution in express terms repealed all laws inconsistent with its provisions and that the only power given to the court was to find out which of these laws was inconsistent with the provisions of Part III. The declaration that these laws were void or repealed was by the force of the provisions of article13 itself and did not result from the decision of the courts. It is also unnecessary to examine the further argument of the learned
Attorney-General that in any case since 1868 in this country the rule of construction of statutes is the one laid down by section 6 of the General Clauses Act, 1868 and that though in express terms that statute may not be applicable to the construction of article 13(1) of the Constitution, yet that rule is a rule of justice, equity and good conscience and has become a rule of common law in this country and should be applied even to cases where statutes become void by reason of their being repugnant to the Constitution.
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For the reasons given above I see no force in this appeal and I would accordingly dismiss it. STATE OF GUJARAT V. SHRI AMBIKA MILLS
AIR 1974 SC 1300, (1974) 4 SCC 656
Decided On: March 26, 1974
BENCH – CHIEF JUSTICE A. N. RAY, JUSTICES H. R. KHANNA, K. K. MATHEW, Y. V.
CHANDRACHUD & A. ALAGIRISWAMI
JUSTICE MATHEW (FOR THE COURT)
The facts are similar in all these cases. We propose to deal with Civil Appeal No. 2271 of
1968. The decision there will dispose of the other appeals.
The first respondent, a company registered under the Companies Act, filed a Writ petition in the High Court of Gujarat, In that petition it impugned the provisions of
Sections 3, 6A and 7 of the Bombay Labour Welfare Fund Act, 1953 (hereinafter referred to as (the Act) and Section 13 of the Bombay Labour Welfare Fund (Gujarat Extension and
Amendment) Act, 1961 (hereinafter referred to as the First Amendment Act) and Rules 3 and
4 of the Bombay Labour Welfare Fund Rules, 1953 (hereinafter referred to as the Rules) as unconstitutional and prayed for the issue of a writ in the nature of mandamus or other appropriate writ or direction against the respondents in the writ petition to desist from enforcing the direction in the notice dated August 2, 1962 of respondent no. 3 to the writ petition requiring the petitioner-1st respondent to pay the unpaid accumulations specified therein. The High Court held that Section 3(1) of the Act in so far as it relates to unpaid accumulations specified in Section 3(2)(b), Section 3(4) and Section 6A of the Act and Rules
3 and 4 of the Rules was unconstitutional and void.
In order to appreciate the controversy, it is necessary to state the background of the amendment made by the Legislature of Gujarat in the Act. The Act was passed by the legislature of the then State of Bombay in 1953 with a view to provide for the constitution of a fund for financing the activities for promoting the welfare of labour in the State of Bombay.
Section 2(10) of the Act defined "unpaid accumulation" as meaning all payments due to the employees but not made to them within a period of three years from the date on which they became due, whether before or after the commencement of the Act, including the wages and gratuity legally payable, but not including the amount of contribution, if any, paid by any employer to a Provident Fund established under the Employees ' Provident Fund Act, 1952.
Section 3(1) provided that the State Government shall constitute a fund called the Labour
Welfare Fund and that notwithstanding anything contained in any other law for the time being in force, the sums specified in Sub-section (2) shall, subject to the provisions of Sub-section
(4) and Section 6A be paid in to the fund. Clause (b) of Sub-section (2) of Section 3 provided that the Fund shall consist of "all unpaid accumulations". Section7(1) provided that the fund shall vest in and be applied by the Board of Trustees subject to the provisions and for the purposes of the Act. Section 19 gave power to the State Government to make rules and in the exercise of that power, the State Government made the Rules. Rules 3 and 4 concerned" the machinery for enforcing the provisions of the Act in regard to fines and unpaid accumulations.
In Bombay Dyeing & Manufacturing Co. Ltd. v. State of Bombay [1958] S.C.R. 1122 this
Court held that the provisions of Sections 3(1) and 3(2)(b) were invalid on the ground that
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they violated the fundamental right of the employer under Article 19(1)(f). The reasoning of the Court was that the effect of the relevant provisions of the Act was to transfer to the Board the debts due by the employer to the employees free from the bar of limitation without discharging the employer from his liability to the employees and that Section 3(1) therefore operated to take away the moneys of the employer without releasing him from his liability to the employees. The Court also found that there was no machinery provided for adjudication of the claim of the employees when the amounts were required to be paid to the fund.
The State sought to justify the provisions of the Act as one relating to abandoned property and, therefore, by their very nature, they could not be held to violate the rights of any person either under Article 19(1)(f) or Article 31(2). The Court did not accept the contention of the
State but held that the purpose of a legislation with respect to abandoned property being in the first instance to safeguard the property for the benefit of the true owners and the State taking it over only in the absence of such claims, the law which vests the property absolutely in the
State without regard to the claims of the true owners cannot be considered as one relating to abandoned property.
On May 1, 1960, the State of Bombay was bifurcated into the States of Maharashtra and
Gujarat. The legislature of Gujarat thereafter enacted to First Amendment Act making various amendments in the Act, some of them with retrospective effect. The First Amendment Act was intended to remedy the defects pointed out in the decision of this Court in the Bombay
Dyeing Case [1958] S.C.R. 1122. The preamble to the First Amendment Act recites that "it is expedient to constitute a Fund for the financing of activities to promote welfare of labour in the State of Gujarat, for conducting such activities and for certain other purposes".
Section 2(2) defines 'employee '. Section 2(3)defines 'employer ' as any person who employs either directly or through another person either on behalf of himself or any other person, one or more employees in an establishment and includes certain other persons.
Section 2(4) defines 'establishment ' and that sub-section as amended reads:
2(4) 'Establishment ' means:
(i) A factory;
(ii) A Tramway or motor omnibus service; and
(iii) Any establishment including a society registered under the Societies
Registration Act, 1960, and a charitable or other trust, whether registered under the Bombay Public Trusts Act, 1950, or not, which carries on any business or trade or any work in connection with or ancillary thereto and which employs or on any working day during the preceding twelve months employed more than fifty persons; but does not include an establishment (not being a factory) of the Central or any State Government.
Sub-section (10) of Section 2 defines 'unpaid accumulations ': 'unpaid accumulations ' means all payments due to the employees but not made to them within a period of three years from the date on which they became due whether before or after the commencement of this Act including the wages and gratuity legally payable but not including the amount of contribution if any, paid by an employer to a provident fund established under the Employees ' Provident
Funds Act, 1952.
Section 3 is retrospectively amended and the amended section in its material part provides that the State Government shall constitute a fund called the Labour Welfare Fund and that the
Fund shall consist of, among other things, all unpaid accumulations. It provides that the sums specified shall be collected by such agencies and in such manner and the accounts of the fund shall be maintained and audited in such manner as may be prescribed. The section further provides that notwithstanding anything contained in any law for the time being in force or any
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contract or instrument, all unpaid accumulations shall be collected by such agencies and in such manner as may be prescribed and be paid in the first instance to the Board which shall keep a separate account therefore until claims thereto have been decided in the manner provided in Section 6A. Section 6A is a new section introduced retrospectively in the Act and
Sub-section (1) and (2) of that section state that all unpaid accumulations shall be deemed to be abandoned property and that any unpaid accumulations paid to the Board in accordance with the provisions of Section 3 shall, on such payment, discharge an employer of the liability to make payment to an employee in respect thereof, but to the extent only of the amount paid to the Board and that the liability to make payment to the employee to the extent aforesaid shall, subject to the other provisions of the section, be deemed to be transferred to the Board.
Sub-section (3) provides that as soon as possible after any unpaid accumulation is paid to the Board, the Board shall, by a public notice, call upon interested employees to submit to the
Board their claims for any payment due to them.
Sub-section (4) provides that such public notice shall contain such particulars as may be prescribed and that it shall be affixed on the notice board or in its absence on a conspicuous part of the premises, of each establishment in which the unpaid accumulations were earned and shall be published in the Official Gazette and also in any two newspapers in the language commonly understood in the area in which such establishment is situated, or in such other manner as may be prescribed, regard being had to the amount of the claim.
Sub-section (5)states that after the notice is first affixed and published under Sub-section
(4) it shall be again affixed and published from time, to time for a period of three years from the date on which it was first affixed and published, in the manner provided in that Sub-section in the months of June and December each year.
Sub-section (6) states that a certificate of the Board to the effect that the provisions of
Sub-section (4) and (5) were complied with shall be conclusive evidence thereof.
Sub-section (7) provides that any claim received whether in answer to the notice or otherwise within a period of four years from the date of the first publication of the notice in respect of such claim, shall be transferred by the Board to the authority appointed under
Section 15 of the Payment of Wages Act, 1936, having jurisdiction in the area in which the factory or establishment is situated, and the Authority shall proceed to adjudicate upon and decide such claim and that in hearing such claim the Authority shall have the powers conferred by and shall follow the procedure (in so far as it is applicable) followed in giving effect to the provisions of that Act.
Sub-section (8) states that if in deciding any claim under Sub-section (7), the Authority allows the whole or part of such claim, it shall declare that the unpaid accumulation in relation to which the claim is made shall, to the extent to which the claim is allowed ceases to be abandoned property and shall order the Board to pay to the claimant the amount of the claim as allowed by it and the Board shall make payment accordingly : provided that the Board shall not be liable to pay any sum in excess of that paid under Sub-section (4) of Section 3 to the
Board as unpaid accumulations, in respect of the claim.
Sub-section (9) provides for an appeal against the decision rejecting any claim.
Sub-section (10) provides that the Board shall comply with any order made in appeal.
Sub-section (11) makes the decision in appeal final and conclusive as to the right to receive payment, the liability of the Board to pay and also as to the amount, if any; and Subsection (12) states that if no claim is made within the time specified in Sub-section (7) or a claim or part thereof has been rejected, then the unpaid accumulations in respect of such claim
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shall accrue to and vest in the State as bona vacantia and shall thereafter without further assurance be deemed to be transferred to and form part of the Fund.
Section 7(1) provides that the Fund shall vest in and be held and applied by the Board as
Trustees subject to the provisions and for the purposes of the Act and the moneys in the Fund shall be utilized by the Board to defray the cost of carrying out measures which may be specified by the State Government from time to time to promote the welfare of labour and of their dependents. Sub-section (2) of Section 7 specifies various measures for the benefit of employees in general on which the moneys in the Fund may be expended by the Board.
Section 11 provides for the appointment of an officer called the Welfare Commissioner and defines his powers and duties.
Section 19 confers rule-making power on the State Government.
Section 22 empowers the State Government by notification in the official gazette to exempt any class of establishment from all or any of the provisions of the Act subject to such conditions as may be specified in the notification.
During the pendency of the writ petition before the High Court, the Gujarat Legislature passed the Bombay Labour Welfare Fund (Gujarat Amendment) Act, 1962 on February 5,
1963 (hereinafter referred to as the Second Amendment Act) introducing Sub-section (13) in
Section 6A with retrospective effect from the date of commencement of the Act. That Subsection provides as follows:
(13) Nothing in the foregoing provisions of this section shall apply to unpaid accumulations not already paid to the Board;
(a) in respect of which no separate accounts have been maintained so that the unpaid claims of employees are not traceable, or
(b) which are proved to have been spent before the sixth day of December, 1961, and accordingly such unpaid accumulations shall not be liable to be collected and paid under Sub-section (4) of Section 3.
The State Government, in the exercise of its rule-making power under Section 19 amended the Rules by amending Rule 3 and adding a new Rule 3A setting out the particulars to be contained in the public notice issued under Section6A(3).
The first respondent raised several contentions before the High Court, but the Court rejected all except two of them and they were: (1) that the impugned provisions violated the fundamental right of citizen-employers and employees under Article 19(1)(f) and, therefore, the provisions were void under Article 13(2) of the Constitution and hence there was no law, and so, the notice issued by the Welfare Commissioner was without the authority of law; and
(2) that discrimination was writ large in the definition of 'establishment ' in Section 2(4) and since the definition permeates through every part of the impugned provisions and is an integral part of the impugned provisions, the impugned provisions were violative of Article 14 and were void.
So, the two questions in this appeal are, whether the first respondent was competent to challenge the validity of the impugned provisions on the basis that they violated the fundamental right under Article 19(1)(f) of citizen-employers or employees and thus show that the law was void and non-existent and, therefore, the action taken against it was bad; and whether the definition of 'establishment ' in Section 2(4) violated the fundamental right of the respondent under Article 14 and the impugned provisions were void for that reason.
………
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We, however, proceed on the assumption that the impugned provisions abridge the fundamental right of citizen-employers and citizen-employees under Article 19(1)(f) in order to decide the further question and that is, whether, on that assumption, the first respondent could claim that the law was void as against the non-citizen employers or employees under
Article 13(2) and further contend that the non-citizen employers have been deprived of their property without the authority of law, as, ex hypothesi a void law is a nullity.
It is settled by the decisions of this Court that a Corporation is not a citizen for the purposes of Article 19 and has, therefore, no fundamental right under that article (see Tata Engineering and Locomotive Co. Ltd. v. State of Bihar, [1964] 6 SCR 885, R. C. Cooper v. Union of India,
[1970] 3 SCR 530. The same view was taken in Bennett Coleman v. Union of India, [1973] 2
SCR 757.
As already stated, the High Court found that the impugned provisions, in so far as they abridged the fundamental rights of the citizen-employers and employees under
Article 19(1)(f) were void under Article 13(2) and even if the respondent-company had no fundamental right under Article 19(1)(f), it had the ordinary right to hold and dispose of its property, and that the right cannot be taken away or even affected except under the authority of a law. Expressed in another way, the reasoning of the Court was that since the impugned provisions became void as they abridged the fundamental right under Article 19(1)(f) of the citizen-employers and employees the law was void and non-est, and therefore, the first respondent was entitled to challenge the notice issued by the Welfare Commissioner demanding the unpaid accumulation as unauthorized by any law.
The first respondent, no doubt, has the ordinary right of every person in the country to hold and dispose of property and that right, if taken away or even affected by the act of an
Authority without the authority of law, would be illegal. That would give rise to a justiciable issue which can be agitated in a proceeding under Article 226.
The real question, therefore, is, even if a law takes away or abridges the fundamental right of citizens under Article 19(1)(f), whether it would be void and therefore non-est as respects non-citizens? In Keshava Madhava Menon v. State of Bombay, AIR 1951 SC 128 the question was whether a prosecution commenced before the coming into force of the Constitution could be continued after the Constitution came into force as the Act in question there became void as violating Article 19(1)(a) and 19(2). Das, J. who delivered the majority judgment was of the view that the prosecution could be continued on the ground that the provisions of the
Constitution including Article 13(1) were not retrospective. The learned judge said that after the commencement of the Constitution, no existing law could be allowed to stand in the way of the exercise of fundamental rights, that such inconsistent laws were not wiped off or obliterated from the statute book and that the statute would operate in respect of all matters or events which took place before the Constitution came into force and that it is also operated after the Constitution came into force and would remain in the statute book as operative so far as non-citizens are concerned.
This decision is clear that even though a law which is inconsistent with fundamental rights under Article 19 would become void after the commencement of the Constitution, the law would still continue in force in so far as non-citizens are concerned. This decision takes the view that the word 'void ' in Article 13(1) would not have the effect of wiping out preConstitution laws from the statute book, that they will continue to be operative so far as noncitizens are concerned, notwithstanding the fact that they are inconsistent with the fundamental rights of citizens and therefore become void under Article 13(1).
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In Behram Khurshed Pesikaka v. State of Bombay, 1955 Cri L.J. 215 the question was about the scope of Article 13(1). This Court had held that certain provisions of the Bombay
Prohibition Act, 1949 (a pre-Constitution Act), in so far as they prohibited the possession, use and consumption of medicinal preparations were void as violating Article 19(1)(f). The appellant was prosecuted under the said Act and he pleaded that he had taken medicine containing alcohol. The controversy was whether the burden of proving that fact was on him.
It became necessary to consider the legal effect of the declaration made by this Court that
Section 13(b) of the said Act in so far as it affected liquid medicinal and toilet preparations containing alcohol was invalid as it infringed Article 19(1)(f). At the first hearing all the judges were agreed that a declaration by a Court that part of a section was invalid did not repeal or amend that section. Venkatarama Aiyar, J. with whom Jagannadhadas, J. was inclined to agree, held that a distinction must be made between unconstitutionality arising from lack of legislative competence and that arising from a violation of constitutional limitations on legislative power. According to him, if the law is made without legislative competence, it was a nullity; a law violating a constitutional prohibition enacted for the benefit of the public generally was also a nullity; but a law violating a constitutional prohibition enacted for individuals was not a nullity but was merely unenforceable. At the second hearing of the case,
Mahajan, J. after referring to Madhava Menon 's Case, said that for determining the rights and obligations of citizens, the part declared void should be notionally taken to be obliterated from the section for all intents and purposes though it may remain written on the statute book and be a good law when a question arises for determination of rights and obligations incurred prior to January 26, 1950, and also for the determination of rights of persons who have not been given fundamental rights by the Constitution. Das, J. in his dissenting judgment held that to hold that the invalid part was obliterated would be tantamount to saying covertly that the judicial declaration had to that extent amended the section. At p. 659, the learned Judge observed: It is beyond all dispute that it is for the Court to judge whether the restrictions imposed by any existing law or any part thereof on the fundamental rights of citizens are reasonable or unreasonable in the interest of the general public or for the protection of the interests of any Scheduled Tribe. If the Court holds that the restrictions are unreasonable then the Act or the part thereof which imposes such unreasonable restrictions comes into conflict and becomes inconsistent with the fundamental right conferred on the citizens by Article 19(1)(f) and is by Article
13(1) rendered void, not in toto or for all purposes or for all persons but 'to the extent of such inconsistency ' i.e., to the extent it is inconsistent with the exercise of that fundamental right by the citizens. This is plainly the position, as I see it.
Mahajan, C.J. rejected the distinction between a law void for lack of legislative power and a law void for violating a constitutional fetter or limitation on legislative power. Both these declarations, according to the learned Chief Justice, of unconstitutionally go to the root of the power itself and there is no real distinction between them and they represent but two aspects of want of legislative power.
In Bhikhai Narain Dhakras v. State of M.P.,[1955] 2 SCR 589 the question was whether the C.P. and Berar Motor Vehicles (Amendment) Act, 1947, amended Section 43 of the Motor
Vehicles Act, 1939, by introducing provisions which authorized the Provincial Government to take up the entire motor transport business in the Province and run it in competition with and even to the exclusion of motor transport operators. These provisions, though valid when enacted, became void on the coming into force of the Constitution, as they violated
Article 19(1)(g). On June 18, 1951, the Constitution was amended so as to authorize the State to carry on business "whether to the exclusion, complete or partial, or citizens or otherwise".
A notification was issued after the amendment and the Court was concerned with the validity of the notification. The real question before the Court was that although Section 43 was void
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between January 26, 1950, and June 18, 1951, the amendment of the Article 19(6) had the affect of removing the constitutional invalidity of Section 43 which, from the date of amendment, became valid and operative. After referring to the meaning given to the word 'void ' in Madhva Menon 's Case Das, Acting C.J. said for the Court:
All laws, existing or future, which are inconsistent with the provisions of Part III of our Constitution are, by the express provision of Article 13, rendered void 'to the extent of such inconsistency '. Such laws were not dead for all purposes. They existed for the purposes of pre-Constitution rights and liabilities and they remained operative, even after the Constitution, as against non-citizens. It is only as against the citizens that they remained in a dormant or moribund condition (at pp. 599-600)
In M. P. V. Sundararamaier v. State of A.P., [1958] 1 SCR 1422, Venkatarama Aiyar, J. said that a law made without legislative competence and a law violative of constitutional limitations on legislative power were both unconstitutional and both had the same reckoning in a court of law; and they were both unenforceable but it did not follow from this that both laws were of the same quality and character and stood on the same footing for all purposes.
The proposition laid down by the learned Judge was that if a law is enacted by a legislature on a topic not within its competence, the law was a nullity but if the law was on a topic within its competence but if it violated some constitutional prohibition, the law was only unenforceable and not a nullity. In other words, a law if it lacks legislative competence was absolutely null and void and a subsequent cession of the legislative topic would not revive the law which was still-born and the law would have to be re-enacted; but a law within the legislative competence but violative of constitutional limitation was unenforceable but once the limitation was removed, the law became effective. The learned judge said that the observations of Mahajan. J, in Pesikaka 's case that [the] part of Section 13(b) of the Bombay
Prohibition Act, 1949, which had been declared invalid by this Court "had to be regarded as null and void" could not in the context be construed as implying that the impugned law must be regarded as non-est so as to be incapable of taking effect when the bar was removed. He summed up the result of the authorities as follows:
Where an enactment is unconstitutional in part but valid as to the rest, assuming of course that the two portions are severable, it cannot be held to have been wiped out of the statute book as it admittedly must remain there for the purpose of enforcement of the valid portion thereof, and being on the statute book, even that portion which is unenforceable on the ground that it is unconstitutional will operate proprio vigore when the Constitutional bar is removed, and there is no need for a fresh legislation.
In Deep Chand v. State of U.P., [1959] Supp. 2 S.C.R. 8 it was held that a postConstitution law is void from its inception but that a pre-Constitution law having been validly enacted would continue in force so far as non-citizens are concerned after the Constitution came into force. The Court further said that there is no distinction in the meaning of the word 'void ' in Article 13(1) and in 13(2) and that it connoted the same concept but, since from its inception the post-constitution lay is void, the law cannot be resuscitated without reenactment. Subba Rao, J. who wrote the majority judgment said after citing the observations of Das, Actg. C.J. in Madhava Menon 's Case (supra):
The second part of the observation directly applies only to a case covered by
Article 13(1), for the learned Judges say that the laws exist for the purposes of pre-Constitution rights and liabilities and they remain operative even after the
Constitution as against non-citizens. The said observation could not obviously apply to post Constitution laws. Even so, it is said that by a parity of reasoning the post-Constitution laws are also void to the extent of their repugnancy and therefore the law in respect of non-citizens will be on the statute-book and by the application of the doctrine of eclipse, the same result should flow in its case also.
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There is some plausibility in this argument, but it ignores one vital principle, viz., the existence or the non-existence of legislative power or competency at the time the law is made governs the situation (p. 38).
Das, C.J. dissented. He was of the view that a post-constitution law may infringe either a fundamental right conferred on citizens only or a fundamental right conferred on any person, citizen or non-citizen and that in the first case the law will not stand in the way of the exercise by the citizens of that fundamental right and, therefore, will not have any operation on the rights of the citizens, but it will be quite effective as regards non-citizens.
In Mahendra Lal Jain v. State of U.P., [1963] Supp 1 S.C.R. 912, the Court was of the view that the meaning of the word 'void ' is the same both in Article 13(1) and Article 13(2) and that the application of the doctrine of eclipse in the case of pre-constitution laws and not in the case of post-constitution laws does not depend upon the two parts of Article 13; "that it arises from the inherent difference between Article 13(1) and Article 13(2) arising from the fact that one is dealing with pre-Constitution laws, and the other is dealing with postConstitution laws, with the result that in one case the laws being not still-born the doctrine of eclipse will apply while in the other case the law being still-born there will be no scope for the application of the doctrine of eclipse."
If the meaning of the word 'void ' in Article 13(1) is the same as its meaning in
Article 13(2), it is difficult to understand why a pre-Constitution law which takes away or abridges the rights under Article 19 should remain operative even after the Constitution came into force as regards non-citizens and a post-Constitution law which takes away or abridges them should not be operative as respects non-citizens. The fact that pre-Constitution law was valid when enacted can afford no reason why it should remain operative as respects noncitizens after the Constitution came into force as it became void on account of its inconsistency with the provisions of Part III. Therefore, the real reason why it remains operative as against non-citizens is that it is void only to the extent of its inconsistency with the rights conferred under Article 19 and that its void-ness is, therefore, confined to citizens, as, ex hypothesi, the law became inconsistent with their fundamental rights alone. If that be so, we see no reason why a post-Constitution law which takes away or abridges the rights conferred by Article
19 should not be operative in regard to non-citizens as it is void only to the extent of the contravention of the rights conferred on citizens, namely, those under Article 19.
Article 13(2) is an injunction to the 'state ' not to pass any law which takes away or abridges the fundamental rights conferred by Part III and the consequence of the contravention of the injunction is that the law would be void to the extent of the contravention. The expression 'to the extent of the contravention ' in the sub-article can only mean, to the extent of the contravention of the rights conferred under that part. Rights do not exist in vacuum. They must always inhere in some person whether natural or juridical and, under Part III, they inhere even in fluctuating bodies like a linguistic or religious minorities or denominations. And, when the sub-article says that the law would be void "to the extent of the contravention", it can only mean to the extent of the contravention of the rights conferred on persons, minorities or denominations, as the case may be. Just as a pre-Constitution law taking away or abridging the fundamental rights under Article 19 remains operative after the Constitution came into force as respects non-citizens as it is not inconsistent with their fundamental rights, so also a post-Constitution law offending Article 19, remains operative as against non-citizens as it is not in contravention of any of their fundamental rights. The same scheme permeates both the
Sub-articles, namely, to make the law void in Article 13(1) to the extent of the inconsistency with the fundamental rights, and in Article 13(2) to the extent of the contravention of those rights. In other words, the void-ness is not in rem but to the extent only of inconsistency or contravention, as the case may be of the rights conferred under Part III. Therefore, when
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Article 13(2) uses the expression 'void ', it can only mean, void as against persons whose fundamental rights are taken away or abridged by a law. The law might be 'still-born ' so far as the persons, entities or denominations whose fundamental rights are taken away or abridged, but there is no reason why the law should be void or 'still-born ' as against those who have no fundamental rights.
It is said that the expression "to the extent of the contravention" in the article means that the part of the law which contravenes the fundamental right would alone be void and not the ether parts which do not so contravene. In other words, the argument was that the expression is intended to denote only the part of the law that would become void and not to show that the law will be void only as regards the persons or entities whose fundamental rights have been taken away or abridged.
The first part of the sub-article speaks of 'any law ' and the second part refers to the same law by using the same expression, namely, 'any law '. We think that the expression 'any law ' occurring in the latter part of the sub-article must necessarily refer to the same expression in the former part and therefore, the Constitution-makers have already made it clear that the law that would be void is only the law that contravenes the fundamental rights conferred by Part
III, and so, the phrase 'to the extent of the contravention ' can mean only to the extent of the contravention of the rights conferred. For instance, if a section in a statute takes away or abridges any of the rights conferred by Part III, it will be void because it is the law embodied in the section which takes away or abridges the fundamental right. And this is precisely what the sub-article has said in express terms by employing the expression 'any law ' both in the former and the latter part of it. It is difficult to see the reason why the Constitution-makers wanted to state that the other sections, which did not violate the fundamental right, would not be void, and any such categorical statement would have been wrong, as the other sections might be void if they are inseparably knitted to the void one. When we see that the latter part of the sub-article is concerned with the effect of the violation of the injunction contained in the former part, the words "to the extent of the contravention" can only refer to the rights conferred under Part III and denote only the compass of void-ness with respect to persons or entities resulting from the contravention of the rights conferred upon them.
Why is it that a law is void under Article 13(2)? It is only because the law takes away or abridges a fundamental right. There are many fundamental rights and they inhere in diverse types of persons, minorities or denominations. There is no conceivable reason why a law which takes away the fundamental right of one class of persons, or minorities or denominations should be void as against others who have no such fundamental rights as, ex hypothesi the law cannot contravene their rights.
It was submitted that this Court has rejected the distinction drawn by Venkatarama Aiyar,
J. in Sundararamaiers case [1958] S.C.R. 1422 between legislative incapacity arising from lack of power under the relevant legislative entry and that arising from a check upon legislative power on account of Constitutional provisions like fundamental rights and that if the law enacted by a legislature having no capacity in the former sense would be void in rem, there is no reason why a law passed by a legislature having no legislative capacity in the latter sense is void only qua persons whose fundamental rights are taken away or abridged.
It was also urged that the expression "the State shall not make any law" in Article 13(2) is a clear mandate of the fundamental law of the land and, therefore, it is a case of total incapacity and total want of power. But the question is: what is the mandate? The mandate is that the
State shall not make any law which takes away or abridges the rights conferred by Part III. If no rights are conferred under Part III upon a person, or, if rights are conferred, but they are not taken away or abridged by the law, where is the incapacity of the legislature? It may be
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noted that both in Deep Chand 's case (supra) and Mahendra Lal Jain 's case (supra), the decision in Sundararamaier 's case (supra) was not adverted to. If on a textual reading of
Article 13, the conclusion which we have reached is the only, reasonable one, we need not pause to consider whether that conclusion could be arrived at except on the basis of the distinction drawn by Venkatarama Aiyar, J, in Sundararamaie 's case (supra). However, we venture to think that there is nothing strange in the notion of a legislature having no inherent legislative capacity or power to take away or abridge by a law the fundamental rights conferred on citizens and yet having legislative power to pass the same law in respect of non-citizens who have no such fundamental rights to be taken away or abridged. In other words, the legislative incapacity subject-wise with reference to Articles 245 and 246 in this context would be the taking away or abridging by law the fundamental rights under Article 19 of citizens.
Mr. H.W.R. Wade has urged with considerable force that the terms 'void ' and 'voidable ' are inappropriate in the sphere of administrative law See "Unlawful Administrative Action",
83 Law Quarterly Rev. 499, at 518. According to him, there is no such thing as void-ness in an absolute sense, for, the whole question is: void as against whom? And he cites the decision of the Privy Council in Durayappah v. Fernando (1967) 3 W.L.R. 289 in his support.
In Jagannath v. Authorised Officer, Land Reforms, [1972] 1 SCR 1055 this Court has said that a post-Constitution Act which has been struck down for violating the fundamental rights conferred under Part III and was therefore still-born, has still an existence without reenactment, for being put in the Ninth Schedule. That only illustrates that any statement that a law which takes away or abridges fundamental rights conferred under Part III is still-born or null and void requires qualifications in certain situations. Although the general rule is that a statute declared unconstitutional is void at all times and that its invalidity must be recognized and acknowledged for all purposes and is no law and a nullity, this is neither universally nor absolutely true, and there are many exceptions to it. A realistic approach has been eroding the doctrine of absolute nullity in all cases and for all purposes See Warring v. Colpoys 122 F. 2d
642 and it has been held that such broad statements must be taken with some qualifications
See Chicot Country Drainage District v. Baxter State Bank, Ark. 308 U.S. 371, that even an unconstitutional statute is an operative fact and may have consequences which cannot be ignored. See Corpus Justice Secundum, Vol. 16, p. 469.
………
We do not think it necessary to pursue this aspect further in this case. For our purpose it is enough to say that if a law is otherwise good and does not contravene any of their fundamental rights, non-citizens cannot take advantage of the void-ness of the law for the reason that it contravenes the fundamental right of citizens and claim that there is no law at all. Nor would this proposition violate any principle of equality before the law because citizens and non-citizens are not similarity situated as the citizens have certain fundamental rights which non-citizens have not. Therefore, even assuming that under Article 226 of the
Constitution, the first respondent was entitled to move the High Court and seek a remedy for infringement of its ordinary right to property, the impugned provisions were not non-est but were valid laws enacted by a competent legislature as respects non-citizens and the first respondent cannot take the plea that its rights to property are being taken away or abridged without the authority of law.
… … … [Discussion on Article 14 has been omitted] …
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UNIT 3 – EQUALITY CLAUSE (ARTICLE 14)
DOCTRINE OF REASONABLE CLASSIFICATION
STATE OF WEST BENGAL V. ANWAR ALI SARKAR
AIR 1952 SC 75
Decided On: January 11, 1952
BENCH – CHIEF JUSTICE PATANJALI SASTRI, JUSTICES S. FAZL ALI, M. C. MAHAJAN, B. K.
MUKHERJEA, S. R. DAS, N. C. AIYAR & VIVIAN BOSE
CHIEF JUSTICE SASTRI (for himself)
This is an appeal by the State of West Bengal from a judgment of a Full Bench of the
High Court of Judicature at Calcutta quashing the conviction of the respondent by the Special
Court established under section 3 of the West Bengal Special Courts Ordinance, 1949,
(Ordinance No. 3 of 1949) which was replaced in March, 1950, by the West Bengal Special
Courts Act, 1950, (West Bengal Act X of 1950) (hereinafter referred to as "the Act").
The respondent and 49 other persons were charged with various offences alleged to have been committed by them in the course of their raid as an armed gang on a certain factory known as the Jessop Factory at Dum Dum, and they were convicted and sentenced to varying terms of imprisonment by the Special Court to which the case was sent for trial by the
Governor of West Bengal by a notification dated 26th January, 1950, in exercise of the powers conferred by section 5(1) of the Act. Thereupon the respondent applied to the High Court under article 226 of the Constitution for the issue of a writ of certiorari quashing the conviction and sentence on the ground that the Special Court had no jurisdiction to try the case inasmuch as section 5(1), under which it was sent to that Court for trial, was unconstitutional and void under article 13(2) as it denied to the respondent the equal protection of the laws enjoined by article 14. The High Court by a Full Bench consisting of the Chief Justice and four other
Judges quashed the conviction and directed the trial of the respondent and the other accused persons according to law. Hence the appeal.
The Act is instituted "An Act to provide for the speedier trial of certain offences", and the preamble declares that "it is expedient to provide for the speedier trial of certain offences".
Section 3 empowers the State Government by notification in the official gazette to constitute
Special Courts, and section 4 provides for the appointment of special judges to preside over such courts. Section 5, whose constitutionality is impugned, runs thus:
5 (1) A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may by general or special order in writing, direct.
(2) No direction shall be made under sub-section (1) for the trial of an offence for which an accused person was being tried at the commencement of this Act before any cot but save as aforesaid, such direction may be made in respect of an offence, whether such offence was committed before or after the commencement of this Act.
Sections 6 to 15 prescribe the special procedure which the court has to follow in the trial of cases referred to it. The main features of such procedure which mark a departure from the established procedure for criminal trials under the Code of Criminal Procedure are the elimination of the committal procedure in sessions cases and the substitution of the procedure laid down in the Code for trial of warrant cases by the Magistrate, trial without jury or assessors, restriction of the court 's power in granting adjournments, special powers to deal
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with refractory accused and dispensation of de novo trial on transfer off a case from one special court to another. While some of these departures from the normal procedure might, in practice, operate in some respects to the disadvantage of persons tried before the Special Court, it cannot be said that they derogate from the essential requirements of a fair and impartial trial, so as to give rise, from their very nature, to an inference of a discriminatory design. In other words, it cannot be said that the special procedure provided in the Act is, on its face, calculated to prejudice the fair trial of persons subjected to it. The departure in each case is plainly calculated to shorten the trial and thus to attain the declared objective of the statute.
Harries C.J. who delivered the leading judgment, in which Das and Banerjee JJ. concurred, applied the test of what may be called "reasonable classification" and held that, although the need for a speedier trial than what is possible under the procedure prescribed by the Code of Criminal Procedure might form the basis of a reasonable classification and section
5(1) could not be regarded as discriminatory in so far as it authorises the State Government to direct that certain offences or classes of offences or classes of cases should be tried by a special court, the provision was discriminatory and violative of article 14 of the Constitution in so far as it purported to vest in the State Government an absolute and arbitrary power to refer to a special court for trial "any cases", which must include an individual case, "whether the duration of such a case is likely to be long or not". The learned Chief Justice rejected the argument that the word "cases" in the sub-section should, in view of the title and preamble of the Act, be construed as meaning cases requiring speedier trial." He found it "impossible to cut down the plain meaning of the word 'cases ' as used in the section". He realised that
"the powers under the sub-section could be so exercised as not to involve discrimination, but they also could, in my view, be exercised in a manner involving discrimination. When an Act gives power which may and can offend against a provision or provisions of the Constitution such an Act is ultra vires though it could be administered so as not to offend against the Constitution"
and he relied in support of this view on certain observation in the judgment of the majority in the Crossroads case [1950] S.C.R. 594, 603.
Chakravartti and Das JJ. delivered separate judgments agreeing with the conclusion of the
Chief Justice. Das Gupta J., however, going further and holding that section 5(1) was unconstitutional in its entirety inasmuch as "the classification sought to be made on the expediency of speedier trial is not a well-defined classification. It is too indefinite and there can hardly be any definite objective test to determine it."
Before considering whether section 5(1) infringes, to any and what extent, the constitutional prohibition under article 14, it is necessary to ascertain the true scope and intendment of the impugned provision. It purports to provide for the matters to be tried by a special court and does not, in form seek to define the kind or class of offences or cases which the State Government is empowered under the Act to assign to such a court for trial. In other words, the purpose of section 5(1) is to define the jurisdiction of a special court appointed under the Act and not the scope of the power conferred on the State Government to refer cases to such court. As the very object of the Act was to provide for speedier trials by instituting a system of special courts with a simplified and shortened procedure, it is reasonable to conclude that, so far as the legislature was concerned, its intention was that courts constituted under the
Act and applying such procedure should deal only with cases requiring speedier trial and that, accordingly, the State Government should refer to such courts only cases of that description.
The principle of construction applicable here is perhaps nowhere better stated than by Lord
Tenterden C.J. in Halton v. Cove (1830) 1 B & Ad. 538, 558:
"It is very true, as was argued for the plaintiff, that the enacting words of an Act of Parliament are not always to be limited by the words of the preamble, but must
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in many cases go beyond it. Yet, on a sound construction of every Act of
Parliament, I take it the words of the enacting part must be confined to that which is the plain object and general intention of the legislature in passing the Act, and that the preamble affords a good clue to discover what that object was".
The same view was expressed by Holmes J. in an American case, Carroll v. Greenwich
Inc. 199 U.S. 401:
"The object of the law, we assume, until the lower Court shall decide otherwise, is single-to keep up competition and the general language is to be restricted by the specifies provisions and to the particular end."
The title and the preamble as well as the other specific provisions of the Act here in question show unmistakably that the whole object and purpose of the legislation was to devise machinery for "speedier trial of certain offences", (which must mean trial of cases involving the commission of certain offences as there can, of course, be no trial of offences in the abstract) and the general expressions used in providing for the power to set that machinery in operation must be restricted to that end in accordance with the intention of the legislature; for, a literal construction of the general language would impute to the legislature an intention to confer an arbitrary power of reference which would be inconsistent not only with the declared object of the statute but also with the constitutional prohibition against discrimination, which the legislature must be taken to have been aware of when it deliberately re-enacted the provisions of the old Ordinance. The discretion vested in the State Government in selecting cases for reference to a special court may not be subject to judicial review and may, in that sense, be absolute, but that is very different from saying that it was intended to be arbitrary.
Its exercise must involve bona fide consideration of special features or circumstances which call for a comparatively prompt disposal of the case or cases proposed to be referred. In other words, section 5(1) must, in my opinion, be read as empowering the State Government to direct a special court to try such offences or classes of offences or cases or classes of cases as, in its judgment, require speedier trial.
The question next arise as to whether the provision, thus understood, violates the prohibition under article 14 of the Constitution. The first part of the article, which appears to have been adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the territories of India and thus enshrines what American Judges regard as the "basic principle of republicanism" [cf. Ward v. Flood, 17 Am. Rep. 405]. The second part which is a corollary of the firsts and is based on the last clause of the first section of the
Fourteenth Amendment of the American Constitution, enjoins that equal protection shall be secured to all such person in the enjoyment of their rights and liberties without discrimination or favoritism, or as an American Judge put it "it is a pledge of the protection of equal laws"
[Yick Wo v. Hopkins, 118 U.S. 356, 369], that is, laws that operate alike on all persons under like circumstances. And as the prohibition under the article is directed against the State, which is defined in article 12 as including not only the legislatures but also the Governments in the country, article 14 secures all person within the territories of India against arbitrary laws as well as arbitrary application of laws. This is further made clear by defining "law" in article 13 (which renders void any law which takes away or abridges the rights conferred by
Part III) as including, among other things, any "order" or "notification", so that even executive orders or notifications must not infringe article 14. This trilogy of articles thus ensures nondiscrimination in State action both in the legislative and the administrative spheres in the democratic republic of India.
This, however, cannot mean that all law must be general in character and universal in application. As pointed out in Chiranjit Lal 's case, [1950] S.C.R. 869, and in numerous
American decisions dealing with the equal protection clause of the 14th Amendment, the State
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in the exercise of its governmental power must of necessity make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying person or things to be subjected to such laws. But classification necessarily implies discrimination between persons classified and those who are not members of that class. "It is the essence of a classification" said Mr. Justice Brewer in Atchison, Topeka & Santa Fe R.
Co. v. Matthews, 174 U.S. 96, 106, "that upon the class are caste duties and burdens different from those resting upon the general public. Indeed the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines this matter of constitutionality". Commenting on this observation in his dissenting opinion in Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 566, 567, 568, (which later prevailed in Tigner v. Texas, 310 U.S. 141, Mr. Justice McKenna posed a problem and proceeded to answer it: "It seems like a contradiction to say that a law having equality of operating may yet give equality of protection. Viewed rightly, however, the contradiction disappears… Government is not a simple thing. It encounters and must deal with the problems which come from persons in an infinite variety of relations. Classification is the recognition of those relations, and, in making it, a legislature must be allowed a wide latitude of discretion and judgment… Classification based on those relations need not be constituted by an exact or scientific exclusion or inclusion of person or things.” Therefore it has been repeatedly declared that classification is justified if it is not palpably arbitrary.
Thus, the general language of article 14, as of its American counterpart, has been greatly qualified by the recognition of the State 's regulative power to make laws operating differently on different classes of persons in the governance of its subjects, with the result that the principle of equality of civil rights and of equal protection of the laws is only given effect to as a safeguard against arbitrary State action. It follows that in adjudging a given laws as discriminatory and unconstitutional two aspects have to be considered. First, it has to be seen whether it observes equality between all the persons on whom it is to operate. An affirmative finding on the point may not, however, be decisive of the issue. If the impugned legislation is a special law applicable only to a certain class of persons, the court must further enquire whether the classification is founded on a reasonable basis having regard to the object to be attained, or is arbitrary. Thus, the reasonableness of classification comes into question only in those cases where special legislation affecting a class of person is challenged as discriminatory. But there are other types of legislation such as for instances, the Land
Acquisition Act, which do not rest on classification, and no question of reasonable classification could fairly arise in respect of such enactments. Nor, obviously, could it arise when executive orders or notifications directed against individual citizens are assailed as discriminatory. It is interesting to find that the trend of recent decisions in America has been to lean strongly toward sustaining State action both in the legislative and in the administrative spheres against attacks based on hostile discrimination. Classification condemned as discriminatory have been subsequently upheld as being within the powers of the legislature. In Tigner v.
Texas, 310 U.S. 141, the majority view in Connolly 's case, 184 U.S. 540, holding that an
Illinois anti-trust law, which made certain forbidden acts criminal if done by merchants and manufactures but declared them to be civil wrongs if done by farmers and stockmen, was
"manifestly a denial of the equal protection of the laws" was considered to be no longer
"controlling". While in Gulf, Colorado & Santa Fe R. Co. v. Ellis, 165 U.S. 666, a Texas statute imposing an attorney 's fee in addition to costs upon railway corporations which unsuccessfully defended actions for damages for stock killed or injured by their train was
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struck down as discriminatory because such corporations could not recover any such fee if their defence was successful, a similar provision in a Kansas statute in respect of an action against railroad companies for damages by fire caused by operating the rail- road was upheld as not discriminatory in Atchison, Topeka & Santa Fe R. Co v. Matthews, 174 U.S. 96, the earlier case being distinguished on some ground which Harlon, J. in his dissenting opinion confessed he was not "astute enough to perceive". And the latest decision in Kotch v. Pilot
Comm 'rs, 330 U.S. 552, marks, perhaps, the farthest swing of the pendulum. A Louisiana pilotage law authorised the appointment of State pilots only upon certification by a State Board of river pilot commissioners who were themselves State Pilots. Among the prescribed qualifications was apprenticeship under a State pilot for a certain period. By admitting only their relatives and friends to apprenticeship, the members of the board made it impossible, with occasional exceptions, for others to be appointed as State pilots. Upholding the constitutionality of the law as well as the manner in which it was administered, the Court said:
"The constitutional command for a State to afford equal protection of the law sets a goal not attainable by the invention and application of a precise formula. This Court has never attempted that impossible task. A law which affects the activities of some groups differently from the way in which it affects the activities of other groups is not necessarily banned by the
14th Amendment. Otherwise, effective regulation in the public interest could not be provided, however essential that regulation might be."
These decisions seem, to my mind, to reveal a change of approach marked by an increasing respect for the State 's regulatory power in dealing with equal protection claims and underline the futility of wordy formulation of so called "tests" in solving problems presented by concrete cases.
Great reliance was placed on behalf of the respondent upon the decision in Truax v.
Corrigan, 257 U.S. 312 and Yick Wo v. Hopkins, 118 U.S. 356. In the former case it was held by a majority of 5:4 that a law which denied the remedy of injunction in a dispute between employer and his ex-employees was a denial of the equal protection of laws, as such a remedy was allowed in all other cases. But it is to be noted that the minority, which included Holmes and Brandies JJ., expressed the opinion that it was within the power of the State to make such differentiation and the law was perfectly constitutional. The legislation was obviously applicable to a class of persons and the decision was an instance where the classification was held to be arbitrary and is not of much assistance to the respondent. In the other case a San
Francisco Ordinance, which prohibited the carrying on of a laundry business within the limits of the City without having first obtained the consent of the Board of Supervisors unless it was located in building constructed of brick or stone, was held discriminatory and unconstitutional.
The undisputed facts disclosed in the record were that out of 320 laundries in San Francisco about 310 were constructed of wood, and about 240 of the 320 were owned and conducted by subjects of China. The petitioner, a Chinaman, and about 200 of his countrymen applied to the Board of Supervisors to continue their clothes-washing business in wooden buildings which they had been occupying for many year, but in all cases licence was refused, whereas not a single one of the petitions presented by 80 persons who were not subjects of China had been refused. Dealing with these facts the court observed:
"Though the law itself be fair on its face and impartial in appearance, yet if it is applied and administered by public authority with an evil eye and an unequal hand so as to practically make unjust and illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution."
It is to be noted that the law was "administered". i.e., not merely applied in a few stray cases, but regularly and systematically applied, making a hostile discrimination against a particular class of persons on grounds of race and colour. Such systematic discriminatory
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administration in practice of the ordinance though impartial on its face was, evidently, taken to give rise to the inference that it was designed to be so administered. That is how the decision has been explained in later cases. For instance, in Alchison Topeka & Santa Fe R. Co v.
Matthews, 174 U.S. 96, 105, it was said:
"In that case (Yick Wo 's case, 118 U.S. 356), a municipal ordinance of San
Francisco designed to prevent the Chinese from carrying on the laundry business was adjudged void. This Court looked beyond the mere letter of the ordinance to the condition of things as they existed in San Francisco and saw under the guise of regulation an arbitrary classification was intended and accomplished".
That is to say, the ordinance was that the Privy Council called a "colourable legislative expedient" which, under the "guise or pretence" of doing what is constitutionally permissible,
"in substance and purpose seeks to effect discrimination": Morgan Proprietary Ltd. v. Deputy
Commissioner of Taxation for New South Wales, [1940] A.C. 838, 858. Thus explained, the
Yick Wo case is no authority for the view that the vesting in a public authority of a discretion which is liable to abuse by arbitrary exercise contrary to its intendment is a sufficient ground for condemning a statute as discriminatory and unconstitutional.
On the other hand, there is ample authority in the American decisions for the view that the necessarily large powers vested in a legislature must include the power of entrusting to an administrative body a plenary but no arbitrary discretion to be exercised so as to carry out the purpose of an enactment. In Engel v. O ' Malley, 219 U.S. 128, a New York statute prohibiting individuals or partnerships to engage in the business of receiving deposits of money without a licence from the controller "who may approve or disapprove the application for a licence in his discretion" was sustained as constitutional. In answer to the argument that the controller might refuse a licence on his arbitrary whim, Holmes J. said:
"We should suppose that in each case the controller was expected to act for cause.
But the nature and extent of the remedy, if any, for a breach of duty on his part, we think it unnecessary to consider; for the power of the state to make the pursuit of a calling dependent upon obtaining a licence is well established where safety seems to require it."
In New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, a provision in the Sanitary
Code of the City of New York vested discretion in Local Health Boards to grant or withhold licences for carrying on milk business in the City. Upholding the constitutionality of the provision, Day J, observed after referring to certain prior decisions:"These cases leave in no doubt the proposition that the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the police power ' of the state is not violative of rights secured by the 14th Amendment. There is no presumption that the power will be arbitrarily exercised, and when it is shown to be thus exercised against the individual, under sanction of state authority, this court has not hesitated to interfere for his protection, when the case has come before it in such manner as to authorise the interference of a Federal Court."
And Holmes J. added that, although it did not appear from the statute that the action of the Board of Health was intended to be subject to judicial revision as to its reasonableness, he agreed that it was not hit at by the 14th Amendment.
In the light of the foregoing discussion it seems to me difficult to hold that section 5(1) in whole or in part is discriminatory. It does not, either in terms or by necessary implication, discriminate as between persons or classes of persons; nor does it purport to deny to any one equality before the law or the equal protection of the laws. Indeed, it does not by its own force make the special procedure provided in the Act applicable to the trial of any offence or classes of offences or classes of cases; for, it is the State Government 's notification under the section
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that attracts the application of the procedure. Nor is that procedure, as I have endeavored to show, calculated to impair the chances of a fair trial of the cases to which it may be made applicable, and no discriminatory intent or design is discernible on its face, unless every departure from the normal procedure is to be regarded as involving a hostile discrimination. I have already held, as a matter of construction, that section 5(1) vests a discretion in the State
Government to refer to a special court for trial such offences or classes of offences or cases or classes of cases as may, in its opinion require a speedier trial. Such discretion the State
Government is expected to exercise honestly and reasonably, and the mere fact that it is not made subject to judicial review cannot mean that it was intended to be exercised in an arbitrary manner without reference to the declared object of the Act or, as Harries C.J. put it, “whether the duration of a case is likely to be long or not.”
In the face of all these considerations, it seems to me difficult to condemn section 5(1) as violative of article 14. If the discretion given to the State Government should be exercised improperly or arbitrarily, the administrative action may be challenged as discriminatory, but it cannot affect the constitutionality of the law. Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it. As observed by Kania C.J. in Dr. Khare 's case, [1950] S.C.R. 519 "It is improper to start with such an assumption and decide the legality of an Act on that basis.
Abuse of power given by law sometimes occurs; but the validity of the law cannot be contested because of such an apprehension." On the contrary, it is to be presumed that a public authority will act honestly and reasonably in the exercise of its statutory powers, and that the State
Government in the present case will, before directing a case to be tried by a Special Court, consider whether there are special features and circumstances which might unduly protract its trial under the ordinary procedure and mark it off for speedier that under the Act.
But it was said that the possibility of the Act being applied in an unauthorised and arbitrary manner was sufficient to make it unconstitutional according to the decisions of this Court in
Romesh Thapar v. State of Madras, [1950] S.C.R. 594 and Chintaman Rao v. State of Madhya
Pradesh, [1950] S.C.R. 759. It will be recalled that this was the main ground on which the learned Judges in the High Court rested their decision. With respect, those decisions have, I think, no application here. In Romesh Thapar 's case the constitutionality of a provincial enactment purporting to authorise the Provincial Government to regulate the circulation of a news-sheet in the Province of Madras for the purpose of "securing the public safety or the maintenance of public order" was challenged as being inconsistent with the petitioner 's fundamental right to freedom of speech and expression conferred by article 19(1)(a) of the
Constitution. But the only relevant constitutional limitation on freedom of speech was that the
State could make a law directed against the undermining of the security of the State or the overthrow of it, and as the impugned enactment covered a wider ground by authorising curtailment of that freedom for the purpose of securing the public safety or the maintenance of public order, this Court held it to be wholly unconstitutional and void, observing:"Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out it must be held to be wholly unconstitutional and void. In other words, clause (2) of article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment, which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent."
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This passage, which was relied on by the learned Chief Justice lends no support to the view that the more possibility of an Act being used in a manner not contemplated by the legislature, thought such use may not be subject to judicial review on that ground, or, in other words, the mere possibility of its abuse in practice, would justify its condemnation as unconstitutional. The important distinction is that in Romesh Thapar 's case, the impugned enactment, having been passed before the commencement of the Constitution, did contemplate the use to which it was actually put, but such use was outside the permissible constitutional restrictions on the freedom of speech, that is to say, the Act was not condemned on the ground of the possibility of its being abused but on the ground that even the contemplated and authorised use was outside the limits of constitutionally permissible restrictions. The same remarks apply to the other decision relied on. The observations of Kania C.J. quoted above indicate the correct approach.
Even from the point of view of reasonable classification, I can see no reason why the validity of the Act should not be sustained. As already pointed out, wide latitude must be allowed to a legislature in classifying persons and things to be brought under the operation of a special law, and such classification need not be based on an exact or scientific exclusion or inclusion. I cannot share the view of Das Gupta J. that the expediency of speedier trial is "too vague and indefinite" to be the basis of a "well defined" classification. Legislative judgment in such matters should not be canvassed by courts applying doctrinaire "definite objective tests". The Court should not insist in such cases on what Holmes J. called "delusive exactness".
(Truax v. Corrigan, supra). All that the court is expected to see, in dealing with equal protection claims, is whether the law impugned is "palpably discriminatory", and, in considering such a question great weight ought to be attached to the fact that a majority of the elected representative of the people who made the law did not think so, though that is not, of course, conclusive. They alone know the local conditions and circumstances which demanded the enactment of such a law, and it must be remembered that "legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the Courts"
(per Holmes J. in Missouri K. & T. R. Co. v. May). After all, what the Legislature of West
Bengal has sought to do by passing this Act is to regulate criminal trials within its territories by instituting a system of special courts with a shortened and simplified procedure, without impairing the requirements of a fair and impartial trial, which is to be made applicable to such cases or classes of cases as, in the opinion of the executive government, require speedier disposal. I do not think that article 14 denies to the State Legislature such regulative power.
(cf. Missouri v. Lewis, 101 U.S. 22). To sustain a law as not being discriminatory is not, however, to leave the party affected by a discriminatory application of the law without a remedy, for, as we have seen, state action on the administrative side can also be challenged as a denial of equal protection and unconstitutional.
That brings us to the consideration of the validity of the notification issued in the present case. In Snowden v. Hughes, 321 U.S. 1, it was laid down that "the unlawful administration by State officers of a State statute fair on its face resulting in its unequal application to those who were entitled to be treated alike is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person or it may only be shown by extrinsic evidence showing a discriminatory design to favour one individual or a class over another not to be inferred from the action itself. But a discriminatory purpose is not presumed; there must be a showing of clear and intentional discrimination". No attempt has been made in the present case to prove that the State Government was influenced by any discriminatory motive or deign. On the other hand, the facts appearing on the record would seem to justify the reference of the case to the special court for trial. A pointed put by Chakravartti, J:
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"The notification by which the case of Anwar Ali Sarkar (the respondent herein) was directed to be tried by the special court did not relate merely to that case but covered five more cases in each of which the accused were several in number. In
Anwar Ali 's case itself, there were 49 other accused. All these cases related to the armed raid on the premises of Jessop & Co. in the course of which crimes of the utmost brutality were committed on a large scale and to incidents following the raid. There can be no question at all that the cases were of a very exceptional character and although the offences committed were technically offences defined in the Indian Penal Code, the Indian Arms Act and the High Explosives Act, it would be futile to contend that the offenders in these cases were of the same class as ordinary criminals, committing the same offences or that the acts which constituted the offences were of the ordinary types..... All these cases again have arisen out of serious disturbances which, according to the prosecution, partook of the nature of an organised revolt."
In view of these facts it seems to me impossible to say the State Government has acted arbitrarily or with a discriminatory intention in referring these cases to the Special Court, for there are obviously special features which mark off this group of cases as requiring speedier disposal than would be possible under the ordinary procedure, and the charge of discriminatory treatment must fail. I would allow this appeal as also Appeal No. 298 of 1951
(State of West Bengal v. Gajen Mali) which raises the same questions.
JUSTICE FAZL ALI (for himself)
I have come to the conclusion that these appeals should be dismissed, and since that is also the conclusion which has been arrived at by several of my colleagues and they have written very full and elaborate judgments in support of it, I shall only supplement what they have said by stating briefly how I view some of the crucial points arising in the case.
There is no doubt that the West Bengal Special Courts Ordinance, 1949, which was later replaced by the impugned Act (West Bengal Special Courts Act X of 1950, to be hereinafter referred to as "the Act"), was a valid Ordinance when it was promulgated on the 17th August,
1949. The Act, which came into effect on the 15th March, 1950, is a verbatim reproduction of the earlier Ordinance, and what we have to decide is whether it is invalid because it offends against article 14 of the Constitution. In dealing with this question, the following facts have to be borne in mind:(1) The farmers of the Act have merely copied the provisions of the Ordinance of 1949 which was promulgated when there was no provision similar to article 14 of present
Constitution.
(2) The provision of the American Constitution which corresponds to article 14 has, ever since that Constitution has been in force, greatly exercised the minds of the American Judges, who, notwithstanding their efforts to restrict its application within reasonable limits, have had to declare a number of laws and executive acts to be unconstitutional. One is also amazed at the volume of case-law which has grown round this provisions, which shows the extent to which it 's wide language can be stretched and the large variety of situations in which it has been invoked.
(3) Article 14 is as widely worded as, if not more widely worded that, its counterpart in the American Constitution, and is bound to lead to some inconvenient results and seriously affect some pre-Constitution laws.
(4) The meaning and scope of article 14 has been elaborately explained in two earlier decisions of this Court, viz., Chiranjit Lal Chowdhury v. Union of India, [1950] S.C.R. 869 and State of Bombay v. F. N. Balsara, [1951] S.C.R. 682, and the principles laid down in those
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decisions have to be kept in view in deciding the present case. One of these principles is that article 14 is designed to protect all persons placed in similar circumstances against legislative discrimination, and if the legislature takes care to reasonably classify persons for legislative purposes and if it deals equally with all persons belonging to a well-defined class, it is not open to the charge of denial of equal protection on the ground that the law does not apply to other person.
(5) There is nothing sacred or sacrosanct about the test of reasonable classification, but it has undoubtedly proved to be a useful basis for meeting attacks on laws and official acts on the ground of infringement of the equality principle.
(6) It follows from the two foregoing paragraphs that one of the ways in which the impugned Act can be saved is to show that it is based on a reasonable classification of the persons to whom or the offences in respect of which the procedure laid down in it is to apply, and hence it is necessary to ascertain whether it is actually based on such a classification.
With these introductory remarks, I will proceed to deal with some of the more important aspects of the case. The first thing to be noticed is that the preamble of the Act mentions speedier trial of certain offences as its object. Now the framers of the Criminal Procedure
Code (which is hereinafter referred to as "the Code") also were alive to the desirability of having a speedy trial in certain classes of cases, and with this end in view they made four different sets of provisions for the trail of four classes of cases, these being provisions relating to summary trials, trial of summons cases, trial of warrant cases and trial of cases triable by a court of session. Broadly speaking, their classification of the offences for the purpose of applying these different sets of provisions was according to the gravity of the offences, though in classifying the offences fit for summary trial the experience and power of the trying
Magistrate was also taken into consideration. The net result of these provisions is that offences which are summarily triable can be more speedily tried than summons cases, summons cases can be more speedily tried than warrant cases, and warrant cases can be more speedily tried than sessions cases. The framers of the Code appear to have been generally of the view that the graver the offence the more elaborate should be the procedure for its trial, which was undoubtedly an understandable point of view, and no one has suggested that their classification of offences for the four different modes of trial to which reference has been made is unreasonable in any sense.
The impugned Act has completely ignored the principle of classification followed in the
Code and it proceeds to lay down a new procedure without making any attempt to particularize or classify the offences or cases to which it is to apply. Indeed section 5 of the Act, which is the most vital section, baldly states that the "Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may, be general or special order in writing direct." I agree with my learned brothers that to say that the reference to speedier trial in the preamble of the Act is the basis of classification is to read into the Act something which it does not contain and to ascribe to its authors what they never intended. As
I have already stated, the Act is a verbatim copy of the earlier Ordinance which was framed before the present Constitution came into force, and article 14 could not have been before the minds of those who framed it because that Article was not then in existence.
The second point to be noted is that in consequence of the Act, two procedures, one laid down in the Code and the other laid down in the Act, exist side by side in the area to which the Act applies, and hence the provisions of the Act are apt to give rise to certain anomalous results, some of which may be stated as follows:(1) A grave offence may be tried according to the procedure laid down in the Act, while a less grave offence may be tried according to the procedure laid down in the Code.
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(2) An accused person charged with a particular offence may be tried under the Act while another accused person charged with the same offence may be tried under the Code.
(3) Certain offences belonging to a particular group or category of offences may be tried under the Act whereas other offences belonging to the same group or category may be tried under the Code.
Some of my learned colleagues have examined the provisions of the Act and shown that of the two procedures – one laid down in the Act and the other in the Code - the latter affords greater facilities to the accused for the purpose of defending himself that the former; and once it is established that one procedure is less advantageous to the accused than the other, any person tried by a Special Court constituted under the Act, who but for the Act would have been entitled to be tried according to the more elaborate procedure of the Code, may legitimately enquire:- Why is this discrimination being made against me and why should I be tried according to a procedure which has not the same advantages as the normal procedure and which even carries with it the possibility of one 's being prejudiced in one 's defence?
It was suggested that the reply to this query is that the Act itself being general and applicable to all persons and to all offences, cannot be said to discriminate in favour of or against any particular case or classes of persons or cases, and if any charge of discrimination can be leveled at all, it can be leveled only against the act of the executive authority if the Act is misused. This kind of argument however does not appear to me to solve the difficulty. The result of accepting it would be that even where discrimination is quite evident one cannot challenge the Act simply because it is couched in general terms; and one cannot also challenge the act of the executive authority whose duty it is to administer the Act, because that authority will say – I am not to blame as I am acting under the Act. It is clear that if the argument were to be accepted, article 14 could be easily defeated. I think the fallacy of the argument lies in overlooking the fact that the "insidious discrimination complained of is incorporated in the
Act itself", it being so drafted that whenever any discrimination is made such discrimination would be ultimately traceable to it. The Act itself lays down a procedure which is less advantageous to the accused than the ordinary procedure, and this fact must in all cases be the root-cause of the discrimination which may result by the application of the Act.
In the course of the arguments, it was suggested that the Act is open to criticism on two different and distinct grounds, these being-.
(1) that it involves excessive delegation of legislative authority amounting to its abdication in so far as it gives unfettered discretion to the executive, without laying down any standard or rules of guidance, to make use of the procedure laid down by it; and
(2) that it infringes article 14 of the Constitution.
The first criticism which is by no means an unsubstantial one, may possibly be met by replying on the decision of this Court in Special Reference No. 1 of 1951, In re Delhi Laws
Act, [1951] S.C.R. 747, but the second criticism cannot be so easily met, since an Act which gives uncontrolled authority to discriminate cannot but be hit by article 14 and it will be no answer simply to say that the legislature having more or less the unlimited power to delegate has merely exercised that power. Curiously enough, what I regard as the weakest point of the
Act (viz, it being drafted in such general terms) is said to be its main strength and merit, but I really cannot see how the generality of language which gives unlimited authority to discriminate can save the Act.
In some American cases, there is a reference to "purposeful or intentional discrimination", and it was argued that unless we can discovered an evil intention or a deliberate design to mete out unequal treatment behind the Act, it cannot be impugned. It should be noted however that
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the words which I have put in inverted commas, have been used in few American cases with reference only to executive action, where certain Acts were found to be innocuous but they were administered by public authority with "an evil eye and an unequal hand." I suggest most respectfully that it will be extremely unsafe to lay down that unless there was evidence that discrimination was "purposeful or intentional" the equality clause would not be infringed.
In my opinion, the true position is as follows – As a general rule, if the Act is fair and good, the public authority who has to administer it will be protected. To this general rule, however, there is an exception, which comes into play when there is evidence of mala fides in the application of the Act. The basic question however still remains whether the Act itself is fair and good, which must be decided mainly with reference to the specific provisions of the Act. It should be noted that there is no reference to intention in article 14 and the gravamen of that Article is equality of treatment. In my opinion, it will be dangerous to introduce a subjective test when the Article itself lays down a clear and objective test.
I must confess that I have been trying hard to think how the Act can be saved, and the best argument that came to my mind in support of it was this – The Act should be held to be a good one, because it embodies all the essentials of a fair and proper trial, namely, (1) notice of the charge, (2) right to be heard and the right to test and rebut the prosecution evidence, (3) access to legal aid, and (4) trial by an impartial and experienced out. If these are the requisites, so I argued with myself, to which all accused persons are equally entitled, why should a particular procedure which ensures all those requisites not be substituted for another procedure, if such substitution in necessitated by administrative exigencies or is in public interest, even though the new procedure may be different from and less elaborate than the normal procedure. This seemed to me to be the best argument in favour of the Act but the more I thought of it the more it appeared to me that it was not a complete answer to the problem before us. In the first place, it brings in the "due process" idea of the American Constitution, which our Constitution has not chosen to adopt. Secondly, the Act itself does not state that public interest and administrative exigencies will provide the occasion for its application. Lastly, the discrimination involved in the application of the Act is too evident to be explained away.
The farmers of the Constitution have referred to equality in the Preamble, and have devoted as many as five articles, namely, articles 14, 15, 16, 17, and 18 in the Chapter on
Fundamental Rights, to ensure equality in all its aspects. Some of these Articles are confined to citizens only and some can be availed of by non-citizens also; but on reading these provisions as a whole, one can see the great importance attached to the principle of equality in the Constitution. That being so, it will be wrong to whittle down the meaning of article 14, and however well-intentioned the impugned Act may be and however reluctant one may feel to hold it invalid, it seems to me that section 5 of the Act, or at least that part of it with which alone we are concerned in this appeal, does offend against article 14 of the Constitution and is therefore unconstitutional and void. The Act is really modelled upon a pre-Constitution pattern and will have to be suitably redrafted in order to conform to the requirements of the
Constitution.
JUSTICE MAHAJAN (for himself, CONCURRING WITH JUSTICE MUKHERJEA)
I had the advantage of reading the judgment prepared by my brother Mukherjea and I am in respectful agreement with his opinion.
Section 5 of the West Bengal Special Courts Act is hit by article 14 of the Constitution inasmuch as it mentions on basis for the differential treatment prescribed in the Act for trial of criminals in certain cases and for certain offences. The learned Attorney-General argued that the Act had grouped cases requiring speedier trial as forming a class in themselves,
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differentiating that class from cases not needing expedition and that it was on this basis that the special procedure prescribed in the Act was applicable.
In order to appreciate this contention, it is necessary to state shortly the scope of article 14 of the Constitution. It is designed to prevent any person or class of persons for being singled out as a special subject for discriminatory and hostile legislation. Democracy implies respect for the elementary rights of man, however suspect or unworthy. Equality of right is a principle of republicanism and article 14 enunciates this equality principle in the administration of justice. In its application to legal proceedings the article assures to everyone the same rules of evidence and modes of procedure. In other words, the same rule must exist for all in similar circumstances. This principle, however, does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstance, in the same position.
By the process of classification the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well-defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other person. The classification permissible, however, must be based on some real and substantial distinction bearing a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily. Thus the legislature may fix the age at which persons shall be deemed competent to contract between themselves, but no one will claim that competency to contract can be made to depend upon the stature or colour of the hair. "Such as classification for such a purpose would be arbitrary and a piece of legislative despotism" (Vide Gulf Colorado & Santa
Fe Railway Co. v. W.H. Ellis, 166 U.S. 150).
Speedier trial of offences may be the reason and motive for the legislation but it does not amount either to a classification of offences or of cases. As pointed out by Chakravarti, J. the necessity of a speedy trial is too vague and uncertain a criterion to form the basis of a valid and reasonable classification. In the words of Das Gupta, J. it is too indefinite as there can hardly be any definite objective test to determine it. In my opinion, it is no classification at all in the real sense of the term as it is not based on any characteristics which are peculiar to persons or to cases which are to be subject to the special procedure prescribed by the Act. The mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of article 14. To get out of its reach it must appear that not only a classification has been made but also that it is one based upon a reasonable ground on some difference which bears a just and proper relation to the attempted classification and is not a mere arbitrary selection. Persons concerned in offences or cases needing so-called speedier trial are entitled to inquire "Why are they being made the subject of a law which has short-circuited the normal procedure of trial; why has it grouped them in that category and why has the law deprived them of the protection and safeguards which are allowed in the case of accused tried under the procedure mentioned in the Criminal Procedure Code; what makes the legislature or the executive to think that their cases need speedier trial than those of others like them?" The only answer, that so far as I am able to see, the Act gives to these inquiries is that they are being made the subject of this special treatment because they need it in the opinion of the provincial government; in other words, because such is the choice of their prosecutor. This answer neither so and rational nor reasonable.
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The only answer for withholding from such person the protection of article 14 that could reasonably be given to these inquiries would be that "Of all other accused persons they are a class by themselves and there is a reasonable difference between them and those other persons who may have committed similar offences." They could be told that the law regards persons guilty of offences against the security of the State as a class in themselves. The Code of
Criminal Procedure has by the process of classification prescribed different modes of procedure for trial of different offences. Minor offences can be summarily tried, while for grave and heinous offences an elaborate mode of procedure has been laid down. The present statute suggests no reasonable basis or classification, either in respect of offences or in respect of cases. It has laid down no yardstick or measure for the grouping either of persons or of cases or of offenses by which measure these groups could be distinguished from those who are outside the purview of the Special Act. The Act has left this matter entirely to the unregulated discretion of the provincial government. It has the power to pick out a case of a person similarly situate and hand it over to the special tribunal and leave the case of the other person in the same circumstance to be tried by the procedure laid down in the Criminal
Procedure Code. The State government it authorized, if it so chooses, to hand over an ordinary case of simple hurt to the special tribunal, leaving the case of dacoity with murder to be tried in the ordinary way. It is open under this Act for the provincial government to direct that a case of dacoity with firearms and accompanied by murder, where the persons killed are
Europeans, be tried by the Special Court, while exactly similar cases where the persons killed are Indians may be tried under the procedure of the Code.
That the Special Act lays down substantially different rules for trial of offences, and cases than laid down in the general law of the land, i.e., the Code of Criminal Procedure, cannot be seriously denied. It short-circuits that procedure in material particulars. It imposes heavier liabilities on the alleged culprits than are ordained by the Code. It deprives them of certain privileges which the Code affords them for their protection. Those singled out for treatment under the procedure of the Special Act are to a considerable extent prejudiced by the deprivation of the trial by the procedure prescribed under the Criminal Procedure Code. Not only does the special law deprive them of the safeguard of the committal procedure and of the trial with the help of jury or assessors, but it also deprives them of the right of a de novo trial in case of transfer and makes them liable for conviction and punishment for major offences other than those for which they may have been charged or tried. The right of the accused to call witnesses in defence has been curtailed and made dependent on the discretion of the special judge. To a certain extent the remedies of which an accused person is entitled for redress in the higher courts have been cut down. Even if it be said that the statute on the face of its not discriminatory, it is so in its effect and operation inasmuch as it vests in the executive government unregulated official discretion and therefore has to be adjudged unconstitutional.
It was suggested that good faith and knowledge of existing conditions on the part of a legislature has to be presumed. That is so; yet to carry that presumption to the extent of always holding that there must be some undisclosed intention or reason for subjecting certain individuals to a hostile and discriminatory legislation is to make the protection clause of article 14, in the words of an American decision, a mere rope of sand, in no manner restraining
State action. The protection afford by the article is not a mere eye-wash but it is a real one and unless a just cause for discrimination on the basis of a reasonable classification is put forth as a defence, the statute has to be declared unconstitutional. No just cause has been shown in the present instance. The result is that the appeals fail and are dismissed.
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JUSTICE MUKHERJEA (for himself, JUSTICE MAHAJAN CONCURRING)
… [Narration of facts has been omitted] …
In order to appreciate the points that have been canvassed before us, it would be convenient first of all to refer to the provision of article 14 of the Constitution with a view to determine the nature and scope of the guarantee that is implied in it. The article lays down that
"the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." It is, in substance, modelled upon the equal protection clause, occurring in the Fourteenth Amendment of the American Constitution with a further addition of the rule of "equality before the law", which is an established maxim of the English
Constitution. A number of American decisions have been cited before us on behalf of both parties in course of the arguments; and while a too rigid adherence to the views expressed by the Judges of the Supreme Court of America while dealing with the equal protection clause in their own Constitution may not be necessary or desirable for the purpose of determining the true meaning and scope of article 14 of the Indian Constitution, it cannot be denied that the general principles enunciated in many of these cases do afford considerable help and guidance in the matter.
It can be taken to be well settled that the principle underlying the guarantee in article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances (Chiranjit Lal Chowdhuri v. Union of India, [1950] S.C.R. 869). It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed (Old Dearborn Distributing Co. v. Seagram Distillers Corporation, 299
U.S. 183). Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same.
This brings in the question of classification. As there is no infringement of the equal protection rule, if the law deals alike with all of a certain class, the legislature has the undoubted right of classifying persons and placing those whose conditions are substantially similar under the same rule of law, while applying different rules to persons differently situated. It is said that the entire problem under the equal protection clause is one of classification or of drawing lines (Vide Dowling, Cases on Constitutional Law, 4th edn. 1139).
In making the classification the legislature cannot certainly be expected to provide "abstract symmetry." It can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even "degrees of evil" (Vide Skinner
v. Oklahoma, 316 U.S. 535 at 540), but the classification should never be arbitrary, artificial or evasive. It must rest always upon real and substantial distinction bearing a reasonable and just relation to the thing in respect to which the classification is made; and classification made without any reasonable basis should be regarded as invalid (Southern Railway Co. v.
Greene, 216 U.S. 400 at 412). These propositions have not been controverted before us and it is not disputed also on behalf of the respondents that the presumption is always in favour of the constitutionality of an enactment and the burden is upon him who attacks it, to show that there has been transgression of constitutional principles.
The learned Attorney-General, appearing in support of the appeal, has put forward his contentions under two different heads. His first line of argument is that quite apart from the question of classification there has been no infringement of article 14 of the Constitution in the present case. It is said that the State has full control over procedure in courts, both in civil and criminal cases, it can effect such changes as it likes for securing due and efficient administration of justice and a legislation of the character which we have got here and which
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merely regulates the mode of trial in certain cases cannot come within the description of discriminatory or hostile legislation. It is further argued that the differences that have been made in the procedure for criminal trial under the West Bengal Special Courts Act, 1950, are of a minor character and there are no substantial grounds upon which discrimination could be alleged or founded.
The second head of arguments advanced by the Attorney-General is that there is a classification and a justifiable classification on the basis of which differences in the procedure have been made by the West Bengal Act; and even if any unguided power has been conferred on the executive, the Act itself cannot be said to have violated the equality clause, though questions relating to proper exercise of such power or the limits of permissible delegation of authority might arise.
As regards the first point, it cannot be disputed that a competent legislature is entitled to alter the procedure in criminal trials in such way as it considers proper. Article 21 of the
Constitution only guarantees that "no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law." The word "law" in the Article means a State made law (Vide A.K. Gopalan v. State of Madras, [1950] S.C.R. 88), but it must be a valid and binding law having regard not merely to the competency of the legislature and the subject it relates to, but it must not also infringe any of the fundamental rights guaranteed under Part III of the Constitution. A rule of procedure laid down by law comes as much within the purview of article 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination (Weaver, Constitutional Law, page 407).
The two cases referred to by the learned Attorney-General in this connection do not really support his contention. In Hayes v. Missouri, 120 U.S. 68, the subject-matter of complaint was a provision of the revised statutes of Missouri which allowed the State, in capital cases, fifteen peremptory challenges in cities having a population of 100,000 inhabitants in place of eight in other parts of the State. This was held to be a valid exercise of legislative discretion not contravening the equality clause in the Fourteenth Amendment. It was said that the power of the Legislature to prescribe the number of challenges was limited by the necessity of having impartial jury. With a view to secure that end, the legislature could take into consideration the conditions of different communities and the strength of population in a particular city; and if all the persons within particular territorial limits are given equal rights in like cases, there could not be any question of discrimination. The other case relied upon by the learned
Attorney- General is the case of Brown v. New Jersey, 175 U.S. 171. In this case the question was whether the provision of the State Constitution relating to struck jury in murder cases was in conflict with the equal protection clause. The grievance made was that the procedure of struck jury denies the defendant the same number of peremptory challenges as he would have had in a trail before an ordinary jury. It was held by the Supreme Court that the equal protection clause was not violated by this provision. "It is true", thus observes Mr. Justice
Brewer, "that here there is no territorial distribution but in all cases in which a struck jury is ordered the same number of challenges is permitted and similarly in all cases in which the trail is by an ordinary jury either party, State or defendant, may apply for a struck jury and the matter is one which is determined by the court in the exercise of a sound discretion… That in a given case the discretion of the court in awarding a trial by a struck jury was improperly exercised may perhaps present a matter for consideration in appeal but it amounts to nothing more". Thus it was held that the procedure of struck jury did not involve any discrimination between one person and another. Each party was at liberty to apply for a struck jury if he so chose and the application could be granted by the court if it thought proper having regard to
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the circumstances of each individual case. The procedure would be identical in respect of all persons when it was allowed and all parties would have equal opportunities of availing themselves of this procedure if they so liked. That a judicial discretion has to be exercised on the basis of the facts of each case in the matter of granting the application for a struck jury does not really involve discrimination. These decisions, in my opinion, have no bearing on the present case.
I am not at all impressed by the argument of the learned Attorney-General that to enable the respondents to invoke the protection of article 14 of the Constitution it has got to be shown that the legislation complained of is a piece of "hostile" legislation. The expressions
"discriminatory" and "hostile" are found to be used by American Judges often simultaneously and almost as synonymous expressions in connection with discussions on the equal protection clause. If a legislation is discriminatory and discriminates one person or class of persons against others similarly situated and denies to the former the privileges that are enjoyed by the latter, it cannot but be regarded as "hostile" in the sense that it affects injuriously the interests of that person or class. Of course, if one 's interests are not at all affected by a particular piece of legislation, he may have no right to complain. But if it is established that the person complaining has been discriminated against as a result of legislation and denied equal privileges with others occupying the same position, I do not think that it is incumbent upon him, before he can claim relief on the basis of his fundamental rights, to assert and prove that in making the law, the legislature was actuated by a hostile or inimical intention against a particular person or class. For the same reason I cannot agree with the learned AttorneyGeneral that in cases like these, we should enquire as to what was the dominant intention of the legislature in enacting the law and that the operation of article 14 would be excluded if it is proved that the legislature has no intention to discriminate, though discrimination was the necessary consequence of the Act. When discrimination is alleged against officials in carrying out the law, a question of intention may be material in ascertaining whether the officer acted mala fide or not (Sunday Lake Iron Company v. Wakefield, 247 U.S. 350); but no question of intention can arise when discrimination follows or arises on the express terms of the law itself.
I agree with the Attorney-General that if the differences are not material, there may not be any discrimination in the proper sense of the word and minor deviations from the general standard might not amount to denial of equal rights. I find it difficult however, to hold that the difference in the procedure that has been introduced by the West Bengal Special Courts Act is of a minor or unsubstantial character which has not prejudiced the interests of the accused.
The first difference is that made in section 6 of the Act which lays down that the Special
Court may take cognizance of an offence without the accused being committed to it for trial, and that in trying the accused it has to follow the procedure for trial of warrant cases by
Magistrates. It is urged by the Attorney-General that the elimination of the committal proceedings is a matter of no importance and that the warrant procedure, which the Special
Court has got to follow, affords a scope for a preliminary examination of the evidence against the accused before a charge is framed. It cannot be denied that there is a difference between the two proceedings. In a warrant case the entire proceeding is before the same Magistrate and the same officer who frames the charge hears the case finally. In a sessions case, on the other hand, the trial is actually before another Judge, who was not connected with the earlier proceeding. It is also clear that after the committal and before the sessions judge actually hears the case, there is generally a large interval of time which gives the accused ample opportunity of preparing his defence, he being acquainted beforehand with the entire evidence that the prosecution wants to adduce against him. He cannot have the same advantage in a warrant case even if an adjournment is granted by the Magistrate after the charge is framed. Be that as
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it may, this is not the only matter upon which the normal procedure has been departed from in the Special Courts Act.
One of the most important departures is that the trial by the Special Court is without the aid of jury or assessors. The trial by jury is undoubtedly one of the most valuable rights which the accused can have. It is true that the trial by jury is not guaranteed by the Constitution and section 269 of the Criminal Procedure Code empowers the State Government to direct that the trial of all offences or any particular class of offences before any sessions court shall be by jury in any district; and it may revoke or alter such orders. There is nothing wrong therefore if the State discontinues trial by jury in any district with regard to all or any particular class of offences; but as has been pointed out by Mr. Justice Chakravarti of the Calcutta High Court, it cannot revoke jury trial in respect of a particular case or a particular accused while in respect of other cases involving the same offences the order still remains.
Amongst other important changes, reference may be made to the provision of section 13 of the Act which empowers the Special Court to convict an accused of any offence if the commission of such offence is proved during trial, although he was not charged with the same or could be charged with it in the manner contemplated by section 236 of the Criminal
Procedure Code, nor was it a minor offence within the meaning of section 238 of the Code.
Under section 350 of the Criminal Procedure Code, when a case after being heard in part goes for disposal before another Magistrate, the accused has the right to demand, before the second
Magistrate commences the proceedings, that the witnesses already examined should be reexamined and re-heard. This right has been taken away from the accused in case where a case is transferred from one Special Court to another under the provision of section 7 of the Special
Courts Act. Further the right of revision to the High Court does not exist at all under the new procedure, although the rights under the Constitution of India are retained. It has been pointed out and quite correctly be one of the learned Counsel for respondents that an application for bail cannot be made before the High Court on behalf of an accused after the Special Court has refused bail. These and other provisions of the Act make it clear that the rights of the accused have been curtailed in a substantial manner by the impugned legislation; and if the rights are curtailed only in certain cases and not in others, even though the circumstances in the latter cases are the same, a question of discrimination may certainly arise. The first line of argument adopted by the learned Attorney-General cannot, therefore, be accepted.
I now come to the other head of arguments put forward by him and the principal point for our consideration is whether the apparent discriminations that have been made in the Act can be justified on the basis of a reasonable classification. Section 5 of the West Bengal Special
Courts Act lays down that
"A Special court shall try such offences or classes of offences or cases or classes of cases as the State Government may, by general or special order in writing direct." The learned Attorney-General urges that the principle of classification upon which the differences have been made between cases and offences triable by the Special Court and those by ordinary courts is indicated in the preamble to the Act which runs as follows:
"Whereas it is expedient to provides for the speedier trial of certain offences.”
What is said is, that the preamble is to be read as a part of section 5 and the proper interpretation to be put upon the sub-section is that those cases and offences which in the opinion of the State Government would require speedier trial could be assigned by it to the
Special Court. In my opinion, this contention cannot be accepted for more reasons than one.
In the first place, I agree with the learned Chief Justice of the Calcutta High Court that the express provision of an enactment, if it is clear and unambiguous, cannot be curtailed or
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extended with the aid of the preamble to the Act. It is only when the object or meaning of the enactment is not clear that recourse can be had to the preamble to explain it (See Craies on
Statute Law, 4th edn., 184). In the case before us the language of section 5(1) is perfectly clear and free from any ambiguity. It vests an unrestricted discretion in the State Government to direct any cases or classes of cases to be tried by the Special Court in accordance with the procedure laid down in the Act. It is not stated that it is only when speedier trial is necessary that the discretion should be exercised. In the second place, assuming that the preamble throws any light upon the interpretation of the section, I am definitely of opinion that the necessity of a speedier trial is too vague, uncertain and elusive a criterion to from a rational basis for the discriminations made. The necessity for speedier trial may be the object which the legislature had in view or it may be the occasion for making the enactment. In a sense quick disposal is a thing which is desirable in all legal proceedings. The word used here is "speedier" which is a comparative term and as there may be degrees of speediness, the word undoubtedly introduces an uncertain and variable element. But the question is: how is this necessity of speedier trial to be determined? Not by reference to the nature of the offences or the circumstances under which or the area in which they are committed, nor even by reference to any peculiarities or antecedents of the offenders themselves, but the selection is left to the absolute and unfettered discretion of the executive government with nothing in the law to guide or control its action. This is not a reasonable classification at all but an arbitrary selection. A line is drawn artificially between two classes of cases. On one side of the line are grouped those cases which the State Government chooses to assign to the Special Court; on the other side stand the rest which the State Government does not think fit and proper to touch.
It has been observed in many cases by the Supreme Court of America that the fact that some sort of classification has been attempted at will not relieve a statute from the reach of the equality clause. "It must appear not only that a classification has been made but also that it is based upon some reasonable ground-some difference which bears a just and proper relation to the attempted classification" (Gulf Colorado etc. Co. v. Ellis, 165 U.S. 150). The question in each case would be whether the characteristics of the class are such as to provide a rational justification for the differences introduced? Judged by this test, the answer in the present case should be in the negative; for the difference in the treatment rests here solely on arbitrary selection by the State Government. It is true that the presumption should always be that the legislature understands and correctly appreciates the needs of its own people and that its discriminations are based on adequate grounds (Middleton v. Texas Power & Light Co., 249
U.S. 152; but as was said by Mr. Justice Brewer in Gulf Colorado etc. Co. v. Ellis, 165 U.S.
150, "to carry the presumption to the extent of holding that there must be some undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminatory legislation is to make the protection clauses of the Fourteenth Amendment a mere rope of sand."
A point was made by the Attorney-General in course of his arguments that the equality rule is not violated simply because a statute confers unregulated discretion on officers or on administrative agencies. In such cases it may be possible to attack the legislation on the ground of improper delegation of authority or the acts of the officers may be challenged on the ground of wrongful or mala fide exercise of powers; but no question of infringement of article 14 of the Constitution could possibly arise. We were referred to a number of authorities on this point but I do not think that the authorities really support the proposition of law in the way it is formulated. In the well-known case of Yick W O. v. Hopkins, 118 U.S. 356, the question was, whether the provision of a certain ordinance of the City and Country of San Francisco was invalid by reason of its being in conflict with the equal protection clause. The order in question laid down that it would be unlawful for any person to engage in laundry business within the corporate limits "without having first obtained the consent of the Board of Supervisors except
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the same to be located in a building constructed either of brick or stone." The question was answered in the affirmative. It was pointed out by Matthews, J., who delivered the opinion of the court, that the ordinance in question did not merely prescribe a rule and condition for the regulation of the laundry business. It allowed without restriction the use for such purposes of building of brick or stone, but as to wooden buildings constituting nearly all those in previous use, it divided the owners or occupiers into two classes, not having respect to their personal character and qualifications of the business, nor the situation and nature and adaptation of the buildings themselves, but merely by an arbitrary line, on one side of which were those who were permitted to pursue their industry by the mere will and consent of the supervisors and on the other those from whom that consent was withheld at their will and pleasure. This sort of committing to the unrestrained will of a public officer the power to deprive a citizen of his right to carry on lawful business was held to constitute an invasion of the Fourteenth
Amendment.
The learned Judge pointed out in course of his judgment that there are cases where discretion is lodged by law in public officers or bodies to grant or withhold licences to keep taverns or places for sale of spirituous liquor and the like. But all these cases stood on a different footing altogether. The same view was reiterated in Crowley v. Christensen, 137 U.S.
86, which related to an ordinance regulating the issue of licences to sell liquors. It appears to be an accepted doctrine of American courts that the purpose of the equal protection clause is to secure every person within the States against arbitrary discrimination, whether occasioned by the express terms of the statute or by their improper application through duly constituted agents. This was clearly laid down in Sunday Lake Iron Company v. Wakefield, 247 U.S. 350.
In this case the complaint was against a taxing officer, who was alleged to have assessed the plaintiff 's properties at their full value, while all other persons in the county were assessed at not more than one- third of the worth of their properties. It was held that the equal protection clause could be availed of against the taxing officer; but if he was found to have acted bona fide and the discrimination was the result of a mere error of judgment on his part, the action would fail. The position, therefore, is that when the statute is not itself discriminatory and the charge of violation of equal protection is only against the official, who is entrusted with the duty of carrying it into operation, the equal protection clause could be availed of in such cases; but the officer would have a good defence if he could prove bona fides. But when the statute itself makes a discrimination without any proper or reasonable basis, the statute would be invalidated for being in conflict with the equal protection clause, and the question as to how it is actually worked out may not necessarily be a material fact for consideration. As I have said already, in the present case the discrimination arises on the terms of the Act itself. The fact that it gives unrestrained power to the State Government to select in any way it likes the particular cases or offences which should go to a Special Tribunal and withdraw in such cases the protection which the accused normally enjoy under the criminal law of the country, is on the face of it discriminatory.
It may be noted in this connection that in the present case the High Court has held the provision of section 5 of the West Bengal Special Courts Act to be ultra vires the Constitution only so far as it allows the State Government to direct any case to be tried by the Special
Court. In the opinion of the learned Chief Justice, if the State Government had directed certain offences or classes of offences committed within the territory of West Bengal to be tried by the Special Court, the law or order could not have been impeached as discriminatory. It is to be noted that the Act itself does not mention in what classes of cases or offences such direction could be given; nor does it purpose to lay down the criterion or the basis upon which the classification is to be made. It is not strictly correct to say that if certain specified offences throughout the State were directed to be tried by the Special Court, there could not be any infringement of the equality rule. It may be that in making the selection the authorities would
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exclude from the list of offences other offences of a cognate character in respect to which no difference in treatment is justifiable. In such circumstances also the law or order would be offending against the equality provision in the Constitution. This is illustrated by the case of
Skinner v. Oklahoma, 316 U.S. 555. There a statute of Oklahoma provided for the sterilization of certain habitual criminals, who were convicted two or more times in any State, of felonies involving moral turpitude. The statute applied to persons guilty of larceny, which was regarded as a felony but not to embezzlement. It was held that the statute violated the equal protection clause. It is said that in cases where the law does not lay down a standard or form in accordance with which the classification is to be made, it would be the duty of the officers entrusted with the execution of the law, to make the classification in the way consonant with the principles of the Constitution (Vide Willis on Constitutional Law, Page 587). If that be the position, then an action might lie for annulling the acts of the officers if they are found not to be in conformity with the equality clause. Moreover, in the present case the notification by the
State Government could come within the definition of law as given in article 13 of the
Constitution and can be impeached apart from the Act if it violates article 14 of the
Constitution. I do not consider it necessary to pursue this matter any further, as in my opinion even on the limited ground upon which the High Court bases its decision, these appeals are bound to fail.
JUSTICE DAS (for himself)
I concur in dismissing these appeals but I am not persuaded that the whole of section 5 of the West Bengal Special Courts Act is invalid. As I find myself in substantial agreement with the interpretation put upon that section by the majority of the Full Bench of the Calcutta High
Court and most of the reasons adopted by Harries, C.J., in support thereof, I do not fell called upon to express myself in very great detail. I propose only to note the points urged before us and shortly state my conclusions thereon.
………
Article 14 of our Constitution, it is well known, corresponds to the last portion of section
1 of the Fourteenth Amendment to the American Constitution except that our article 14 has also adopted the English doctrine of rule of law by the addition of the words "equality before the law." It has not however, been urged before us that the addition of these extra words has made any substantial difference in its practical application. The meaning, scope and effect of article 14 of our Constitution have been discussed and laid down by this Court in the case of
Chiranjit Lal Chowdhury v. Union of India, [1950] S.C.R. 869. Although Sastri J., as he then was, and myself differed from the actual decision of the majority of the Court, there was no disagreement between us and the majority as to the principles underlying the provisions of article 14. The difference of opinion in that case was not so much on the principles to be applied as to the effect of the application of such principles. Those principles were again considered and summarised by this Court in State of Bombay v. F. N. Balsara, [1951] S.C.R.
682. It is now well established that while article 14 is designed to prevent a person or class of persons from being singled out from others similarly situated for the purpose of being specially subjected to discriminating and hostile legislation, it does not insist on an "abstract symmetry" in the sense that every piece of legislation must have universal application. All persons are not, by nature, attainment or circumstances, equal and the varying needs of different classes of persons often require separate treatment and, therefore, the protecting clause has been construed as a guarantee against discrimination amongst equals only and not as taking away from the state the power to classify persons for the purpose of legislation. This
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classification may be on different bases. It may be geographical or according to objects or occupations or the like.
Mere classification, however, is not enough to get over the inhibition of the Article. The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and that that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while the Article forbids class legislation in the sense of making improper discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liability proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense I have just explained. The doctrine, as expounded by this Court in the two cases I have mentioned, leaves a considerable latitude to the Court in the matter of the application of article 14and consequently has the merit of flexibility.
The learned Attorney-General, appearing in support of these appeals, however, contends that while a reasonable classification of the kind mentioned above may be a test of the validity of a particular piece of legislation, it may not be the only test which will cover all cases and that there may be other tests also. In answer to the query of the Court he formulates an alternative test in the following words: If there is in fact inequality of treatment and such inequality is not made with a special intention of prejudicing any particular person or persons but is made in the general interest of administration, there is no infringement of article 14. It is at once obvious that, according to the test thus formulated, the validity of State action, legislative or executive, is made entirely dependent on the state of mind of the authority. This test will permit even flagrantly discriminatory State action on the specious plea of good faith and of the subjective view of the executive authority as to the existence of a supposed general interest of administration. This test, if accepted, will amount to adding at the end of article 14 the words "except in good faith and in the general interest of administration." This is clearly not permissible for the Court to do. Further, it is obvious that the addition of these words will, in the language of Brewer, J., in Gulf, Colorado and Santa Fe Railway Co. v. Ellis,
165 U.S. 150, make the protecting clause a mere rope of sand, in no manner restraining State action. I am not, therefore, prepared to accept the proposition propounded by the learned
Attorney-General, unsupported as it is by any judicial decision, as a sound test for determining the validity of State action.
The learned Attorney-General next contends, on the authority of a passage in Cooley 's
Constitutional Limitations, 8th Edition, Vol. 2, p. 816, that inequalities of minor importance do not render a law invalid and that the constitutional limitations must be treated as flexible enough to permit of practical application. The passage purports to be founded on the decision in Jeffrey Manufacturing Co. v. Blagg, 235 U.S. 571. A careful perusal of this decision will make it quite clear that the Court upheld the validity of the statute impugned in that case, not on the ground that the inequality was of minor importance but, on the ground that the classification of establishments according to the number of workmen employed therein was based on an intelligible distinction having a rational relation to the subject-matter of the legislation in question. That decision, therefore, does not support the proposition so widely stated in the passage apparently added by the editor to the original text of Judge Cooley. The
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difference brought about by a statute may be of such a trivial, unsubstantial and illusory nature that that circumstance alone may be regarded as cogent ground for holding that the statute has not discriminated at all and that no inequality has in fact been created. This aspect of the matter apart, if a statute brings about inequality in fact and in substance, it will be illogical and highly undesirable to make the constitutionality of such a statute depend on the degree of the inequality so brought about. The adoption of such a principle will run counter to the plain language of article 14.
At one stage of his arguments the learned Attorney-General just put forward an argument, which he did not press very strongly, that the Article is a protection against the inequality of substantive law only and not against that of a procedural law. I am quite definitely not prepared to countenance that argument. There is no logical basis for this distinction. A procedural law may easily inflict very great hardship on persons subjected to it, as, indeed, this very Act under consideration will presently be seen to have obviously done.
That the Act has prescribed a procedure of trial which is materially different from that laid down in the Code of Criminal Procedure cannot be disputed. The different sections of the Act have been analysed and the important difference have been clearly indicated by the learned
Chief Justice of West Bengal and need not be repeated in detail. The elimination of the committal proceedings and of trial by jury (section 6), the taking away of the right to a de novo trial on transfer (section 7), the vesting of discretion in the Special Court to refuse to summon a defence witness if it be satisfied that this evidence will not be material (section 8), the liability to be convicted of an offence higher than that for which the accused was sent up for trial under the Act (section 13), the exclusion of interference of other Courts by way of revision or transfer or under section 491 of the Code (section 16) are some of the glaring instances of inequality brought about by the impugned Act.
The learned Attorney-General has drawn our attention to various sections of the Code of
Criminal Procedure in an endeavor to establish that provisions somewhat similar to those enacted in this Act are also contained in the Code. A comparison between the language of those sections of the Code and that of the several sections of this Act mentioned above will clearly show that the Act has gone much beyond the provisions of the Code and the Act cannot by any means be said to be an innocuous substitute for the procedure prescribed by the Code.
The far-reaching effect of the elimination of the committal proceedings cannot possibly be ignored merely by stating that the warrant procedure under the Code in a way also involves a committal by the trial Magistrate, namely to himself, for the warrant procedure minimises the chances of the prosecution being thrown out at the preliminary stage, as may be done by the committing Magistrate, and deprives the accused person of the opportunity of knowing, well in advance of the actual trial before the Sessions Court, the case sought to be made against him and the evidence in support of it and, what is of the utmost importance, of the benefit of a trial before and the decision of a different and independent mind. The liability to be convicted of a higher offence has no parallel in the Code. It is true that the State can, under section 269 of the Code, do away with trial by jury but that section, as pointed out by
Chakravartti, J. does not clearly contemplate elimination of that procedure only in particular cases which is precisely what the Act authorises the government to do. On a fair reading of the Act there can be no escape from the fact that it quite definitely brings about a substantial inequality of treatment, in the matter of trial, between persons subjected to it and others who are left to be governed by the ordinary procedure laid down in the Code. The question is whether section 5 which really imposes this substantial inequality on particular persons can be saved from the operation of article 14 on the principle of rational classification of the kind permissible in law.
Section 5 of the Act runs as follows:-
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"A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may, be general or special order in writing, direct." It will be noticed that the sub-section refers to four distinct categories, namely, "offences",
"classes of offences", "cases" and "classes of cases" and empowers the State government to direct any one or more of these categories to be tried by the Special court constituted under the Act. I shall first deal with the section in so far as it authorises the State government to direct "offences", "classes of offences" and "classes of cases" to be tried by a Special Court.
These expressions clearly indicate, and obviously imply, a process of classification of offences or cases. Prima facie those words do not contemplate any particular offender or any particular accused in any particular case. The emphasis is on "offences", "classes of offences" or "classes of cases". The classification of "offences" by itself is not calculated to touch any individual as such, although it may, after the classification is made, affect all individuals who may commit the particular offence. In short, the classification implied in this part of the sub-section has no reference to, and is not directed towards the singling out of any particular person as an object of hostile State action but is concerned only with the grouping of "offences", "classes of offences" and "classes of cases" for the purpose of being tried by a Special Court. Such being the meaning and implication of this part of section 5, the question arises whether the process of classification thus contemplated by the Act conforms to the requirements of reasonable classification which does not offend against the Constitution.
Learned Attorney-General claims that the impugned Act satisfies even this test of rational classification. His contention is that offences may be grouped into two classes, namely, those that require speedier trial, that is speedier than what is provided for in the Code and those that do not require a speedier trial. The Act, according to him, purports to deal only with offences of the first class. He first draws our attention to the fact that the Act is instituted "An Act to provide for the speedier trial of certain offences" and then points out that the purpose of the
Act, as stated in its preamble, also is "to provide for the speedier trial of certain offences". He next refers us to the different sections of the Act and urges that all the procedural changes introduced by the Act are designed to accomplish the object of securing speedier trial. The
Act accordingly empowers the State government to direct the offences, which, in its view, require speedier trial, to be tried by a Special Court according to the special procedure provided by it for the speedier trial of those offences. This construction of the section, he maintains, is consonant with the object of the Act as recited in the preamble and does not offend against the inhibition of article 14 of our Constitution. Learned counsel for the respondents, on the other hand urge that there is no ambiguity whatever in the language used in the sub-section, that there is no indication in the sub-section itself of any restriction or qualification on the power of classification conferred by it on the State government and that the power thus given to the State government cannot be controlled and cut down by calling in aid the preamble of the Act, for the preamble cannot abridge or enlarge the meaning of the plain language of the sub-section. This argument was accepted by the High Court in its application to the other part of the section dealing with selection of "cases" but in judging whether this argument applies, with equal force, to that part of the section I am now considering, it must be borne in mind that, although the preamble of an Act cannot override the plain meaning of the language of its operative parts, it may, nevertheless, assist in ascertaining what the true meaning or implication of a particular section is, for the preamble is, as it were a key to the understanding of the Act. I therefore, proceed to examine this part of section 5(1) in the light of the preamble so as to ascertain the true meaning of it.
I have already stated that this part of the sub-section contemplates a process of classification of "offences", "classes of offences" and "classes of cases". This classification must, in order that it may not infringe the constitutional prohibition, fulfil the two conditions
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I have mentioned. The preamble of the Act under consideration recites the [importance] of providing for the speedier trial of certain offences. The provision for the speedier trial of certain offences is, therefore, the object of the Act. To achieve this object, offences or cases have to be classified upon the basis of some differentia which will distinguish those offences or cases from others and which will have a reasonable relation to the recited object of the Act.
The differentia and the object being, as I have said, different elements, it follows that the object by itself cannot be the basis of the classification of offences or the cases, for, in the absence of any special circumstances which may distinguish one offence or one class of offences or one class of cases from another offence, or class of offences or class of cases, speedier trial is desirable in the disposal of all offences or classes of offences or classes of cases. Offences or cases cannot be classified in two categories on the basis of the preamble alone as suggested by the learned Attorney-General.
Learned counsel for the respondents then contended that as the object of the Act recited in the preamble cannot be the basis of classification, then this part of sub-section 5(1) gives an uncontrolled and unguided power of classification which may well be exercised by the
State government capriciously or "with an evil eye and an unequal hand" so as to deliberately bring about invidious discrimination between man and man, although both of them are situated in exactly the same or similar circumstances. By way of illustration it is pointed out that in the
Indian Penal Code there are different chapters dealing with offences relating to different matters, e.g., Chapter XVII which deals with offences against property, that under this generic head are set forth different species of offences against property, e.g., theft (section 378), theft in a dwelling house (section 380), theft by a servant (section 381), to take only a few examples, and that according to the language of section 5(1) of the impugned Act it will be open to the
State government to direct all offences of theft in a dwelling house under section 380 to be tried by the Special Court according to the special procedure laid down in the Act leaving all offences of theft by a servant under section 381 to be dealt with in the ordinary Court in the usual way.
In other words, if a stranger is charged with theft in a dwelling house, he may be sent up for trial before the Special Court under section 380 whereas if a servant is accused of theft in a dwelling house he may be left to be tried under the Code for an offence under section 381.
The argument is that although there is no apparent reason why an offence of theft in a dwelling house by a stranger should require speedier trial any more than an offence of that in a dwelling house by a servant should do, the State government may nevertheless select the former offence for special and discriminatory treatment in the matter of its trial by bringing it under the Act.
A little reflection will show that this argument is not sound. The part of sub-section 5(1) which
I am now examining confers a power on the State government to make a classification of offences, classes of offences or classes of cases, which, as said by Chakravartti J., "means a proper classification." In order to be a proper classification so as not to offend against the
Constitution it must be based on some intelligible differentia which should have a reasonable relation to the object of the Act as recited in the preamble. In the illustration taken above the two offences are only two species of the same genus, the only difference being that in the first the alleged offender is a stranger and in the latter he is a servant of the owner whose property has been stolen. Even if this difference in the circumstances of the two alleged offenders can be made the basis of a classification, there is no nexus between this difference and the object of the Act, for, in the absence of any special circumstances, there is no apparent reason why the offence of theft in a dwelling house by a stranger should require a speedier trial any more than the offence of theft by a servant should do. Such classification will be wholly arbitrary and will be liable to be his by the principles on which the Supreme Court of the United States in Skinner v. Oklahoma, 216 U.S. 535, struck down the Oklahoma Habitual Criminal
Sterilisation Act which imposed sterilisation on a person convicted more than twice of larceny
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but not on one who was convicted of embezzlement on numerous occasions. That sort of classification will, therefore, not clearly be a proper classification such as the Act must be deemed to contemplate.
On the other hand, it is easy to visualise a situation when certain offences, e.g., theft in a dwelling house, by reason of the frequency of their perpetration or other attending circumstances, may legitimately call for a speedier trial and swift retribution by way of punishment to check the commission of such offences. Are we not familiar with gruesome crimes of murder, arson, loot and rape committed on a large scale during communal riots in particular localities and are they not really different from a case of a stray murder, arson, loot or rape in another district which may not be affected by any communal upheaval? Do not the existence of the communal riot and the concomitant crimes committed on a large scale call for prompt and speedier trial in the very interest and safety of the community? May not political murders or crimes against the State or a class of the community e.g., women, assume such proportions as would be sufficient to constitute them into a special class of offences requiring special treatment? Do not these special circumstances add a peculiar quality to these offences or classes of offences or classes of cases which distinguish them from stray cases of similar crimes and is it not reasonable and even necessary to arm the State with power to classify them into a separate group and deal with them promptly I have no doubt in my mind that the surrounding circumstances and the special features I have mentioned above will furnish a very cogent and reasonable basis of classification, for it is obvious that they do clearly distinguish these offences from similar or even same species of offences committed elsewhere and under ordinary circumstances. This differentia quite clearly has a reasonable relation to the object sought to be achieved by the Act, namely, the speedier trial of certain offences. Such a classification will not be repugnant to the equal protection clause of our
Constitution for there will be no discrimination, for whoever may commit the specified offence in the specified area in the specified circumstances will be treated alike and sent up before a special Court for trial under the special procedure. Persons thus sent up for trial by a
Special Court cannot point their fingers to the other persons who may be charged before an ordinary Court with similar or even same species of offences in a different place and in different circumstances and complain of unequal treatment, for those other persons are of a different category and are not their equals. Section 5(1), in so far as it empowers the State government to direct "offences " or "classes of offences" or "classes of cases" to be tried by a
Special Court, also, by necessary implication and intendment, empowers the State government to classify the "offences" or "classes of offences" or "classes of cases", that is to say, to make a proper classification in the sense I have explained.
In my judgment, this part of the section, property construed and understood, does not confer an uncontrolled and unguided power on the State government. On the contrary, this power is controlled by the necessity for making a proper classification which is guided by the preamble in the sense that the classification must have a rational relation to the object of the
Act as recited in the preamble. It is, therefore, not an arbitrary power. I, therefore agree with
Harries, C.J. that this part of section 5(1) is valid. If the State government classifies offences arbitrarily and not on any reasonable basis having a relation to the object of the Act, its action will be either an abuse of its power if it is purposeful or in excess of its powers even if it is done in good faith and in either case the resulting discrimination will encounter the challenge of the Constitution and the Court will strike down, not the law which is good, but the abuse or misuse or the unconstitutional administration of the law creating or resulting in unconstitutional discrimination.
In the present case, however, the State government has not purported to proceed under that part of section 5(1) which I have been discussing so far. It has, on the other hand, acted
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under that part of the section which authorises it to direct "cases" to be tried by the Special
Court, for by the notifications it has directed certain specific cases identified by their individual numbers in the records of the particular thanas to be tried by the Special Court.
There is ostensibly no attempt at, or pretence of, any classification on any basis whatever. The notifications simply direct certain "cases" to be tried by the Special Court and are obviously issued under that part of section 5(1) which authorises the State government to direct "cases" to be tried by the Special Court. The word "cases" has been used to signify a category distinct from "classes of cases". The idea of classification is, therefore, excluded. This means that this part of the sub-section empowers the State Government to pick out or select particular cases against particular persons for being sent up to the Special Court for trial. It is urged by the learned Attorney-General that this selection of cases must also be made in the light of the object of the Act as expressed in its preamble, that is to say, the State Government can only select those cases which, in their view, require speedier trial. Turning to the preamble, I find that the object of the Act is “to provide for the speedier trial of certain offences” and not of a particular case or cases. In other words, this part of section 5(1) lies beyond the ambit of the object laid down in the preamble and, therefore, the preamble can have no manner of application in the selection of "cases" as distinct from "offences", "classes of offences" or
"classes of cases". I agree with Harries C.J. that the preamble cannot control this part of the sub-section where the language is plain and unambiguous. Further, as I have already explained, the object of the Act cannot, by itself, be the basis of the selection which, I repeat, must be based on some differentia distinguishing the "case" from other "cases" and having relation to the object of the Act.
It is difficult, if not impossible, to conceive of an individual "case", as distinct from a
"class of cases", as a class by itself within the rule of permissible and legitimate classification.
An individual case of a crime committed with gruesome atrocity or committed upon an eminent person may shock our moral sense to a greater extent but, on ultimate analysis and in the absence of special circumstances such as I have mentioned, it is not basically different from another individual case of a similar crime although committed with less vehemence or on a less eminent person. In any case, there is no particular bond connecting the circumstances of the first mentioned case with the necessity for a speedier trial. In the absence of special circumstances of the kind I have described above, one individual case, say of murder, cannot require speedier trial any more than another individual case of murder may do. It is, therefore, clear, for the foregoing reasons, that the power to direct "cases" as distinct from "classes of cases" to be tried by a Special Court contemplates and involves a purely arbitrary selection based on nothing more substantial than the whim and pleasure of State Government and without any appreciable relation to the necessity for a speedier trial. Here the law lays an unequal hand on those who have committed intrinsically the same quality of offence. This power must inevitably result in discrimination and this discrimination is, in terms incorporated in this part of the section itself and, therefore, this part of the section itself must incur our condemnation. It is not a question of an unconstitutional administration of a statute otherwise valid on its face but here the unconstitutionality is writ large on the face of the statute itself. I, therefore, agree with the High court that section 5(1) of the Act in so far as it empowers the
State Government to direct "cases" to be tried by a Special Court offends against the provisions of Article 14 and therefore the Special Court had no jurisdiction to try these "cases" of the respondents. In my judgment, the High Court was right in quashing the conviction of the respondents in the one case and in prohibiting further proceedings in the other case and these appeals should be dismissed.
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JUSTICE AIYAR (for himself)
The short question that arises for consideration in these cases is whether the whole, or any portion of the West Bengal Special Courts Act, X of 1950, is invalid as being opposed to equality before the law and the equal protection of the laws guaranteed under article 14 of the
Constitution of India. The facts which have led up to the cases have been stated in the judgments of the High court at Calcutta and their recapitulation is unnecessary. I agree in the conclusion reached by my learned brothers that the appeals should be dismissed and I propose to indicate my views as shortly as possible on a few only of the points raised and discussed.
………
There can be no doubt that as regards the cases to be sent before the Special Court or
Courts, the Act under scrutiny has deviated in many matters of importance from the procedure prescribed by the Criminal Procedure Code for the trial of offences and that this departure has been definitely adverse to the accused. Preliminary inquiry before committal to the sessions, trial by jury or with the aid of assessors, the right of a de novo trial on transfer of a case from one Court to another, have been taken away from the accused who are to be tried by a Special
Court; even graves is section 13, which provides that a person may be convicted of an offence disclosed by the evidence as having been committed by him, even though he was not charged with it and it happens to be a more serious offence. This power of the Special Court is much wider than the powers of ordinary courts. The points of prejudice against the accused which appear in the challenged Act have been pointed out in detail in the judgment of Trevor Harries
C.J. They cannot all be brushed aside as variations of minor and unsubstantial importance.
The argument that changes in procedural law are not material and cannot be said to deny equality before the law or the equal protection of the laws so long as the substantive law remains unchanged or that only the fundamental rights referred to in articles 20 to 22 should be safeguarded is, on the face of is, unsound. The right to equality postulated by article 14 is as much a fundamental right as any other fundamental right dealt with in part III of the
Constitution. Procedural law may and does confer very valuable rights on a person, and their protection must be as much the object of a court 's solicitude as those conferred under substantive law.
The learned Attorney-General contended that if the object of the legislation was a laudable one and had a public purpose in view, as in this case, which provided for the speedier trial of certain offences, the fact that discrimination resulted as a bye-product would not offend the provisions of article 14. His point was that if the inequality of treatment was not specifically intended to prejudice any particular person or group of persons but was in the general interests of administration, it could not be urged that there is a denial of equality before the law. To accept this position would be to neutralize, if not to abrogate altogether, article 14. Almost every piece of legislation has got a public purpose in view and is generally intended, or said to be intended, to promote the general progress of the country and the better administration of
Government. The intention behind the legislation may be unexceptionable and the object sought to be achieved may be praiseworthy but the question which falls to be considered under article 14 is whether the legislation is discriminatory in its nature, and this has to be determined not so much by its purpose or objects but by its effects. There is scarcely any authority for the position taken up by the Attorney-General.
It is well settled that equality before the law or the equal protection of laws does not mean identity or abstract symmetry of treatment. Distinctions have to be made for different classes and groups of persons and a rational or reasonable classification is permitted, as otherwise it would be almost impossible to carry on the work of Government of any State or country. To
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use the felicitous language of Mr. Justice Holmes in Bain Peanut Co. v. Pinson, 282 U.S. 499 at p. 501, "We must remember that the machinery of government could not work if it were not allowed a little play in its joints." The law on the subject has been well stated in a passage from Willis on Constitutional Law (1936 Edition, at page 579) and an extract from the pronouncement of this Court in what is known as the Prohibition Case (State of Bombay and
Another v. F. N. Balsara, [1951] S.C.R. 682), where my learned brother Fazl Ali, J. has distilled in the form of seven principles most of the useful observations of this Court in the
Sholapur Mills case, Chiranjit Lal Chowdhury v. Union of India, [1950] S.C.R. 869.
Willis says :"The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. "It merely requires that all persons subject to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed." "The inhibition of the amendment was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation." It does not take from the states the power to classify either in the adoption of police laws, or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis.
Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis."
The seven principles formulated by Fazl Ali, J. are as follows:"1. The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.
2. The presumption may be rebutted in certain cases by showing that on the face of the statute, there is to classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class.
3. The principle of equality does not mean that every law must have universal application for all persons who are not be nature, attainment or circumstances in the same position, and the varying needs of different classes of persons often require separate treatment.
4. The principle does not take away from the State the power of classifying persons for legitimate purposes.
5. Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough.
6. If a law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.
7. While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis."
After these citations, it is really unnecessary to refer to or discuss in detail most of the
American decisions cited at the Bar. Their number is legion and it is possible to alight on
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decisions in support of propositions, apparently even conflicting, if we divorce them from the context of the particular facts and circumstances and ignore the setting or the back-ground in which they were delivered. With great respect, I fail to see why we should allow ourselves to be unduly weighted-down or over-encumbered in this manner. To say this is not to shut out illumining light from any quarter; it is merely to utter a note of caution that we need not stray far into distant fields and try to clutch at something which may not after all be very helpful.
What we have to find out is whether the statute now in question before us offends to any extent the equal protection of the laws unguaranteed by our written Constitution. Whether the classification, if any, is reasonable or arbitrary, or is substantial or unreal, has to be adjudicated upon by the courts and the decision must turn more on one 's commonsense than on overrefined legal distinctions or subtleties.
The Attorney-General argued that if the principle of classification has to be applied as a necessary test, there is a classification in the impugned Act as it says that it is intended to provide for the speedier trial of certain offences; and in the opinion of the legislature certain offences may require more expeditious trial than other offences and this was a good enough classification. But as speedy administration of justice, especially in the field of the law of crimes, is a necessary characteristic of every civilised Government, there is not much point in stating that there is a class of offences that require such speedy trial. Of course, there may be certain offences whose trial requires priority over the rest and quick progress, owing to their frequent occurrence, grave danger to public peace or tranquillity, and other special features that may be prevalent at a particular time in a specified area. And when it is intended to provide that they should be tried more speedily than other offences, requiring in certain respects a departure from the procedure prescribed for the general class of offences, it is but reasonable to expect the legislature to indicate the basis for any such classification. If the Act does not state what exactly are the offences which in its opinion need a speedier trial and why it is so considered, a mere statement in general words of the object sought to be achieved, as we find in this case, is of no avail because the classification, if any, is illusive or evasive. The policy or idea behind the classification should at least be adumbrated, if not stated, so that the court which has to decide on the constitutionality might be seized of something on which it could base its view about the propriety of the enactment from the standpoint of discrimination or equal protection. Any arbitrary division or ridge will render the equal protection clause moribund or lifeless.
Apart from the absence of any reasonable or rational classification, we have in this case the additional feature of a carte blanche being given to the State Government to send any offences or cases for trial by a Special Court. Section 5, sub-clause, of the impugned Act is in these terms:"A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may, by general or special order in writing, direct." If the scope or the meaning of the Act is doubtful, the preamble can be referred to for ascertaining its extent and purpose. But where the operative parts of the Act are clear and there is no ambiguity, the preamble cannot be allowed to control the express provisions. On the terms of section 5, it would be perfectly open to the State Government to send before the
Special Court any case, whatever its nature, whether it has arisen out of a particular incident or relates to a crime of normal occurrence, whether the offence involved is grave or simple, whether it needs more expeditious trial or not. Thus, we have before us an enactment which does not make any reasonable classification and which confers on the executive an uncontrolled and unguided power of discrimination.
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The question whether there is any proper classification where no standard is set up by the enactment to control executive action has arisen for consideration before the American courts and has been differently answered. Willis says at page 586:"Is it proper classification to put in one class those who get the consent of a board or of an official and into another class those who do not, where no standard is set up to control the action of the board or official? Some cases answer this question in the affirmative, while other cases answer it in the negative. Perhaps the best view on this subject is that due process and equality are not violated by the mere conference of unguided power, but only by its arbitrary exercise by those upon whom it is conferred."
The case cited in support of this view, Plymouth Coal Co. v. Pennsylvania, 232 U.S. 532, is really no authority for any such position. In that case, the statute provided that it was
"obligatory on the owners of adjoining coal properties to leave, or cause to be left, a pillar of coal in each seam or vein of coal worked by them, along the line of adjoining property, of such width that, taken in connection with the pillar to be left by the adjoining property owner, will be a sufficient barrier for the safety of the employees of either mine in case the other should be abandoned and allowed to fill with water; such width of pillar to be determined by the engineers of the adjoining property owners together with the inspector of the district in which the mine is situated." When the Inspector of Mines wrote to the plaintiff company,
Plymouth Coal Co., asking their engineer to meet him so that they can meet the engineer of the neighboring coal company to decide about the thickness of the barrier pillar to be left unmined between the two adjoining coal properties, the plaintiff company declined to cooperate. Thereupon the Inspector filed a bill of complaint against the plaintiff company for a preliminary and a perpetual injunction from working its mines - without leaving a barrier pillar of the dimensions he thought necessary. The plaintiff company urged that the Act upon which the bill was based "was confiscator, unconstitutional, and void". The bill of complaint succeeded but it was provided in the final order that it was without prejudice to the Plymouth
Coal Co. 's right to get dissolution or modification of the injunction. The matter came up on appeal to the Supreme Court. The legislative Act was challenged by the Plymouth Coal Co. on the grounds that the method of fixing the width of the barrier pillar indicated in the Act was crude, uncertain and unjust, that there was uncertainty and want of uniformity in the membership of the statutory tribunal, that there was no provision of notice to the parties interested, that the procedure to be followed was not prescribed, and that there was no right of appeal. All these objections were negatived. The Court observed on the main contention that
"it was competent for the legislature to lay down a general rule, and then establish an administrative tribunal with authority to fix the precise width or thickness of pillar that will suit the necessities of the particular situation, and constitute a compliance with the general rule." This case is no authority for the position that the mere conferment of naked or uncontrolled power is no violation of the due process or equality clauses. It is true that the power to deal with a particular situation within the general rule prescribed by the enactment may be conferred on an administrative body or even on a single individual but this entrustment or delegation is subject to the condition that the statute must itself be a valid one, as not being opposed to the 5th or 14th Amendment of the American Constitution, corresponding to articles 14 and 22 of our Constitution.
85. Discrimination may not appear in the statute itself but may be evident in the administration of the law. If an uncontrolled or unguided power is conferred without any reasonable and proper standards or limits being laid down in the enactment, the statute itself may be challenged and not merely the particular administrative act. Citing the case of Sunday Lake
Iron Co. v. Wakefield, Rogers v. Alabama, and Concordia Fire Ins. Co. v. Illinois, Prof.
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Weaver says at page 404 of his compendious book on Constitutional Law under the heading of "DISCRIMINATION IN THE ADMINISTRATION OF THE LAWS ' :"Discrimination may exist in the administration of the laws and it is the purpose of the equal protection clause to secure all the inhabitants of the state from intentional and arbitrary discrimination arising in their improper or prejudiced execution, as well by the express terms of the law itself. The validity or invalidity of a statute often depends on how it is construed and applied. It may be valid when given a particular application and invalid when given another."
A difficulty was suggested and discussed in the course of the arguments in case article 14 was to receive a very wide interpretation. Under article 12 of the Constitution, even a local authority comes within the definition of "the State" and section 13 provides in subclause that " 'law ' includes any ordinance, order, bye- law, rule, regulation, notification…".
Therefore any ordinance or notification issued by a local authority acting under the powers conferred on it by a statute might be challenged as discriminatory and if this is permitted, the work of administration might be paralysed altogether. This no doubt, is a possible result but the difficulty envisaged is by no means insurmountable. If the statute or the enactment makes a reasonable or rational classification and if the power conferred by the statute on a local authority is exercised to the prejudice of a person vis a vis other persons similarly situated, two answers would be possible. One is that there was no discrimination at all in the exercise of the power. The second is that the power was exercised in good 'faith within the limitations imposed by the Act and for the achievement of the objects the enactment had in view and that the person who alleges that he has been discriminated against will have to establish mala fides in the sense that the step was taken intentionally for the purpose of injuring him; in other words, it was a hostile act directed against him. If the legislation itself is open to attack on the ground of discrimination, the question of any act done by a local or other authority under the power or powers vested in it will not arise, If the Act itself is invalid on the ground that it is ultra vires, the notification, ordinance, or rule falls to the ground with it, but if the Act remains, the validity of the notification or order etc., when impugned, may have to be considered independently. There may be cases where individual acts of state officials are questioned and not the legislation itself. As regards such cases, Willoughby states at page 1932 of his Volume III on the Constitution of the United States:"It is, however, to be observed in this connection, that the prohibitions apply to the acts of State officials even when they are done in pursuance of some State legislative direction, for, while no constitutional objection may be made to any law of the State, it has been held that its officials may exercise their public authority in such a discriminatory or arbitrary manner as to bring them within the scope of the prohibitions of the Fourteenth Amendment. This, it will be remembered, was one of the grounds upon which, in Yick Wo V. Hopkins, 118
U.S. 356 it was held that due process of law had been denied. In Tarrance v.
Florida, 188 U.S. 519 the administration of a State law and not the law itself was challenged and the court said: 'Such an actual discrimination is as potential in creating a denial of equality of rights as discrimination made by law. '"
There is only one other point that I would like to deal with. Trevor Harries, C.J. has taken the view that section 5 of the Act would have been unexceptionable had it only provided for the trial by a Special Court of certain offences or classes of offences or certain classes of cases and that in his opinion the discrimination arose by the provision for the trial of cases, as distinguished from classes of cases. It is rather difficult, however, to appreciate this distinction. If the statute makes no classification at all, or if the classification purported to be made is not reasonable or rational but is arbitrary and illusory, as in this case, Section 5 would be void as contravening article, 14. It is no doubt true that totally different considerations
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might arise if specified offences or groups of offences in a particular area or arising out of a particular event or incident were to be tried by a Special Court but this is not the case here. I am unable to see how if the Act merely provided that certain "classes of cases" as distinguished from "cases" should be tried by a Special Court, the attack against discrimination could be avoided, as even then the test of rationality or reasonableness would still remain to be satisfied.
If the Act does not enunciate any principle on the basis of which the State Government could select offences of classes of offences or cases or classes of cases and the State Government is left free to make any arbitrary selection according to their will and pleasure then the Act is void. On this point, I would invite special attention to the view taken by Mr. Justice Das Gupta in the following passage of his judgment:"The Act lays down no principle on which selection of "classes of offences" or
"classes of cases" should be made by the State Government. The State
Government may even arbitrarily determine the classes of cases to be tried by the
Special Court and if it does so its action will be well within its powers conferred by the Act. The Act indicates no basis whatsoever on which such classification should be made. I am of opinion that the whole Act is ultra vires the Constitution and deletion of the word "cases" from section 5 would not save the rest of the Act from being invalid."
JUSTICE BOSE (for himself)
We are concerned here with article 14 of the Constitution and in particular with the words
"equality before the law" and "equal protection of the law." Now I yield to none in my insistence that plain unambiguous words in a statute, or in the Constitution, must having regard to the context, be interpreted according to their ordinary meaning and be given full effect. But that predicates a position where the words are plain and unambiguous. I am clear that that is not the case here.
Take first the words "equality before the law". It is to be observed that equality in the abstract is not guaranteed but only equality before the law. That at once leads to the question, what is the law, and whether "the law" does not draw distinctions between man and man and make for inequalities in the sense of differentiation? One has only to look to the differing personal laws which are applied daily to see that it does; to trusts and foundations from which only one particular race or community may benefit, to places of worship from which all but members of particular faith are excluded, to cemeteries and towers of silence which none but the faithful may use to the laws of property, marriage and divorce. All that is part and parcel of the law of the land and equality before it in any literal sense is impossible unless these laws are swept away, but that is not what the Constitution says, for these very laws are preserved and along with equality before the law is also guaranteed the right to the practice of one 's faith.
Then, again, what does "equality" mean? All men are not alike. Some are rich and some are poor. Some by the mere accident of birth inherit riches, others are born to poverty. There are differences in social standing and economic status. High sounding phrases cannot alter such fundamental facts. It is therefore impossible to apply rules of abstract equality to conditions which predicate inequality form the start; and yet the words have meaning though in my judgment their true content is not to be gathered by simply taking the words in one hand and a dictionary in the other, for the provisions of the Constitution are not mathematical formulae which have their essence in mere form. They constitute a frame-work of government written for men of fundamentally differing opinions and written as much for the future as the present. They are not just pages from a text book but form the means of ordering the life of a progressive people. There is consequently grave danger in endeavoring to confine them in watertight compartments made up of ready-made generalisations like classification. I have no
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doubt those tests serve as a rough and ready guide in some cases but they are not the only tests, nor are they the true tests on a final analysis.
What, after all, is classification? It is merely a systematic arrangement of things into groups or classes, usually in accordance with some definite scheme. But the scheme can be anything and the laws which are laid down to govern the grouping must necessarily be arbitrarily selected; also granted the right to select, the classification can be as broad based as one pleases, or it can be broken down and down until finally just one solitary unit is divided off from the rest. Even those who propound this theory are driven to making qualifications.
Thus, it is not enough merely to classify but the classification must not be 'discriminatory ', it must not amount to 'hostile action ', there must be 'reasonable grounds for distinction ', it must be 'rational ' and there must be no 'substantial discrimination '. But what then becomes of the classification and who are to be the judges of the reasonableness and the substantiality or otherwise of the discrimination? And, much more important, whose standards of reasonableness are to be applied? - the judges? - the government 's? - or that of the mythical ordinary reasonable man of law which is no single man but a composite of many men whose reasonableness can be measured and gauged even though he can neither be seen nor heard nor felt? With the utmost respect I cannot see how these vague generalisations serve to clarify the position. To my mind they, do not carry us one whit beyond the original words and are no more satisfactory than saying-that all men are equal before the law and that all shall be equally treated and be given equal protection. The problem is not solved by substituting one generalisation for another.
To say that the law shall not be discriminatory carries us nowhere for unless the law is discriminatory the question cannot arise. The whole problem is to pick out from among the laws which make for differentiation the ones which do not offend article 14 and separate them from those which do. It is true the word can also be used in the sense of showing favouritism, but in so far as it means that, it suffers from the same defect as the 'hostile action ' test. We are then compelled to import into the question the clement of motive and delve into the minds of those who make the differentiation or pass the discriminatory law and thus at once substitute a subjective test for an objective analysis.
I would always be slow to impute want of good faith in these cases. I have no doubt that the motive, except in rare cases, is beyond reproach and were it not for the fact that the
Constitution demands equality of treatment these laws would, in my opinion, be valid. But that apart. What material have we for delving into the mind of a legislature? It is useless to say that a man shall be judged by his acts, for acts of this kind can spring from good motives as well as had, and in the absence of other material the presumption must be overwhelmingly in favour of the former.
I can conceive of cases, where there is the utmost good faith and where the classification is scientific and rational and yet which would offend this law. Let us take an imaginary cases in which a State legislature considers that all accused persons whose skull measurements are below a certain standard, or who cannot pass a given series of intelligence tests, shall be tried summarily whatever the offence on the ground that the less complicated the trial the fairer it is to their sub-standard of intelligence. Here is classification. It is scientific and systematic.
The intention and motive are good. There is no question of favouritism, and yet I can hardly believe that such a law would be allowed to stand. But what would be the true basis of the decision? Surely simply this that the judges would not consider that fair and proper. However much the real ground of decision may be hidden behind a screen of words like 'reasonable ', 'substantial ', 'rational ' and 'arbitrary ' the fact would remain that judges are substituting their own judgment of what is right and proper and reasonable and just for that of the legislature; and up to a point that, I think, is inevitable when a judge is called upon to crystallise a vague
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generality like article 14 into a concrete concept. Even in England, where Parliament is supreme, that is inevitable, for, as Dicey tells us in his Law of the Constitution:
"Parliament is the supreme legislator, but from, the moment Parliament has uttered its will as law-giver, that will becomes subject to the interpretation put upon it by the judges of the land, and the judges, who are influenced by the feelings of magistrates no less than by the general spirit of the common law, are disposed to construe statutory exceptions to common law principles in a mode which would not commend itself either to a body of officials, or the Houses of
Parliament, if the Houses were called upon to interpret their own enactments."
This, however, does not mean that judges are to determine what is for the good of the people and substitute their individual and personal opinions for that of the government of the day, or that they may usurp the functions of the legislature. That is not their province and though there must always be a narrow margin within which judges, who are human, will always be influenced by subjective factors, their training and their tradition makes the main body of their decisions speak with the same voice and reach impersonal results whatever their personal predilections or their individual backgrounds. It is the function of the legislature alone, headed by the government of the day, to determine what is, and what is not, good and proper for the people of the land and they must be given the widest latitude to exercise their functions within the ambit of their powers, else all progress is barred. But, because of the
Constitution, there are limits beyond which they cannot go and even though it falls to the lot of judges to determine where those limits, lie, the basis of their decision cannot be whether the Court thinks the law is for the benefit of the people of not. Cases of this type must be decided solely on the basis whether the Constitution forbids it.
I realise that this is a function which is incapable of exact definition but I do not view that with dismay. The common law of England grew up in that way. It was gradually added to as each concrete case arose and a decision, was given ad hoc on the facts of that particular case.
It is true the judges who thus contributed to its growth were not importing personal predilections into the result and merely stated what was the law applicable to that particular case. But though they did not purport to make the law and merely applied what according to them, had always been the law handed down by custom and tradition, they nevertheless had to draw for their material on a nebulous mass of undefined rules which though they existed in fact and left a vague awareness in man 's minds, nevertheless were neither clearly definable not even necessarily identificable, until crystalised into concrete existence by a judicial decision; not indeed is it necessary to travel as far afield. Much of the existing Hindu law has grown up in that way from instance to instance, the threads being gathered not from the rishis, now from custom, now from tradition. In the same way, the laws of liberty, of freedom and of protection under the Constitution will also slowly assume recognisable shape as decision is added to decision. They cannot, in my judgment, be enunciated in static from by hidebound rules and arbitrarily applied standards or tests.
I find it impossible to read these portions of the Constitution without regard to the background out of which they arose. I cannot blot out their history and omit from consideration the brooding spirit of the times. They are not just dull, lifeless words static and hide- bound as in some mummified manuscript, but, living flames intended to give life to a great nation and order its being, tongues of dynamic fire, potent to mould the future as well as guide the present. The Constitution must, in myy judgment, be left elastic enough to meet from time to time the altering conditions of a changing would with its shifting emphasis and differing needs. I feel therefore that in each case judges must look straight into the heart of things and regard the facts of each case concretely much as a jury would do; and yet, not quite as a jury, for we are considering here a matter of law and not just one of fact; Do these "laws" which have been called in question offend a still greater law before which even they must bow?
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Doing that, what is the history of these provisions? They arose out of the fight for freedom in this land and are but the endeavour to compress into a few pregnant phrases some of the main attributes of a sovereign democratic republic as seen through Indian eyes. There was present to the collective mind of the Constituent Assembly, reflecting the mood of the peoples of India, the memory of grim trials by hastily constituted tribunals with novel forms of procedure set forth in Ordinances promulgated in baste because of what was then felt to be the urgent necessities of the moment. Without casting the slightest reflection of the judges and the Courts so constituted, the fact remains that when these tribunals were declared invalid and the same persons were retired in the ordinary Courts, many were acquitted, many who had been sentenced to death were absolved. That was not the fault of the judges but of the imperfect tools with which they were compelled to work. The whole proceedings were repugnant to the peoples of this land, and to my mind, article 14 is but a reflex of this mood.
What I am concerned to see is not whether there is absolute equality in any academical sense of the term but whether the collective conscience of a sovereign democratic republic can regard the impugned law, contrasted with the ordinary law of the land, as the sort of substantially equal treatment which men of resolute minds and unbiased views can regard as right and proper in a democracy of the kind we have proclaimed ourselves to be. Such views must take into consideration the practical necessities of government, the right to alter the laws and many other facts, but in the forefront must remain the freedom of the individual from unjust and unequal treatment, unequal in the broad sense in which a democracy would view it. In my opinion, 'law ' as used in article 14 does not mean the "legal precepts which are actually recognised and applied in tribunals of a given time and place" but "the more general body of doctrine and tradition from which those precepts are chiefly drawn, and by which we criticise, them." (Dean Pound in 34 Harvard Law Review 449 at 452).
I grant that this means that the same things will be viewed differently at different times.
What is considered right and proper in a given set of circumstances will be considered improper in another age and vice versa. But that will not be because the law has changed but because the times have altered and it is no longer necessary for government to wield the powers which were essential in an earlier and more troubled world. That is what I mean by flexibility of interpretation.
This is no new or starting doctrine. It is just what happened in the cases of blasphemy and sedition in England. Lord Summer has explained this Bowman 's case, [1917] A.C. 406 at 454,
466 and 467 and the Federal Court in Niharendu Dutt Majumder 's case, [1942] F.C.R. 32 at
42 and so did Puranik J. and I in the Nagpur High Court in Bhagwati Charan Shukla 's case I.L.R. 1946 Nag. 865 at 878 and 879.
Coming now to the concrete cases with which we have to deal here. I am far from suggesting that the departures made from the procedure prescribed by the Criminal Procedure
Code are had or undesirable in themselves. Some may be good in the sense that they will better promote the ends of justice and would thus from welcome additions to the law of the land.
But I am not here to consider that. That is no part of a Judge 's province. What I have to determine is whether the differentiation made offends what I may call the social conscience of a sovereign democratic republic. That is not a question which can be answered in the abstract, but, viewed in the background of our history, I am of opinion that it does. It is not that these laws are necessarily had in themselves. It is the differentiation, which matters; the singling out of cases or groups of cases, or even of offences or classes of offences, of a kind fraught with the most serious consequences to the individuals concerned, for special, and what some would regard as peculiar, treatment.
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It may be that justice would be fully done by following the new procedure. It may even be that it would be more truly done. But it would not be satisfactorily done, satisfactory that is to say not from the point of view of the governments, who prosecute, but satisfactory in the view of the ordinary reasonable man, the man in the street. It is not enough that justice should be cone. Justice must also be seen to be done and a sense of satisfaction and confidence in it engendered. That cannot be when Ramchandra is tried by one procedure and Sakharam, similarly placed, facing equally serious charges, also answering for his life and liberty, by another which differs radically from the first.
The law of the Constitution is not only for those who govern or for the theorist, but also for the bulk of the people for the common man for whose benefit and pride and safeguard the
Constitution has also been written. Unless and until these fundamental provisions are altered by the constituent processes of Parliament they must be interpreted in a sense which the common man, not versed in the niceties of grammar and dialectical logic, can understand and appreciate so that he may have faith and confidence and unshaken trust in that which has been enacted for his benefit and protection.
Tested in the light of these considerations. I am of opinion that the whole of the West
Bengal Special Courts Act of 1950 offends the provisions of article 14 and is therefore bad.
When the forth and the foam of discussion is cleared away and learned dialectics placed on one side, we reach at last the human element which to my mind is the most important of all.
We find men accused of heinous crimes called upon answer for their lives and liberties. We find picked out from their fellows, and however the new procedure may give them a few crumb of advantage, in the bulk they are deprived of substantial and valuable privileges of defence which others, similarly charged, are able to claim. It matters not to me, nor indeed to them and their families and their friends, whether this be done in good faith, whether it be done for the convenience of government, whether the process can be scientifically classified and labelled, or whether it is an experiment in speedier trials made for the good of society at large. It matters not how lofty and laudable the motives are. The question with which I charge myself is, can fair-minded, reasonable unbiased and resolute men, who are not swayed by emotion or prejudice, regard this with equanimity and call it reasonable, just and fair, regard it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic, in the condition which obtain in India today? I have but one answer to that. On that short and simple ground I would decide this case and hold the Act bad.
Appeals dismissed.
DOCTRINE OF ARBITRARINESS
NATURAL RESOURCES ALLOCATION, IN RE SPECIAL REFERENCE NO. 1 OF 2012
(2012) 10 SCC 1
Decided On: September 27, 2012
BENCH – CHIEF JUSTICE S. H. KAPADIA, D. K. JAIN, J. S. KHEHAR, DIPAK MISRA & RANJAN
GOGOI
JUSTICE JAIN (for the Chief Justice, Justices Misra, Gogoi & himself, MAJORITY OPINION) [Justice
Khehar CONCURRING but wrote his separate opinion]
In exercise of powers conferred under Article 143(1) of the Constitution of India, the
President of India has on 12th April, 2012, made the present Reference. The full text of the
Reference (sans the annexures) is as follows:
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WHEREAS in 1994, the Department of Telecommunication, Government of
India ("GOI"), issued 8 Cellular Mobile Telephone Services Licenses ("CMTS
Licenses"), 2 in each of the four Metro cities of Delhi, Mumbai, Kolkata and
Chennai for a period of 10 years (the "1994 Licenses"). The 1994 licensees were selected based on rankings achieved by them on the technical and financial evaluation based on parameters set out by the GoI in the tender and were required to pay a fixed licence fee for initial three years and subsequently based on number of subscribers subject to minimum commitment mentioned in the tender document and licence agreement. The 1994 Licenses issued by GoI mentioned that a cumulative maximum of upto 4.5 MHz in the 900 MHz bands would be permitted based on appropriate justification. There was no separate upfront charge for the allocation of Spectrum to the licensees, who only paid annual Spectrum usage charges, which will be subject to revision from time to time and which under the terms of the license bore the nomenclature "licence fee and royalty". A copy of the 1994 Licenses, along with a table setting out the pre-determined
Licence Fee as prescribed by DoT in the Tender, is annexed hereto as Annexure
I (Colly).
WHEREAS in December 1995, 34 CMTS Licenses were granted based on auction for 18 telecommunication circles for a period of 10 years (the "1995
Licenses"). The 1995 Licenses mentioned that a cumulative maximum of up to
4.4 MHz in the 900 MHz bands shall be permitted to the licensees, based on appropriate justification. There was no separate upfront charge for allocation of spectrum to the licensees who were also required to pay annual spectrum usage charges, which under the terms of the license bore the nomenclature "licence fee and royalty" which will be subject to revision from time to time. A copy of the
1995 Licenses, along with a table setting out the fees payable by the highest bidder, is annexed hereto as Annexure II (Colly).
WHEREAS in 1995, bids were also invited for basic telephone service licenses
("BTS Licenses") with the license fee payable for a 15 year period. Under the terms of the BTS Licenses, a licensee could provide fixed line basic telephone services as well as wireless basic telephone services. Six licenses were granted in the year 1997-98 by way of auction through tender for providing basic telecom services (the "1997 BTS Licenses"). The license terms, inter-alia, provided that based on the availability of the equipment for Wireless in Local Loop (WLL), in the world market, the spectrum in bands specified therein would be considered for allocation subject to the conditions mentioned therein. There was no separate upfront charge for allocation of spectrum and the licensees offering the basic wireless telephone service were required to pay annual Spectrum usage charges, which under the terms of the license bore the nomenclature "licence fee and royalty". A sample copy of the 1997 BTS Licenses containing the table setting out the license fees paid by the highest bidder is annexed hereto as Annexure
III (Colly).
WHEREAS in 1997, the Telecom Regulatory Authority of India Act, 1997 was enacted and the Telecom Regulatory Authority of India (the "TRAI") was established. WHEREAS on 1st April, 1999, the New Telecom Policy 1999 ("NTP 1999") was brought into effect on the recommendation of a Group on Telecom ("GoT") which had been constituted by GoI. A copy of NTP 1999 is annexed hereto as Annexure
IV. NTP 1999 provided that Cellular Mobile Service Providers ("CMSP") would be granted a license for a period of 20 years on the payment of a one-time entry fee and licence fee in the form of revenue share. NTP 1999 also provided that
BTS (Fixed Service Provider or FSP) Licenses for providing both fixed and wireless (WLL) services would also be issued for a period of 20 years on payment of a one-time entry fee and licence fee in the form of revenue share and prescribed charges for spectrum usage, appropriate level of which was to be recommended by TRAI. The licensees both cellular and basic were also required to pay annual
Spectrum usage charges.
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WHEREAS based on NTP 1999, a migration package for migration from fixed license fee to one time entry fee and licence fee based on revenue share regime was offered to all the existing licenses on 22nd July, 1999. This came into effect on 1st August 1999. Under the migration package, the licence period for all the
CMTS and FSP licensees was extended to 20 years from the date of issuance of the Licenses.
WHEREAS in 1997 and 2000, CMTS Licenses were also granted in 2 and 21
Circles to Mahanagar Telephone Nigam Limited ("MTNL") and Bharat Sanchar
Nigam Limited ("BSNL") respectively (the "PSU Licenses"). However, no entry fee was charged for the PSU Licenses. The CMTS Licenses issued to BSNL and
MTNL mentioned that they would be granted GSM Spectrum of 4.4 + 4.4 MHz in the 900 MHz band. The PSU Licensees were also required to pay annual spectrum usage charges. A copy of the PSU Licenses is annexed hereto as Annexure V (Colly).
WHEREAS in January 2001, based on TRAI 's recommendation, DoT issued guidelines for issuing CMTS Licenses for the 4th Cellular Operator based on tendering process structured as "Multistage Informed Ascending Bidding
Process". Based on a tender, 17 new CMTS Licenses were issued for a period of
20 years in the 4 Metro cities and 13 Telecom Circles (the "2001 Cellular
Licenses"). The 2001 Licenses required that the licensees pay a one-time nonrefundable entry fee as determined through auction as above and also annual license fee and annual spectrum usage charges and there was no separate upfront charge for allocation of spectrum. In accordance with the terms of tender document, the license terms, inter-alia, provided that a cumulative maximum of upto 4.4 MHz + 4.4 MHz will be permitted and further based on usage, justification and availability, additional spectrum upto 1.8 MHz + 1.8 MHz making a total of 6.2 MHz + 6.2 MHz, may be considered for assignment, on case by case basis, on payment of additional Licence fee. The bandwidth upto maximum as indicated i.e. 4.4 MHz & 6.2 MHz as the case may be, will be allocated based on the Technology requirements (e.g. CDMA @ 1.25 MHz, GSM
@ 200 KHz etc.). The frequencies assigned may not be contiguous and may not be same in all cases, while efforts would be made to make available larger chunks to the extent feasible. A copy of the 2001 Cellular Licenses, along with a table setting out the fees payable by the highest bidder, is annexed hereto as Annexure
VI.
WHEREAS in 2001, BTS Licenses were also issued for providing both fixed line and wireless basic telephone services on a continual basis (2001 Basic Telephone
Licenses). Service area wise one time Entry Fee and annual license fee as a percentage of Adjusted Gross Revenue (AGR) was prescribed for grant of BTS
Licenses. The licence terms, inter-alia, provided that for Wireless Access System in local area, not more than 5 + 5 MHz in 824-844 MHz paired with 869-889 MHz band shall be allocated to any basic service operator including existing ones on
FCFS basis. A detailed procedure for allocation of spectrum on FCFS basis was given in Annexure-IX of the 2001 BTS license. There was no separate upfront charge for allocation of spectrum and the Licensees were required to pay revenue share of 2% of the AGR earned from wireless in local loop subscribers as spectrum charges in addition to the one time entry fee and annual license fee. A sample copy of the 2001 Basic Telephone License along with a table setting out the entry fees is annexed hereto as Annexure VII.
WHEREAS on 27th October, 2003, TRAI recommended a Unified Access
Services Licence ("UASL") Regime. A copy of TRAI 's recommendation is annexed hereto as Annexure VIII.
WHEREAS on 11.11.2003, Guidelines were issued, specifying procedure for migration of existing operators to the new UASL regime. As per the Guidelines, all applications for new Access Services License shall be in the category of
Unified Access Services Licence. Later, based on TRAI clarification dated
14.11.2003, the entry fee for new Unified Licensee was fixed same as the entry fee of the 4th cellular operator. Based on further recommendations of TRAI dated
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19.11.2003, spectrum to the new licensees was to be given as per the existing terms and conditions relating to spectrum in the respective license agreements. A copy of the Guidelines dated 11.11.2003 is annexed hereto as Annexure IX.
WHEREAS consequent to enhancement of FDI limit in telecom sector from 49% to 74%, revised Guidelines for grant of UAS Licenses were issued on 14.12.2005.
These Guidelines, inter-alia stipulate that Licenses shall be issued without any restriction on the number of entrants for provision of Unified Access Services in a Service Area and the applicant will be required to pay one time non-refundable
Entry, annual License fee as a percentage of Adjusted Gross Revenue (AGR) and spectrum charges on revenue share basis. No separate upfront charge for allocation of spectrum was prescribed. Initial Spectrum was allotted as per UAS
License conditions to the service providers in different frequency bands, subject to availability. Initially allocation of a cumulative maximum up to 4.4 MHz + 4.4
MHz for TDMA based systems or 2.5 MHz + 2.5 MHz for CDMA based systems subject to availability was to be made. Spectrum not more than 5 MHz + 5 MHz in respect of CDMA system or 6.2 MHz + 6.2 MHz in respect of TDMA based system was to be allocated to any new UAS licensee. A copy of the UASL
Guidelines dated 14.12.2005 is annexed hereto asAnnexure X.
WHEREAS after the introduction of the UASL in 2003 and until March 2007,
51 new UASL Licenses were issued based on policy of First Come-First Served, on payment of the same entry fee as was paid for the 2001 Cellular Licenses (the
"2003-2007 Licenses") and the spectrum was also allocated based on FCFS under a separate wireless operating license on case by case basis and subject to availability. Licensees had to pay annual spectrum usage charges as a percentage of AGR, there being a no upfront charge for allocation of spectrum. A copy of the
2003-2007 License, along with a table setting out the fees payable, is annexed hereto as Annexure XI (Colly).
WHEREAS on 28th August 2007, TRAI revisited the issue of new licenses, allocation of Spectrum, Spectrum charges, entry fees and issued its recommendations, a copy of which is annexed hereto as Annexure XII. TRAI made further recommendations dated 16.07.2008 which is annexed hereto as Annexure XIII.
WHEREAS in 2007 and 2008, GoI issued Dual Technology Licences, where under the terms of the existing licenses were amended to allow licensees to hold a license as well as Spectrum for providing services through both GSM and
CDMA network. First amendment was issued in December, 2007. All licensees who opted for Dual Technology Licences paid the same entry fee, which was an amount equal to the amount prescribed as entry fee for getting a new UAS licence in the same service area. The amendment to the license inter-alia mentioned that initially a cumulative maximum of upto 4.4 MHz + 4.4 MHz was to be allocated in the case of TDMA based systems (@ 200 KHz per carrier or 30 KHz per carrier) and a maximum of 2.5 MHz + 2.5 MHz was to be allocated in the case of
CDMA based systems (@ 1.25 MHz per carrier), on case by case basis subject to availability. It was also, inter-alia, mentioned that additional spectrum beyond the above stipulation may also be considered for allocation after ensuring optimal and efficient utilization of the already allocated spectrum taking into account all types of traffic and guidelines/criteria prescribed from time to time. However, spectrum not more than 5 + 5 MHz in respect of CDMS system and 6.2 + 6.2 MHz in respect of TDMA based system was to be allocated to the licensee. There was no separate upfront charge for allocation of Spectrum. However, Dual Technology licensees were required to pay Spectrum usage charges in addition to the license fee on revenue share basis as a percentage of AGR. Spectrum to these licensees was allocated 10.01.2008 onwards.
WHEREAS Subscriber based criteria for CMTS was prescribed in the year 2002 for allocation of additional spectrum of 1.8 + 1.8 MHz beyond 6.2 + 6.2 MHz with a levy of additional spectrum usage charge of 1% of AGR. The allocation criteria was revised from time to time. A copy of the DoT letter dated 01.02.2002 in this regard is annexed hereto as Annexure XIV.
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WHEREAS for the spectrum allotted beyond 6.2 MHz, in the frequency allocation letters issued by DoT May 2008 onwards, it was mentioned inter-alia that allotment of spectrum is subject to pricing as determined in future by the GoI for spectrum beyond 6.2 MHz + 6.2 MHz and the outcome of Court orders.
However, annual spectrum usage charges were levied on the basis of AGR, as per the quantum of spectrum assigned. A sample copy of the frequency allocation letter is annexed hereto as Annexure XV.
WHEREAS Spectrum for the 3G Band (i.e. 2100 MHz band) was auctioned in
2010. The terms of the auction stipulated that, for successful new entrants, a fresh license agreement would be entered into and for existing licensees who were successful in the auction, the license agreement would be amended for use of
Spectrum in the 3G band. A copy of the Notice inviting Applications and
Clarifications thereto are annexed hereto and marked as Annexure XVI (Colly).
The terms of the amendment letter provided, inter alia, that the 3G spectrum would stand withdrawn if the license stood terminated for any reason. A copy of the standard form of the amendment letter is annexed hereto and marked as Annexure XVII.
WHEREAS letters of intent were issued for 122 Licenses for providing 2G services on or after 10 January 2008, against which licenses (the "2008 Licenses") were subsequently issued. However, pursuant to the judgment of this Hon 'ble
Court dated 2nd February, 2012 in Writ Petition (Civil) No. 423 of 2010 (the
"Judgment"), the 2008 Licenses have been quashed. A copy of the judgment is annexed hereto and marked Annexure XVIII.
WHEREAS the GoI has also filed an Interlocutory Application for clarification of the Judgment, wherein the GoI has placed on record the manner in which the auction is proposed to be held pursuant to the Judgment and sought appropriate clarificatory orders/directions from the Hon 'ble Court. A copy of the Interlocutory
Application is annexed hereto and marked as Annexure XIX.
WHEREAS while the GoI is implementing the directions set out in the Judgment at paragraph 81 and proceeding with a fresh grant of licences and allocation of spectrum by auction, the GoI is seeking a limited review of the Judgment to the extent it impacts generally the method for allocation of national resources by the
State. A copy of the Review Petition is annexed hereto and marked as Annexure
XX.
WHEREAS by the Judgment, this Hon 'ble Court directed TRAI to make fresh recommendations for grant of licenses and allocation of Spectrum in the 2G band by holding an auction, as was done for the allocation of Spectrum for the 3G licenses. WHEREAS, in terms of the directions of this Hon 'ble Court, GoI would now be allocating Spectrum in the relevant 2G bands at prices discovered through auction.
WHEREAS based on the recommendations of TRAI dated 11.05.2010 followed by further clarifications and recommendations, the GoI has prescribed in February
2012, the limit for spectrum assignment in the Metro Service Areas as
2x10MHz/2x6.25 MHz and in rest of the Service Areas as 2x8MHz/2x5 MHz for
GSM (900 MHz, 1800 MHz band)/CDMA(800 MHZ band), respectively subject to the condition that the Licensee can acquire additional spectrum beyond prescribed limit in the open market should there be an auction of spectrum subject to the further condition that total spectrum held by it does not exceed the limits prescribed for merger of licenses i.e. 25% of the total spectrum assigned in that
Service Area by way of auction or otherwise. This limit for CDMS spectrum is
10 MHz.
WHEREAS, in view of the fact that Spectrum may need to be allocated to individual entities from time to time in accordance with criteria laid down by the
GoI, such as subscriber base, availability of Spectrum in a particular circle, interse priority depending on whether the Spectrum comprises the initial allocation or
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additional allocation, etc., it may not always be possible to conduct an auction for the allocation of Spectrum.
AND WHEREAS in view of the aforesaid, the auctioning of Spectrum in the 2G bands may result in a situation where none of the Licensees, using the 2G bands of 800 MHz., 900 MHz and 1800 MHz would have paid any separate upfront fee for the allocation of Spectrum.
AND WHEREAS the Government of India has received various notices from companies based in other countries, invoking bilateral investment agreements and seeking damages against the Union of India by reason of the cancellation/threat of cancellation of the licenses.
AND WHEREAS in the circumstance certain questions of law of far reaching national and international implications have arisen, including in relation to the conduct of the auction and the regulation of the telecommunications industry in accordance with the Judgment and FDI into this country in the telecom industry and otherwise in other sectors.
Given that the issues which have arisen are of great public importance, and that questions of law have arisen of public importance and with such far reaching consequences for the development of the country that it is expedient to obtain the opinion of the Hon 'ble Supreme Court of India thereon.
NOW THEREFORE, in exercise of powers conferred upon me by clause (1) of
Article 143 of the Constitution of India, I, Pratibha Devisingh Patil, President of
India, hereby refer the following questions to the Supreme Court of India for consideration and report thereon, namely:
Q.1 Whether the only permissible method for disposal of all natural resources across all sectors and in all circumstances is by the conduct of auctions?
Q.2 Whether a broad proposition of law that only the route of auctions can be resorted to for disposal of natural resources does not run contrary to several judgments of the Supreme Court including those of Larger Benches?
Q.3 Whether the enunciation of a broad principle, even though expressed as a matter of constitutional law, does not really amount to formulation of a policy and has the effect of unsettling policy decisions formulated and approaches taken by various successive governments over the years for valid considerations, including lack of public resources and the need to resort to innovative and different approaches for the development of various sectors of the economy?
Q.4 What is the permissible scope for interference by courts with policy making by the Government including methods for disposal of natural resources?
Q.5 Whether, if the court holds, within the permissible scope of judicial review, that a policy is flawed, is the court not obliged to take into account investments made under the said policy including investments made by foreign investors under multilateral/bilateral agreements?
Q.6 If the answers to the aforesaid questions lead to an affirmation of the judgment dated 02.02.2012 then the following questions may arise, viz.
(i) whether the judgment is required to be given retrospective effect so as to unsettle all licences issued and 2G spectrum (800, 900, and 1800 MHz bands) allocated in and after 1994 and prior to 10.01.2008?
(ii) whether the allocation of 2G spectrum in all circumstances and in all specific cases for different policy considerations would nevertheless have to be undone?
And specifically
(iii) Whether the telecom licences granted in 1994 would be affected?
(iv) Whether the Telecom licences granted by way of basic licences in 2001 and licences granted between the period 2003-2007 would be affected?
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(v) Whether it is open to the Government of India to take any action to alter the terms of any licence to ensure a level playing field among all existing licensees?
(vi) Whether dual technology licences granted in 2007 and 2008 would be affected? (vii) Whether it is necessary or obligatory for the Government of India to withdraw the Spectrum allocated to all existing licensees or to charge for the same with retrospective effect and if so on what basis and from what date?
Q.7 Whether, while taking action for conduct of auction in accordance with the orders of the Supreme Court, it would remain permissible for the Government to:
(i) Make provision for allotment of Spectrum from time to time at the auction discovered price and in accordance with laid down criteria during the period of validity of the auction determined price?
(ii) Impose a ceiling on the acquisition of Spectrum with the aim of avoiding the emergence of dominance in the market by any licensee/applicant duly taking into consideration TRAI recommendations in this regard?
(iii) Make provision for allocation of Spectrum at auction related prices in accordance with laid down criteria in bands where there may be inadequate or no competition (for e.g. there is expected to be a low level of competition for CDMA in 800 MHz band and TRAI has recommended an equivalence ratio of 1.5 or
1.3X1.5 for 800 MHz and 900 MHz bands depending upon the quantum of spectrum held by the licensee that can be applied to auction price in 1800 MHz band in the absence of a specific price for these bands)?
Q.8 What is the effect of the judgment on 3G Spectrum acquired by entities by auction whose licences have been quashed by the said judgment?
NEW DELHI;
DATED: 12 April 2012
PRESIDENT OF INDIA
A bare reading of the Reference shows that it is occasioned by the decision of this Court, rendered by a bench of two learned Judges on 2nd February, 2012 in Centre for Public Interest
Litigation v. Union of India, (2012) 3 SCC 1 (for brevity "2G Case").
On receipt of the Reference, vide order dated 9th May, 2012, notice was issued to the
Attorney General for India. Upon hearing the learned Attorney General, it was directed vide order dated 11th May, 2012, that notice of the Reference shall be issued to all the States through their Standing Counsel; on Centre for Public Interest Litigation (CPIL) and Dr. Subramanian
Swamy (Petitioners in the 2G Case); as also on the Federation of Indian Chambers of
Commerce and Industry (FICCI) and Confederation of Indian Industry (CII), as representatives of the Indian industry. On the suggestion of the learned Attorney General, it was also directed (though not recorded in the order), that the reference shall be dealt with in two parts viz. in the first instance, only questions No. 1 to 5 would be taken up for consideration and the remaining questions shall be taken up later in the light of our answers to the first five questions.
… [Discussion on maintainability of the Presidential Reference is omitted] …
This leads us to the merits of the controversy disclosed in the questions framed in the
Reference for our advisory opinion.
As already pointed out, the judgment in the 2G Case triggered doubts about the validity of methods other than 'auction ' for disposal of natural resources which, ultimately led to the filing of the present Reference. Therefore, before we proceed to answer question No. 1, it is
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imperative to understand what has been precisely stated in the 2G Case and decipher the law declared in that case.
All the counsel agreed that paragraphs 94 to 96 in the said decision are the repository of the ratio vis-à-vis disposal of natural resources in the 2G Case. On the one hand it was argued that these paragraphs lay down, as a proposition of law, that all natural resources across all sectors, and in all circumstances are to be disposed of by way of public auction, and on the other, it was urged that the observations therein were made only qua spectrum. Before examining the strength of the rival stands, we may briefly recapitulate the principles that govern the determination of the 'law declared ' by a judgment and its true ratio.
Article 141 of the Constitution lays down that the 'law declared ' by the Supreme Court is binding upon all the courts within the territory of India. The 'law declared ' has to be construed as a principle of law that emanates from a judgment, or an interpretation of a law or judgment by the Supreme Court, upon which, the case is decided. [See: Fida Hussain v. Moradabad
Development Authority, (2011) 12 SCC 615]. Hence, it flows from the above that the 'law declared ' is the principle culled out on the reading of a judgment as a whole in light of the questions raised, upon which the case is decided. [Also see: Ambica Quarry Works v. State of
Gujarat, (1987) 1 SCC 213 and Commissioner of Income Tax v. Sun Engineering Works (P)
Limited, (1992) 4 SCC 363]. In other words, the 'law declared ' in a judgment, which is binding upon courts, is the ratio decidendi of the judgment. It is the essence of a decision and the principle upon which, the case is decided, which has to be ascertained in relation to the subjectmatter of the decision.
… [Rest of the discussion on Article 141 is omitted] …
In the 2G Case, the Bench framed five questions. Questions No. (ii) and (v) pertain to the factual matrix and are not relevant for settling the controversy at hand. The remaining three questions are reproduced below:
(i) Whether the Government has the right to alienate, transfer or distribute natural resources/national assets otherwise than by following a fair and transparent method consistent with the fundamentals of the equality clause enshrined in the
Constitution?
(iii) Whether the exercise undertaken by DoT from September 2007 to March
2008 for grant of UAS licences to the private Respondents in terms of the recommendations made by TRAI is vitiated due to arbitrariness and mala fides and is contrary to public interest?
(iv) Whether the policy of first-come-first-served followed by DoT for grant of licences is ultra vires the provisions of Article 14 of the Constitution and whether the said policy was arbitrarily changed by the Minister of Communications and
Information Technology (hereinafter referred to as "the Minister of
Communications and Information Technology"), without consulting TRAI, with a view to favour some of the applicants?
While dealing with question No.(i), the Court observed that the State is empowered to distribute natural resources as they constitute public property/national assets. Thereafter, the
Bench observed as follows:
75....while distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best subserve the common good, but no comprehensive
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legislation has been enacted to generally define natural resources and a framework for their protection...
The learned Judges adverted to the 'public trust doctrine ' as enunciated in The Illinois
Central Railroad Co. v. The People of the State of Illinois, 146 U.S. 387 (1892); M.C. Mehta
v. Kamal Nath, (1997) 1 SCC 388; Jamshed Hormusji Wadia v. Board of Trustees, Port of
Mumbai, (2004) 3 SCC 214; Intellectuals Forum, Tirupathi v. State of A.P.,(2006) 3 SCC
549; Fomento Resorts and Hotels Limited v. Minguel Martins, (2009) 3 SCC 571 and Reliance
Natural Resources Limited v. Reliance Industries Limited, (2010) 7 SCC 1 and held:
85. As natural resources are public goods, the doctrine of equality, which emerges from the concepts of justice and fairness, must guide the State in determining the actual mechanism for distribution of natural resources. In this regard, the doctrine of equality has two aspects: first, it regulates the rights and obligations of the State vis-à-vis its people and demands that the people be granted equitable access to natural resources and/or its products and that they are adequately compensated for the transfer of the resource to the private domain; and second, it regulates the rights and obligations of the State vis-à-vis private parties seeking to acquire/use the resource and demands that the procedure adopted for distribution is just, nonarbitrary and transparent and that it does not discriminate between similarly placed private parties.
Referring to the decisions of this Court in Akhil Bhartiya Upbhokta Congress v. State of
Madhya Pradesh, (2011) 5 SCC 29 and Sachidanand Pandey v. State of West Bengal, (1987)
2 SCC 295, the Bench ultimately concluded thus:
In conclusion, we hold that the State is the legal owner of the natural resources as a trustee of the people and although it is empowered to distribute the same, the process of distribution must be guided by the constitutional principles including the doctrine of equality and larger public good.
On a reading of the above paragraphs, it can be noticed that the doctrine of equality; larger public good, adoption of a transparent and fair method, opportunity of competition; and avoidance of any occasion to scuttle the claim of similarly situated applicants were emphasised upon. While dealing with alienation of natural resources like spectrum, it was stated that it is the duty of the State to ensure that a non-discriminatory method is adopted for distribution and alienation which would necessarily result in the protection of national/public interest. Paragraphs 85 and 89, while referring to the concept of 'public trust doctrine ', lay emphasis on the doctrine of equality, which has been segregated into two parts - one is the substantive part and the other is the regulatory part. In the regulatory facet, paragraph 85 states that the procedure adopted for distribution should be just and non-arbitrary and must be guided by constitutional principles including the doctrine of equality and larger public good. Similarly, in paragraph 89 stress has been laid on transparency and fair opportunity of competition. It is further reiterated that the burden of the State is to ensure that a non-discriminatory method is adopted for distribution and alienation which would necessarily result in the protection of national and public interest.
Dealing with Questions No.(iii) and (iv) in paragraphs 94 to 96 of the judgment, the Court opined as follows:
There is a fundamental flaw in the first-come-first-served policy inasmuch as it involves an element of pure chance or accident. In matters involving award of contracts or grant of licence or permission to use public property, the invocation of first-come-first-served policy has inherently dangerous implications. Any person who has access to the power corridor at the highest or the lowest level may be able to obtain information from the government files or the files of the agency/instrumentality of the State that a particular public property or asset is
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likely to be disposed of or a contract is likely to be awarded or a licence or permission is likely to be given, he would immediately make an application and would become entitled to stand first in the queue at the cost of all others who may have a better claim.
This Court has repeatedly held that wherever a contract is to be awarded or a licence is to be given, the public authority must adopt a transparent and fair method for making selections so that all eligible persons get a fair opportunity of competition. To put it differently, the State and its agencies/instrumentalities must always adopt a rational method for disposal of public property and no attempt should be made to scuttle the claim of worthy applicants. When it comes to alienation of scarce natural resources like spectrum, etc. it is the burden of the State to ensure that a non-discriminatory method is adopted for distribution and alienation, which would necessarily result in protection of national/public interest.
In our view, a duly publicised auction conducted fairly and impartially is perhaps the best method for discharging this burden and the methods like first-come-first-served when used for alienation of natural resources/public property are likely to be misused by unscrupulous people who are only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values. In other words, while transferring or alienating the natural resources, the State is duty-bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process.
Our reading of these paragraphs suggests that the Court was not considering the case of auction in general, but specifically evaluating the validity of those methods adopted in the distribution of spectrum from September 2007 to March 2008. It is also pertinent to note that reference to auction is made in the subsequent paragraph (96) with the rider 'perhaps '. It has been observed that "a duly publicized auction conducted fairly and impartially is perhaps the best method for discharging this burden." We are conscious that a judgment is not to be read as a statute, but at the same time, we cannot be oblivious to the fact that when it is argued with vehemence that the judgment lays down auction as a constitutional principle, the word
"perhaps" gains significance. This suggests that the recommendation of auction for alienation of natural resources was never intended to be taken as an absolute or blanket statement applicable across all natural resources, but simply a conclusion made at first blush over the attractiveness of a method like auction in disposal of natural resources. The choice of the word 'perhaps ' suggests that the learned Judges considered situations requiring a method other than auction as conceivable and desirable.
Further, the final conclusions summarized in paragraph 102 of the judgment (SCC) make no mention about auction being the only permissible and intra vires method for disposal of natural resources; the findings are limited to the case of spectrum. In case the Court had actually enunciated, as a proposition of law, that auction is the only permissible method or mode for alienation/allotment of natural resources, the same would have found a mention in the summary at the end of the judgment.
Moreover, if the judgment is to be read as holding auction as the only permissible means of disposal of all natural resources, it would lead to the quashing of a large number of laws that prescribe methods other than auction, e.g., the MMRD Act. While dealing with the merits of the Reference, at a later stage, we will discuss whether or not auction can be a constitutional mandate under Article 14 of the Constitution, but for the present, it would suffice to say that no court would ever implicitly, indirectly, or by inference, hold a range of laws as ultra vires the Constitution, without allowing every law to be tested on its merits. One of the most profound tenets of constitutionalism is the presumption of constitutionality assigned to each legislation enacted. We find that the 2G Case does not even consider a plethora of laws and judgments that prescribe methods, other than auction, for dispensation of natural resources;
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something that it would have done, in case, it intended to make an assertion as wide as applying auction to all natural resources. Therefore, we are convinced that the observations in
Paras 94 to 96 could not apply beyond the specific case of spectrum, which according to the law declared in the 2G Case, is to be alienated only by auction and no other method.
Thus, having come to the conclusion that the 2G Case does not deal with modes of allocation for natural resources, other than spectrum, we shall now proceed to answer the first question of the Reference pertaining to other natural resources, as the question subsumes the essence of the entire reference, particularly the set of first five questions.
The President seeks this Court 's opinion on the limited point of permissibility of methods other than auction for alienation of natural resources, other than spectrum. The question also harbours several concepts, which were argued before us through the hearing of the Reference, that require to be answered in order to derive a comprehensive answer to the parent question.
Are some methods ultra vires and others intra vires the Constitution of India, especially
Article 14? Can disposal through the method of auction be elevated to a Constitutional principle? Is this Court entitled to direct the executive to adopt a certain method because it is the 'best ' method? If not, to what extent can the executive deviate from such 'best ' method? An answer to these issues, in turn, will give an answer to the first question which, as noted above, will answer the Presidential Reference.
Before proceeding to answer these questions, we would like to dispose of a couple of minor objections. The first pertained to the classification of resources made in the 2G Case.
Learned Counsel appearing for CPIL argued that all that the judgment in the 2G Case has done is to carve out a special category of cases where public auction is the only legally sustainable method of alienation viz. natural resources that are scarce, valuable and are allotted to private entities for commercial exploitation. The learned Attorney General, however, contested this claim and argued that no such proposition was laid down in the 2G judgment.
He pointed out that the words "commercial exploitation" were not even used anywhere in the judgment except in an extract from another judgment in a different context. We agree that the judgment itself does not carve out any special case for scarce natural resources only meant for commercial exploitation. However, we feel, despite that, in this Reference, CPIL is not barred from making a submission drawing a distinction between natural resources meant for commercial exploitation and those meant for other purposes. This Court has the jurisdiction to classify the subject matter of a reference, if a genuine case for it exists.
Mr. Shanti Bhushan, learned Senior Counsel, in support of his stand that the first question of the Reference must be answered in a way so as to allow auction as the only mode for the disposal of natural resources, submitted that a combined reading of Article 14, which dictates non- arbitrariness in State action and equal opportunity to those similarly placed;
Article 39(b) which is a Directive Principle of State Policy dealing with distribution of natural resources for the common good of the people; and the "trusteeship" principle found in the
Preamble which mandates that the State holds all natural resources in the capacity of a trustee, on behalf of the people, would make auction a constitutional mandate under Article 14 of the
Constitution. It is imperative, therefore, that we evaluate each of these principles before coming to any conclusion on the constitutional verdict on auction.
In the 2G Case, two concepts namely, "public trust doctrine" and "trusteeship" have been adverted to, which were also relied upon by learned Counsel for CPIL, in defence of the argument that the State holds natural resources in a fiduciary relationship with the people. As far as "trusteeship" is concerned, there is no cavil that the State holds all natural resources as a trustee of the public and must deal with them in a manner that is consistent with the nature of such a trust. However, what was asserted on behalf of CPIL was that all natural resources
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fall within the domain of the "public trust doctrine", and therefore, there is an obligation on the Government to ensure that their transfer or alienation for commercial exploitation is in a fair and transparent manner and only in pursuit of public good. The learned Attorney General on the other hand, zealously urged that the subject matter of the doctrine and the nature of restrictions, it imposes, are of limited scope; that the applicability of the doctrine is restricted to certain common properties pertaining to the environment, like rivers, seashores, forest and air, meant for free and unimpeded use of the general public and the restrictions it imposes is in the term of a complete embargo on any alienation of such resources, for private ownership.
According to him, the extension of the public trust doctrine to all natural resources has led to a considerable confusion and needs to be clarified.
The doctrine of public trust enunciated more thoroughly by the United States Supreme
Court in Illinois (supra) was introduced to Indian environmental jurisprudence by this Court in M.C. Mehta (supra). Speaking for the majority, Kuldip Singh, J. observed as follows:
The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes.
According to Professor Sax the Public Trust Doctrine imposes the following restrictions on governmental authority:
Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third the property must be maintained for particular types of uses.
The learned Judge further observed:
Our legal system - based on English common law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources.
These resources meant for public use cannot be converted into private ownership.
The judgment in Kamal Nath 's case (supra) was explained in Intellectuals Forum (supra).
Reiterating that the State is the trustee of all natural resources which are by nature meant for public use and enjoyment, the Court observed thus:
The Supreme Court of California, in National Audubon Society v. Superior Court of Alpine Country also known as Mono Lake case summed up the substance of the doctrine. The Court said:
Thus the public trust is more than an affirmation of State power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people 's common heritage of streams, lakes, marshlands and tidelands, surrendering the right only in those rare cases when the abandonment of the right is consistent with the purposes of the trust.
This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a negatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the State holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of the
Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinise such actions of the Government,
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the courts must make a distinction between the Government 's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources…
It was thus, held that when the affirmative duties are set out from a nugatory angle, the doctrine does not exactly prohibit the alienation of property held as a public trust, but mandates a high degree of judicial scrutiny.
In Fomento (supra), the Court was concerned with the access of the public to a beach in
Goa. Holding that it was a public beach which could not be privatized or blocked denying traditional access, this Court reiterated the public trust doctrine as follows:
The matter deserves to be considered from another angle. The public trust doctrine which has been invoked by Ms Indira Jaising in support of her argument that the beach in question is a public beach and the Appellants cannot privatise the same by blocking/ obstructing traditional access available through Survey No. 803 (new
No. 246/2) is implicitly engrafted by the State Government in Clause 4(ix) of the agreement. That doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. These resources are gift of nature, therefore, they should be freely available to everyone irrespective of one 's status in life.
In Reliance Natural Resources (supra), it has been observed that even though the doctrine of pubic trust has been applied in cases dealing with environmental jurisprudence, "it has broader application". Referring to Kamal Nath (supra), the Court held that it is the duty of the
Government to provide complete protection to the natural resources as a trustee of the people at large.
The public trust doctrine is a specific doctrine with a particular domain and has to be applied carefully. It has been seriously debated before us as to whether the doctrine can be applied beyond the realm of environmental protection. Richard J. Lazarus in his article,
"Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the
Public Trust Doctrine", while expressing scepticism over the 'liberation ' of the doctrine, makes the following observations:
The strength of the public trust doctrine necessarily lies in its origins; navigable waters and submerged lands are the focus of the doctrine, and the basic trust interests in navigation, commerce, and fishing are the object of its guarantee of public access. Commentators and judges alike have made efforts to "liberate",
"expand", and "modify" the doctrine 's scope yet its basic focus remains relatively unchanged. Courts still repeatedly return to the doctrine 's historical function to determine its present role. When the doctrine is expanded, more often than not the expansions require tortured constructions of the present rather than repudiations of the doctrine 's past.
However, we feel that for the purpose of the present opinion, it is not necessary to delve deep into the issue as in Intellectuals Forum (supra), the main departure from the principle explained by Joseph. L. Sax in his Article "The Public Trust Doctrine in Natural Resource
Law: Effective Judicial Intervention" is that public trust mandates a high degree of judicial scrutiny, an issue that we will anyway elaborately discuss while enunciating the mandate of
Article 14 of the Constitution.
We would also like to briskly deal with a similar argument made by Mr. Shanti Bhushan.
The learned senior Counsel submitted that the repository of sovereignty in our framework is the people of this country since the opening words of the Constitution read "We The People of India… do hereby adopt, enact and give to ourselves this Constitution," and therefore the government, as the agent of the Sovereign, the people, while alienating natural resources, must heed to judicial care and due process. Firstly, this Court has held in Raja Ram Pal v. Speaker,
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Lok Sabha, (2007) 3 SCC 184; Para 21 that the "Constitution is the supreme lex in this country" and "all organs of the State derive their authority, jurisdiction and powers from the
Constitution and owe allegiance to it". Further, the notion that the Parliament is an agent of the people was squarely rebutted in In Re: Delhi Laws Act, 1912 (supra), where it was observed that "the legislature as a body cannot be seen to be an agency of the electorate as a whole" and "acts on its own authority or power which it derives from the Constitution".
In Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills,
Delhi, (1968) 3 SCR 251 this Court held that "the doctrine that it (the Parliament) is a delegate of the people coloured certain American decision does not arise here" and that in fact the
"Parliament which by a concentration of all the powers of legislation derived from all the three
Legislative Lists becomes the most competent and potent legislature it is possible to erect under our Constitution." We however, appreciate the concern of Mr. Shanti Bhushan that the lack of any such power in the hands of the people must not be a sanction for recklessness during disposal of natural resources. The legislature and the Executive are answerable to the
Constitution and it is there where the judiciary, the guardian of the Constitution, must find the contours to the powers of disposal of natural resources, especially Article 14 and Article 39(b).
MANDATE OF ARTICLE 14
… The underlying object of Article 14 is to secure to all persons, citizens or non-citizens, the equality of status and opportunity referred to in the preamble to our Constitution. The language of Article 14 is couched in negative terms and is in form, an admonition addressed to the State. It does not directly purport to confer any right on any person as some of the other
Articles, e.g., Article 19, do. The right to equality before law is secured from all legislative and executive tyranny by way of discrimination since the language of Article 14 uses the word
"State" which as per Article 12, includes the executive organ. [See: Basheshar Nath v.
Commissioner of Income Tax, Delhi and Rajasthan, 1959 Supp (1) SCR 528]. Besides,
Article 14 is expressed in absolute terms and its effect is not curtailed by restrictions like those imposed on Article 19(1) by Articles 19(2)-(6). However, notwithstanding the absence of such restrictions, certain tests have been devised through judicial decisions to test if Article 14 has been violated or not.
For the first couple of decades after the establishment of this Court, the 'classification ' test was adopted which allowed for a classification between entities as long as it was based on an intelligible differentia and displayed a rational nexus with the ultimate objective of the policy. Budhan Choudhry v. State of Bihar, AIR 1955 SC 191 referred to in Ram Krishna
Dalmiya v. Justice S.R. Tendolkar, (1959) 1 SCR 279 explained it in the following terms:
It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that
Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.
However, after the judgment of this Court in E.P. Royappa v. State of Tamil Nadu, (1974)
4 SCC 3 the 'arbitrariness ' doctrine was introduced which dropped a pedantic approach
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towards equality and held the mere existence of arbitrariness as violative of Article 14, however equal in its treatment. Justice Bhagwati (as his Lordship was then) articulated the dynamic nature of equality and borrowing from Shakespeare 's Macbeth, said that the concept must not be "cribbed, cabined and confined" within doctrinaire limits: Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose. J., "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits.
His Lordship went on to explain the length and breadth of Article 14 in the following lucid words: From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16.
Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16.
Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.
Building upon his opinion delivered in Royappa 's case (supra), Bhagwati, J., held in Maneka Gandhi v. Union of India,(1978) 1 SCC 248:
The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non- arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive.
………
Further, even though the 'classification ' doctrine was never overruled, it has found less favour with this Court as compared to the 'arbitrariness ' doctrine. In Om Kumar v. Union of
India, (2001) 2 SCC 386, this Court held thus:
But, in E. P. Royappa v. State of T. N. Bhagwati, J laid down another test for purposes of Article 14. It was stated that if the administrative action was
"arbitrary", it could be struck down under Article 14. This principle is now uniformly followed in all courts more rigorously than the one based on classification. Arbitrary action by the administrator is described as one that is irrational and not based on sound reason. It is also described as one that is unreasonable. However, this Court has also alerted against the arbitrary use of the 'arbitrariness ' doctrine.
Typically, laws are struck down for violating Part III of the Constitution of India, legislative incompetence or excessive delegation. However, since Royappa 's case (supra), the doctrine has been loosely applied. This Court in State of A.P. v. McDowell and Co., (1996) 3 SCC 709
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stressed on the need for an objective and scientific analysis of arbitrariness, especially while striking down legislations. Justice Jeevan Reddy observed:
The power of Parliament or for that matter, the State Legislatures is restricted in two ways. A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part
III of the Constitution or of any other constitutional provision. There is no third ground. We do not wish to enter into a discussion of the concepts of procedural unreasonableness and substantive unreasonableness - concepts inspired by the decisions of United States Supreme Court. Even in U.S.A., these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground (substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterised, the ground of invalidation must fall within the four corners of the two grounds mentioned above.
In other words, say, if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by clauses (a) to (g) of
Article 19(1), it can be struck down only if it is found not saved by any of the clauses (s) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds, viz., (i) unreasonableness, which can more appropriately be called irrationality, (ii) illegality and (iii) procedural impropriety (see Council of Civil Service Unions v.
Minister for Civil Service which decision has been accepted by this Court as well).
Therefore, ever since the Royappa era, the conception of 'arbitrariness ' has not undergone any significant change. Some decisions have commented on the doctrinal looseness of the arbitrariness test and tried keeping its folds within permissible boundaries. For instance, cases where legislation or rules have been struck down as being arbitrary in the sense of being unreasonable [See: Air India v. Nergesh Meerza, (1981) 4 SCC 335 (SCC at pp. 372-373)] only on the basis of "arbitrariness", as explained above, have been doubted in McDowell 's case (supra). But otherwise, the subject matter, content and tests for checking violation of
Article 14 have remained, more or less, unaltered.
From a scrutiny of the trend of decisions it is clearly perceivable that the action of the
State, whether it relates to distribution of largesse, grant of contracts or allotment of land, is to be tested on the touchstone of Article 14 of the Constitution. A law may not be struck down for being arbitrary without the pointing out of a constitutional infirmity as McDowell 's case
(supra) has said. Therefore, a State action has to be tested for constitutional infirmities qua
Article 14 of the Constitution. The action has to be fair, reasonable, non-discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and equitable treatment. It should conform to the norms which are rational, informed with reasons and guided by public interest, etc. All these principles are inherent in the fundamental conception of Article 14. This is the mandate of
Article 14 of the Constitution of India.
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WHETHER ' AUCTION ' A CONSTITUTIONAL MANDATE:
Such being the constitutional intent and effect of Article 14, the question arises - can auction as a method of disposal of natural resources be declared a constitutional mandate under
Article 14 of the Constitution of India? We would unhesitatingly answer it in the negative since any other answer would be completely contrary to the scheme of Article 14. Firstly,
Article 14 may imply positive and negative rights for an individual, but with respect to the
State, it is only couched in negative terms; like an admonition against the State which prohibits the State from taking up actions that may be arbitrary, unreasonable, capricious or discriminatory. Article 14, therefore, is an injunction to the State against taking certain type of actions rather than commanding it to take particular steps. Reading the mandate of auction into its scheme would thus, be completely contrary to the intent of the Article apparent from its plain language.
Secondly, a constitutional mandate is an absolute principle that has to be applied in all situations; it cannot be applied in some and not tested in others. The absolute principle is then applied on a case by case basis to see which actions fulfill the requirements of the constitutional principle and which do not.
………
Equality, therefore, cannot be limited to mean only auction, without testing it in every scenario. In State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284 at pp. 297, this Court, quoting from Kotch v. Pilot Comm 'rs, 330 U.S. 552, had held that "the constitutional command for a State to afford equal protection of the laws sets a goal not attainable by the invention and application of a precise formula. This Court has never attempted that impossible task". One cannot test the validity of a law with reference to the essential elements of ideal democracy, actually incorporated in the Constitution. (See: Indira Nehru Gandhi v. Raj Narain, 1975
(Supp) SCC 1). The Courts are not at liberty to declare a statute void, because in their opinion it is opposed to the spirit of the Constitution. Courts cannot declare a limitation or constitutional requirement under the notion of having discovered some ideal norm. Further, a constitutional principle must not be limited to a precise formula but ought to be an abstract principle applied to precise situations. The repercussion of holding auction as a constitutional mandate would be the voiding of every action that deviates from it, including social endeavours, welfare schemes and promotional policies, even though CPIL itself has argued against the same, and asked for making auction mandatory only in the alienation of scarce natural resources meant for private and commercial business ventures. It would be odd to derive auction as a constitutional principle only for a limited set of situations from the wide and generic declaration of Article 14. The strength of constitutional adjudication lies in case to case adjudication and therefore auction cannot be elevated to a constitutional mandate.
Finally, reading auction as a constitutional mandate would be impermissible because such an approach may distort another constitutional principle embodied in Article 39(b). The said article enumerating certain principles of policy, to be followed by the State, reads as follows:
The State shall, in particular, direct its policy towards securing (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
The disposal of natural resources is a facet of the use and distribution of such resources.
Article 39(b) mandates that the ownership and control of natural resources should be so distributed so as to best subserve the common good. Article 37 provides that the provisions of
Part IV shall not be enforceable by any Court, but the principles laid down therein are
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nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
Therefore, this Article, in a sense, is a restriction on 'distribution ' built into the
Constitution. But the restriction is imposed on the object and not the means. The overarching and underlying principle governing 'distribution ' is furtherance of common good. But for the achievement of that objective, the Constitution uses the generic word 'distribution '.
Distribution has broad contours and cannot be limited to meaning only one method i.e. auction. It envisages all such methods available for distribution/allocation of natural resources which ultimately subserve the "common good".
In State of Tamil Nadu v. L. Abu Kavur Bai, (1984) 1 SCC 515, this Court explained the broad-based concept of 'distribution ' as follows:
The word 'distribution ' used in Article 39(b) must be broadly construed so that a court may give full and comprehensive effect to the statutory intent contained in
Article 39 (b). A narrow construction of the word 'distribution ' might defeat or frustrate the very object which the Article seeks to subserve.
After noting definitions of 'distribution ' from different dictionaries, this Court held:
It is obvious, therefore, that in view of the vast range of transactions contemplated by the word 'distribution ' as mentioned in the dictionaries referred to above, it will not be correct to construe the word 'distribution ' in a purely literal sense so as to mean only division of a particular kind or to particular persons. The words, apportionment, allotment, allocation, classification, clearly fall within the broad sweep of the word 'distribution '. So construed, the word 'distribution ' as used in
Article 39(b) will include various facets, aspects, methods and terminology of a broad-based concept of distribution.
It can thus, be seen from the afore-quoted paragraphs that the term "distribute" undoubtedly, has wide amplitude and encompasses all manners and methods of distribution, which would include classes, industries, regions, private and public sections, etc. Having regard to the basic nature of Article 39(b), a narrower concept of equality under Article 14 than that discussed above, may frustrate the broader concept of distribution, as conceived in
Article 39(b). There cannot, therefore, be a cavil that "common good ' and "larger public interests" have to be regarded as constitutional reality deserving actualization.
Learned Counsel for CPIL argued that revenue maximization during the sale or alienation of a natural resource for commercial exploitation is the only way of achieving public good since the revenue collected can be channelized to welfare policies and controlling the burgeoning deficit. According to the learned Counsel, since the best way to maximize revenue is through the route of auction, it becomes a constitutional principle even under Article 39(b).
However, we are not persuaded to hold so. Auctions may be the best way of maximizing revenue but revenue maximization may not always be the best way to subserve public good.
"Common good" is the sole guiding factor under Article 39(b) for distribution of natural resources. It is the touchstone of testing whether any policy subserves the "common good" and if it does, irrespective of the means adopted, it is clearly in accordance with the principle enshrined in Article 39(b).
………
The norm of "common good" has to be understood and appreciated in a holistic manner.
It is obvious that the manner in which the common good is best subserved is not a matter that can be measured by any constitutional yardstick - it would depend on the economic and political philosophy of the government. Revenue maximization is not the only way in which the common good can be subserved. Where revenue maximization is the object of a policy,
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being considered qua that resource at that point of time to be the best way to subserve the common good, auction would be one of the preferable methods, though not the only method.
Where revenue maximization is not the object of a policy of distribution, the question of auction would not arise. Revenue considerations may assume secondary consideration to developmental considerations.
Therefore, in conclusion, the submission that the mandate of Article 14 is that any disposal of a natural resource for commercial use must be for revenue maximization, and thus by auction, is based neither on law nor on logic. There is no constitutional imperative in the matter of economic policies - Article 14 does not pre-define any economic policy as a constitutional mandate. Even the mandate of 39(b) imposes no restrictions on the means adopted to subserve the public good and uses the broad term 'distribution ', suggesting that the methodology of distribution is not fixed. Economic logic establishes that alienation/allocation of natural resources to the highest bidder may not necessarily be the only way to subserve the common good, and at times, may run counter to public good. Hence, it needs little emphasis that disposal of all natural resources through auctions is clearly not a constitutional mandate.
LEGITIMATE DEVIATIONS FROM AUCTION
As a result, this Court has, on a number of occasions, delivered judgments directing means for disposal of natural resources other than auction for different resources in different circumstances. It would be profitable to refer to a few cases and appreciate the reasons this
Court has adopted for deviating from the method of auction.
In Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir, (1980) 4 SCC 1, while comparing the efficacy of auction in promoting a domestic industry, P.N. Bhagwati, J. observed: If the State were giving tapping contract simpliciter there can be no doubt that the
State would have to auction or invite tenders for securing the highest price, subject, of course, to any other relevant overriding considerations of public weal or interest, but in a case like this where the State is allocating resources such as water, power, raw materials etc. for the purpose of encouraging setting up of industries within the State, we do not think the State is bound to advertise and tell the people that it wants a particular industry to be set up within the State and invite those interested to come up with proposals for the purpose. The State may choose to do so, if it thinks fit and in a given situation, it may even turn out to be advantageous for the State to do so, but if any private party comes before the State and offers to set up an industry, the State would not be committing breach of any constitutional or legal obligation if it negotiates with such party and agrees to provide resources and other facilities for the purpose of setting up the industry.
The State is not obliged to tell such party: "Please wait I will first advertise, wee whether any other offers are forthcoming and then after considering all offers, decide whether I should let you set up the industry"...The State must be free in such a case to negotiate with a private entrepreneur with a view to inducing him to set up an industry within the State and if the State enters into a contract with such entrepreneur for providing resources and other facilities for setting up an industry, the contract cannot be assailed as invalid so long as the State has acted bona fide, reasonably and in public interest. If the terms and conditions of the contract or the surrounding circumstances show that the State has acted mala fide or out of improper or corrupt motive or in order to promote the private interests of someone at the cost of the State, the court will undoubtedly interfere and strike down State action as arbitrary, unreasonable or contrary to public interest. But so long as the State action is bona fide and reasonable, the court will not interfere merely on the ground that no advertisement was given or publicity made or tenders invited.
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In Sachidanand Pandey (supra) after noticing Kasturi Lal 's case (supra), it was concluded as under:
On a consideration of the relevant cases cited at the Bar the following propositions may be taken as well established: State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration.
One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism. In Haji T.M. Hassan Rawther v. Kerala Financial Corporation, (1988) 1 SCC 166, after an exhaustive review of the law including the decisions in Kasturi Lal (supra) and
Sachidanand Pandey (supra), it was held that public disposal of State owned properties is not the only rule. It was, inter-alia, observed that:
The public property owned by the State or by any instrumentality of the State should be generally sold by public auction or by inviting tenders. This Court has been insisting upon that rule, not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities. They should undoubtedly act fairly. Their actions should be legitimate. Their dealings should be aboveboard. Their transactions should be without aversion or affection.
Nothing should be suggestive of discrimination. Nothing should be done by them which gives an impression of bias, favouritism or nepotism. Ordinarily these factors would be absent if the matter is brought to public auction or sale by tenders. That is why the court repeatedly stated and reiterated that the State-owned properties are required to be disposed of publicly. But that is not the only rule. As
O. Chinnappa Reddy, J. observed "that though that is the ordinary rule, it is not an invariable rule". There may be situations necessitating departure from the rule, but then such instances must be justified by compulsions and not by compromise.
It must be justified by compelling reasons and not by just convenience.
Here, the Court added to the previous decisions and said that a blithe deviation from public disposal of resources would not be tolerable; such a deviation must be justified by compelling reasons and not by just convenience.
In M.P. Oil Extraction v. State of M.P., (1997) 7 SCC 592, this Court held as follows:
Although to ensure fair play and transparency in State action, distribution of largesse by inviting open tenders or by public auction is desirable, it cannot be held that in no case distribution of such largesse by negotiation is permissible. In the instant case, as a policy decision protective measure by entering into agreements with selected industrial units for assured supply of sal seeds at concessional rate has been taken by the Government. The rate of royalty has also been fixed on some accepted principle of pricing formula as will be indicated hereafter. Hence, distribution or allotment of sal seeds at the determined royalty to the Respondents and other units covered by the agreements cannot be assailed.
It is to be appreciated that in this case, distribution by public auction or by open tender may not achieve the purpose of the policy of protective measure by way of supply of sal seeds at concessional rate of royalty to the industrial units covered by the agreements on being selected on valid and objective considerations.
… [Citations of and quotations from other cases making similar points have been omitted] …
Hence, it is manifest that there is no constitutional mandate in favour of auction under
Article 14. The Government has repeatedly deviated from the course of auction and this Court
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has repeatedly upheld such actions. The judiciary tests such deviations on the limited scope of arbitrariness and fairness under Article 14 and its role is limited to that extent. Essentially whenever the object of policy is anything but revenue maximization, the Executive is seen to adopt methods other than auction.
A fortiori, besides legal logic, mandatory auction may be contrary to economic logic as well. Different resources may require different treatment. Very often, exploration and exploitation contracts are bundled together due to the requirement of heavy capital in the discovery of natural resources. A concern would risk undertaking such exploration and incur heavy costs only if it was assured utilization of the resource discovered; a prudent business venture, would not like to incur the high costs involved in exploration activities and then compete for that resource in an open auction. The logic is similar to that applied in patents.
Firms are given incentives to invest in research and development with the promise of exclusive access to the market for the sale of that invention. Such an approach is economically and legally sound and sometimes necessary to spur research and development. Similarly, bundling exploration and exploitation contracts may be necessary to spur growth in a specific industry.
Similar deviation from auction cannot be ruled out when the object of a State policy is to promote domestic development of an industry, like in Kasturi Lal 's case, discussed above.
However, these examples are purely illustrative in order to demonstrate that auction cannot be the sole criteria for alienation of all natural resources.
POTENTIAL OF ABUSE
It was also argued that even if the method of auction is not a mandate under Article 14, it must be the only permissible method, due to the susceptibility of other methods to abuse. This argument, in our view, is contrary to an established position of law on the subject cemented through a catena of decisions.
………
Therefore, a potential for abuse cannot be the basis for striking down a method as ultra vires the Constitution. It is the actual abuse itself that must be brought before the Court for being tested on the anvil of constitutional provisions. In fact, it may be said that even auction has a potential of abuse, like any other method of allocation, but that cannot be the basis of declaring it as an unconstitutional methodology either. These drawbacks include cartelization,
"winners curse" (the phenomenon by which a bidder bids a higher, unrealistic and unexecutable price just to surpass the competition; or where a bidder, in case of multiple auctions, bids for all the resources and ends up winning licenses for exploitation of more resources than he can pragmatically execute), etc. However, all the same, auction cannot be called ultra vires for the said reasons and continues to be an attractive and preferred means of disposal of natural resources especially when revenue maximization is a priority. Therefore, neither auction, nor any other method of disposal can be held ultra vires the Constitution, merely because of a potential abuse.
JUDICIAL REVIEW OF POLICY DECISIONS
The learned Attorney General also argued that dictating a method of distribution for natural resources violates the age old established principle of noninterference by the judiciary in policy matters. Even though the contours of the power of judicial review of policy decisions has become a trite subject, as the Courts have repeatedly delivered opinions on it, we wish to
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reiterate some of the principles in brief, especially with regard to economic policy choices and pricing. ... In R.K. Garg (supra), this Court even observed that greater judicial deference must be shown towards a law relating to economic activities due to the complexity of economic problems and their fulfillment through a methodology of trial and error. As noted above, it was also clarified that the fact that an economic legislation may be troubled by crudities, inequities, uncertainties or the possibility of abuse cannot be the basis for striking it down. …
In Delhi Science Forum v. Union of India, (1996) 2 SCC 405 a Bench of three learned
Judges of this Court, while rejecting a claim against the opening up of the telecom sector reiterated that the forum for debate and discourse over the merits and demerits of a policy is the Parliament. It restated that the services of this Court are not sought till the legality of the policy is disputed, and further, that no direction can be given or be expected from the courts, unless while implementing such policies, there is violation or infringement of any of the constitutional or statutory provisions. It held thus:
What has been said in respect of legislations is applicable even in respect of policies which have been adopted by Parliament. They cannot be tested in Court of Law. The courts cannot express their opinion as to whether at a particular juncture or under a particular situation prevailing in the country any such national policy should have been adopted or not. There may be views and views, opinions and opinions which may be shared and believed by citizens of the country including the representatives of the people in Parliament. But that has to be sorted out in Parliament which has to approve such policies...
In BALCO Employees Union v. Union of India, (2002) 2 SCC 333, this Court further pointed out that the Court ought to stay away from judicial review of efficacy of policy matters, not only because the same is beyond its jurisdiction, but also because it lacks the necessary expertise required for such a task. Affirming the previous views of this Court, the
Court observed that while dealing with economic legislations, the Courts, while not jettisoning its jurisdiction to curb arbitrary action or unconstitutional legislation, should interfere only in those cases where the view reflected in the legislation is not possible to be taken at all. The
Court went on to emphasize that unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, that the courts would decline to interfere. …
… Mr. Subramanian Swamy also brought to our notice a Report on Allocation of Natural
Resources, prepared by a Committee, chaired by Mr. Ashok Chawla (hereinafter referred to as the "Chawla Committee Report"), which has produced a copious conceptual framework for the Government of India on the allocation and pricing of scarce natural resources viz. coal, minerals, petroleum, natural gas, spectrum, forests, land and water. He averred to observations of the report in favour of auction as a means of disposal. However, since the opinion rendered in the Chawla Committee Report is pending acceptance by the Government, it would be inappropriate for us to place judicial reliance on it. Besides, the Report conducts an economic, and not legal, analysis of the means of disposal of natural resources. The purpose of this
Reference would be best served if this Court gave a constitutional answer rather than economic one. To summarize in the context of the present Reference, it needs to be emphasized that this
Court cannot conduct a comparative study of the various methods of distribution of natural resources and suggest the most efficacious mode, if there is one universal efficacious method in the first place. It respects the mandate and wisdom of the executive for such matters. The methodology pertaining to disposal of natural resources is clearly an economic policy. It entails intricate economic choices and the Court lacks the necessary expertise to make them.
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As has been repeatedly said, it cannot, and shall not, be the endeavour of this Court to evaluate the efficacy of auction vis-à-vis other methods of disposal of natural resources. The Court cannot mandate one method to be followed in all facts and circumstances. Therefore, auction, an economic choice of disposal of natural resources, is not a constitutional mandate. We may, however, hasten to add that the Court can test the legality and constitutionality of these methods. When questioned, the Courts are entitled to analyse the legal validity of different means of distribution and give a constitutional answer as to which methods are ultra vires and intra vires the provisions of the Constitution. Nevertheless, it cannot and will not compare which policy is fairer than the other, but, if a policy or law is patently unfair to the extent that it falls foul of the fairness requirement of Article 14 of the Constitution, the Court would not hesitate in striking it down.
Finally, market price, in economics, is an index of the value that a market prescribes to a good. However, this valuation is a function of several dynamic variables; it is a science and not a law. Auction is just one of the several price discovery mechanisms. Since multiple variables are involved in such valuations, auction or any other form of competitive bidding, cannot constitute even an economic mandate, much less a constitutional mandate.
In our opinion, auction despite being a more preferable method of alienation/allotment of natural resources, cannot be held to be a constitutional requirement or limitation for alienation of all natural resources and therefore, every method other than auction cannot be struck down as ultra-vires the constitutional mandate.
Regard being had to the aforesaid precepts, we have opined that auction as a mode cannot be conferred the status of a constitutional principle. Alienation of natural resources is a policy decision, and the means adopted for the same are thus, executive prerogatives. However, when such a policy decision is not backed by a social or welfare purpose, and precious and scarce natural resources are alienated for commercial pursuits of profit maximizing private entrepreneurs, adoption of means other than those that are competitive and maximize revenue may be arbitrary and face the wrath of Article 14 of the Constitution. Hence, rather than prescribing or proscribing a method, we believe, a judicial scrutiny of methods of disposal of natural resources should depend on the facts and circumstances of each case, in consonance with the principles which we have culled out above. Failing which, the Court, in exercise of power of judicial review, shall term the executive action as arbitrary, unfair, unreasonable and capricious due to its antimony with Article 14 of the Constitution.
In conclusion, our answer to the first set of five questions is that auctions are not the only permissible method for disposal of all natural resources across all sectors and in all circumstances. As regards the remaining questions, we feel that answer to these questions would have a direct bearing on the mode of alienation of Spectrum and therefore, in light of the statement by the learned Attorney General that the Government is not questioning the correctness of judgment in the 2G Case, we respectfully decline to answer these questions. The Presidential
Reference is answered accordingly.
This opinion shall be transmitted to the President in accordance with the procedure prescribed in Part V of the Supreme Court Rules, 1966.
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UNIT 4 – AFFIRMATIVE ACTION (ARTICLES 15 AND 16)
RESERVATION IN EDUCATIONAL INSTITUTIONS
STATE OF MADRAS V. CHAMPAKAM DORAIRAJAN
AIR 1951 SC 226
Decided On: April 9, 1951
BENCH – CHIEF JUSTICE H. L. KANIA, JUSTICES FAZL ALI, PATANJALI SASTRI, M. C.
MAHAJAN, MUKHERJEA, S. R. DAS & VIVIAN BOSE
JUSTICE DAS (for the Court)
This judgment covers both Case No. 270 of 1951 (State of Madras v. Srimathi
Champakam Dorairajan) and Case No. 271 of 1951 (State of Madras v. C. R. Srinivasan) which are appeals from the judgment passed by the High Court of Judicature at Madras on
July 27, 1950, on two separate applications under article 226 of the Constitution complaining of breach of the petitioners ' fundamental right to get admission into educational institutions maintained by the State.
The State of Madras maintains four Medical Colleges and only 330 seats are available for students in those four Colleges. Out of these 330 seats, 17 seats are reserved for students coming from outside the State and 12 seats are reserved for discretionary allotment by the
State and the balance of the seats available are apportioned between four distinct groups of districts in the State.
Likewise, the State of Madras maintains four Engineering Colleges and the total number of seats available for students in those Colleges are only 395. Out of these, 21 seats are reserved for students coming from outside the State, 12 seats are reserved for discretionary allotment by the State and the balance of the seats available are apportioned between the same four distinct groups of districts.
For many years before the commencement of the Constitution, the seats in both the
Medical Colleges and the Engineering Colleges so apportioned between the four distinct groups of districts used to be filled up according to certain proportions set forth in what used to be called the Communal G.O. Thus, for every 14 seats to be filled by the selection committee, candidates used to be selected strictly on the following basis:Non-Brahmin (Hindus)
... 6
Backward Hindus
... 2
Brahmins
... 2
Harijans
... 2
Anglo-Indians and Indian Christians
... 1
Muslims
... 1
Subject to the aforesaid regional and what have been claimed to be protective provisions selection from among the applicants from a particular community from one of the groups of districts used to be made on certain principles based on academic qualifications and marks obtained by the candidates. In the case of the Medical Colleges, not less than 20 per cent of the total number of seats available for students of the State were filled by women candidates separately for each region, it being open to the selection committee to admit a larger number of woman candidates in any region if qualified candidates were available in
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that region and if they were eligible for selection on merits vis-à-vis the men candidates in accordance with the general principles governing such admissions as laid down in those rules.
It appears that the proportion fixed in the old Communal G.O. has been adhered to even after the commencement of the Constitution on January 26, 1950. Indeed, G.O. No. 2208, dated
June 16, 1950, laying down rules for the selection of candidates for admission into the Medical
Colleges substantially reproduces the communal proportion fixed in the old Communal G.O.
On June 7, 1950, Srimathi Champakam Dorairajan made an application to the High
Court of Judicature at Madras under article 226 of the Constitution for protection of her fundamental rights under article 15(1) and article 29(2) of the Constitution and prayed for the issue of a writ of mandamus or other suitable prerogative writ restraining the State of Madras and all officers and subordinates thereof from enforcing, observing, maintaining or following or requiring the enforcement, observance, maintenance or following by the authorities concerned of the notification or order generally referred to as the Communal G.O. in and by which admissions into the Madras Medical Colleges were sought or purported to be regulated in such manner as to infringe and involve the violation of her fundamental rights. From the affidavit filed in support of her petition, it does not appear that the petitioner had actually applied for admission in the Medical College. She states that on inquiry she came to know that she would not be admitted to the College as she belonged to the Brahmin community. No objection, however, was taken to the maintainability of her petition on the ground of absence of any actual application for admission made by her. On the contrary, we have been told that the State had agreed to reserve a seat for her, should her application before the High Court succeed. In the peculiar circumstances, we do not consider it necessary to pursue this matter any further. But we desire to guard ourselves against being understood as holding that we approve of a person who has not actually applied for admission into an educational institution coming to Court complaining of infringement of any fundamental right under article 29(2).
The High Court by its judgment delivered on July 27, 1950, allowed this application of
Srimathi Champakam Dorairajan. The State of Madras has now come up before us on appeal which has been numbered Case No. 270 of 1951.
Sri Srinivasan who had actually applied for admission into the Government
Engineering College at Guindy, filed a petition praying for a writ of mandamus or any other writ restraining the State of Madras and all officers thereof from enforcing, observing, maintaining or following the Communal G.O. in and by which admission into the Engineering
College was sought to be regulated in such manner as to infringe and involve the violation of the fundamental right of the petitioner under article 15(1) and article 29(2) of the Constitution.
In the affidavit filed in support of his petition, the petitioner has stated that he had passed the
Intermediate Examination held in March, 1950, in Group 1, passing the said examination in the first class and obtaining marks set out in paragraph 1 of his affidavit. It will appear that in the optionals which are taken into consideration in determining the academic test for admission in the Engineering College the petitioner Srinivasan secured 369 marks out of a maximum of 450 marks. The High Court has by the same judgment allowed this application also and the State has filed an appeal which has been numbered 271 of 1951. The learned counsel appearing for the State of Madras conceded that these two applicants would have been admitted to the educational institutions they intended to join and they would not have been denied admission if selections had been made on merits alone.
Article 29 which occurs in Part III of the Constitution under the head "Cultural and
Educational Rights" runs as follows:
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(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
It will be noticed that while clause (1) protects the language, script or culture of a section of the citizens, clause (2) guarantees the fundamental right of an individual citizen.
The right to get admission into any educational institution of the kind mentioned in clause (2) is a right which an individual citizen has as a citizen and not as a member of any community or class of citizens. This right is not to be denied to the citizen on grounds only of religion, race, caste, language or any of them. If a citizen who seeks admission into any such educational institution has not the requisite academic qualifications and is denied admission on that ground, he certainly cannot be heard to complain of an infraction of his fundamental right under this article. But, on the other hand, if he has the academic qualifications but is refused admission only on grounds of religion, race, caste, language or any of them, then there is a clear breach of his fundamental right.
The learned Advocate-General appearing for the State contends that the provisions of this article have to be read along with other articles in the Constitution. He urges that article
46 charges the State with promoting with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the
Scheduled Tribes, and with protecting them from social injustice and all forms of exploitation.
It is pointed out that although this article finds a place in Part IV of the Constitution which lays down certain directive principles of State policy and though the provisions contained in that Part are not enforceable by any Court, the principles therein laid down are nevertheless fundamental for the governance of the country and article 37 makes it obligatory on the part of the State to apply those principles in making laws. The argument is that having regard to the provisions of article 46, the State is entitled to maintain the Communal G.O. fixing proportionate seats for different communities and if because of that Order, which is thus contended to be valid in law and not in violation of the Constitution, the petitioners are unable to get admissions into the educational institutions, there is no infringement of their fundamental rights. Indeed, the learned Advocate-General of Madras even contends that the provisions of article 46 override the provisions of article 29(2). We reject the above noted contentions completely.
The directive principles of the State policy, which by article 37 are expressly made unenforceable by a Court, cannot override the provisions found in Part III which, notwithstanding other provisions, are expressly made enforceable by appropriate Writs,
Orders or directions under article 32. The chapter of Fundamental Rights is sacrosanct and not liable to be abridged by any Legislative or Executive Act or order, except to the extent provided in the appropriate article in Part III. The directive principles of State policy have to conform to and run as subsidiary to the Chapter of Fundamental Rights. In our opinion, that is the correct way in which the provisions found in Part III and IV have to be understood.
However, so long as there is no infringement of any Fundamental Right, to the extent conferred by the provisions in Part III, there can be no objection to the State acting in accordance with the directive principles set out in Part IV, but subject again to the Legislative and Executive powers and limitations conferred on the State under different provisions of the
Constitution.
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In the next place, it will be noticed that article 16 which guarantees the fundamental right of equality of opportunity in matters of public employment and provides that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State also includes a specific clause in the following terms:(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments of posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
If the arguments founded on article 46 were sound then clause (4) of article 16 would have been wholly unnecessary and redundant. Seeing, however, that clause (4) was inserted in article 16, the omission of such an express provision from article 29 cannot but be regarded as significant. It may well be that the intention of the Constitution was not to introduce at all communal considerations in matters of admission into any educational institution maintained by the State or receiving aid out of State funds. The protection of backward classes of citizens may require appointment of members of backward classes in State services and the reason why power has been given to the State to provide for reservation of such appointments for backward classes may under those circumstances be understood. That consideration, however, was not obviously considered necessary in the case of admission into an educational institution and that may well be the reason for the omission from article 29 of a clause similar to clause
(4) of article 16.
Take the case of the petitioner Srinivasan. It is not disputed that he secured a much larger number of marks than the marks secured by many of the Non-Brahmin candidates and yet the Non-Brahmin candidates who secured less number of marks will be admitted into six out of every 14 seats but the petitioner Srinivasan will not be admitted into any of them. What is the reason for this denial of admission except that he is a Brahmin and not a Non-Brahmin.
He may have secured higher marks than the Anglo-Indian and Indian Christians or Muslim candidates but, nevertheless, he cannot get any of the seats reserved for the last mentioned communities for no fault of his except that he is a Brahmin and not a member of the aforesaid communities. Such denial of admission cannot but be regarded as made on ground only of his caste. It is argued that the petitioners are not denied admission only because they are
Brahmins but for a variety of reasons, e.g., (a) they are Brahmins, (b) Brahmins have an allotment of only two seat out of 14 and (c) the two seats have already been filled up by more meritorious Brahmin candidates. This may be true so far as these two seats reserved for the
Brahmins are concerned but this line of argument can have no force when we come to consider the seats reserved for candidates of other communities, for, so far as those seats are concerned, the petitioners are denied admission into any of them not on any ground other than the sole ground of their being Brahmins and not being members of the community for whom those reservations have been made. The classification in the Communal G.O. proceeds on the basis of religion, race and caste. In our view, the classification made in the Communal G.O. is opposed to the Constitution and constitutes a clear violation of the fundamental rights guaranteed to the citizen under article 29(2). In this view of the matter, we do not find it necessary to consider the effect of articles 14 or 15 on the specific articles discussed above.
For the reasons stated above, we are of opinion that the Communal G.O. being inconsistent with the provisions of article 29(2) in Part III of the Constitution is void under article 13. The result, therefore, is that these appeals stand dismissed with costs. Appeals dismissed. Page 138 of 610
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RESERVATION IN GOVERNMENT EMPLOYMENT
STATE OF KERALA V. N. M. THOMAS
AIR 1976 SC 490, (1976) 2 SCC 310
Decided On: September 19, 1975
BENCH – CHIEF JUSTICE A. N. RAY, JUSTICES H. R. KHANNA, K. K. MATHEW, M. H. BEG,
V.R. KRISHNA IYER, A. C. GUPTA & S. M. FAZAL ALI
CHIEF JUSTICE RAY (for himself) [Justices Mathew, Beg, Krishna Iyer & Fazal Ali, CONCURRING but wrote their separate opinions]
This appeal is by certificate from the judgment dated 19 April, 1974 of the High Court of
Kerala. This appeal concerns the validity of Rule 13AA of the Kerala State and Subordinate
Services Rules, 1958 hereinafter called the Rules and two orders which are marked P-2 and P-6.
In order to appreciate Rule 13AA, it is necessary to refer to Rules 12, 13A, 13AA. These rules were framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution.
These rules came into existence on 17 December, 1958.
"Promotion" is defined in Rule 2(11) to mean the appointment of a member of any category or grade of a service or a class of service to a higher category or grade of such service or class.
Rule 12 states that where general educational qualifications, special qualifications or special tests are prescribed by the Special Rules of a service for any category, grade or post therein, or in a class thereof, which are not prescribed for a category or grade in such service or class carrying a lower rate of pay and no member in the category or grade carrying the lower rate of pay is eligible for promotion to such category, grade or post a member in such lower category or grade may be promoted to the category or grade carrying the higher rate of pay temporarily until a member of the former category or grade qualified under this rule is available for promotion. A member temporarily promoted under this rule shall not by reason only of such promotion, be regarded as a probationer in the category or grade to which he has been promoted, or be entitled to any preferential claim to future promotion.
Rule 13 speaks of special qualifications. Rule 13 does not concern this appeal.
The two rules which are of importance in this appeal are Rules 13A and 13AA. They are as follows:13A. Special and Departmental Tests- Temporary exemption for promotion.Notwithstanding anything contained in Rule 13, where a pass in a special or departmental test is newly prescribed by the Special Rules of a service for any category, grade or post therein or in any class thereof, a member of a service who has not passed the said test but is otherwise qualified and suitable for appointment to such class, category, grade or post may within 2 years of the introduction of the test be appointed thereto temporarily. If a member so appointed does not pass the test within two years from the date of introduction of the said test or when the said test also involves practical training within two years after the first chance to undergo such training he shall be reverted to the class, category or grade or post from which he was appointed and shall not again be eligible for appointment under this rule:
Provided that a person so reverted shall not by reason only of the appointment under this rule be entitled to any preferential claim to future appointment to the class, category, grade or post, as the case may be to which he had been appointed under this rule:
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Provided further that the period of temporary exemption shall be extended by two years in the case of a person belonging to any of the scheduled castes or scheduled tribes. Provided also that this rule shall not be applicable to tests prescribed or purposes of promotion of the executive staff below the rank of Sub-Inspectors belonging to the Police Department.
13AA. Notwithstanding anything contained in these rules, the Government may, by order, exempt for a specified period, any member or members, belonging to a
Scheduled Caste or a Scheduled Tribe, and already in service, from passing the tests referred to in Rule 13 or Rule 13A of the said Rules.
Provided that this rule shall not be applicable to tests prescribed for purposes of promotion of the executive staff below the rank of Sub-Inspectors belonging to the Police Department.
It is necessary to state here that the third proviso to Rule 13A and the proviso to Rule 13AA were introduced with effect from 12 October, 1973. Rule 13AA was introduced with effect from
13 January, 1972. Exhibit P-2 an order dated 13 January, 1972. The order is made by the Governor.
The order refers to a memorandum dated 19 June, 1971 from the President, Kerala Harijan
Samskarika Kshema Samithy, State Committee, Trivandrum and a letter dated 13 November, 1971 from the Secretary, Kerala Public Service Commission, The order is as follows :The President, Kerala Harijan Samskarika Kshema Samithy, Trivandrum has brought to the notice of Government that a large number of Harijan employees are facing immediate reversion from their posts for want of test qualifications and has therefore requested that all Scheduled Castes and Scheduled Tribes employees may be granted temporary exemption from passing the obligatory departmental tests for a period of two years with immediate effect.
(2) Government have examined the matter in consultation with the Kerala Public
Service Commission and are pleased to grant temporary exemption to members already in service belonging to any of the Scheduled Castes and Scheduled Tribes from passing all tests (unified and special or departmental tests) for a period of two years.
(3) The benefit of the above exemption will be available to those employees belonging to Scheduled Castes and Scheduled Tribes who are already enjoying the benefits of temporary exemption from passing newly prescribed tests under
General Rule 13A. In their case, the temporary exemption will expire only on the date of expiry of the temporary exemption mentioned in para (2) above or on the date of expiry of the existing temporary exemption, whichever is later.
(4) This order will take effect from the date of the order.
Exhibit P-6 is an order dated 11 January 1974. It is an order made by the Governor. The order is as follows:Government are pleased to order that the period of temporary exemption granted to Scheduled Castes and Scheduled Tribes in the G.O. read above from passing all tests (unified and special or departmental tests) be extended from 13-1-1974 to cover a period during which two tests are held by the Public Service
Commission and results thereof published so that each individual gets two chances to appear. Government also order that these categoriess of employees will not be given any further extension of time to acquire the test qualifications.
Purusuant to Rule 13AA which came into force on 13 January, 1972, the order Exhibit P-2 was passed on 13 January, 1972 granting temporary exemption to members already in service belonging to any of the Scheduled Castes and Scheduled Tribes from passing all tests (unified and special or departmental tests) for a period of two years. The exemption granted by Exhibit P-2 in almost all cases would have expired on 12 January, 1974.
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The other impugned order i.e., Exhibit P-6 which was passed on 11 January, 1974 gave further exemption to members of Scheduled Castes and Tribes from 13 January, 1974 from passing tests to cover a period during which two tests would be held by the Public Service Commission and results thereof published so that each individual would get two chances to appear within that period. The Government also ordered that these categories of employees would not be given any further extension of time to acquire the test qualifications.
On the basis of these exemption orders, several promotions have been effected. The respondent alleged in the writ, petition that 12 Lower Division Clerks who were members of Scheduled Castes and Scheduled Tribes were promoted without test qualification The further allegation is that by an order dated 15 June, 1972, 19 Lower Division Clerks belonging to Scheduled Castes and Tribes were promoted as Upper Division Clerks of which 5 were unqualified Scheduled Castes and
Scheduled Tribes members and 14 were qualified Scheduled Castes and Scheduled Tribes members. By order dated 19 September, 1972, another 8 promotions of members of Scheduled
Castes and Tribes were ordered of which only two were qualified and the remaining six were unqualified. By another order dated 31 October, 1972, 7 Scheduled Castes and Scheduled Tribes members were promoted without qualifying test and one was promoted with the qualifying test.
The grievance of the respondent-petitioner before the High Court was that out of 51 vacancies which arose in the category of Upper Division Clerks in the year 1972, 34 were filled up by
Scheduled Castes members who did not possess qualifications and only 17 were given to qualified persons. The respondent is a Lower Division Clerk working in the Registration Department. For promotion to Upper Division Clerk in that Department on the basis of seniority, the Lower
Division Clerks have to pass (1) Account Test (Lower), (2) Kerala Registration Test and (3) Test in the manual of office procedure. The respondent 's grievance is that in view of certain concessions given to members of Scheduled Castes and Scheduled Tribes, they were able to obtain promotions earlier than the respondent, though the members of the Scheduled Castes and Scheduled Tribes who were promoted had not passed the tests.
The respondent in the writ petition filed in the High Court asked for a declaration that Rule
13AA is unconstitutional and a mandamus for compelling the State to forbear from giving effect to order dated 13 January, 1972 marked Exhibit P-2. The respondent by an affidavit asked for a similar order that Exhibit P-6 dated 11 January 1974 be set aside.
The respondent 's contentions in the High Court were that Rule 13AA of the Service Rules and
Exhibits P-2, P-6 and Exhibit P-7 which was another order dated 31 October, 1972 and all orders of promotion made thereunder were violative of Articles 16(1) and 16(2). The High Court upheld the contentions of respondent No. 1.
The contention of the State is that the impugned rules and orders are not only legal and valid but also support a rational classification under Article 16(1).
The contentions on behalf of respondent No. 1 are these. First, Article 16 is a specific application of Article 14 in matters relating to employment or appointment to any service in the
State. Clauses (1) and (2) of Article 16 give effect to equality before law guaranteed by Article 14 and to prohibition against discrimination guaranteed by Article 15(1). In other words, Article 16(1) is absolute in terms guaranteeing equality of opportunity to every individual citizen seeking employment or appointment Emphasis is placed on similar opportunity and equal treatment for seeking employment or appointment. Second, matters relating to employment in Article 16(1) include all matters in relation to employment both prior and subsequent to the employment and form part of the terms and conditions of service. Equal opportunity is to be given for appointment, promotion, termination of employment and payment of pension and gratuity. Third, the
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abridgement of equality guaranteed by Article 16(1) is only to the extent curtailed by Article 16(4).
Apart from Article 16(4), the right guaranteed under Article 16(1) cannot be curtailed Article 16(4) is, in substance, an exception to rights guaranteed by Article 16(1) and (2). Fourth, Article 16(4) does not cover the entire field occupied by Article 16(1) and (2). Some of the matters relating to employment in respect of which equality of opportunity has been guaranteed by Article 16(1) and
(2) do not fall within the mischief of non obstante clause in Article 16(4). To illustrate, Clauses
(1) and (2) of Article 16 do not prohibit the prescription of reasonable rules for selection to any employment or appointment in office. Any provision as to the qualification for employment or appointment in office reasonably fixed and applicable to all citizens would be consistent with the doctrine of equality of opportunity in Article 16(1). Reasonable qualification of employment for the purpose of efficiency of service is justified. Fifth, Rule 13AA is violative of Article 16(1) and
(2). The impeached Exhibits fall within the same mischief. There is no scope for dealing with
Scheduled Castes and Scheduled Tribes different from other backward classes. Exemption from qualification necessary for promotion is not conducive to the maintenance of efficiency of administration and violates not only Article 335 of the Constitution but also Article 16(1).
Before the introduction of the Kerala State and Subordinate Services Rules, 1958 on 17
December, 1958 and also the formation of Kerala State on 1 Nov., 1956, the Travancore-Cochin
Government had issued orders on 14 June, 1956 directing that the standard of qualification should be lower for members of Scheduled Castes arid Scheduled Tribes than compared to others in the matter of examinations relating to various tests. By Government order dated 27 June, 1958, it was directed that the period of exemption for passing tests be extended by two years in the case of
Scheduled Castes and Scheduled Tribes. Again by Government order dated 2 January, 1961, the period of exemption to Scheduled Castes and Scheduled Tribes was further extended to 3 years.
By another Government order dated 14 January, 1963, a unified account test (lower) and a test in office procedure were introduced replacing the old tests and as this was treated as a new test, all persons who were formerly in Travancore-Cochin or Madras Service were given two years time to pass the test and members of the Scheduled Castes and Scheduled Tribes were given extra time in accordance with the orders earlier mentioned. A circular was issued on 9 February, 1968 granting 7 years ' time from 14 January, 1963 to members of the Scheduled Castes and Scheduled
Tribes to pass the unified tests. This period was to expire on 14 January, 1970. On 1 '3 January,
1970, an order was passed extending the time for another year upto 14 January, 1971. On 14
January, 1971 another Government order was issued extending the period by another year.
It was brought to the notice of the Government that large number of Government servants belonging to Scheduled Castes arid Scheduled Tribes were unable to get their promotion because of want of test qualifications. In order to give relief to the Scheduled Castes and Scheduled Tribes, the Government incorporated Rule 13AA which enabled the Government to grant exemption to members of Scheduled Castes and Scheduled Tribes for a specified period. On 13 January, 1972 exemption from passing the tests was granted to members of Scheduled Castes and Scheduled
Tribes for two years. On 11 January, 1974 order was made under Rule 13AA giving members of
Scheduled Castes and Scheduled Tribes exemption from passing the tests for the period of two tests to be conducted after the order dated 11 January, 1974.
The criterion for promotion of Lower Division Clerks to Upper Division Clerks is senioritycum-merit qualification. For want of test qualification a large number of Lower Division Clerks belonging to Scheduled Castes and Scheduled Tribes were passed over. It is because of the aforesaid Government order dated 1 '3 January, 1972 marked Exhibit P-2 that promotions were made according to seniority-cum-merit qualification. The larger share went to the members of the
Scheduled Castes and Scheduled Tribes because they were senior hands. After the issue of the order dated 13 January, .1972, 34 out of 51 Lower Division Clerks who were promoted belonged to the Scheduled Castes and Scheduled Tribes. These 34 persons were given temporary exemption
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from passing the departmental tests. It also appears that these 34 members of Scheduled Castes and Scheduled Tribes have become senior-most in the lower cadre.
Articles 14, 15 and 16 form part of a string of Constitutional guaranteed rights. These rights supplement each other. Article 16 which ensures to all citizens equality of opportunity in matters relating to employment is an incident of guarantee of equality contained in Article 14. Article 16(1) gives effect to Article 14. Both Articles 14 and 16(1) permit reasonable classification having a nexus to the objects to be achieved. Under Article 16 there can be a reasonable classification of the employees in matters relating to employment or appointment.
... The crux of the matter is whether Rule 13AA and the two orders Exhibits P-2 and P-6 are unconstitutional violating Article 16(1). Article 16(1) speaks of equality of opportunity in matters relating to employment or appointment under the State. The impeached Rule and orders relate to promotion from Lower Division Clerks to Upper Division Clerks. Promotion depends upon passing the test within two years in all cases and exemption is granted to members of Scheduled
Castes and Scheduled Tribes for a longer period namely, four years. If there is a rational classification consistent with the purpose for which such classification is made equality is not violated. The categories of classification for purposes of promotion can never be closed on the contention that they are all members of the same cadre in service. If classification is made on educational qualifications for purposes of promotion or if classification is made on the ground that the persons are not similarly circumstanced in regard to their entry into employment, such classification can be justified. Classification between direct recruits and promotees for purposes of promotion has been held to be reasonable in C. A. Rajendran v. Union of India, (1968) II LLJ
407 (SC).
The respondent contended that apart from Article 16(4) members of Scheduled Castes and
Scheduled Tribes were not entitled to any favoured treatment in regard to promotion. In T.
Devadasan v. Union of India, (1965) II LLJ 560 (SC) reservation was made for backward classes.
The number of reserved seats which were not filled up was carried forward to the subsequent year.
On the basis of “carry forward” principle it was found that such reserved seats might destroy equality. To illustrate, if 18 seats were reserved and for two successive years the reserved seats were not filled and in the third year there were 100 vacancies the result would be that 54 reserved seats would be occupied out of 100 vacancies. This would destroy equality. On that ground "carry forward" principle was not sustained in Devadasan. The same view was taken in the case of M. R.
Balaji v. State of Mysore, AIR 1963 SC 649. It was said that not more than 50 per cent should be reserved for backward classes. This ensures equality. Reservation is not a Constitutional compulsion but is discretionary according to the ruling of this Court in Raiendran 's case, (1968)
II LLJ 407 (SC).
There is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection (State of Mysore v. V. P. Narasinga Rao, (1968) II LLJ 120 (SC)).
This equality of opportunity need not be confused with absolute equality. Article 16(1) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. In regard to employment, like other terms and conditions associated with and incidental to it, the promotion to a selection post is also included in the matters relating to employment and even in regard to such a promotion to a selection post all that Article 16(1) guarantees is equality of opportunity to all citizens. Article 16(1) and (2) gives effect to equality before law guaranteed by Article 14 and to the prohibition of discrimination guaranteed by Article
15(1). Promotion to selection post is covered by Article 16(1) and (2).
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The power to make reservation, which is conferred on the State, under Article 16(4) can be exercised by the State in a proper case not only by providing for reservation of appointments but also by providing for reservation of selection posts. In providing for reservation of appointments or posts under Article 16(4) the State has to take into consideration the claims of the backward classes consistently with the maintenance of the efficiency of administration. It must not be forgotten that the efficiency of administration is of such paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration.
(General Manager, S. Rly. v. Rangachari, (1970) II LLJ 289 (SC)). The present case is not one of reservation of posts by promotion
Under Article 16(1) equality of opportunity of employment means equality as between members of the same class of employees and not equality between members of separate, independent class. The Road-side Station Masters and Guards are recruited separately, trained separately and have separate avenues of promotion. The Station Masters claimed equality of opportunity for promotion vis-à-vis the guards on the ground that they were entitled to equality of opportunity. It was said the concept of equality can have no existence except with reference to matters which are common as between individuals, between whom equality is predicated. The
Roadside Station Masters and Guards were recruited separately. Therefore, the two form distinct and separate classes and there is no scope for predicating equality or inequality of opportunity in matters of promotion. (See All India Station Masters and Asst. Station Masters ' Association v.
General Manager, Central Rlys, [1960] 2 SCR 311). The present case is not to create separate avenues of promotion for these persons.
The rule of parity is the equal treatment of equals in equal circumstances. The rule of differentiation is enacting laws differentiating between different persons or things in different circumstances. The circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different sets of circumstances. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons require special treatment. The legislature understands and appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds. The rule of classification is not a natural and logical corollary of the rule of equality, but the rule of differentiation is inherent in the concept of equality. Equality means parity of treatment under parity of conditions. Equality does not connote absolute equality. A classification in order to be
Constitutional must rest upon distinctions that are substantial and not merely illusory. The test is whether it has a reasonable basis free from artificiality and arbitrariness embracing all and omitting none naturally falling into that category.
…The rule of equality within Articles 14 and 16(1) will not be violated by a rule which will ensure equality of representation in the services for unrepresented classes after satisfying the basic needs of efficiency of administration. Article 16(2) rules out some basis of classification including race, caste, descent, place of birth etc. Article 16(4) clarifies and explains that classification on the basis of backwardness does not fall within Article 16(2) and is legitimate for the purposes of
Article 16(1). If preference shall be given to a particular under-represented community other than a backward class or under-represented state in an All India Service such a rule will contravene
Article 16(2). A similar rule giving preference to an under-represented backward community is valid and will not contravene Articles 14, 16(1) and 16(2). Article 16(4) removes any doubt in this respect Page 144 of 610
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The principle of equality is applicable to employment at all stages and in all respects, namely, initial recruitment promotion, retirement, payment of pension and gratuity. With regard to promotion the normal principles are either merit-cum-seniority or seniority-cum-merit, Senioritycum-merit means that given the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority. This will not violate
Articles 14, 16(1) and 16(2). A rule which provides that given the necessary requisite merit, a member of the backward class shall get priority to ensure adequate representation will not similarly violate Article 14 or Article 16(1) and (2). The relevant touchstone of validity is to find out whether the rule of preference secures adequate representation for the unrepresented backward community or goes beyond it.
The classification of employees belonging to Scheduled Castes and Scheduled Tribes for allowing them an extended period of two years for passing the special tests for promotion is a just and reasonable classification having rational nexus to the object of providing equal opportunity for all citizens in matters relating to employment or appointment to public office. Granting of temporary exemptions from special tests to the personnel belonging to Scheduled Castes and
Scheduled Tribes by executive orders has been an integral feature of the service conditions in
Kerala from its very inception on 1 November, 1956. That was the pattern in Travancore-Cochin
State. The special treatment accorded to the Scheduled Castes and Scheduled Tribes in
Government service which had become part and parcel of the conditions of service over these long periods amply justify the classification of the members of the Scheduled Castes and Scheduled
Tribes as a whole by the impugned rule and orders challenged. What was achieved by the
Government orders is now given a statutory basis by Rule 13AA. The historical background of these rules justifies the classification of the personnel of the Scheduled Castes and Scheduled
Tribes in service for the purpose of granting them exemption from special tests with a view to ensuring them the equality of treatment and equal opportunity in matters of employment having regard to their backwardness and under representation in the employment of the State.
…The High Court was wrong in basing its conclusion that the result of application of the impeached Rule and the orders is excessive and exorbitant namely that out of 51 posts, 34 were given to the members of the Scheduled Castes and Scheduled Tribes. The promotions made in the services as a whole are nowhere near 50 per cent of the total number of posts. The Scheduled
Castes and Scheduled Tribes constitute 10 per cent of the State 's population. Their share in the gazetted services of the State is said to be 2 per cent namely 184 out of 8,780. Their share in the non-gazetted appointments is only 7 per cent namely 11,437 out of 1,62,784. It is, therefore, correct that Rule 13AA and the orders are meant to implement not only the direction under Article 335 but also the Directive Principle under Article 46.
Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste.
In Bhaiyalal v. Harikishan Singh, [1965] 2 SCR 877 this Court held that an enquiry whether the appellant there belonged to the Dohar caste which was not recognised as a Scheduled Caste and his declaration that he belonged to the Chamar caste which was a Scheduled Caste could not be permitted because of the provisions contained in Article 341. No Court can come to a finding that any caste or any tribe is a Scheduled Caste or Scheduled Tribe. Scheduled Caste is a caste as notified under Article 366(25). A notification is issued by the President under Article 341 as a result of an elaborate enquiry. The object of Article 341 is to provide protection to the members of Scheduled Castes having regard to the economic and educational backwardness from which they suffer.
Our Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. The claims of members of backward classes require adequate representation in legislative and executive bodies. If members of
Scheduled Castes and Tribes, who are said by this Court to be backward classes, can maintain
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minimum necessary requirement of administrative efficiency, not only representation but also preference may be given to them to enforce equality and to eliminate inequality. Articles 15(4) and 16(4) bring out the position of backward classes to merit equality. Special provisions are made for the advancement of backward classes and reservations of appointments and posts for them to secure adequate representation. These provisions will bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). The basic concept of equality is equality of opportunity for appointment. Preferential treatment for members of backward classes with due regard to administrative efficiency alone can mean equality of opportunity for all citizens. Equality under
Article 16 could not have a different content from equality under Article 14. Equality of opportunity for unequals can only mean aggravation of inequality. Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reasons means rational classification for differential treatment having nexus to the constitutionally permissible object. Preferential representation for the backward classes in services with due regard to administrative efficiency is permissible object and backward classes are a rational classification recognised by our Constitution. Therefore, differential treatment in standards of selection are within the concept of equality.
A rule in favour of an under-represented backward community specifying the basic needs of efficiency of administration will not contravene Articles 14, 16(1) and 16(2). The rule in the present case does not impair the test of efficiency in administration inasmuch as members of
Scheduled Castes and Tribes who are promoted have to acquire the qualification of passing the test. The only relaxation which is done in their case is that they are granted two years more time than others to acquire the qualification. Scheduled Castes and Tribes are descriptive of backwardness. It is the aim of our Constitution to bring them up from handicapped position to improvement. If classification is permissible under Article 14 it is equally permissible under
Article 16, because both the Articles lay down equality. The quality and concept of equality is that if persons are dissimilarly placed they cannot be made equal by having the same treatment.
Promotion of members of Scheduled Castes and Tribes under the impeached rules and orders is based on the classification with the object of securing representation to members of Scheduled
Castes and Tribes. Efficiency has been kept to view and not sacrificed.
All legitimate methods are available for equality of opportunity in services under Article 16(1).
Article 16(1) is affirmative whereas Article 14 is negative in language. Article 16(4) indicates one of the methods of achieving equality embodied in Article 16(1). Article 16(1) using the expression
"equality" makes it relatable to all matters of employment from appointment through promotion and termination to payment of pension and gratuity. Article 16(1) permits classification on the basis of object and purpose of law or State action except classification involving discrimination prohibited by Article 16(2). Equal protection of laws necessarily involves classification. The validity of the classification must be adjudged with reference to the purpose of law. The classification in the present case is justified because the purpose of classification is to enable members of Scheduled Castes and Tribes to find representation by promotion to a limited extent.
From the point of view of time a differential treatment is given to members of Scheduled Castes and Tribes for the purpose of giving them equality consistent with efficiency.
For the foregoing reasons, I uphold the validity of Rule 13AA and Exhibits P-2 and P-6. The appeal is accepted. The judgment of the High Court is set aside. Parties will pay and bear their own costs.
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JUSTICE KHANNA (for himself, DISSENTING) [Justice Gupta CONCURRING but wrote his separate opinion] Whether the State Government can grant exemption for specified period to employees belonging only to the scheduled castes or scheduled tribes from passing departmental test for the purpose of promotion under Clause (1) of Article 16 of the Constitution is the important question which arises for determination in this appeal filed on certificate by the State of Kerala and the Inspector General of Registration against the judgment of the Kerala High Court. The
High Court answered the question in the negative in a petition filed by N. M. Thomas, lower division clerk of the Registration Department of the Kerala State, respondent No. 1, under
Article 226 of the Constitution.
… Article 14 of the Constitution enshrines the principle of equality before the law. Article
15 prohibits discrimination against citizens on grounds only of religion, race, caste, sex, place of birth or any of them. Article 16 represents one facet of the guarantee of equality. According to this Article, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. No citizen, it is further provided, shall on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. Articles 14, 15 and 16 underline the importance which the framers of our Constitution attached to ensuring equality of treatment. Such equality has a special significance in the matter of public employment. It was with a view to prevent any discrimination in that field that an express provision was made to guarantee equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
At the same time the framers of the Constitution were conscious of the backwardness of large sections of the population. It was also plain that because of their backwardness those sections of the population would not be in a position to compete with advanced sections of the community who had all the advantages of affluence and better education. The fact that the doors of competition were open to them would have been a poor consolation to the members of the backward classes because the chances of their success in the competition were far too remote on account of the inherent handicap and disadvantage from which they suffered. The result would have been that, leaving aside some exceptional cases, the members of backward classes would have hardly got any representation in jobs requiring educational background. It would have thus resulted in virtually repressing those who were already repressed. The framers of the Constitution being conscious of the above disadvantage from which backward classes were suffering enjoined upon the State in Article 46 of the Constitution to promote with special care educational and economic interests of the weaker sections of the people, in particular of the scheduled castes and scheduled tribes, and also protect them from social injustice and all forms of exploitation.
To give effect to that objective in the field of public employment, a provision was made in
Clause (4) of Article 16 that nothing in that article would prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, was not adequately represented in the services under the State. Under the above clause, it is permissible for the State, in case it finds the representation of any backward class of citizens in the State services to be not adequate, to make provision for the reservation of appointments or posts in favour of that backward class of citizens. The reservation of seats for the members of the backward classes was not, however, to be at the cost of efficiency. This fact was brought out in Article 335, according to which the claims of the members of the scheduled castes and the scheduled tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.
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In view of that it is not permissible to waive the requirement of minimum educational qualification and other standards essential for the maintenance of efficiency of service.
It is further plain that the reservation of posts for a section of population has the effect of conferring a special benefit on that section of the population because it would enable members belonging to that section to get employment or office under the State which otherwise in the absence of reservation they could not have got. Such preferential treatment is plainly a negation of the equality of opportunity for all citizens in matters relating to employment or appointment to an office under the State. Clause (4) of Article 16 has therefore, been construed as a proviso or exception to Clause (1) of that article …
… The essential object of various rules dealing with appointment to posts under the State and promotion to higher posts is to ensure efficiency of service. Classification upheld under
Clause (1) of Article 16 subserved and in no case militated against the attainment of that object.
Exemption granted to a class of employees, even though for a limited period, from passing the departmental tests which have been prescribed for the purpose of promotion would obviously be subversive of the object to ensure efficiency of service. It cannot be disputed that departmental tests are prescribed with a view to appraise and ensure efficiency of different employees. To promote employees even though they have not passed such efficiency test can hardly be consistent with the desideratum of ensuring efficiency in administration exclusion of diploma holders was held to be not violative of Articles 14 and 16 of the Constitution. It would thus appear that in each of the above cases the Court was concerned with two categories of employees, each one of which category constituted a separate and distinct class. Differential treatment for those classes was upheld in the context of their educational and other qualifications and because of the fact that they constituted distinct and separate classes. Not much argument is needed to show that a rule requiring that an official must possess a degree in engineering before he can be promoted to the post of executive engineer is conceived in the interest of efficiency of service. A classification based upon that consideration is obviously valid. Likewise, classification based upon the consideration that one category of employees are direct recruits while others are promotees, is permissible classification because the two categories of employees constitute two separate and distinct classes. The same is true of roadside station masters and guards. Classification of employees in each of these cases was linked with the nature of their initial employment or educational qualifications and had nothing to do with the fact that they belonged to any particular section of the population. A classification based upon the first two factors was upheld because it was conceived in the interest of efficiency of service and because they constituted two different classes in view of the fact that they were initially appointed to posts of different categories. Such classification does not impinge upon the rule of equality of opportunity. As against that, a classification based upon the consideration that an employee belongs to a particular section of the population with a view to accord preferential treatment for promotion is clear violation of equality of opportunity enshrined in Clause (1) of Article 16. In no case has the Court ever accepted and upheld under
Article 16(1) classification and differential treatment for the purpose of promotion among employees who possessing the same educational qualifications were initially appointed as in the present case to the same category of
Much has been made of the fact that exemption from passing departmental tests granted to members of scheduled castes and scheduled tribes is not absolute but only for a limited period.
This fact, in our opinion, would not lend Constitutionality to the impugned rule and orders.
Exemption granted to a section of employees while being withheld from the remaining
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employees has obvious element of discrimination between those to whom it is granted and those from whom it is withheld. If the passing of departmental tests is an essential condition of promotion, it would plainly be invidious to insist upon compliance with that condition in the case of one set of employees and not to do so in the case of other. The basic question is whether exemption is constitutionally permissible. If the answer to that question be in the negative, the fact that exemption is for a limited period would not make any material difference. In either event the vice of discrimination from which exemption suffers would contaminate it and stamp it with unconstitutionally. Exemption for a limited period to be constitutionally valid cannot be granted to one set of employees and withhold from the other.
What Clause (1) of Article 16 ensures is equality of opportunity for all citizens as individuals in matters relating to employment or appointment to any office under the State. It applies to them all, the least deserving as well as the most virtuous. Preferential and favoured treatment for some citizens in the matter of employment or appointment to any office under the
State would be antithesis of the principle of equality of opportunity. Equality of opportunity in matters of employment guaranteed by Clause (1) of Article 16 is intended to be real and effective. It is not something abstract or illusory. It is a command to be obeyed, not one to be defied or circumvented. It cannot be reduced to shambles under some cloak. Immunity or exemption granted to a class, however limited, must necessarily have the effect of according favoured treatment to that class and of creating discrimination against others to whom such immunity or exemption is not granted. Equality of opportunity is one of the corner stones of our Constitution. It finds a prominent mention in the preamble to the Constitution and is one of the pillars which gives support and strength to the social, political and administrative edifice of the nation. Privileges, advantages, favours, exemptions, concessions specially ear-marked for sections of population run counter to the concept of equality of opportunity, they indeed eat into the very vitals of that concept. To countenance classification for the purpose of according preferential treatment to persons not sought to be recruited from different sources and in cases not covered by Clause (4) of Article 16 would have the effect of eroding, if not destroying altogether, the valued principle of equality of opportunity enshrined in Clause (1) of Article 16.
The proposition that to overdo classification is to undermine equality is specially true in the context of Article 16(1). To introduce fresh notions of classification in Article 16(1), as is sought to be done in the present case, would necessarily have the effect of vesting the State under the garb of classification with power of treating sections of population as favoured classes for public employment. The limitation imposed by Clause (2) of Article 16 may also not prove very effective because, as has been pointed out during the course of arguments, that clause prevents discrimination on grounds only of religion, race, castes, sex, descent, place of birth, residence or any of them. It may not be difficult to circumvent that clause by mentioning grounds other than those mentioned in Clause (2).
To expand the frontiers of classification beyond those which have so far been recognised under Clause (1) of Article 16 is bound to result in creation of classes for favoured and preferential treatment for public employment and thus erode the concept of equality of opportunity for all citizens in matters relating to employment under the State.
… The liberal approach that may sometimes have been adopted in upholding classification under Article 14 would in the very nature of filings be not apt in the context of Article 16 when we keep in view the object underlying Article 16. Article 14 covers a very wide and general field of equality before the law and the equal protection of the laws. It is, therefore, permissible to cover within its ambit manifold classifications as long as they are reasonable and have a rational connection with the object thereof. As against that, Article 16 operates in the limited area of equality of opportunity for all citizens in matters relating to employment or appointment to an office under the State. Carving out classes of citizens for favoured treatment in matters
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of public employment, except in cases for which there is an express provision contained in
Clause (4) of Article 16, would as already pointed out above in the very nature of things run counter to the concept underlying Clause (1) of Article 16.
The matter can also be looked at from another angle. If it was permissible to accord favoured treatment to members of backward classes under Clause (1) of Article 16, there would have been no necessity of inserting Clause (4) in Article 16. Clause (4) in Article 16 in such an event would have to be treated as wholly superfluous and redundant. The normal rule of interpretation is that no provision of the Constitution is to be treated as redundant and superfluous. The Court would, therefore, be reluctant to accept a view which would have the effect of rendering Clause (4) of Article 16 redundant and superfluous.
This Court in the case of State of Madras v. Champakam Dorairaian, [1951] 2 SCR 525 unequivocally repelled the argument the effect of which would have been to treat Clause (4) of
Article 16 to be wholly unnecessary and redundant. Question which arose for consideration in that case was whether a Communal G. G. fixing percentage of seats for different sections of population for admission in the engineering and medical colleges of the State of Madras contravened the fundamental rights. It was held that the Communal G. O. by which percentage of seats was apportioned contravened Article 29(2) of the Constitution. A seven Judge Bench of this Court in that case referred to Clause (4) of Article 16 of the Constitution and observed:
If the argument founded on Article 46 were sound then Clause (4) of Article 16 would have been wholly unnecessary and redundant. Seeing, however, that Clause
(4) was inserted in Article 16, the omission of such an express provision from
Article 29 cannot but be regarded as significant. It may well be that the intention of the Constitution was not to introduce at all communal considerations in matters of admission into any educational institution maintained by the State or receiving aid out of State funds. The protection of backward classes of citizens may require appointment of members of backward classes in State services and the reason why power has been given to the State to provide for reservation of such appointments for backward classes may under those circumstances be understood. That consideration, however, was not obviously considered necessary in the case of admission into an educational institution and that may well be the reason for the omission from Article 29 of a clause similar to Clause (4) of Article 16.
After the above decision of this Court, Clause (4) of Article 15 was added in the Constitution by the Constitution (First Amendment) Act, 1951 and the same reads as under:
Nothing in this article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes.
If the power of reservation of seats for backward classes was already contained in Clause
(1) of Article 15, the decision in the above-mentioned case would in the very nature of things have been different and there would have been no necessity for the introduction of Clause (4) in Article 15 by means of the Constitution (First Amendment) Act. …
… The matter can also be looked at from another angle. Departmental tests are prescribed to ensure standards of efficiency for the employees. To promote 34 out of 51 persons although they have not passed the departmental tests and at the same time not to promote those who have passed the departmental tests can hardly be conducive to efficiency-There does not, therefore, appear to be any infirmity in the finding of the High Court that the impugned promotions are also violative of Article 335 of the Constitution.
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I may state that there is no dispute so far as the question is concerned about the need to make every effort to ameliorate the lot of backward classes, including the members of the scheduled castes and the scheduled tribes. We are all agreed on that. The backwardness of those sections of population is a stigma on our social set up and has got to be erased as visualized in
Article 46 of the Constitution. It may also call for concrete acts to atone for the past neglect and exploitation of those classes with a view to bring them on a footing of equality, real and effective, with the advanced sections of the population. The question with which we are concerned, however, is whether the method which has been adopted by the appellants is constitutionally permissible under Clause (1) of Article 16. The answer to the above question, in my opinion, has to be in the negative. Apart from the fact that the acceptance of the appellants ' contention would result in undermining the principle of equality of opportunity enshrined in Clause (1) of Article 16, it would also in effect entail overruling of the view which has so far been held by this Court in the cases of Champakam [1951] 2 SCR 525; Rangachari
(1970) II LLJ 289 (SC) and Devadasan (1965) II LLJ 560 SC.
I find no sufficient ground to warrant such a course. The State, in my opinion, has ample power to make provision for safeguarding the interest of backward classes under Clause (4) of
Article 16 which deals with reservation of appointments or posts for backward classes not adequately represented in the services under the State. Inaction on the part of the State under
Clause (4) of Article 16 cannot, in my opinion, justify strained construction of Clause (1) of
Article 16. We have also to guard against allowing our supposed zeal to safeguard the interests of members of scheduled castes and scheduled tribes to so sway our mind and warp our judgment that we drain off the substance of the contents of Clause (1) of Article 16 and whittle down the principle of equality of opportunity in the matter of public employment enshrined in that clause in such a way as to make it a mere pious wish and teasing illusion. The ideals of supremacy of merit, the efficiency of services and the absence of discrimination in sphere of public employment would be the obvious casualties if we once countenance inroads to be made into that valued principle beyond those warranted by Clause (4) of Article 16.
The appeal is dismissed with costs.
INDRA SAWHNEY V. UNION OF INDIA
AIR 1993 SC 477, 1992 Supp. (3) SCC 217
Decided On: November 16, 1992
BENCH – CHIEF JUSTICE M. H. KANIA, JUSTICES M. N. VENKATACHALIAH, S. RATNAVEL
PANDIAN, DR. T. K. THOMMEN, A. M. AHMADI, KULDIP SINGH, P. B. SAWANT, R. M. SAHAI
& B.P. JEEVAN REDDY
JUSTICE JEEVAN REDDY (for the Chief Justice, Justices Venkatachaliah, Ahmadi and himself)
[Justices Pandian & Sawant CONCURRING but wrote their separate opinions]
… Equality has been and is the single greatest craving of all human beings at all points of time. It has inspired many a great thinker and philosopher. All religious and political schools of thought swear by it, including the Hindu religious thought, if one looks to it ignoring the later crudities and distortions. Liberty of thought, expression, belief, faith and worship has equally been an abiding faith with all human beings, and at all times in this country in particular.
Fraternity assuring the dignity of the individual has a special relevance in the Indian context, as this Judgment will illustrate in due course.
The doctrine of equality has many facets. It is a dynamic, and an evolving concept. Its main facets, relevant to Indian Society, have been referred to in the preamble and the articles under
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the sub-heading "Right to equality"- (Articles 14 to 18). In short, the goal is "equality of status and of opportunity". Articles 14 to 18 must be understood not merely with reference to what they say but also in the light of the several articles in Part IV (Directive Principles of State
Policy). "Justice, Social, Economic and Political", is the sum total of the aspirations incorporated in part IV.
Article 14 enjoins upon the state not to deny to any person "equality before the law" or "the equal protection of the laws" within the territory of India. Most constitutions speak of either
"equality before the law" or "the equal protection of the laws", but very few of both. Section 1 of the XIV. Amendment to the U.S. Constitution uses only the latter expression while the
Austrian Constitution (1920), the Irish Constitution (1937) and the West German Constitution
(1949) use the expression "equal before the law". (Article 7 of the Universal Declaration of
Human Rights, 1948, of course, declares that "all are equal before the law and are entitled without any discrimination to equal protection of the law".) The content and sweep of these two concepts is not the same though there may be much in common. The content of the expression "equality before the law" is illustrated not only by Articles 15 to 18 but also by the several articles in Part IV, in particular, Articles 38, 39, 39A, 41 and 46. Among others, the concept of equality before the law contemplates minimising the inequalities in income and eliminating the inequalities in status, facilities and opportunities not only amongst individuals but also amongst groups of people, securing adequate means of livelihood to its citizens and to promote with special care the educational and economic interests of the weaker sections of the people, including in particular the Scheduled Castes and Scheduled Tribes and to protect them from social injustice and all forms of exploitation. Indeed, in a society where equality of status and opportunity do not obtain and where there are glaring inequalities in incomes, there is no room for equality - either equality before law or equality in any other respect.
The significance attached by the founding fathers to the right to equality is evident not only from the fact that they employed both the expressions ‘equality before the law’ and ‘equal protection of the laws’ in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18. Through Article 15 they declared in positive terms that the state shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them. With a view to eradicate certain prevalent undesirable practices it was declared in Clause (2) of Article 15 that no citizen shall on the grounds only of religion, race, caste, sex, place of birth or any of them be subject to any disability, liability, restriction or condition with regard to shops, public restaurants, hotels and place of public entertainment or to the use of well, tanks, bathing ghats, roads and place of public resort maintained wholly or partly out of state funds or dedicated to the use of general public. At the same time, with a view to ameliorate the conditions of women and children a provision was made in Clause (3) that nothing in the said Article shall prevent the state from making any special provision for women and children.
In as much as public employment always gave a certain status and power - it has always been the repository of State power - besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1) expressly declares that in the matter of public employment or appointment to any office under the state, citizens of this country shall have equal opportunity while Clause (2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. At the same time, care was taken to declare in Clause (4) that nothing in the said Article shall prevent the state from making any provision for reservation of appointments or posts in favour of any backward class of citizen which in the opinion of the state is not adequately represented in the services under the state. Article 17 abolishes the untouchability while Article 18 prohibits conferring of any titles (not representing
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military or academic distinction). It also prohibits the citizens of this country from accepting any title from a foreign state.
Article 16 has remained unamended, except for a minor amendment in Clause (3) whereas
Article 15 had Clause (4) inserted in it by the First Amendment Act, 1951. … The other provisions of the Constitution having a bearing on Article 16 are Articles 38, 46 and the set of articles in Part XVI. Clause (1) of Article 38 obligates the State to “strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.”
Clause (2) of Article 38, added by the 44th Amendment Act says, “the State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.”
Article 46 contains a very significant directive to the State. … It is evident that "the weaker sections of the people" do include the "backward class of citizens" contemplated by Article
16(4).
Part XVI of the Constitution contains "special provisions relating to certain classes". The
"classes" for which special provisions are made are, Scheduled Castes, Scheduled Tribes and the Anglo-Indian Community. It also provides for appointment of a Commission to investigate the conditions of and the difficulties faced by the socially and educationally backward classes and to make appropriate recommendations. … Article 338, which has been extensively amended by the Sixty-fifth Amendment Act, provides for establishment of a Commission for the Scheduled Castes and Scheduled Tribes to be known as 'the National Commission for the
Scheduled Castes and Scheduled Tribes '. … Article 335 provides that "the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State." It is obvious that if the claims of even Scheduled Castes and Scheduled Tribes are to be taken into consideration consistently with the maintenance of efficiency of administration, the said admonition has to be respected equally while taking into consideration the claims of other backward classes and other weaker sections.
THE FIRST BACKWARD CLASSES COMMISSION (KALELKAR COMMISSION)
The proceedings of the Constituent Assembly on draft Article (10) disclose a persistent and strident demand from certain sections of the society for providing reservations in their favour in the matter of public employment. While speaking on the draft Article 10(3) [corresponding to Article 16(4)] Dr. Ambedkar had stated, "then we have quite a massive opinion which insists that although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration." It was this demand which was mainly responsible for the incorporation of Clause (4) in Article 16.
As matter of fact, in some of the southern States, reservations in favour of OBCs were in vogue since quite a number of years prior to the Constitution. There was a demand for similar reservations at the center. In response to this demand and also in realisation of its obligation to provide for such reservations in favour of backward sections of the society, the Central
Government appointed a Backward Class Commission under Article 340 of the Constitution on January 29, 1953. The Commission, popularly known as Kaka Kalelkar Commission, was required "to investigate the conditions of socially and educationally backward classes within
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the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove difficulties and to improve their conditions". The Commission submitted its report on March 30, 1955. According to it, the relevant factors to consider while classifying backward classes would be their traditional occupation and profession, the percentage of literacy or the general educational advancement made by them; the estimated population of the community and the distribution of the various communities throughout the state or their concentration in certain areas.
The Commission was also of the opinion that the social position which a community occupies in the caste hierarchy would also have to be considered as well as its representation in Government service or in the Industrial sphere. According to the Commission, the causes of educational backwardness amongst the educationally and backward communities were (i) traditional apathy for education on account of social and environmental conditions or occupational handicaps: (ii) poverty and lack of educational institutions in rural areas and (iii) living in inaccessible areas. The Chairman of the commission, Kaka Kalelkar, however, had second thoughts after signing the report. In the enclosing letter addressed to the President he virtually pleaded for the rejection of the report on the ground that the reservations and other remedies recommended on the basis of caste would not be in the interest of society and country.
He opined that the principle of caste should be eschewed altogether. Then alone, he said, would it be possible to help the extremely poor and deserving members of all the communities. At the same time, he added, preference ought to be given to those who come from traditionally neglected social classes.
The report made by the Commission was considered by the Central Government, which apparently was not satisfied with the approach adopted by the Commission in determining the criteria for identifying the backward classes under Article 15(4). The Memorandum of action appended to the Report of the Commission while placing it on the table of the Parliament [as required by Clause (3) of Article 340] on September 3, 1956, pointed out that the caste system is the greatest hindrance in the way of our progress to egalitarian society and that in such a situation recognition of certain specified castes as backward may serve to maintain and perpetuate the existing distinctions on the basis of caste. The Memorandum also found fault with certain tests adopted by the Commission for identifying the backward classes. It expressed the opinion that a more systematic and elaborate basis has to be evolved for identifying backward classes. Be that as it may, the Report was never discussed by the Parliament.
No meaningful action was taken after 1956 either for constituting another Commission or for evolving a better criteria. Ultimately, on August 14, 1961, the Central Government wrote to ail the State Governments stating inter alia that "while the State Governments have the discretion to choose their own criteria for defining backwardness, in the view of the
Government of India it would be better to apply economic tests than to go by caste." The letter stated further, rather inexplicably, that "even if the Central Government were to specify under
Article 338(3) certain groups of people as belonging to 'other backward classes ', it will still be open to every State Government to draw up its own lists for the purposes of Articles 15 and 16.
As, therefore, the State Governments may adhere to their own lists, any All-India list drawn up by the Central Government would have no practical utility." Various State Governments thereupon appointed Commissions for identifying backward classes and issued orders identifying the socially and educationally backward classes and reserving certain percentage of posts in their favour. So far as the Central services are concerned, no reservations were ever made in favour of other backward classes though made in favour of Scheduled Castes and
Scheduled Tribes.
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THE SECOND BACKWARD CLASSES COMMISSION (MANDAL COMMISSION)
By an Order made by the President of India, in the year 1979, under Article 340 of the
Constitution, a Backward Class Commission was appointed to investigate the conditions of socially and educationally backward classes within the territory of India, which Commission is popularly known as Mandal Commission. The terms of reference of the Commission were:
(i) to determine the criteria for defining the socially and educationally backward classes; (ii) to recommend steps to be taken for the advancement of the socially and educationally backward classes of citizens so identified;
(iii) to examine the desirability or otherwise of making provision for the reservation of appointments or posts in favour of such backward classes of citizens which are not adequately represented in public services and posts in connection with the affairs of the Union or of any State; and
(iv) present to the President a report setting out the facts as found by them and making such recommendations as they think proper.
The Commission was empowered to:(a) obtain such information as they may consider necessary or relevant for their purpose in such form and such manner as they may think appropriate, from the
Central Government, the State Government, the Union Territory Administrations and such other authorities, organisations or individuals as may in the opinion of the Commission, be of assistance to them: and
(b) hold their sittings or the sittings of such sub-committees as they may appoint from amongst their own members of such times and such places as may be determined by, or under the authority of the Chairman.
The report of the Commission was required to be submitted not later than 31st December,
1979, which date was later extended up to December 31st, 1980. It was so submitted.
Chapter-I of the Report deals with the Constitution of First Backward Classes Commission
(Kalelkar Commission), its report, the letter of Kaka Kalelkar to the President, the lack of follow-up action and the letter of the Central Government referred to hereinbefore to State
Governments to draw up their own lists. It also points out certain “internal contradictions” in the Report. Chapter-II deals with the “Status of other backward classes in some States”. It sets out the several provisions relating to reservation in favour of OBCs obtaining in several States and the history of such reservations. Chapter-III is entitled ‘methodology and data base’. It sets out the procedure followed by the Commission and the material gathered by them. Paras 3.1 and 3.2 read thus:
3.1. One important reason as to why the Central Government could not accept the recommendations of Kaka Kalelkar Commission was that it had not worked out objective tests and criteria for the proper classification of socially and educationally backward classes. In several petitions filed against reservation orders issued by some State Governments, the Supreme Court and various High
Courts have also emphasised the imperative need for an empirical approach to the defining of socially and educationally backwardness or identification of Other
Backward Classes.
3.2 The Commission has constantly kept the above requirements in view in planning the scope of its activities. It was to serve this very purpose that the
Commission made special efforts to associate the leading Sociologists, Research
Organisations and Specialised Agencies of the country with every important facet of its activity. Instead of relying on one or two established techniques of enquiry, we tried to caste our net far and wide so as to collect facts and get feed-back from as large an area as possible. A brief account of this activity is given below.
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It then refers to the Seminar held by Department of Anthropology of Delhi University in
March 1979, to the questionnaire issued to all departments of Central Government and to the
State Governments (the proforma are compiled in Vol. II of the Report) the country-wide touring undertaken by the Commission, the evidence recorded by it, the socio-educational field survey conducted by it and other studies and Reports involved in its work. In Chapter-IV the
Commission deals with the interrelationship between social backwardness and caste. It describes how the fourth caste, Shudras, were kept in a state of intellectual and physical subjugation and the historical injustices perpetrated on them. In para 4.5 the Commission states:
"The real triumph of the caste system lies not in upholding the supremacy of the
Brahmin, but in conditioning the consciousness of the lower castes in accepting their inferior status in the ritual hierarchy as a part of the natural order of things…
It was through an elaborate, complex and subtle scheme of scripture, mythology and ritual that Brahminism succeeded in investing the caste system with a moral authority that has been seldom effectively challenged even by the most ardent social reformers."
Chapter-V deals with ‘social dynamics of caste’. In this chapter, the Commission emphasises the fact that notwithstanding public declarations condemning the caste, it has remained a significant basis of action in politics and public life. Reference is made to several caste associations, which have come into being after the Constitution. The concluding part in this Chapter, para 5.17, reads:
The above account should serve as a warning against any hasty conclusion about the weakening of caste as the basis of social organisation of the Hindu society.
The pace of social mobility is no doubt increasing and some traditional features of the caste system have inevitably weakened. But what caste has lost on the ritual front, it has more than gained on the political front. This has also led to some adjustments in the power equation between the high and low castes and thereby accentuated social tensions. Whether these tensions rent the social fabric or the country is able to resolve them by internal adjustments will depend on how understandingly the ruling high castes handle the legitimate aspirations and demands of the historically suppressed and backward classes.
Chapter-VI deals with ‘Social Justice, Merit and Privilege’. It attempts to establish, that merit in an elitist society is not something inherent but is the consequence of environmental privileges enjoyed by the members of higher castes. This is sought to be illustrated by giving an example of two boys - Lallu and Mohan. Lallu is a village boy belonging to a backward class occupying a low social position in the village caste hierarchy. He comes from a poor illiterate family and studies at a village school, where the level of instruction is woeful. On the other hand, Mohan comes from a fairly well-off middle class and educated family, attends one of the good public schools in the city, has assistance at home besides the means of acquiring knowledge through television, radio, magazines and so on. Even though both Lallu and Mohan possess the same level of intelligence, Lallu can never compete with Mohan in any open competition because of the several environmental disadvantages suffered by him.
Chapter-VII deals with ‘Social justice, Constitution and the law’. It refers to the relevant provisions of the Constitution, to the decision in M. R. Balaji v. State of Mysore [1963] Suppl.
1 S.C.R. 439 and various subsequent decisions of this Court and discusses the principles flowing from the said decisions. It notes that the subsequent decisions of this Court in C. A.
Rajendran v. Union of India (1968) II LLJ 407 (SC); State of Andhra Pradesh v. P. Sugar
[1968] 3 SCR 595 and State of Andhra Pradesh v. U. S. V. Balram [1972] 3 SCR 247 etc. show a marked shift from the original position taken in Balaji on several important points. In particular, it refers to the observations in Rajendran to the effect that “caste is also a class of citizens and if the class as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it was socially and educationally backward
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class of citizens within the meaning of Article 15(4)”. It refers to the statement in A.
Peeriakaruppan v. State of Tamil Nadu [1971] 2 SCR 430, to the effect that “a caste has always been recognised as a class.” It also commends the dissenting view of Subba Rao, J. in T.
Devadasan v. Union of India (1965) II LLJ 560 (SC)…
Chapter-VIII deals with ‘North-South Comparison of other Backward Classes Welfare’. It is a case study of provisions in force in two Southern States namely Tamil Nadu and Karnataka and the two Northern States, Bihar and Uttar Pradesh. The conclusions drawn from the discussion are stated in para 8.45 in the following words:
In view of the foregoing account, the reasons for much stronger reaction in the
North than South to reservations, etc. for other Backward Classes may be summarised as below:(1) Tamil Nadu and Karnataka had a long history of Backward Classes movements and various measures for their welfare were taken in a phased manner.
In Uttar Pradesh and Bihar such measures did not mark the culmination of a mass movement. (2) In the South the forward communities have been divided either by the classification schemes or politically or both. In Bihar and U.P. the GOs have not divided the forward castes.
(3) In the South, clashes between Scheduled Castes and Backward peasant castes have been rather mild. In the North these cleavages have been much sharper, often resulting in acts of violence. This has further weakened the backward classes solidarity in the North.
(4) In the non-Sanskritic South, the basic Varna cleavage was between Brahmins and non-Brahmins and Brahmins constituted only about 3 per cent of the population. In the Sanskritic North, there was no sharp cleavage between the forward castes and together they constituted nearly 20 per cent of the population.
In view of this the higher castes in U.P. and Bihar were in a stronger position to mobilise opposition to backward class movement.
(5) Owing to the longer history and better organisation of Other Backward castes in the South, they were able to acquire considerable political clout. Despite the lead given by the Yadavas and other peasant castes, a unified and strong OBC movement has not emerged in the North so far.
(6) The traditions of semi-feudalism in Uttar Pradesh and Bihar have enabled the forward castes to keep tight control over smaller backward castes and prevent them from joining the mainstream of backward classes movement. This is not so in the south.
(7) The economies of Tamil Nadu and Karnataka have been expanding relatively faster. The private tertiary sector appears to be growing. It can shelter many forward caste youths. Also, they are prepared to migrate outside the State. The private tertiary sectors in Bihar and U.P. are stagnant. The forward caste youths in these two States have to depend heavily on Government jobs. Driven to desperation, they have reacted violently.
Chapter-IX sets out the evidence tendered by Central and State Governments while
Chapter-X deals with the evidence tendered by the Public. Chapter-XI is quite important inasmuch as it deals with the “Socio-Educational Field Survey and Criteria of Backwardness”.
In this Chapter, the Commission says that it decided to tap a of number of sources for the collection of data, keeping in mind the criticism against the Kalelkar Commission as also the several Judgments of this Court. It says that Socio-Educational Field Survey was the most comprehensive inquiry made by the Commission in this behalf. Right from the beginning, this
Survey was designed with the help of top social scientists and specialists in the country. Experts from a number of disciplines were associated with different phases of its progress. It refers to the work of Research Planning Team of Sociologists and the work done by a panel of experts
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led by Prof. M.N. Srinivas. It refers to the fact that both of them concurred that “in the Indian context such collectivities can be castes or other hereditary groups traditionally associated with specific occupations which are considered to be low and impure and with which educational backwardness and low income are found to be associated.”
The Commission says further that with a view to providing continuous guidance at the operational level, a Technical Advisory Committee was set up under Dr. K.C. Seal, Director
General, Central Statistical Organisation with the Chief Executive, National Sample Survey
Organisation and representatives of Directors of State Bureau of Economics and Statistics as
Members. The Commission sets out the Methodology evolved by the Experts panel and states that survey operations were entrusted to the State Statistical Organisations of the concerned
States/Union Territories. It refers to the training imparted to the survey staff and to the fact that the entire data so collected was fed into a computer for electronic processing of such data. Out of the 406 districts in the country, the survey covered 405 districts. In every district, two villages and one urban block was selected and in each of these villages and urban blocks, every single household was surveyed. The entire data collected was tabulated with the aid and
National Informatics Center of Electronics Commission of India. The Technical Committee constituted a Sub-Committee of Experts to help the Commission prepare "Indicators of
Backwardness" for analysing the data contained in the computerised tables. In para 11.23 (page
52) the Commission sets out the eleven Indicators/Criteria evolved by it for determining social and educational backwardness. Paras 11.23, 11.24 and 11.25 are relevant and may be set out in full:11.23. As a result of the above exercise, the Commission evolved eleven 'Indicators ' or 'criteria ' for determining social and educational backwardness.
These 11 'Indicators ' were grouped under three broad heads, i.e., Social,
Educational and Economic. They are:A. Social:
(i) Castes/Classes considered as socially backward by others.
(ii) Castes/Classes which mainly depend on manual labour for their livelihood.
(iii) Castes/Classes where at least 25% females and 10% males above the state average get married at an age below 17 years in rural areas and at least 10% females and 5% males do so in urban areas.
(iv) Castes/Classes where participation of females in work is at least 25% above the State average.
B. Educational:
(v) Castes/Classes where the number of children in the age group of 5-15 years who never attended school is at least 25% above the State average.
(vi) Castes/Classes where the rate of student drop-out in the age group of 5-15 years is at least 25% above the State average.
(vii) Castes/Classes amongst whom the proportion of matriculates is at least 25% below the State average.
C. Economic:
(viii) Castes/Classes where the average value of family assets is at least 25% below the State average.
(ix) Castes/Classes where the number of families living in Kuccha houses is at least 25% above the State average.
(x) Castes/Classes where the source of drinking water is beyond half a kilometer for more than 50% of the households.
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(xi) Castes/Classes where the number of households having taken consumption loan is at least 25% above the State average.
11.24. As the above three groups are not of equal importance for our purpose, separate weightage was given to 'Indicators ' in each group. All the Social 'Indicators ' were given a weightage of 3 points each. Educational 'Indicators ' a weightage of 2 points each and Economic 'Indicators ' a weightage of one point each. Economic, in addition to Social and Educational Indicators, were considered important as they directly flowed from social and educational backwardness. This also helped to highlight the fact that socially and educationally backward classes are economically backward also.
11.25. It will be seen that from the values given to each Indicators, the total score adds upto 22. All these 11 Indicators were applied to all the castes covered by the survey for a particular State. As a result of this application, all castes which had a score of 50 percent (i.e., 11 points) or above were listed as socially and educationally backward and the rest were treated as 'advanced '. (It is a sheer coincidence that the number of indicators and minimum point score for backwardness, both happen to be eleven). Further, in case the number of households covered by the survey for any particular caste were below 20, it was left out of consideration, as the sample was considered too small for any dependable inference.
It will also be useful to set out the observations of the Commission in para 11.27:11.27. In the end it may be emphasised that this survey has no pretentions to being a piece of academic research. It has been conducted by the administrative machinery of the Government and used as a rough and ready tool for evolving a set of simple criteria for identifying social and educational backwardness.
Throughout this survey our approach has been conditioned by practical considerations, realities of field conditions, constraints of resources and trained manpower and paucity of time. All these factors obviously militate against the requirements of a technically sophisticated and academically satisfying operation.
Chapter-XII deals with ‘Identification of OBCs’. In the first instance, the Commission deals with OBCs among Hindu Communities. It says that it applied several tests for determining the SEBCs like stigmas of low-occupation, criminality, nomadism, beggary and untouchability besides inadequate representation in public services. The multiple approach adopted by the Commission is set out in para 12.7 which reads:
12.7. Thus, the Commission has adopted a multiple approach for the preparation of comprehensive lists of Other Backward Classes for all the States and Union
Territories. The main sources examined for the preparation of these lists are:(i) Socio-educational field survey;
(ii) Census Report of 1961 (particularly for the identification of primitive tribes, aboriginal tribes, hill tribes, forest tribes and indigenous tribes);
(iii) Personal knowledge gained through extensive touring of the country and receipt of voluminous public evidences as described in Chapter X of this Report; and (iv) Lists of OBCs notified by various State Governments.
The Commission next deals with OBCs among Non-Hindu Communities. In paragraphs
12.11 to 12.16 the Commission refers to the fact that even among Christian, Muslim and Sikh religions, which do not recognise caste, the caste system is prevailing though without religious sanction. After giving a good deal of thought to several difficulties in the way of identifying
OBCs among Non-Hindus, the Commission says, it has evolved a rough and ready criteria viz.,
(1) all untouchables converted to any Non-Hindu religion and (2) such occupational communities which are known by the name of their traditional hereditary occupation and whose
Hindu counter-parts have been included in the list of Hindu OBCs - ought to be treated as
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SEBCs. The Commission then sought to work out the estimated population of the OBCs in the country and arrived at the figure of 52 per cent. Paras 12.19, 12.22 may be set out in full in view of their relevancy:
12.19 Systematic caste-wise enumeration of population was introduced by the
Registrar General of India in 1881 and discontinued in 1931. In view of this, figures of castewise population beyond 1931 are not available. But assuming that the inter se rate of growth of population of various castes communities and religious groups over the last half a century has remained more or less the same, it is possible to work out the percentage that all these groups constitute of the total population of the country.
12.22. From the foregoing it will be seen that excluding Scheduled Castes and
Scheduled Tribes, Other Backward Classes constitute nearly 52% of the Indian population. Chapter-XIII contains various recommendations including reservations in services. In view of the decisions of the Supreme Court limiting the total reservation to 50 per cent, the
Commission recommended 27 per cent reservation in favour of OBCs (in addition to 22.5 per cent already existing in favour of SCs and STs). It recommended several measures for
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improving the condition of these backward classes. Chapter-XIV contains a summary of the report. Volumes 2 to 9 of the Report contain and set out the material and the data on the basis of which the Commission made its recommendations. Vol. II contains the State-wise lists of
Backward Classes, as identified by the Commission. (It may be remembered that both the
Scheduled Castes order and Scheduled Tribes order notified by the President contain Statewise lists of Scheduled Castes and Scheduled Tribes). Volume II inter alia contains the questionnaire issued to the State Governments/Union Territories, the questionnaire issued to the Central Government Ministries/Departments, the questionnaire issued to the general public, the list of M.Ps. and other experts who appeared and gave evidence before the Commission, the criteria furnished to Central Government offices for identifying OBC employees for both
Hindu and non-Hindu Communities, report of the Research Planning Team of the Sociologists and the proformas employed in conducting the Socio-Education Survey.
The Report of the Mandal Commission was laid before each House of Parliament and discussed on two occasions - once in 1982 and again in the year 1983. The proceedings of the
Lok Sabha placed before us contain the statement of Sri R. Venkataraman, the then Minister for Defence and Home Affairs. He expressed the view that “the debate has cut across party lines and a number of people on this side have supported the recommendations of the Mandal
Commission. A large number of people on the other side have also supported it. If one goes through the entire debate one will be impressed with a fairly unanimous desire on the part of all sections of the House to find a satisfactory solution to this social evil of backwardness of
Scheduled Castes/Scheduled Tribes etc. which is a festering sore in our body politic,” The
Hon 'ble Minister then proceeded to state, “the Members generally said that the recommendations should be accepted. Some Members said that it should be accepted in toto.
Some Members have said that it should be accepted with certain reservations. Some Members said, there should be other criteria than only social and educational backwardness. But all these are ideas which Government will take into account. The problem that confronts Government today is to arrive at a satisfactory definition of backward classes and bring about an acceptance of the same by all the state concerned.” The Hon 'ble Minister referred to certain difficulties the
Government was facing in implementing the recommendations of the Commission on account of the large number of castes identified and on account of the variance in the State lists and the
Mandal Commission lists and stated that consultation with various departments and State
Governments was in progress in this behalf. He stated that a meeting of the Chief Ministers would be convened shortly to take decisions in the matter.
The Report was again discussed in the year 1983. The then Hon 'ble Minister for Home Sri
P.C. Sethi, while replying to the debate stated: “While referring to the Commission whose report has been discussed today, I would like to remind the House that although this
Commission had been appointed by our predecessor Government, we now desire to continue with this Commission and implement its recommendations.”
THE OFFICE MEMORANDUM DATED 13TH AUGUST, 1990
No action was, however, taken on the basis of the Mandal Commission Report until the issuance of the Office Memorandum on 25th September, 1991. On that day, the then Prime
Minister Sri V.P. Singh made a statement in the Parliament in which he stated inter alia as follows: After all, if you take the strength of the whole of the Government employees as a proportion of the population, it will be 1% or 1-1/2. I do not know exactly, it may be less than 1%. We are under no illusion that this 1% of the population, or a
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fraction of it will resolve the economic problems of the whole section of 52%. No.
We consciously want to give them a position in the decision-making of the country, a share in the power structure. We talk about merit. What is the merit of the system itself? That the section which has 52% of the population gets 12.55% in Government employment. What is the merit of the system? That in Class I employees of the Government it gets only 4.69%, for 52% of the population in decision-making at the top echelons it is not even one-tenth of the population of the country; in the power structure it hardly 4.69. I want to challenge first the merit of the system itself before we come and question on the merit, whether on merit to reject this individual or that. And we want to change the structure basically, consiciously, with open eyes. And I know when changing the structures comes, there will be resistance…
What I want to convey is that treating unequals as equals is the greatest injustice.
And, correction of this injustice is very important and that is what I want to convey. Here, the National Front Government 's Commitment for not only change of Government, but also change of the social order, is something of great significance to all of us; it is a matter of great significance. Merely making programmes of economic benefit to various sections of the society will not do…
There is a very big force in the argument to involve the poorest in the power structure. For a lot of time we have acted on behalf of the poor. We represent the poor… Let us forget that the poor are begging for some crumbs. They have suffered it for thousands of years. Now they are fighting for their honour as a human being…
A point was made by Mahajan ji that if there are different lists in different States how will the Union List harmonise? It is so today in the case of the Scheduled
Castes and the Scheduled Tribes, That has not caused a problem. On the same pattern, this will be there and there will be no problem.
The Office Memorandum dated 13th August, 1990 reads as follows:
OFFICE MEMORANDUM
Subject: Recommendations of the Second backward Classes Commission
(Mandal Report) - Reservation for Socially and Educationally Backward Classes in services under the Government of India.
In a multiple undulating society like ours, early achievement of the objective of social justice as enshrined in the Constitution is a must. The Second Backward
Classes Commission called the Mandal Commission was established by the then
Government with this purpose in view, which submitted its report to the
Government of India on 31.12.1980.
2. Government have carefully considered the report and the recommendations of the Commission in the present context regarding the benefits to be extended to the socially and educationally backward classes as opined by the Commission and are of the clear view that at the outset certain weightage has to be provided to such classes in the services of the Union and their Public Undertakings. Accordingly orders are issued as follows:(i) 27% of the vacancies in civil posts and services under the Government of India shall be reserved for SEBC.
(ii) The aforesaid reservation shall apply to vacancies to be filled by direct recruitment. Detailed instructions relating to the procedures to be followed for enforcing reservation will be issued separately.
(iii) Candidates belonging to SEBC recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates shall not be adjusted against the reservation quota of 27%.
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(iv) The SEBC would comprise in the first phase the castes and communities which are common to both the list in the report of the Mandal Commission and the State Governments ' lists, a list of such castes/communities is being issued separately. (v) The aforesaid reservation shall take effect from 7.8.1990. However, this will not apply to vacancies where the recruitment process has already been initiated prior to the issue of these orders.
3. Similar instructions in respect of public sector undertakings and financial institutions including public sector banks will be issued by the Department of
Public Enterprises and Ministry of Finance respectively. sd/(Smt. Krishna Singh)
Joint Secretary to the Govt. of India
Soon after the issuance of the said Memorandum there was wide-spread protest in certain
Northern States against it. There occurred serious disturbance to law and order involving damage to private and public property. Some young people lost their lives by self-immolation.
Writ Petitions were filed in this Court questioning the said Memorandum along with applications for staying the operation of the Memorandum. It was stayed by this Court.
THE OFFICE MEMORANDUM DATED 25TH SEPTEMBER, 1991
After the change of the Government at the center following the general election held in the first half of 1991, another Office Memorandum was issued on 25th September, 1991 modifying the earlier Memorandum dated 13th August, 1990. The later Memorandum reads as follows:
OFFICE MEMORANDUM
Subject: Recommendations of the Second Backward Classes Commission
(Mandal Report) - Reservation for socially and Educationally Backward Classes in service under the Government of India.
The undersigned is directed to invite the attention to O.M. of even number dated the 13th August, 1990, on the above mentioned subject and to say that in order to enable the poorer sections of the SEBCs to receive the benefits of reservation on a preferential basis and to provide reservation for other economically backward sections of the people not covered by any of the existing schemes of reservation,
Government have decided to amend the said Memorandum with immediate effect as follows:(i) Within the 27% of the vacancies in civil posts and services under the
Government of India reserved for SEBCs, preference shall be given to candidates belonging to the poorer sections of the SEBCs. In case sufficient number of such candidates are not available, unfilled vacancies shall be filled by the other SEBC candidates. (ii) 10% of the vacancies in civil posts and services under the Government of India shall be reserved for other economically backward sections of the people who are not covered by any of the existing schemes of reservation.
(iii) The criteria for determining the poorer sections of the SEBCs or the other economically backward sections of the people who are not covered by any of the existing schemes of reservations are being issued separately.
The O.M. of even number dated the 13th August, 1990, shall be deemed to have been amended to the extent specified above. sd/- Page 163 of 610
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(A.K. Harit)
Dy. Secretary to the Government of India
Till now, the Central Government has not evolved the economic criteria as contemplated by the later Memorandum, though the hearing of these writ petitions was adjourned on more than one occasion for the purpose. Some of the writ petitions have meanwhile been amended challenging the later Memorandum as well. Let us notice at this stage what do the two memorandums say, read together.
The first provision made is: 27% of vacancies to be filled up by direct recruitment in civil posts and services under the Government of India are reserved for backward classes. Among the members of the backward classes preference has to be given to candidates belonging to the poorer sections. Only in case, sufficient number of such candidates are not available, will the unfilled vacancies be filled by other backward class candidates. The second provision made is: backward class candidates recruited on the basis of merit in open competition along with general candidates shall not be adjusted against the quota of 27% reserved for them. Thirdly, it is provided that backward classes shall mean those castes and communities which are common to the list in the report of the Mandal Commission and the respective State Government 's list.
It may be remembered that Mandal Commission has prepared the list of backward classes Statewise, Lastly, it is provided that 10% of the vacancies shall be reserved for other economically backward sections of the people who are not covered by any of the existing schemes of reservations. As stated above, the criteria for determining the poorer sections among the backward classes or for determining other economically backward sections among the nonreserved category has so far not been evolved. Though the first Memorandum stated that the orders made therein shall take effect from 7.8.1990, they were not in fact acted upon on account of the orders made by this Court.
ISSUES FOR CONSIDERATION
… [W]e have re-framed the questions. We shall proceed to answer them in the same order.
The reframed questions are:
1(a) Whether the 'provision ' contemplated by Article 16(4) must necessarily be made by the legislative wing of the State?
(b) If the answer to Clause (a) is in the negative, whether an executive order making such a provision is enforceable without incorporating it into a rule made under the proviso to Article 309?
2(a) Whether Clause (4) of Article 16 is an exception to Clause (1) of Article 16?
(b) Whether Clause (4) of Article 16 is exhaustive of the special provisions that can be made in favour of 'backward class of citizens '? Whether it is exhaustive of the special provisions that can be made in favour of all sections, classes or groups?
(c) Whether reservations can be made under Clause (1) of Article 16 or whether it permits only extending of preferences/concessions?
3(a) What does the expression 'backward class of citizens ' in Article 16(4) means?
(b) Whether backward classes can be identified on the basis and with reference to caste alone?
(c) Whether a class, to be designated as a backward class, should be situated similarly to the S.Cs./S.Ts.?
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(d) Whether the 'means ' test can be applied in the course of identification of backward classes? And if the answer is yes, whether providing such a test is obligatory? 4(a). Whether the backward classes can be identified only and exclusively with reference to economic criteria?
(b) Whether a criteria like occupation-cum-income without reference to caste altogether, can be evolved for identifying the backward classes?
5. Whether the backward classes can be further categorised into backward and more backward categories?
6. To what extent can the reservation be made?
(a) Whether the 50% rule enunciated in Balaji a binding rule or only a rule of caution or rule of prudence?
(b) Whether the 50% rule, if any, is confined to reservations made under Clause
(4) of Article 16 or whether it takes in all types of reservations that can be provided under Article 16?
(c) Further while applying 50% rule, if any, whether an year should be taken as a unit or whether the total strength of the cadre should be looked to?
(d) Whether Devadasan was correctly decided?
7. Whether Article 16 permits reservations being provided in the matter of promotions? 8. Whether reservations are anti-meritian? To what extent are Articles 335, 38(2) and 46 of the Constitution relevant in the matter of construing Article 16?
9. Whether the extent of judicial review is restricted with regard to the identification of Backward Classes and the percentage of reservations made for such classes to a demonstrably perverse identification or a demonstrably unreasonable percentage?
10. Whether the distinction made in the Memorandum between 'poorer sections ' of the backward classes and others permissible under Article 16?
11. Whether the reservation of 10% of the posts in favour of 'other economically backward sections of the people who are not covered by any of the existing schemes of the reservations ' made by the Office Memorandum dated 25.9.1991 permissible under Article 16?
… Before we proceed to answer the questions aforementioned, it would be helpful to notice
(a) the debates in the Constituent Assembly on Article 16 (draft Article 10); (b) the decisions of this Court on Articles 16 and 15; and (c) a few decisions of the U.S. Supreme Court considering the validity of race-conscious programmes.
… It was the Drafting Committee under the Chairmanship of Dr. B.R. Ambedkar that inserted the word "backward" in between the words "in favour of any" and 'class of citizens".
The discussion on draft Article 10 took place on November 30, 1948. Several members including Damodar Swarup Seth, Hirdya Nath Kunzru and R. M. Nalavade complained that the expressions ‘backward’ and ‘backward classes’ are quite vague and are likely to lead to complications in future. They suggested that appointments to public services should be made purely on the basis of merit. Some others suggested that such reservations should be available
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only for a period of first ten years of the Constitution. To this criticism the Vice-President of the Assembly (Dr. H. C. Mookherjee) replied in the following words:
Before we start the general discussion, I would like to place a particular matter before the Honourable Members. The clause which has so long been under discussion affects particularly certain sections of our population sections which have in the past been treated very cruelly and although we are today prepared to make reparation for the evil deeds of our ancestors, still the old story continues, at least here and there, and capital is made out of it outside India… I would therefore very much appreciate the permission of the House so that I might give full discussion on this particular matter to our brethren of the backward classes.
Do I have that permission?
In the ensuing discussion Sri Chandrika Ram (Bihar-General) supported draft Clause (3) with great passion. He pleaded for reservations in favour of Backward Classes both in services as well as in the legislature, just as in the case of Harijans.
Sri Chandrika Ram was supported by another Member P. Kakkan (Madras-General) and
T. Channiah (Mysore), Channiah, in particular, commented upon the Members coming from
Northern India being puzzled about the meaning of the expression 'backward class ' and proceeded to clarify the same in the following words:
The backward classes of people as understood in South India, are those classes of people who are educationally backward, it is those classes that require adequate representation in the services. There are other classes of people who are socially backward; they also require adequate representation in the service.
After the discussion proceeded for some more time, K. M. Munshi, who was a Member of the Drafting Committee rose to explain the content of the word 'backward '. He said:
What we want to secure by this clause are two things. In the fundamental right in the first clause we want to achieve the highest efficiency in the services of the
State-highest efficiency which would enable the services to function effectively and promptly. At the same time, in view of the conditions in our country prevailing in several provinces, we want to see that backward classes, classes who are really backward, should be given scope in the State services; for it is realised that State services give a status and an opportunity to serve the country, and this opportunity should be extended to every community, even among the backward people. That being so, we have to find out some generic term and the word
"backward class" was the best possible term.
Munshi proceeded to state:
I may point out that in the province of Bombay for several years now, there has been a definition of backward classes, which includes not only Scheduled Castes and Scheduled Tribes but also other backward classes who are economically, educationally and socially backward. We need not, therefore, define or restrict the scope of the word "backward" to a particular community. Whoever is backward will be covered by it and I think the apprehensions of the Hon’ble Members are not justified.
Ultimately Dr. B.R. Ambedkar, the Chairman of the Drafting Committee, got up to clarify the matter. His speech, which put an end to all discussion and led to adopting of draft Article 10(3), is worth quoting in extenso, since it throws light on several questions relevant herein:
… there are three points of view which it is necessary for us to reconcile if we are to produce a workable proposition which will be accepted by all. Of the three points of view, the first is that there shall be equality of opportunity for all citizens.
It is the desire of many Members of this House that every individual who is qualified for a particular post should be free to apply for that post, to sit for examinations and to have his qualifications tested so as to determine whether he is fit for the post or not and that there ought to be no limitations, there ought to be
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no hindrance in the operation of this principle of equality or opportunity. Another view mostly shared by a section of the House is that, if this principle is to be operative-and it ought to be operative in their judgment to its fullest extent-there ought to be no reservations of any sort for any class or community at all, that all citizens, if they are qualified, should be placed on the same footing of equality so far as the public services are concerned. That is the second point of view we have.
Then we have quite a massive opinion which insists that, although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration. As I said, the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a 'proper look-in ' so to say into the administration. If honourable Members will bear these facts in mind-the-three principles we had to reconcile,-they will see that no better formula could be produced than the one that is embodies in Sub-clause (3) of Article 10 of the Constitution. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now-for historical reasons-been controlled by one community or a few communists, that situation should disappear and that the others also must have an opportunity of getting into the public services.
Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public service to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of
30 per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with Sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation. If honourable Members understand this position that we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as "backward" the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain. That I think if I may say so, is the justification why the Drafting Committee undertook on its own shoulders the responsibility of introducing the word "backward" which, I admit, did not originally find a place in the fundamental right in the way in which it was passed by this Assembly…
Somebody asked me: "What is a backward community"? Well, I think anyone who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Government.
The above material makes it amply clear that the objective behind Clause (4) of Article 16 was the sharing of State power. The State power which was almost exclusively monopolised by the upper castes i.e., a few communities, was now sought to be made broad-based. The backward communities who were till then kept out of apparatus of power, were sought to be inducted there into and since that was not practicable in the normal course, a special provision was made to effectuate the said objective. In short, the objective behind Article 16(4) is empowerment of the deprived backward communities - to give them a share in the administrative apparatus and in the governance of the community.
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DECISIONS OF THIS COURT ON ARTICLES 16 AND 15
Soon after the enforcement of the Constitution two cases reached this Court from the State of Madras - one under Article 15 and the other under Article 16. Both the cases were decided on the same date and by the same Bench. The one arising under Article 15 is State of Madras
v. Champakam Dorairajan [1951] 2 SCR 525, and the other arising under Article 16 is
Venkataraman v. State of Madras AIR 1951 SC 229. By virtue of certain orders issued prior to coming into force of the Constitution,-popularly known as 'Communal G.O. ' - seats in the
Medical and Engineering Colleges in the State of Madras were apportioned in the following manner: Non-Brahmin (Hindus)-6, Backward Hindus-2, Brahmin-2, Harijan-2, Anglo Indians and Indian Christians-1, Muslims-1. Even after the advent of the Constitution, the G.O. was being acted upon which was challenged by Smt. Champakam as violative of the fundamental rights guaranteed to her by Articles 15(1) and 29(2) of the Constitution of India. A Full Bench of Madras High Court declared the said G.O. as void and un-enforceable with the advent of the
Constitution. The State of Madras brought the matter in appeal to this Court. A Special Bench of Seven Judges heard the matter and came to the unanimous conclusion that the allocation of seats in the manner aforesaid is violative of Articles 15(1) and 29(2) inasmuch as the refusal to admit the respondent (writ petitioner) notwithstanding her higher marks, was based only on the ground of caste. The State of Madras sought to sustain the G.O. with reference to Article 46 of the Constitution. Indeed the argument was that Article 46 over-rides Article 29(2). This argument was rejected. The Court pointed out that while in the case of employment under the
State, Clause (4) of Article 16 provides for reservations in favour of backward class of citizens, no such provision was made in Article 15.
In the matter of appointment to public services too, a similar communal G.O. was in force in the State of Madras since prior to the Constitution. In December, 1949, the Madras Public
Service Commission invited applications for 83 posts of District Munsifs, specifying at the same time that the selection of the candidates would be made from the various castes, religions and communities as specified in the communal G.C. The 83 vacancies were distributed in the following manner: Harijans-19, Muslims-5, Christians-6, Backward Hindus-10, Non-Brahmin
(Hindus)-32 and Brahmins-11. The petitioner Venkataraman (it was a petition under Article 32 of the Constitution) applied for and appeared at the interview and the admitted position was that if the provisions of the communal G.O. were to be disregarded, he would have been selected. Because of the G.O., he was not selected (he belonged to Brahmin community).
Whereupon he approached this Court. S.R. Das, J. speaking for the Special Bench referred to
Article 16 and in particular to Clause (4) thereof and observed: "Reservation of posts in favour of any backward class of citizens cannot, therefore, be regarded as unconstitutional". He proceeded to hold:
The Communal G.O. itself makes an express reservation of seats for Harijans &
Backward Hindus. The other categories, namely, Muslims, Christians, NonBrahmin Hindus & Brahmins must be taken to have been treated as other than
Harijans & Backward Hindus. Our attention was drawn to a schedule of Backward
Classes set out in Schedule III to Part I of the Madras Provincial & Subordinate
Service Rules. It was, therefore, argued that Backward Hindus would mean
Hindus of any of the communities mentioned in that Schedule. It is, in the circumstances, impossible to say that classes of people other than Harijans &
Backward Hindus can be called Backward Classes. As regards the posts reserved for Harijans & Backward Hindus it may be said that the petitioner who does not belong to those two classes is regarded as ineligible for those reserved posts not on the ground of religion, race, caste etc. but because of the necessity for making a provision for reservation of such posts in favour of a backward class of citizens, but the ineligibility of the petitioner for any of the posts reserved for communities
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other than Harijans and Backward Hindus cannot but be regarded as founded on the ground only of his being a Brahmin. For instance, the petitioner may be far better qualified than a Muslim or a Christian or a Non-Brahmin candidate & if all the posts reserved for those communities were open to him he would be eligible for appointment, as is conceded by the learned Advocate General of Madras, but, nevertheless, he cannot expect to get any of those posts reserved for those different categories only because he happens to be a Brahmin. His ineligibility for any of the posts reserved for the other communities, although he may have far better qualifications than those possessed by members falling within those categories, is brought about only because he is a Brahmin & does not belong to any of those categories. This ineligibility created by the Communal G.O. does not appear to us to be sanctioned by Clause (4) of Article 16 and it is an infringement of the fundamental right guaranteed to the petitioner as an individual citizen under
Article 16(1) & (2). The Communal G.O., in our opinion, is repugnant to the provisions of Article 16 & is as such void and illegal.
Ram Jethmalani, the learned Counsel appearing for the Respondent-State of Bihar placed strong reliance on the above passage. He placed before us an extract of the Schedule of the backward classes appended to the Madras Provincial and Subordinate Service Rules, 1942. He pointed out that Clause (3)(a) in Rule 2 defined the expression backward classes to mean "the communities mentioned in Schedule III to this part", and that Schedule III is exclusively based upon caste. The Schedule describes the communities mentioned therein under the heading 'Race, Tribe or Caste '. It is pointed out that when the said Schedule was substituted in 1947, the basis of classification still remained the caste, though the heading "Races, Tribes and
Castes" was removed. Mr. Jethmalani points out that the Special Bench took note of the fact that Schedule III was nothing but a collection of certain 'communities ', notified as backward classes and yet upheld the reservation in their favour. According to him, the decision in
Venkataraman clearly supports the identification of backward classes on the basis of caste. The
Communal G.O. was struck down, he submits, only in so far as it apportioned the remaining vacancies between sections other than Harijans and backward classes. It is rather curious, says the counsel, that the decision in Venkataraman has not attracted the importance it deserves all these years. All the subsequent decisions of this Court refer to Champakam. Hardly any decision refers to Venkataraman notwithstanding the fact that Venkataraman was a decision rendered with reference to Article 16.
Soon after the said two decisions were rendered the Parliament intervened and in exercise of its constituent power, amended Article 15 by inserting Clause (4)… It is worthy of notice that the Parliament, which enacted the First Amendment to the Constitution, was in fact the very same Constituent Assembly which had framed the Constitution. The speech of Dr.
Ambedkar on the occasion is again instructive. He said:
Then with regard to Article 16, Clause (4), my submission is this that it is really impossible to make any reservation which would not result in excluding somebody who has a caste. I think it has to be borne in mind and it is one of the fundamental principles which I believe is stated in Mulla 's edition on the very first page that there is no Hindu who has not a caste. Every Hindu has a caste-he is either a Brahmin or a Mahratta or a Kundby or a Kumbhar or a carpenter. There is no Hindu-that is the fundamental proposition-who has not a caste.
Consequently, if you make a reservation in favour of what are called backward classes which are nothing else but a collection of certain castes, those who are excluded are persons who belong to certain castes. Therefore, in the circumstances of this country, it is impossible to avoid reservation without excluding some people who have got a caste.
After the enactment of the First Amendment the first case that came up before this Court is Balaji v. State of Mysore. In the year 1961, this Court decided the General Manager,
Southern Railway v. Rangachari, but that related to reservations in favour of the Scheduled
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Castes and Scheduled Tribes in the matter of promotion in the Railways. Rangachari will be referred to at an appropriate stage later. In the State of Karnataka, reservations were in force since a few decades prior to the advent of the Constitution and were being continued even thereafter. On July 26, 1958 the State of Mysore issued an order under Article 15(4) of the
Constitution declaring all the communities except the Brahmin community as socially and educationally backward and reserving a total of 75 per cent seats in Educational Institutions in favour of SEBCs and SCs/STs. Such orders were being issued every year, with minor variation in the percentage of reservations. On 13th of July, 1972, a similar order was issued wherein 68 per cent of the seats in all Engineering and Medical Colleges and Technical Institutions in the
State were reserved in the favour of the SEBCs, SCs and STs. SEBCs were again divided into two categories-backward classes and more backward classes. The validity of this order was questioned under Article 32 of the Constitution. While striking down the said order this Court enunciated the following principles:(1) Clause (4) of Article 15 is a proviso or an exception to Clause (1) of Article
15 and to Clause (2) of Article 29;
(2) For the purpose of Article 15(4), backwardness must be both social and educational. Though caste in relation to Hindus may be a relevant factor to consider, in determining the social backwardness of a class of citizens, it cannot be made the sole and dominant test. Christians, Jains and Muslims do not believe in caste system; the test of caste cannot be applied to them. Inasmuch as identification of all backward classes under the impugned order has been made solely on the basis of caste, it is bad.
(3) The reservation made under Clause (4) of Article 15 should be reasonable. It should not be such as to defeat or nullify the main Rule of equality contained in
Clause (1). While it is not possible to predicate the exact permissible percentage of reservations, it can be stated in a general and broad way that they should be less than 50 per cent.
(4) A provision under Article 15(4) need not be in the form of legislation; it can be made by an executive order.
(5) The further categorisation of backward classes into backward and more backward is not warranted by Article 15(4).
It must be remembered that Balaji was a decision rendered under and with reference to
Article 15 though it contains certain observations with respect to Article 16 as well.
Soon after the decision in Balaji this Court was confronted with a case arising under Article
16 - Devadasan v. Union of India. This was also a petition under Article 32 of the Constitution.
It related to the validity of the ‘carry-forward’ rule obtaining in Central Secretariat Service.
The reservation in favour of Scheduled Castes was twelve and half per cent while the reservation in favour of Scheduled Tribes was five per cent. The ‘carry-forward’ rule considered in the said decision was in the following terms: “If a sufficient number of candidates considered suitable by the recruiting authorities, are not available from the communities for whom reservations are made in a particular year, the unfilled vacancies should be treated as unreserved and filled by the best available candidates. The number of reserved vacancies, thus, treated as unreserved will be added as an additional quota to the number that would be reserved in the following year in the normal course; and to the extent to which approved candidates are not available in that year against this additional quotas, a corresponding addition should be made to the number of reserved vacancies in the second following year.” Because sufficient number of SC/ST candidates were not available during the earlier years the unfilled vacancies meant for them were carried forward as contemplated by the said rule and filled up in the third year - that is in the year 1961. Out of 45 appointments made, 29 went to Scheduled Castes and
Scheduled Tribes. In other words, the extent of reservation in the third year came to 65 per
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cent. The rule was declared unconstitutional by the Constitution Bench, with Subba Rao, J. dissenting. The majority held that the carry forward rule which resulted in more than 50 per cent of the vacancies being reserved in a particular year, is bad. The principle enunciated in
Balaji regarding 50 percent was followed. Subba Rao, J. in his dissenting opinion, however, upheld the said rule. The learned Judge observed: “The expression, “nothing in this article” is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammeled by the other provisions of the
Article.” The learned Judge opined that once a class is a backward class, the question whether it is adequately represented or not is left to the subjective satisfaction of the State and is not a matter for this Court to prescribe.
We must, at this stage, clarify that a ‘carry-forward’ rule may be in a form different than the one considered in Devadasan. The Rule may provide that the vacancies reserved for
Scheduled Castes or Scheduled Tribes shall not be filled up by general (open competition) candidates in case of non-availability of SC/ST candidates and that such vacancies shall be carried forward.
In the year 1964 another case from Mysore arose, again under Article 15 - Chitralekha v.
State of Mysore. The Mysore Government had by an order defined backward classes on the basis of occupation and income, unrelated to caste. Thirty per cent of seats in professional and technical institutions were reserved for them in addition to eighteen per cent in favour of SCs and STs. One of the arguments urged was that the identification done without taking the caste into consideration is impermissible. The majority speaking through Subba Rao, J., held the identification or classification of backward classes on the basis of occupation-cum-income, without reference to caste, is not bad and does not offend Article 15(4).
During the years 1968 to 1971, this Court had to consider the validity of identification of backward classes made by Madras and Andhra Pradesh Governments. Minor P. Rajendran v.
State of Madras related to specification of socially and educationally backward classes with reference to castes. The question was whether such an identification infringes Article 15.
Wanchoo, C.J., speaking for the Constitution Bench dealt with the contention in the following words: The contention is that the list of socially and educationally backward classes for whom reservation is made under Rule 5 nothing but a list of certain castes.
Therefore, reservation in favour of certain castes based only on caste considerations violates Article 15(1), which prohibits discrimination on the ground of caste only. Now if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of Article 15(1). But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Article 15(4)… It is true that in the present cases the list of socially and educationally backward classes has been specified by caste. But that does not necessarily mean that caste was the sole consideration and that person belonging to these castes are also not a class of socially and educationally backward citizens… As it was found that members of these castes as a whole were educationally and socially backward, the list which had been coming on from as far back as 1906 was finally adopted for purposes of Article 15(4).
In view however of the explanation given by the State of Madras, which has not been controverted by and rejoinder, it must be accepted that though the list shows certain castes, the members of those castes are really classes of educationally and socially backward citizens. No attempt was made on behalf of the petitioners/appellant to show that any caste mentioned in this list was not
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educationally and socially backward. In this state of the pleadings, we must come to the conclusion that though the list is prepared caste-wise, the castes included therein are as a whole educationally and socially backward and therefore the list is not violative of Article 15. The challenge to Rule 5 must therefore fail.
The shift in approach and emphasis is obvious. The Court now held that a caste is a class of citizens and that if a caste as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Article 15(4). More over the burden of proving that the specification/identification was bad, was placed upon the petitioners. In case of failure to discharge that burden, the identification made by the State was upheld. The identification made on the basis of caste was upheld inasmuch as the petitioner failed to prove that any caste mentioned in the list was not socially and educationally backward….
DECISIONS OF U.S. SUPREME COURT
… [I]n Regents of the University of California v. Allan Bakke [1978] 57 L.Ed. 2nd 750.
The Medical School of the University of California at Davis had been following two admissions programmes, one in respect of the 84 seats (general) and the other, a special admissions programme under which only disadvantaged members of certain minority races were considered for the remaining 16 seats - the total seats available being 100 a year. For these 16 seats, none except the members of the minority races were considered and evaluated. The respondent, Bakke, a white, could not obtain admission for two consecutive years, in view of his evaluation scores, while admission was given to members of minority races who had obtained lesser scores than him. He questioned the validity of special admissions programme on the ground that it violated the equal protection clause in the Fourteenth Amendment to the
Constitution and also Title VI of the Civil Rights Act. 1964. The Trial Court upheld the plea on the ground that the programme excluded members of non-minority races from the 16 reserved seats only on the basis of race and thus operated as a racial quota. It, however, refused to direct the plaintiff to be admitted inasmuch as he failed to establish that he would have been admitted but for the existence of the special admissions programme. The matter was carried in direct appeal to Supreme Court of California, which not only affirmed the Trial Court 's
Judgment in so far as it held the special admission programme to be invalid but also granted admission to the plaintiff-respondent into the Medical School. It was of the view that the
University had failed to prove that in the absence of special admissions programme the respondent would not have been admitted. The matter was then carried to the United States
Supreme Court, where three distinct view-points emerged.
Brennan, White, Marshall and Blackmun, JJ. were of the opinion that the special admissions programme was a valid one and is not violative of the Federal or State Constitutions or of Title VI of the Civil Rights Act, 1964. They were of the opinion that the purpose of overcoming substantial, chronic minority under-representation in the medical profession is sufficiently important to justify the University 's remedial use of race. Since the Judgment of the Supreme Court of California prohibited the use of race as a factor in University admissions, they reversed that Judgment.
Chief Justice Warren Burger, Stevens, Stewart and Rehnquist, JJ. took the other view. They affirmed the judgment of the California Supreme Court. They based their judgment mainly on
Title VI of Civile Rights Act, 1964, which provided that "no person in the United States shall, on the ground of race, colour or national origin, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any programme or activity receiving
Federal Financial assistance." They opined that Bakke was the victim of, what may be called,
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reverse discrimination and that his exclusion from consideration in respect of the 16 seats being solely based on race, is impermissible.
Powell, J. took the third view in his separate opinion, partly agreeing and partly disagreeing with the other view-points. He based his decision on Fourteenth Amendment alone. He did not take into consideration the 1964 Act. The learned Judge held that though racial and ethnic classifications of any kind are inherently suspect and call for the most exacting judicial scrutiny, the goal of achieving a racially balanced student body is sufficiently compelling to justify consideration of race in admissions decisions under certain circumstances. He was of the opinion that while preference can be provided in favour of minority races in the matter of admission, setting up of quotas (which have the effect of foreclosing consideration of all others in respect thereof) is not necessary for achieving the said compelling goal. He was of the opinion that impugned programme is bad since it set apart a quota for minority races. He sustained the admission granted to Bakke on the ground that the University failed to establish that even without the quota, he would not have been admitted.
It would be useful to notice the three points of view in a little more detail. Brennan, J. (with whom Marshall, White and Blackmun, JJ. agreed) observed that though the U.S. Constitution was founded on the principle that "all men are created equal", the truth is that it is not so in fact. Racial discrimination still persists in the society. In such a situation the claim that the law must be "colour-blind" is more an aspiration rather than a description of reality. The context and the reasons for which Title VI of the Civil Rights Act, 1964 was enacted leads to the conclusion that the prohibition contained in Title VI was intended to be consistent with the commands of the Constitution and no more. Therefore, "any claim that the use of racial criteria is barred by the plain language of the statute must fail in light of the remedial purpose of Title
VI and its legislative history." On the contrary, said the learned Judge, prior decisions of the court strongly suggest that Title VI does not prohibit the remedial use of race where such action is constitutionally permissible.
… We have examined the decisions of U.S. Supreme Court at some length only with a view to notice how another democracy is grappling with a problem similiar in certain respects to the problem facing this country. The minorities (including blacks) in United States are just about 16 to 18% of the total population, whereas the backward classes (including the Scheduled
Castes and Scheduled Tribes) in this country - by whichever yardstick they are measured - do certainly constitute a majority of the population. The minorites there comprise 5 to 7 groups Blacks, Spanish-speaking people, Indians, Purto Ricano, Aleuts and so on - whereas the castes and communities comprising backward classes in this country run into thousands.
Untouchability - and ‘unapproachability’, as it was being practised in Kerala - is something which no other country in the world had the misfortune to have - nor the blessed caste system.
There have been equally old civilisations on earth like ours, if not older, but none had evolved these pernicious practices, much less did they stamp them with scriptural sanction. Now coming to Constitutional provisions, Section 1 of the Fourteenth Amendment (insofar as it guarantees equal protection of the laws) corresponds to Article 14 but they do not have provisions corresponding to Article 16(4) or 15(4). Title VI of the Civil Rights Act enacted in
1964 roughly corresponds to Clause (2) of Articles 15 and 16.
At this stage, we wish to clarify one particular aspect. Article 16(1) is a facet of Article 14.
Just as Article 14 permits reasonable classification, so does Article 16(1). A classification may involve reservation of seats or vacancies, as the case may be. In other words, under Clause (1) of Article 16, appointments and/or posts can be reserved in favour of a class. But an argument is now being advanced - evidently inspired by the opinion of Powell, J. in Bakke that Article
16(1) permits only preferences but not reservations. The reasoning in support of the said argument is the same as was put forward by Powell, J. This argument, in our opinion, disregards
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the fact that that is not the unanimous view of the court in Bakke. Four Judges including
Brennan, J. took the view that such a reservation was not barred by the Fourteenth Amendment while the other four (including Warren Burger, C.J.) took the view that the Fourteenth
Amendment and Title VI of the Civil Right Acts, 1964 bars all race-conscious progammes. At the same time, there are a series of decisions relating to school desegregation - from Brown to
Board of Education v. Swann 28 L.Ed. 2nd 586 - where the court has been consistently taking the view that if race be the basis of discrimination, race can equally form the basis of remedial action. The shift in approach indicated by Metro Broadcasting Inc. is equally significant. The
‘lingering effects’ (of past discrimination) theory as well as the standard of strictest scrutiny of race-conscious programmes have both been abandoned. Suffice it to note that no single uniform pattern of thought can be discerned from these decisions. Ideas appear to be still in the process of evolution.
QUESTIONS 1 AND 2
… We are not concerned with the aspect of what is ideal or desirable but with what is the proper meaning to be ascribed to the expression ‘provision’ in Article 16(4) having regard to the context. The use of the expression ‘provision’ in Clause (4) of Article 16 appears to us to be not without design. According to the definition of ‘State’ in Article 12, it includes not merely the government and Parliament of India and Government and Legislature of each of the
States but all local authorities and other authorities within the territory of India or under the control of the Government of India which means that such a measure of reservation can be provided not only in the matter of services under the Central and State Governments but also in the services of local and other authorities referred to in Article 12. The expression ‘Local
Authority’ is defined in Section 3(31) of the General Clauses Act. It takes in all municipalities, 'Panchayats and other similar bodies. The expression ‘other authorities’ has received extensive attention from the court. It includes all statutory authorities and other agencies and instrumentalities of the State Government/Central Government. Now, would it be reasonable, possible or practicable to say that the Parliament or the Legislature of the State should provide for reservation of posts/appointments in the services of all such bodies besides providing for in respect of services under the Central/State Government?
… The very use of the word “provision” in Article 16(4) is significant. Whereas Clauses
3) and (5) of Article 16 - and Clauses (2) to (6) of Article 19 - use the word “Law”, Article
16(4) uses the word “provision”. Regulation of service conditions by orders and Rules made by the Executive was a well-known feature at the time of the framing of the Constitution.
Probably for this reason, a deliberate departure has been made in the case of Clause (4).
Accordingly, we hold, agreeing with Balaji, that the “provision” contemplated by Article 16(4) can also be made by the executive wing of the Union or of the State, as the case may be, as has been done in the present case.
… With respect to the argument of abuse of power by the political executive, we may say that there is adequate safeguard against misuse by the political executive of the power under
Article 16(4) in the provision itself. Any determination of backwardness is not a subjective exercise nor a matter of subjective satisfaction. As held herein - as also by earlier judgments the exercise is an objective one. Certain objective social and other criteria has to be satisfied before any group or class of citizens could be treated as backward. If the executive includes, for collateral reasons, groups or classes not satisfying the relevant criteria, it would be a clear case of fraud on power.
… A question is raised whether an executive order made in terms of Article 16(4) is effective and enforceable by itself or whether it is necessary that the said “provision” is enacted
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into a law made by the appropriate Legislature under Article 309 or is incorporated into and issued as a Rule by the President/Governor under the proviso to Article 309 for it to become enforceable? Mr. Jethmalani submits that Article 16(4) is merely declaratory in nature, that it is an enabling provision and that it is not a source of power by itself. He submits that unless made into a law by the appropriate Legislature or issued as a rule in terms of the proviso to
Article 309, the “provision” so made by the Executive does not become enforceable. At the same time, he submits that the impugned Memorandums must be deemed to be and must be treated as Rules made and issued under the proviso to Article 309 of the Constitution. We find it difficult to agree with Sri Jethmalani. Once we hold that a provision under Article 16(4) can be made by the executive, it must necessarily follow that such a provision is effective the moment it is made. …
… [T]here is yet another reason, why we cannot agree that the impugned Memorandums are not effective and enforceable the moment they are issued. It is well settled by the decisions of this Court that the appropriate government is empowered to prescribe the conditions of service of its employees by an executive order in the absence of the rules made under the proviso to Article 309. It is further held by this Court that even where Rules under the proviso to Article 309 are made, the government can issue orders/instructions with respect to matters upon which the Rules are silent. … It would, therefore, follow that until a law is made or rules are issued under Article 309 with respect to reservation in favour of backward classes, it would always be open to the Executive (Government) to provide for reservation of appointments/posts in favour of Backward Classes by an executive order. We cannot also agree with Mr. Jethmalani that the impugned Memorandums should be treated as Rules made under the proviso to Article
309. There is nothing in them suggesting even distantly that they were issued under the proviso to Article 309. They were never intended to be so, nor is that the stand of the Union Government before us. They are executive orders issued under Article 73 of the Constitution read with
Clause (4) of Article 16. The mere omission of a recital “in the name and by order of the
President of India” does not affect the validity or enforceability of the orders, as held by this
Court repeatedly.
… In our respectful opinion, the view taken by the majority in Thomas is the correct one.
We too believe that Article 16(1) does permit reasonable classification for ensuring attainment of the equality of opportunity assured by it. For assuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons unequally. Not doing so, would perpetuate and accentuate inequality. Article 16(4) is an instance of such classification, put in to place the matter beyond controversy. The “backward class of citizens” are classified as a separate category deserving a special treatment in the nature of reservation of appointments/posts in the services of the State. Accordingly, we hold that Clause (4) of Article
16 is not exception to Clause (1) of Article 16. It is an instance of classification implicit in and permitted by Clause (1). The speech of Dr. Ambedkar during the debate on draft Article 10(3)
[corresponding to Article 16(4)] in the Constituent Assembly - referred to in para 28 - shows that a substantial number of members of the Constituent Assembly insisted upon a “provision
(being) made for the entry of certain communities which have so far been outside the administration”, and that draft Clause (3) was put in recognition and acceptance of the said demand. It is a provision which must be read along with and in harmony with Clause (1).
Indeed, even without Clause (4), it would have been permissible for the State to have evolved such a classification and made a provision for reservation of appointments/posts in their favour.
Clause (4) merely puts the matter beyond any doubt in specific terms.
… It had to be accepted that Clause (4) is an instance of classification inherent in Clause
(1). Now, just as Article 16(1) is a facet or an elaboration of the principle underlying Article
14, Clause (2) of Article 16 is also an elaboration of a facet of Clause (1). If Clause (4) is an
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exception to Clause (1) then it is equally an exception to Clause (2). Question then arises, in what respect is Clause (4) an exception to Clause (2), if ‘class’ does not means ‘caste’. Neither
Clause (1) nor Clause (2) speak of class. Does the contention mean that Clause (1) does not permit classification and therefore Clause (4) is an exception to it. Thus, from any point of view, the contention of the petitioners has no merit.
… The question than arises whether Clause (4) of Article 16 is exhaustive of the topic of reservations in favour of backward classes. Before we answer this question it is well to examine the meaning and content of the expression “reservation”. … In our opinion, reservation is the highest form of special provision, while preference, concession and exemption are lesser forms.
The Constitutional scheme and context of Article 16(4) induces us to take the view that larger concept of reservations takes within its sweep all supplemental and ancillary provisions as also lesser types of special provisions like exemptions, concessions and relaxations, consistent no doubt with the requirement of maintenance of efficiency of administration - the admonition of
Article 335. … In our opinion, therefore, where the State finds it necessary - for the purpose of giving full effect to the provision of reservation to provide certain exemptions, concessions or preferences to members of backward classes, it can extend the same under Clause (4) itself. In other words, all supplemental and ancillary provisions to ensure full availment of provisions for reservation can be provided as part of concept of reservation itself. Similarly, in a given situation, the State may think that in the case of a particular backward class it is not necessary to provide reservation of appointments/posts and that it would be sufficient if a certain preference or a concession is provided in their favour. This can be done under Clause (4) itself.
In this sense, Clause (4) of Article 16 is exhaustive of the special provisions that can be made in favour of "the backward class of citizens". Backward Classes having been classified by the
Constitution itself as a class deserving special treatment and the Constitution having itself specified the nature of special treatment, it should be presumed that no further classification or special treatment is permissible in their favour apart from or outside of Clause (4) of Article
16.
The aspect next to be considered is whether Clause (4) is exhaustive of the very concept of reservations? In other words, the question is whether any reservations can be provided outside
Clause (4) i.e., under Clause (1) of Article 16. There are two views on this aspect. On a fuller consideration of the matter, we are of the opinion that Clause (4) is not, and cannot be held to be, exhaustive of the concept of reservations; it is exhaustive of reservations in favour of backward classes alone. Merely because one form of classification is stated as a specific clause, it does not follow that the very concept and power of classification implicit in Clause (1) is exhausted thereby. To say so would not be correct in principle. But, at the same time, one thing is clear. It is in very exceptional situations, and not for all and sundry reasons - that any further reservations, of whatever kind, should be provided under Clause (1). In such cases, the State has to satisfy, if called upon, that making such a provision was necessary (in public interest) to redress a specific situation. The very presence of Clause (4) should act as a damper upon the propensity to create further classes deserving special treatment. The reason for saying so is very simply. If reservations are made both under Clause (4) as well as under Clause (1), the vacancies available for free competition as well as reserved categories would be correspondingly whittled down and that is not a reasonable thing to do.
For the reasons given in the preceding paragraphs we must reject the argument that Clause
(1) of Article 16 permits only extending of preferences, concessions and exemptions, but does not permit reservation of appointments/posts. … [T]he argument that no reservations can be made under Article 16(1) is really inspired by the opinion of Powell, J. in Bakke. But in the very same paragraph we had pointed out that it is not the unanimous opinion of the Court. In principle, we see no basis for acceding to the said contention. What kind of special provision
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should be made in favour of a particular class is a matter for the State to decide, having regard to the facts and circumstances of a given situation - subject, of course, to the observations in the preceding paragraph.
QUESTIONS 3, 4 AND 5
… What does the expression “Backward Class of Citizens” in Article 16(4) signify and how should they be identified? This has been the single most difficult question tormenting this nation. The expression is not defined in the Constitution. What does it mean then? The arguments before us mainly revolved round this question. Several shades of opinion have been presented to us ranging from one extreme to the other. Indeed, it may be difficult to set out in full the reasoning presented before us orally and in several written propositions submitted by various counsel. We can mention only the substance of and the broad features emerging from those submissions. At one end of the spectrum stands Mr. N.A. Palkhiwala (supported by several other counsel) whose submissions may briefly be summarised in the following words: a secular, unified and caste-less society is a basic feature of the Constitution. Caste is a prohibited ground of distinction under the Constitution. It ought to be erased altogether from the Indian Society. It can never be the basis for determining backward classes referred to in
Article 16(4). The Report of the Mandal Commission, which is the basis of the impugned
Memorandums, has treated the expression “backward classes” as synonymous with backward castes and has proceed to identify backward classes solely and exclusively on the basis of caste, ignoring all other considerations including poverty. It has indeed invented castes for NonHindus where none exists. The Report has divided the nation into two sections, backward and forward, placing 52% of the population in the former section. Acceptance of Report would spell disaster to the unity and integrity of the nation. If half of the posts are reserved for backward classes, it would seriously jeopardise the efficiency of the administration, educational system, and all other services resulting in backwardness of the entire nation. Merit will disappear by deifying backwardness. Article 16(4) is broader than Article 15(4). The expression “backward class of citizens” in Article 16(4) is not limited to “socially and educationally backward classes” in Article 15(4). The impugned Memorandums, based on the said report must necessarily fall to the ground along with the Report. In fact the main thrust of
Mr. Palkhiwala 's argument has been against the Mandal Commission Report.
… At the other end of the spectrum stands Mr. Ram Jethmalani, counsel appearing for the
State of Bihar supported by several other counsel. According to him, backward castes in Article
16(4) meant and means only the members of Shudra casts which is located between the three upper castes (Brahmins, Kshatriyas and Vaishyas) and the out-castes (Panchamas) referred to as Scheduled Castes. According to him, Article 16(4) was conceived only for these “middle castes” i.e., castes categorised as shudras in the caste system and for none else. These backward castes have suffered centuries of discrimination and disadvantage, leading to their backwardness. The expression “backward classes” does not refer to any current characteristic of a backward caste save and except paucity or inadequacies of representation in the apparatus of the Government. Poverty is not a necessary criterion of backwardness; in is in fact irrelevant.
The provision for reservation is really a programme of historical compensation. It is neither a measure of economic reform nor a poverty alleviation programme. The learned Counsel further submitted that it is for the State to determine who are the backward classes; it is not a matter for the court. The decision of the Government is not judicially reviewable. Even if reviewable, the scope of judicial review is extremely limited - to the only question whether the exercise of power is a fraud on the Constitution. The learned Counsel referred to certain American decisions to show that even in that country several programmes of affirmative action and compensatory discrimination have been evolved and upheld by courts.
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… What then is a caste? Though caste has been discussed by scholars and jurists, no precise definition of the expression has emerged. A caste is a horizontal segmental division of society spread over a district or a region or the whole State and also sometimes outside it. Homo
Hierarchicus is expected to be the central and substantive element of the caste/system which differentiate it from other social systems. The concept of purity and impurity conceptualises the caste system. There are four essential features of the caste system which maintained its homo hierarchicus character: (1) hierarchy (2) commensality: (3) restrictions on marriage; and
(4) hereditary occupation. Most of the caste are endogamous groups. Intermarriage between two groups is impermissible. But ‘Pratilom’ marriages are not wholly known.
… The above material makes it amply clear that a caste is nothing but a social class - a socially homogeneous class. It is also an occupational grouping, with this difference that its membership is hereditary. One is born into it. Its membership is involuntary. Even if one ceases to follow that occupation, still he remains and continues a member of that group. To repeat, it is a socially and occupationally homogenous class. Endogamy is its main charateristic. Its social status and standing depends upon the nature of the occupation followed by it. Lowlier the occupation, lowlier the social standing of the class in the graded hierarchy. In rural India, occupation-caste nexus is true even today. A few members may have gone to cities or even abroad but when they return - they do, barring a few exceptions they go into the same fold again. It doesn 't matter if he has earned money. He may not follow that particular occupation.
Still, the label remains. His identity is not changed. For the purposes of marriage, death and all other social functions, it is his social class - the caste - that is relevant. It is a matter of common knowledge that an overwhelming majority of doctors, engineers and other highly qualified people who go abroad for higher studies or employment, return to India and marry a girl from their own caste. Even those who are settled abroad come to India in search of brides and bridegrooms for their sons and daughters from among their own caste or community.
As observed by Dr. Ambedkar, a caste is an enclosed class and it was mainly these classes the Constituent Assembly had in mind though not exclusively - while enacting Article 16(4).
Urbanisation has to some extent broken this caste- occupation nexus but not wholly. If one sees around himself, even in towns and cities, a barber by caste continues to do the same job - may be, in a shop (hair dressing saloon). A washerman ordinarily carries on the same job though he may have a laundry of his own. May be some others too carry on the profession of barber or washerman but that does not detract from the fact that in the case of an over-whelming majority, the caste-occupation nexus subsists. In a rural context, of course, a member of barber caste carrying on the occupation of a washerman or vice versa would indeed be a rarity - it is simply not done. There, one is supposed to follow his caste occupation, ordained for him by his birth.
There may be exceptions here and there, but we are concerned with generality of the scene and not with exceptions or aberrations. Lowly occupation results not only in low social position but also in poverty; it generates poverty. ‘Caste-occupation-poverty’ cycle is thus an ever present reality. In rural India, it is strikingly apparent; in urban centers, there may be some dilution.
But since rural India and rural population is still the overwhelmingly predominant fact of life in india, the reality remains. All the decisions since Balaji speak of this 'caste-occupationpoverty ' nexus. The language and emphasis may very but the theme remains the same. This is the stark reality notwithstanding all our protestations and abhorrence and all attempts at weeding out this phenomenon. We are not saying it ought to be encouraged. It should not be.
It must be eradicated. That is the ideal - the goal. But any programme towards betterment of these sections-classes of society and any programme designed to eradicate this evil must recognise this ground reality and attune its programme accordingly. Merely burying our heads in the sand - Ostrich-like - wouldn 't help. One cannot fight his enemy without recognizing him.
The U.S. Supreme Court has said repeatedly, if race be the basis of discrimination - past and present - race must also form the basis of redressal programmes though in our constitutional
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scheme, it is not necessary to go that far. Without a doubt, an extensive restructuring of socioeconomic system is the answer. That is indeed the goal, as would be evident from the preamble and Part IV (Directive Principles). But we are concerned here with a limited aspect of equality emphasised in Article 16(4) - equality of opportunity in public employment and a special provision in favour of backward class of citizens to enable them to achieve it.
… Now, we may turn to the identification of "backward class of citizens". How do you go about it? …There is no set or recognised method. There is no law or other statutory instrument prescribing the methodology. …We must also say that there is no rule of law that a test to be applied for identifying backward classes should be only one and/or uniform. In a vast country like India, it is simply not practicable. If the real object is to discover and locate backwardness, and if such backwardness is found in a caste, it can be treated as backward; if it is found in any other group, section or class, they too can be treated as backward. … Reservation is not being made under Clause (4) in favour of a ‘caste’ but a ‘backward class’. Once a caste satisfies the criteria of backwardness, it becomes a backward class for the purposes of Article 16(4). Even that is not enough. It must be further found that that backward class is not adequately represented in the services of the State. In such a situation, the bar of Clause (2) of Article 16 has no application whatsoever. Similarly, the argument based upon secular nature of the
Constitution is too vague to be accepted. It has been repeatedly held by the U.S. Supreme Court in School desegregation cases that if race be the basis of discrimination, race can equally form the basis of redressal. In any event, in the present context, it is not necessary to go to that extent.
It is sufficient to say that the classification is not on the basis of the caste but on the ground that that caste is found to be a backward class not adequately represented in the services of the
State….
… The other aspect to be considered is whether the backwardness contemplated in Article
16(4) is social backwardness or educational backwardness or whether it is both social and educational backwardness. Since the decision in Balaji, it has been assumed that the backward class of citizens contemplated by Article 16(4) is the same as the socially and educationally backward classes, Scheduled Castes and Scheduled Tribes mentioned in Article 15(4). Though
Article 15(4) came into existence later in 1951 and Article 16(4) does not contain the qualifying words ‘socially and educationally’ preceding the words “backward class of citizens” the same meaning came to be attached to them.
… The S.E.B.Cs. referred to by the impugned Memorandums are undoubtedly 'backward class of citizens ' within the meaning of Article 16(4). 'Means test ' in this discussion signifies imposition of an income limit, for the purpose of excluding persons (from the backward class) whose income is above the said limit. This submission is very often referred to as “the creamy layer” argument. Petitioners submit that some members of the designated backward classes are highly advanced socially as well as economically and educationally. It is submitted that they constitute the forward section of that particular backward class - as forward as any other forward class member - and that they are lapping up all the benefits of reservations meant for that class, without allowing the benefits to reach the truly backward members of that class. These persons are by no means backward and with them a class cannot be treated as backward. … [W]e direct the Government of India to specify the basis of exclusion - whether on the basis of income, extent of holding or otherwise
- of ‘creamy layer’. This shall be done as early as possible, but not exceeding four months. On such specification persons falling within the net of exclusionary rule shall cease to be the members of the Other Backward Classes (covered by the expression 'backward class of citizens ') for the purpose of Article 16(4). The impugned Office Memorandums dated 13th
August, 1990 and 25th September, 1991 shall be implemented subject only to such specification and exclusion of socially advanced persons from the backward classes contemplated by the
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said O.M. In other words, after the expiry of four months from today, the implementation of the said O.M. shall be subject to the exclusion of the ‘creamy layer’ in accordance with the criteria to be specified by the Government of India and not otherwise. …
QUESTION NOS. 6, 7 AND 8
… We must, however, point out that Clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Articles 330 and
332 of the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok Sabha and the State Legislatures in favour of Scheduled Tribes and Scheduled
Castes proportionate to their population, but they are only temporary and special provisions. It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant. Just as every power must be exercised reasonably and fairly, the power conferred by
Clause (4) of Article 16 should also be exercised in a fair manner and within reasonably limits
- and what is more reasonable than to say that reservation under Clause (4) shall not exceed
50% of the appointments or posts, barring certain extra-ordinary situations as explained hereinafter. From this point of view, the 27% reservation provided by the impugned
Memorandums in favour of backward classes is well within the reasonable limits. Together with reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of
49.5%. In this connection, reference may be had to the Full Bench decision of the Andhra
Pradesh High Court in Narayan Rao v. State 1987 A.P. 53, striking down the enhancement of reservation from 25% to 44% for O.B.Cs. The said enhancement had the effect of taking the total reservation under Article 16(4) to 65%.
… From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in Clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.
… We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations ' and 'horizontal reservations '.
The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes
[under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under Clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations that is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article
16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain
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- the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.
It is, however, made clear that the rule of 50% shall be applicable only to reservations proper; they shall not be - indeed cannot be - applicable to exemptions, concessions or relaxations, if any provided to ‘Backward Class of Citizens’ under Article 16(4).
… While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In such situations. It may not be advisable to provide for reservations. For example, technical posts in research and development organisations/departments/institutions, in specialities and super-specialties in medicine, engineering and other such courses in physical sciences and mathematics, in defence services and in the establishments connected therewith. Similarly, in the case of posts at the higher echelons e.g., Professors (in Education), Pilots in Indian Airlines and Air India,
Scientists and Technicians in nuclear and space application, provision for reservation would not be advisable.
QUESTIONS 9, 10 & 11 AND OTHER MISCELLANEOUS QUESTIONS
It is enough to say on this question that there is no particular or special standard of judicial scrutiny in matters arising under Article 16(4) or for that matter, under Article 15(4). The extent and scope of judicial scrutiny depends upon the nature of the subject matter, the nature of the right affected, the character of the legal and constitutional provisions applicable and so on. The acts and orders of the State made under Article 16(4) do not enjoy any particular kind of immunity. At the same time, we must say that court would normally extend due deference to the judgment and discretion of the Executive - a co-equal wing - in these matters. The political executive, drawn as it is from the people and represent as it does the majority will of the people, is presumed to know the conditions and the needs of the people and hence its judgment in matters within its judgment and discretion will be entitled to due weight. More than this, it is neither possible nor desirable to say. It is not necessary to answer the question as framed.
… The object of the clause is to provide a preference in favour of more backward among the “socially and educationally backward classes”. In other words, the expression 'poorer sections ' was meant to refer to those who are socially and economically more backward. The use of the word 'poorer ', in the context, is meant only as a measure of social backwardness. (Of course, the Government is yet to notify which classes among the designated backward classes are more socially backward, i.e., 'poorer sections '). Understood in this sense, the said classification is not and cannot be termed as invalid either constitutionally speaking or in law.
The next question that arises is: what is the meaning and context of the expression 'preference '?
Having regard to the fact the backward classes are sought to be divided into two sub-categories, viz., backward and more backward, the expression 'preference ' must be read down to mean an equitable apportionment of the vacancies reserved (for backward classes) among them. The object evidently could not have been to deprive the 'backward ' altogether from benefit of reservation, which could be the result if word 'preference ' is read literally - if the 'more backward ' take away all the available vacancies/posts reserved for O.B.Cs., none would remain for 'backward ' among the O.B.Cs. It is for this reason that we are inclined to read down the expression to mean an equitable apportionment. This, in our opinion, is the proper and reasonable way of understanding the expression preference in the context in which it occurs.
By giving the above interpretation, we would be effectuating the underlying purpose and the true insertion behind the clause.
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It shall be open to the Government to notify which classes among the several designated other backward classes are more backward for the purposes of this clause and the apportionment of reserved vacancies/posts among 'backward ' and "more backward". On such notification the clause will become operational.
SHOULD THE MATTER GO BACK TO CONSTITUTION BENCH TO GO INTO THE
DEFECTS OF THE MANDAL COMMISSION REPORT
…The first and foremost criticism levelled against the approach and the procedure adopted by Mandal Commission in that the Mandal Commission has adopted caste and caste alone as the basis of its approach throughout. On this count alone, it is argued, the entire report of the
Commission is vitiated. It is pointed out that in its very first letter dated 25th April, 1979
(Appendix VII at page 91-Vol. 2) addressed to all the Ministries and Departments of the Central
Government, the Commission has prescribed the following test for determining the socially and educationally backward classes:
(a) In respect of employees belonging to the Hindu communities
(i) an employee will be deemed to be socially backward if he does not belong to any of the three twice-born (Dvij) 'Varnas ' i.e., he is neither a Brahmin, nor a
Kshatriya/nor a Vaishya; and
(ii) he will be deemed to be educationally backward if neither his father nor his grant father has studied beyond the primary level.
(b) Regarding the non-Hindu Communities
(i) an employee will be deemed to be socially backward if either
(1) he is a convert from those Hindu communities which have been defined as socially backward as per para 4(a)(i) above, or
(2) in case he is not such a convert, his parental income is below the prevalent poverty line, i.e., Rs. 71 per head per month.
(ii) he will be deemed to be educationally backward if neither his father nor his grand father had studied beyond the primary level.
Serious objection is taken to the above criteria. Treating all the Hindus not belonging to three upper castes as socially and educationally backward classes, it is submitted, is faulty to the core. In the case of non-Hindus, the prescription of income limit is said to be arbitrary. The criteria for identifying backward classes must be uniform for the entire population; it cannot vary from religion to religion. This shows, says the counsel, the impropriety and impermissibility of adopting the caste as the basis of identification, since castes exist only in the Hindu religion and not in others. On the basis of the statements made in Chapters IV and
V, it is submitted that the Commission was obsessed by caste and was blind to all other determinants. It is also pointed out that the Survey done by the Commission is cursory, totally inadequate and faulty. According to the petitioners, the survey must be an exhaustive one like the one done by Venkataswamy Commission in Karnataka, which also forms the basis of
Justice Chinnappa Reddy Commission Report. Carrying out the Survey to cover merely two villages and one urban block in each District is not likely to disclose a true picture since it does not represent survey of even one percent of the population. Objection is also taken to use of personal knowledge and also to reliance upon lists of backward classes prepared by State
Governments. It is repeatedly urged that the survey done by the Commission cannot be called a scientific one, which has led to discovery of as many as 3,743 castes and their identification as socially and educationally backward classes. This is a steep increase over Kalelkar
Commission, according to which, the number of S.E.B.Cs. was only 2,733. It is pointed out further that certain castes which obtained less than 11 points on being tested against the criteria
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evolved by the Commission are included among the backward classes. Conversely, certain castes which obtained 11 or more points are yet excluded from the list of backward classes. It is urged that the caste based approach adopted by the Commission has practically divided the nation into a forward section and a backward section. If Scheduled Castes and Scheduled Tribes are also added to the Other Backward Classes, more than 81 per cent of the population gets designated as backward. But for the decision in Balaji, it is submitted, the Commission would certainly have recommended reservation of 52 per cent of the appointments/posts in favour of the backward classes. The Commission was actuated by malice towards upper castes and has submitted an unbalanced, unjust and unconstitutional report, it is argued.
Respondent 's counsel, on the other hand, have refuted each and every contention of the petitioners. According to them, the criteria evolved, the methodology adopted, identification made and lists prepared are all perfectly valid and legal. The Union of India, while justifying the Report, has taken the stand that even if there are any errors or inadequacies in the work and report of the Commission, it is no ground for throwing out the report altogether, more particularly when the Government of India has taken care by 'marrying ' the Mandal lists with the State lists. If any errors are brought to the notice of the Government, Sri Parasaran says, the
Government will certainly look into them and rectify them, if satisfied about the error.
… [I]dentifying the impugned Office Memorandums with the Mandal Commission report is basically erroneous. Such an identification is bound to lead one into confusion. He would be missing the wood for the trees. Instead of concentrating on the real issues, he would deviate into irrelevance and imbalance. Mandal Commission report may have led to the passing of the impugned Office Memorandum dated 13th August, 1990; it may have acted as the catalytic agent in bringing into existence the reservation in favour of O.B.Cs. (loosely referred to as
SEBCs. in the O.M.) but the Office Memorandum dated 13th August, 1990 doesn 't incorporate the Mandal lists of O.B.Cs. as such. It incorporates, in truth and effect, the State lists as explained hereinabove. In a social measure like the impugned one, the court must give due regard to the judgment of the Executive, a co-equal wing of the State and approach the measure in the spirit in which it is conceived. …
… We may summarise our answers to the various questions dealt with and answered hereinabove: (1)(a) It is not necessary that the 'provision ' under Article 16(4) should necessarily be made by the Parliament/Legislature. Such a provision can be made by the Executive also. Local bodies, Statutory Corporations and other instrumentalities of the State falling under Article 12 of the Constitution are themselves competent to make such a provision, if so advised….
(b) An executive order making a provision under Article 16(4) is enforceable the moment it is made and issued. …
(2)(a) Clause (4) of Article 16 is not an exception to Clause (1). It is an instance and an illustration of the classification inherent in Clause (1). …
(b) Article 16(4) is exhaustive of the subject of reservation in favour of backward class of citizens, as explained in this judgment. …
(c) Reservations can also be provided under Clause (1) of Article 16. It is not confined to extending of preferences, concessions or exemptions alone. These reservations, if any, made under Clause (1) have to be so adjusted and implemented as not to exceed the level of representation prescribed for 'backward class of citizens ' - as explained in this Judgment. …
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(3)(a) A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons, are socially backward. They too represent backward social collectives for the purposes of Article 16(4). …
(b) Neither the Constitution nor the law prescribes the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. It can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can certainly be done with reference to castes among, and along with, other occupational groups, classes and sections of people. One can start the process either with the occupational groups or with castes or with some other groups. Thus one can start the process with the castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfies the criteria. If it does - what emerges is a “backward class of citizens” within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming majority of the country 's population, one can well begin with it and then go to other groups, sections and classes. …
(c) It is not necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Castes/Scheduled Tribes. …
(d) 'Creamy layer ' can be, and must be excluded. …
(e) It is not correct to say that the backward class of citizens contemplated in Article 16(4) is the same as the socially and educationally backward classes referred to in Article 15(4). It is much wider. The accent in Article 16(4) is on social backwardness. Of course, social, educational and economic backwardness are closely inter-twined in the Indian context. …
(f) The adequacy of representation of a particular class in the services under the State is a matter within the subjective satisfaction of the appropriate Government. The judicial scrutiny in that behalf is the same as in other matters within the subjective satisfaction of an authority.
…
(4)(a) A backward class of citizens cannot be identified only and exclusively with reference to economic criteria. …
(b) It is, of course, permissible for the Government or other authority to identify a backward class of citizens on the basis of occupation-cum-income, without reference to caste, if it is so advised. …
(5) There is no constitutional bar to classify the backward classes of citizens into backward and more backward categories. …
(6)(a)&(b) The reservations contemplated in Clause (4) of Article 16 should not exceed
50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main-stream of national life and in view of the conditions peculiar to and characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out. …
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(c) The rule of 50% should be applied to each year. It cannot be related to the total strength of the class, category, service or cadre, as the case may be. …
(d) Devadasan was wrongly decided and is accordingly over-ruled to the extent it is inconsistent with this judgment. …
(7) Article 16(4) does not permit provision for reservations in the matter of promotion. This rule shall, however, have only prospective operation and shall not affect the promotions already made, whether made on regular basis or on any other basis. We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. If is further directed that wherever reservations are already provided in the matter of promotion - be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of 'State ' in Article 12 - such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of backward class of citizens in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it do so. … It would not be impermissible for the State to extent concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration. …
(8) While the rule of reservation cannot be called anti-meritarion, there are certain services and posts to which it may not be advisable to apply the rule of reservation. …
(9) The distinction made in the impugned Office Memorandum dated 25th September, 1991 between ‘poorer sections’ and others among the backward classes is not invalid, if the classification is understood and operated as based upon relative backwardness among the several classes identified as other Backward classes, as explained in … this Judgment … The reservation of 10% of the posts in favour of’ ‘other economically backward sections of the people who are not covered by any of the existing schemes of the reservation’ made in the impugned office memorandum dated 25.9.1991 is constitutionally invalid and is accordingly struck down. …
(12) There is no particular or special standard of judicial scrutiny applicable to matters arising under Article 16(4). …
(13) The Government of India and the State Governments have the power to, and ought to, create a permanent mechanism - in the nature of a Commission - for examining requests of inclusion and complaints of over-inclusion or non-inclusion in the list of O.B.Cs. and to advise the Government, which advice shall ordinarily be binding upon the Government. Where, however, the Government does not accept the advice, it must record its reasons therefor.
JUSTICE THOMMEN (for himself, DISSENTING) [Justices Singh & Sahai CONCURRING but wrote their separate opinions]
… The 'indicators ' or 'criteria ' adopted in the Mandal Report are broadly grouped as social, educational and economic on the basis of castes/classes. The Commission has identified classes with castes and backwardness with particular castes. Castes which are socially, educationally and economically backward are characterised as backward classes entitled to the benefit of reservation. Persons are grouped on the basis of caste either because they are members of it by reason of their being Hindus or because they were members of it in the past prior to their conversion to other religions. Identification of backwardness is thus made with reference to the present or past caste affiliations of the people. … The Report has thus treated all persons who
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belong, or who had once belonged, to what had been regarded as untouchable or other traditionally backward caste or communities or who belong to certain low occupations as socially, educationally and economically backward.
… The fundamental question is, what is the raison d 'etre of reservation and what are its limits. The Constitution permits the State to adopt such affirmative action as it deems necessary to uplift the backward classes of citizens to levels of equality with the rest of our countrymen.
The backward classes of citizens have been in the past denied access to Government services on account of their inability to compete effectively in open selections on the basis of merits. It is, therefore, open to the Government to reserve a certain number of seats in places of learning and public services in favour of the Scheduled Castes and Scheduled Tribes and other backward classes to the exclusion of all others, irrespective of merits. The impugned Government orders, have made reservation by setting aside quotas in Government services exclusively for backward classes of candidates.
… Referring to the concept of equality of opportunity in public employment, as embodied in Article 10 of the Draft Constitution, which finally emerged as Article 16 of the Constitution, and the conflicting claims of various communities for representation in public administration,
Dr. Ambedkar emphatically declared that reservation should be confined to ‘a minority of seats’, lest the very concept of equality should be destroyed…
… What the Constitution permits is the adoption of suitable and appropriate measures to correct the continuing evil effects of prior discrimination. Over-inclusiveness in such measures by unduly widening the net of reservation to unjustifiably protect the ill-deserved at the expense of the others would result in invidious discrimination offending the Constitutional objective.
Benign classification for affirmative action by reservation must stay strictly within the narrow bounds of remedial actions. Any such programme must be consistent with the fundamental objective of equality. Classes of people saddled with disabilities rooted in history of purposeful unequal treatment and consequently relegated to social, educational, economic and political powerlessness particularly qualify to demand the extraordinary and special protection of reservation. Reservation is meant to remedy the handicap of prior discrimination impeding the access of classes of people to public administration. It is for the State to determine whether the evil effects of inequities stemming from prior discrimination against classes of people have resulted in their being reduced to positions of backwardness and consequent under representation in public administration. Reservation is a remedy or a cure for the ill effects of historical discrimination. … Reservation is not an end in itself. It is a means to achieve equality. The policy of reservation adopted to achieve that end must, therefore, be consistent with the objective in view. Reservation must not outlast its constitutional object, and must not allow a vested interest to develop and perpetuate itself. There will be no need for reservation or preferential treatment once equality is achieved. Achievement and preservation of equality for all classes of people, irrespective of their birth, creed, faith or language is one on the noble ends to which the
Constitution is dedicated. Every reservation founded on benign discrimination, and justifiably adopted to achieve the constitutional mandate of equality, must necessarily be a transient passage to that end. It is temporary in concept, limited in duration, conditional in application and specific in object. Reservation must contain within itself the seeds of its termination. Any attempt to perpetuate reservation and upset the constitutional mandate of equality is destructive of liberty and fraternity and all the basic values enshrined in the Constitution. A balance has to be maintained between the competing values and the rival claims and interests so as to achieve equality and freedom for all.
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The makers of the Constitution were fully conscious of the unfortunate position of the
Scheduled Castes and Scheduled Tribes. To them equality, liberty and fraternity are but a dream; an ideal guaranteed by the law, but far too distant to reach; far too illusory to touch.
These backward people and others in like positions of helplessness are the favoured children of the Constitution. It is for them that ameliorative and remedial measures are adopted to achieve the end of equality. To permit those who are not intended to be so specially protected to compete for reservation is to dilute the protection and defeat the very constitutional aim.
The victims of prior injustice are the special favourites of the laws. Their plight is a shameful scar on the national conscience. It is a constitutional command that prompt measures are adopted by the State for the promotion of these unfortunate classes of people specially to positions of comparative enlightement, culture, knowledge, influence, affluence and prestige so as to place them on levels of equality with the more fortunate of our countrymen.
Reservation must one day become unnecessary and a relic of an unfortunate past. Every such action must be a transient self-liquidating programme. That is the hope and dream cherished by the Constitution Makers and that is the end to which the State has to address itself in making special provisions for the chosen classes of people for special constitutional protection, so that "persons will be regarded as persons, and discrimination of the type we address today will be an ugly feature of history that is instructive but that is behind us"; Per
Justice T. Marshall, Regents of the University of California v. Allan Bakke 438 US 265, 57 L
Ed. 2d 750. …
… Historically, backwardness has been the curse of people must of whom are characterised as the Scheduled Castes and the Scheduled Tribes. These are not castes as such, but classes of people composed of castes, races or tribes or tribal communities or parts or groups thereof and classified as such by means of presidential notifications owing to their extreme backwardness and other disadvantages (see Articles 341 and 342).
… Any identification made for the purpose of Article 15 or Article 16 solely with reference to caste or religion, and without regard to the real issue of backwardness, will be an impermissible classification resulting in invidious reverse discrimination. The fact that identification of backwardness may involve a reference to religion, race, caste, occupation, place of residence or the like in respect of classes of people does not mean that any one of these factors is the sole or the dominant or the indispensable criterion. Backwardness may be the result of a combination of two or more of these factors. Persons of a particular place or occupation may have been enslaved as bonded labourers, or otherwise held in serfdom and exploited and discriminated against, and may have over a period of time degenerated to such social and educational backwardness as to qualify for the special protection of the Constitution.
No matter to what caste or community or religion they belonged or from what place they came, their present plight stemming from prior inequities and continuing over a period of time and thus placing them in a state of total helplessness qualifies them for the special protection of reservation. Historically, backwardness, as stated above, has been most acute at the lowest levels of our society and it has been invariably identified with low castes and demeaning occupations. But if, as a matter of fact, classes of citizens of higher castes have suffered continuously by reason of discrimination or exploitation by persons having authority and power over them and have consequently been reduced to poverty, ignorance and isolation resulting in social and educational backwardness, whatever be the caste of the exploiters or of the victims, the constitutional protection has to be extended to such classes of victims. They must be helped out of their present plight resulting from prior or continuing discrimination or exploitation.
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Proof of their backwardness is not in their caste or religion, but in their poverty, ignorance and consequential disabilities.
… To contend that caste, and caste alone, is the criterion identification of backwardness is to disregard the innumerable reasons for backwardness. At the same time, to ignore caste as a factor in identifying backwardness for the purpose of reservation is to shut one 's eyes to the realities and ignore the cause of injustice from which large sections of people in this country have for generations suffered and still suffer, namely, naked exploitation and discrimination by those in positions of power and affluence. The realities of life in India militate against total exclusion of consideration based on caste or total concentration on caste in identifying backwardness caused by past inequities.
The Constitution is neither caste-blind nor caste-prejudiced nor caste-overcharged, but fully alive to caste as one of the relevant criteria to be reckoned in the process of identification of backward classes of citizens. India is not a nation of castes but of people with roots in divergent castes. What the Constitution seeks to identify is not the backward caste, but the backward class of citizens who may in many cases be partly or in some cases predominantly or even solely identified with particular caste.
The question is not whether the Constitution is caste-blind or caste prejudiced; the question really is who are the backward classes of citizens intended to be protected by reservation under
Article 15 or Article 16. If reservation is limited solely to the Scheduled Castes and the
Scheduled Tribes and other comparably backward classes of citizens, as it must be under the
Constitution, then the Harijans, the Girijans, the Adivasis, the Dalits, and other like backward classes of citizens, once known as the "untouchables" or the "outcastes" or the "depressed classes" by reason of their "low" birth and "demeaning" occupation, or any other class of citizens afflicted by like degree of degeneration deprivation caused by prior and continuing discrimination, exploitation, neglect, poverty, disease, isolation, bondage and humiliation, whatever be their caste, religion or place of origin, will alone qualify for reservation. Call them a class or a caste or a race or a tribe or whatever nomenclature is appropriate, they are the only legitimately intended beneficiaries of reservation. Their roots of origin in the lowest of the low segments of society; their affiliation with what is traditionally regarded as demeaning occupations; their humiliating and inescapable segregation and chronic isolation from the rest of the population; their social and educational deprivation and helplessness; their abysmal poverty and degenerating backwardness; all this and more most humiliatingly branded them in the past as "outcastes" or "untouchables" or "depressed classes" or whatever other nomenclature one might ascribe to describe them. It is their present plight of continuing poverty and backwardness stemming from identified historical discrimination, whatever be the religion or faith they presently profess, that the Constitution entitles them to the special protection of reservation. The fact that the search to identify backwardness for the purpose of reservation will invariably lead one to these so called outcastes or the lowest of the low castes or untouchables does not vitiate identification so long as what is sought to be identified is not caste but backwardness.
Poverty by itself is not the test of backwardness, for if it were so, most people in this country would be in a position to claim reservation… Reservation for all would be reservation for none, and that would be an ideal condition if affluence, and not poverty, was its basis. But unfortunately the vast majority of our people are not blessed by affluence but afflicted by poverty. Poverty is a disgrace to any nation and the resultant backwardness is a shame. But the
Constitution envisages reservation for those persons who are backward because of identified prior victimisation and the consequential poverty. Poverty invariably results in social and educational backwardness. In all such cases the question to be asked, for the purpose of reservation, is whether such poverty is the result of identified historical or continuing
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discrimination. No matter what caused the discrimination and exploitation; the question is, did such inequity and injustice result in poverty and backwardness.
… Any affirmative action must be supported by a valid classification and must have a rational nexus with the object of redressing backwardness. It is much more so where such programmes totally exclude from consideration persons outside the chosen classes without regard to merits because of the set aside quotas. It does not matter whether Clause (4) of Article
16, like Clause (4) of Article 15, is seen as a proviso or an exception or, in the words of Mathew,
J., a legislative device to emphasise the 'extent to which equality of opportunity could be carried, viz., even up to the point of making reservation '. State of Kerala v. N.M. Thomas. N.M.
Thomas apart, this Court has generally treated Clause (4) as an exception or a proviso to the general rule of equality enshrined in Article 16(1). … Call it what one will - an exception or proviso or what - and semantics apart, reservation by reason of its exclusion of the generality of candidates competing solely on merits must be narrowly tailored and strictly construed so as to be consistent with the fundamental constitutional objectives. Clause (4), seen in whatever colour, is a very powerful and potent weapon which causes lasting ill effects and damage unless justly and appropriately used. It is not a remedy for all kinds of disadvantages and disabilities and for all classes of people. It is a special and powerful weapon to wield which with less than the very special care and caution and otherwise than in the most exceptional situations, peculiar to extreme cases of backwardness, that the Constitution envisages is to give rise to invidious reverse discrimination exceeding the strict bounds of Article 16(4) and to create hateful casteprejudices and divisions between classes of people.
… Dr. Ambedkar was unequivocal when he declared that reservation must be confined to a minority of the available posts, lest it should destory the very concept of equality and thus undermine democracy. Any excessive reservation or any unnecessarily prolonged reservation will result in invidious discrimination. What exactly is the total percentage of reservation at a given time is a matter for the State to decide, dependent on the need of the time. But in no case shall reservation overstep the strict boundaries of minority of seats or posts or outlast the reason for it. It must remain well below 50% of available seats or posts. Every reservation must be made with a view to its early termination on the successful accomplishment of its object.
… It is wrong and unwise to see affirmative action merely as a penance or an atonement for the sins of past discrimination. It is not retributive justice on wrong doers. It is corrective and remedial justice to compensate the victims of prior injustice. It is not merely focused on reparation for past inequities. It is a forward looking balancing act of reformative social engineering; an architecture of a better future of harmonious relationship amongst all classes of citizens; an equitable redistribution of community resources with a view to the greatest happiness of the greatest number of people.
… Any attempt to view affirmative action as merely retributes or to unduly over-emphasis its compensatory aspect and widen the scope of reservation beyond minority of posts or seats is to practice excessive and invidious reverse discrimination. To project particular castes as legitimate claimants for such compensatory discrimination, without due regard to the nature and degree of their backwardness, is to invite the public wrath of stigmatising prejudice against them, thereby promoting caste hatred and separatism. Any such stereotyped and stigmatised approach to this soul searching sociological problem is to distort the fairness of the political and constitutional process of adjustment and readjustment amongst classes of people in our country. Page 189 of 610
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UNIT 5 – FUNDAMENTAL FREEDOMS (ARTICLE 19)
POLITICAL SPEECH
ROMESH THAPAR V. STATE OF MADRAS
AIR 1950 SC 124
Decided On: May 26, 1950
BENCH – CHIEF JUSTICE H. L. KANIA, S. FAZL ALI, PATANJALI SASTRI, M. C. MAHAJAN,
MUKHERJEA & DAS
CHIEF JUSTICE KANIA (for himself; Justices Sastri, Mahajan, Mukherjea & Das CONCURRING)
The petitioner is the printer, publisher and editor of a recently started weekly journal in
English called Cross Roads printed and published in Bombay. The Government of Madras, the respondents herein, in exercise of their powers under section 9(1-A) of the Madras
Maintenance of Public Order Act, 1949 (hereinafter referred to as the impugned Act) purported to issue an order No. MS. 1333 dated 1st March, 1950, whereby they imposed a ban upon the entry and circulation of the journal in that State. The order was published in the Fort
St. George Gazette and the notification ran as follows:"In exercise of the powers conferred by section 9(1-A) of the Madras Maintenance of Public Order, Act, 1949 (Madras Act XXIII of 1949). His Excellency the
Governor of Madras, being satisfied that for the purpose of securing the public safety and the maintenance of public order, it is necessary so to do, hereby prohibits, with effect on and from the date of publication of this order in the Fort
St. George Gazette the entry into or the circulation, sale or distribution in the State of Madras or any part thereof of the newspaper entitled Cross Roads an English weekly published at Bombay."
The petitioner claims that the said order contravenes the fundamental right of the petitioner to freedom of speech and expression conferred on him by article 19(1)(a) of the Constitution and he challenges the validity of section 9(1-A) of the impugned Act as being void under article 13(1) of the Constitution by reason of its being inconsistent with his fundamental right aforesaid. The Advocate-General of Madras appearing on behalf of the respondents raised a preliminary objection, not indeed to the jurisdiction of this Court to entertain the application under article 32, but to the petitioner resorting to this Court directly for such relief in the first instance. He contended that, as a matter of orderly procedure, the petitioner should first resort to the High Court at Madras which under article 226 of the Constitution has concurrent jurisdiction to deal with the matter. He cited criminal revision petitions under section 435 of the Criminal Procedure Code, applications for bail and applications for transfer under section 24 of the civil Procedure Code as instances where, concurrent jurisdiction having been given in certain matters to the High Court and the Court of a lower grade, a rule of practice has been established that a party should proceed first to the latter Court for relief before resorting to the High Court. … We are of opinion that neither the instances mentioned by the learned Advocate-General nor the American decisions referred to by him are really analogous to the remedy afforded by article 32 of the Indian Constitution. That article does not merely confer power on this Court, as article 226 does on the High Court, to issue certain writs for the enforcement of the rights conferred by Part III or for any other purpose, as part of its general jurisdiction. In that case it would have been more appropriately placed among articles 131 to 139 which define that jurisdiction. Article 32 provides a "guaranteed" remedy
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for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part III. This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights. No similar provision is to be found in the Constitution of the United States and we do not consider that the American decisions are in point.
Turning now to the merits, there can be no doubt that freedom of speech and expression includes freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation. "Liberty of circulation is as essential to that freedom as the liberty of publication.
Indeed, without circulation the publication would be of little value". Ex parte Jackson 96 U.S.
727. See also Lovell v. City of Griffin 303 U.S. 444. It is therefore perfectly clear that the order of the Government of Madras would be a violation of the petitioner 's fundamental right under article 19(1)(a), unless section 9(1-A) of the impugned Act under which it was made is saved by the reservations mentioned in clause (2) of article 19 which (omitting immaterial words regarding laws relating to libel, slander, etc., with which we are not concerned in this case) saves the operation of any "existing law in so far as it relates to any matter which undermines the security of, or tends to overthrow, the State." The question accordingly arises whether the impugned Act, in so far as it purports by section 9(1-A) of to authorise the Provincial
Government
"for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry into or the circulation, sale or distribution in the
Province of Madras or any part thereof of any document or class of documents" is a "law relating to any matter which undermines the security of or tends to overthrow the State."
The impugned Act was passed by the Provincial Legislature in exercise of the power conferred upon it by section 100 of the Government of India Act, 1935, read with Entry 1 of
List II of the Seventh Schedule to that Act, which comprises among other matters, "public order." Now "public order" is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regulations enforced by the government which they have established. Although section 9(1A) refers to "securing the public safety" and "the maintenance of public order" as distinct purposes, it must be taken that "public safety" is used as a part of the wider concept of public order, for, if public safety were intended to signify any matter distinct from and outside the content of the expression "public order," it would not have been competent for the Madras
Legislature to enact the provision so far as it relates to public safety. This indeed was not disputed on behalf of the respondents. But it was urged that the expression "public safety" in the impugned Act, which is a statute relating to law and order, means the security of the
Province, and, therefore, "the security of the State" within the meaning of article 19(2) as "the
State" has been defined in article 12 as including, among other things, the Government and the Legislature of each of the erstwhile Provinces. Much reliance was placed in support of this view on Rex v. Wormwood Scrubbs Prison L.R. [1920] 2 K.B. 305, where it was held that the phrase "for securing the public safety and the defence of the realm" in section 1 of the Defence of the Realm (Consolidation) Act, 1914, was not limited to securing the country against a foreign foe but included also protection against internal disorder such as a rebellion. The decision is not of much assistance to the respondents as the context in which the words "public safety" occurred in that Act showed unmistakably that the security of the State was the aim in view. Our attention has not been drawn to any definition of the expression "public safety," nor does it appear that the words have acquired any technical signification as words of art.
"Public safety" ordinarily means security of the public or their freedom from danger. In that sense, anything which tends to prevent dangers to public health may also be regarded as
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securing public safety. The meaning of the expression must, however, vary according to the context. In the classification of offence in the Indian Penal Code, for instance, Chapter XIV enumerates the "offences affecting the public health, safety, convenience, decency, and, morals" and it includes rash driving or riding on a public way (section 279) and rash navigation of a vessel (section 280), among others, as offences against public safety, while Chapter VI lists waging war against the Queen (section 121) sedition (section 124-A) etc. as "offences against the State", because they are calculated to undermine or the security of the State, and
Chapter VIII defines "offences against the public tranquillity" which include unlawful assembly (section 141) rioting (section 146), promoting enmity between classes (section 153A), affray (section 159) etc. Although in the context of a statute relating to law and order
"securing public safety" may not include the securing of public health, it may well mean securing the public against rash driving on a public way and the like, and not necessarily the security of the State. It was said that an enactment which provided for drastic remedies like preventive detention and ban on newspapers must be taken to relate to matters affecting the security of the State rather than trivial offences lime rash driving or an affray. But whatever ends the impugned Act may have been intended to subserve, and whatever aims its framers may have had in view, its application and scope cannot, in the absence of limiting words in the statute itself, be restricted to those aggravated forms of prejudicial activity which are calculated to endanger the security of the State. Nor is there any guarantee that those authorised to exercise the powers under the Act will in using them discriminate between those who act prejudicial to the security of the State and those who do not.
The Government of India Act, 1935, nowhere used the expression "security of the State" though it made provision under section 57 for dealing with crimes of violence intended to overthrow the Government. While the administration of law and order including the maintenance of public order was placed in charge of a Minister elected by the people, the
Governor was entrusted with the responsibility of combating the operations of persons who
"endangered the peace or tranquillity of the Province" by committing or attempting to commit
"crimes of violence intended to overthrow the Government." Similarly, article 352 of the
Constitution empowers the President to make a Proclamation of Emergency when he is satisfied that the "security of India or any part of the territory thereof is threatened by war or by external aggression or by internal disturbance." These provisions recognise that disturbance of public peace or tranquillity may assume such grave proportions as to threaten the security of the State.
As Stephen in his Criminal Law of England [Vol. II, p. 242], observes:
"Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other and are not capable of being marked off by perfectly defined boundaries. All of them have in common one feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it."
Though all these offences thus involve disturbances of public tranquillity and are in theory offences against public order, the difference between them being only a difference of degree, yet for the purpose of grading the punishment to be inflicted in respect of them they may be classified into different minor categories as has been done by the Indian Penal Code. Similarly, the Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in article 19(1), has placed in a distinct category those offences against public order which aim at undermining the security of the
State or overthrowing it, and made their prevention the sole justification for legislative abridgement of freedom of speech and expression, that is to say, nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression, while the right of peaceable assembly "sub-clause (b)"
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and the right of association "sub-clause (c)" may be restricted under clauses (3) and (4) of article 19 in the interests of "public order", which in those clauses includes the security of the
State. The differentiation is also noticeable in Entry 3 of List III (Concurrent List) of the
Seventh Schedule, which refers to the "security of a State" and "maintenance of public order" as distinct subjects of legislation. The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differences in kind.
It is also worthy of note that the word "sedition" which occurred in article 13(2) of the
Draft Constitution prepared by the Drafting Committee was deleted before the article was finally passed as article 19(2). In this connection it may be recalled that the Federal Court had, in defining sedition in Niharendu Dutt Majumdar v. King Emperor [1942] F.C.R. 38, held that
"the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that is their intention or tendency", but the Privy Council overruled that decision and emphatically reaffirmed the view expressed in Tilak 's case 22 Bom. 112, to the effect that "the offence consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small" - King Emperor v. Sadashiv
Narayan Bhalerao L.R. 74 I.A. 89.
Deletion of the word "sedition" from the draft article 13(2), therefore, shows that criticism of Government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State. It is also significant that the corresponding Irish formula of "undermining the public order or the authority of the State"
[article 40(6)(i) of the Constitution of Eire, 1937] did not apparently find favour with the framers of the Indian Constitution. Thus, very narrow and stringent limits have been set to permissible legislative abridgment of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible. A freedom of such amplitude might involve risk of abuse. But the framers of the Constitution may well have reflected, with Madison who was "the leading spirit in the preparation of the
First Amendment of the Federal Constitution," that "it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits”: [Quoted in Near v. Minnesotta 282 U.S. 607, 717-8.
We are therefore of opinion that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. It follows that section 9(1-A) which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause (2), and is therefore void and unconstitutional.
It was, however, argued that section 9(1-A) could not be considered wholly void, as, under article 13(1), an existing law inconsistent with a fundamental right is void only to the extent of the inconsistency and no more. In so far as the securing of the public safety or the maintenance of public order would include the security of the State, the impugned provision, as applied to the latter purpose, was covered by clause (2) of article 19 and must, it was said, be held to be valid. We are unable to accede to this contention. Where a law purports to
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authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as if may be applied within the constitutional limits, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void. In other words, clause (2) of article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment, which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent.
The application is therefore allowed and the order of the respondents prohibiting the entry and circulation of the petitioner 's journal in the State of Madras is hereby quashed.
BRIJ BHUSHAN V. STATE OF DELHI
AIR 1950 SC 129
Decided On: May 26, 1950
BENCH – CHIEF JUSTICE H. L. KANIA, S. FAZL ALI, PATANJALI SASTRI, M. C. MAHAJAN,
MUKHERJEA & DAS
JUSTICE SASTRI (for himself; Chief Justice Kania, Justices, Mahajan, Mukherjea & Das
CONCURRING)
This is an application under article 32 of the Constitution praying for the issue of writs of certiorari and prohibition to the respondent, the Chief Commissioner of Delhi, with a view to examine the legality of and quash the order made by him in regard to an English weekly of
Delhi called the Organizer of which the first applicant is the printer and publisher, and the second is the editor. On 2nd March, 1950, the respondent, in exercise of powers conferred on him by section 7(1)(c) of the East Punjab Public Safety Act, 1949, which has been extended to the Delhi Province and is hereinafter referred to as the impugned Act, issued the following order :
"Whereas the Chief Commissioner, Delhi, is satisfied that Organizer, an English weekly of Delhi, has been publishing highly objectionable matter constituting a threat of public law and order and that action as is hereinafter mentioned is necessary for the purpose of preventing or combating activities prejudicial to the public safety or the maintenance of public order.
Now therefore in exercise of the powers conferred by section 7(1)(c) of the East
Punjab Public Safety Act, 1949, as extended to the Delhi Province, I, Shankar
Prasad, Chief Commissioner, Delhi, do by this order require you Shri Brij
Bhushan, Printer and Publisher and Shri K. R. Halkani, Editor of the aforesaid paper to submit for scrutiny, in duplicate, before publication, till further orders, all communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by the news agencies, viz., Press Trust of India, United Press of India and United Press of America to the Provincial Press Officer, or in his absence, to Superintendent of
Press Branch at his office at 5, Alipur Road, Civil Lines, Delhi, between the hours
10 a.m. and 5 p.m. on working days."
The only point argued before us relates to the constitutional validity of section 7(1)(c) of the impugned Act which, as appears from its preamble, was passed "to provide special measures to ensure public safety and maintenance of public order." Section 7(1)(c) under which the aforesaid order purports to have been made reads (so far as material here) as follows :-
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"The Provincial Government or any authority authorised by it in this behalf if satisfied that such action is necessary for the purpose of preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a printer, publisher or editor require that any matter relating to a particular subject or class of subjects shall before publication be submitted for scrutiny."
The petitioners claim that this provision infringes the fundamental right to the freedom of speech and expression conferred upon them by article 19(1)(a) of the Constitution inasmuch as it authorises the imposition of a restriction on the publication of the journal which is not justified under clause (2) of that article.
There can be little doubt that the imposition of pre-censorship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19(1)(a). As pointed out by Blackstone in his Commentaries
"the liberty of the press consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press [Blackstone 's
Commentaries, Vol. IV, pp. 151, 152].
The only question therefore is whether section 7(1)(c) which authorises the imposition of such a restriction falls within the reservation of clause (2) of article 19.
As this question turns on considerations which are essentially the same as those on which our decision in Petition No. XVI of 1950 [Romesh Thappar v. The State of Madras] was based, our judgment in that case concludes the present case also. Accordingly, for the reasons indicated in that judgment, we allow this petition and hereby quash the impugned order of the
Chief Commissioner, Delhi, dated the 2nd March, 1950.
FREEDOM OF THE PRESS
BENNETT COLEMAN & CO. V. UNION OF INDIA
AIR 1973 SC 106, (1972) 2 SCC 788
Decided On: May 26, 1950
BENCH – CHIEF JUSTICE SIKRI, JUSTICES A. N. RAY, P. JAGANMOHAN REDDY, K. K. MATHEW
& M. H. BEG
JUSTICE RAY (for the Chief Justice, Justice Reddy & himself; MAJORITY OPINION)
These petitions challenge the Import Policy for Newsprint for the year April 1972 to March
1973. The Newsprint Policy is impeached as an infringement of fundamental rights to freedom of speech and expression in Article 19(1)(a) and right to equality in Article 14 of the
Constitution. Some provisions of the Newsprint Control Order 1962 are challenged as violative of Article 19(1)(a) and Article 14 of the Constitution.
The import of newsprint is dealt with by Import Control Order, 1955 (referred to as the
1955 Import Order). The 1955 Import Order is made in exercise of powers conferred by
Sections 3 and 4A of the Imports and Exports Control Act, 1947 (referred to as the 1947 Act).
Section 3 of the 1947 Act, speaks of powers of the Central Government to prohibit, restrict or otherwise control imports and exports. Section 4A of the 1947 Act contemplates issue or renewal of licences under the 1947 Act for imports and exports. Item 44 in Part V of Schedule
I of the 1955 Import Order relates to newsprint. Newsprint is described as white printing paper
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(including water lined newsprint which contained mechanical wood pulp amounting to not less than 70% of the fibre content). The import of newsprint is restricted under the 1955 Import
Order. This restriction of newsprint import is also challenged because it infringes Article
19(1)(a). It is said that the restriction of import is not a reasonable restriction within the ambit of Article 19(2).
The Newsprint Control Order 1962 (referred to as the 1962 Newsprint Order) is made in exercise of powers conferred by Section 3 of the Essential Commodities Act 1955 (referred to as the 1955 Act). Section 3 of the 1955 Act enacts that if the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supply of essential commodities or for securing their equitable distribution and availability at fair prices, it may, by order, provide for regulating or prohibiting production, supply and distribution and trade and commerce therein. Section 2 of the 1955 Act defines "essential commodity". Paper including newsprint, paper board and straw board is defined in Section 2(a)(vii) of the 1955
Act to be an essential commodity.
The 1962 Newsprint Order in Clause 3 mentions restrictions on acquisition, sale and consumption of newsprint. Sub-clause 3 of Clause 3 of the 1962 Newsprint Order states that no consumer of newsprint shall, in any licensing period, consume or use newsprint in excess of the quantity authorised by the Controller from time to time. Sub-clause 3A of Clause 3 of the 1962 Newsprint Order states that no consumer of newsprint, other than a publisher of text books or books of general interest, shall use any kind of paper other than newsprint except with the permission, in writing, of the Controller. Sub-clause 5 of Clause 3 of the 1962 Newsprint
Order states that in issuing an authorisation under this clause, the Controller shall have regard to the principles laid down in the Import Control Policy with respect of newsprint announced by the Central Government from time to time. Sub-clauses 3 and 3A of Clause 3 of the 1962
Newsprint Order are challenged in these petitions on the ground that these clauses affect the volume of circulation, the size and growth of a newspaper and thereby directly infringe Article
19(1)(a) of the Constitution. The restrictions mentioned in these sub-clauses of Clause 3 of the
1962 Newsprint Order are also said to be not reasonable restrictions within the ambit of Article
19(2) of the Constitution.
… The Newsprint Policy of 1972-73 referred to as the Newsprint Policy deals with white printing paper (including water lined newsprint which contained mechanical wood pulp amounting to not less than 70 per cent of the fibre content). Licences are issued for newsprint.
The validity of licences is for 12 months. The Newsprint Policy defines "common ownership unit" to mean newspaper establishment or concern owning two or more news interest newspapers including at least one daily irrespective of the center of publication and language of such newspapers. Four features of the Newsprint Policy are called in question. These restrictions imposed by the Newsprint Policy are said to infringe rights of freedom of speech and expression guaranteed in Article 19(1)(a) of the Constitution. First, no new paper or new edition can be started by a common ownership Unit even within the authorised quota of newsprint. Secondly, there is a limitation on the maximum number of pages to 10. No adjustment is permitted between circulation and the pages so as to increase the pages. Thirdly, no inter-changeability is permitted between different papers of common ownership unit or different editions of the same paper. Fourthly, allowance of 20 per cent increase in page level up to a maximum of 10 has been given to newspapers with less than 10 pages. It is said that the objectionable and irrational feature of the Newsprint Policy is that a big daily newspaper is prohibited and prevented from increasing the number of pages, page area and periodicity by reducing circulation to meet its requirement even within its admissible quota. In the Newsprint
Policy for the year 1971-72 and the earlier periods the newspapers and periodicals were permitted to increase the number of pages, page area and periodicity by reducing circulation.
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The current policy prohibits the same. The restrictions are, therefore, said to be irrational, arbitrary and unreasonable. Big daily newspapers having large circulation contend that this discrimination is bound to have adverse effects on the big daily newspapers.
… The Additional Solicitor General raised two pleas in demurrer. First, it was said that the petitioners were companies and therefore, they could not invoke fundamental rights. Secondly, it was said that Article 358 of the Constitution is a bar to any challenge by the petitioners of violation of fundamental rights.
This Court in State Trading Corporation of India Ltd. v. Commercial Tax Officer,
Visakhapatnam, [1964] 4 SCR 99 and Tata Engineering & Locomotive Co. v. State of Bihar,
[1964] 6 SCR 885 expressed the view that a corporation was not a citizen within the meaning of Article 19, and, therefore, could not invoke that Article. The majority held that nationality and citizenship were distinct and separate concepts. The view of this Court was that the word
"citizen" in Part II and in Article 19 of the Constitution meant the same thing. The result was that an incorporated company could not be a citizen so as to invoke fundamental rights. In State
Trading Corporation the Court was not invited to "tear the corporate veil". In the Tata
Engineering & Locomotive Co this Court said that a company was a distinct and separate entity from shareholders. The corporate veil it was said could be lifted in cases where the company is charged with trading with the enemy or perpetrating fraud on the Revenue authorities.
Mukherjea J., in Chiranjit Lal Choudhuri v. Union of India, [1950]1SCR869 expressed the minority view that an incorporated company can come up to this Court for enforcement of fundamental rights.
There are however decisions of this Court where relief has been granted to the petitioners claiming fundamental rights as shareholders or editors of newspaper companies. These are
Express New papers (Private) Ltd. v. Union of India, (1961) I LLJ 339 SC and Sakal Papers
(P) Ltd. v. Union of India, [1962] 3 SCR 842.
In Express Newspapers the Express Newspapers (Private) Ltd. was the petitioner in a writ petition under Article 32. The Press Trust of India Limited was another petitioner in a similar writ petition. The Indian National Press (Bombay) Private Ltd. otherwise known as the "Free
Press Group" was a petitioner in the third writ petition. The Saurashtra Trust was petitioner for a chain of newspapers in another writ petition. The Hindustan Times Limited was another petitioner. These petitions in the Express Newspapers challenged the vires of the Working
Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955. The petitioners contended that the provisions of the Act violated Articles 19(1)(a), 19(1)(g) and 14 of the
Constitution.
In Sakal Papers the petitioners were a Private limited company carrying on business of publishing daily and weekly newspapers in Marathi and two shareholders in the company.
There were two other petitions by readers of Sakal newspaper. The reader petitioners also challenged the Constitutionality of the Act. The petitioners there challenged the Daily
Newspapers (Price and Page) Order, 1960 as contravening Article 19(1)(a) of the Constitution.
Neither in the Express Newspapers nor in Sakal Papers there appears to be any plea raised about the maintainability of the writ petition on the ground that one of the petitioners happened to be a company.
In the Express Newspapers this Court held that freedom of speech and expression includes within its scope the freedom of the Press. This Court referred to the earlier decisions in Romesh
Thappar v. State of Madras, 1950 Cri. L.J. 1514 and Brij Bhushan v. State of Delhi, 1950 Cri.
L.J. 1525. Romesh Thappar related to a ban on the entry and circulation of Thapper 's journal in the State of Madras under the provisions of the Madras Maintenance of Public Order Act
1949. Patanjali Sastri, J. speaking for the Court said in Romesh Thappar that "there can be no
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doubt that the freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation. Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation publication would be of little value". In Brij Bhushan Patanjali Sastri, J. speaking for the majority judgment again said that "every free man has undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press". Bhagwati, J. in the Express Newspapers speaking for the Court said that the freedom of speech and expression includes freedom of propagation of ideas which freedom is ensured by the freedom of circulation and that the liberty of the press is an essential part of the right to freedom of speech and expression and that the liberty of the press consists in allowing no previous restraint upon publication.
Describing the impugned Act in Express Newspapers as a measure which could be legitimately characterised to affect the press this Court said that if the intention or the proximate effect and operation of the Act was such as to bring it within the mischief of Article 19(1)(a) it would certainly be liable to be struck down. But the Court found in Express Newspapers that the impugned measures were enacted for the benefit of the working journalists and it was, therefore, neither the intention nor the effect and operation of the impugned Act to take away or abridge the right of freedom of speech and expression enjoyed by the petitioners. There are ample observations of this Court in Express Newspapers to support the right of the petitioner companies there to invoke fundamental right in aid of freedom of speech and expression enshrined in the freedom of the press. This Court said that if the impugned measure in that case fell within the vice of Article 19(1)(a) it would be struck down. This observation is an illustration of the manner in which the truth and spirit of the freedom of press is preserved and protected. In Sakal Papers this Court struck down Section 3(1) of the Newspaper (Price and Page)
Act, 1956 and allowed the petitioner company relief on that basis. In Sakal Papers relief was granted to the share-holders and the company. The Court thought it unnecessary to express any opinion on the right of the readers to complain of infraction of fundamental rights in Article
19(1)(a) by reason of impact of law abridging or taking way the freedom of speech and expression. In the present case, the petitioners in each case are in addition to the company the shareholders the editors and the publishers. In the Bennett Coleman group of cases one shareholder, a reader of the publication and three editors of the three dailies published by the
Bennett Coleman Group are the petitioners. In the Hindustan Times case a shareholder who happened to be a Deputy Director, a shareholder, a Deputy Editor of one of the publications, the printer and the publisher of the publications and a reader are the petitioners. In the Express
Newspapers case the company and the Chief Editor of the dailies are the petitioners. In the
Hindu case a shareholder, the Managing Editor, the publisher of the company are the petitioners. One of the important questions in these petitions is whether the shareholder, the editor, the printer, the Deputy Director who are all citizens and have the right to freedom under
Article 19(1) can invoke those rights for freedom of speech and expression, claimed by them for freedom of the press in their daily publication. The petitioners contend that as a result of the Newsprint Control Policy of 1972-73 their freedom of speech and expression exercised through their editorial staff and through the medium of publications is infringed. The petitioners also challenge the fixation of 10 page ceiling and the restriction on circulation and growth on their publications to be not only violative of but also to abridge and take away the freedom of speech and expression of the shareholders and the editors. The shareholders, individually and in association with one another represent the medium of newspapers through which they disseminate and circulate their views and news. The newsprint policy express them to heavy
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financial loss and impairs their right to carry on the business of printing and publishing of the dailies through the medium of the companies.
In R. C. Cooper v. Union of India, [1970] 3 SCR 530 which is referred to as the Bank
Nationalisation case Shah, J. speaking for the majority dealt with the contention raised about the maintainability of the petition. The petitioner there was a shareholder, a Director and holder of deposit of current accounts in the Bank. The locus standi of the petitioner was challenged on the ground that no fundamental right of the petitioner there was directly impaired by the enactment of the Ordinance and the Act or any action taken thereunder. The petitioner in the
Bank Nationalisation case claimed that the rights guaranteed to him under Articles 14, 19 and
31 of the Constitution were impaired. The petitioner 's grievances were these. The Act and the
Ordinance were without legislative competence. The Act and the Ordinance interfered with the guarantee of freedom of trade. They were not made in public interest. The President had no power to promulgate the Ordinance. In consequence of hostile discrimination practised by the
State the value of the petitioner 's investment in the shares is reduced. His right to receive dividends ceased. He suffered financial loss. He was deprived of the right as a shareholder to carry on business through the agency of the company.
The ruling of this Court in Bank Nationalisation case was this:
A measure executive or legislative may impair the rights of the company alone, and not of its shareholders; it may impair the rights of the shareholders not of the
Company; it may impair the rights of the shareholders as well as of the company.
Jurisdiction of the Court to grant relief cannot be denied, when by State action the rights of the individual shareholder are impaired if that action impairs the rights of the Company as well. The test in determining whether the shareholder 's right is impaired is not formal; it is essentially qualitative; if the State action impairs the right of the shareholders as well as of the Company, the Court will not, concentrating merely upon the technical operation of the action, deny itself jurisdiction to grant relief.
In the Bank Nationalisation case this Court held the statute to be void for infringing the rights under Articles 19(1)(f) and 19(1)(g) of the Constitution. In the Bank Nationalisation case the petitioner was a shareholder and a director of the company which was acquired under the statute. As a result of the Bank Nationalisation case it follows that the Court finds out whether the legislative measure directly touches the company of which the petitioner is a shareholder.
A shareholder is entitled to protection of Article 19. That individual right is not lost by reason of the fact that he is a shareholder of the company. The Bank Nationalisation case has established the view that the fundamental rights of shareholders as citizens are not lost when they associate to from a company. When their fundamental rights as shareholders are impaired by State action their rights as shareholders are protected. The reason is that the shareholders ' rights are equally and necessarily affected if the rights of the company are affected. The rights of shareholders with regard to Article 19(1)(a) are projected and manifested by the newspapers owned and controlled by the shareholders through the medium of the corporation. In the present case, the individual rights of freedom of speech and expression of editors, Directors and shareholders are all exercised through their newspapers through which they speak. The press reaches the public through the Newspapers. The shareholders speak through their editors. The fact that the companies are the petitioners does not prevent this Court from giving relief to the shareholders, editors, printers who have asked for protection of their fundamental rights by reason of the effect of the law and of the action upon their rights. The locus standi of the shareholder petitioners is beyond challenge after the ruling of this Court in the Bank
Nationalisation case. The presence of the company is on the same ruling not a bar to the grant of relief. The rulings in Sakal Papers and Express Newspapers also support the competence of the petitioners to maintain the proceedings.
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… The Additional Solicitor General contended that the right to import and utilise newsprint was not a common law right. It was said to be a special right covered by several statutes. The
Imports and Exports Act 1947, the Imports Control Order, 1955, the Essential Commodities
Act 1955 and the Newsprint Control Order 1962 were referred to in support of the proposition that if the petitioners asked for a quota of newsprint they had to abide the conditions prescribed.
It was also said that the Press would have no special fundamental right under Article 19(1)(a).
The legislative measures were, therefore, said by the Government to be regulation of newspaper business even though there might be the incidental result of curtailing circulation. Reliance was placed on the decisions in Express Newspapers and Hamdard Dawakhana v. Union of India,
[1960] S.C.R. 67 in support of the contention that there would able no abridgement of fundamental right of the press if as a result of regulation of newspaper business there was the incidental effect of curtailing circulation. The Newsprint Policy was defended by the
Government to be in aid of allowing small newspapers to grow and to prevent a monopolistic combination of big newspapers.
The power of the Government to import newsprint cannot be denied. The power of the
Government to control the distribution of newsprint cannot equally be denied. It has, of course, to be borne in mind that the distribution must be fair and equitable. The interests of the big the medium and the small newspapers are all to be taken into consideration at the time of allotment of quotas. In the present case, there was some dispute raised as to whether there should be more import of newsprint. That is a matter of Government policy. This Court cannot adjudicate on such policy measures unless the policy is alleged to be malafide. Equally, there was a dispute as to the quantity of indigenous newsprint available for newspapers. This Court cannot go into such disputes.
The petitioners raised a question as to whether the Newsprint Control Policy is a newsprint control or a newspaper control. Mr. Palkhivala characterised the measure to be newspaper control with degrees of subtlety and sophistication. Rationing of newsprint is newsprint control.
That is where quota is fixed. Newspaper control can be said to be post-quota restrictions. The post-quota restrictions are described by Mr. Palkhivala to be newspaper control. The newspaper control, according to the petitioners, is achieved by measures adopted in relation to common ownership units owning two or more newspapers. These common ownership units are not allowed to bring out new papers of new editions of their dailies. These are not to have interchangeability of quota within their unit. In addition large papers are not allowed to have more than 10 pages. It was said that in the past several years Newsprint Control Policy worked remarkably without any challenge.
Article 19(1)(a) provides that all citizens shall have the right to freedom of speech and expression. Article 19(2) states that nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said Sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence.
Although Article 19(1)(a) does not mention the freedom of the Press, it is the settled view of this Court that freedom of speech and expression includes freedom of the Press and circulation.
In Express Newspapers it is said that there can be no doubt that liberty of the Press is an essential part of the freedom of speech and expression guaranteed by Article 19(1)(a). The
Press has the right of free propagation and free circulation without any previous restraint on publication. If a law were to single out the Press for laying down prohibitive burdens on it that would restrict the circulation, penalise its freedom of choice as to personnel, prevent
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newspapers from being started and compel the press to Government aid. This would violate
Article 19(1)(a) and would fall outside the protection afforded by Article 19(2).
In Sakal Papers it is said that the freedom of speech and expression guaranteed by Article
19(1) gives a citizen the right to propagate and publish his ideas to disseminate them, to circulate them either by words of mouth or by writing. This right extends not merely to the matter it is entitled to circulate but also to the volume of circulation. In Sakal Papers the
Newspaper (Price and Page) Act 1956 empowered the Government to regulate the prices of newspapers in relation to their pages and sizes and to regulate the allocation of space for advertisement matter. The Government fixed the maximum number of pages that might be published by a newspaper according to the price charged. The Government prescribed the number of supplements that would be issued. This Court held that the Act and the Order placed restraints on the freedom of the press to circulate. This Court also held that the freedom of speech could not be restricted for the purpose of regulating the commercial aspects of activities of the newspapers.
Publication means dissemination and circulation. The press has to carry on its activity by keeping in view the class of readers, the conditions of labour, price of material, availability of advertisements, size of paper and the different kinds of news comments and views and advertisements which are to be published and circulated. The law which lays excessive and prohibitive burden which-would restrict the circulation of a newspaper will not be saved by
Article 19(2). If the area of advertisement is restricted, price of paper goes up. If the price goes up circulation will go down. This was held in Sakal Papers to be the direct consequence of curtailment of advertisement. The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons has been held by this Court to be an integral part of the freedom of speech and expression. This freedom is violated by placing restraints upon it or by placing restraints upon something which is an essential part of that freedom. A restraint on the number of pages, a restraint on circulation and a restraint on advertisements would affect the fundamental rights under Article 19(1)(a) on the aspects of propagation, publication and circulation. … The Additional Solicitor General contended that the newsprint policy did not violate
Article 19(1)(a). The reasons advanced were these. The newsprint policy does not directly and immediately deal with the right mentioned in Article 19(1)(a). The test of violation is the subject matter and not the effect or result of the legislation. If the direct object of the impugned law or action is other than freedom of speech and expression Article 19(1)(a) is not attracted though the right to freedom of speech and expression may be consequentially or incidentally abridged. The rulings of this Court in Express Newspapers and Hamdard Dawakhana were referred to. In Express Newspapers the Act was said to be a beneficent legislation intended to regulate the conditions of service of the working journalists. It was held that the direct and inevitable result of the Act could not be said to be taking away or abridging the freedom of speech and expression of the petitioners. In Hamdard Dawakhana the scope and object of the
Act and its true nature and character were found to be not interference with the right of freedom of speech but to deal with trade or business. The subject matter of the import policy in the present case was rationing of imported commodity and equitable distribution of newsprint. The restrictions in fixing the page level and circulation were permissible as directions, which were considered necessary in order to see that the imported newsprint was properly utilised for the purpose for which the import was considered necessary. Article 369 of the Constitution shows that rationing of and distribution of quota of newsprint and regulation of supply is not a direct infringement of Article 19(1)(a). The scarcity of newspapers justifies the regulation and the direction in the manner of use. The American decision in Red Lion Broadcasting Co. v. Federal
Communications Com. [1969] 393 US 367 was relied on to show that neither regulation nor
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direction with regard to medium of expression encroaches on the First Amendment right of the
American Constitution. Regulatory statutes which do not control the content of speech but incidentally limit the unfettered exercise ate not regarded as a type of law which the First
Amendment to the American Constitution forbade the Congress of the United States to pass.
The decision in United States v. O 'Brien [1968] 391 US 367 was relied on as an authority for such regulation and control of the content of speech. Any incidental limitation or incidental restriction on the freedom of speech is permissible if the same is essential to the furtherance of important governmental interest in regulating speech and freedom.
The Additional Solicitor General further put emphasis on the pith and substance of the
Import Control Act to control imports and exports for these reasons. One method of controlling import is to regulate the use and disposition of the goods after they are bought. The decision in
Abdul Aziz Amiudin v. State of Maharashtra, 1963 Cri. L.J. 403 was referred to indicate that the scope of control of import extended to every stage at which the Government felt it necessary to see that the goods were properly utilised. Therefore, the Government submission is that regulations regarding utilisation of goods by importers after import is not a regulation with regard to production, supply and distribution of goods so as to attract Entry 29 List II of the
Government of India Act, 1935 corresponding to Entry 27 of List II in the Constitution. It was said that even if there was any trenching on Entry 29 List II of the 1935 Act corresponding to
Entry 27 List II of the Constitution it would be an incidental encroachment not affecting the validity of the Act. The directions in the control policy are, therefore, justified by the
Government under Clause 5 of the 1955 Import Control Order read with Section 3(1) of the
1947 Import and Export Act and they are also justified under the provisions of Clause 3 of the
Newsprint Control Order 1962.
The Newsprint Control Order 1962 was said to give sufficient guidance with regard to exercise of powers. Clause 3(5) of the Control Order of 1962 indicated that the Controller was to have regard to the principles. The Import policy was upheld by the Government to have administrative character for guidance in the matter of grant of licences. It was said that the impeached newsprint policy was given to the public as information regarding principles governing issue of import licences. The import policy was evolved to facilitate mechanism of the Act. The Import policy was said to have necessary flexibility for six years prior to April
1961. The Newsprint Policy operated successfully. The Controller has not abused his power.
Mr. Palkhivala said that the tests of pith and substance of the subject matter and of direct and of incidental effect of the legislation are relevant to questions of legislative competence but they are irrelevant to the question of infringement of fundamental rights. In our view this is a sound and correct approach to interpretation of legislative measures and State action in relation to fundamental rights. The true test is whether the effect of the impugned action is to take away or abridge fundamental rights. If it be assumed that the direct object of the law or action has to be direct abridgment of the right of free speech by the impugned law or action it is to be related to the directness of effect and not to the directness of the subject matter of the impeached law or action. The action may have a direct effect on a fundamental right although its direct subject matter may be different. A law dealing directly with the Defence of India or defamation may yet have a direct effect on the freedom of speech. Article 19(2) could not have such law if the restriction is unreasonable even if it is related to matters mentioned therein.
Therefore, the word "direct" would go to the quality or character of the effect and not to the subject matter. The object of the law or executive action is irrelevant when it establishes the petitioner 's contention about fundamental right. In the present case, the object, of the newspaper restrictions has nothing to do with the availability of newsprint or foreign exchange because these restrictions come into operation after the grant of quota. Therefore the restrictions are to control the number of pages or circulation of dailies or newspapers. These restrictions are
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clearly outside the ambit of Article 19(2) of the Constitution. It, therefore, confirms that the right of freedom of speech and expression is abridged by these restrictions.
The question neatly raised by the petitioners was whether the impugned Newsprint Policy is in substance a newspaper control. A newspaper control policy is ultra vires the Import
Control Act and the Import Control Order. Entry 19 of List I of the 1935 Act could empower
Parliament to control imports. Both the State Jegislalure and Parliament have power to legislate upon newspapers falling under Entry 17 of List III. The two fields of legislation are different.
The Import Control Act may include control of import of newsprint but it does not allow control of newspapers. The machinery of the Import Control cannot be utilised to curb or control circulation of growth or freedom of newspapers in India. The pith and substance doctrine is used in ascertaining whether the Act falls under one Entry while incidentally encroaching upon another Entry. Such a question does not arise here. The Newsprint Control Policy is found to be newspaper control order in the guise of framing an Import Control Policy for newsprint.
This Court in the Bank Nationalisation case laid down two tests. First it is not the object of the authority making the law impairing the right of the citizen nor the form of action that determines the invasion of the right. Secondly, it is the effect of the law and the action upon the right which attracts the jurisdiction of the court to grant relief. The direct operation of the
Act upon the rights forms the real test.
… The various provisions of the newsprint import policy have been examined to indicate as to how the petitioners ' fundamental rights have been infringed by the restrictions on page limit, prohibition against new newspapers and new editions. The effect and consequence of the impugned policy upon the newspapers is directly controlling the growth and circulation of newspapers. The direct effect is the restriction upon circulation of newspapers. The direct effect is upon growth of newspapers through pages. The direct effect is that newspapers are deprived of their area of advertisement. The direct effect is that they are exposed to financial loss. The direct effect is that freedom of speech and expression is infringed.
The Additional Solicitor General contended that a law which merely regulates even directly the freedom of the press is permissible so long as there is no abridgment or taking away of the fundamental rights of citizens. He leaned heavily on American decisions in support of the submission that the right of the press of free expression is of all citizens speaking, publishing and printing in all languages and the grave concern for freedom of expression which permitted the inclusion of Article 19(1)(a) is not to be read as a command that the Government of
Parliament is without power to protect that freedom. The Constitutional guarantees of freedom of speech and expression are said by the Additional Solicitor General to be not so much for the benefit of the press as for the benefit of all people. In freedom of speech, according to the
Additional Solicitor General, is included the right of the people to read and the freedom of the press assures maintenance of an open society. What was emphasised on behalf of the
Government was that the freedom of the press did not countenance the monopolies of the market. It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express.
Article 13 of our Constitution states that the State is prohibited from making any law which abridges or takes away any fundamental rights. Again, Article 19(2) speaks of reasonable restrictions on the exercise of fundamental rights to freedom of speech and expression. Our
Constitution does not speak of laws regulating fundamental rights. But there is no bar on legislating on the subject of newspapers as long as legislation does not impose unreasonable restrictions within the meaning of Article 19(2). It is also important to notice as was done in
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earlier decisions of this Court that our Article 19(1)(a) and the First Amendment of the
American Constitution are different. The First Amendment of the American Constitution enacts that the Congress shall make no law abridging the freedom of speech or of the press. The
American First Amendment contains no exceptions like our Article 19(2) of the Constitution.
Therefore, American decisions have evolved their own, exceptions. Our Article 19(2) speaks of reasonable restrictions. Our Article 13 states that the State shall not make laws which abridge or take away fundamental rights in Part III of the Constitution.
The concept of regulation of fundamental rights was borrowed and extracted by the
Additional Solicitor General from American decisions. In Citizen Publishing Co. v. United
States [1969] 394 U.S. 131 the power of the Government to regulate the newspaper industry through the provisions of the Sherman Act was recognised. In that case the Court affirmed a decree requiring the separation of two potentially competing newspapers. The two newspapers entered into an agreement to end business or commercial competition between them. Three types of control were imposed by the agreement. One was with regard to price fixation. The second was profit pooling. The third was market control. The Government complained that the agreement was an unreasonable restraint on trade or commerce in violation of Sherman Act.
Citizen Publishing Co. held that the First Amendment in the American Constitution far from providing an argument against the application of the Sherman Act under the facts of the case provided strong reasons to the contrary. The American decision rested upon the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public. The Sherman Act was invoked in that case to prevent non-governmental combinations which tended to impose restraints upon Constitutional guarantee of freedom. The regulation of business is one thing. The American case is an instance of the power of the Government to regulate newspaper industry.
… These American decisions establish that a government regulation is justified in America as an important or essential government interest which is unrelated to the suppression of free expression. This Court has established freedom of the press to speak and express. That freedom cannot be abridged and taken away by the manner the impugned policy has done.
At this stage it is necessary to appreciate the petitioners contentions that the newsprint policy of 1972-73 violates Articles 19(1)(a) and 14 of the Constitution. The first grievance is about Remark V in the newsprint policy. Remark V deals with dailies which are not above 10 pages and dailies over 10 pages. With regard to dailies which are not above 10 pages the policy is that the computation of entitlement to newsprint is on the basis of the actual newsprint consumption in 1970-71 or 1971-72 whichever is less. The average circulation, the average number of pages and the average page area actually published are all taken into consideration.
The petitioners and in particular the Bennett Coleman Group illustrated the vice of this feature in Remark V by referring to their publications Maharashtra Times, Nav Bharat Times and
Economic Times. The average circulation of these three publications in 1971-72 was higher than the average circulation in 1970-71. It is, therefore, said that Remark V which shows the basis of consumption to be the lesser of the two years will affect their quota. The Government version is that the figure of consumption in 1971-72 did not represent a. realistic picture because of three principal events during that year. These were the Bangladesh Crisis the IndoPak War in 1971 and the Elections. The petitioners say that the quota for 1971-72 was determined in April 1971 which was prior to the occurrence of all the three events. Again in the past when there was the Sino Indian Conflict in 1962 and the Indo-Pak War in 1965 the performance of the newspapers during the years preceding those events was not ignored as was done in the impugned policy for 1972-73. With regard to elections the petitioners say that a separate additional quota has been given. In the policies prior to 1971-72 the growth achieved in circulation as a result of the grant of the additional quota for elections was taken into
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consideration in determining the quota for the following year. The Petitioners, therefore, contend that the policy in Remark V instead of increasing circulation will result in the reduction of circulation. The petitioners are, in our judgment, right in their submission that this policy negatives the claim of the Government that this policy is based on circulation.
With regard to dailies over 10 pages Remark V proceeds on the calculation of the basic entitlement to be on an average of 10 pages and either the average circulation in 1970-71 or the admissible circulation in terms of 1971-72 Newsprint Policy plus increases admissible in terms of Remark VII whichever is more. The Bennett Coleman Group contends that the Times of
India Bombay, the Times of India Delhi and the Times of India Ahmedabad had 13.13, 13.99 and 17.83 as the average number of pages in 1971-72. The average number of pages in 197273 under Remark V of the Policy is fixed at 10. Therefore, the percentage of cut in pages is
23.8, 28.4 and 43.8 per cent respectively with regard to these three papers.
The dominant direction in the newsprint policy particularly in Remarks V and VIII is that the page limit of newspapers is fixed at 10. The petitioners who had been operating on a page level of over 10 challenge this feature as an infringement of the freedom of speech and expression. Remark V is therefore impeached first on the ground of fixation of 10 page ceiling and secondly on the basis of allotment of quota.
Prior to 1972-73 newspapers which had started before 1961-62 were allowed to increase pages by reducing circulation. On the other hand newspapers which started after 1961-62 did not have sufficient quantity of newsprint for increasing circulation and could not increase pages. To remedy this situation the Government case is that the impeached newsprint policy of
1972-73 provided in Remark V for newspapers operating on a page level of 10 or less quota on an average page number and actual circulation of 1970-71 or 1971-72 whichever is less and
20% increase for increasing page number subject to ceiling of 10 pages. The other provision in
Remark V for quota relating to newspapers operating above 10 page level is an average circulation of 1970-71 and admissible circulation in 1971-72 plus increases admissible whichever is more. Thus in the case of newspapers operating on 10 or less than 10 page level additional quota has been given to increase their pages to 10. But the imposition of 10 page ceiling on newspapers operating on a page level above 10 is said to violate Articles 19(1)(a) and 14.
The Government advances these six reasons in support of their policy. First, there is shortage of newsprint. Second, the average page number of big dailies is 10.3. Out of 45 big dailies 23 operate on a page level] of less than 10 and 22 operate on a page level of more than
10. Therefore, the Government says that the average of all dailies is 5.8. Thirdly, the
Government says that the 45 big dailies with a circulation of 46.74 lakhs get about 1,16.700 metric tonnes. This is about 59.9 per cent of the total allocation. The 346 medium and small dailies with a circulation of 41.60 lakhs get about 74,300 metric tonnes which represent as 40.1 per cent of the total allocation. Fourthly it is said that the feature is to remedy the situation arising out of historical reasons. Fifthly, the Government says that the reduction in allotment is marginal. By way of illustration it is said that the Bennett Coleman group gets 828.79 metric tonnes less. Sixthly, it is said that 500 dailies applied for quota. Newsprint has to be equitably rationed. Allowing some dailies more than 10 pages will adversely effect those dailies with less than 10 pages.
In our view shortage of newsprint can stop with allotment. If the Government rests content with granting consumers of newsprint a quantity equitably and fairly, the consumers will not quarrel with the policy. The consumers of newsprint are gravely concerned with the other features. Page 205 of 610
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… The maximum number of pages at 10 will, according to the petitioners, not only adversely affect their profits but also deprive them of expressing and publishing the quality of writings and fulfilment of the role to be played by the newspaper in regard to their freedom of speech and expression. While it must be admitted that the language dailies should be allowed to grow, the English dailies should not be forced to languish under a policy of regimentation.
It is therefore correct that the compulsory reduction to 10 pages offends Article 19(1)(a) and infringes the rights of freedom of speech and expression.
… The restriction on the petitioners that they can use their quota to increase circulation but not the page number violates Articles 19(1)(a) as also Article 14. Big dailies are treated to be equal with newspapers who are not equal to them. Again, the policy of 1972-73 permits dailies with large circulation to increase their circulation. Dailies operating below 10 page level are allowed ' increase in pages. This page increase quota cannot be used for circulation increase.
Previously, the big dailies were allowed quota for circulation growth. The present policy has decreased the quantity for circulation growth. In our view counsel for the petitioners rightly said that the Government could not determine thus which newspapers should grow in page and circulation and which newspapers should grow only in circulation and not in pages. Freedom of press entitles newspapers to achieve any volume of circulation. Though requirements of newspapers as to page, circulation are both taken into consideration for fixing their quota but the newspapers should be thereafter left free to adjust their page number and circulation as they wish in accordance with the dictates of Article 19(1)(a) of the Constitution.
… In the present case, it cannot be said that the newsprint policy is a reasonable restriction within the ambit of Article 19(2). The newsprint policy abridges the fundamental rights of the petitioners in regard to freedom of speech and expression. The newspapers are not allowed their right of circulation. The newspapers are not allowed right of page growth. The common ownership units of newspapers cannot bring out newspapers or new editions. The newspapers operating above 10 page level and newspapers operating below 10 page level have been treated equally for assessing the needs and requirements of newspapers with newspapers which are not then equal, Once the quota is fixed and direction to use the quota in accordance with the newsprint policy is made applicable the big newspapers are prevented any increase in page number. Both page numbers and circulation are relevant for calculating the basic quota and allowance for increases. In the garb of distribution of newsprint the Government has tended to control the growth and circulation of newspapers. Freedom of the press is both qualitative and quantitative. Freedom lies both in circulation and in content. The newsprint policy which permits newspapers to increase circulation by reducing the number of pages, page area and periodicity, prohibits them to increase the number of pages, page area and periodicity by reducing circulation. These restrictions constrict the newspapers in adjusting their page number and circulation.
… For the foregoing reasons the newsprint policy for 1972-73 violates Articles 19(1)(a) and 14 of the Constitution. The restrictions by fixing 10 page limit in Remarks V and VIII of the policy infringe Articles 19(1)(a) and 14 of the Constitution and are, therefore, declared unconstitutional and struck down. The policy of basic entitlement to quota in Remark V is violative of Articles 19(1)(a) and 14 of the Constitution and is therefore struck down. The measure in Remark VII(a) is violative of Articles 14 and 19(1)(a) of the Constitution and is struck down.
The measures in Remark VII(c) read with Remark VIII are violative of Articles 19(1)(a) and 14 of the Constitution and are struck down. The prohibition in Remark X against common ownership unit from starting a new newspaper/periodical or a new edition is declared unconstitutional and struck down as violative of Article 19(1)(a) of the Constitution. …
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REASONABLE RESTRICTIONS ON FREEDOM OF SPEECH
K. A. ABBAS V. UNION OF INDIA
AIR 1971 SC 481, (1970) 2 SCC 780
Decided On: Sep. 24, 1970
BENCH – CHIEF JUSTICE M. HIDAYATULLAH, JUSTICES J. SHELAT, G. K. MITTER, C. A.
VAIDIALINGAM & A. N. RAY
CHIEF JUSTICE HIDAYATULLAH (for the Court)
This petition seeks a declaration against the Union of India and the Chairman Central Board of Film Censors, that the provisions of Part II of the Cinematograph Act 1952 together with the rules prescribed by the Central Government, February 6, 1960, in the purported exercise of its powers under Section 5B of the Act are unconstitutional and void. As a consequence the petitioner asks for a writ of mandamus or any other appropriate writ, direction or order quashing the direction contained in a letter (Annexure X) dated July 3, 1969 for deletion of certain shots from a documentary film entitled ‘A Tale of Four Cities’, produced by him for unrestricted public exhibition.
The petitioner is a journalist, playwright and writer of short stories. He is also a producer and director of cinematograph films. He was a member of the Enquiry Committee on Film
Censorship (1968) and is a member of the Children 's Film Committee. He has produced and/or directed many films some of which have been well-received here and abroad and even won awards and prizes.
The petitioner produced in 1968 a documentary film in 2 reels (running time 16 minutes) called a ‘Tale of Four Cities’. In this film he purported to contrast the luxurious life of the rich in the four cities of Calcutta, Bombay, Madras and Delhi, with the squalor and poverty of the poor, particularly those whose hands and labour help to build beautiful cities, factories and other industrial complexes. The film is in black and white and is silent except for a song which the labourers sing while doing work and some background music and sounds for stage effect.
The film, in motion sequences or still shots, shows contrasting scenes of palatial buildings, hotels and factories-evidence of the prosperity of a few, and shanties, huts and slums-evidence of poverty of the masses. These scenes alternate and in between are other scenes showing sweating labourers working to build the former and those showing the squalid private life of these labourers. Some shots mix people riding in lush motor cars with rickshaw and handcart pullers of Calcutta and Madras. In one scene a fat and prosperous customer is shown riding a rickshaw which a decrepit man pulls, sweating and panting hard. In a contrasting scene the same rickshaw puller is shown sitting in the rickshaw, pulled by his former customer. This scene is the epitomisation of the theme of the film and on view are the statutes of the leaders of Indian Freedom Movement looking impotently from their high pedestal 's in front of palatial buildings, on the poverty of the masses. On the boulevards the rich drive past in limousines while the poor pull rickshaws or handcarts or stumble along.
There is included also a scanning shot of a very short duration, much blurred by the movement of the photographer 's camera, in which the red light district of Bombay is shown with the inmates of the brothels waiting at the doors or windows. Some of them wear abbreviated skirts showing bare legs up to the knees and sometimes a short way above them.
This scene was perhaps shot from a moving car because the picture is unsteady on the screen
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and under exposed. Sometimes the inmates, becoming aware of the photographer, quickly withdraw themselves. The whole scene barely lasts a minute. Then we see one of the inmates shutting a window and afterwards we see the hands of a woman holding some currency notes and a male hand plucking away most of them leaving only a very few in the hands of the female.
The two actors are not shown. The suggestion in the first scene is that a customer is being entertained behind closed shutters and in the next sequence that the amount received is being shared between the pimp and the prostitute, the former taking almost the whole of the money.
The sequence continues and for the first time the woman who shut the window is again seen.
She sits at the dressing table, combs her hair, glances at two love-birds in a cage and looks around the room as if it were a cage. Then she goes behind a screen and emerges in other clothes and prepares for bed. She sleeps and dreams of her life before she took the present path.
The film then passes on to its previous theme of contrasts mentioned above, often repeating the earlier shots in juxtaposition as stills. There is nothing else in the film to be noticed either by us or by the public for which it is intended.
The petitioner applied to the Board of Film Censors for a 'U ' certificate for unrestricted exhibition of the film. He received a letter (December 30, 1969) by which the Regional Officer informed him that the Examining Committee and the Board had provisionally come to the conclusion that the film was not suitable for unrestricted public exhibition but was suitable for exhibition restricted to adults. He was given a chance to make representations against the tentative decision within 14 days. Later he was informed that the Revising Committee had reached the same conclusion. He represented by letter (February 18, 1969) explaining the purpose of the films as exposing the exploitation of man (or woman) by man and the contrast between the very rich few and the very poor masses. He claimed that there was no obscenity in the film. He was informed by a letter (February 26, 1969) that the Board did not see any reason to alter its decision and the petitioner could appeal within 30 days to the Central Government.
The petitioner appealed the very next day. On July 3, 1969, the Central Government decided to give a 'U ' certificate provided the following cuts were made in the film:
"Shorten the scene of woman in the red light district, deleting specially the shot showing the closing of the window by the lady, the suggestive shots of bare knees and the passing of the currency notes." Dir. IC(iii)(b)(c); IV".
The mystery of the code numbers at the end was explained by a letter on July 23, 1969 to mean this:
I. It is not desirable that a film shall be certified as suitable for public exhibition, either unrestricted or restricted to adults which
C(iii)(b) deals with the relations between the sexes in such a manner as to depict immoral traffic in women and soliciting, prostitution or procuration.
IV. It is undesirable that a certificate for unrestricted public exhibition shall be granted in respect of a film depicting a story, or containing incidents unsuitable for young persons.
The petitioner then filed this petition claiming that his fundamental right of free speech and expression was denied by the order of the Central Government. He claimed a 'U ' certificate for the film as of right.
Before the hearing commenced the film was specially screened, for us. The lawyers of both sides (including the Attorney General) and the petitioner were also present. The case was then set down for hearing. The Solicitor General (who had not viewed the film) appeared at the hearing. We found it difficult to question him about the film and at our suggestion the Attorney
General appeared but stated that Government had decided to grant a 'U ' certificate to the film without the cuts previously ordered.
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The petitioner then asked to be allowed to amend the petition so as to be able to challenge pre-censorship itself as offensive to freedom of speech and expression and alternatively the provisions of the Act and the rules, orders and directions under the Act, as vague, arbitrary and indefinite. We allowed the application for amendment, for the petitioner was right in contending that a person who invests his capital in promoting or producing film must have clear guidance in advance in the matter of censorship of films even if the law of pre-censorship be not violative of the fundamental right.
When the matter came up for hearing the petitioner raised four points : (a) that precensorship itself cannot be tolerated under the freedom of speech and expression, (b) that even if it were a legitimate restraint on the freedom, it must be exercised on very definite principles which leave no room for arbitrary action, (c) that there must be a reasonable time-limit fixed for the decision of the authorities censoring the film, and (d) that the appeal should lie to a court or to an independent tribunal and not the Central Government.
The Solicitor-General conceded (c) and (d) and stated that Government would set on foot legislation to effectuate them at the earliest possible opportunity. Since the petitioner felt satisfied with-this assurance we did not go into the matter. But we must place on record that the respondents exhibited charts showing the time taken in the censorship of films during the last one year or so and we were satisfied that except in very rare cases the time taken could not be said to be unreasonable. We express our satisfaction that the Central Government will cease to perform curial functions through one of its Secretaries in this sensitive field involving the fundamental right of speech and expression. Experts sitting as a Tribunal and deciding matters quasi-judicially inspire more confidence than a Secretary and therefore it is better that the appeal should lie to a court or tribunal.
This brings us to the remaining two questions. We take up first for consideration: whether pre-censorship by itself offends the freedom of speech and expression. Article 19(1)(a) and (2) of the Constitution contain the guarantee of the right and the restraints that may be put upon that right by a law to be made by Parliament. …
The argument is that the freedom is absolute and pre-censorship is not permissible under the Constitution. It is submitted that pre censorship is inconsistent with the right guaranteed.
Now it is clear that some restraint is contemplated by the second clause and in the matter of censorship only two ways are open to Parliament to impose restrictions. One is to lay down in advance the standards for the observance of film producers and then to test each film produced against those standards by a preview of the film. The other is to let the producer observe those standards and make the infraction an offence and punish a producer who does not keep within the standards. The petitioner claims that the former offends the guaranteed freedom but reluctantly concedes the latter and relies upon the minority view expressed in the United States
Supreme Court from time to time. The petitioner reinforces this argument by contending that there are other forms of speech and expression besides the films and none of them is subject to any prior restraint in the form of pre-censorship and claims equality of treatment with such other forms. He claims that there is no justification for a differential treatment. He contends next that even the standards laid down are unconstitutional for many reasons which we shall state in proper place.
This is the first case in which the censorship of films in general and pre-censorship in particular have been challenged in this Court and before we say anything about the arguments, it is necessary to set down a few facts relating to censorship of films and how it works in India.
The Government of India appointed a Committee on March 28, 1968 to enquire into the working of the existing procedures for certification of cinematograph films for public exhibition in India and allied matters, under the Chairmanship of Mr. G.D. Khosla, former
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Chief Justice of the Punjab High Court. The report of the Committee has since been published and contains a valuable summary of the law of censorship not only in India but also in foreign countries. It is hardly helpful to the determination of this case to go into this history but it may be mentioned here that it is the opinion of experts on the subject that Indian film censorship since our independence has become one of strictest in the world… In 1966 Mr. Raj Bahadur
(who succeeded Mrs. Indira Gandhi as Minister for Information and Broadcasting) said that
Government would 'continue a liberal censorship ' and was considering certain expert opinion on the subject. He also suggested to the film industry that it should formulate a code which would be the best from all standards so that Government may be guided by it in formulating directives to the censors… This suggestion came to nothing for obvious reasons. Film industry in India is not even oligopolistic in character and it is useless to expect it to classify films according to their suitability, as is done in the United States by the Motion Picture Association of America (MPAA) founded in October 1968. There the film industry is controlled by eight major producers and private control of film-making is possible with the assistance of the
National Association of Theatre Owners and Film Importers and Distributors of America.
Having no such organisation for private censorship or even a private body like the British Board of Film Censors in England the task must be done by Government if censorship is at all to be imposed. Films began to be exhibited in India at the turn of the last century and film censorship took birth in 1918 when the Cinematograph Act, 1918 (2 of 1918) was passed. Two matters alone were then dealt with: (a) the licensing of cinema houses, and (b) the certifying of films for public exhibition. The censors had a wide discretion and no standards for their action were indicated. Boards of Film Censors came into existence in the three Presidency towns and
Rangoon. The Bombay Board drew up some institutions for Inspectors of Films and it copied the 43 rules formulated by T. P. O 'Connor in England. These are more or less continued even today. We do not wish to trace here the history of the development of film censorship in India.
That task has been admirably performed by the Khosla Committee. Legislation in the shape of amendments of the Act of 1918 and a Production Code were the highlights of the progress. In
1952 a fresh consolidating Act was passed and it is Act 37 of 1952 (amended in 1959 by Act 3 of 1959) and that is the present statutory provision on the subject. It established a Board of
Film Censors and provided for Advisory Panels at Regional centers. Every person desiring to exhibit any film has to apply for a certificate and the Board after examining the film or having the film examined deals with it by:
(a) sanctioning the film for unrestricted public exhibition;
(b) sanctioning the film for public exhibition restricted to adults;
(c) directing such excisions and modifications as it thinks fit, before sanctioning the film for unrestricted public exhibition or for public exhibition restricted to adults, as the case may be; or
(d) refusing to sanction the film for public exhibition.
The film producer is allowed to represent his views before action under (b) (c) and (d) is taken. The sanction under (a) is by granting a 'U ' certificate and under (b) by an 'A ' certificate and the certificates are valid for ten years.
The Act then lays down the principles for guidance and for appeals in Sections 5B and 5C respectively. These sections may be read here:
5B. Principles for guidance in certifying films.
(1) A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of the security of the State, friendly relations with foreign States, public
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order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence.
(2) Subject to the provisions contained in Sub-section (1), the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition.
5C. Appeals.
Any person applying for a certificate in respect of a film who is aggrieved by any order of the Board(a) refusing to grant a certificate; or
(b) granting only an "A" certificate; or
(c) directing the applicant to carry out any excisions or modifications; may, within thirty days from the date of such order, appeal to the Central
Government, and the Central Government may, after such inquiry into the matter as it considers necessary and after giving the appellant an opportunity for representing his views in the matter, make such order in relation thereto as it thinks fit.
By Section 6, the Central Government has reserved a general revising power which may be exercised during the pendency of a film before the Board and even after it is certified. Under the latter part of this power the Central Government may cancel a certificate already granted or change the 'U ' certificate into an 'A ' certificate or may suspend for 2 months the exhibition of any film.
The above is the general scheme of the legislation on the subject omitting allied matters in which we are not interested in this case. It will be noticed that Section 5B(1) really reproduces
Clause (2) of Article 19 as it was before its amendment by the First Amendment. This fact has led to an argument which we shall notice presently. The second sub-section of Section 5B enables the Central Government to state the principles to guide the censoring authority, by issuing directions. In furtherance of this power the Central Government has given directions to the Board of Film Censors. They are divided into General Principles three in number, followed by directions for their application in what are called 'ruled '. The part dealing with the application of the principles is divided into four sections and each section contains matters which may not be the subject of portrayal in films. We may quote the General Principles here:
1. No picture shall be certified for public exhibition which will lower the moral standards of those who see it. Hence, the sympathy of the audience shall not be thrown on the side of crime, wrong-doing, evil or sin.
2. Standards of life, having regard to the standards of the country and the people to which the story relates, shall not be so portrayed as to deprave the morality of the audience.
3. The prevailing laws shall not be so ridiculed as to create sympathy for violation of such laws.
The application of the General Principles is indicated in the four sections of the rules that follow so that a uniform standard may be applied by the different regional panels and Boards.
The first section deals with films which are considered unsuitable for public exhibition. This section is divided into Clauses A to F. Clause A deals with the delineation of crime, B with that of vice or immorality, C with that of relations between sexes, D with the exhibition of human form, E with the bringing into contempt of armed forces, or the public authorities entrusted with the administration of law and order and F with the protection of the susceptibilities of foreign nations and religious communities, with fomenting social unrest or discontent to such
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an extent as to incite people to crime and promoting disorder, violence, a breach of the law or disaffection or resistance to Government.
Clauses E and F are further explained by stating what is unsuitable and what is objectionable in relation to the topics under those clauses.
Section II then enumerates subjects which may be objectionable in a context in which either they amount to indecency, immorality, illegality or incitement to commit a breach of the law.
Section III then provides:
It is not proposed that certification of a film should be refused altogether, or that it should be certified as suitable for adult audiences only, where the deletion of a part or parts, will render it suitable for unrestricted public exhibition or for exhibition restricted to adults, and such deletion is made, unless the film is such as to deprave the majority of the audience and even excisions will not cure the defects. Section IV deals with the protection of young persons and enjoins refusal of a certificate for unrestricted public exhibition in respect of a film depicting a story or containing incidents unsuitable for young persons. Emphasis in this connection is laid in particular upon(i) anything which may strike terror in a young person, e.g., scenes depicting ghosts, brutality, mutilations, torture, cruelty, etc.;
(ii) anything tending to disrupt domestic harmony or the confidence of a child in its parents, e.g. scenes depicting parents quarrelling violently, or one of them striking the other, or one or both of them behaving immorally;
(iii) anything tending to make a person of tender years insensitive to cruelty to others or to animals.
In dealing with crime under Section I Clause A, the glorification or extenuation of crime, depicting the modus operandi of criminals, enlisting admiration or sympathy for criminals, holding up to contempt the forces of law against crime etc. are indicated as making the film unsuitable for exhibition. In Clause B similar directions are given with regard to vice and immoral acts and vicious and immoral persons. In Clause C the unsuitability arises from lowering the sacredness of the institution of marriage and depicting rape, seduction and criminal assaults on women, immoral traffic in women, soliciting prostitution or procuration, illicit sexual relations, excessively passionate love scenes, indelicate sexual situations and scenes suggestive of immorality. In Clause D the exhibition of human form in nakedness or indecorously or suggestively dressed and indecorous and sensuous postures are condemned. In
Section II are mentioned confinements, details of surgical operations, venereal diseases and loathsome diseases like leprosy and sores, suicide or genocide, female under clothing, indecorous dancing, importunation of women, cruelty to children, torture of adults, brutal fighting, gruesome murders or scenes of strangulation, executions, mutilations and bleeding, cruelty to animals, drunkenness or drinking not essential to the theme of the story, traffic and use of drugs, class hatred, horrors of war, horror as a predominant element, scenes likely to afford information to the enemy in time of war, exploitation of tragic incidents of war, blackmail associated with immorality, intimate biological studies, crippled limbs or malformations, gross travesties of administration of justice and defamation of any living person. We have covered almost the entire range of instructions. It will be noticed that the control is both thematic and episodic. If the theme offends the rules and either with or without excision of the offending parts, the film remains still offensive, the certificate is refused. If the excisions can remove its offensiveness, the film is granted a certificate. Certifiable films are classified
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according to their suitability for adults or young people. This is the essential working of
Censorship of motion pictures in our country.
The first question is whether the films need censorship at all? Pre-censorship is but an aspect of censorship and bears the same relationship in quality to the material as censorship after the motion picture has had a run. The only difference is one of the stage at which the State interposes its regulations between the individual and his freedom. Beyond this there is no vital difference. That censorship is prevalent all the world over in some form or other and precensorship also plays a part where motion pictures are involved, shows the desirability of censorship in this field. The Khosla Committee has given a description generally of the regulations for censorship (including pre-censorship) obtaining in other countries and
Running 's book deals with these topics in detail separately for each country. The method changes, the rules are different and censorship is more strict in some places than in others, but censorship is universal. Indeed the petitioner himself pronounced strongly in favour of it in a paper entitled Creative Expression written by him. This is what he said:
But even if we believe that a novelist or a painter or a musician should be free to write, paint and compose music without the interference of the State machinery, I doubt if anyone will advocate the same freedom to be extended to the commercial exploitation of a powerful medium of expression and entertainment like the cinema. One can imagine the results if an unbridled commercial cinema is allowed to cater to the lowest common denominator of popular taste, specially in a country which, after two centuries of political and cultural domination, is still suffering from a confusion and debasement of cultural values.
Freedom of expression cannot, and should not, be interpreted as a licence for the cinemagnates to make money by pandering to, and thereby propagating, shoddy and vulgar taste.
Further it has been almost universally recognised that the treatment of motion pictures must be different from that of other forms of art and expression. This arises from the instant appeal of the motion picture, its versatility, realism (often surrealism), and its coordination of the visual and aural senses. The art of the cameraman, with trick photography, vistavision and three dimensional representation thrown in, has made the cinema picture more true to life than even the theatre or indeed any other form of representative article. The motion picture is able to stir up emotions more deeply than any other product of article. Its effect particularly on children and adolescents is very great since their immaturity makes them more willingly suspend their disbelief than mature men and women. They also remember the action in the picture and try to emulate or imitate what they have seen. Therefore, classification of films into two categories of 'U ' films and 'A ' films is a reasonable classification. It is also for this reason that motion picture must be regarded differently from other forms of speech and expression. A person reading a book or other writing or hearing a speech or viewing a painting or sculpture is not so deeply stirred as by seeing a motion picture. Therefore the treatment of the latter on a different footing is also a valid classification.
The petitioner pressed for acceptance of the minority views expressed from time to time in the Supreme Court of the United States and it is, therefore, necessary to say a few words about censorship of motion pictures in America and the impact of the First Amendment guaranteeing freedom of speech and expression in that country. The leading cases in the United States are really very few but they are followed in a very large number of per curiam decisions in which, while concurring with the earlier opinion of the Court, there is sometimes a restatement with a difference. As early as 1914 in Mutual Film Corporation. v. Industrial Commission of Ohio
(1915) 236 U.S. 230. Mr. Justice Mc Kenna, speaking for the full Court, said that legislative power is not delegated unlawfully when a board of censors is set up to examine and censor, as a condition precedent to exhibition, motion picture films, to be publicly exhibited and displayed, with a view to passing and approving only such of them as are in the judgment of
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the board, moral, educational or amusing and forbidding those that are not. Speaking of the criteria stated in general words, it was said that general terms get "precision from the sense and experience of men and become certain and useful guides in reasoning and conduct". The first notice of change came in 1925 in Gitlow v. New York (1925) 268 U.S. 652, when it was said that censorship had to pass the scrutiny of the First Amendment through the Fourteenth
Amendment before speech and expression could be Abridged by State laws. To this, was added in 1919 the test of 'clear and present danger ' propounded by Justice Holmes as the only basis for curtailing the freedom of speech and expression, see Shenck v. U.S. (1919) 249 U.S. 47. and Justice Brandeis in Whitney v. California (1927) 274 U.S. 357 laid down three components of the test :
(a) There must be a clear and present danger that speech would produce a substantial evil that the State has power to prevent. This is not to say that it is enough if there is 'fear ', there must be reasonable grounds to fear that serious evil would result from the exercise of speech and expression.
(b) There must be a 'present ' or 'imminent ' danger and for this there must be reasonable grounds to hold this opinion and that no reasonable opportunity was available to avert the consequences; and
(c) The substantive evil to be prevented must be 'serious ' before there can be a prohibition on freedom of speech and expression for the police power of the State could not be exercised to take away the guarantee to avert a relatively trivial harm to society.
In 1931 in Near v. Minnesota (1931) 283 U.S. 697 immunity of press from pre-censorship was denied but pre-censorship (as it is termed previous restraint) was not to be unlimited. A major purpose of the First Amendment was to prevent prior restraint. The protection was not unlimited but put on the state the burden of showing that the limitation challenged in the case was exceptional.
In 1941 the Court handed down in Chaplinsky v. New Hampshire (1941) 315 U.S. 567 the opinion that free speech was not absolute at all times and in all circumstances, that there existed certain "well-defined and narrowly limited classes of speech, the prevention and punishment of which had never been thought to raise any Constitutional problem".
This state of affairs continued also in respect of motion pictures and the regulation of their public exhibition. Real attention was focused on censorship after 1951. The effect of World
War II on American society was the real cause because people’s notions of right and wrong from a social point of view drastically altered. Added to this were the inroads made by Justices
Douglas and Black in Dennis v. U.S. (1951) 341 U.S. 494 in the previously accepted propositions which according to them made the First Amendment no more than an admonition to Congress. In Beauharnais v. Illinois (1952) 343 U.S. 250 Justice Douglas claimed for the freedom of speech, a preferred position because the provision was in absolute terms, an opinion which has since not been shared by the majority of the Court.
In 1951 there came the leading decision Burstyn v. Wilson (1951) 343 U.S. 495. This case firmly established that motion pictures were within the protection of the First Amendment through the Fourteenth. While recognising that there was no absolute freedom to exhibit every motion picture of every kind at all times and places, and that Constitutional protection even against a prior restraint was not absolutely unlimited, limitation was said to be only in exceptional cases. It however laid down that censorship on free speech and expression was ordinarily to be condemned but the precise rules governing other methods of expression were not necessarily applicable.
The application of the 14th Amendment has now enabled the Court to interfere in all cases of state restrictions where censorship fails to follow due process. The result has led to a serious
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conflict in the accepted legal opinion. The Supreme Court has had to deal with numerous cases in which censorship was questioned.
The divergence of opinion in recent years has been very deep. Censorship of press, art and literature is on the verge of extinction except in the ever shrinking area of obscenity. In the field of censorship of the motion picture there has been a tendency to apply the 'void for vagueness ' doctrine evolved under the due process clause. Thus regulations containing such words as 'obscene ', 'indecent ', 'immoral ', 'prejudicial to the best interests of people ', 'tending to corrupt morals ', 'harmful ' were considered vague criteria. In Kingsley International Pictures
Corporation. v. Regents (1959) 360 U.S. 684 where the film Lady Chatterley 's Lover was in question, certain opinions were expressed. These opinions formed the basis of the arguments on behalf of the petitioner. Justice Black considered that the court was the worst of Board
Censors because they possessed no special expertise. Justice Frankfurter was of the opinion that 'legislation must not be so vague, the language so loose, as to leave to those who have to apply it too wide a discretion for sweeping within its condemnation what was permissible expression as well as what society might permissibly prohibit, always remembering that the widest scope for freedom was to be given to the adventurous and imaginative exercise of human spirit…". Justice Douglas considered prior restraint as unconstiutional. According to him if a movie violated a valid law, the exhibitor could be prosecuted.
The only test that seemed to prevail was that of obscenity as propounded in Roth v. United
States (1957) 354 U.S. 476. In that three tests were laid down:
(a) that the dominant theme taken as a whole appeals to prurient interests according to the contemporary standards of the average man;
(b) that the motion picture is not saved by any re deeming social value; and
(c) that it is patently offensive because it is opposed to contemporary standards.
The Hicklin test in Regina v. Hicklin [1868] 3 Q.B. 360 was not accepted.
Side by side procedural safeguards were also considered. The leading case is Freedmen v.
Maryland (1965) 380 U.S. 51 where the court listed the following requirements for a valid film statute: 1. The burden of proving that the film is obscene rests on the censor.
2. Final restraint (denial of licence) may only occur after judicial determination of the obscenity of the material.
3. The censor will either issue the license or go into court himself for a restraining order. 4. There must be only a 'brief period ' between the censor 's first consideration of film and final judicial determination. …
These were further strengthened recently in Teitel Film Corporation v. Cusak (1968) 390
U.S. 139 (a per curiam decision) by saying that a non-criminal process which required the prior submission of a film to a censor avoided Constitutional infirmity only if censorship took place under procedural safeguards. The censorship system should, therefore, have a time-limit. The censor must either pass the film or go to court to restrain the showing of the film and the court also must give a prompt decision. A delay of 50-57 days was considered too much. The statute in question there had meticulously laid down the time for each stage of examination but had not fixed any time limit for prompt judicial determination and this proved fatal.
The fight against censorship was finally lost in the Times Film Corporation v. Chicago
(1961) 365 U.S. 43 but only by the slender majority of one. Chief Justice Warren and Justices
Black, Douglas and Brennan dissented. The views of these Judges were pressed upon us. Chief
Justice Warren thought that there ought to be first an exhibition of an allegedly 'obscene film '
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because Government could not forbid the exhibition of a film in advance. Thus prior restraint was said to be impermissible. Justice Douglas went further and said that censorship of movies was unconstitutional. Justice Clark on the other hand, speaking for the majority, said:
It has never been held that liberty of speech is absolute. Nor has it been suggested that all previous restraints on speech are invalid.
It is not for this Court to limit the State in its selection of the remedy it deems most effective to cope with such a problem, absent, of course, a showing of unreasonable strictures on individual liberty resulting from its application in particular circumstances.
The argument that exhibition of moving pictures ought in the first instance to be free and only a criminal prosecution should be the mode of restraint when found offensive was rejected.
The pre censorship involved was held to be no ground for striking down a law of censorship.
The minority was of the opinion that a person producing a film must know what he was to do or not to do. For, if he were not sure he might avoid even the permissible.
In Interstate Circuit Inc. v. Dallas (1968) 390 U.S. 676 certain expression were considered vague including ‘crime delinquency’ ‘sexual promiscuity’ ‘not suitable for young persons’.
According to the court the statute must state narrowly drawn, reasonably definite, standards for the Board to follow. Justice Harlan, however, observed that the courts had not found any more precise expressions and more could not be demanded from the legislature than could be said by the Court. However precision of regulation was to be the touchstone of censorship and while admitting that censorship was admissible, it was said that too wide a discretion should not be left to the censors.
Meanwhile in Jacobellis v. Ohio (1964) 378 U.S. 184 it was held that laws could legitimately aim specifically at preventing distribution of objectionable material to children and thus it approved of the system of age-classification. Interstate Circuit Inc. v. Dallas (1968)
390 U.S. 676 and Ginsberg v. New York (1968) 390 U.S. 629 set the seal on validity of age classification as constitutionally valid.
There are two cases which seem to lie outside the main-stream. Recently in Stanley v.
Georgia (1969) 394 U.S. 557 the Court seems to have gone back on the Roth case and held that the right to receive information and ideas, regardless of their social worth, is also fundamental to society. Another exception can only be understood on the basis of the recognition of the needs of a permissive society. Thus Mishkin v. New York (1966) 383 U.S.
502 removes the test of the average person by saying that if the material is designed for a deviant sexual group, the material can only be censored if taken as a whole, it appeals to the prurient interest in sex of the members of that group. This is known as the selective-audience obscenity test and even children are a special class. See Ginsberg v. New York (1968) 390 U.S.
629. On the whole, however, there is in this last case a return to the Hicklin test in that obscenity is considered even from isolated passages.
To summarize. The attitude of the Supreme Court of the United States is not as uniform as one could wish. It may be taken as settled that motion picture is considered a form of expression and entitled to protection of First Amendment. The view that it is only commercial and business and, therefore, not entitled to the protection as was said in Mutual Film Corpn. (1915) 236 U.S.
230 is not now accepted. It is also settled that freedom of speech and expression admits of extremely narrow restraints in cases of clear and present danger, but included in the restraints are prior as well as subsequent restraints. The censorship should be based on precise statement of what may not be subject matter of film-making and this should allow full liberty to the growth of art and literature. Age-classification is permissible and suitability for special
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audiences is not to depend on whether the average man would have considered the film suitable.
Procedural safeguards as laid down in the Freedman case (1965) 380 U.S. 51 must also be observed. The film can only be censored if it offends in the manner set out in Roth 's case.
The petitioner put before us all these dicta for our acceptance and added to them the rejection of censorship, particularly prior censorship by Chief Justice Warren and Justices
Black and Douglas. He pointed out that in England too the censorship of the theatre has been abolished by the Theatres Act 1968 (1968 C. 54) and submitted that this is the trend in advanced countries. He also brought to our notice the provisions of the Obscene Publications Act, 1959
7 & 8 Eliz. 2 C. 66, where the test of obscenity is stated thus:
1. Test of obscenity.
(1) For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained of embodied in it.
and the defence of public good is stated thus :
4. Defence of public good.
(1) A person shall not be convicted of an offence against section two of this Act, and an order for forfeiture shall not be made under the foregoing section, if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.
(2) It is hereby declared that the opinion of experts as to the literary, artistic, scientific or other merits of an article may be admitted in any proceedings under this Act either to establish or to negative the said ground.
He contended that we must follow the above provisions.
We may now consider the English practice. In England there was little freedom of speech to start with. The Common Law made no provision for it. The two Constitutional documents the Petition of Right (1628) and the Bill of Rights (1689) - do not mention it. By the time of
Queen Elizabeth I presses were controlled through licences and although they were granted, no book could be issued without the sanction of Government. The Star Chamber tried several cases of censorship and it even continued in the days of Cromwell. Milton was the first to attack censorship in his Areopagitica and that had profound effect on the freedom of speech. We find quotations from his writings in the opinions of Chief Justice Warren and Justice Dougles.
Freedom of speech came to be recognised by slow stages and it was Blackstone who wrote in his Commentaries (Book IV p. 1517)The liberty of the Press is indeed essential to the nature of a free State, but this consists in laying no previous restraints upon publications.
But censorship of theatres continued and no theatre could be licensed or a play performed without the sanction of the Lord Chamberlain. By the Theatres Act 1843 the Lord Chamberlain was given statutory control over the theatres. He could forbid the production of a play for the preservation of good manners, decorum or the public peace. There was ordinarily no censorship of the press in England. When cinematograph came into being the Cinematograph Act 1909 was passed to control cinemas. It has now been amended by the Cinematograph Act of 1952.
Restrictions were placed on the exhibition of films to children (Section 4) and on the admission of children to certain types of film. Today censorship of films is through the British Board of
Film Censors which is an independent body not subject to control by the State. An elaborate
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inquiry is already on foot to consider whether state control is needed or not. Censorship of films is run on the lines set by T.P. O 'Connor in 1918. These directions, as we said earlier, have had a great influence upon our laws and our directions issued by the Central Government, follow closely the 43 points of T.P. O 'Connor. It is wrong to imagine that there is no censorship in
England. The Khosla Committee (p. 32) has given examples of the cuts ordered and also a list of films which were found unsuitable. The Board has never worked to a Code although the directions are followed. By 1950 three general principles were evolved. They are:
1. Was the story, incident or dialogue likely to impair the moral standards of the public by extenuating vice or crime or depreciating moral standards?
2. Was it likely to give offence to reasonably minded cinema audiences?
3. What effect would it have on the minds of children?
We have digressed into the practice of the United States and the United Kingdom because analogies from these two countries were mainly relied upon by the petitioner and they serve as a very appropriate back-ground from which to begin discussion on the question of censorship and the extent to which it may be carried.
To begin with our fundamental law allows freedom of speech and expression to be restricted as Clause (2) itself shows. It was observed in Ranjit D. Udeshi v. State of
Maharashtra, 1965 Cri. L.J.8.
Speaking in terms of the Constitution it can hardly be claimed that obscenity which is offensive to modesty or decency is within the Constitutional protection given to free speech or expression, because the article dealing with the right itself excludes it. That cherished right on which our democracy rests is meant for the expression of free opinions to change political or social conditions or for the advancement of human knowledge. This freedom is subject to reasonable restrictions which may be thought necessary in the interest of the general public and one such is the interest of public decency and morality. Section 292, Indian
Penal Code, manifestly embodies such a restriction because the law against obscenity, of course, correctly understood and applied, seeks no more than to promote public decency and morality.
We adhere to this statement and indeed it is applicable to the other spheres where control is tolerated under our fundamental law. The argument that Section 5B of the Cinematograph
Act does not reproduce the full effect of the second clause of Article 19 need not detain us. It appears that the draftsman used a copy of the Constitution as it was before the First Amendment and fell into the error of copying the obsolete clause. That, however, does not make any difference. The Constitution has to be read first and the section next. The latter can neither take away nor add to what the Constitution has said on the subject. The word 'reasonable ' is not to be found in Section 5B but it cannot mean that the restrictions can be unreasonable. Not only the sense of the matter but the existence of the Constitutional provision in pari materia must have due share and reading the previsions of the Constitution we can approach the problem without having to adopt a too liberal construction of Section 5B.
It, therefore, follows that the American and the British precedents cannot be decisive and certainly not the minority view expressed by some of the Judges of the Supreme Court of the former. The American Constitution stated the guarantee in absolute terms without any qualification. The Judges try to give full effect to the guarantee by every argument they can validly use. But the strongest proponent of the freedom (Justice Douglas) himself recognised in the Kingsley case that there must be a vital difference in approach. This is what he said:
If we had a provision in our Constitution for 'reasonable ' regulation of the press such as India has included in hers, there would be room for argument that censorship in the interests of morality would be permissible.
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In spite of the absence of such a provision Judges in America have tried to read the words 'reasonable restrictions ' into the First Amendment and thus to make the rights it grants subject to reasonable regulation. The American cases in their majority opinions, therefore, clearly support a case of censorship.
It would appear from this that censorship of films, their classification according to age groups and their suitability for unrestricted exhibition with or without excisions is regarded as a valid exercise of power in the interests of public morality, decency etc. This is not to be construed as necessarily offending the freedom of speech and expression. This has, however, happened in the United States and therefore decisions, as Justice Douglas said in his Tagore
Law Lectures (1939), have the flavour of due process rather than what was conceived as the purpose of the First Amendment. This is because social interest of the people override individual freedom. Whether we regard the state as the paren patriae or as guardian and promoter of general welfare, we have to concede, that these restraints on liberty may be justified by their absolute necessity and clear purpose. Social interests take in not only the interests of the community but also individual interests which cannot be ignored. A balance has therefore to be struck between the rival claims by reconciling them. The larger interests of the community require the formulation of policies and regulations to combat dishonesty, corruption, gambling, vice and other things of immoral tendency and things which affect the security of the State and the preservation of public order and tranquillity. As Ahrens said the question calls for a good philosophical compass and strict logical methods.
With this preliminary discussion we say that censorship in India (and pre-censorships is not different in quality) has full justification in the field of the exhibition of cinema films. We need not generalize about other forms of speech and expression here for each such fundamental right has a different content and importance. The censorship imposed on the making and exhibition of films is in the interests of society. If the regulations venture into something which goes beyond this legitimate opening to restrictions, they can be questioned on the ground that a legitimate power is being abused. We hold, therefore, that censorship of films including prior restraint is justified under our Constitution.
This brings us to the next question: How far can these restrictions go? And how are they to be imposed? This leads to an examination of the provisions contained in Section 5B(2). That provision authorises the Central government to issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under the Act in sanctioning films for public exhibition.
The first question raised before us is that the legislature has not indicated any guidance to the Central Government. We do not think that this is a fair reading of the section as a whole.
The first sub-section states the principles and read with the second clause of the nineteenth article it is quite clearly indicated that the topics of films or their content should not offend certain matters there set down. The Central Government in dealing with the problem of censorship will have to bear in mind those principles and they will be the philosophical compass and the logical methods of Ahrens. Of course, Parliament can adopt the directions and put them in schedule to the Act (and that may still be done), it cannot be said that there is any delegation of legislative function. If Parliament made a law giving power to close certain roads for certain vehicular traffic at stated times to be determined by the Executive authorities and they made regulations in the exercise of that power, it cannot for a moment be argued that this is insufficient to take away the right of locomotion. Of course, everything may be done by legislation but it is not necessary to do so if the policy underlying regulations is clearly indicated. The Central Government 's regulations are there for consideration in the light of the
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guaranteed freedom and if they offend substantially against that freedom, they may be struck down. But as they stand they cannot be challenged on the ground that any recondite theory of law making or a critical approach to the separation of powers is infringed. We are accordingly of the opinion that Section 5B(2) cannot be challenged on this ground.
This brings us to the manner of the exercise of control and restriction by the directions.
Here the argument is that most of the regulations are vague and further that they leave no scope for the exercise of creative genius in the field of Article This poses the first question before us whether the 'void for vagueness ' doctrine is applicable. Reliance in this connection is placed on
Municipal Committee Amritsar v. State of Rajasthan A.I.R. 1960 S.C. 1100. In that case a
Division Bench of this Court lays down that an Indian Act cannot be declared invalid on the ground that it violates the due process clause or that it is vague. Shah J, speaking for the
Division Bench, observes:
…the rule that an Act of a competent legislature may be 'struck down ' by the courts on the ground of vagueness is alien to our Constitutional system. The
Legislature of the State of Punjab was competent to enact legislation in respect of 'fairs ', vide Entry 28 of List II of the 7th Schedule to the Constitution. A law may be declared invalid by the superior courts in India if the legislature has no power to enact the law or that the law violates any of the fundamental rights guaranteed in Part III of the Constitution or is inconsistent with any Constitutional provision, but not on the ground that it is vague.
The learned Judge refers to the practice of the Supreme Court of the United State in Claude
C. Caually v. General Construction Company (1926) 70 L. Ed. 332 where it was observed :
A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
The learned Judge observes in relation to this as follows:
But the rule enunciated by the American Courts has no application under our
Constitutional set up. This rule is regarded as an essential of the 'due process clause ' incorporated in the American Constitution by the 5th and 14th
Amendments. The courts in India have no authority to declare a statute invalid on the ground that it violates 'the due process of law '. Under our Constitution, the test of due process of law cannot be applied to the statutes enacted by the Parliament or the State Legislature.
… These observations which are clearly obiter are apt to be too generally applied and need to be explained. While it is true that the principles evolved by the Supreme Court of the United
States of America in the application of the Fourteenth Amendment were eschewed in our
Constitution and instead the limits of restrictions on each fundamental right were indicated in the clauses that follow the first clause of the nineteenth article, it cannot be said as an absolute principle that no law will be considered bad for sheer vagueness. There is ample authority for the proposition that a law affecting fundamental rights may be so considered. A very pertinent example is to be found in State of Madhya Pradesh v. Baldeo Prasad [1961] 1 SCR 970 where the Central Provinces and Berar Goondas Act 1946 was declared void for uncertainty. The condition for the application of Sections 4 and 4A was that the person sought to be proceeded against must be a goonda but the definition of goonda in the Act indicated no tests for deciding which person fell within the definition. The provisions were therefore held to be uncertain and vague. The real rule is that if a law is vague or appears to be so, the court must try to construe it, as far as may be, and language permitting, the construction sought to be placed on it, must be in accordance with the intention of the legislature. Thus if the law is open to diverse
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construction, that construction which accords best with the intention of the legislature and advances the purpose of legislation, is to be preferred. Where however the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution as was done in the case of the Goonda Act. This is not application of the doctrine of due process.
The invalidity arises from the probability of the misuse of the law to the detriment of the individual. If possible, the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases. Judging the directions from this angle, we find that there are general principles regarding the films as a whole and specific instances of what may be considered as offending the public interest as disclosed in the clause that follows the enunication of the freedoms in Article
19(1)(a). The general principles which are stated in the directions seek to do no more than restate the permissible restrictions as stated in Clause (2) of Article 19 and Section 5B(1) of the Act. They cannot be said to be vague at all. Similarly, the principles in Section IV of the directions in relation to children and young persons are quite specific and also salutary and no exception can be taken. It is only the instances which are given in Section I Clauses A to D which need to be considered. Read individually they give ample direction as to what may not be included. It is argued on the basis of some American cases already noticed by us that these expressions are vague. We do not agree. The words used are within the common understanding of the average man. For example the word 'rape ' indicate what the word is, ordinarily, understood to mean. It is hardly to be expected or necessary that the definition of rape in the
Penal Code must be set down to further expose the meaning. The same may be said about almost all the terms used in the directions and discussed before us. We do not propose to deal with each topic for that is really a profitless venture. Fundamental rights are to be judged in a broad way. It is not a question of semantics but of the substance of the matter. It is significant that Justice Douglas who is in favour of a very liberal and absolute application of the First
Amendment in America is of the view that 'sexual promiscuity ' was not vague, while those in favour of prior restraints thought that it was. We have referred earlier to the case. We are quite clear that expressions like 'seduction ', 'immoral traffic in women ', 'soliciting, prostitution or procuration ', 'indelicate sexual situation ' and 'scenes suggestive of immorality ', 'traffic and use of drugs ', 'class hatred ', blackmail associated with immorality ' are within the understanding of the average men and more so of persons who are likely to be the panel for purposes of censorship. Any more definiteness is not only not expected but is not possible. Indeed if we were required to draw up a list we would also follow the same general pattern.
But what appears to us to be the real flaw in the scheme of the directions is a total absence of any direction which would tend to preserve art and promote it. The artistic appeal or presentation of an episode robs it of its vulgarity and harm and this appears to be completely forgotten. Artistic as well as inartistic presentations are treated alike and also what may be socially good and useful and what may not. In Ranjit D. Udeshi 's case this court laid down certain principles on which the obscenity of a book was to be considered with a view to deciding whether the book should be allowed to circulate or withdrawn. Those principles apply mutatis mutandis to films and also other areas besides obscenity. The Khosla Committee also adopted them and recommended them for the guidance of the film censors. We may reproduce them here as summarized by the Khosla Committee:
The Supreme Court laid down the following principles which must be carefully studied and applied by our censors when they have to deal with a film said to be objectionable on the ground of indecency or immorality :(1) Treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more.
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(2) Comparison of one book with another to find the extent of permissible action is not necessary.
(3) The delicate task deciding what is artistic and what is obscene has to be performed by courts and in the last resort, by the Supreme Court and so, oral evidence of men of literature or others on the question of obscenity is not relevant.
(4) An overall view of the obscene matter in the setting of the whole work would of course be necessary but the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity is so decided that it is likely to deprave or corrupt those whose minds are open to influence of this sort and into whose hands the book is likely to fall.
(5) The interests of contemporary society and particularly the influence of the book etc., on it must not be overlooked.
(6) Where obscenity and art are mixed, art must be so preponderating as to throw obscenity into shadow or render the obscenity so trivial and insignificant that it can have no effect and can be overlooked.
(7) Treating with sex in a manner offensive to public decency or morality which are the words of our Fundamental Law judged by our national standards and considered likely to pender to lascivious, prurient or sexually precocious minds must determine the result.
(8) When there is propagation of ideas, opinions and informations or public interests or profits, the interests of society may tilt the scales in favour of free speech and expression. Thus books on medical science with intimate illustrations and photographs though in a sense immodest, are not to be considered obscene, but the same illustrations and photographs collected in a book from without the medical text would certainly be considered to be obscene.
(9) Obscenity without a preponderating social purpose or profit cannot have the
Constitutional protection of free speech or expression. Obscenity is treating with sex in a manner appealing to the carnal side of human nature or having that tendency. Such a treating with sex is offensive to modesty and decency.
(10) Knowledge is not a part of the guilty act. The offender 's knowledge of the obscenity of the book is not required under the law and it is a case of strict liability.
Application of these principles does not seek to whittle down the fundamental right of free speech and expression beyond the limits permissible under our Constitution for however high or cherished that right it does not go to pervert or harm society and the line has to be drawn somewhere. …
We may now illustrate our meaning how even the items mentioned in the directions may figure in films subject either to their artistic merit or their social value over-weighing their offending character. The task of the censor is extremely delicate and his duties cannot be the subject of an exhaustive set of commands established by prior ratiocination. But direction is necessary to him so that he does not sweep within the terms of the directions vast areas of thought, speech and expression of artistic quality and social purpose and interest. Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read.
The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good, We must not look upon such human relationships as banned in toto and forever from human thought and must give scope for talent to put them before society. The requirements of art and literature include within themselves a comprehensive view of social life and not only in its ideal form and the line is to be drawn where the average man moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the
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redeeming touch of art or genius or social value. If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a
Frenchman sees a woman 's legs in everything, it cannot be helped.
In our scheme of things ideas having redeeming social or artistic value must also have importance and protection for their growth. Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral. It should be our concern, however, to prevent the use of sex designed to play a commercial role by making its own appeal. This draws in the censors scissors. Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Latius who committed patricide and incest with his mother. When the seer Tiresias exposed him, his sister Jocasta committed suicide by hanging herself and Oedipus put out his own eyes. No one after viewing these episodes would think that patricide or incest with one 's own mother is permissible or suicide in such circumstances or tearing out one 's own eyes is a natural consequence. And yet if one goes by the letter of the directions the film cannot be shown. Similarly, scenes depicting leprosy as a theme in a story or in a documentary are not necessarily outside the protection. If that were so
Verrier Elwyn 's Phulmat of the Hills or the same episode in Henryson 's Testament of Cresseid
(from where Verrier Elwyn borrowed the idea) would never see the light of the day. Again carnage and bloodshed may have historical value and the depiction of such scenes as the Sack of Delhi by Nadirshah may be permissible, if handled delicately and as part of an artistic portrayal of the confrontation with Mohammad Shah Rangila. If Nadir Shah made golgothas of skulls, must we leave them out of the story because people must be made to view a historical theme without true history? Rape in all its nakedness may be objectionable but Voltaire 's
Candide would be meaningless without Cunegonde 's episode with the soldier and the story of
Lucrece could never be depicted on the screen.
Therefore it is not the elements of rape, leprosy, sexual immorality which should attract the censor 's scissors but how the theme is handled by the producer. It must, however, be remembered that the cinematograph is a powerful medium and its appeal is different. The horrors of war as depicted in the famous etchings of Goya do not horrify one so much as the same scenes rendered in colour and with sound and movement, would do. We may view a documentary on the erotic tableaux from our ancient temples with equanimity or read the
Kamasutra but a documentary from them as a practical sexual guide would be abhorrent.
We have said all this to show that the items mentioned in the directions are not by themselves defective. We have adhered to the 43 points of T. P. O 'Connor framed in 1918 and have made a comprehensive list of what may not be shown. Parliament has left this task to the
Central Government and, in our opinion, this could be done. But Parliament has not legislated enough, nor has the Central Government filled in the gap. Neither has separated the artistic and the sociably valuable from that which is deliberately indecent, obscene, horrifying or corrupting. They have not indicated the need of society and the freedom of the individual. They have thought more of the depraved and less of the ordinary moral man. In their desire to keep films from the abnormal, they have excluded the moral. They have attempted to bring down the public motion picture to the level of home movies.
It was for this purpose that this Court was at pains to point out in Ranjit D. Udeshi 's case certain considerations for the guidance of censorship of books. We think that those guides work as well here. Although we are not inclined to hold that the directions are defective in so far as they go, we are of opinion that directions to emphasize the importance of art to a value judgment by the censors need to be included. Whether this is done by Parliament s or by the
Central Government it hardly matters. The whole of the law and the regulations under it will have always to be considered and if the further tests laid down here are followed, the system
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of censorship with the procedural safeguards accepted by the Solicitor General will make censorship accord with our fundamental law.
We allow this petition as its purpose is more than served by the assurance of the Solicitor
General and what we have said, but in the circumstances we make no order about costs.
AJAY GOSWAMI V. UNION OF INDIA
AIR 2007 SC 493, (2007) 1 SCC 143
Decided On: December 12, 2006
BENCH – JUSTICES DR. AR. LAKSHMANAN & TARUN CHATTERJEE
JUSTICE LAKSHMANAN (for the Court)
The Petitioner is a lawyer by profession. Respondent No. 1 is Union of India, respondent
No. 2 is a statutory body, respondent Nos. 3 & 4 are the leading national daily newspapers and respondent No. 5 & 6 are news agencies.
The present petition involves a substantial question of law and public importance on the fundamental right of the citizens, regarding the freedom of speech and expression as enshrined under Article 19(1)(a) of the Constitution of India. The petitioner 's grievance is that the freedom of speech and expression enjoyed by the newspaper industry is not keeping balance with the protection of children from harmful and disturbing materials. Article 19(1)(a) guarantees freedom of speech and expression of individual as well as press. It acknowledges that the press is free to express its ideas but on the same hand, individual also has right to their own space and right not to be exposed against their will to other 's expressions of ideas and actions. By way of this petition, the petitioner requested the Court to direct the authorities to strike a reasonable balance between the fundamental right of freedom of speech and expression enjoyed by the press and the duty of the Government, being signatory of United Nations
Convention on the Rights of the Child, 1989 and Universal Declaration of Human Rights, to protect the vulnerable minors from abuse, exploitation and harmful effects of such expression.
The petitioner requested the Court to direct the concerned authorities to provide for classification or introduction of a regulatory system for facilitating climate of reciprocal tolerance which may include:
(a) an acceptance of other people 's rights to express and receive certain ideas and actions; and
(b) accepting that other people have the right not to be exposed against their will to one 's expression of ideas and actions.
The reciprocal tolerance is further necessary considering the growing tendency among youngsters and minors in indulging in X-rated jokes, SMS and MMS.
We heard Mr. Ajay Goswami, petitioner-in-person and Mr. Harish Chandra, learned senior counsel, Mr. P.H. Parekh, Mr. Sanjay Kumar, Mr. A.K. Seth, Mr. Gopal Jain, Mr. Vimal
Chandra, Mr. S. Dave, learned Counsel appearing for the respondents and the entire documents placed before us.
The Lawyer Petitioner who appeared in person submitted that he filed this petition to seek protection from this Court to ensure that minors are not exposed to sexually exploitative materials, whether or not the same is obscene or is within the law. The real objective is that the
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nature and extent of the material having sexual contents should not be exposed to the minors indiscriminately and without regard to the age of minor. The discretion in this regard should vest with parents, guardians, teachers or experts on sex education.
The petitioner is not in any way seeking restrain on the freedom of press or any censorship prior to the publication of article or other material. The petitioner is only seeking for the regulation at the receiving end and not at the source. Whatever is obscene is not protected by any law and there are numerous avenues for the redressal of grievance for the publication of any obscene material. However, all sex oriented material are not always obscene or even indecent or immoral. The effect of words or written material should always judged from the standards of reasonable strong minded, firm and courageous man i.e. an average adult human being. No attempt has been made till date to define any yardstick for the minors whose tender minds are open for being polluted and are like plain state on which any painting can be drawn.
Is the material in newspaper really harmful for the minors?
These articles etc. may not be obscene within the four corners of law but certainly have tendencies to deprave and corrupt the minds of young and adolescent who by reasons of their physical and mental immaturity needs special safeguards and care. He invited our attention to some of the clippings annexed along with the petition. These clipping are only examples and such examples not only confine to newspapers mentioned herein but is of general nature. The double meaning jokes cannot in any way leave healthy impact on the tender minds of the teenagers. The photographs certainly are part of news from around the world and India.
However, the tone and tenor of the article as a whole and the way some of the photographs are published and described may not be in the interest of the minors. The photographs annexed at page 24 of the paper book and the caption below them such as “the center of attention”, “double jeopardy” “butt of course” leave much for the thoughts of minors. If the minor is of an age where he/she cannot understand the meaning, he/she would like to know from others and if the minor has come to an age where he/she is able to understand this would certainly energize his grey cells in the brain and would titillate him/her. What kind of culture and message the article titled “moan for more” or “get that zing bag into your sex life” convey. Is it really necessary for a child to read at a very early stage the concept of masturbation, ejaculation, penetration etc. as is normally discussed by so called sex experts in columns of newspapers. At what age should we start telling our children where to have sex and how to break their monotony. News item on MMS clipping is certainly not obscene but do we really need to show the nude photographs with only small black stripes on the private parts to our children without even bothering of its effect. In Times of India dated 1.8.2005 an article titled "Porn In Potter VI" was published, copy of which is annexed with the petition. The author has tried to read and suggest sexual messages in these lines. Children who were reading the book might not have any such inclination. However, after reading newspaper their mind would certainly wander to an area which the author might not have even conceived.
No doubt, we are not living an era of Gandhari but certainly we have culture and respect for elders and some decorum and decency towards children. Undoubtedly, such kind of stuff is available freely on internet, movies, televisions etc. but are the families and the community environment really ready to accept it in toto or are they passive receiver of the same without any control or check. Are these articles really making our children morally healthy? Moral values should not be allowed to be sacrificed in the guise of social change or cultural assimilation. Page 225 of 610
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Whether the minors have got any independent right enforceable under Article 32 of the
Constitution?
The right of the minor flows from Article 19(1)(a), Article 21 read with Article 39(f) of the
Constitution of India and United Nation Convention on the Rights of the Child. In a recent judgment delivered by this Court in the matter of Director General, Directorate General of
Doordarshan v. Anand Patwardhan (2006) 8 SCC 433 , to which one of us was a member, Dr.
Justice AR. Lakshmanan, observed as under:
One of the most controversial issue is balancing the need to protect society against the potential harm that may flow from obscene material, and the need to ensure respect for freedom of expression and to preserve a free flow of information and idea. It was further observed by this Court:
The Indian Penal Code on obscenity grew out of the English Law, which made court the guardian of public morals. It is important that where bodies exercise discretion, which may interfere in the enjoyment of constitutional rights, that discretion must be subject to adequate law.
The judge should thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have in the minds of the readers.
… In Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, this Court observed as follows: The fundamental rights and the directive principles constitute the 'conscience ' of our Constitution… To ignore Part IV is to ignore the sustenance provided for in the Constitution, the hopes held out to the Nation and the very ideals on which our Constitution is built here is no anti-thesis between the fundamental rights and the directive principles. One supplements the other.
… Both Parts III and IV… have to be balanced and harmonized - then alone the dignity of the individual can be achieved… They [fundamental rights and directive principles] were meant to supplement each other.
Mathew, J. while adopting the same approach remarked: (SCC pp. 875-76, para 1700)
The object of the people in establishing the Constitution was to promote justice, social and economic, liberty and equality. The modus operandi to achieve these objectives is set out in Part III and IV of the Constitution. Both parts III and IV enumerate certain moral rights. Each of these parts represent in the main the statements in one sense of certain aspirations whose fulfillment was regarded as essential to the kind of society which the Constitution- makers wanted to build.
Many of the articles, whether in Part III or IV, represents moral rights which they have recognized as inherent in every human being in this country. The tasks of protecting and realizing these rights is imposed upon all organs of the state, namely, legislative, executive and judicial. What then is the importance to be attached to the fact that the provisions of Part III are enforceable in a court and the provisions in Part IV are not? Is it that the rights reflected in the provisions of
Part III are somehow superior to the moral claims and aspirations reflected in the provisions of Part IV or not? I think not. Free and compulsory education under
Article 25, Freedom from starvation is as important as right to life. Nor are the provisions in Part III absolute in the sense that the rights represented by them can always be given full implementation…
………
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Maintainability of Petition
In view of the above facts and circumstances and legal proposition, Mr. Ajay Goswami, the petitioner-in-person submitted that:
i) Newspapers are publishing sex oriented material which may not be obscene otherwise but still caters to prurient interest of the minor. ii) Minors have got fundamental right under Article 19(1)(a), Article 21 read with
Article 39(f) of the Constitution and United Nation Convention on the Rights of the Child. As freedom of speech and expression also includes the expressions of the minors which need care as the minor due to their tender age and mental immaturity are not capable of deciding themselves as to what is in the interest of their growth morally & culturally, so that they can assume their responsibility within the community. iii) The right also flows from Article 21 as the right to live shall also includes right to education as pronounced in the judgments of this Court. By necessary corollary, it shall also mean right to proper education which may be decided by the parents, teachers and other experts and newspapers cannot be allowed to disturb that by their indeterminately access of the offending article to the minors regardless of their age. iv) The State which has the duty to protect the minors by appropriate legislation or executive orders has failed in its duty. The Press Council of India which was constituted for preserving the freedom of press and maintaining and improving the standards of newspapers and news agency is a powerless body. No guidelines have been framed for the minors and adolescents in particular, which can be enforced in Court of law. The Council itself feel the necessity of some strong and effective measure to correct it.
v) The citizens of this country can only pray to this Court to prevent injustice being done to them. This Court under Article 32 read with Article 142 can issue guidelines to ensure the growth of the children in a healthy and moral atmosphere which is exploited by the newspapers.
… Concluding his arguments, Mr. Ajay Goswamy, petitioner-in-person made the following proposals:
i) Guidelines in detail may be issued to all the newspapers regarding the matter which may not be suitable for the reading of minors or which may require parents or teachers discretion. ii) Newspapers should have self regulatory system to access the publication in view of those guidelines. iii) In case the newspapers publishes any material which is categorized in the guidelines the newspaper be packed in some different form and should convey in bold in front of newspapers of the existence of such material. iv) This would give discretion to the parents to instruct the news vendor whether to deliver such newspaper or not.
… In the alternative, he suggested a Committee be appointed to suggest ways and means for regulating the access of minors to adult oriented sexual, titillating or prurient material.
Mr. Harish Chandra, learned senior counsel appearing for Union of India - respondent No.
1 in reply to the arguments of the petitioner submitted that publishing as well as circulating of obscene and nude/semi-nude photographs of women already constitutes a penal offence under the provisions of the Indecent Representation of Women (Prohibition) Act, 1986, administered by the Department of Women & Child Development, Ministry of Human Resources
Development. Relevant Sections 3 & 4 of the Indecent Representation of Women (Prohibition)
Act, 1986 are reproduced hereunder for ready reference:
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3. Prohibition of advertisements containing indecent representation of woman:No person shall publish, or cause to be published or arrange or take part in the publication or exhibition or, any advertisement which contains indecent representation of women in any form.
4. Prohibition of publication or sending by post of books, pamphlets etc. containing indecent representation of women - No person shall produce or cause to be produced, sell, let to hire, distribute or circulate or send by post any book, pamphlet, paper, slide, film, writing drawing, painting, photographs, representation or figure of women in any form, provided that nothing in this section shall apply to:
(a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure:
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure is in the interest of science, literature, art or learning or other object of general concern; or
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented on or in (i) any ancient monument within the meaning of the Ancient Monument and
Archaeological Sites and Remains Act, 1958 (24 of 1958)
(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purposes;
(c) any film in respect of which the provisions of Part II of the Cinematograph
Act, 1952 (37 of 1952), will be applicable.
Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986 provides the penalty for committing such offences in contravention of Sections 3 & 4 of the said Act. Section
6 reads as follows:
6. Penalty- Any person who contravenes the provisions of Sections 3 & 4 shall be punishable on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and in the event of a second or subsequent conviction with imprisonment for a term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lac rupees. It was further submitted that sale, letting, hiring, distributing, exhibiting, circulating of obscene books and objects of young persons under the age of twenty years also constitutes a penal offence under Sections 292 and 293 of the Indian Penal Code and is punishable on first conviction with imprisonment of either description for a term which may extend to two thousand rupees and in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to seven years, and also with fine which may extend to five thousand rupees.
Concluding his submissions, he submitted that there are laws in existence which prohibit publishing, circulating and selling obscene books and objects to young persons and it is the responsibility of the "Press" to adhere to and comply with these laws and not to abuse the freedom of speech and expression (freedom of press) guaranteed under Article 19(1)(a) of the
Constitution of India.
… Learned Counsel appearing for respondent No. 3 (Times of India) contented that legislations, rules and regulations already exists within the Indian legal framework to check publication of obscene materials and articles. Section 292 of the Indian Penal Code prohibits
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and punishes selling, hiring, exhibition, circulation, possession, importation, exportation of obscene material. Sections 3 and 4 of the Indecent Representation of Women Act also imposes a prohibition on the publication or sending by post of books, pamphlets etc, selling, hiring, distributing and circulating any material that contains indecent representation of women in any form. Section 6 of the said Act, also provides for punishment in the case of non- compliance to
Sections 3 and 4 of the Act.
Further he submitted that the Press Council of India is constituted duly under the
Constitution of India for regulating the functions and activities of the Press. Sections 13(2)(c),
14(1) and 14(2) of the Press Council of India Act empowers the Press Council to impose serious checks on the Newspaper, News Agency, an editor or a journalist who flouts the norms as formulated by the Press Council and is against societal norms of decency.
Learned Counsel also submitted that the Indian Constitution under Article 19(1)(a) guarantees every citizen the right to freedom of speech and expression and respondent being a leading Newspaper has the right to express its views and various news of National and
International relevance in its edition and any kind of unreasonable restriction on this right will amount to the violation of the right guaranteed by the Indian Constitution. Learned Counsel referred to a recent judgment of this Court, Director General of Doordarshan v. Anand
Patwardhan, it was observed that the basic test for obscenity would be:
(a) whether the average person applying contemporary community standards would find that the work, taken as a whole appeal to the prurient interest
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically, defined by the applicable state law,
(c) whether the work taken as a whole, lacks serious literary, artistic, political or scientific value.
… Mr. Gopal Jain, learned Counsel appearing for Hindustan Times respondent No. 4, practically adopted the arguments put forth by respondent No. 3. In addition, respondent No. 4 drew our attention to the Guidelines under the "Norms of Journalistic Conduct" which lays down guidelines for newspapers /journalists to maintain standards with regard to obscenity and vulgarity. Norm 17 reads as follows:
Obscenity and vulgarity to be eschewed
i) Newspapers/journalists shall not publish anything which is obscene, vulgar or offensive to public good taste. ii) Newspapers shall not display advertisements which are vulgar or which, through depiction of a woman in nude or lewd posture, provoke lecherous attention of males as if she herself was a commercial commodity for sale. iii) Whether a picture is obscene or not, is to be judged in relation to three tests: namely a) Is it vulgar and indecent?
b) Is it a piece of mere pornography?
c) Is its publication meant merely to make money by titillating the sex feelings of adolescents and among whom it is intended to circulate? In other words, does it constitute an unwholesome exploitation for commercial gain?
Other relevant considerations are whether the picture is relevant to the subject matter of the magazine. That is to say, whether its publication serves any preponderating social or public purpose, in relation to art, painting, medicine, research or reform of sex
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iv) The globalization and liberalization does not give licence to the media to misuse freedom of the Press and to lower the values of the society. The media performs a distinct role and public purpose which require it to rise above commercial consideration guiding other industries and businesses. So far as that role is concerned, one of the duties of the media is to preserve and promote our cultural heritage and social values.
v) Columns such as 'Very Personal ' in a newspaper replying to personal queries of the readers must not become grossly offensive presentations, which either outrage public decency or corrupt public moral.
Learned Counsel contented that, the test of judging should be that of an ordinary man of common sense and prudence and not an "out of the ordinary hypersensitive man". In the case of K.A. Abbas (1970) 2 SCC 780, Hidayatullah, C.J. opined: "If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman 's legs in everything, it cannot be helped."
Learned Counsel further explained the procedure followed by Hindustan Times before the publication of any advertisement, "Advertisements are scrutinized by the advertising department and in the event the advertising department is in doubt, the assistance of the legal department is resorted to. The departments are manned by qualified persons who are well acquainted with the Norms and Guidelines issued by the Press Council."
………
Test of obscenity
This Court has time and again dealt with the issue of obscenity and laid down law after considering the right of freedom and expression enshrined in Article 19(1)(a) of the
Constitution of India, its purport and intent, and laid down the broad principles to determine/judge obscenity.
In a recent Anand Patwardhan … [T]his Court has referred to the Hicklin test laid down in R. Hicklin (1868) LR 3 QB 360 and observed:
(a) whether the average person applying contemporary community standards would find that the work, taken as a whole appeal to the prurient interest.
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically, defined by the applicable state law,
(c) whether the work taken as a whole, lacks serious literary, artistic, political or scientific value.
In Chandrakant Kalyandas Kakodkar v. State of Maharashtra (1969) 2 SCC 687 this Court has held:
In early English writings authors wrote only with unmarried girls in view but society has changed since then to allow litterateurs and artists to give expression to their ideas, emotions and objectives with full freedom except that is should not fall within the definition of 'obscene ' having regard to the standards of contemporary society in which it is read. The standards of contemporary society in India are also fast changing. The adults and adolescents have available to them a large number of classics, novels, stories and pieces of literature which have a content of sex, love and romance. As observed in Udeshi case if a reference to sex by itself is considered obscene, no books can be sold except those which are purely religious. In the field of art and cinema also the adolescent is shown situations which even a quarter of a century ago would be considered derogatory to public morality, but having regard to changed conditions are more taken for granted without in anyway tending to debase or debauch the mind. What we have to see is that whether a class, not an isolated case, into whose hands the book,
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article or story falls suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thought aroused in their minds. The charge of obscenity must, therefore, be judged from this aspect.
………
The American Courts, from time to time, have dealt with the issues of obscenity and laid down parameters to test obscenity. It was further submitted that while determining whether a picture is obscene or not it is essential to first determine as to quality and nature of material published and the category of readers.
… In Butler v. Michigan 352 US 380 (1957) U.S. Supreme Court held as under:
The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely, this is to burn the house to roast the pig.
… In Reno v. American Civil Liberties Union 521 US 844 (1997) it has been held that:
The Federal Government 's interest in protecting children from harmful materials does not justify an unnecessarily broad suppression of speech addressed to adults, in violation of the Federal Constitution 's First Amendment; the Government may not reduce the adult population to only what is fit for children, and thus the mere fact that a statutory regulation of speech was enacted for the important purpose of protecting children from exposure to sexually explicit material does not foreclose inquiry into the statute 's validity under the First Amendment, such inquiry embodies an overarching commitment to make sure that Congress has designed its statute to accomplish its purpose without imposing an unnecessarily great restriction on speech.
In United States v. Playboy Entertainment Group, Inc. 529 US 803 (2000) it has been held that: In order for the State to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.What the Constitution says is that these judgments are for the individual to make, not for the government of decree, even with the mandate or approval of a majority. Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.
………
Where art and obscenity are mixed, what must be seen is whether the artistic, literary or social merit of the work in question outweighs its "obscene" content. This view was accepted by this Court in Ranjit Udeshi v. State of Maharashtra, AIR 1965 SC 881:
Where there is propagation of ideas, opinions and information of public interest or profit the approach to the problem may become different because then the interest of society may tilt the scales in favour of free speech and expression. It is thus that books on medical science with intimate illustrations and photographs, though in a sense immodest, are not considered to be obscene but the same illustrations and photographs collected in book form without the medical text would certainly be considered to be obscene….
Where art and obscenity are mixed, the element of art must be so preponderant as to overshadow the obscenity or make it so trivial/inconsequential that it can be ignored; Obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech.
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………
In judging as to whether a particular work is obscene, regard must be had to contemporary mores and national standards. While the Supreme Court in India held Lady Chatterley 's Lover to be obscene, in England the jury acquitted the publishers finding that the publication did not fall foul of the obscenity test. This was heralded as a turning point in the fight for literary freedom in UK. Perhaps “community mores and standards” played a part in the Indian Supreme
Court taking a different view from the English jury. The test has become somewhat outdated in the context of the internet age which has broken down traditional barriers and made publications from across the globe available with the click of a mouse.
………
… It is necessary that publication must be judged as a whole and the impugned should also separately be examined so as to judge whether the impugned passages are so grossly obscene and are likely to deprave and corrupt.
… In Ranjit Udeshi (Supra) this Court held that the delicate task of deciding what is artistic and what is obscene has to be performed by courts and as a last resort by the Supreme Court and therefore, the evidence of men of literature or others on the question of obscenity is not relevant. However, in Samresh Bose v. Amal Mitra (1985) 4 SCC 289 this Court observed:
In appropriate cases, the court, for eliminating any subjective element or personal preference which may remain hidden in the subconscious mind and may unconsciously affect a proper objective assessment, may draw upon the evidence on record and also consider the views expressed by reputed or recognized authors of literature on such questions as if there by any of his own consideration and satisfaction to enable the court to discharge the duty of making a proper assessment. … In S. Ragarajan v. P. Jagjivam Ram, while interpreting Article 19(2), this Court borrowed from the American test of clear and present danger and observed:
[The] commitment to freedom demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have a proximate and direct nexus with the expression.
The expression of thought should be intrinsically dangerous to the public interest.
In other words, the expression should be inseparably like the equivalent of a 'spark in a power keg '.
… The test for judging a work should be that of an ordinary man of common sense and prudence and not an “out of the ordinary or hypersensitive man.” As Hidayatullah, C.J. remarked in K.A. Abbas:
If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman 's legs in everything, it cannot be helped.
An additional affidavit was filed on behalf of the Press Council of India on 7.8.2006.
Inviting our attention to the said affidavit, Mr. P.H. Parekh submitted that Section 14 of the
Press Council Act, 1978 empowers the Press Council only to warn, admonish or censure newspapers or news agencies and that it has no jurisdiction over the electronic media and that the Press Council enjoys only the authority of declaratory adjudication with its power limited to giving directions to the answering respondents arraigned before it to publish particulars
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relating to its enquiry and adjudication. It, however, has no further authority to ensure that its directions are complied with and its observations implemented by the erring parties. Lack of punitive powers with the Press Council of India has tied its hands in exercising control over the erring publications.
Mr. P.H. Parekh further submitted that prompted by the continued flouting of its observation/directions by some of the Press of the country, the Press Council has recommended to the Government between 1999-2003 to amend the provisions of Section 14(1) of the Press
Council Act, 1978 to arm the Council with the authority to recommend to the Government derecognition of newspapers for Government advertisement or withdrawal of the accreditation granted to a journalist which facilitates performance of his function and also entitles him to claim concession in railways etc. or to recommend de- recognition of a newspaper for the period deemed appropriate for the proposals made. The Press Council of India is yet to receive any response from the Government. The counsel has also filed the copies of the letters written by Justice K.Jayachandra Reddy dated 17.12.2002 and 06.12.2003 issued by the Press Council to the Government of India for extending punitive powers and the amendments proposed by the Council have been annexed to the main writ petition.
In our opinion, the present scenario provides for a regulatory framework under which punishment is prescribed for flouting the standards set by the Press Council of India by newspapers/print media. Further, respondent Nos. 3 & 4 have a self-regulatory mechanism in place and they have to strictly adhere to the standards set by the Press Council Act, 1978.
According to them, the advertisement, news articles and photographs are scrutinized by the advertising department and in the event the advertising department is in doubt, the assistance of the legal department is resorted to. It is also their case that the said departments are manned by qualified persons who are well acquainted with the Norms and Guidelines issued by the press Council. It was also submitted that respondent No. 4, as among others, consistently rejected the publication of liquor and sexually exploitative advertisements, which may offend the sensibilities of families and in contravention it was further submitted that respondent No.
4, keeping in mind, special educational needs of school going children publishes a supplement called "HT Next School Times" every Monday and the respondent does not send any supplement to schools other than "HT Next School Times" along with the main paper. Further, the respondent publishes "HT Next" which is a newspaper positioned mainly for the youth.
This paper too keeps in mind the special needs of the youth of today. The market segment that the respondent 's paper wishes to cater and caters to sections of society interested in business and is keen on gathering information on all fronts of life. It was further submitted that the newspaper intends to give a holistic perspective of the world to an individual. It was submitted that the respondent 's paper has consistently over the last few decades had a large circulation and consistent increase in its circulation each year has not been due to publishing of its supplement "HT City".
In view of the foregoing legal propositions the pictures in dispute had been published by the respondents with the intent to inform readers of the current entertainment news from around the world and India. The respondent 's newspaper seeks to provide a wholesome reading experience offering current affairs, sports, politics as well as entertainment news to keep its readers abreast of all the latest happenings in the world. The pictures that have been published should not be viewed in isolation rather they have to be read with the news reports next to them.
In the event, that a particular news items or picture offends any person they may avail of the remedies available to them under the present legal framework. Any steps to impose a blanket ban on publishing of such photographs, in our opinion, would amount to prejudging the matter as has been held in the matter of Fraser v. Evans 1969 (1) QB 349.
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The definition of obscenity differs from culture to culture, between communities within a single culture, and also between individuals within those communities. Many cultures have produced laws to define what is considered to be obscene, and censorship is often used to try to suppress or control materials that are obscene under these definitions. The term obscenity is most often used in a legal context to describe expressions (words, images, actions) that offend the prevalent sexual morality. On the other hand the Constitution of India guarantees the right of freedom to speech and expression to every citizen. This right will encompass an individual’s take on any issue. However, this right is not absolute, if such speech and expression is immensely gross and will badly violate the standards of morality of a society. Therefore, any expression is subject to reasonable restriction. Freedom of expression has contributed much to the development and well-being of our free society. This right conferred by the Constitution has triggered various issues. One of the most controversial issues is balancing the need to protect society against the potential harm that may flow from obscene material, and the need to ensure respect for freedom of expression and to preserve a free flow of information and idea.
Be that as it may, the respondents are leading newspapers in India they have to respect the freedom of speech and expression as is guaranteed by our constitution and in fact reaches out to its readers any responsible and decent manner. In our view, any steps to ban publishing of certain news pieces or pictures would fetter the independence of free press which is one of the hallmarks of our democratic setup. In our opinion, the submissions and the propositions of law made by the respective counsel for the respondents clearly established that the present petition is liable to be dismissed as the petitioner has failed to establish the need and requirement to curtail the freedom of speech and expression. The Times of India and Hindustan Times are leading newspapers in Delhi having substantial subscribers from all sections. It has been made clear by learned Counsel appearing for the leading newspapers that it is not their intention to publish photographs which cater to the prurient interest. As already stated, they have an internal regulatory system to ensure no objectionable photographs or matters gets published. We are able to see that respondent Nos. 3 & 4 are conscious of their responsibility towards children but at the same time it would be inappropriate to deprive the adult population of the entertainment which is well within the acceptable levels of decency on the ground that it may not be appropriate for the children. An imposition of a blanket ban on the publication of certain photographs and news items etc. will lead to a situation where the newspaper will be publishing material which caters only to children and adolescents and the adults will be deprived of reading their share of their entertainment which can be permissible under the normal norms of decency in any society.
We are also of the view that a culture of 'responsible reading ' should be inculcated among the readers of any news article. No news item should be viewed or read in isolation. It is necessary that publication must be judged as a whole and news items, advertisements or passages should not be read without the accompanying message that is purported to be conveyed to the public. Also the members of the public and readers should not look for meanings in a picture or written article, which is not conceived to be conveyed through the picture or the news item.
We observe that, as decided by the American Supreme Court in United States v. Playboy
Entertainment Group that, “in order for the State to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Therefore, in our view, in the present matter, the petitioner has failed to establish his case clearly. The petitioner only states that the pictures and the news items that are published by the respondents 3 and 4 “leave much for the thoughts of minors”.
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Therefore, we believe that fertile imagination of anybody especially of minors should not be a matter that should be agitated in the court of law. In addition we also hold that news is not limited to Times of India and Hindustan Times. Any hypersensitive person can subscribe to many other Newspaper of their choice, which might not be against the standards of morality of the concerned person.
We, therefore, dismiss the writ petition but however observed that the request made by the
Press Council of India to amend the Section should be seriously looked into by the Government of India and appropriate amendments be made in public interest. No costs.
FREEDOM OF OCCUPATION
CHINTAMAN RAO V. STATE OF MADHYA PRADESH
AIR 1951 SC 118
Decided On: November 08, 1950
BENCH – CHIEF JUSTICE H. L. KANIA, JUSTICES M. C. MAHAJAN, MUKHERJEA, DAS & C.
AIYAR
JUSTICE MAHAJAN (for the Court)
These two applications for enforcement of the fundamental right guaranteed under article
19(1)(g) of the Constitution of India have been made by a proprietor and an employee respectively of a bidi manufacturing concern of District Sagar (State of Madhya Pradesh). It is contended that the law in force in the State authorizing it to prohibit the manufacture of bidis in certain villages including the one wherein the applicants reside is inconsistent with the provisions of Part III of the
Constitution and is consequently void.
The Central Provinces and Berar Regulation of Manufacture of Bidis (Agricultural Purposes)
Act, LXIV of 1948, was passed on 19th October 1948 and was the law in force in the State at the commencement of the Constitution. Sections 3 and 4 of the Act are in these terms:
3. The Deputy Commissioner may by notification fix a period to be an agricultural season with respect to such villages as may be specified therein.
4. (1) The Deputy Commissioner may, by general order which shall extend to such villages as he may specify, prohibit the manufacture of bidis during the agricultural season.
(2) No person residing in a village specified in such order shall during the agricultural season engage himself in the manufacture of bidis, and no manufacturer shall during the said season employ any person for the manufacture of bidis.
On the 13th June 1950 an order was issued by the Deputy Commissioner of Sagar under the provisions of the Act forbidding all persons residing in certain villages from engaging in the manufacture of bidis. On the 19th June 1950 these two petitions were presented to this Court under article 32 of the Constitution challenging the validity of the order as it prejudicially affected the petitioners ' right of freedom of occupation and business. During the pendency of the petitions the season mentioned in the order of the 13th June ran out. A fresh order for the ensuing agricultural season - 8th October to 18th November 1950 - was issued on 29th September 1950 in the same terms.
This order was also challenged in a supplementary petition.
… The point for consideration in these applications is whether the Central Provinces and Berar
Act LXIV of 1948 comes within the ambit of this saving clause or is in excess of its provisions.
The learned counsel for the petitioners contends that the impugned Act does not impose reasonable
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restrictions on the exercise of the fundamental right in the interests of the general public but totally negatives it. In order to judge the validity of this contention it is necessary to examine the impugned
Act and some of its provisions. In the preamble to the Act, it is stated that it has been enacted to provide measures for the supply of adequate labour for agricultural purposes in bidi manufacturing areas. Sections 3 and 4 cited above empower the Deputy Commissioner to prohibit the manufacture of bidis during the agricultural season. The contravention of any of these provisions is made punishable by section 7 of the Act, the penalty being imprisonment for a term which may extend to six months or with fine or with both. It was enacted to help in the grow more food campaign and for the purpose of bringing under the plough considerable areas of fallow land.
The question for decision is whether the statute under the guise of protecting public interests arbitrarily interferes with private business and imposes unreasonable and unnecessarily restrictive regulations upon lawful occupation; in other words, whether the total prohibition of carrying on the business of manufacture of bidis within the agricultural season amounts to a reasonable restriction on the fundamental rights mentioned in article 19(1)(g) of the Constitution. Unless it is shown that there is a reasonable relation of the provisions of the Act to the purpose in view, the right of freedom of occupation and business cannot be curtailed by it.
The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word "reasonable" implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19(1)(g) and the social control permitted by clause (6) of article 19, it must be held to be wanting in that quality.
Clause (6) in the concluding paragraph particularizes certain instances of the nature of the restrictions that were in the mind of the constitution-makers and which have the quality of reasonableness. They afford a guide to the interpretation of the clause and illustrate the extent and nature of the restrictions which according to the statute could be imposed on the freedom guaranteed in clause (g). The statute in sub-stance and affect suspends altogether the right mentioned in article 19(1)(g) during the agricultural seasons and such suspension may lead to such dislocation of the industry as to prove its ultimate ruin. The object of the statute is to provide measures for the supply of the adequate labour for agricultural purposes in bidi manufacturing areas of the Province and it could well be achieved by legislation restraining the employment of agricultural labour in the manufacture of bidis during the agricultural season. Even in point of time a restriction may well have been reasonable if it amounted to a regulation of the hours of work in the business. Such legislation though it would limit the field for recruiting persons for the manufacture of bidis and regulate the hours of the working of the industry, would not have amounted to a complete stoppage of the business of manufacture and might well have been within the ambit of clause (6).
The effect of the provisions of the Act, however, has no reasonable relation to the object in view but is so drastic in scope that it goes much in excess of that object. Not only are the provisions of the statute in excess of the requirements of the case but the language employed prohibits a manufacturer of bidis from employing any person in his business, no matter wherever that person may be residing. In other words, a manufacturer of bidis residing in this area cannot import labour from neighbouring places in the district or province or from outside the province. Such a prohibition on the face of it is of an arbitrary nature inasmuch as it has no relation whatsoever to the object which the legislation seeks to achieve and as such cannot be said to be a reasonable restriction on the exercise of the right. Further the statute seeks to prohibit all persons residing in the notified villages during the agricultural season from engaging themselves in the manufacture of bidis. It cannot be denied that there would be a number of infirm and disabled persons, a number
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of children, old women and petty shop keepers residing in these villages who are incapable of being used for agricultural labour. All such persons are prohibited by law from engaging themselves in the manufacture of bidis; and are thus being deprived of earning their livelihood. It is a matter of common knowledge that there are certain classes of persons residing in every village who do not engage in agricultural operations. They and their womenfolk and children in their leisure hours supplement their income by engaging themselves in bidi business. There seems no reason for prohibiting them from carrying on this occupation. The statute as it stands, not only compels those who can be engaged in agricultural work from not taking to other avocations, but it also prohibits persons who have no connection or relation to agricultural operations from engaging in the business of bidi making and thus earning their livelihood. These provisions of the statute, in our opinion, cannot be said to amount to reasonable restrictions on the right of the applicants and that being so, the statute is not in conformity with the provisions of Part III of the Constitution.
The law even to the extent that it could be said to authorize the imposition of restrictions in regard to agricultural labour cannot be held valid because the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative acting affecting the right. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.
Mr. Sikkri for the Government of Madhya Pradesh contends that the legislature of Madhya
Pradesh was the proper judge of the reasonableness of the restrictions imposed by the statute, that that legislature alone knew the conditions prevailing in the State and it alone could say what kind of legislation could effectively achieve the end in view and would help in the grow more food campaign and would help for bringing in fallow land under the plough and that this Court sitting at this great distance could not judge by its own yardstick of reason whether the restrictions imposed in the circumstances of the case were reasonable or not. This argument runs counter to the clear provisions of the Constitution. The determination by the legislature of what constitutes a reasonable restriction is not final or conclusive; it is subject to the supervision by this Court. In the matter of fundamental rights, the Supreme Court watches and guards the rights guaranteed by the
Constitution and in exercising its functions it has the power to set aside an Act of the Legislature of it is in violation of the freedoms guaranteed by the Constitution. We are therefore of opinion that the impugned statute does not stand the test of reasonableness and is therefore void.
The result therefore is that the orders issued by the Deputy Commissioner on 13th June 1950 and 26th September 1950 are void, inoperative and ineffective. We therefore direct the respondents not to enforce the provisions contained in section 4 of the Act against the petitioners in any manner whatsoever. The petitioners will have their costs of these proceedings in the two petitions.
Petitions allowed.
TMA PAI V. STATE OF KARNATAKA
AIR 2003 SC 355, (2002) 8 SCC 481
Decided On: November 25, 2002
BENCH – CHIEF JUSTICE B. N. KIRPAL, JUSTICES G. B. PATTANAIK, V. N. KHARE, S.
RAJENDRA BABU, SYED SHAH MOHAMMED QUADRI, RUMA PAL, S. N. VARIAVA, K. G.
BALAKRISHNAN, P. VENKATARAMA REDDI, ASHOK BHAN & ARIJIT PASAYAT
CHIEF JUSTICE KIRPAL (for himself, Justices Pattanaik, Babu, Balakrishnan, Reddi & Pasayat,
MAJORITY OPINION) [Justice Khare CONCURRING but wrote his separate opinion]
India is a land of diversity – of different castes, peoples, communities, languages, religions and culture. Although these people enjoy complete political freedom, a vast part of the multitude
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is illiterate and lives below the poverty line. The single most powerful tool for the upliftment and progress of such diverse communities is education. The state, with its limited resources and slowmoving machinery, is unable to fully develop the genius of the Indian people very often the impersonal education that is imparted by the state, devoid of adequate material content that will make the students self-reliant only succeeds in producing potential pen-pushers, as a result of which sufficient jobs are not available.
It is in this scenario where there is a lack of quality education and adequate number of schools and colleges that private educational institutions have been established by educationists, philanthropists and religious and linguistic minorities. Their grievance is that the necessary and unproductive load on their back in the form of governmental control, by way of rules and regulations, has thwarted the progress of quality education. It is their contention that the government must get off their back, and that they should be allowed to provide quality education uninterrupted by unnecessary rules and regulations, laid down by the bureaucracy for its own selfimportance. The private educational institutions, both aided and unaided, established by minorities and non-minorities, in their desire to break free of the unnecessary shackles put on their functioning as modern educational institutions and seeking to impart quality education for the benefit of the community for whom they were established, and others, have filed the present writ petitions and appeals asserting their right to establish and administer educational institutions of their choice unhampered by rules and regulations that unnecessarily impinge upon their autonomy.
… On behalf of all these institutions, the learned counsel have submitted that the Constitution provides a fundamental right to establish and administer educational institutions. With regard to non-minorities, the right was stated to be contained in Article 19(1)(g) and/or Article 26, while in the case of linguistic and religious minorities, the submission was that this right was enshrined and protected by Article 30. It was further their case that private educational institutions should have full autonomy in their administration. While it is necessary for an educational institution to secure recognition or affiliation, and for which purpose rules and regulations or conditions could be prescribed pertaining to the requirement of the quality of education to be provided, e.g., qualifications of teachers, curriculum to be taught and the minimum facilities which should be available for the students, it was submitted that the state should not have a right to interfere or lay down conditions with regard to the administration of those institutions. In particular, objection was taken to the nominations by the state on the governing bodies of the private institutions, as well as to provisions with regard to the manner of admitting students, the fixing of the fee structure and recruitment of teachers through state channels.
… On behalf of the private non-minority unaided educational institutions, it was contended that since secularism and equality were part of the basic structure of the
Constitution the provisions of the Constitution should be interpreted so that the right of the private non-minority unaided institutions were the same as that of the minority institutions. It was submitted that while reasonable restrictions could be imposed under Article 19(6), such private institutions should have the same freedom of administration of an unaided institution as was sought by the minority unaided institutions. …
IS THERE A FUNDAMENTAL RIGHT TO SET UP EDUCATIONAL INSTITUTION
AND IF SO, UNDER WHICH PROVISION?
… With regard to the establishment of educational institutions, three Articles of the
Constitution come into play. Article 19(1)(g) gives the right to all the citizens to practice any profession or to carry on any occupation, trade or business; this right is subject to restrictions that may be placed under Article 19(6). Article 26 gives the right to every religious denomination to establish and maintain an institution for religious purposes, which would
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include an educational institution. Article 19(1)(g) and Article 26, therefore, confer rights on all citizens and religious denominations to establish and maintain educational institutions.
There was no serious dispute that the majority community as well as linguistic and religious minorities would have a right under Article 19(1)(g) and 26 to establish educational institutions. In addition, Article 30(1), in no uncertain terms, gives the right to the religious and linguistic minorities to establish and administer educational institutions of their choice.
We will first consider the right to establish and administer an educational institution under
Article 19(1)(g) of the Constitution and deal with the right to establish educational institutions under Article 26 and 30 in the next part of the judgment while considering the rights of the minorities. Article 19(1)(g) employs four expressions, viz., profession, occupation, trade and business. Their fields may overlap, but each of them does have a content of its own. Education is per se regarded as an activity that is charitable in nature [State of Bombay v. R.M.D.
Chamarbaugwala AIR 1957 SC 699]. Education has so far not been regarded as a trade or business where profit is the motive. Even if there is any doubt about whether education is a profession or not, it does appear that education will fall within the meaning of the expression
"occupation". Article 19(1)(g) uses the four expressions so as to cover all activities of a citizen in respect of which income or profit is generated, and which can consequently be regulated under Article 19(6). In Webster 's Third New International Dictionary at page 1650,
"occupation" is, inter alia, defined as "an activity in which one engages" or "a craft, trade, profession or other means of earning a living".
In Corpus Juris Secundum, Volume LXVII, the word "occupation" is defined as under:The word "occupation" also is employed as referring to that which occupies time and attention; a calling; or a trade; and it is only as employed in this sense that the word is discussed in the following paragraphs.
There is nothing ambiguous about the word "occupation" as it is used in the sense of employing one 's time. It is a relative term, in common use with a wellunderstand meaning, and very broad in its scope and significance. It is described as a generic and very comprehensive term, which includes every species of the genus, and compasses the incidental, as well as the main, requirements of one 's vocation, calling, or business. The word "occupation" is variously defined as meaning the principal business of one 's life; the principal or usual business in which a man engages; that which principally takes up one 's time, thought, and energies; that which occupies or engages the time and attention; that particular business, profession, trade, or calling which engages the time and efforts of an individual; the employment in which one engages, or the vocation of one 's life; the state of being occupied or employed in any way; that activity in which a person, natural or artificial, is engaged with the element of a degree of permanency attached.
A Five Judge Bench in Sodan Singh v. New Delhi Municipal Committee [1989] 3 SCR
1038 at page 174, para 28, observed as follows:
The word occupation has a wide meaning such as any regular work, profession, job, principal activity, employment, business or a calling in which an individual is engaged. … The object of using four analogous and overlapping words in
Article 19(1)(g) is to make the guaranteed right as comprehensive as possible to include all the avenues and modes through which a man may earn his livelihood.
In a nutshell the guarantee takes into its fold any activity carried on by a citizen of India to earn his living.
In Unni Krishnan … while referring to education, it was observed as follows:
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"It may perhaps fall under the category of occupation provided no recognition is sought from the State or affiliation from the University is asked on the basis that it is a fundamental right."
While the conclusion that "occupation" comprehends the establishment of educational institutions is correct, the proviso in the aforesaid observation to the effect that this is so provided no recognition is sought from the state or affiliation from the concerned university is, with the utmost respect, erroneous. The fundamental right to establish an educational institution cannot be confused with the right to ask for recognition of affiliation. The exercise of a fundamental right may be controlled in a variety of ways. For example, the right to carry on a business does not entail the right to carry on a business at a particular place. The right to carry on a business may be subject to licensing laws so that a denial of the licence presents a person from carrying on that particular business. The question of whether there is a fundamental right or not cannot be dependent upon whether it can be made the subject matter of controls.
The establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff, and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is no element of profit generation. It is difficult to comprehended that education, per se, will not fall under any of the four expressions in Article 19(1)(g).
"Occupation" would be an activity of a person undertaken as a means of livelihood or a mission in life. The above quoted observations in Sodan Singh correctly interpret the expression "occupation" in Article 19(1)(g). …
IN CASE OF PRIVATE INSTITUTIONS, CAN THERE BE GOVERNMENT
REGULATIONS AND, IF SO, TO WHAT EXTENT?
Private Unaided Non-Minority Educational Institutions
Private education is one of the most dynamic and fastest growing segments of postsecondary education at the turn of the twenty-first century. A combination of unprecedented demand for access to higher education and the inability or unwillingness of government to provide the necessary support has brought private higher education to the forefront. Private institutions, with a long history in many countries, are expanding in scope and number, and are becoming increasingly important in parts of the world that relied almost entirely on the public sector.
Not only has demand overwhelmed the ability of the governments to provide education, there has also been a significant change in the way that higher education is perceived. The idea of an academic degree as a "private good" that benefits the individual rather than a "public good" for society is now widely accepted. The logic of today 's economics and an ideology of privatization have contributed to the resurgence of private higher education, and the establishing of private institutions where none or very few existed before.
The right to establish and administer broadly comprises of the following rights:a)
b)
c)
d)
e)
to admit students: to set up a reasonable fee structure: to constitute a governing body; to appoint staff (teaching and non-teaching); and to take action if there is dereliction of duty on the part of any employees.
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A University Education Commission was appointed on 4th November, 1948, having Dr.
S. Radhakrishnan as its Chairman and nine other renowned educationists as its members. The terms of reference, inter alia, included matters relating to means and objects of university education and research in India and maintenance of higher standards of teaching and examining in universities and colleges under their control. In the report submitted by this
Commission, in paras 29 and 31, it referred to autonomy in education which reads as follows:University Autonomy. -- Freedom of individual development is the basis of democracy. Exclusive control of education by the State has been an important factor in facilitating the maintenance of totalitarian tyrannies. In such States institutions of higher learning controlled and managed by governmental agencies act like mercenaries, promote the political purposes of the State, make them acceptable to an increasing number of their populations and supply then with the weapons they need. We must resist, in the interests of our own democracy, the trend towards the governmental domination of the educational process.
Higher educational is, undoubtedly, an obligation of the State but State aid is not to be confused with State control over academic policies and practices.
Intellectual progress demands the maintenance of the spirit of free inquiry. The pursuit and practice of truth regardless of consequences has been the ambition of universities. Their prayer is that of the dying Goethe: "More light," or that Ajax in the mist "Light, though I perish in the light. xxx xxx xxx
The respect in which the universities of Great Britain are held is due to the freedom from governmental interference which they enjoy constitutionally and actually. Our universities should be released from the control of politics.
Liberal Education. -- All education is expected to be liberal. It should free us from the shackles of ignorance, prejudice and unfounded belief. If we are incapable of achieving the good life, it is due to faults in our inward being, to the darkness in us. The process of education is the slow conquering of this darkness.
To lead us from darkness to light, to free us from every kind of domination except that of reason, is the aim of education.
There cannot be a better exposition than what has been observed by these renowned educationists with regard to autonomy in education. The aforesaid passage clearly shows that the governmental domination of the educational process must be resisted. Another pithy observation of the Commission was that state aid was not to be confused with state control over academic policies and practices. The observations referred to hereinabove clearly contemplate educational institutions soaring to great heights in pursuit of intellectual excellence and being free from unnecessary governmental controls.
With regard to the core components of the rights under Article 19 and 26(a), it must be held that while the state has the right to prescribe qualifications necessary for admission, private unaided colleges have the right to admit students of their choice, subject to an objective and rational procedure of selection and the compliance of conditions, if any, requiring admission of a small percentage of students belonging to weaker sections of the society by granting them freeships or scholarships, if not granted by the Government. Furthermore, in setting up a reasonable fee structure, the element of profiteering is not as yet accepted in Indian conditions. The fee structure must take into consideration the need to generate funds to be utilized for the betterment and growth of the educational institution, the betterment of education in that institution and to provide facilities necessary for the benefit of the students.
In any event, a private institution will have the right to constitute its own governing body, for which qualifications may be prescribed by the state or the concerned university. It will, however, be objectionable if the state retains the power to nominate specific individuals on governing bodies. Nomination by the state, which could be on a political basis, will be an
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inhibiting factor for private enterprise to embark upon the occupation of establishing and administering educational institutions. For the same reasons, nomination of teachers either directly by the department or through a service commission will be an unreasonable inroad and an unreasonable restrictions on the attorney of the private unaided educational institution.
The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a government body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions. The Constitution recognizes the right of the individual or religious denomination, or a religious or linguistic minority to establish an educational institution. If aid or financial assistance is not sought, then such institution will be a private unaided institution. Although, in Unni Krishnan 's case, the Court emphasized the important role played by private unaided institutions and the need for private funding, in the scheme that was framed, restrictions were placed on some of the important ingredients relating to the functioning of an educational institution. There can be no doubt that in seeking affiliation or recognition, the Board or the university or the affiliating or recognizing authority can lay down conditions consistent with the requirement to ensure the excellence of education. It can, for instance, indicate the quality of the teachers by prescribing the minimum qualifications that they must possess, and the courses of study and curricula. It can, for the same reasons, also stipulate the existence of infrastructure sufficient for its growth, as a pre-requisite. But the essence of a private educational institution is the autonomy that the institution must have in its management and administration. There, necessarily, has to be a difference in the administration of private unaided institutions and the government-aided institutions. Whereas in the latter case, the
Government will have greater say in the administration, including admissions and fixing of fees, in the case of private unaided institutions, maximum autonomy in the day-to-day administration has to be with the private unaided institutions. Bureaucratic or governmental interference in the administration of such an institution will undermine its independence.
While an educational institution is not a business, in order to examine the degree of independence that can be given to a recognized educational institution, like any private entity that does not seek aid or assistance from the Government, and that exists by virtue of the funds generated by it, including its loans or borrowings, it is important to note that the essential ingredients of the management of the private institution include the recruiting students and staff, and the quantum of fee that is to be charged.
An educational institution is established for the purpose of imparting education of the type made available by the institution. Different courses of study are usually taught by teachers who have to be recruited as per qualifications that may be prescribed. It is no secret that better working conditions will attract better teachers. More amenities will ensure that better students seek admission to that institution. One cannot lose sight of the fact that providing good amenities to the students in the form of competent teaching faculty and other infrastructure costs money. It has, therefore, to be left to the institution, if it chooses not to seek any aid from the government, to determine the scale of fee that it can charge from the students. One also cannot lose sight of the fact that we live in a competitive world today, where professional education is in demand. We have been given to understand that a large number of professional and other institutions have been started by private parties who do not seek any governmental aid. In a sense a prospective students has various options open to him/her where, therefore, normally economic forces have a role to play. The decision on the fee to be charged must
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necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the government.
We, however, wish to emphasize one point, and that is that inasmuch as the occupation of education is, in a sense, regarded as charitable, the government can provide regulations that will ensure excellence in education, while forbidding the charging of capitation fee and profiteering by the institution. Since the object of setting up an educational institution is by definition "charitable", it is clear that an educational institution cannot charge such a fee as is not required for the purpose of fulfilling that object. To put it differently, in the establishment of an educational institution, the object should not be to make a profit, inasmuch as education is essentially charitable in nature. There can, however, be a reasonable revenue surplus, which may be generated by the educational institution for the purpose of development of education and expansion of the institution.
For admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants.
Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies.
Education is taught at different levels from primary to professional. It is, therefore, obvious that government regulations for all levels or types of educational institutions cannot be identical; so also, the extent of control or regulation could be greater vis-à-vis aided institutions. In the case of unaided private schools, maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged. At the school level, it is not possible to grant admission on the basis of merit. It is no secret that the examination results at all levels of unaided private schools, notwithstanding the stringent regulations of the governmental authorities, are far superior to the results of the government-maintained schools. There is no compulsion on students to attend private schools. The rush for admission is occasioned by the standards maintained in such schools, and recognition of the fact that state-run schools do not provide the same standards of education. The State says that it has no funds to establish institutions at the same level of excellence as private schools. But by curtaining the income of such private schools, it disables those schools from affording the best facilities because of a lack of funds. If this lowering of standards from excellence to a level of mediocrity is to be avoided, the state has to provide the difference which, therefore, brings us back in a vicious circle to the original problem, viz., the lack of state funds. The solution would appear to lie in the States not using their scanty resources to prop up institutions that are able to otherwise maintain themselves out of the fees charged, but in improving the facilities and infrastructure of state-run schools and in subsidizing the fees payable by the students there. It is in the interest of the general public that more good quality schools are established; autonomy and nonregulation of the school administration in the right of appointment, admission of the students
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and the fee to be charged will ensure that more such institutions are established. The fear that if a private school is allowed to charge fees commensurate with the fees affordable, the degrees would be "purchasable" is an unfounded one since the standards of education can be and are controllable through the regulations relating to recognition, affiliation and common final examinations. There is a need for private enterprise in non-professional college education as well. At present, insufficient number of undergraduate colleges are being and have been established, one of the inhibiting factors being that there is a lack of autonomy due to government regulations. It will not be wrong to presume that the numbers of professional colleges are growing at a faster rate than the number of undergraduate and non-professional colleges.
While it is desirable that there should be a sufficient number of professional colleges, it should also be possible for private unaided undergraduate colleges that are non-technical in nature to have maximum autonomy similar to a school.
It was submitted that for maintaining the excellence of education, it was important that the teaching faculty and the members of the staff of any educational institution performed their duties in the manner in which it is required to be done, according to the rules or instructions. There have been cases of misconduct having been committed by the teachers and other members of the staff. The grievance of the institution is that whenever disciplinary action is sought to be taken in relation to such misconduct, the rules that are normally framed by the government or the university are clearly loaded against the Management. It was submitted that in some cases, the rules require the prior permission of the governmental authorities before the intimation of the disciplinary proceeding, while in other cases, subsequent permission is required before the imposition of penalties in the case of proven misconduct. While emphasizing the need for an independent authority to adjudicate upon the grievance of the employee or the Management in the event of some punishment being imposed, it was submitted that there should be no role for the government or the university to play in relation to the imposition of any penalty on the employee.
An educational institution is established only for the purpose of imparting education to the students. In such an institution, it is necessary for all to maintain discipline and abide by the rules and regulations that have been lawfully framed. The teachers are like foster-parents who are required to look after, cultivate and guide the students in their pursuit of education.
The teachers and the institution exist for the students and not vice versa. Once this principle is kept in mind, it must follow that it becomes imperative for the teaching and other staff of an educational institution to perform their duties properly, and for the benefit of the students.
Where allegations of misconduct are made, it is imperative that a disciplinary enquiry is conducted, and that a decision is taken. In the case of a private institution, the relationship between the Management and the employees is contractual in nature. A teacher, if the contract so provides, can be proceeded against, and appropriate disciplinary action can be taken if the misconduct of the teacher is proved. Considering the nature of the duties and keeping the principle of natural justice in mind for the purposes of establishing misconduct and taking action thereon, it is imperative that a fair domestic enquiry is conducted. It is only on the basis of the result of the disciplinary enquiry that the management will be entitled to take appropriate action. We see no reason why the Management of a private unaided educational should seek the consent or approval of any governmental authority before taking any such action. In the ordinary relationship of master and servant, governed by the terms of a contract of employment, anyone who is guilty of breach of the terms can be proceeded against and appropriately relief can be sought. Normally, the aggrieved party would approach a court of law and seek redress. In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking
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redress is not in the interest of general education. Disputes between the management and the staff of educational institutions must be decided speedily, and without the excessive incurring of costs. It would, therefore, be appropriate that an educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an educational tribunal in a State -- the object being that the teacher should not suffer through the substantial costs that arise because of the location of the tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings in different districts to achieve this objective. Till a specialized tribunal is set up, the right of filing the appeal would lie before the District Judge or Additional District Judge as notified by the government. It will not be necessary for the institution to get prior permission or ex post facto approval of a governmental authority while taking disciplinary action against a teacher or any other employee. The State
Government shall determine, in consultation with the High Court, the judicial forum in which an aggrieved teacher can file an appeal against the decision of the management concerning disciplinary action or termination of service.
The reputation of an educational institution is established by the quality of its faculty and students, and the educational and other facilities that the colleges has to offer. The private educational institutions have a personality of their own, and in order to maintain their atmosphere and traditions, it is but necessary that they must have the right to choose and select the students who can be admitted to their courses of studies. If is for this reason that in the St.
Stephen 's College case, this Court upheld the scheme whereby a cut-off percentage was fixed for admission, after which the students were interviewed and thereafter selected. While an educational institution cannot grant admission on its whims and fancies, and must follow some identifiable or reasonable methodology of admitting the students, any scheme, rule or regulation that does not give the institution the right to reject candidates who might otherwise be qualified according to say their performance in an entrance test, would be an unreasonable restriction under Article 19(6), though appropriate guidelines/modalities can be prescribed for holding the entrance test a fair manner. Even when students are required to be selected on the basis of merit, the ultimate decision to grant admission to the students who have otherwise qualified for the grant of admission must be left with the educational institution concerned.
However, when the institution rejects such students, such rejection must not be whimsical or for extraneous reasons.
In the case of private unaided educational institution, the authority granting recognition or affiliation can certainly lay down conditions for the grant of recognition or affiliation; these conditions must pertain broadly to academic and educational matters and welfare of students and teachers - but how the private unaided institutions are to run is a matter of administration to be taken care of by the Management of those institutions.
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Q.10 Whether the non-minorities have the right to establish and administer educational institution under Article 21 and 29(1) read with Articles 14 and15(1), in the same manner and to the same extent as minority institutions? And Q.11 What is the meaning of the expressions
"Education" and "Educational Institutions" in various provisions of the Constitution? Is the right to establish and administer educational institutions guaranteed under the Constitution?
A. The expression "education" in the Articles of the Constitution means and includes education at all levels from the primary school level up to the post-graduate level. It includes professional education. The expression "educational institutions" means institutions that impart education, where "education" is as understood hereinabove.
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The right to establish and administer educational institutions is guaranteed under the
Constitution to all citizens under Articles 19(1)(g) and26, to minorities specifically under
Article 30.
All citizens have a right to establish and administer educational institutions under Articles
19(1)(g) and 26, but this right is subject to the provisions of Articles 19(6) and 26(a). However, minority institutions will have a right to admit students belonging to the minority group, in the manner as discussed in this judgment.
FREEDOM OF MOVEMENT
DR. N. B. KHARE V. STATE OF DELHI
AIR 1950 SC 21
Decided On: May 26, 1950
BENCH – CHIEF JUSTICE H. L. KANIA, JUSTICES S. FAZL ALI, PATANJALI SASTRI, M. C.
MAHAJAN & MUKHERJEA
CHIEF JUSTICE KANIA (for himself; Justices Fazl Ali & Sastri CONCURRING, MAJORITY OPINION)
This is an application for a writ of Certiorari and prohibition under article 32 of the
Constitution of India.
The petitioner who is the President of the All India Hindu Mahasabha since December, 1949 was served with an order of externment dated the 31st of March, 1950, that night. By that order he is directed by the District Magistrate, Delhi, not to remain in the Delhi District, and immediately to remove himself from the Delhi District and not to return to the District. The order was to continue in force for three months. By another order of the Madhya Bharat Government he was directed to reside in Nagpur. That order has been recently cancelled. The petitioner disputes the validity of the first order on the ground that the East Punjab Public Safety Act, 1949, under which the order was made, is an infringement of his fundamental right given under article 19(1)(d) of the
Constitution of India. He further contends that the grounds of the order served on him are vague, insufficient and incomplete. According to him the object of the externment order passed by the
District Magistrate, Delhi, was to suppress political opposition to the policy of the Government in respect of Pakistan and the Muslim League. It is alleged that because the petitioner and the Hindu
Mahasabha are against the Government policy of appeasement this order is served on him. It is therefore mala fide and illegal. In support of his contention about the invalidity of the East Punjab
Safety Act and its provisions as regards externment, counsel for the petitioner relied on the recent unreported judgments of the Patna High Court in Miscellaneous Judicial Case No. 29 of 1950,
Brijnandan v. State of Bihar, and of the High Court of Bombay in Criminal Application No. 114 of 1950, re Jaisinghbhai Ishwarlal Modi.
It is necessary first to ascertain the true meaning of article 19(1)(d) read with clause (5) of the same article. There is no doubt that by the order of externment the right of the petitioner to freedom of movement throughout the territory of India is abridged. The only question is whether the limits of permissible legislation under clause (5) are exceeded.
… It is clear that the clause permits imposition of reasonable restrictions on the exercise of the right conferred by sub-clause (d) in the interests of the general public. The rest of the provision of clause (5) is not material and neither side relies on it. Two interpretations of the clause are put before the Court. It is argued that grammatically understood the only question before the Court is
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whether the impugned legislation imposes reasonable restrictions on the exercise of the right. To put it in other words, the only justifiable issue to be decided by the Court is whether the restrictions imposed by the legislation on the exercise of the right are reasonable. If those restrictions on the exercise of the right are reasonable, the Court has not to consider whether the law, imposing the restrictions is reasonable. The other interpretation is that while the Constitution permits a law laying down reasonable restrictions on the exercise of the rights mentioned in sub-clause 19(1)(d), the reasonableness has to be of the law also. It is submitted that in deciding whether the restrictions, on the exercise of the right are reasonable, the Court has to decide not only on the extent and nature of the restrictions on the exercise of the right but also as to whether the conditions under which the right is restricted are reasonable. The majority judgments of the Patna and the Bombay High
Courts, although the impugned Acts of the State Legislatures before them were materially different on certain important points, have given clause (5) of article 19 the latter meaning.
In my opinion, clause (5) must be given its full meaning. The question which the Court has to consider is whether the restrictions put by the impugned legislation on the exercise of the right are reasonable or not. The question whether the provisions of the Act provide reasonable safeguards against the abuse of the power given to the executive authority to administer the law is not relevant for the interpretation of the clause. The Court, on either interpretation, will be entitled to consider whether the restrictions on the right to move throughout India, i.e., both as regards the territory and the duration, are reasonable or not. The law providing reasonable restrictions on the exercise of the right conferred by article 19 may contain substantive provisions as well as procedural provisions. While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law. It is obvious that if the law prescribes five years externment or ten years externment, the question whether such period of externment is reasonable, being the substantive part, is necessarily for the consideration of the court under clause
(5). Similarly, if the law provides the procedure under which the exercise of the right may be restricted, the same is also for the consideration of the Court, as it has to determine if the exercise of the right has been reasonably restricted. I do not think by this interpretation the scope and ambit of the word "reasonable" as applied to restrictions on the exercise of the right, is in any way unjustifiably enlarged. It seems that the narrow construction sought to be put on the expressions, to restrict the Court 's power to consider only the substantive law on the point, is not correct. In my opinion this aspect of the construction of article 19(5) has escaped the minority judgment in the two matters mentioned above. I am not concerned with the conclusions of the two Courts about the invalidity of the provisions of the Acts they were asked to consider. To the extent they help in the interpretation of article 19(5) only they are helpful.
The next question is whether the impugned Act contains reasonable restrictions on the exercise of the right given under article 19(1)(d) of (e). It was argued on behalf of the petitioner that under section 4 the power to make the order of externment was given to the Provincial Government or the District Magistrate, whose satisfaction was final. That decision was not open to review by the
Court. On that ground it was contended that there was an unreasonable restriction on the exercise of the citizen 's right. In my opinion, this argument is unsound. This is not legislative delegation.
The desirability of passing an individual order of externment against a citizen has to be left to an officer. In the Act such a provision cannot be made. The satisfaction of the officer thus does not impose an unreasonable restriction on the exercise of the citizen 's right. So far as the Bombay High
Court is concerned Chagla C.J. appears to have decided this point against the contention of the petitioner. It was next urged that under section 4(3) the order made by the District Magistrate shall not, unless the Provincial Government by special order otherwise direct, remain in force for more than three months. It was argued that the period of three months itself was unreasonable as the externee
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had no remedy during that time. It was contended that when the Provincial Government directed the renewal of the order no limit of time was prescribed by the legislature for the duration of the order. The order therefore can be in operation for an indefinite period. This was argued to be an unreasonable restriction on the exercise of a citizen 's right. In this connection it may be pointed out that in respect of preventive detention, which is a more severe restriction on the right of the citizen, the Constitution itself under article 22(4) to (7) permits preventive detention for three months without any remedy. The period of three months therefore prima facie does not appear unreasonable. Under the proviso to section 4(5) the Provincial Government is not permitted to direct the exclusion or removal from the Province of a person ordinarily residing in the Province, and similarly the District Magistrate is not permitted to order the exclusion or removal of a person ordinarily resident in his district from that district. This is a great safeguard provided under the
East Punjab Public Safety Act. The further extension of the externment order beyond three months may be for an indefinite period, but in that connection the fact that the whole Act is to remain in force only up to the 14th August, 1951, cannot be overlooked. Moreover, this whole argument is based on the assumption that the Provincial Government when making the order will not perform its duty and may abuse the provisions of the section. In any opinion it is improper to start with such as assumption and decide the legality of an Act on that basis. Abuse of the power given by a law sometimes occurs; but the validity of the law cannot be contested because of such an apprehension. In any opinion, therefore, this contention of the petitioner cannot be accepted.
It was next argued that there is no provision in the Act for furnishing grounds of externment to the citizen. Section 4(6) provides that when an externment order has been made its grounds may be communicated to the externee by the authority making the order and in any case when the order is to be enforced for more than three months he shall have a right of making a representation which shall be referred to the advisory tribunal constituted under section 3(4). While the word "may" ordinarily conveys the idea of a discretion and not compulsion, reading it with the last part of the clause it seems that when an externment order has to be enforced for more than three months an absolute right is given to the externee to make a representation. He cannot make a representation unless he has been furnished grounds for the order. In no other part of the Act a right to obtain the grounds for the order in such a case is given to him. Therefore, that right has to be read as given under the first part of section 4(6). That can be done only by reading the word "may" for that purpose as having the meaning of "shall". If the word "may" has to be so read for that purpose, it appears to be against the well recognised canons of construction to read the same "may" as having a different meaning when the order is to be in force for less than three months. I do not think in putting the meaning of "shall" on "may" in the clause, I am unduly straining the language used in the clause. So read this argument must fail.
It was next argued that there is no provision in the Act showing what the advisory board has to do when it receives a representation. A reference to the advisory board necessarily implies a consideration of the case by such board. The absence of an express statement to that effect in the impugned Act does not invalidate the Act.
It was finally contended on behalf of the petitioner that the grounds for the externment order supplied to him are vague, insufficient and incomplete. The grounds are stated as follows:Your activities generally and particularly since the recent trouble in East and West
Bengal have been of a communal nature tending to excite hatred between communities and whereas in the present composition of the population of Delhi and the recent communal disturbances of Delhi feelings are roused between the majority and minority communities your presence and activities in Delhi are likely to prove prejudicial to the maintenance of law and order, it is considered necessary to order you to leave Delhi.
These grounds cannot be described as vague, insufficient or incomplete. It is expressly stated that the activities of the petitioner, who is the President of the Hindu Mahasabha, since the recent
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disturbances between two communities in the East and West Bengal have particularly been of a communal nature which excites hatred between the communities. It is further stated that having regard to the recent disturbance in Delhi, the population of which is composed of both these communities, the excitement of such hatred is likely to dangerous to the peace and maintenance of law and order. Apart from being vague, I think that these grounds are specific and if honestly believed can support the order. The argument that the order was served to stifle opposition to the
Government policy of appeasement has little bearing because the District Magistrate of Delhi is not concerned with the policy of the Government of appeasement or otherwise. The order is made because the activities of the petitioner are likely to prove prejudicial to the maintenance of law and order and the grounds specified have a direct bearing on that conclusion of the District Magistrate.
I therefore think this contention of the petitioner must be rejected.
The result is that the petition fails and is dismissed.
JUSTICE MUKHERJEA (FOR HIMSELF; JUSTICE MAHAJAN CONCURRING)
This is an application under article 32 of the Constitution, praying for quashing of an externment order made by the District Magistrate of Delhi, against the petitioner Dr. N. B. Khare, on 31st March, 1950, by which the latter was directed to remove himself immediately from the
Delhi District and not to return to that District, so long as the order remained in force. The order is for three months at present. Complaint was also made in the petition in respect of another and a subsequent order passed by the Government of Madhya Bharat which was served on the petitioner on his way to Nagpur and which directed him to reside within the limits of the Nagpur Municipality and not to leave that area without the permission of the District Magistrate of that place. This order of the Government of Madhya Bharat, we are told, has since been withdrawn and we are not concerned with that order or the Act under which it was passed in the present proceeding.
The substantial contention raised on behalf of the petitioner is that the particular provision of the East Punjab Public Safety Act, 1949, under which the District Magistrate of Delhi purported to make the externment order, became void and ceased to be operative after the new Constitution came into force, by reason of these provisions being inconsistent with the fundamental rights guaranteed under article 19(1)(d) of the Constitution read with clause (5) of the same article. The argument is that any order passed under such void legislative provisions must necessarily be void and of no effect in law.
In order to appreciate the merits of this contention, it may be convenient to advert to the material provisions of the East Punjab Public Safety Act which are alleged to have become void as well as to the articles of the Constitution, upon which reliance has been placed by the learned counsel for the petitioner.
The East Punjab Public Safety Act came into force on 29th March, 1949, and its object, as stated in the preamble, is to provide for special measures to ensure public safety and maintenance of public order. Section 4(1) of the Act provides:
The Provincial Government or the District Magistrate, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary so to do, may, by order in writing, give anyone or more of the following directions, namely that such person…
(c) shall remove himself from, and shall not return to, any area that may be specified in the order.
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Sub-section (3) of the section lays down that
An order under sub-section (1) made by the District Magistrate shall not, unless the Provincial Government by special order otherwise directs, remain in force for more than three months from the making thereof.
The contention of the petitioner is that the restrictive provisions mentioned above, under which a person could be removed from a particular area or prohibited from returning to it are inconsistent with the fundamental right guaranteed by article 19(1)(d) of the Constitution under which all citizens shall have the right "to move freely throughout the territory of India." This right indeed is not absolute and the extent to which it could be curtailed by legislation is laid down in clause (5) of article 19 …
Thus the primary question which requires consideration is, whether the impugned legislation which apparently seems to be in conflict with the fundamental right enunciated in article 19(1)(d) of the Constitution is protected by clause (5) of the article, under which a law would be valid if it imposes reasonable restrictions on the exercise of the right in the interests of the general public. It is not disputed that the question of reasonableness is a justifiable matter which has to be determined by the Court. If the Courts hold the restrictions imposed by the law to be reasonable, the petitioner would certainly have no remedy. If, on the other hand, they are held to be unreasonable, article
13(1) of the Constitution imposes a duty upon the Court to pronounce the law to be invalid to the extent that it is inconsistent with the fundamental rights guaranteed under Part III of the
Constitution.
It has been urged, though somewhat faintly, by the learned Attorney-General that the right of free movement throughout the Indian territory as enunciated in article 19(1)(d) of the Constitution contemplates nothing else but absence of inter-State restrictions, which might prevent citizens of the Indian Union from moving from one State to another. A law which does not impose barriers of this kind, it is said, cannot be inconsistent with the fundamental right secured by this clause.
Such a restricted interpretation is, in my opinion, not at all warranted by the language of the subclause. What article 19(1)(d) of the Constitution guarantees is the free right of all citizens to go wherever they like in the Indian territory without any kind of restriction whatsoever. They can move not merely from one State to another but from one place to another within the same State and what the Constitution lays stress upon is that the entire Indian territory is one unit so far as the citizens are concerned. Clause (c) of section 4(1) of the East Punjab Public Safety Act, 1949, authorises the Provincial Government or the District Magistrate to direct any person to remove himself from any area and prohibit him from entering the same. On the face of it such provision represents an interference with the fundamental right guaranteed by article 19(1)(d) of the
Constitution. The controversy, therefore, narrows down to this, whether the impugned legislation is saved by reason of its being with the permissible limits prescribed by clause (5) of article 19.
With regard to clause (5), the learned Attorney-General points out at the outset that the word
"reasonable" occurring in the clause qualifies "restriction" and not "law". It is argued that in applying the clause, all that we have to see is whether the restrictions that are imposed upon the exercise of the right by law are reasonable or not and we have not to enquire into the reasonableness or otherwise of the law itself. The reasonableness of the restrictions can be judged, according to the learned Attorney-General from the nature of the restrictions themselves and not from the manner in which or the authorities by which they are imposed. The question whether the operation of the law produces hardship in individual cases is also a matter which is quite irrelevant to our enquiry. I do agree that in clause (5) the adjective 'reasonable ' is predicated of the restrictions that are imposed by law and not of the law itself; but that does not mean that in deciding the reasonableness or otherwise of the restrictions, we have to confine ourselves to an examination of the restrictions in the abstract with reference merely to their duration or territorial extent, and that it is beyond our
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province to look up to the circumstances under which or the manner in which the restrictions have been imposed. It is not possible to formulate an effective test which would enable us to pronounce any particular restriction to be reasonable or unreasonable per se. All the attendant circumstances must be taken into consideration and one cannot dissociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice. The question of reasonableness of the restrictions imposed by a law may arise as much from the substantive part of the law as from its procedural portion. Thus, although I agree with the learned Attorney-General that the word "reasonable" in clause (5) of article 19 goes with "restrictions" and not with "law", I cannot accept his suggestion as regards the proper way of determining the reasonableness of the restrictions which a legislation might impose upon the exercise of the right of free movement.
Coming now to the provisions of the impugned Act, Mr. Banerjee 's main contention is that section 4(1)(c) of the East Punjab Public Safety Act, which provides for passing of orders removing a person from a particular area, on the satisfaction of the Provincial Government or the
District Magistrate, cannot be a reasonable piece of legislation inasmuch as the only pre-requisite for imposition of the restrictions is the personal satisfaction of certain individuals or authorities, the propriety or reasonableness of which cannot be tested by the application of any external rule or standard. It is said that any law which places the liberty of a subject at the mercy of an executive officer, however high placed he might be and whose action cannot be reviewed by a judicial tribunal, is an arbitrary and not a reasonable exercise of legislative powers. The contention requires careful examination.
It is not disputed that under clause (5) of article 19, the reasonableness of a challenged legislation has to be determined by a Court and the Court decides such matters by applying some objective standard which is said to be the standard of an average prudent man. Judged by such standard which is sometimes described as an external yard-stick, the vesting of authority in particular officers to take prompt action under emergent circumstances, entirely on their own responsibility or personal satisfaction, is not necessarily unreasonable. One has to take into account the whole scheme of the legislation and the circumstances under which the restrictive orders could be made. The object of East Punjab Public Safety Act is to provide for special measures to ensure public safety and maintenance of public order. Under section 4(1)(c) of the Act, the Provincial
Government or the District Magistrate may make an order directing the removal of a certain person from a particular area, if they are satisfied that such order is necessary to prevent such person from acting in any way prejudicial to public safety or maintenance of public order. Preventive orders by their very nature cannot be made after any judicial enquiry or trial. If emergent steps have got to be taken to prevent apprehended acts which are likely to jeopardise the interests or safety of the public, somebody must be given the power of taking the initial steps on his own responsibility; and no reasonable objection could be taken if the authority, who is given the power, is also entrusted with the responsibility of maintaining order and public peace in any particular district or province. The preventive provisions of the Criminal Procedure Code are based on similar principle.
In my opinion, therefore, the provision of section 4(1)(c) of the East Punjab Public Safety Act cannot be pronounced to be unreasonable, simply because the order could be passed by the
Provincial Government or the District Magistrate on their own personal satisfaction and not on materials which satisfy certain objective tests.
But though certain authorities can be invested with powers to make the initial orders on their own satisfaction in cases of this description, the position would certainly be different if the order thus made is allowed to continue for any indefinite period of time without giving the aggrieved person an opportunity to say what he has got to say against the order. I have already set out the provisions of sub-section (3) of section 4 which deals with duration of the orders made under the various clauses of sub-section (1). It will be seen from this sub-section that there is absolutely no limit as to the period of time during which an externment order would remain in force if the order
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is made by the Provincial Government. The Provincial Government has been given unlimited authority in this respect and they can keep the order in force as long as they chose to do so. As regards orders made by a District Magistrate, the period indeed has been fixed at three months, but even here the Provincial Government is competent to extend it to any length of time by means of a special order. The law does not fix any maximum period beyond which the order cannot continue; and the fact that the Act itself would expire in August, 1951, is, in my opinion not a relevant matter for consideration in this connection at all. I have no hesitation in holding that the provision of subsection (3) of section 4 is manifestly unreasonable and cannot be supported on any just ground.
One could understand that the exigencies of circumstances might justify the vesting of plenary powers on certain authorities which could pass orders on their own personal satisfaction temporarily and for a short period of time; but if these orders are to continue indefinitely, it is only fair that an opportunity should be given to the person against whom such order is made to say what he has to say in answer to the allegations made against him. There may not be an investigation by a regular Court but it is necessary that the aggrieved person should be given a fair hearing and that by an impartial tribunal. The provision of the impugned Act which has bearing on this point is contained in sub-section (6) of section 4 and it runs as follows:
When an order has been made in respect of any person under any of the clauses under section 4, sub-section (1), or sub-section (2) the grounds of it may be communicated to him by the authority making the order and in any case, when the order is to be in force for more than three months, he shall have a right of making a representation which shall be referred to the Advisory Tribunal, constituted under section 3, sub-section (4).
It will be noted that the first part of the sub-section makes it entirely optional with the authorities to communicate the grounds, upon which the order is made, to the person affected by it. The grounds need not be communicated at all if the authorities so desire. As regards the right of representation the latter part of the sub-section seems to imply that when the order is to remain in force for more than three months, the right of representation should be given to the aggrieved person and the representation shall be referred for consideration to the advisory tribunal constituted under section 3, sub-section (4), of the Act. The right, however, is purely illusory as would appear from the fact that even in cases where the order is to be operative for more than three months, there is no obligation on the part of the authorities to communicate to the person the grounds upon which the order was made. The aggrieved person consequently may not at all be apprised of the allegations made against him and it will be impossible for him to make any adequate or proper representation, if he is not told on what grounds the order was passed. In my opinion, this is an equally unreasonable provision and neither sub-section (3) nor sub-section (6) of section 4 of the
Act can be said to have imposed restrictions which are reasonable in the interests of the general public. My conclusion, therefore, is that article 13(1) of the Indian Constitution, these provisions of the Act became void and inoperative after the Constitution came into force, and consequently the order made by the District Magistrate in the present case cannot stand.
I would, therefore, allow the application and quash the externment order that has been passed against the petitioner. Petition dismissed.
FREEDOM TO FORM ASSOCIATIONS OR UNIONS
STATE OF MADRAS V. V. G. ROW
AIR 1952 SC 196
Decided On: March 31, 1952
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BENCH – CHIEF JUSTICE PATANJALI SASTRI, JUSTICES M. C. MAHAJAN, B. K. MUKHERJEA,
S. R. DAS & N. CHANDRASEKHARA AIYAR
CHIEF JUSTICE SASTRI (for the Court)
This is an appeal from an order of the High Court of Judicature at Madras adjudging section 15(2)(b) of the Indian Criminal Law Amendment Act, 1908 (Act No. XIV of 1908) as amended by the Indian Criminal Law Amendment (Madras) Act, 1950, (hereinafter referred to as the ‘impugned Act’) unconstitutional and void, and quashing Government Order No.
1517, Public (General) Department, dated 10th March, 1950, whereby the State Government declared a Society called the People 's Education Society an unlawful association.
The respondent, who was the general secretary of the Society, which was registered under the Societies Registration Act, 1860, applied to the High Court on 10th April 1950, under article 226 of the Constitution complaining that the impugned Act and he Order dated 10th
March, 1950, purporting to be issued there under infringed the fundamental right conferred on him by article 19(1)(c) of the Constitution to form associations or unions and seeking appropriate reliefs. The High Court by a full bench of three Judges (Rajamanner C.J.,
Satyanarayana Rao and Vishwanatha Sastri, JJ.) allowed the application on 14th September,
1950, and granted a certificate under article 132. The State of Madras has brought this appeal.
The Government Order referred to above runs as follows:
WHEREAS in the opinion of the State Government the Association known as the
People 's Education Society, Madras, has for its object interference with the administration of the Law and the maintenance of law and order, and constitutes a danger to the public peace;
NOW, therefore, His Excellency the Governor of Madras, in exercise of the Power conferred by section 16 of the India Criminal Law Amendment Act, 1908 (Central
Act XIV of 1908) hereby declares the said association to be an unlawful association with in the meaning of the said Act."
No copy of this order was served on the respondent or any other office-bearer of the society but it was notified in the official Gazette as required by the impugned Act.
The declared objects of the Society as set out in the affidavit of the respondent are:
(a) to encourage, promote, diffuse and popularise useful knowledge in all sciences and more specially social science;
(b) to encourage, prompt diffuse and popularise political education among people;
(c) to encourage promote and popularise the study and under standing of all social and political problems and bring about social and political reforms; and
(d) to promotes encourage and popularise art, literature and drama.
It was, however, stated in a counter-affidavit filed on behalf of the appellant by the Deputy
Secretary to Government Public Department, that according to in formation received by the
Government, the Society was actively helping the Communist party in Madras which had been declared unlawful in August, 1949 by utilising its funds through its secretary for carrying on propaganda on behalf of the Party, and that the declared on objects of the Society were intended to camouflage its real activities.
As the Madras Amendment Act (No. XI of 1950) was passed on the 12th August, 1950, during the pendency of the petition which was taken up for hearing on the 21st August, 1950, the issues involved had to be determined in the light of the original Act as amended. In order
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to appreciate the issued it is necessary to refer to the relevant provisions. Before amendment by the Madras Act, the material provisions were as follows:
15. IN THIS PART (1) "association" means any combination or body of persons whether the same be known by any distinctive name or not; and
(2) "unlawful association" means an association (a) which encouraged or aids persons to commit acts of violence or intimidation or of which the members habitually commit such acts, or
(b) which has been declared to be unlawful by the Provincial Government under the Powers hereby conferred.
16. If the Provincial Government is of opinion that any association interferes or has for its object interference with the administration of the law or with the maintenance of law and order, or that it constitutes as dangers to the public peace, the Provincial Government may be notification in the official Gazette declare such association to be unlawful.
The amending Act substituted for clause (b) in Section 15 (2) the following clause:
(b) which has been declared by the State Government by notification in the official
Gazette to be unlawful on the ground (to be specified in the notification) that such association (i) constitutes a danger to the public peace, etc.
(ii) has interfered or interferes with the maintenance of public order or has such interference for its object, or
(iii) has interfered or interferes with the administration of the law, or has such interference for its object.
For the old section 16, section 16 and 16A were substituted as follows:
16. (1) A notification issued under clause (b) of sub-section (2) of section 15 in respect of any association shall (a) specify the ground on which it is issued, the reasons for its issue, and such other particulars, if any, as may have a bearing on the necessity therefore and
(b) fix a reasonable period for any office-bearer or member of the association or any other person interested to make a representation to the State Government in respect of the issue of the notification.
(2) Nothing in sub-section (1) shall required the State Government to disclose any facts which it consider to be against the public interest to disclose.
Under section 16A the Government is required after the expiry of the time fixed in the notification for making representations, to place before an Advisory Board constituted by it a copy of the notification and of the representation, if any, received before such expiry, and the
Board is to consider the materials placed before it, after calling for such further information as it may deem necessary from the State Government or from any office-bearer or member of the association consigned or any other person, and submit its report to the Government. If it is found by the Board that there is no sufficient cause for the issue of the notification in respect of the association concerned the Government is required to cancel the notification.
These is no amendment of section 17 which prescribes penalties by way of imprisonment or fine or both for membership or management of an unlawful association and for taking part in meeting of such association or muskeg, receiving or soliciting contributions for purposes thereof. Section 17A, which confers power on the Government to notify and take possession
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of places used for the purposes of an unlawful association, was amendment by the addition of sub-clauses 2 (a) and 2 (b) providing for a remedy, where such power was exercises, by way of application within thirty days of the notification in the official Gazette to the Chief Judge of the Small Cause Court of the District Judge occurring as the place notified is situated in the
Presidency Town or outside, for "a declaration that the place has not been used for the purposes of any unlawful association" If such declaration is made, the Government is to cancel the notification in respect of the place. Section 17B empower the officer taking possession of a notified place of forfeit movable property found therein if, in his opinion, such property "is, or may be used for the purpose of the unlawful association" after following the procedure indicated. Section 17E similarly empower the Government to forfeit funds of an unlawful association “if it is satisfied after such enquiry as it may thing fit that such funds are being used or intended to be used for the purposes of an unlawful association.” The procedure to be followed in such cases is also prescribed. By section 17E jurisdiction of civil court, save as expressly provided is barred in respect of proceedings taken under section 17A to 17E.
By section 6 of the amending Act notification already issued and not cancelled before the amendment are to have effect as if they have been issued under section 15 (2) (b) as amended, and it is provided in such cases a supplementary notification should also be issued a required in section 16 (1) (a) and (b) as amended and thereafter the procedure provided by the new section 16-A should be followed. It was under this provision that the validity of the notification issued on the 10th March, 1950, under old section 16 fell to be considered in the light of the provisions of the amended Act when the petition came up for hearing in the High Court on
21st August, 1950.
It will be seen that while old section 16 expressly conferred on the Provincial Government power to declare association unlawful if, in its opinion, there existed certain specified grounds in relation to them, those grounds are now incorporated in section 15 (2) (b) as amended, and the reference to the "opinion" of the Government is dropped. This led to some discussion before us as to whether or not the grounds referred to in section 15 (2) (b) as amended are justifiable issues. If the factual existence of those grounds could be made the subject of inquiry in a court of law, the restriction sought to be imposed on the right of association would not be open to exception, but then the Government would apparently have no use for section 15 (2)
(b). For it was strenuously contended on its behalf by the Attorney-General that the incorporation of these grounds in a definition clause, which made a declaration by
Government the test of unlawfulness, rendered the insertion of the words "in its opinion" unnecessary and, indeed, inappropriate, and that the omission of those words could not lead to any inference that the grounds on which the declaration was to be based were intended to be any more justifiable than under the old section 16; more especially as the "opinion" or the
"satisfaction" of the Government of of its officers is still the determining factor in notifying a place under section 17A (1) and in forfeiting the movable found therein under section 17B (1) or the funds of an unlawful association under section 17E (1). The provision for an inquiry as to the existence or otherwise of such grounds before an Advisory Board and for cancellation of the notification in case the Board found there was no sufficient cause for declaring the association as unlawful also pointed, it was urged, to the same conclusion. The contention is not without force, and the position was not contested for respondent. It may, accordingly be taken that the test under section 15 (2) (b) is as it was under the old section 16, a subjective one, and the factual existence or otherwise of the grounds is not a justifiable issue.
It is on this basis, then, that the question has to be determined as to whether section 15 (2)
(b) as amended falls within the limits of constitutionally permissible legislative abridgment of the fundamental right conferred on the citizen by article 19(1)(c). … It was not disputed that
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the restriction in question were imposes "in the interests of public order". But are they
"reasonable" restriction within the meaning of article 19(4)?
Before proceeding to consider this question we think it right to point out, what is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the constitution unlike as in America where the
Supreme Court has assumed extensive power of reviewing legislative acts under cover of the widely interpreted "due proves" clause in the Fifth and Fourteenth Amendments. If, then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader 's spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the "fundamental rights" as to which this Court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot dessert its own duty to determine finally the constitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to haves been suggested in some quarters that the courts in the new set up are out to seek clashes with the legislatures in the country.
The learned Judges of the High Court unanimously held that the restrictions under section
15 (2) (b) were not reasonable on the ground of (1) the inadequacy of the publication of the notification, (2) the omission to fix a time-limit for the Government sending the papers to the
Advisory Board or for the latter to make its report, no safeguards being provided against the
Government enforcing the penalties in the meantime, and (3) the denial to the aggrieved person of the right to appear either in person or by pleader before the Advisory Board to make good his representation. In addition to these grounds one of the learned Judges (Satyanarayana
Rao J.) held that the impugned Act offended against article 14 of the constitution in that there was no reasonable basis for the differentiation in treatment between the two classes of unlawful association mentioned in section 15 (2) (a) and (b). The other learned Judges did not, however, agree with this view. Vishwanatha Sastri J. further held that the provisions for forfeiture of property contained in the impugned Act were void as they had no reasonable relation to the maintenance of public order. The other two Judges expressed no opinion on this point. While agreeing with the conclusion of the learned Judges that section 15 (2) (b) is unconstitutional and void, we are of opinion that the decision can be rested on a broader and more fundamental ground.
This Court had occasion in Dr. Khare 's case (1950) S.C.R. 519 to define the scope of the judicial review under clause (5) of article 19 where the phrase "imposing reasonable restriction on the exercise of the right" also occurs and four out of the five Judges participating in the decision expressed the view (the other Judge leaving the question open) that both the substantive and the procedural aspects of the impugned restrictive law should be examined from the point of view of reasonableness; that is to say, the Court should consider not only factors such as the duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has been authorised. It is important in this context to bear in mind that the test of reasonableness, where ever prescribed, should be applied to each, individual statute impugned and no abstract standard, or general pattern of reasonableness can be maid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility
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and self- restrict and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable. Giving due weight to all the considerations indicated above, we have come to the conclusion that section 15 (2) (b) cannot be upheld as falling within the limits of authorised restrictions on the right conferred by article 19(1)(c). The right to form association or unions has such wide and varied scope for its exercise, and its curtailment is fraught with such potential reactions in the religious, political and economic fields, that the vesting of authority in the executive government to impose restriction on such right without allowing the grounds of such imposition both in then factual and legal aspect to he duly tested in a judicial inquiry, is strong element which, in our opinion, must be taken into account in judging the reasonableness of the restriction imposed by section 15 (2) (b) on the exercise of the fundamental right under article 19(1)(c); for, no summary and what is bound to be a largely one-sided review by an Advisory Board, even where its verdict is binding on the executive government, can be a substitute for a judicial enquiry. The formula of subjective satisfaction of the Government or of its officers, with an Advisory Board thrown in to review the materials on which the Government seeks to override a basic freedom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the narrowest limits, and cannot receive judicial approval as a general patters of reasonable restriction on fundamentals rights. In the case of preventive detention, no doubt, this Court upheld in
Gopalan 's case (1950) S.C.R. 88 deprivation of personal liberty by such means, but that was because the Constitution itself sanctions laws providing of preventive detention, as to which no question of reasonableness could arise in view of the language of article 21. As pointed out by Kania C.J. at page 121, quoting Lord Finlay in Rex v. Halliday (1917) A.C. 260, 269:
"the court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based."
The Attorney-General placed strong reliance on the decision in Dr. Khare where the subjective satisfaction of the Government regarding the necessity for the experiment of a person, coupled with a reference of the matter to an Advisory Board whose opinion, however, had no binding force, was considered by a majority to be "reasonable" procedure for restricting the right to move freely conferred by article 19(1)(b). The Attorney-General claimed that the reasoning of that decision applied a fortiori to the present case, as the impugned Act provided that the Advisory Board 's report was beginning on the Government. We cannot agree. We consider that that case is distinguishable in several essential particulars. For one thing experiment of individuals, like preventive detention is largely precautionary and based on suspicion. In fact, section 4 (1) of the Easts Punjab Public Safety Act, which was the subject of consideration in Dr. Khare authorised both preventive detention and experiment for the same purpose and on the same ground namely, with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary, etc. Besides, both involve an element of emergency requiring prompt steps to be taken to prevent apprehended danger to public tranquillity, and authority has to be vested in the
Government and its officers to take appropriate action on their own responsibility. These features are, however, absent in the ground on which the Government is authorised under section 15 (2) (b) to declare association unlawful. These grounds, taken by themselves, are factual and not anticipatory or based on suspicion. An association is allowed to be declared unlawful because it "constitutes" a danger or "has interfered or interferes" with the maintenance of public order or "has such interference for its object" etc. The factual existence
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of these grounds is amenable to objective determination by the court, quite as much as the grounds mentioned in clause (a) of sub-section (2) of section 15, as to which the AttorneyGeneral conceded that it would be incumbent on the Government to establish, as a fact, that the association, which it alleged to be unlawful, "encouraged" or "aided" persons to commit acts of violence, etc. We are unable to discover any reasonableness in the claim of the
Government seeking by its mere declaration, to shut out judicial enquiry into the underlying facts under clause (b).
Secondly, the East Punjab Public Safety Act was a temporary enactment which was to be in forces only of a year; and any order made there under was to expire at the termination of the Act. What may be regarded as a reasonable restriction imposed under such a statute will not necessarily be considered reasonable under the impugned Act, as the latter is a permanent measure, and any declaration made there under would continue in operation for an indefinite period until the Government should think fit to cancel it. Thirdly, while, no doubt, the
Advisory Board procedure under the impugned Act provides a better safeguard than the one under the East Punjab Public Safety Act, under which the report of such body is not binding on the Government, the impugned Act suffers from a far more serious defect in the absence of any provision for adequate communication of the Government 's notification under section
15 (2) (b) to the association and its members or office-bearers. The Government has to fix reasonable period in the notification for the aggrieved person to make a representation to the
Government. But as statewide already, no personal service on any office-bearer or member of the association converted or service by affixture at the office, if any, of such association is prescribed. Nor in any other mode of proclamation of the notification at the place where such association carries on its activities provided for. Publication in the official Gazette, whose publicity value is by no means great, may not reach the members of the association declared unlawful and if the time fixed expired before they knew of such declaration, their right of making a representation, which is the only opportunity of presenting their case, would be lost.
Yet, the consequences to the members which the notification involves are most serious, do, their very membership thereafter is made an offence under section 17.
There was some discussion at the bar as to whether want of knowledge of the notification would be a valid defence in a prosecution under that section. But it is not necessary to ensure upon that question as the very risk of prosecution involved in declaring an association unlawful with penal consequences, without providing for adequate communication of such declaration to the association and its members or office bearers, may well be considered sufficient to render the imposition of restrictions by such means unreasonable. In this respect an externment order stands on a different footing, as provision is made for personal or other adequate mode of service on the individual concerned, who is thus assured of an opportunity of putting for ward his case. For all these reasons the decision in Dr. Khare is distinguishable and cannot rule the present case as claimed by the learned Attorney General. Indeed, as we have observed earlier, a decision dealing with the validity of restriction imposed on one of the rights conferred by article 19(1) cannot have much value as a precedent for adjudging the validity of the restriction imposed on another right, even when the constitutional criterion is the same, namely, reasonableness, as the conclusion must depend on the cumulative effect of the varying facts and circumstances of each case.
Having given the case our best and most anxious consideration we have arrived at the conclusion in agreement with the learned Judges of the High Court, that, having regard to the peculiar feature to which reference has been made petition 15 (2) (b) of the Criminal Law
Amendment on 1908, as amended by the Criminal Law Amendment (Madras) Act, 1950, falls
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outside the scope of authorised restrictions under clause (4) of article 19 and is, therefore, unconstitutional and void.
The appeal fails and is accordingly dismissed with costs.
JAMAAT-E-ISLAMI HIND V. UNION OF INDIA
(1995) 1 SCC 428
Decided On: December 7, 1994
BENCH – JUSTICES J. S. VERMA, S. P. BARUCHA & K. S. PARIPOORNAN
JUSTICE VERMA (for the Court)
The above appeal by special leave is against the order dated 11.4.1994 passed under
Section 4 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as "the
Act") by the one member Tribunal comprising of B.M. Lal, J., a Judge of the Allahabad High
Court constituted under Section 5 of the Act, confirming the declaration made by the Central
Government in the notification dated 10 12.1992 issued under Sub-section (1) of Section 3 of the Act that Jamaat-E-Islami-Hind is an "unlawful association" as defined in the said Act. The above writ petition has been filed in addition to the said appeal, in the alternative, for a declaration that the provisions of the said Act and the Rules framed thereunder arc unconstitutional and ultra vires some of the fundamental rights guaranteed in the Constitution of India.
The broad submission of Shri Soli J. Sorabjee on behalf of the said association is, that in the event a construction is made of the provisions of the said Act and the Rules framed thereunder, which give a reasonable opportunity to the association to show cause why it should not be declared unlawful, these provisions would be saved from the vice of unconstitutionally.
The alternative challenge to the constitutionality of the provisions is made, only if such a construction cannot be made. It is, therefore, appropriate that the proper construction of these provisions be first made to enable consideration of the contention in the true perspective.
The material facts are these: The said association, namely, Jamaat-E-Islami Hind, established in April 1948, is an All India organisation professing apolitical, secular and spiritual credentials with belief in the oneness of God and universal brotherhood. Its activities are said to be for promoting this objective. A notification dated 10.12.1992 published in the
Official Gazette the same day was issued by the Government of India in the Ministry of Home
Affairs, as under:
MINISTRY OF HOME AFFAIRS
NOTIFICATION
New Delhi, the 10th December, 1992
S.O. 898(E). - Whereas Shri Sirajul Hasan, Amir of the Jamaat-e-islami Hind
(hereinafter referred to as JEIH) declared in a meeting at Delhi held on the 27th
May, 1990 that the separation of Kashmir from India was inevitable; And whereas
Shri Abdul Aziz, Naib-Amir of JEIH, addressing a meeting at Malerkotla on the
1st August, 1991, observed that the Government of India should hold plebiscite on Kashmir;
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And whereas JEIH has been disclaiming and questioning the sovereignty and territorial integrity of India;
And whereas for all or any of the grounds set out in the preceding paragraphs, as also on the basis of other facts, and materials in its possession which the Central
Government considers to be against the public interest to disclose, the Central
Government is of the opinion that the JEIH is an unlawful association; Now, therefore, in exercise of the powers conferred by Sub-section (1) of Section 3 of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967), the Central
Government hereby declares the 'Jamaat-e-Islami Hind ' to be an unlawful association, and directs, in exercise of the powers conferred by the proviso to Subsection (3) of that section, that this notification shall, subject to any order that may be made under Section 4 of the said Act, have effect from the date of its
Publication in the Official Gazette.
[No. II/14034/2(i) 92-IS(DV)
T.N. Srivastava, Jt. Secy.
In accordance with the proviso to Sub-section (3) of Section 3 of the Act, the notification was brought into effect from the date of its publication in the Official Gazette. However, the act of bringing into effect the notification from the date of its publication in the Official
Gazette was struck down by the court and so the notification became effective from the date of its confirmation by the Tribunal. The Central Government referred the notification to the
Tribunal for the purpose of adjudicating whether or not there is sufficient cause for declaring the association unlawful, in accordance with Sub-section (1) of Section 4 of the Act. The
Tribunal has decided that there is sufficient cause for declaring the association to be unlawful and, therefore, it has confirmed the said notification. In the inquiry before the Tribunal, the only material produced by the Central Government was a resume prepared on the basis of some intelligence reports and the affidavits of T.N. Srivastava, Joint Secretary in the Ministry of Home Affairs and N.C. Padhi, Joint Director, I.B., both of whom spoke only on the basis of the records and not from personal knowledge. In rebuttal, affidavits were filed on behalf of the association of persons whose acts, it was alleged, constituted the grounds for issue of the notification under Section 3(1) of the Act, The deponents of the affidavits were also crossexamined. This constitutes the entire material on which the Tribunal rendered its decision on the question of existence of sufficient cause for declaring the association unlawful. The matter has, therefore, to be decided on this material alone.
Briefly stated, the submission of Shri Soli J. Sorabjee, learned Counsel for the appellantassociation is that none of the grounds on which the notification is based, even assuming them to be proved, constitutes "unlawful activity" as defined in Section 2(f) of the Act to render the appellant an unlawful association within the meaning of Section 2(g) of the Act. Learned counsel also submitted that the only material produced at the inquiry does not constitute legal evidence for the purpose inasmuch as it is, at best, hearsay and that too without disclosing the source from which it emanates to give an opportunity to the appellant to effectively rebut the same. The further submission is that in rebuttal there is legal evidence in the form of sworn testimony of the persons to whom the alleged activities are attributed. Shri Sorabjee contended that the inquiry contemplated by the Tribunal under the Act is judicial in nature, which must in the form of adjudication of a lis giving a reasonable opportunity to the association to rebut the correctness of allegations against it, and negative the same. It was urged by Shri Sorabjee that in the absence of the provision being so construed, they would suffer from the vice of unconstitutionality. The writ petition has been filed to project the alternative argument.
The learned Solicitor General, on the other hand, contended that this enactment is, in substance, in the nature of a preventive detention law and the Tribunal constituted under the
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Act is like an Advisory Board under the preventive detention law required to examine only the existence of material sufficient to sustain formation of the opinion of the kind required for preventive detention. Learned Solicitor General submitted that such opinion can be formed not only on the basis of legal evidence but also other materials including intelligence reports received from undisclosed sources. According to the learned Solicitor General, the requirement of natural justice in such a situation is satisfied by mere disclosure of the information without disclosing the source of the information. This submission of the learned
Solicitor General is in addition to the claim of privilege based on public interest available under the general law.
The Central Government 's right to claim privilege against disclosure of certain information, in public interest, in the manner prescribed by law, is not in controversy.
Confidentiality of meters in respect of which the Central Government 's claim of privilege is upheld by the Tribunal is not questioned. The question is only of the material in respect of which no such privilege is claimed in the manner prescribed or of which the claim of privilege is not upheld by the Tribunal.
It is in this background, the debate regarding the kind of material require for examining the sufficiency of cause for declaring the association unlawful in the inquiry held by the
Tribunal, has to be examined. We would now examine the provisions of the Act and the Rules famed thereunder. The relevant provisions of the Act and the Rules are as under:
The Unlawful Activities (Prevention) Act, 1967
2. Definitions. - In this Act, unless the context otherwise requires,
(a) "association" means any combination or body of individuals;
(b) "cession of a part of the territory of India" includes admission of the claim of any foreign country to any such part;
(c) "prescribed" means prescribed by rules made under this Act;
(d) "secession of a part of the territory of India from the Union" includes the assertion of any claim to determine whether such part will remain a part of the territory of India;
(e) "Tribunal" means the Tribunal constituted under Section 5;
(f) "unlawful activity", in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise),(i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession;
(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India;
(g) "unlawful association" means any association (i) which has for its object any unlawful activity, or which encourages or aids persons to undertake any unlawful activity, or of which the members undertake such activity; or
(ii) which has for its object any activity which is punishable under Section 153-A or Section 153B of the India Penal Code, 1860 (45 of 1860), or which encourages or aids persons to undertake any such activity, or of which the members undertake any such activity:
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Provided that nothing contained in Sub-clause (ii) shall apply to the State of
Jammu and Kashmir. xxxxxxxxx CHAPTER II
UNLAWFUL ASSOCIATIONS
3. Declaration of an association as unlawful. - (1) If the Central Government is of opinion that any association is, or has become, an unlawful association, it may, by notification in the Official Gazette, declare such association to be unlawful. (2)
Every such notification shall specify the grounds on which it is issued and such other particulars as the Central Government may consider necessary:
Provided that nothing in this sub-section shall require the Central Government to disclose any fact which it considers to be against the public interest to disclose.
(3) No such notification shall have effect until the Tribunal has, by an order made under Section 4, confirmed the declaration made therein and the order is published in the Official Gazette:
Provided that if the Central Government is of opinion that circumstances exist which render it necessary for that Government to declare an association to be unlawful which immediate effect it may, for reasons to be stated in writing, direct that the notification shall, subject to any order that may be made under Section 4, have effect from the date of its publication in the Official Gazette, xxxxxxxxx 4. Reference to Tribunal. - (1) Where any association has been declared unlawful by a notification issued under Sub-section (1) of Section 3, the Central
Government shall, within thirty days from the date of the publication of the notification under the said sub-section, refer the notification to the Tribunal for the purpose of adjudicating whether or not there is sufficient case for declaring the association unlawful.
(2) On receipt of a reference under Sub-section (1), the Tribunal shall call upon the association affected by notice in writing to show cause, within thirty days from the date of the service of such notice, why the association should not be declared unlawful. (3) After considering the cause, if any, shown by the association or the officebearers or members thereof, the Tribunal shall hold an inquiry in the manner specified in Section 9 and after calling for such further information as it may consider necessary from the Central Government or from any office-bearer or member of the association, it shall decide whether or not there is sufficient cause for declaring the association to be unlawful and make, as expeditiously as possible and in any case within a period of six months from the date of the issue of the notification under Sub-section (1) of Section 3, such order as it may deem fit either confirming the declaration made in the notification or cancelling the same.
(4) The order of the Tribunal made under Sub-section (3) shall be published in the
Official Gazette.
5. Tribunal. - (1) The Central Government may, by notification in the Official
Gazette, constitute, as and wen necessary, a tribunal to be known as the "Unlawful
Activities (Prevention) Tribunal" consisting of one person, to be appointed by the
Central Government:
Provided that no person shall be so appointed unless he is a Judge of the High
Court.
xxxxxxxxx
(5) Subject to the provisions of Section 9, the Tribunal shall have power to regulate its own procedure in all matters arising out of the discharge of its functions including the place or places at which it will hold its sittings.
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(6) The Tribunal shall, for the purpose of making an inquiry under this Act, have the same powers as are vested in a civil court under the CPC, 1908 (5 of 1908) while trying a suit, in respect of the following mattes, namely:
(a) the summoning and enforcing the attendance of any witness and examining him on oath;
(b) the discovery and production of any document or other material object producible as evidence;
(c) the reception of evidence on affidavits;
(d) the requisitioning of any public record from any court or office;
(e) the issuing of any commission for the examination of witnesses.
(7) Any proceeding before the Tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code
(45 of 1860) and the Tribunal shall be deemed to be a civil court for the purposes of Section 195 and Chapter XXXV of the CrPC, 1898 (5 of 1898).
6. Period of operation and cancellation of notification, - (1) Subject to the provisions of Sub-section (2), a notification issued under Section 3 shall, if the declaration made therein is confirmed by the Tribunal by an order made under
Section 4, remain in force for a period of two years from the date on which the notification becomes effective. (2) Notwithstanding anything contained in Subsection (1), the Central Government may, either on its own motion or on the application of any person aggrieved, at any time, cancel the notification issued under Section 3, whether or not the declaration made therein has been confirmed by the Tribunal.
7. Power to prohibit the use of funds of an unlawful association.-....
8. Power to notify places for the purpose of an unlawful association. - (1) Where an association has been declared unlawful by a notification issued under Section
3 which has become effective under Sub-section (3) of that Section, the Central
Government may, by notification in the Official Gazette, notify any place which in its opinion is used for the purpose of such unlawful association.
Explanation. - For the purposes of this sub-section, "place" includes a house or building, or part thereof, or a tent or vessel. xxxxxxxxx (3) If, in the opinion of the District Magistrate, any articles specified in the list are or may be used for the purpose of the unlawful association, he may make an order prohibiting any person from using the articles save in accordance with the written orders of the District Magistrate. xxxxxxxxx (8) Any person aggrieved by a notification issued in respect of a place under Subsection (1) or by an order made under Sub-section (3) or Sub-section (4) may, within thirty days from the date of the notification or order, as the case may be, make an application to the Court of the District Judge within the local limits of whose jurisdiction such notified place is situate (a) for declaration that the place has not been used for the purpose of the unlawful association; or
(b) for setting aside the order made under Sub-section (3) or Sub-section (4), and on receipt of the application the Court of the District Judge shall, after giving the parties an opportunity of being heard, decide the question.
9. Procedure to be followed in the disposal of applications under this Act. - Subject to any rules that may be made under this Act, the procedure to be followed by the tribunal in holding any inquiry under Sub-section (3) of Section 4 or by a court of a District Judge in disposing of any application under Sub-section (4) of Section
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7 or Sub-section (8) of Section 8 shall, so far as may be, be the procedure laid down in the CPC, 1908 (5 of 1908), for the investigation of claims and the decision of the Tribunal or the Court of the District Judge, as the case may be, shall be final.
CHAPTER III
OFFENCES AND PENALTIES
10. Penalty for being members of an unlawful association. - Whoever is and continues to be a member of an association declared unlawful by a notification issued under Section 3 which has become effective under Sub-section (3) of that section, or takes part in meetings of any such unlawful association, or contributes to, or receives or solicits any contribution for the purpose of, any such unlawful association, or in any way assists the operations of any such unlawful association, shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine.
11. Penalty for dealing with funds of an unlawful association. - If any person on whom a prohibitory order has been served under Sub-section (1) of Section 7 in respect of any moneys, securities or credits pays, delivers, transfers or otherwise deals in any manner whatsoever with the same in contravention of the prohibitory order, he shall be punishable with imprisonment for a term which may extend to three years, or with fine or with both, and notwithstanding anything contained in the CrPC, 1898 (5 of 1898), the court trying such contravention may also impose on the person convicted an additional fine to recover from him the amount of the moneys or credit or the market value of the securities in respect of which the prohibitory order has been contravened or such part thereof as the court may deem fit. 12. Penalty for contravention of an order made in respect of a notified place. - (1)
Whoever uses any article in contravention of a prohibitory order in respect thereof made under Sub-section (3) of Section 8 shall be punishable with imprisonment for a term which may extend to one year, and shall also be liable to fine.
(2) Whoever knowingly and wilfully is in, or effects or attempts to effect entry into, a notified place in contravention of an order made under Sub-section (4) of
Section 8 shall be punishable with imprisonment for a term which may extend to one year, and shall also be liable to fine.
13. Punishment of unlawful activities. - (1) Whoever(a) takes part in or commits, or
(b) advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable with imprisonment or a term which may extend to seven years, and shall also be liable to fine.
(2) Whoever, in any way, assists any unlawful activity of any association, declared unlawful under Section 3, after the notification by which it has been so declared has became effective under Sub-section (3) of that section, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both. (3) Nothing in this section shall apply to any treaty, agreement or convention entered into between the Government of India and the Government of any other country or to any negotiations therefore carried on by any person authorised in this behalf by the Government of India.
14. Offences to be cognizable. - Notwithstanding anything contained in the CrPC,
1898 (5 of 1898), an offence punishable under this Act shall be cognizable.
The Unlawful Activities (Prevention) Rules, 1968
2. Definitions. - In these rules, unless the context otherwise requires,-
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(a) "the Act" means the Unlawful Activities (Prevention) Act, 1967 (37 of 1967);
(b) "section" means a section of the Act;
(c) words and expressions used in these rules but not defined, and defined in the
Act, shall have the meanings respectively assigned to them in the Act.
3. Tribunal and District Judge to follow rules of evidence. - (1) In holding an inquiry under Sub-section (3) of Section 4 or disposing of any application under sub-section (4) of Section 7 or Sub-section (8) of Section 8, the Tribunal or the District Judge, as the case may be, shall, subject to the provisions of Sub-rule (2), follow, as far as practicable, the rules of evidence laid down in the Indian Evidence Act, 1872
(1 of 1872).
(2) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of
1872), where any books of account or other documents have been produced before the Tribunal or the Court of the District Judge by the Central Government and such books of account or other documents are claimed by that Government to be of a confidential nature then, the Tribunal or the Court of the District Judge, as the case may be, shall not,(a) make such books of account or other documents a part of the records of proceedings before it, or
(b) allow Section of, or grant a copy of, the whole of or any extract from, each books of account or other documents by or to any person other than a party to the proceedings before it. xxxxxxxxx 5. Documents which should accompany a reference to the Tribunal. - Every reference made to the Tribunal under Sub-section (1) of Section 4 shall be accompanied by -(i) a copy of the notification made under Sub-section (1) of
Section 3, and (ii) all the facts on which the grounds specified in the said notification are based: Provided that nothing in this rule shall require the Central
Government to disclose any fact to the Tribunal which that Government considers against the public interest to disclose. xxxxxxxxx 14. Power of Tribunal or District Judge to sit in private. - Where any request is made by the Central Government so to do, it shall be lawful for the Tribunal or the District Judge, as the case may be, to sit in private and to admit at such sitting such persons whose presence is considered by the Tribunal or the District Judge, as the case may be, to be necessary for the proper determination of the matter before it or him.
… In our opinion, the above scheme of the Act clearly brings out the distinction between this statute and the scheme in the preventive detention laws making provision therein for an
Advisory Board to review the detention. The nature of the inquiry preceding the order made by the Tribunal under Section 4 of the Act, and its binding effect, give to it the characteristic of a judicial determination distinguishing it from the opinion of the Advisory Board under the preventive detention laws.
In Section 4, the words "adjudicating" and "decide" have a legal connotation in the context of the inquiry made by the Tribunal constituted by a sitting Judge of a High Court. The
Tribunal is required to "decide ' after 'notice to show cause ' by the process of "adjudicating ' the points in controversy. These are the essential attributes of a judicial decision.
… The reference to the Tribunal is for the purpose of adjudicating whether or not there is sufficient cause for declaring the association unlawful. Obviously the purpose is to obtain a
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judicial confirmation of the existence of sufficient cause to support the action taken. The confirmation is by a sitting High Court Judge after a judicial scrutiny of the kind indicated.;
This being the nature of inquiry and the purpose for which it is conducted, the materials on which the adjudication is to be made with opportunity to show cause given to the association, must be substantially in consonance with the materials required to support a judicial determination. Reference may be made at this stage to the decision in State of Madras v. V.G.
Row 1952CriLJ966 on which both sides place reliance.
In State of Madras v. V.G. Row AIR 1952 SC 196 the question for decision related to the constitutional validity of a law empowering the Suite to declare associations illegal by notification, wherein there was no provision for judicial inquiry or for service of notification on the association or its office bearers. The absence of a provision for judicial inquiry and notice to the association of the basis for the action taken was held to be an unreasonable restriction on the right to form associations under Article 19(1)(c) read with Article 19(4) of the Constitution as it then stood. By the Constitution (Sixteenth Amendment) Act, 1963, the expression "the sovereignty and integrity of India or" was inserted prior to '"public order or morality" to permit reasonable restrictions to be imposed also in the interests of the sovereignty and integrity of India in addition to those in the interests of public order or morality. The significance, however, is that in V.G.Row, the absence of a provision for judicial inquiry to scrutinise the reasonableness of restrictions on the exercise of the right conferred by Sub-clause (c) of Clause (1) of Article 19 was the ground on which the law was held to be constitutionally invalid. The test of reasonableness of the restrictions imposed was indicated thus: It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.
The argument of the learned Attorney General in V.G. Row placing reliance on the decision in Dr. N.B. Khare v. State of Delhi AIR 1950 SC 211, wherein the subjective satisfaction of the Government regarding the necessity for the externment of a person coupled with a reference of the matter to an Advisory Board was considered to be reasonable procedure for restricting the right conferred by Article 19(1)(b), was rejected. A distinction was drawn between the requirement for preventive detention or externment of a person with declaration of an association to be unlawful on the ground that the former was anticipatory or based on suspicion whereas the latter was based on grounds which are factual and capable of objective determination by the Court. This distinction was emphasised as under:
These grounds, taken by themselves, are factual and not anticipatory or based on suspicion. An association is allowed to be declared unlawful because it
"constitutes" a danger or "has interfered or interferes" with the maintenance of public order or "has such interference for its object", etc. The factual existence of these grounds is amenable to objective determination by the court…
…For all these reasons the decision in Dr. Khare 's case is distinguishable and cannot rule the present case as claimed by the learned Attorney General. Indeed, as we have observed earlier, a decision dealing with the validity of restrictions imposed on one of the rights conferred by article 19(1) cannot have much value as a precedent for adjudging the validity of the restrictions imposed on another right, even when the constitutional criterion is the same, namely, reasonableness, as the conclusion must depend on the cumulative effect of the varying facts and circumstances of each case
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In our opinion, the test of factual existence of grounds amenable to objective determination by the court for adjudging the reasonableness of restrictions placed on the right conferred by Article 19(1)(c) to form associations, in the scheme of the Unlawful Activities
(Prevention) Act, 1967, is equally applicable in accordance with the decision in V.G. Row. It is, therefore, this test which mast determine the meaning and content of the adjudication by the Tribunal of the existence of sufficient cause for declaring the association to be unlawful under the Act. A different construction to equate the requirement of this Act with mere subjective satisfaction of the Central Government, when the power to declare an association to be unlawful depends on the factual existence of the grounds which are amenable to objective determination, would result in denuding the process of adjudication by the Tribunal of the entire meaning and content of the expression "adjudication".
As earlier maintained, the requirement of specifying the grounds together with the disclosure of the facts on which they are based and an adjudication of the existence of sufficient cause for declaring the association to be unlawful in the form of decision after considering the cause, if any shown by the association in response to the show cause notice issued to it, are all consistent only with an objective determination of the points in controversy in a judicial scrutiny conducted by a Tribunal constituted by a sitting High Court Judge, which distinguishes the scheme under this Act with the requirement under the preventive detention laws to justify the anticipatory action of preventive detention based on suspicion reached by a process of subjective satisfaction. The scheme under this Act requiring adjudication of the controversy in this manner makes it implicit that the minimum requirement of natural justice must be satisfied, to make the adjudication meaningful. No doubted, the requirement of natural justice in a case of this kind must be tailored to safeguard public interest which must always outweigh t every lesser interest. This is also evident from the fact that the proviso to Subsection (2) of Section 3 of the Act itself permits the Central Government to withhold the disclosure of acts which it considers to be against the public interest to disclose. Similarly,
Rule 3(2) arid the proviso to Rule 5 of the Unlawful Activities (Prevention) Rules, 1968 also permit nondisclosure of confidential documents and information which the Government considers against; the public interest to disclose. Thus, subject to the non-disclosure of information which the Central Government considers to be against the public interest to disclose, all information and evidence relied on by the Central Government to support the declaration made by it of an association to be unlawful, has to be disclosed to the association to enable it to show cause against the same. Rule 3 also indicates that as far as practicable the rules of evidence laid down: in the Indian Evidence Act, 1872 must be followed. A departure has to be made only when the public interest so requires. Thus, subject to the requirement of public interest which must undoubtedly outweigh the interest of the association and its members, the ordinary rules of evidence and requirement of natural justice must be followed by the Tribunal in making the adjudication under the Act.
To satisfy the minimum requirements of a proper adjudication, it is necessary that the
Tribunal should have the means to ascertain the credibility of conflicting evidence relating to the points in controversy. Unless such a means is available to the Tribunal to determine the credibility of the material before it, it cannot choose between conflicting material and decide which one to prefer and accept. In such a situation, the only option to it would be to accept the opinion of the Central Government, without any means to test the credibility of the material on which it is based. The adjudication made would cease to be an objective determination and be meaningless, equating the process with mere acceptance of the ipse dixit of the Central
Government. The requirement of adjudication by the Tribunal contemplated under the Act does not permit abdication of its function by the Tribunal to the Central Government providing merely its stamp of approval to the opinion of the Central Government. The procedure to be followed by the Tribunal must therefore, be such which enables the Tribunal to itself assess
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the credibility of conflicting material on any point in controversy and evolve a process by which it can decide whether to accept the version of the Central Government or to reject it in the light of the other view asserted by the association. The difficulty in this sphere is likely to arise in relation to the evidence or material in respect of which the Central Government claims non-disclosure on the ground of public interest.
It is obvious that the unlawful activities of an association may quite often be clandestine in nature and, therefore, the source of evidence of the unlawful activities may require continued confidentiality in public interest. In such a situation, disclosure of the source of such information, and, may be, also full particulars thereof, is likely to be against the public interest.
The scheme of the Act and the procedure for inquiry indicated by the Rules framed thereunder provide for maintenance of confidentiality, whenever required in public interest. However, the non-disclosure of sensitive information and evidence to the association and its office bearers, whenever justified in public interest, does not necessarily imply its non-disclosure to the Tribunal as well. In such cases where the Tribunal is satisfied that non-disclosure of such information to the association or its office bearers is in public interest, it may permit its nondisclosure to the association or its office bearers, but in order to perform its task of adjudication as required by the Act, the Tribunal can look into the same for the purpose of assessing the credibility of the information and satisfying itself that it can safely act on the same. In such a situation, the Tribunal can devise a suitable procedure whereby it can itself examine and test the credibility of such material before it decides to accept the same for determining the existence of sufficient cause for declaring the association to be unlawful. The materials need not be confined only to legal evidence in the strict sense. Such a procedure would ensure that the decision of the Tribunal is an adjudication made on the points in controversy after assessing the credibility of the material it has chosen to accept, without abdicating its function by merely acting on the ipse dixit of the Central Government. Such a course would satisfy the minimum requirement of natural justice tailored to suit the circumstances of each case, while protecting the rights of the association and its members, without jeopardising the public interest. This would also ensure that the process of adjudication is not denuded of its content and the decision ultimately rendered by the Tribunal is reached by it on all points in controversy after adjudication and not by mere acceptance of the opinion already formed by the Central Government.
… An authorised restriction saved by Article 19(4) on the freedom conferred by Article
19(1)(c) of the Constitution has to be reasonable. In this statute, provision is made for the notification to become effective on its confirmation by a Tribunal constituted by a sitting High
Court Judge, on adjudication, after a show cause notice to the association, that sufficient cause exists for declaring it to be unlawful. The provision for adjudication by judicial scrutiny, after a show cause notice, of existence of sufficient cause to justify the declaration mast necessarily imply and import into the inquire, the minimum requirement of natural justice to ensure that the decision of the Tribunal is its own opinion, formed on the entire available material, and not a mere imprimatur of the Tribunal affixed to the opinion of the Central Government.
Judicial scrutiny implies a fair procedure to prevent the vitiating element of arbitrariness.
What is the fair procedure in a given case, would depend on the materials constituting the factual foundation of the notification and the manner in which the Tribunal can assess its true worth. This has to be determined by the Tribunal keeping in view the nature of its scrutiny, the minimum requirement of natural justice, the fact that the materials in such matters are not confined to legal evidence in the strict sense, and that the scrutiny is not a criminal trial. The
Tribunal should form its opinion on all the points in controversy after assessing for itself the
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credibility of the material relating to it, even though it may not be disclosed to the association, if the public interest so requires.
It follows that, ordinarily, the material on which the Tribunal can place reliance for deciding the existence of sufficient cause to support the declaration, must be of the kind which is capable of judicial scrutiny. In this context, the claim of privilege on the ground of public interest by the Central Government would be permissible and the Tribunal is empowered to devise a procedure by which it can satisfy itself of the credibility of the material without disclosing the same to the association, when public interest so requires. The requirements of natural justice can be suitably modified by the Tribunal to examine the material itself in the manner it considers appropriate, to assess its credibility without disclosing the same to the association. This modified procedure would satisfy the minimum requirement of natural justice and judicial scrutiny. The decision would then be that of the Tribunal itself.
On the above construction made of the provisions of the Act, the alternative argument relating to constitutionality does not merit consideration. Having indicated the requirements of a valid adjudication by the Tribunal made under the Act, we now proceed to examine the merits of this case.
The allegations made by the Central Government against the association - Jamaat-EIslami Hind - were totally denied. It was, therefore, necessary that the Tribunal should have adjudicated the controversy in the manner indicated. Shri Soli J. Sorabjee, learned Counsel for the association, Jamaat-E-Islami Hind, contended that apart from the allegations made being not proved, in law such acts even if proved, do not constitute "unlawful activity" within the meaning of that expression defined in the Act. In the present case, the alternative submissions of Shri Sorabjee does not arise for consideration on the view we are taking on his first submission. The only material produced by the Central Government to support the notification issued by it under Section 3(1) of the Act, apart from a resume based on certain intelligence reports, are the statements of Shri T.N. Srivastava, Joint Secretary, Ministry of
Home Affairs and Shri N.C. Padhi, Joint Director, I.B. Neither Shri Srivastava nor Shri Padhi was dosed to any fact on the basis of personal knowledge. Their entire version is based on official record. The resume is based on intelligence reports submitted by persons whose names have not been disclosed on the ground of confidentiality. In other words, no person has deposed from personal knowledge whose veracity could be tested by cross-examination.
Assuming that it was not in public interest to disclose the identity of those persons or to produce them for cross-examination by the other side, some method should have been adopted by the Tribunal to test the credibility of their version. The Tribunal did not require production of those persons before it, even in camera, to question them and test the credibility of their version. On the other hand, the persons to whom the alleged unlawful acts of the association are attributed filed their affidavits denying the allegations and also deposed as witnesses to rebut these allegations. In such a situation, the Tribunal had no means by which it could decide objectively, which of the two conflicting versions to accept as credible. There was thus no objective determination of the factual basis for the notification to amount to adjudication by the Tribunal, contemplated by the statue. The Tribunal has merely proceeded to accept the version of the Central Government without taking care to know even itself the source from which it came or to assess credibility of the version sufficient to inspire confidence justifying its acceptance in preference to the sworn denial of the witnesses examined by the other side.
Obviously, the Tribunal did not properly appreciate and fully comprehend its role in the scheme of the statute and the nature of adjudication required to be made by it. The order of the Tribunal cannot, therefore, be sustained.
In this view of the matter, the challenge to the constitutionality of the said Act made in the writ petition does not survive. Needless to say, our conclusion on the appeal is based upon
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the material placed before the Tribunal and its treatment of it. Our conclusion shall not be taken to debar action under the said Act against the association hereafter if the necessary material is available.
Consequently, the civil appeal is allowed. The order dated 11.4.1994 passed by the
Tribunal is quashed. The writ petition is dismissed.
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UNIT 6 – RIGHTS OF THE ACCUSED IN CRIMINAL TRIALS
(ARTICLE 20)
PROTECTION AGAINST SELF INCRIMINATION
STATE OF BOMBAY V. KATHI KALU OGHAD
AIR 1961 SC 1808
BENCH – CHIEF JUSTICE B. P. SINHA, JUSTICES S. J. IMAM, S. K. DAS, P. B.
GAJENDRAGADKAR, A. K. SARKAR, K. SUBBA RAO, K. N. WANCHOO, K. C. DAS GUPTA,
RAGHUBAR DAYAL, N. R. AYYANGAR & J. R. MUDHOLKAR
CHIEF JUSTICE SINHA (for Justices Imam, Gajendragadka, Subba Rao, Wanchoo, Dayal,
Ayyangar, Mudholkar and himself, MAJORITY OPINION)
These appeals have been heard together only insofar as they involve substantial questions of law as to the interpretation of the Constitution, with particular reference to clause (3) of
Article 20. This larger Bench was constituted in order to re-examine some of the propositions of law laid down by this Court in the case of M. P. Sharma v. Satish Chandra, 1978 (2) ELT
287 (SC), because when one of these cases was heard by five of us, we felt that some of the propositions therein laid down may have been too widely stated, and, therefore, required to be re-stated with more particularity. We have not heard counsel for the parties on the merits of the orders passed by the Courts below, but have confined the discussions at the Bar, insofar as they had any bearing on the questions of law relating to the interpretation of clause (3) of
Article 20 of the Constitution.
It is not necessary to state in any detail the facts of each of the cases now before us. We shall, therefore, state only so much of the facts as have occasioned calling in aid of the provisions of clause (3) of Article 20 of the Constitution. In the first case, namely, Criminal
Appeal 146 of 1958, the State of Bombay is the appellant. The respondent was charged, alongwith another person, under section 302, read with section 34 of the I. P. C., as also under section 19(e) of the Indian Arms Act (XI of 1878). The Trial Court found him guilty of those charges and sentenced him to imprisonment for life under section 302, read with section 34 of the I.P.C. and to a term of two years rigorous imprisonment for the offence under the Arms
Act. At the trial the identification of the respondent, as one of the two alleged culprits, was the most important question to be decided by the Court. Besides other evidence, the prosecution adduced in evidence a chit-Ex. 5 alleged to be in his handwriting and said to have been given by him. In order to prove that Ex. 5 was in the handwriting of the respondent, the police had obtained from him, during the investigation, three specimen handwritings of his on three separate sheets of paper which were marked as Exs. 27, 28 and 29. The disputed document, namely, Ex. 5 was compared with the admitted handwritings on Exs. 27, 28 and 29 by the Handwriting Expert whose evidence was to the effect that they are all writings by the same person. At the trial and in the High Court, the question was raised as to the admissibility of the specimen writings contained in Exs. 27, 28 and 29, in view of the provisions of Article
20(3) of the Constitution. It is an admitted fact that those specimen writings of the accused had been taken by the police while he was in police custody, but it was disputed whether the accused had been compelled to give those writings within the meaning of clause (3) of
Article 20.
The plea of the accused that he was forced by the Deputy Superintendent of Police to give those writings has not been accepted by the learned Trial Judge. But those documents have been excluded from consideration, as inadmissible evidence, on the ground that though there
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was no threat or force used by the police in obtaining those writings from the accused person, yet in the view of the Court "the element of compulsion was implicit in his being at that time in police custody." In this conclusion both the Trial Judge and the High Court have agreed.
The identification of the accused person was also sought to be proved by the evidence of witnesses, who identified him at an identification parade. But the holding of the identification parade has not been sought to be brought within the prohibition of clause (3) of Article 20.
After eliminating the Exs. 27, 28 and 29 from their consideration, the High Court, on a consideration of the other evidence in the case, came to the conclusion that the identity of the respondent had not been established beyond a reasonable doubt. Hence, giving him the benefit of doubt, they acquitted him. The State of Bombay moved this Court and obtained special leave to appeal from the Judgment and Order of acquittal, passed by the High Court.
On these facts, the only questions of constitutional importance that this Bench has to determine are: (1) whether by the production of the specimen handwritings - Exs. 27, 28, and
29 - the accused could be said to have been 'a witness against himself ' within the meaning of
Article 20(3) of the Constitution; and (2) whether the mere fact that when those specimen handwritings had been given, the accused person was in police custody could, by itself, amount to compulsion, apart from any other circumstances which could be urged as vitiating the consent of the accused in giving those specimen handwritings. This Bench is not concerned with the further question whether in all the circumstances disclosed by the evidence in this case, the accused could be said to have been compelled, as a matter of fact, to give those specimens. In Criminal Appeals 110 and 111 of 1958, which arose out of the same set of facts, the accused person has been convicted by the Courts below under sections 380 and 457 of the I.
P. C., as also under section 19(f) of the Indian Arms Act. The facts of the case necessary for bringing out the points in controversy are that a shop in Hissar in Punjab was burgled. In the course of the burglary four double-barrelled guns, one single-barrelled gun and a rifle were stolen. During his interrogation by the police at the investigation stage, the appellant is alleged to have given the information that out of the arms stolen from the shop at Hissar he had buried one .22 bore rifle, two .12 bore double-barrelled guns and one .18 single-barrelled gun at a certain place. It is alleged that as a consequence of the information thus given by the accused and on his pointing out the exact location where these buried articles could be found, the rifles and guns were actually recovered. During the investigation the police had taken possession of certain glass panes and phials from the burgled shop which bore some palm and finger impressions (Exs. P10 to P12). In order to compare the impressions on those glass panes and phials with those of the accused, the investigating police officer got the impressions of the palms and fingers of the accused taken in the presence of a Magistrate. On the evidence adduced by the prosecution, including the fact of the recovery of the firearms and the evidence of the identity of the impressions of the accused taken as aforesaid, he was convicted and sentenced by the Courts below to certain terms of imprisonment and was also ordered to pay a fine of one thousand rupees. On appeal, the sentence of fine and imprisonment was modified by the Court of Appeal. In revision in the High Court, both the revisional applications were dismissed. The convicted person prayed for and obtained the necessary certificate of fitness under Article134(1)(c) of the Constitution from the High Court of Punjab. The points raised in this Court were: (1) that section 27 of the Indian Evidence Act is violative of Article 14 of the Constitution; and (2) the impressions of the appellant 's palms and fingers taken from him after his arrest, which were compared with the impressions on the glass panes and phials, were not admissible evidence in view of the provisions of Article 20(3) of the Constitution. Though the provisions of sections 5 and 6 of the Identification of Prisoners Act, 1920, (XXXIII of
1920) have not in terms been attacked as ultra vires Article 20(3) of the Constitution, the effect of the argument based on that article is to bring into controversy the constitutionality of
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sections 5 and 6 of the Act. As a matter of fact, one of the propositions of law to be urged in support of the appeals is stated in these terms; "that sections 5 and 6 of the Identification of
Prisoners Act, 1920, read with Article 20(3) of the Constitution render the evidence of measurements to be inadmissible".
In the last case, Criminal Appeal 174 of 1959, the State of West Bengal has preferred this appeal by special leave granted by this Court under Article 136(1) of the Constitution against the judgment and order of the High Court at Calcutta dated June 4, 1959, passed in its revisional jurisdiction, against an order of the Magistrate, First Class, Howrah, directing the respondent to give his specimen writing and signature, under section 73 of the Indian Evidence
Act. It is only necessary to state the following facts in order to bring out the questions of law bearing on the interpretation of the Constitution. During the investigation of a criminal case relating to trafficking in contraband opium, the respondent 's residence was searched and certain quantity of contraband opium was alleged to have been found in his possession. The respondent, along with another person, was produced before a Magistrate of the Ist Class at
Howrah and was later released on bail. From the materials and Statements obtained during the investigation of the case by the police, it was considered that there were reasonable grounds to believe that the endorsement on the back of certain railway receipts for consignment of goods seized at Howrah Railway Station was in the handwriting of the respondent, and it was, therefore, necessary to take his specimen writing and signature for the purpose of comparison and verification, When the accused were produced before the Magistrate, the Investigating
Officer made a prayer to the Magistrate for taking specimen writing and signature of the respondent. On an adjourned date when the accused persons, including the respondent were present in the Court of the Magistrate, the respondent declined to give his specimen writing and signature, contending that Article 20(3) of the Constitution prohibited any such specimens being taken against the will of the accused. After hearing the parties, the learned Magistrate overruled the objection on behalf of the accused and allowed the prayer by the prosecution for taking the specimen writing and signature of the respondent. The respondent moved the High
Court at Calcutta under section 439 of the Cr. P. C. and Article 20(3) of the Constitution. The case was heard by a Division Bench consisting of J. P. Mitter and Bhattacharyya, JJ, on July
2 and 3, 1958, but the judgment was not delivered until the 4th of June, 1959. The Court held that the prohibition contained in Article 20(3) of the Constitution applied to the case of writing and signature to be taken, as directed by the learned Magistrate. The Court relied upon the decision of this Court in M. P. Sharma 's case, 1978 (2) ELT 287 (SC). In coming to this conclusion, the Division Bench disagreed with the previous decision of another Division
Bench of that Court in the case of Sailendra Nath Sinha v. State, [1955] A.I.R. Cal. 247, which has laid down that a mere direction under section 73 of the Evidence Act to a person accused of an offence to give his specimen writing did not come within the prohibition of
Article 20(3) of the Constitution. The earlier Bench further held that the decision of this Court in Sharma 's case, 1978 (2) ELT 287 (SC), referred to above, did not govern the case of direction given by the Court under section 73 of the Evidence act for giving specimen writing.
Instead of referring the question to a larger Bench, the later Division Bench took upon itself to pronounce against the considered view of that Court in the earlier decision. The State of
West Bengal naturally had to come up to this Court to get the constitutional issues determined because the issues raised were of far-reaching importance in the investigation and trial of criminal cases. The main question which arises for determination in this appeal is whether a direction given by a Court to an accused person present in Court to give his specimen writing and signature for the purpose of comparison under the provisions of section 73 of the Indian
Evidence Act infringes the fundamental right enshrined in Article 20(3) of the Constitution.
The arguments at the Bar may be classified as taking three distinct lines. The first line, on the one extreme, may be said to have been taken by Mr. Sikri, the Advocate General of Punjab,
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and which may be characterised as a narrow view, runs as follows: Clause (3) aforesaid, in view of its setting, its history and the policy underlying, the privilege accorded by the
Constitution to an accused person, should not be applied at the stage of investigation of an offence. It should be confined to cases of compulsory extraction of incriminating Statements or communications by an accused person in Court, the expression 'compelled to be a witness ' being understood as meaning 'being compelled to give oral testimony '. It does not include the compulsory production of documents. Similarly, it does not prohibit the compulsory exhibition or examination of the body of the accused, or any part of it, or the taking of specimen writing, thumb impression, impression of the palm or the feet or the fingers of an accused. Whether or not there has been compulsion should be judged by the nature of the action taken by the authority, or the Court that determines the controversy, and not the state of mind of the accused.
On the other extreme is the argument by Mr. S. P. Varma, for the accused in the first case, who contended that the clause aforesaid of the Constitution gives complete protection of the widest amplitude to an accused person, irrespective of the time and place and of the nature of the evidence, whether it is oral or documentary or material. The extreme form, which his argument took can best be stated in his own words as follows : "Anything caused, by any kind of threat or inducement, to be said or done, by a person, accused or likely to be accused of any offence, by non-voluntary positive act or speech of that person which furthers the cause of any prosecution against him or which results or is likely to result in the incrimination of that person qua any offence, is violative of the fundamental right guaranteed under clause (3) of
Article 20 of the Constitution of India". According to his argument, if an accused person makes any statement or any discovery, there is not only a rebuttable presumption that he had been compelled to do so, but that it should be taken as a conclusive proof of that inferential fact. Any kind of inducement, according to him, is also included in the expression 'compulsion ' by the police or elsewhere. The test, according to him, is not the volition of the accused but the incriminatory nature of the statement or communication. Hence, any statement made to a police officer, while in police custody, brings the same within the prohibitory ambit of the clause of the Constitution. On the face of them, the propositions propounded by Mr. Varma are much too broadly and widely stated to be accepted.
The third view, which may be characterised as an intermediate view, was advocated by the learned Attorney General, appearing for the Union. According to him, a person seeking protection under the clause must satisfy all the four constituent elements contained in clause
(3) of Article 20, namely, (1) he must be an accused person; (2) he must have been compelled;
(3) the compulsion must be to be a witness; and (4) against himself. Compulsion, according to him, means coercion or constraint and does not include mere asking by the police to do a certain thing or the direction by a court to give a thumb impression or specimen writing. In other words, compulsion has to be equated to what has been sometimes characterised as "third degree" methods to extort confessional statements. "To be witness" is an expression which must be understood in consonance with the existing law of evidence and criminal procedure,
e. g. sections 27 and 73 of the Evidence Act and sections 94 and 96 of the Code of Criminal
Procedure. Though, according to English Law, the expression is confined to oral testimony, he was prepared to go to the length of conceding that any statement, whether oral or in writing by any accused person, transmitting his knowledge disclosing relevant facts of which he was aware, would amount to 'bring a witness ' against himself. But mere production of some material evidence, by itself, would not come within the ambit of the expression 'to be a witness '.
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The several questions for decision arising out of this batch of cases have to be answered with reference to the provisions of clause (3) of Article 20 of the Constitution which is in these terms :"No person accused of any offence shall be compelled to be a witness against himself." These provisions came up for consideration by the Full Court in the case of M. P. Sharma
v. Satish Chandra, 1978 (2) ELT 287 (SC). Though the question directly arising for decision in that case was whether a search and seizure of documents under the provisions of sections
94 and 96 of the Code of Criminal Procedure came within the ambit of the prohibition of clause (3) of Article 20 of the Constitution, this Court covered a much wider field. Besides laying down that the search and seizure complained of in that case were not within the prohibition, this Court examined the origin and scope of the doctrine of protection against self-incrimination with reference to English Law and the Constitution of the United States of
America, with particular reference to the Fourth and Fifth Amendments. On an examination of the case law in England and America and the standard text books on Evidence, like Phipson and Wigmore, and other authorities, this Court observed as follows :"Broadly stated the guarantee in Article 20(3) is against "testimonial compulsion".
It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in article 20(3) is "to be a witness". A person can "be a witness" not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (see section 119 of the Evidence Act) or the like. "To be a witness" is nothing more than "to furnish evidence", and such evidence can be furnished through lips or by production of a thing or of a document or in other modes. So far as production of documents is concerned, no doubt section 139 of the Evidence Act says that a person producing a document on summons is not a witness. But that section is meant to regulate the right of cross-examination. It is not a guide to the connotation of the word "witness", which must be understood in its natural sense, i. e., as referring to a person who furnishes evidence. Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in article 20(3) is "to be a witness" and not to "appear as a witness": It follows that the protection afforded to an accused in so far as it is related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been leveled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case. "
This Court did not accept the contention that the guarantee against testimonial compulsion is to be confined to oral testimony at the witness stand when standing trial for an offence. The guarantee was, thus, held to include not only oral testimony given in court or out of court, but also to Statements in writing which incriminated the maker when figuring as an accused person. After having heard elaborate arguments for and against the views thus expressed by this Court after full deliberation, we do not find any good reasons for departing from those views. But the Court went on to observe that "to be a witness" means "to furnish evidence" and includes not only oral testimony or Statements in writing of the accused but also
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production of a thing or of evidence by other modes. It may be that this Court did not intend to lay down - certainly it was not under discussion of the Court as a point directly arising for decision - that calling upon a person accused of an offence to give his thumb impression, his impression of palm or fingers or of sample handwriting or signature comes within the ambit of "to be a witness" which has been equated to "to furnish evidence". Whether or not this
Court intended to lay down the rule of law in those wide terms has been the subject matter of decisions in the different High Courts in this country. Those decisions are, by no means, uniform; and conflicting views have been expressed even in the same High Court on different occasions. It will serve no useful purpose to examine those decisions in detail. It is enough to point out that the most recent decision, to which our attention was called, is of a Full Bench of the Kerala High Court in the case of State of Kerala v. K. K. Sankaran Nair, AIR 1960 Ker.
392. In that case, Ansari C.J., who delivered the opinion of the Court, has made reference to and examined in detail the pronouncements of the different High Courts. Ultimately he came to the conclusion that the decision of this Court in Sharma 's case, 1978 (2) ELT 287 (SC), also covered the case of a specimen handwriting given by an accused person, under compulsion. "To be a witness" may be equivalent to "furnishing evidence" in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. "Furnishing evidence" in the latter sense could not have been within the contemplation of the Constitution-makers for the simple reason that - though they may have intended to protect an accused person from the hazards of self-incrimination, in the light of the English Law on the subject - they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice.
Furthermore it must be assumed that the Constitution-makers were aware of the existing law, for example, section 73 of the Evidence Act or sections 5 and 6 of the Identification of
Prisoners Act (XXXIII of 1920). Section 5 authorises a Magistrate to direct any person to allow his measurements or photographs to be taken if he is satisfied that it is expedient for the purposes of any investigation or proceeding under the Code of Criminal Procedure to do so. 'Measurements ' include finger impressions and foot-print impressions. If any such person who is directed by a Magistrate, under section 5 of the Act, to allow his measurements or photographs to be taken resists or refuses to allow the taking of the measurements or photographs, it has been declared lawful by section 6 to use all necessary means to secure the taking of the required measurements or photographs. Similarly, section 73 of the Evidence
Act authorises the Court to permit the taking of finger impression or a specimen handwriting or signature of a person present in Court, if necessary for the purpose of comparison.
The matter may be looked at from another point of view. The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not "to be a witness". "To be a witness" means imparting knowledge in respect of relevant fact, by means of oral Statements or Statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said 'to be a witness ' to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been classified by text writers into three categories, namely, (1) oral testimony; (2) evidence furnished by
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documents; and (3) material evidence. We have already indicated that we are in agreement with the Full Court decision in Sharma 's case, that the prohibition in clause (3) of
Article 20 covers not only oral testimony given by a person accused of an offence but also his written Statements which may have a bearing on the controversy with reference to the charges against him. The accused may have documentary evidence in his possession which may throw some light on the controversy. If it is a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the Court to produce that document in accordance with the provisions of section 139 of the Evidence Act, which, in terms, provides that a person may be summoned to produce a document in his possession or power and that he does not become a witness by the mere fact that he has produced it; and therefore, he cannot be cross-examined. Of course, he can be cross-examined if he is called as a witness who has made Statements conveying his personal knowledge by reference to the contents of the document or if he has given his Statements in Court otherwise than by reference to the contents of the documents.
In our opinion, therefore, the observations of this Court in Sharma 's case, that section
139 of the Evidence Act has no bearing on the connotation of the word 'witness ' is not entirely well-founded in law. It is well- established that clause (3) of Article 20 is directed against selfincrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony '. The giving of a 'personal testimony ' must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot changed their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness '.
In order that a testimony by an accused person may be said to have been selfincriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of 'testimony '.
Similarly, during the investigation of a crime by the police, if an accused person were to point out the place where the corpus delicti was lying concealed and in pursuance of such an information being given by an accused person, discovery is made within the meaning of section 27 of the Evidence Act, such information and the discovery made as a result of the
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information may be proved in evidence even though it may tend to incriminate the person giving the information, while in police custody. Unless it is held that the provisions of section 27 of the Evidence Act, in so far as they make it admissible evidence which has the tendency to incriminate the giver of the information, are unconstitutional as coming within the prohibition of clause (3) of Article 20, such information would amount to furnishing evidence. This Court in Sharma 's case, was not concerned with pronouncing upon the constitutionality of the provisions of section 27 of the Evidence Act. It could not, therefore, be said to have laid it down that such evidence could not be adduced by the prosecution at the trial of the giver of the information for an alleged crime. The question whether section 27 of the Evidence Act was unconstitutional because it offended Article 14 of the Constitution was considered by this court in the case of State of U. P. v. Deomen Upadhyaya, 1960 Cri. L.J.
1504. It was held by this Court that section 27 of the Evidence Act did not offend Article 14 of the Constitution and was, therefore, intra vires. But the question whether it was unconstitutional because it contravened the provisions of clause (3) of Article 20 was not considered in that case. That question may, therefore, be treated as an open one. The question has been raised in one of the cases before us and has, therefore, to be decided. The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by that Section. If it is not incriminatory of the person giving the information, the question does not arise. It can arise only when it is of an incriminatory character so far as the giver of the information is concerned.
If the self-incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of clause (3)
Article 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of section 27 of the Evidence Act are not within the prohibition aforesaid, unless compulsion has been used in obtaining the information.
In this connection the question was raised before us that in order to bring the case within the prohibition of clause (3) of Article 20, it is not necessary that the statement should have been made by the accused person at a time when he fulfilled that character; it is enough that he should have been an accused person at the time when the statement was sought to be proved in Court, even though he may not have been an accused person at the time he had made that statement. The correctness of the decision of the Constitution Bench of this Court in the case of Mohamed Dastagir v. State of Madras, 1960 Cri. L.J. 1159, was questioned because it was said that it ran counter to the observations of the Full Court in Sharma 's case. In the Full Court decision of this Court this question did not directly arise; nor was it decided. On the other hand, this Court in Sharma 's case held that the protection under Article 20(3) of the
Constitution is available to a person against whom a formal accusation had been leveled, inasmuch as a First Information Report had been lodged against him. Sharma 's case, therefore, did not decide anything to the contrary of what this Court said in Mohamed Dastagir. The latter decision in our opinion lays down the law correctly.
In order to bring the evidence within the inhibitions of clause (3) of Article 20 it must be shown not only that the person making the statement was an accused at the time he made it and that it had a material bearing on the criminality of the maker of the statement, but also that he was compelled to make that statement. 'Compulsion ' in the context, must mean what in law is called 'duress '. In the Dictionary of English Law by Earl Jowitt, 'duress ' is explained as follows:
"Duress is where a man is compelled to do an act by injury, beating or unlawful imprisonment (sometimes called duress in strict sense) or by the threat of being killed, suffering some grievous bodily harm, or being unlawfully imprisoned
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(sometimes called menace, or duress per minas). Duress also includes threatening, beating or imprisonment of the wife, parent or child of a person. "
The compulsion in this sense is a physical objective act and not the state of mind of the person making the statement, except where the mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and, therefore, extorted. Hence, the mere asking by a police officer investigating a crime against a certain individual to do a certain thing is not compulsion within the meaning of Article 20(3). Hence, the mere fact that the accused person, when he made the statement in question was in police custody would not, by itself, be the foundation for an inference of law that the accused was compelled to make the statement. Of course, it is open to an accused person to show that while he was in police custody at the relevant time, he was subjected to treatment which, in the circumstances of the case, would lend itself to the inference that compulsion was, in fact, exercised. In other words, it will be a question of fact in each case to be determined by the
Court on weighing the facts and circumstances disclosed in the evidence before it.
In view of these considerations, we have come to the following conclusions:(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more.
In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.
(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion '.
(3) 'To be a witness ' is not equivalent to 'furnishing evidence ' in its widest significance; that is to say, as including not merely making of oral or written Statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt innocence of the accused.
(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness '.
(5) 'To be a witness ' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.
(6) 'To be a witness ' in its ordinary grammatical sense means giving oral testimony in
Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.
(7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.
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JUSTICE K. C. DAS GUPTA (for Justice S. K. Das, A. K. Sarkar & himself, CONCURRING)
Is a person compelled "to be a witness" against himself within the meaning of
Article 20(3) of the Constitution when he is compelled to give his specimen handwriting or signature, or impressions of his fingers, palm or foot to the investigating officer? Is he compelled "to be a witness" against himself within the meaning of the same constitutional provisions when he is compelled to give his specimen handwriting and signature for the purpose of comparison under the provisions of section 73 of the Indian Evidence Act? These are the main questions canvassed before us and they have both been answered in the negative in the judgment just pronounced by my Lord the Chief Justice. We agree with these answers; but as we have reached the same conclusion, by a somewhat different approach, and for different reasons, these have to be briefly indicated.
The question as regards the meaning to be attached to the words "to be a witness" as used in Article 20(3) of the Constitution came up for consideration in M. P. Sharma 's Case, 1978
(2) ELT 287 (SC). It was heard by all the eight Judges who constituted the Court at the time, and they came to a unanimous decision. The Court in that case had to decide whether search and seizure of documents under sections 94 and 96 of the Code of Criminal Procedure is a compelled production of the same so as to infringe the provisions of Article 20(3) of the
Constitution. After pointing out that the guarantee in Article 20(3) was against "testimonial compulsion", Jagannadhadas J., speaking for the Court said:
"The phrase used in Article 20(3) is "to be a witness". A person can "be a witness" not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (see section 119 of the
Evidence Act) or the like. "To be a witness" is nothing more than "to furnish evidence" and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes."
He next observed that section 139 of the Evidence Act which says that a person producing a document on summons is not a witness, is really meant to regulate the right of crossexamination and cannot be "a guide to the connotation of the word "witness" in Article 20(3), which must be understood in its natural sense, i.e., as referring to a person who furnishes evidence", and then proceeded :"Indeed, every positive volitional act which furnishes evidence is testimony and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part".
It was further stated that there was no reason to think that the protection in respect of the evidence so procured was confined to what transpired at the trial in the court room.
If the learned Judges had hoped that by their exhaustive judgment they would end all disputes about the limits of the protection granted by Article 20(3), these hopes were soon shattered. Questions were before long raised before the different High Courts, as to whether on the interpretation of the words "to be a witness" given by this Court in Sharma 's Case, compelling an accused person to give his finger prints or impressions of palm or foot or a specimen handwriting in the course of investigation, amounted to an infringement of
Article 20(3). The conclusions reached by the different High Courts, and in one case at least, by two Benches of the same High Court were different. That is why it has become necessary to examine the question again, and see how far, if at all, the interpretation given in Sharma 's
Case requires modification.
The complaint against the interpretation given in Sharma 's Case is that it does not solve the problem as to what the words "to be a witness" mean; but merely postpones the difficulty, of solving it by substituting the words "to furnish evidence" for the words "to be a witness".
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It throws no light, it is said, on what is "furnishing evidence", and unless that is clear, little is gained by saying that "to be a witness" is to "furnish evidence". Rival interpretations were suggested before us which it was claimed on behalf of the protagonists will solve the problem once for all. One of the propositions put forward was that "to be a witness" as used in
Article 20(3) cannot refer to anything said or done at the stage of investigation of an offence.
We agree with our learned brethren that this is an unduly narrow construction. As was pointed out in Sharma 's Case, the phrase used in Article 20(3) is "to be a witness" and not "to appear as a witness". That by itself justifies the conclusion "that the protection afforded to an accused in so far as it is related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him". If the protection was intended to be confined to being a witness in Court then really it would have been an idle protection. It would be completely defeated by compelling a person to give all the evidence outside court and then, having what he was so compelled to do, proved in court through other witnesses. An interpretation which so completely defeats the constitutional guarantee cannot, of course, be correct. The contention that the protection afforded by Article 20(3) is limited to the stage of trial must therefore be rejected.
That brings us to the suggestion that the expression "to be a witness" must be limited to a statement whether oral or in writing by an accused person imparting knowledge of relevant facts; but that mere production of some material evidence, whether documentary or otherwise would not come within the ambit of this expression. This suggestion has found favour with the majority of the Bench; we think however that this is an unduly narrow interpretation. We have to remind ourselves that while on the one hand we should bear in mind that the
Constitution-makers could not have intended to stifle legitimate modes of investigation we have to remember further that quite clearly they thought that certain things should not be allowed to be done, during the investigation, or trial, however helpful they might seem to be to the unfolding of truth and an unnecessary apprehension of disaster to the police system and the administration of justice, should not deter us from giving the words their proper meaning.
It appears to us that to limit the meaning of the words "to be a witness" in Article 20(3) in the manner suggested would result in allowing compulsion to be used in procuring the production from the accused of a large number of documents, which are of evidentiary value, sometimes even more so than any oral statement of a witness might be. Suppose, for example, an accused person has in his possession, a letter written to him by an alleged co-conspirator in reference to their common intention in connection with the conspiracy for committing a particular offence. Under section 10 of the Evidence Act this document is the relevant fact as against the accused himself for the purpose of proving the existence of the conspiracy and also for the purpose of showing that any such person was a party to it. By producing this, the accused will not be imparting any personal knowledge of facts; yet it would certainly be giving evidence of a relevant fact. Again, the possession by an accused of the plan of a house where burglary has taken place would be a relevant fact under section 8 of the Evidence Act as showing preparation for committing theft. By producing this plan is he not giving evidence against himself? To a person not overburdened with technical learning, the giving of evidence, would appear to be the real function of a witness. Indeed English literature is replete with instances of the use of the word "witness" as meaning "evidence". To give one example; Shakespeare 's
Horation speaking to Hamlet says:"Season your admiration for a while with an attent ear, till I may deliver, Upon the witness of these gentlemen, This marvel to you" (Hamlet, Act I, Scene, II).
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There can be no doubt that to the ordinary user of English words, the word "witness" is always associated with evidence, so that to say that to be a witness is to furnish evidence is really to keep to the natural meaning of the words.
But, what is the purpose of evidence? Section 3 of the Indian Evidence Act defines evidence thus:"Evidence means and includes (1) all Statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such Statements are called oral evidence; (2) all documents produced for the inspection of the Court; such documents are called documentary evidence.”
Section 5 states that evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are "hereinafter declared to be relevant and of no others." Then follow several sections laying down what are relevant facts.
It is clear from the scheme of the various provisions, dealing with the matter that the governing idea is that to be evidence, the oral statement or a statement contained in a document, shall have a tendency to prove a fact - whether it be a fact in issue or a relevant fact
- which is sought to be proved. Though this definition of evidence is in respect of proceedings in Court it will be proper, once we have come to the conclusion, that the protection of
Article 20(3) is available even at the stage of investigation, to hold that at that stage also the purpose of having a witness is to obtain evidence and the purpose of evidence is to prove a fact. The illustrations we have given above show clearly that it is not only by imparting of his knowledge that an accused person assists the proving of a fact; he can do so even by others means, such as the production of documents which though not containing his own knowledge would have a tendency to make probable to existence of a fact in issue or a relevant fact.
Much has been written and discussed in England and America as regards the historical origin and development of the rules against "testimonial compulsion". These matters of history, however, interesting they be, need not detain us and we must also resist the temptation of referring to the numerous cases especially in America where the concept of "testimonial compulsion" has been analysed. It is sufficient to remember that long before our Constitution came to be framed the wisdom of the policy underlying these rules had been well recognised.
Not that there was no view to the contrary; but for long it has been generally agreed among those who have devoted serious though to these problems that few things could be more harmful to the detection of crime or conviction of the real culprit, few things more likely to hamper the disclosure of truth than to allow investigators or prosecutors to slide down the easy path of producing by compulsion, evidence, whether oral or documentary, from an accused person. It has been felt that the existence of such an easy way would tend to dissuade persons in charge of investigation or prosecution from conducting diligent search for reliable independent evidence and from sifting of available materials with the care necessary for ascertainment of truth. If it is permissible in law to obtain evidence from the accused person by compulsion, why treat the hard path of laborious investigation and prolonged examination of other men, materials and documents? It has been well said that an abolition of this privilege would be an incentive for those in charge of enforcement of law "to sit comfortably in the shade rubbing red pepper into a poor devil 's eyes rather than to go about in the sun hunting up evidence". (Stephen, History of Criminal Law, p. 442). No less serious is the danger that some accused persons at least, may be induced to furnish evidence against themselves which is totally false - out of sheer despair and an anxiety to avoid an unpleasant present. Of all these dangers the Constitution-makers were clearly well aware and it was to avoid them that
Article 20(3) was put in the Constitution. It is obvious however that these dangers remain the same whether the evidence which the accused is compelled to furnish is in the form of
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statements, oral or written about his own knowledge or in the shape of documents or things, which though not transmitting knowledge of the accused person directly helps the Court to come to a conclusion against him. If production of such documents, or things is giving evidence, then the person producing it is being a witness, on what principle or reason can it be said that this does not amount to "being a witness" within the meaning of Article 20(3)?
We find none.
We can therefore find no justification for thinking that "to be a witness" in
Article 20(3) means to impart personal knowledge and find no reason for departing from what this Court said in Sharma 's Case that "to be a witness" is nothing more than "to furnish evidence", and such evidence can be furnished through lips or by production of a thing or of a document or in other modes.
The question then is: Is an accused person furnishing evidence when he is giving his specimen handwriting or impressions of his fingers, or palm or foot? It appears to us that he is. For, these are relevant facts, within the meaning of section 9 and section 11 of the Evidence
Act. Just as an accused person is furnishing evidence and by doing so, is being a witness, when he makes a statement that he did something, or saw something, so also he is giving evidence and so is being a "witness", when he produces a letter the contents of which are relevant under section 10, or is producing the plan of a house where a burglary has been committed or is giving his specimen handwriting or impressions of his finger, palm or foot. It has to be noticed however that Article 20(3) does not say that an accused person shall not be compelled to be a witness. It says that such a person shall not be compelled to be a witness against himself. The question that arises therefore is: Is an accused person furnishing evidence against himself, when he gives his specimen handwriting, or impressions of his fingers, palm or foot? The answer to this must, in our opinion, be in the negative.
The matter becomes clear, when we contrast the giving of such handwriting or impressions, with say, the production of a letter admissible in evidence under section 10, or the production of the plan of a burgled house. In either of these two latter cases, the evidence given tends by itself to incriminate the accused person. But the evidence of specimen handwriting or the impressions of the accused person 's fingers, palm or foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other impressions, identity between the two set is established. By themselves, these impressions or the handwritings do not incriminate the accused person, or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself. So when an accused person is compelled to give a specimen handwriting or impressions of his finger, palm or foot, it may be said that he has been compelled to be a witness; it cannot however be said that he has been compelled to be a witness against himself.
This view, it may be pointed out, does not in any way militate against the policy underlying the rule against "testimonial compulsion" we have already discussed above. There is little risk, if at all, in the investigator or the prosecutor being induced to lethargy or inaction because he can get such handwriting or impressions from an accused person. For, by themselves they are of little or of no assistance to bring home the guilt of an accused. Nor is there any chance of the accused to mislead the investigator into wrong channels by furnishing false evidence. For, it is beyond his power to alter the ridges or other characteristics of his hand, palm or finger or to alter the characteristics of his handwriting.
We agree therefore with the conclusion reached by the majority of the Bench that there is no infringement of Article 20(3) of the Constitution by compelling an accused person to give his specimen handwriting or signature; or impressions of his fingers, palm or foot to the
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investigating officer or under orders of a court for the purpose of comparison under the provisions of section 73 of the Indian Evidence Act; though we have not been able to agree with the view of our learned brethren that "to be a witness" in Article 20(3) should be equated with the imparting of personal knowledge or that an accused does not become a witness when he produces some document not in his own handwriting even though it may tend to prove facts in issue or relevant facts against him.
In Criminal Appeals Nos. 110 & 111 of 1958 a further question as regards the validity of section 27 of the Evidence Act was raised. It was said that the receipt of information from an accused person in the custody of a police officer which can be proved under section 27 is an infringement of Article 20(3). Section 27 provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of the information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. It cannot be disputed that by giving such information the accused furnishes evidence and therefore is a "witness" during the investigation. Unless however he is "compelled" to give the information he cannot be said to be "compelled ' to be a witness; and so Article 20(3) is not infringed. Compulsion is not however inherent in the receipt of information from an accused person in the custody of a police officer. There may be cases where an accused in custody is compelled to give the information later on sought to be proved under section 27. These will be other cases where the accused gives the information without any compulsion. Where the accused is compelled to give information it will be an infringement of Article 20(3); but there is no such infringement where he gives the information without any compulsion. Therefore, compulsion not being inherent or implicit in the fact of the information having been received from a person in custody, the contention that section 27 necessarily infringes Article 20(3) cannot be accepted.
A question was raised in the course of the discussion as to when a person can be said to have been "compelled" within the meaning of Article 20(3). One view is that there must be an element of constraint or coercion in the physical sense before it can be said that an accused person has been "compelled". The other view is that in addition to cases where there has been such constraint or coercion an accused should be said to have been "compelled" to be a witness whenever there has been inducement or promise which persuaded the accused to be a witness, even though there has been no such coercion or constraint. In Criminal Appeals Nos. 110 and
111 the information proved under section 27 of the Evidence Act was that Pokhar Singh had buried certain fire-arms in village Badesra under Toori and these were recovered when he pointed these out to the investigating police officer. This information was proved under section 27. But it does not appear to have been suggested that the accused was made to give this information by inducement or threat or promise. On the facts therefore there is no question of the information having been received by compulsion. The question whether any inducement or promise which leads an accused person to give information amounts to compulsion or not, does not therefore fall to be decided.
It may be pointed out that in the other appeals, viz., Criminal Appeal No. 146 of 1958 and
Criminal Appeal No. 174 of 1959, also, this question does not arise for consideration in view of our conclusion that in any case the accused does not become a "witness" against himself by giving his specimen signature or impressions of his fingers or palms.
It appears to us to be equally unnecessary to decide another which was mooted in the course of the hearing, viz., whether the prohibition of Article 20(3) operates only after a person has been accused of an offence or even before that stage. Admittedly, in all these cases the person on whose behalf the protection under Article 20(3) is claimed gave the specimen signature or impressions of fingers or palms after he had been actually accused of an offence.
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We think it right therefore not to express any opinion on any of these questions.
SELVI V. STATE OF KARNATAKA
AIR 2010 SC 1974, (2010) 7 SCC 263
Decided On: May 5, 2010
BENCH – CHIEF JUSTICE K. G. BALAKRISHNAN, R. V. RAVEENDRAN & J. M. PANCHAL
CHIEF JUSTICE BALAKRISHNAN (for the Court)
… The legal questions in this batch of criminal appeals relate to the involuntary administration of certain scientific techniques, namely narcoanalysis, polygraph examination and the Brain
Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases. This issue has received considerable attention since it involves tensions between the desirability of efficient investigation and the preservation of individual liberties.
Ordinarily the judicial task is that of evaluating the rival contentions in order to arrive at a sound conclusion. However, the present case is not an ordinary dispute between private parties. It raises pertinent questions about the meaning and scope of fundamental rights which are available to all citizens. Therefore, we must examine the implications of permitting the use of the impugned techniques in a variety of settings.
Objections have been raised in respect of instances where individuals who are the accused, suspects or witnesses in an investigation have been subjected to these tests without their consent. Such measures have been defended by citing the importance of extracting information which could help the investigating agencies to prevent criminal activities in the future as well as in circumstances where it is difficult to gather evidence through ordinary means. In some of the impugned judgments, reliance has been placed on certain provisions of the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 to refer back to the responsibilities placed on citizens to fully co-operate with investigation agencies. It has also been urged that administering these techniques does not cause any bodily harm and that the extracted information will be used only for strengthening investigation efforts and will not be admitted as evidence during the trial stage. The assertion is that improvements in fact-finding during the investigation stage will consequently help to increase the rate of prosecution as well as the rate of acquittal. Yet another line of reasoning is that these scientific techniques are a softer alternative to the regrettable and allegedly widespread use of `third degree methods ' by investigators.
The involuntary administration of the impugned techniques prompts questions about the protective scope of the `right against self-incrimination ' which finds place in Article 20(3) of our Constitution. In one of the impugned judgments, it has been held that the information extracted through methods such as `polygraph examination ' and the `Brain Electrical
Activation Profile (BEAP) test cannot be equated with `testimonial compulsion ' because the test subject is not required to give verbal answers, thereby falling outside the protective scope of Article 20(3). It was further ruled that the verbal revelations made during a narcoanalysis test do not attract the bar of Article 20(3) since the inculpatory or exculpatory nature of these revelations is not known at the time of conducting the test. To address these questions among others, it is necessary to inquire into the historical origins and rationale behind the `right against self-incrimination '. The principal questions are whether this right extends to the investigation stage and whether the test results are of a `testimonial ' character, thereby attracting the protection of Article 20(3). Furthermore, we must examine whether relying on the test results or materials discovered with the help of the same creates a reasonable likelihood of incrimination for the test subject.
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We must also deal with arguments invoking the guarantee of `substantive due process ' which is part and parcel of the idea of `personal liberty ' protected by Article 21 of the
Constitution. The first question in this regard is whether the provisions in the Code of Criminal
Procedure, 1973 that provide for `medical examination ' during the course of investigation can be read expansively to include the impugned techniques, even though the latter are not explicitly enumerated. To answer this question, it will be necessary to discuss the principles governing the interpretation of statutes in light of scientific advancements. Questions have also been raised with respect to the professional ethics of medical personnel involved in the administration of these techniques. Furthermore, Article 21 has been judicially expanded to include a `right against cruel, inhuman or degrading treatment ', which requires us to determine whether the involuntary administration of the impugned techniques violates this right whose scope corresponds with evolving international human rights norms. We must also consider contentions that have invoked the test subject 's `right to privacy ', both in a physical and mental sense. The scientific validity of the impugned techniques has been questioned and it is argued that their results are not entirely reliable. For instance, the narcoanalysis technique involves the intravenous administration of sodium pentothal, a drug which lowers inhibitions on part of the subject and induces the person to talk freely. However, empirical studies suggest that the drug-induced revelations need not necessarily be true. Polygraph examination and the
BEAP test are methods which serve the respective purposes of lie-detection and gauging the subject 's familiarity with information related to the crime. These techniques are essentially confirmatory in nature, wherein inferences are drawn from the physiological responses of the subject. However, the reliability of these methods has been repeatedly questioned in empirical studies. In the context of criminal cases, the reliability of scientific evidence bears a causal link with several dimensions of the right to a fair trial such as the requisite standard of proving guilt beyond reasonable doubt and the right of the accused to present a defence. We must be mindful of the fact that these requirements have long been recognised as components of
`personal liberty ' under Article 21 of the Constitution. Hence it will be instructive to gather some insights about the admissibility of scientific evidence.
… At this stage, it will be useful to frame the questions of law and outline the relevant sub-questions in the following manner:
I. Whether the involuntary administration of the impugned techniques violates the `right against self-incrimination ' enumerated in Article 20(3) of the Constitution? I-A. Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject? I-B. Whether the results derived from the impugned techniques amount to `testimonial compulsion ' thereby attracting the bar of Article 20(3)?
II. Whether the involuntary administration of the impugned techniques is a reasonable restriction on `personal liberty ' as understood in the context of Article21 of the Constitution?
Before answering these questions, it is necessary to examine the evolution and specific uses of the impugned techniques. Hence, a description of each of the test procedures is followed by an overview of their possible uses, both within and outside the criminal justice system. It is also necessary to gauge the limitations of these techniques. Owing to the dearth of Indian decisions on this subject, we must look to precedents from foreign jurisdictions which deal with the application of these techniques in the area of criminal justice.
DESCRIPTIONS OF TESTS - USES, LIMITATIONS AND PRECEDENTS
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Polygraph Examination
The origins of polygraph examination have been traced back to the efforts of Lombroso, a criminologist who experimented with a machine that measured blood pressure and pulse to assess the honesty of persons suspected of criminal conduct. His device was called a hydrosphygmograph. A similar device was used by psychologist William Marston during
World War I in espionage cases, which proved to be a precursor to its use in the criminal justice system. In 1921, John Larson incorporated the measurement of respiration rate and by
1939 Leonard Keeler added skin conductance and an amplifier to the parameters examined by a polygraph machine.
The theory behind polygraph tests is that when a subject is lying in response to a question, he/she will produce physiological responses that are different from those that arise in the normal course. During the polygraph examination, several instruments are attached to the subject for measuring and recording the physiological responses. The examiner then reads these results, analyzes them and proceeds to gauge the credibility of the subject 's answers.
Instruments such as cardiographs, pneumographs, cardio-cuffs and sensitive electrodes are used in the course of polygraph examinations. They measure changes in aspects such as respiration, blood pressure, blood flow, pulse and galvanic skin resistance. The truthfulness or falsity on part of the subject is assessed by relying on the records of the physiological responses. [See: Laboratory Procedure Manual - Polygraph Examination (Directorate of
Forensic Science, Ministry of Home Affairs, Government of India, New Delhi - 2005)]
There are three prominent polygraph examination techniques:
i.
ii. iii. The relevant-irrelevant (R-I) technique
The control question (CQ) technique
Directed Lie-Control (DLC) technique
Each of these techniques includes a pre-test interview during which the subject is acquainted with the test procedure and the examiner gathers the information which is needed to finalize the questions that are to be asked. An important objective of this exercise is to mitigate the possibility of a feeling of surprise on part of the subject which could be triggered by unexpected questions. This is significant because an expression of surprise could be mistaken for physiological responses that are similar to those associated with deception.
[Refer: David Gallai, `Polygraph evidence in federal courts: Should it be admissible? '
36 American Criminal Law Review 87-116 (Winter 1999) at p. 91]. Needless to say, the polygraph examiner should be familiar with the details of the ongoing investigation. To meet this end the investigators are required to share copies of documents such as the First
Information Report (FIR), Medico-Legal Reports (MLR) and Post-Mortem Reports (PMR) depending on the nature of the facts being investigated.
The control-question (CQ) technique is the most commonly used one and its procedure as well as scoring system has been described in the materials submitted on behalf of CBI. The test consists of control questions and relevant questions. The control questions are irrelevant to the facts being investigated but they are intended to provoke distinct physiological responses, as well as false denials. These responses are compared with the responses triggered by the relevant questions. Theoretically, a truthful subject will show greater physiological responses to the control questions which he/she has reluctantly answered falsely, than to the relevant questions, which the subject can easily answer truthfully. Conversely, a deceptive subject will show greater physiological responses while giving false answers to relevant questions in comparison to the responses triggered by false answers to control questions. In other words, a guilty subject is more likely to be concerned with lying about the relevant facts
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as opposed to lying about other facts in general. An innocent subject will have no trouble in truthfully answering the relevant questions but will have trouble in giving false answers to control questions. The scoring of the tests is done by assigning a numerical value, positive or negative, to each response given by the subject. After accounting for all the numbers, the result is compared to a standard numerical value to indicate the overall level of deception. The net conclusion may indicate truth, deception or uncertainty.
The use of polygraph examinations in the criminal justice system has been contentious.
In this case, we are mainly considered with situations when investigators seek reliance on these tests to detect deception or to verify the truth of previous testimonies. Furthermore, litigation related to polygraph tests has also involved situations where suspects and defendants in criminal cases have sought reliance on them to demonstrate their innocence. It is also conceivable that witnesses can be compelled to undergo polygraph tests in order to test the credibility of their testimonies or to question their mental capacity or to even attack their character. Another controversial use of polygraph tests has been on victims of sexual offences for testing the veracity of their allegations. While several states in the U.S.A. have enacted provisions to prohibit such use, the text of the Laboratory Procedure Manual for Polygraph
Examination [supra.] indicates that this is an acceptable use. In this regard, Para 3.4 (v) of the said Manual reads as follows:
(v) In cases of alleged sex offences such as intercourse with a female child, forcible rape, indecent liberties or perversion, it is important that the victim, as well as the accused, be made available for interview and polygraph examination.
It is essential that the polygraph examiner get a first hand detailed statement from the victim, and the interview of the victim precede that of the suspect or witnesses.... [The following article includes a table which lists out the statutorily permissible uses of polygraph examination in the different state jurisdictions of the United States of America:
Henry T. Greely and Judy Illes, `Neuroscience based lie- detection: The urgent need for regulation ', 33 American Journal of Law and Medicine, 377-421 (2007)]
The propriety of compelling the victims of sexual offences to undergo a polygraph examination certainly merits consideration in the present case. It must also be noted that in some jurisdictions polygraph tests have been permitted for the purpose of screening public employees, both at the stage of recruitment and at regular intervals during the service-period.
In the U.S.A., the widespread acceptance of polygraph tests for checking the antecedents and monitoring the conduct of public employees has encouraged private employers to resort to the same. In fact the Employee Polygraph Protection Act, 1998 was designed to restrict their use for employee screening. This development must be noted because the unqualified acceptance of ‘Lie-detector tests’ in India 's criminal justice system could have the unintended consequence of encouraging their use by private parties.
Polygraph tests have several limitations and therefore a margin for errors. The premise behind these tests is questionable because the measured changes in physiological responses are not necessarily triggered by lying or deception. Instead, they could be triggered by nervousness, anxiety, fear, confusion or other emotions. Furthermore, the physical conditions in the polygraph examination room can also create distortions in the recorded responses. The test is best administered in comfortable surroundings where there are no potential distractions for the subject and complete privacy is maintained. The mental state of the subject is also vital since a person in a state of depression or hyperactivity is likely to offer highly disparate physiological responses which could mislead the examiner. In some cases the subject may have suffered from loss of memory in the intervening time-period between the relevant act
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and the conduct of the test. When the subject does not remember the facts in question, there will be no self-awareness of truth or deception and hence the recording of the physiological responses will not be helpful. Errors may also result from ‘memory-hardening’, i.e. a process by which the subject has created and consolidated false memories about a particular incident.
This commonly occurs in respect of recollections of traumatic events and the subject may not be aware of the fact that he/she is lying.
The errors associated with polygraph tests are broadly grouped into two categories, i.e.,
‘false positives’ and ‘false negatives’. A ‘false positive’ occurs when the results indicate that a person has been deceitful even though he/she answered truthfully. Conversely a ‘false negative’ occurs when a set of deceptive responses is reported as truthful. On account of such inherent complexities, the qualifications and competence of the polygraph examiner are of the utmost importance. The examiner needs to be thorough in preparing the questionnaire and must also have the expertise to account for extraneous conditions that could lead to erroneous inferences. However, the biggest concern about polygraph tests is that an examiner may not be able to recognise deliberate attempts on part of the subject to manipulate the test results. Such
‘countermeasures’ are techniques which are deliberately used by the subject to create certain physiological responses in order to deceive the examiner. The intention is that by deliberately enhancing one 's reaction to the control questions, the examiner will incorrectly score the test in favour of truthfulness rather than deception. The most commonly used `countermeasures ' are those of creating a false sense of mental anxiety and stress at the time of the interview, so that the responses triggered by lying cannot be readily distinguished.
Since polygraph tests have come to be widely relied upon for employee screening in the
U.S.A., the U.S. Department of Energy had requested the National Research Council of the
National Academies (NRC) to review their use for different purposes. The following conclusion was stated in its report, i.e. The Polygraph and Lie-Detection: Committee to
Review the scientific evidence on the Polygraph (Washington D.C.: National Academies
Press, 2003) at pp. 212-213:
Polygraph Accuracy: Almost a century of research in scientific psychology and physiology provides little basis for the expectation that a polygraph test could have extremely high accuracy. The physiological responses measured by the polygraph are not uniquely related to deception. That is, the responses measured by the polygraph do not all reflect a single underlying process: a variety of psychological and physiological processes, including some that can be consciously controlled, can affect polygraph measures and test results. Moreover, most polygraph testing procedures allow for uncontrolled variation in test administration (e.g., creation of the emotional climate, selecting questions) that can be expected to result in variations in accuracy and that limit the level of accuracy that can be consistently achieved.
Theoretical Basis: The theoretical rationale for the polygraph is quite weak, especially in terms of differential fear, arousal, or other emotional states that are triggered in response to relevant or comparison questions. We have not found any serious effort at construct validation of polygraph testing.
Research Progress: Research on the polygraph has not progressed over time in the manner of a typical scientific field. It has not accumulated knowledge or strengthened its scientific underpinnings in any significant manner.
Polygraph research has proceeded in relative isolation from related fields of basic science and has benefited little from conceptual, theoretical, and technological advances in those fields that are relevant to the psychophysiological detection of deception. Page 289 of 610
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Future Potential: The inherent ambiguity of the physiological measures used in the polygraph suggests that further investments in improving polygraph technique and interpretation will bring only modest improvements in accuracy.
A Working Party of the British Psychological Society (BPS) also came to a similar conclusion in a study published in 2004. The key finding is reproduced below, [Cited from: A
Review of the current scientific status and fields of application of polygraph deception detection - Final Report (6 October, 2004) from The British Psychological Society (BPS)
Working Party at p. 10]:
A polygraph is sometimes called a lie detector, but this term is misleading. A polygraph does not detect lies, but only arousal which is assumed to accompany telling a lie. Polygraph examiners have no other option than to measure deception in such an indirect way, as a pattern of physiological activity directly related to lying does not exist (Saxe, 1991). Three of the four most popular lie detection procedures using the polygraph (Relevant/Irrelevant Test, Control Question Test and Directed Lie Test, ...) are built upon the premise that, while answering socalled `relevant ' questions, liars will be more aroused than while answering socalled `control ' questions, due to a fear of detection (fear of getting caught lying).
This premise is somewhat naive as truth tellers may also be more aroused when answering the relevant questions, particularly: (i) when these relevant questions are emotion evoking questions (e.g. when an innocent man, suspected of murdering his beloved wife, is asked questions about his wife in a polygraph test, the memory of his late wife might re-awaken his strong feelings about her); and
(ii) when the innocent examinee experiences fear, which may occur, for example, when the person is afraid that his or her honest answers will not be believed by the polygraph examiner. The other popular test (Guilty Knowledge Test, ...) is built upon the premise that guilty examinees will be more aroused concerning certain information due to different orienting reactions, that is, they will show enhanced orienting responses when recognising crucial details of a crime. This premise has strong support in psychophysiological research (Fiedler, Schmidt &
Stahl, 2002).
Coming to judicial precedents, a decision reported as Frye v. United States, (1923) 54
App DC 46, dealt with a precursor to the polygraph which detected deception by measuring changes in systolic blood pressure. In that case the defendant was subjected to this test before the trial and his counsel had requested the court that the scientist who had conducted the same should be allowed to give expert testimony about the results. Both the trial court and the appellate court rejected the request for admitting such testimony. The appellate court identified the considerations that would govern the admissibility of expert testimony based on scientific insights. It was held, id. at p. 47:
… Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a wellrecognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.
The standard of ‘general acceptance in the particular field’ governed the admissibility of scientific evidence for several decades. It was changed much later by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 US 579 (1993). In that case the petitioners had instituted proceedings against a pharmaceutical company which had marketed
‘Bendectin’, a prescription drug. They had alleged that the ingestion of this drug by expecting
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mothers had caused birth defects in the children born to them. To contest these allegations, the pharmaceutical company had submitted an affidavit authored by an epidemiologist. The petitioners had also submitted expert opinion testimony in support of their contentions. The
District Court had ruled in favour of the company by ruling that their scientific evidence met the standard of `general acceptance in the particular field ' whereas the expert opinion testimony produced on behalf of the petitioners did not meet the said standard. The Court of
Appeals for the Ninth Circuit upheld the judgment and the case reached the U.S. Supreme
Court which vacated the appellate court 's judgment and remanded the case back to the trial court. It was unanimously held that the ‘general acceptance’ standard articulated in Frye (supra.) had since been displaced by the enactment of the Federal Rules of Evidence in 1975, wherein Rule 702 governed the admissibility of expert opinion testimony that was based on scientific findings. This rule provided that:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
It was held that the trial court should have evaluated the scientific evidence as per Rule
702 of the Federal Rules of Evidence which mandates an inquiry into the relevance as well as the reliability of the scientific technique in question. The majority opinion (Blackmun, J.) noted that the trial judge 's first step should be a preliminary assessment of whether the testimony 's underlying reasoning or methodology is scientifically valid and whether it can be properly applied to the facts in issue. Several other considerations will be applicable, such as:
• whether the theory or technique in question can be and has been tested
• whether it has been subjected to peer review and publication
• its known or potential error rate
• the existence and maintenance of standards controlling its operation
• whether it has attracted widespread acceptance within the scientific community
It was further observed that such an inquiry should be a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate. It was reasoned that instead of the wholesale exclusion of scientific evidence on account of the high threshold of proving `general acceptance in the particular field ', the same could be admitted and then challenged through conventional methods such as cross-examination, presentation of contrary evidence and careful instructions to juries about the burden of proof. In this regard, the trial judge is expected to perform a `gate-keeping ' role to decide on the admission of expert testimony based on scientific techniques. It should also be kept in mind that Rule 403 of the
Federal Rules of Evidence, 1975 empowers a trial judge to exclude any form of evidence if it is found that its probative value will be outweighed by its prejudicial effect.
Prior to the Daubert decision (supra.), most jurisdictions in the U.S.A. had disapproved of the use of polygraph tests in criminal cases. Some State jurisdictions had absolutely prohibited the admission of polygraph test results, while a few had allowed consideration of the same if certain conditions were met. These conditions included a prior stipulation between the parties to undergo these tests with procedural safeguards such as the involvement of experienced examiners, presence of counsel and proper recording to enable subsequent scrutiny. A dissonance had also emerged in the treatment of polygraph test results in the different Circuit jurisdictions, with some jurisdictions giving trial judges the discretion to enquire into the reliability of polygraph test results on a case-by-case basis. … However,
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after Daubert (supra.) prescribed a more liberal criterion for determining the admissibility of scientific evidence, some Courts ruled that weightage could be given to polygraph results.
…The decisions cited above had led to some uncertainty about the admissibility of polygraph test results. However, this uncertainty was laid to rest by an authoritative ruling of the U.S. Supreme Court in United States v. Scheffer 523 US 303 (1998). In that case, an eight judge majority decided that Military Rule of Evidence 707 (which made polygraph results inadmissible in court-martial proceedings) did not violate an accused person 's Sixth
Amendment right to present a defence. The relevant part of the provision follows:
(a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence.
The facts were that Scheffer, a U.S. Air Force serviceman had faced court-martial proceedings because a routine urinalysis showed that he had consumed methamphetamines.
However, a polygraph test suggested that he had been truthful in denying the intentional consumption of the drugs. His defence of `innocent ingestion ' was not accepted during the court-martial proceedings and the polygraph results were not admitted in evidence. The Air
Force Court of Criminal Appeals affirmed the decision given in the court-martial proceedings but the Court of Appeals for the Armed Forces reversed the same by holding that an absolute exclusion of polygraph evidence (offered to rebut an attack on the credibility of the accused) would violate Scheffer 's Sixth Amendment right to present a defence. Hence, the matter reached the Supreme Court which decided that the exclusion of polygraph evidence did not violate the said constitutional right.
Eight judges agreed that testimony about polygraph test results should not be admissible on account of the inherent unreliability of the results obtained. Four judges agreed that reliance on polygraph results would displace the fact-finding role of the jury and lead to collateral litigation. In the words of Clarence Thomas, J., Id. at p. 309:
Rule 707 serves several legitimate interests in the criminal trial process. These interests include ensuring that only reliable evidence is introduced at trial, preserving the jury 's role in determining credibility, and avoiding litigation that is collateral to the primary purpose of the trial. The rule is neither arbitrary nor disproportionate in promoting these ends. Nor does it implicate a sufficiently weighty interest of the defendant to raise a constitutional concern under our precedents. On the issue of reliability, the Court took note of some Circuit Court decisions which had permitted trial courts to consider polygraph results in accordance with the Daubert factors.
However, the following stance was adopted, Id. at p. 312:
…Although the degree of reliability of polygraph evidence may depend upon a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner 's conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams. Individual jurisdictions therefore may reasonably reach differing conclusions as to whether polygraph evidence should be admitted. We cannot say, then, that presented with such widespread uncertainty, the President acted arbitrarily or disproportionately in promulgating a per se rule excluding all polygraph evidence.
… On the issue of encouraging litigation that is collateral to the primary purpose of a trial, it was held, Id. at p. 314:
…Allowing proffers of polygraph evidence would inevitably entail assessments of such issues as whether the test and control questions were appropriate, whether a particular polygraph examiner was qualified and had properly interpreted the
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physiological responses, and whether other factors such as countermeasures employed by the examinee had distorted the exam results. Such assessments would be required in each and every case. It thus offends no constitutional principle for the President to conclude that a per se rule excluding all polygraph evidence is appropriate. Because litigation over the admissibility of polygraph evidence is by its very nature collateral, a per se rule prohibiting its admission is not an arbitrary or disproportionate means of avoiding it.
In the same case, Kennedy, J. filed an opinion which was joined by four judges. While there was agreement on the questionable reliability of polygraph results, a different stand was taken on the issues pertaining to the role of the jury and the concerns about collateral litigation.
It was observed that the inherent unreliability of the test results is a sufficient ground to exclude the polygraph test results and expert testimony related to them. Stevens, J. filed a dissenting opinion in this case.
We have also come across a decision of the Canadian Supreme Court in R
v. Beland [1987] 36 C.C.C. (3d) 481. In that case the respondents had been charged with conspiracy to commit robbery. During their trial, one of their accomplices had given testimony which directly implicated them. The respondents contested this testimony and after the completion of the evidentiary phase of the trial, they moved an application to re-open their defence while seeking permission for each of them to undergo a polygraph examination and produce the results in evidence. The trial judge denied this motion and the respondents were convicted. However, the appellate court allowed their appeal from conviction and granted an order to re-open the trial and directed that the polygraph results be considered. On further appeal, the Supreme Court of Canada held that the results of a polygraph examination are not admissible as evidence. The majority opinion explained that the admission of polygraph test results would offend some well-established rules of evidence. It examined the ‘rule against oath-helping’ which prohibits a party from presenting evidence solely for the purpose of bolstering the credibility of a witness. Consideration was also given to the ‘rule against admission of past or out-of-court statements by a witness’ as well as the restrictions on producing ‘character evidence’. The discussion also concluded that polygraph evidence is inadmissible as ‘expert evidence’.
… I would say at once that this view is not based on a fear of the inaccuracies of the polygraph. On that question we were not supplied with sufficient evidence to reach a conclusion. However, it may be said that even the finding of a significant percentage of errors in its results would not, by itself, be sufficient ground to exclude it as an instrument for use in the courts. Error is inherent in human affairs, scientific or unscientific. It exists within our established court procedures and must always be guarded against. The compelling reason, in my view, for the exclusion of the evidence of polygraph results in judicial proceedings is twofold. First, the admission of polygraph evidence would run counter to the well-established rules of evidence which have been referred to. Second, while there is no reason why the rules of evidence should not be modified where improvement will result, it is my view that the admission of polygraph evidence will serve no purpose which is not already served. It will disrupt proceedings, cause delays, and lead to numerous complications which will result in no greater degree of certainty in the process than that which already exists.
…What would be served by the introduction of evidence of polygraph readings into the judicial process? To begin with, it must be remembered that however scientific it may be, its use in court depends on the human intervention of the operator. Whatever results are recorded by the polygraph instrument, their nature and significance reach the trier of fact through the mouth of the operator. Human fallibility is therefore present as before, but now it may be said to be fortified with the mystique of science.
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Narcoanalysis technique
This test involves the intravenous administration of a drug that causes the subject to enter into a hypnotic trance and become less inhibited. The drug-induced hypnotic stage is useful for investigators since it makes the subject more likely to divulge information. The drug used for this test is sodium pentothal, higher quantities of which are routinely used for inducing general anaesthesia in surgical procedures. This drug is also used in the field of psychiatry since the revelations can enable the diagnosis of mental disorders. However, we have to decide on the permissibility of resorting to this technique during a criminal investigation, despite its ' established uses in the medical field. The use of `truth-serums ' and hypnosis is not a recent development. Earlier versions of the narcoanalysis technique utilised substances such as scopolamine and sodium amytal. The following extracts from an article trace the evolution of this technique, [Cited from: C.W. Muehlberger, `Interrogation under Drug-influence: The socalled Truth serum technique ', 42(4) The Journal of Criminal Law, Criminology and Police
Science 513-528 (Nov-Dec. 1951) at pp. 513-514]:
With the advent of anaesthesia about a century ago, it was observed that during the induction period and particularly during the recovery interval, patients were prone to make extremely naove remarks about personal matters, which, in their normal state, would never have revealed.
Probably the earliest direct attempt to utilize this phenomenon in criminal interrogation stemmed from observations of a mild type of anaesthesia commonly used in obstetrical practice during the period of about 1903-1915 and known as `Twilight sleep '. This anaesthesia was obtained by hypodermic injection of solutions of morphine and scopolamine (also called
`hyoscine ') followed by intermittent chloroform inhalations if needed. The pain relieving qualities of morphine are well known. Scopolamine appears to have the added property of blocking out memories of recent events. By the combination of these drugs in suitable dosage, morphine dulled labor pains without materially interfering with the muscular contractions of labor, while scopolamine wiped out subsequent memories of the delivery room ordeal. The technique was widely used in Europe but soon fell into disrepute among obstetricians of this country, largely due to overdosage.
During the period of extensive use of ‘twilight sleep’ it was a common experience that women who were under drug influence, were extremely candid and uninhibited in their statements. They often made remarks which obviously would never have been uttered when in their normal state. Dr. Robert E. House, an observant physician practising in Ferris, Texas, believed that a drug combination which was so effective in the removal of ordinary restraints and which produced such utter candor, might be of value in obtaining factual information from persons who were thought to be lying. Dr. House 's first paper presented in 1922 suggested drug administration quite similar to the standard ‘twilight sleep’ procedure: an initial dose of grain of morphine sulphate together with 1/100 grain of scopolamine hydrobromide, followed at 20-30 minute intervals with smaller (1/200 - 1/400 grain) doses of scopolamine and periods of light chloroform anaesthesia. Subjects were questioned as they recovered from the light chloroform anaesthesia and gave answers which subsequently proved to be true. Altogether,
Dr. House reported about half-a-dozen cases, several of which were instrumental in securing the release of convicts from State prisons, he also observed that, after returning to their normal state, these subjects had little or no recollection of what had transpired during the period of interrogation. They could not remember what questions had been asked, nor by whom; neither could they recall any answers which they had made.
The use of the `Scopolamine ' technique led to the coining of the expression ‘truth serum’.
With the passage of time, injections of sodium amytal came to be used for inducing subjects
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to talk freely, primarily in the field of psychiatry. The author cited above has further observed, Id. at p. 522:
During World War II, this general technique of delving into a subject 's inner consciousness through the instrumentality of narcotic drugs was widely used in the treatment of war neuroses (sometimes called `Battle shock ' or `shell shock ').
Fighting men who had been through terrifically disturbing experiences often times developed symptoms of amnesia, mental withdrawal, negativity, paralyses, or many other mental, nervous, and physical derangements. In most instances, these patients refused to talk about the experiences which gave rise to the difficulty, and psychiatrists were at a loss to discover the crux of the problem. To intelligently counteract such a force, it was first necessary to identify it. Thus, the use of sedative drugs, first to analyze the source of disturbance (narcoanalysis) and later to obtain the proper frame of mind in which the patient could and would `talk out ' his difficulties, and, as they say `get them off his chest ' - and thus relieve himself
(narco-synthesis or narco-therapy) - was employed with signal success.
In the narcoanalysis of war neuroses a very light narcosis is most desirable. With small doses of injectable barbiturates (sodium amytal or sodium pentothal) or with light inhalations of nitrous oxide or somnoform, the subject pours out his pent-up emotions without much prodding by the interrogator.
It has been shown that the Central Investigation Agency (C.I.A.) in the U.S.A. had conducted research on the use of sodium pentothal for aiding interrogations in intelligence and counter-terrorism operations, as early as the 1950 's [See `Project MKULTRA - The CIA 's program of research in behavioral modification ', On file with Schaffer Library of Drug Policy,
Text available from . In recent years, the debate over the use of ‘truth-serums’ has been revived with demands for their use on persons suspected of involvement in terrorist activities. Coming to the test procedure, when the drug (sodium pentothal) is administered intravenously, the subject ordinarily descends into anaesthesia in four stages, namely:
i.
ii. iii. iv.
Awake stage
Hypnotic stage
Sedative stage
Anaesthetic stage
A relatively lighter dose of sodium pentothal is injected to induce the `hypnotic stage ' and the questioning is conducted during the same. The hypnotic stage is maintained for the required period by controlling the rate of administration of the drug. As per the materials submitted before us, the behaviour exhibited by the subject during this stage has certain specific characteristics, namely:
•
It facilitates handling of negative emotional responses (i.e. guilt, avoidance, aggression, frustration, non-responsiveness etc.) in a positive manner.
• It helps in rapid exploration and identification of underlying conflicts in the subject 's mind and unresolved feelings about past events.
• It induces the subject to divulge information which would usually not be revealed in conscious awareness and it is difficult for the person to lie at this stage
• The reversal from this stage occurs immediately when the administration of the drug is discontinued.
[Refer: Laboratory Procedure Manual - Forensic Narco-Analysis (Directorate of
Forensic Science, Ministry of Home Affairs, Government of India, New Delhi - 2005); Also see John M. Macdonald, `Truth Serum ', 46(2) The Journal of Criminal Law, Criminology and
Police Science 259-263 (Jul.-Aug. 1955)]
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The personnel involved in conducting a `narcoanalysis ' interview include a forensic psychologist, an anaesthesiologist, a psychiatrist, a general physician or other medical staff and a language interpreter if needed. Additionally a videographer is required to create videorecordings of the test for subsequent scrutiny. In India, this technique has been administered either inside forensic science laboratories or in the operation theatres of recognised hospitals.
While a psychiatrist and general physician perform the preliminary function of gauging whether the subject is mentally and physically fit to undergo the test, the anaesthesiologist supervises the intravenous administration of the drug. It is the forensic psychologist who actually conducts the questioning. Since the tests are meant to aid investigation efforts, the forensic psychologist needs to closely co-operate with the investigators in order to frame appropriate questions.
This technique can serve several ends. The revelations could help investigators to uncover vital evidence or to corroborate pre-existing testimonies and prosecution theories.
Narcoanalysis tests have also been used to detect ‘malingering’ (faking of amnesia). The premise is that during the ‘hypnotic stage’ the subject is unable to wilfully suppress the memories associated with the relevant facts. Thus, it has been urged that drug-induced revelations can help to narrow down investigation efforts, thereby saving public resources.
There is of course a very real possibility that information extracted through such interviews can lead to the uncovering of independent evidence which may be relevant. Hence, we must consider the implications of such derivative use of the drug- induced revelations, even if such revelations are not admissible as evidence. We must also account for the uses of this technique by persons other than investigators and prosecutors. Narcoanalysis tests could be requested by defendants who want to prove their innocence. Demands for this test could also be made for purposes such as gauging the credibility of testimony, to refresh the memory of witnesses or to ascertain the mental capacity of persons to stand trial. Such uses can have a direct impact on the efficiency of investigations as well as the fairness of criminal trials. [See generally:
George H. Dession, Lawrence Z. Freedman, Richard C. Donnelly and Frederick G. Redlich,
`Drug-Induced revelation and criminal investigation ', 62 Yale Law Journal 315-347 (February
1953)]
It is also important to be aware of the limitations of the `narcoanalysis ' technique. It does not have an absolute success rate and there is always the possibility that the subject will not reveal any relevant information. Some studies have shown that most of the drug-induced revelations are not related to the relevant facts and they are more likely to be in the nature of inconsequential information about the subjects ' personal lives. It takes great skill on part of the interrogators to extract and identify information which could eventually prove to be useful.
While some persons are able to retain their ability to deceive even in the hypnotic state, others can become extremely suggestible to questioning. This is especially worrying, since investigators who are under pressure to deliver results could frame questions in a manner that prompts incriminatory responses. Subjects could also concoct fanciful stories in the course of the `hypnotic stage '. Since the responses of different individuals are bound to vary, there is no uniform criteria for evaluating the efficacy of the `narcoanalysis ' technique.
In an article published in 1951, C.W. Muehlberger (supra.) had described a French case which attracted controversy in 1948. Raymond Cens, who had been accused of being a Nazi collaborator, appeared to have suffered an apoplectic stroke which also caused memory loss.
The French Court trying the case had authorised a board of psychiatrists to conduct an examination for ascertaining the defendant 's amnesia. The narcoanalysis technique was used in the course of the examination and the defendant did not object to the same. However, the test results showed that the subject 's memory was not impaired and that he had been faking amnesia. At the trial, testimony about these findings was admitted, thereby leading to a
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conviction. Subsequently, Raymond Cens filed a civil suit against the psychiatrists alleging assault and illegal search. However, it was decided that the board had used routine psychiatric procedures and since the actual physical damage to the defendant was nominal, the psychiatrists were acquitted. At the time, this case created quite a stir and the Council of the
Paris Bar Association had passed a resolution against the use of drugs during interrogation.
[Refer C.W. Muehlberger (1951) at p. 527; The Raymond Cens case has also been discussed in the following article: J.P. Gagnieur, `The Judicial use of Psychonarcosis in France ',
40(3) Journal of Criminal Law and Criminology 370-380 (Sept.-Oct. 1949)]
An article published in 1961 [Andre A. Moenssens, `Narcoanalysis in Law Enforcement ',
52(4) The Journal of Criminal Law, Criminology and Police Science 453-458 (Nov.-Dec.
1961)] had surveyed some judicial precedents from the U.S.A. which dealt with the forensic uses of the narcoanalysis technique. The first reference is to a decision from the State of
Missouri reported as State v. Hudson 314 Mo. 599 (1926). In that case, the defence lawyer in a prosecution for rape attempted to rely on the expert testimony of a doctor. The doctor in turn declared that he had questioned the defendant after injecting a truth-serum and the defendant had denied his guilt while in a drug-induced state. The trial court had refused to admit the doctor 's testimony by finding it to be completely unreliable from a scientific viewpoint. The appellate court upheld the finding and made the following observation, Id.at p. 602:
Testimony of this character - barring the sufficient fact that it cannot be classified otherwise than a self-serving declaration - is, in the present state of human knowledge, unworthy of serious consideration. We are not told from what well this serum is drawn or in what alembic its alleged truth compelling powers are distilled. Its origin is as nebulous as its effect is uncertain…
In State v. Lindemuth 56 N.M. 237 (1952) the testimony of a psychiatrist was not admitted when he wanted to show that the answers given by a defendant while under the influence of sodium pentothal supported the defendant 's plea of innocence in a murder case.
The trial court 's refusal to admit such testimony was endorsed by the appellate court, and it was noted, Id. at p. 243:
Until the use of the drug as a means of procuring the truth from people under its influence is accorded general scientific recognition, we are unwilling to enlarge the already immense field where medical experts, apparently equally qualified, express such diametrically opposed views on the same facts and conditions, to the despair of the court reporter and the bewilderment of the fact- finder.
However, Andre Moenssens (1961) also took note of a case which appeared to endorse an opposing view. In People v. Jones 42 Cal. 2d 219 (1954), the trial court overruled the prosecution 's objection to the introduction of a psychiatrist 's testimony on behalf of the defendant. The psychiatrist had conducted several tests on the defendant which included a sodium pentothal induced interview. The Court found that this was not sufficient to exclude the psychiatrist 's testimony in its entirety. It was observed that even though the truth of statements revealed under narcoanalysis remains uncertain, the results of the same could be clearly distinguished from the psychiatrist 's overall conclusions which were based on the results of all the tests considered together.
…The U.S. Supreme Court has also disapproved of the forensic uses of truth-inducing drugs in Townsend v. Sain 372 US 293 (1963). In that case a heroin addict was arrested on the suspicion of having committed robbery and murder. While in custody he began to show severe withdrawal symptoms, following which the police officials obtained the services of a physician. In order to treat these withdrawal symptoms, the physician injected a combined dosage of 1/8 grain of Phenobarbital and 1/230 grain of Hyoscine. Hyoscine is the same as
`Scopolamine ' which has been described earlier. This dosage appeared to have a calming effect on Townsend and after the physician 's departure he promptly responded to questioning
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by the police and eventually made some confessional statements. The petitioner 's statements were duly recorded by a court reporter. The next day he was taken to the office of the prosecutor where he signed the transcriptions of the statements made by him on the previous day. [The facts of this case have also been discussed in: Charles E. Sheedy,
`Narcointerrogation of a Criminal Suspect ', 50(2) The Journal of Criminal Law, Criminology and Police Science 118-123 (July- Aug 1959) at pp. 118-119]
When the case came up for trial, the counsel for the petitioner brought a motion to exclude the transcripts of the statements from the evidence. However, the trial judge denied this motion and admitted the court reporter 's transcription of the confessional statements into evidence.
Subsequently, a jury found Townsend to be guilty, thereby leading to his conviction. When the petitioner made a habeas corpus application before a Federal District Court, one of the main arguments advanced was that the fact of Scopolamine 's character as a truth-serum had not been brought out at the time of the motion to suppress the statements or even at the trial before the State Court. The Federal District Court denied the habeas corpus petition without a plenary evidentiary hearing, and this decision was affirmed by the Court of Appeals. Hence, the matter came before the U.S. Supreme Court. In an opinion authored by Earl Warren, C.J. the Supreme Court held that the Federal District Court had erred in denying a writ of habeas corpus without giving a plenary evidentiary hearing to examine the voluntariness of the confessional statements. Both the majority opinion as well as the dissenting opinion (Stewart,
J.) concurred on the finding that a confession induced by the administration of drugs is constitutionally inadmissible in a criminal trial. On this issue, Warren, C.J. observed, 372 US
293 (1963), at pp. 307-308:
Numerous decisions of this Court have established the standards governing the admissibility of confessions into evidence. If an individual 's ‘will was overborne’ or if his confession was not ‘the product of a rational intellect and a free will’, his confession is inadmissible because coerced. These standards are applicable whether a confession is the product of physical intimidation or psychological pressure and, of course, are equally applicable to a drug-induced statement. It is difficult to imagine a situation in which a confession would be less the product of a free intellect, less voluntary, than when brought about by a drug having the effect of a ‘truth serum’. It is not significant that the drug may have been administered and the questions asked by persons unfamiliar with hyoscine 's properties as a
‘truth serum’, if these properties exist. Any questioning by police officers which in fact produces a confession which is not the product of a free intellect renders that confession inadmissible.
(internal citations omitted)
… Since a person subjected to the narcoanalysis technique is in a half-conscious state and loses awareness of time and place, this condition can be compared to that of a person who is in a hypnotic state. In Horvath v. R [1979] 44 C.C.C. (2d) 385, the Supreme Court of Canada held that statements made in a hypnotic state were not voluntary and hence they cannot be admitted as evidence. It was also decided that if the post- hypnotic statements relate back to the contents of what was said during the hypnotic state, the subsequent statements would be inadmissible. In that case a 17 year old boy suspected for the murder of his mother had been questioned by a police officer who had training in the use of hypnotic methods. During the deliberate interruptions in the interrogation sessions, the boy had fallen into a mild hypnotic state and had eventually confessed to the commission of the murder. He later repeated the admissions before the investigating officers and signed a confessional statement. The trial judge had found all of these statements to be inadmissible, thereby leading to an acquittal. The
Court of Appeal had reversed this decision, and hence an appeal was made before the Supreme
Court.
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Notably, the appellant had refused to undergo a narcoanalysis interview or a polygraph test. It was also evident that he had not consented to the hypnosis. The multiple opinions delivered in the case examined the criterion for deciding the voluntariness of a statement.
Reference was made to the well-known statement of Lord Summer in Ibrahim v. R [1914]
A.C. 599 (P.C.), at p. 609:
It has long been established as a positive rule of English criminal law that no statement made by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.
… Our attention has also been drawn to the decision reported as Rock v. Arkansas 483
US 44 (1987), in which the U.S. Supreme Court ruled that hypnotically-refreshed testimony could be admitted as evidence. The constitutional basis for admitting such testimony was the
Sixth Amendment which gives every person a right to present a defence in criminal cases.
However, the crucial aspect was that the trial court had admitted the oral testimony given during the trial stage rather than the actual statements made during the hypnosis session conducted earlier during the investigation stage. It was found that such hypnotically-refreshed testimony was the only defence available to the defendant in the circumstances. In such circumstances, it would of course be open to the prosecution to contest the reliability of the testimony given during the trial stage by showing that it had been bolstered by the statements made during hypnosis. It may be recalled that a similar line of reasoning had been adopted in United States v. Solomon 753 F. 2d 1522 (9th Circ. 1985), where for the purpose of admissibility of testimony, a distinction had been drawn between the statements made during a narcoanalysis interview and the oral testimony given during the trial stage which was allegedly based on the drug-induced statements. Hence, the weight of precedents indicates that both the statements made during narcoanalysis interviews as well as expert testimony relating to the same have not been given weightage in criminal trials.
Brain Electrical Activation Profile (BEAP) test
The third technique in question is the `Brain Electrical Activation Profile test ', also known as the `P300 Waves test '. It is a process of detecting whether an individual is familiar with certain information by way of measuring activity in the brain that is triggered by exposure to selected stimuli. This test consists of examining and measuring `event-related potentials '
(ERP) i.e. electrical wave forms emitted by the brain after it has absorbed an external event.
An ERP measurement is the recognition of specific patterns of electrical brain activity in a subject that are indicative of certain cognitive mental activities that occur when a person is exposed to a stimulus in the form of an image or a concept expressed in words. The measurement of the cognitive brain activity allows the examiner to ascertain whether the subject recognised stimuli to which he/she was exposed. [Cited from: Andre A Moenssens,
`Brain Fingerprinting - Can it be used to detect the innocence of persons charged with a crime? '
70 University of Missouri at Kansas City Law Review 891-920 (Summer 2002) at p. 893]
By the late 19th century it had been established that the brain functioned by emitting electrical impulses and the technology to measure them was developed in the form of the electroencephalograph (EEG) which is now commonly used in the medical field. Brain wave patterns observed through an EEG scan are fairly crude and may reflect a variety of unrelated brain activity functions. It was only with the development of computers that it became possible to sort out specific wave components on an EEG and identify the correlation between the waves and specific stimuli. The P300 wave is one such component that was discovered by Dr.
Samuel Sutton in 1965. It is a specific event-related brain potential (ERP) which is triggered
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when information relating to a specific event is recognised by the brain as being significant or surprising. The P300 waves test is conducted by attaching electrodes to the scalp of the subject, which measure the emission of the said wave components. The test needs to be conducted in an insulated and air-conditioned room in order to prevent distortions arising out of weather conditions. Much like the narcoanalysis technique and polygraph examination, this test also requires effective collaboration between the investigators and the examiner, most importantly for designing the stimuli which are called `probes '. Ascertaining the subject 's familiarity with the `probes ' can help in detecting deception or to gather useful information. The test subject is exposed to auditory or visual stimuli (words, sounds, pictures, videos) that are relevant to the facts being investigated alongside other irrelevant words and pictures. Such stimuli can be broadly classified as material `probes ' and neutral `probes '. The underlying theory is that in the case of guilty suspects, the exposure to the material probes will lead to the emission of
P300 wave components which will be duly recorded by the instruments. By examining the records of these wave components the examiner can make inferences about the individual 's familiarity with the information related to the crime. [Refer: Laboratory Procedure Manual Brain Electrical Activation Profile (Directorate of Forensic Science, Ministry of Home
Affairs, Government of India, New Delhi - 2005)]
The P300 wave test was the precursor to other neuroscientific techniques such as `Brain
Fingerprinting ' developed by Dr. Lawrence Farwell. The latter technique has been promoted in the context of criminal justice and has already been the subject of litigation. There is an important difference between the ‘P300 waves test’ that has been used by Forensic Science
Laboratories in India and the ‘Brain Fingerprinting’ technique. Dr. Lawrence Farwell has argued that the P300 wave component is not an isolated sensory brain effect but it is part of a longer response that continues to take place after the initial P300 stimulus has occurred. This extended response bears a correlation with the cognitive processing that takes place slightly beyond the P300 wave and continues in the range of 300-800 milliseconds after the exposure to the stimulus. This extended brain wave component has been named as the MERMER
(Memory-and- Encoding-Related-Multifaceted-Electroencephalographic Response) effect…
Functional Magnetic Resonance Imaging (FMRI) is another neuroscientific technique whose application in the forensic setting has been contentious. It involves the use of MRI scans for measuring blood flow between different parts of the brain which bears a correlation to the subject 's truthfulness or deception. FMRI-based lie-detection has also been advocated as an aid to interrogations in the context of counter-terrorism and intelligence operations, but it prompts the same legal questions that can be raised with respect to all of the techniques mentioned above. Even though these are non- invasive techniques the concern is not so much with the manner in which they are conducted but the consequences for the individuals who undergo the same. The use of techniques such as ‘Brain Fingerprinting’ and ‘FMRI-based LieDetection’ raise numerous concerns such as those of protecting mental privacy and the harms that may arise from inferences made about the subject 's truthfulness or familiarity with the facts of a crime. [See generally: Michael S. Pardo, `Neuroscience evidence, legal culture and criminal procedure ', 33 American Journal of Criminal Law 301-337 (Summer 2006); Sarah
E. Stoller and Paul Root Wolpe, `Emerging neurotechnologies for lie detection and the fifth amendment ', 33 American Journal of Law and Medicine359-375 (2007)]
These neuroscientific techniques could also find application outside the criminal justice setting. For instance, Henry T. Greely (2005, Cited below) has argued that technologies that may enable a precise identification of the subject 's mental responses to specific stimuli could potentially be used for market-research by business concerns for surveying customer preferences and developing targeted advertising schemes. They could also be used to judge
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mental skills in the educational and employment-related settings since cognitive responses are often perceived to be linked to academic and professional competence. One can foresee the potential use of this technique to distinguish between students and employees on the basis of their cognitive responses. There are several other concerns with the development of these
‘mind-reading’ technologies especially those relating to the privacy of individuals. [Refer:
Henry T. Greely, ‘Chapter 17: The social effects of advances in neuroscience: Legal problems, legal perspectives’, in Judy Illes (ed.), Neuroethics - Defining the issues in theory, practice and policy (Oxford University Press, 2005) at pp. 245-263]
Even though the P300 Wave component has been the subject of considerable research, its uses in the criminal justice system have not received much scholarly attention. Dr. Lawrence
Farwell 's ‘Brain Fingerprinting’ technique has attracted considerable publicity but has not been the subject of any rigorous independent study. Besides this preliminary doubt, an important objection is centred on the inherent difficulty of designing the appropriate ‘probes’ for the test. Even if the ‘probes’ are prepared by an examiner who is thoroughly familiar with all aspects of the facts being investigated, there is always a chance that a subject may have had prior exposure to the material probes. In case of such prior exposure, even if the subject is found to be familiar with the probes, the same will be meaningless in the overall context of the investigation. For example, in the aftermath of crimes that receive considerable mediaattention the subject can be exposed to the test stimuli in many ways. Such exposure could occur by way of reading about the crime in newspapers or magazines, watching television, listening to the radio or by word of mouth. A possibility of prior exposure to the stimuli may also arise if the investigators unintentionally reveal crucial facts about the crime to the subject before conducting the test. The subject could also be familiar with the content of the material probes for several other reasons.
Another significant limitation is that even if the tests demonstrate familiarity with the material probes, there is no conclusive guidance about the actual nature of the subject 's involvement in the crime being investigated. For instance a by- stander who witnessed a murder or robbery could potentially be implicated as an accused if the test reveals that the said person was familiar with the information related to the same. Furthermore, in cases of amnesia or ‘memory-hardening’ on part of the subject, the tests could be blatantly misleading. Even if the inferences drawn from the ‘P300 wave test’ are used for corroborating other evidence, they could have a material bearing on a finding of guilt or innocence despite being based on an uncertain premise. [For an overview of the limitations of these neuroscientific techniques, see: John G. New, ‘If you could read my mind - Implications of neurological evidence for twenty-first century criminal jurisprudence’, 29 Journal of Legal Medicine 179-197 (AprilJune 2008)]
We have come across two precedents relatable to the use of ‘Brain Fingerprinting’ tests in criminal cases. Since this technique is considered to be an advanced version of the P300
Waves test, it will be instructive to examine these precedents. In Harrington v. Iowa 659
N.W.2d 509 (2003), Terry J. Harrington (appellant) had been convicted for murder in 1978 and the same had allegedly been committed in the course of an attempted robbery. A crucial component of the incriminating materials was the testimony of his accomplice. However, many years later it emerged that the accomplice 's testimony was prompted by an offer of leniency from the investigating police and doubts were raised about the credibility of other witnesses as well. Subsequently it was learnt that at the time of the trial, the police had not shared with the defence some investigative reports that indicated the possible involvement of another individual in the said crime. Harrington had also undergone a ‘Brain Fingerprinting’ test under the supervision of Dr. Lawrence Farwell. The test results showed that he had no memories of the ‘probes’ relating to the act of murder. Hence, Harrington approached the
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District Court seeking the vacation of his conviction and an order for a new trial. Postconviction relief was sought on grounds of newly discovered evidence which included recantation by the prosecution 's primary witness, the past suppression of police investigative reports which implicated another suspect and the results of the ‘Brain Fingerprinting’ tests.
However, the District Court denied this application for post-conviction relief. This was followed by an appeal before the Supreme Court of Iowa.
The appellate court concluded that Harrington 's appeal was timely and his action was not time barred. The appellant was granted relief in light of a ‘due process’ violation, i.e. the failure on part of the prosecution at the time of the original trial to share the investigative reports with the defence. It was observed that the defendant 's right to a fair trial had been violated because the prosecution had suppressed evidence which was favourable to the defendant and clearly material to the issue of guilt. Hence the case was remanded back to the
District Court. However, the Supreme Court of Iowa gave no weightage to the results of the
‘Brain Fingerprinting’ test and did not even inquire into their relevance or reliability. In fact it was stated: "Because the scientific testing evidence is not necessary to a resolution of this appeal, we give it no further consideration." [659 N.W.2d 509, at p. 516]
The second decision brought to our attention is Slaughter v. Oklahoma 105 P. 3d 832
(2005). In that case, Jimmy Ray Slaughter had been convicted for two murders and sentenced to death. Subsequently, he filed an application for post- conviction relief before the Court of
Criminal Appeals of Oklahoma which attempted to introduce in evidence an affidavit and evidentiary materials relating to a ‘Brain Fingerprinting’ test. This test had been conducted by
Dr. Lawrence Farwell whose opinion was that the petitioner did not have knowledge of the
`salient features of the crime scene '. Slaughter also sought a review of the evidence gathered through DNA testing and challenged the bullet composition analysis pertaining to the crime scene. However, the appellate court denied the application for post-conviction relief as well as the motion for an evidentiary hearing. With regard to the affidavits based on the ‘Brain
Fingerprinting’ test, it was held, Id. at p. 834:
Dr. Farwell makes certain claims about the Brain Fingerprinting test that are not supported by anything other than his bare affidavit. He claims the technique has been extensively tested, has been presented and analyzed in numerous peerreview articles in recognized scientific publications, has a very low rate of error, has objective standards to control its operation, and is generally accepted within the `relevant scientific community '. These bare claims, however, without any form of corroboration, are unconvincing and, more importantly, legally insufficient to establish Petitioner 's post-conviction request for relief. Petitioner cites one published opinion, Harrington v. State 659 N.W.2d 509 (Iowa 2003), in which a brain fingerprinting test result was raised as error and discussed by the
Iowa Supreme Court (`a novel computer-based brain testing '). However, while the lower court in Iowa appears to have admitted the evidence under non-Daubert circumstances, the test did not ultimately factor into the Iowa Supreme Court 's published decision in any way.
Accordingly, the following conclusion was stated, Id. at p. 836:
Therefore, based upon the evidence presented, we find the Brain Fingerprinting evidence is procedurally barred under the Act and our prior cases, as it could have been raised in Petitioner 's direct appeal and, indeed, in his first application for post-conviction relief. We further find a lack of sufficient evidence that would support a conclusion that Petitioner is factually innocent or that Brain
Fingerprinting, based solely upon the MERMER effect, would survive a
Daubert analysis.
CONTENTIOUS ISSUES IN THE PRESENT CASE
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As per the Laboratory Procedure manuals, the impugned tests are being conducted at the direction of jurisdictional courts even without obtaining the consent of the intended test subjects. In most cases these tests are conducted conjunctively wherein the veracity of the information revealed through narcoanalysis is subsequently tested through a polygraph examination or the BEAP test. In some cases the investigators could first want to ascertain the capacity of the subject to deceive (through polygraph examination) or his/her familiarity with the relevant facts (through BEAP test) before conducting a narcoanalysis interview.
Irrespective of the sequence in which these techniques are administered, we have to decide on their permissibility in circumstances where any of these tests are compulsorily administered, either independently or conjunctively.
It is plausible that investigators could obtain statements from individuals by threatening them with the possibility of administering either of these tests. The person being interrogated could possibly make self-incriminating statements on account of apprehensions that these techniques will extract the truth. Such behaviour on part of investigators is more likely to occur when the person being interrogated is unaware of his/her legal rights or is intimidated for any other reason. It is a settled principle that a statement obtained through coercion, threat or inducement is involuntary and hence inadmissible as evidence during trial. However, it is not settled whether a statement made on account of the apprehension of being forcibly subjected to the impugned tests will be involuntary and hence inadmissible. This aspect merits consideration. It is also conceivable that an individual who has undergone either of these tests would be more likely to make self-incriminating statements when he/she is later confronted with the results. The question in that regard is whether the statements that are made subsequently should be admissible as evidence. The answers to these questions rest on the permissibility of subjecting individuals to these tests without their consent.
I. Whether the involuntary administration of the impugned techniques violates the `right against self- incrimination ' enumerated in Article 20(3) of the Constitution?
Investigators could seek reliance on the impugned tests to extract information from a person who is suspected or accused of having committed a crime. Alternatively these tests could be conducted on witnesses to aid investigative efforts. As mentioned earlier, this could serve several objectives, namely those of gathering clues which could lead to the discovery of relevant evidence, to assess the credibility of previous testimony or even to ascertain the mental state of an individual. With these uses in mind, we have to decide whether the compulsory administration of these tests violates the ‘right against self-incrimination’ which finds place in Article 20(3) of the Constitution of India. Along with the ‘rule against doublejeopardy’ and the ‘rule against retrospective criminalisation’ enumerated in Article 20, it is one of the fundamental protections that controls interactions between individuals and the criminal justice system. …
The interrelationship between the ‘right against self- incrimination’ and the ‘right to fair trial’ has been recognised in most jurisdictions as well as international human rights instruments. For example, the U.S. Constitution incorporates the ‘privilege against selfincrimination’ in the text of its Fifth Amendment. The meaning and scope of this privilege has been judicially moulded by recognising it 's interrelationship with other constitutional rights such as the protection against ‘unreasonable search and seizure’ (Fourth amendment) and the guarantee of ‘due process of law’ (Fourteenth amendment). In the International Covenant on
Civil and Political Rights (ICCPR), Article 14(3)(g) enumerates the minimum guarantees that are to be accorded during a trial and states that everyone has a right not to be compelled to testify against himself or to confess guilt. In the European Convention for the Protection of
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Human Rights and Fundamental Freedoms, Article 6(1) states that every person charged with an offence has a right to a fair trial and Article 6(2) provides that ‘Everybody charged with a criminal offence shall be presumed innocent until proved guilty according to law’. The guarantee of ‘presumption of innocence’ bears a direct link to the ‘right against selfincrimination’ since compelling the accused person to testify would place the burden of proving innocence on the accused instead of requiring the prosecution to prove guilt.
In the Indian context, Article 20(3) should be construed with due regard for the interrelationship between rights, since this approach was recognised in Maneka Gandhi 's case,
(1978) 1 SCC 248. Hence, we must examine the ‘right against self-incrimination’ in respect of its relationship with the multiple dimensions of ‘personal liberty’ under Article 21, which include guarantees such as the ‘right to fair trial’ and ‘substantive due process’. It must also be emphasized that Articles 20 and 21 have a non-derogable status within Part III of our
Constitution because the Constitution (Fourty-Fourth amendment) Act, 1978 mandated that the right to move any court for the enforcement of these rights cannot be suspended even during the operation of a proclamation of emergency. …
Undoubtedly, Article 20(3) has an exalted status in our Constitution and questions about its meaning and scope deserve thorough scrutiny. In one of the impugned judgments, it was reasoned that all citizens have an obligation to co-operate with ongoing investigations. For instance reliance has been placed on Section 39, CrPC which places a duty on citizens to inform the nearest magistrate or police officer if they are aware of the commission of, or of the intention of any other person to commit the crimes enumerated in the section. Attention has also been drawn to the language of Section 156(1), CrPC which states that a police officer in charge of a police station is empowered to investigate cognizable offences even without an order from the jurisdictional magistrate. Likewise, our attention was drawn to Section 161(1),
CrPC which empowers the police officer investigating a case to orally examine any person who is supposed to be acquainted with the facts and circumstances of the case. While the overall intent of these provisions is to ensure the citizens ' cooperation during the course of investigation, they cannot override the constitutional protections given to accused persons.
The scheme of the CrPC itself acknowledges this hierarchy between constitutional and statutory provisions in this regard. For instance, Section 161(2), CrPC prescribes that when a person is being examined by a police officer, he is not bound to answer such questions, the answers of which would have a tendency to expose him to a criminal charge or a penalty or forfeiture. Not only does an accused person have the right to refuse to answer any question that may lead to incrimination, there is also a rule against adverse inferences being drawn from the fact of his/her silence. At the trial stage, Section 313(3) of the CrPC places a crucial limitation on the power of the court to put questions to the accused so that the latter may explain any circumstances appearing in the evidence against him. It lays down that the accused shall not render himself/herself liable to punishment by refusing to answer such questions, or by giving false answers to them. Further, Proviso (b) to Section 315(1) of CrPC mandates that even though an accused person can be a competent witness for the defence, his/her failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the trial. It is evident that Section 161(2), CrPC enables a person to choose silence in response to questioning by a police officer during the stage of investigation, and as per the scheme of
Section 313(3) and Proviso (b) to Section 315(1) of the same code, adverse inferences cannot be drawn on account of the accused person 's silence during the trial stage.
………
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Underlying rationale of the right against self-incrimination
As mentioned earlier, `the right against self-incrimination ' is now viewed as an essential safeguard in criminal procedure. Its underlying rationale broadly corresponds with two objectives - firstly, that of ensuring reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily. It is quite possible that a person suspected or accused of a crime may have been compelled to testify through methods involving coercion, threats or inducements during the investigative stage. When a person is compelled to testify on his/her own behalf, there is a higher likelihood of such testimony being false. False testimony is undesirable since it impedes the integrity of the trial and the subsequent verdict. Therefore, the purpose of the ‘rule against involuntary confessions’ is to ensure that the testimony considered during trial is reliable. The premise is that involuntary statements are more likely to mislead the judge and the prosecutor, thereby resulting in a miscarriage of justice. Even during the investigative stage, false statements are likely to cause delays and obstructions in the investigation efforts.
The concerns about the ‘voluntariness’ of statements allow a more comprehensive account of this right. If involuntary statements were readily given weightage during trial, the investigators would have a strong incentive to compel such statements - often through methods involving coercion, threats, inducement or deception. Even if such involuntary statements are proved to be true, the law should not incentivise the use of interrogation tactics that violate the dignity and bodily integrity of the person being examined. In this sense, ‘the right against self-incrimination’ is a vital safeguard against torture and other ‘third-degree methods’ that could be used to elicit information. It serves as a check on police behaviour during the course of investigation. The exclusion of compelled testimony is important, otherwise the investigators will be more inclined to extract information through such compulsion as a matter of course. The frequent reliance on such ‘short-cuts’ will compromise the diligence required for conducting meaningful investigations. During the trial stage, the onus is on the prosecution to prove the charges levelled against the defendant and the ‘right against self- incrimination’ is a vital protection to ensure that the prosecution discharges the said onus.
… In spite of the constitutionally entrenched status of the right against self-incrimination, there have been some criticisms of the policy underlying the same. John Wigmore (1960) argued against a broad view of the privilege which extended the same to the investigative stage. [Refer: John Wigmore, ‘The privilege against self-incrimination, its constitutional affectation, raison d 'etre and miscellaneous implications’, 51 Journal of Criminal Law,
Criminology and Police Science 138 (1960)] He has asserted that the doctrinal origins of the
‘rule against involuntary confessions’ in evidence law and those of the ‘right to selfincrimination’ were entirely different and catered to different objectives. In the learned author 's opinion, the ‘rule against involuntary confessions’ evolved on account of the distrust of statements made in custody. The objective was to prevent these involuntary statements from being considered as evidence during trial but there was no prohibition against relying on statements made involuntarily during investigation. Wigmore argued that the privilege against self-incrimination should be viewed as a right that was confined to the trial stage, since the judge can intervene to prevent an accused from revealing incriminating information at that stage, while similar oversight is not always possible during the pre-trial stage.
In recent years, scholars such as David Dolinko (1986), Akhil Reed Amar (1997) and
Mike Redmayne (2007) among others have encapsulated the objections to the scope of this right. [See: David Dolinko, ‘Is There a Rationale for the Privilege Against SelfIncrimination?’, 33 University of California Los Angeles Law Review 1063 (1986); Akhil
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Reed Amar, The Constitution and Criminal Procedure: First Principles (New Haven: Yale
University Press, 1997) at pp. 65-70; Mike Redmayne, ‘Re-thinking the Privilege against Selfincrimination’, 27 Oxford Journal of Legal Studies 209-232 (Summer 2007)] It is argued that in aiming to create a fair state-individual balance in criminal cases, the task of the investigators and prosecutors is made unduly difficult by allowing the accused to remain silent. If the overall intent of the criminal justice system is to ensure public safety through expediency in investigations and prosecutions, it is urged that the privilege against self-incrimination protects the guilty at the cost of such utilitarian objectives. Another criticism is that adopting a broad view of this right does not deter improper practices during investigation and it instead encourages investigators to make false representations to courts about the voluntary or involuntary nature of custodial statements. It is reasoned that when investigators are under pressure to deliver results there is an inadvertent tendency to rely on methods involving coercion, threats, inducement or deception in spite of the legal prohibitions against them.
Questions have also been raised about conceptual inconsistencies in the way that courts have expanded the scope of this right. One such objection is that if the legal system is obliged to respect the mental privacy of individuals, then why is there no prohibition against compelled testimony in civil cases which could expose parties to adverse consequences. Furthermore, questions have also been asked about the scope of the privilege being restricted to testimonial acts while excluding physical evidence which can be extracted through compulsion.
In response to John Wigmore 's thesis about the separate foundations of the ‘rule against involuntary confessions’, we must recognise the infusion of constitutional values into all branches of law, including procedural areas such as the law of evidence. While the abovementioned criticisms have been made in academic commentaries, we must defer to the judicial precedents that control the scope of Article 20(3). …
I-A. Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject?
The respondents have submitted that the compulsory administration of the impugned tests will only be sought to boost investigation efforts and that the test results by themselves will not be admissible as evidence. The next prong of this position is that if the test results enable the investigators to discover independent materials that are relevant to the case, such subsequently discovered materials should be admissible during trial. In order to evaluate this position, we must answer the following questions:
• Firstly, we should clarify the scope of the ‘right against self-incrimination’ - i.e. whether it should be construed as a broad protection that extends to the investigation stage or should it be viewed as a narrower right confined to the trial stage?
• Secondly, we must examine the ambit of the words ‘accused of any offence’ in
Article 20(3) - i.e. whether the protection is available only to persons who are formally accused in criminal cases, or does it extend to include suspects and witnesses as well as those who apprehend incrimination in cases other than the one being investigated?
• Thirdly, we must evaluate the evidentiary value of independent materials that are subsequently discovered with the help of the test results. In light of the ‘theory of confirmation by subsequent facts’ incorporated in Section 27 of the Indian Evidence Act,
1872 we need to examine the compatibility between this section and Article 20(3). Of special concern are situations when persons could be compelled to reveal information which leads to the discovery of independent materials. To answer this question, we must clarify what constitutes ‘incrimination’ for the purpose of invoking Article 20(3).
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Applicability of Article 20(3) to the stage of investigation
The question of whether Article 20(3) should be narrowly construed as a trial right or a broad protection that extends to the stage of investigation has been conclusively answered by our Courts. In M.P. Sharma v. Satish Chandra [1954] SCR 1077, it was held by
Jagannadhadas, J. at pp. 1087-1088:
“Broadly stated, the guarantee in Article 20(3) is against `testimonial compulsion '.
It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions…"
"Indeed, every positive volitional act which furnished evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in Article 20(3) is `to be a witness ' and not to
`appear as a witness ': It follows that the protection afforded to an accused in so far as it is related to the phrase `to be a witness ' is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case." These observations were cited with approval by B.P. Sinha, C.J. in State of
Bombay v. Kathi Kalu Oghad [1962] 3 SCR 10, at pp. 26-28. In the minority opinion, Das
Gupta, J. affirmed the same position… The broader view of Article 20(3) was consolidated in Nandini Satpathyv. P.L. Dani (1978) 2 SCC 424… In upholding this broad view of
Article 20(3), V.R. Krishna Iyer, J. relied heavily on the decision of the US Supreme Court in Ernesto Miranda v.Arizona 384 US 436 (1966). The majority opinion (by Earl Warren,
C.J.) laid down that custodial statements could not be used as evidence unless the police officers had administered warnings about the accused 's right to remain silent. The decision also recognised the right to consult a lawyer prior to and during the course of custodial interrogations. The practice promoted by this case is that it is only after a person has
`knowingly and intelligently ' waived of these rights after receiving a warning that the statements made thereafter can be admitted as evidence. The safeguards were prescribed in the following manner, Id. at pp. 444-445:
…the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against selfincrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. [...] As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any
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stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.
These safeguards were designed to mitigate the disadvantages faced by a suspect in a custodial environment. This was done in recognition of the fact that methods involving deception and psychological pressure were routinely used and often encouraged in police interrogations. Emphasis was placed on the ability of the person being questioned to fully comprehend and understand the content of the stipulated warning. …
The majority decision in Miranda (supra.) was not a sudden development in U.S. constitutional law. The scope of the privilege against self-incrimination had been progressively expanded in several prior decisions. The notable feature was the recognition of the interrelationship between the Fifth Amendment and the Fourteenth Amendment 's guarantee that the government must observe the ‘due process of law’ as well as the Fourth
Amendment 's protection against `unreasonable search and seizure '. While it is not necessary for us to survey these decisions, it will suffice to say that after Miranda (supra.), administering a warning about a person 's right to silence during custodial interrogations as well as obtaining a voluntary waiver of the prescribed rights has become a ubiquitous feature in the U.S. criminal justice system. In the absence of such a warning and voluntary waiver, there is a presumption of compulsion with regard to the custodial statements, thereby rendering them inadmissible as evidence. The position in India is different since there is no automatic presumption of compulsion in respect of custodial statements. However, if the fact of compulsion is proved then the resulting statements are rendered inadmissible as evidence.
Who can invoke the protection of Article 20(3)?
… While there is a requirement of formal accusation for a person to invoke Article 20(3) it must be noted that the protection contemplated by Section161(2), CrPC is wider.
Section 161(2) read with 161(1) protects `any person supposed to be acquainted with the facts and circumstances of the case ' in the course of examination by the police. …
Therefore the `right against self-incrimination ' protects persons who have been formally accused as well as those who are examined as suspects in criminal cases. It also extends to cover witnesses who apprehend that their answers could expose them to criminal charges in the ongoing investigation or even in cases other than the one being investigated. …
Even though Section 161(2) of the CrPC casts a wide protective net to protect the formally accused persons as well as suspects and witnesses during the investigative stage,
Section 132 of the Evidence Act limits the applicability of this protection to witnesses during the trial stage. The latter provision provides that witnesses cannot refuse to answer questions during a trial on the ground that the answers could incriminate them. However, the proviso to this section stipulates that the content of such answers cannot expose the witness to arrest or prosecution, except for a prosecution for giving false evidence. Therefore, the protection accorded to witnesses at the stage of trial is not as wide as the one accorded to the accused, suspects and witnesses during investigation [under Section 161(2), CrPC]. Furthermore, it is narrower than the protection given to the accused during the trial stage [under
Section 313(3) and Proviso (b) to Section 315(1), CrPC]. The legislative intent is to preserve the fact-finding function of a criminal trial. …
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Since the extension of the ‘right against self- incrimination’ to suspects and witnesses has its basis in Section 161(2), CrPC it is not readily available to persons who are examined during proceedings that are not governed by the code. There is a distinction between proceedings of a purely criminal nature and those proceedings which can culminate in punitive remedies and yet cannot be characterised as criminal proceedings. The consistent position has been that ordinarily Article 20(3) cannot be invoked by witnesses during proceedings that cannot be characterised as criminal proceedings. In administrative and quasi-criminal proceedings, the protection of Article 20(3) becomes available only after a person has been formally accused of committing an offence. …
What constitutes `incrimination ' for the purpose of Article 20(3)?
We can now examine the various circumstances that could ‘expose a person to criminal charges’. The scenario under consideration is one where a person in custody is compelled to reveal information which aids the investigation efforts. The information so revealed can prove to be incriminatory in the following ways:
• The statements made in custody could be directly relied upon by the prosecution to strengthen their case. However, if it is shown that such statements were made under circumstances of compulsion, they will be excluded from the evidence.
• Another possibility is that of `derivative use ', i.e. when information revealed during questioning leads to the discovery of independent materials, thereby furnishing a link in the chain of evidence gathered by the investigators.
• Yet another possibility is that of `transactional use ', i.e. when the information revealed can prove to be helpful for the investigation and prosecution in cases other than the one being investigated.
• A common practice is that of extracting materials or information, which are then compared with materials that are already in the possession of the investigators. For instance, handwriting samples and specimen signatures are routinely obtained for the purpose of identification or corroboration. …
In Kathi Kalu Oghad 's case, this Court authoritatively observed, on the bounds between constitutional proscription and testimonial permission: 'In order that a testimony by an accused person may be said to have been selfincriminatory, the compulsion of which comes within the prohibition of the constitutional provisions, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so.
In other words, it should be a statement which makes the case against the accused at least probable, considered by itself. '
Again the Court indicated that Article 20(3) could be invoked only against statements which ‘had a material bearing on the criminality of the maker of the statement’…
In light of these observations, we must examine the permissibility of extracting statements which may furnish a link in the chain of evidence and hence create a risk of exposure to criminal charges. The crucial question is whether such derivative use of information extracted in a custodial environment is compatible with Article 20(3). It is a settled principle that statements made in custody are considered to be unreliable unless they have been subjected to cross- examination or judicial scrutiny. The scheme created by the Code of Criminal
Procedure and the Indian Evidence Act also mandates that confessions made before police officers are ordinarily not admissible as evidence and it is only the statements made in the presence of a judicial magistrate which can be given weightage. The doctrine of excluding the
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‘fruits of a poisonous tree’ has been incorporated in Sections 24, 25 and 26 of the Indian
Evidence Act, 1872…
We have already referred to the language of Section 161, CrPC which protects the accused as well as suspects and witnesses who are examined during the course of investigation in a criminal case. It would also be useful to refer to Sections 162, 163 and 164 of the CrPC which lay down procedural safeguards in respect of statements made by persons during the course of investigation. However, Section 27 of the Evidence Act incorporates the ‘theory of confirmation by subsequent facts’ - i.e. statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence such statements could also be described as those which ‘furnish a link in the chain of evidence’ needed for a successful prosecution. …
This provision permits the derivative use of custodial statements in the ordinary course of events. In Indian law, there is no automatic presumption that the custodial statements have been extracted through compulsion. In short, there is no requirement of additional diligence akin to the administration of Miranda warnings. However, in circumstances where it is shown that a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3). …
We must also address another line of reasoning which was adopted in one of the impugned judgments. It was stated that the exclusionary rule in evidence law is applicable to statements that are inculpatory in nature. Based on this premise, it was observed that at the time of administering the impugned tests, it cannot be ascertained whether the resulting revelations or inferences will prove to be inculpatory or exculpatory in due course. Taking this reasoning forward, it was held that the compulsory administration of the impugned tests should be permissible since the same does not necessarily lead to the extraction of inculpatory evidence.
We are unable to agree with this reasoning.
The distinction between inculpatory and exculpatory evidence gathered during investigation is relevant for deciding what will be admissible as evidence during the trial stage.
The exclusionary rule in evidence law mandates that if inculpatory evidence has been gathered through improper methods (involving coercion, threat or inducement among others) then the same should be excluded from the trial, while there is no such prohibition on the consideration of exculpatory evidence. However, this distinction between the treatment of inculpatory and exculpatory evidence is made retrospectively at the trial stage and it cannot be extended back to the stage of investigation. If we were to permit the admission of involuntary statement on the ground that at the time of asking a question it is not known whether the answer will be inculpatory or exculpatory, the `right against self-incrimination ' will be rendered meaningless.
The law confers on `any person ' who is examined during an investigation, an effective choice between speaking and remaining silent. This implies that it is for the person being examined to decide whether the answer to a particular question will eventually prove to be inculpatory or exculpatory. Furthermore, it is also likely that the information or materials collected at an earlier stage of investigation can prove to be inculpatory in due course.
However, it is conceivable that in some circumstances the testimony extracted through compulsion may not actually lead to exposure to criminal charges or penalties. For example this is a possibility when the investigators make an offer of immunity against the direct use, derivative use or transactional use of the testimony. Immunity against direct use entails that a witness will not be prosecuted on the basis of the statements made to the investigators. A protection against derivative use implies that a person will not be prosecuted on the basis of
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the fruits of such testimony. Immunity against transactional use will shield a witness from criminal charges in cases other than the one being investigated. It is of course entirely up to the investigating agencies to decide whether to offer immunity and in what form. Even though this is distinctly possible, it is difficult to conceive of such a situation in the context of the present case. A person who is given an offer of immunity against prosecution is far more likely to voluntarily cooperate with the investigation efforts. This could be in the form of giving testimony or helping in the discovery of material evidence. If a person is freely willing to cooperate with the investigation efforts, it would be redundant to compel such a person to undergo the impugned tests. If reliance on such tests is sought for refreshing a cooperating witness ' memory, the person will in all probability give his/her consent to undergo these tests.
It could be argued that the compulsory administration of the impugned tests can prove to be useful in instances where the cooperating witness has difficulty in remembering the relevant facts or is wilfully concealing crucial details. Such situations could very well arise when a person who is a co- accused is offered immunity from prosecution in return for cooperating with the investigators. Even though the right against self-incrimination is not directly applicable in such situations, the relevant legal inquiry is whether the compulsory administration of the impugned tests meets the requisite standard of `substantive due process ' for placing restraints on personal liberty.
At this juncture, it must be reiterated that Indian law incorporates the ‘rule against adverse inferences from silence’ which is operative at the trial stage. As mentioned earlier, this position is embodied in a conjunctive reading of Article 20(3) of the Constitution and
Sections 161(2), 313(3) and Proviso (b) of Section 315(1) of the CrPC. The gist of this position is that even though an accused is a competent witness in his/her own trial, he/she cannot be compelled to answer questions that could expose him/her to incrimination and the trial judge cannot draw adverse inferences from the refusal to do so. This position is cemented by prohibiting any of the parties from commenting on the failure of the accused to give evidence… … Some commentators have argued that the ‘rule against adverse inferences from silence’ should be broadly construed in order to give protection against non-penal consequences. It is reasoned that the fact of a person 's refusal to answer questions should not be held against him/her in a wide variety of settings, including those outside the context of criminal trials. A hypothetical illustration of such a setting is a deportation hearing where an illegal immigrant could be deported following a refusal to answer questions or furnish materials required by the concerned authorities. This question is relevant for the present case because a person who refuses to undergo the impugned tests during the investigative stage could face non-penal consequences which lie outside the protective scope of Article 20(3). For example, a person who refuses to undergo these tests could face the risk of custodial violence, increased police surveillance or harassment thereafter. Even a person who is compelled to undergo these tests could face such adverse consequences on account of the contents of the test results if they heighten the investigators ' suspicions. Each of these consequences, though condemnable, fall short of the requisite standard of ‘exposure to criminal charges and penalties’ that has been enumerated in Section 161(2) of the CrPC. Even though Article 20(3) will not be applicable in such circumstances, reliance can be placed on Article 21 if such non-penal consequences amount to a violation of ‘personal liberty’ as contemplated under the Constitution. …
I-B. Whether the results derived from the impugned techniques amount to `testimonial compulsion ' thereby attracting the bar of Article 20(3)?
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The next issue is whether the results gathered from the impugned tests amount to
`testimonial compulsion ', thereby attracting the prohibition of Article 20(3). For this purpose, it is necessary to survey the precedents which deal with what constitutes ‘testimonial compulsion’ and how testimonial acts are distinguished from the collection of physical evidence. Apart from the apparent distinction between evidence of a testimonial and physical nature, some forms of testimonial acts lie outside the scope of Article 20(3). For instance, even though acts such as compulsorily obtaining specimen signatures and handwriting samples are testimonial in nature, they are not incriminating by themselves if they are used for the purpose of identification or corroboration with facts or materials that the investigators are already acquainted with. The relevant consideration for extending the protection of
Article 20(3) is whether the materials are likely to lead to incrimination by themselves or
‘furnish a link in the chain of evidence’ which could lead to the same result. Hence, reliance on the contents of compelled testimony comes within the prohibition of Article 20(3) but its use for the purpose of identification or corroboration with facts already known to the investigators is not barred.
It is quite evident that the narcoanalysis technique involves a testimonial act. A subject is encouraged to speak in a drug-induced state, and there is no reason why such an act should be treated any differently from verbal answers during an ordinary interrogation. In one of the impugned judgments, the compulsory administration of the narcoanalysis technique was defended on the ground that at the time of conducting the test, it is not known whether the results will eventually prove to be inculpatory or exculpatory. We have already rejected this reasoning. We see no other obstruction to the proposition that the compulsory administration of the narcoanalysis technique amounts to ‘testimonial compulsion’ and thereby triggers the protection of Article 20(3).
However, an unresolved question is whether the results obtained through polygraph examination and the BEAP test are of a testimonial nature. In both these tests, inferences are drawn from the physiological responses of the subject and no direct reliance is placed on verbal responses. In some forms of polygraph examination, the subject may be required to offer verbal answers such as `Yes ' or `No ', but the results are based on the measurement of changes in several physiological characteristics rather than these verbal responses. In the
BEAP test, the subject is not required to give any verbal responses at all and inferences are drawn from the measurement of electrical activity in the brain. In the impugned judgments, it has been held that the results obtained from both the Polygraph examination and the BEAP test do not amount to ‘testimony’ thereby lying outside the protective scope of Article 20(3).
The same assertion has been reiterated before us by the counsel for the respondents. In order to evaluate this position, we must examine the contours of the expression ‘testimonial compulsion’. The question of what constitutes ‘testimonial compulsion’ for the purpose of
Article 20(3) was addressed in M.P. Sharma 's case (supra.). In that case, the Court considered whether the issuance of search warrants in the course of an investigation into the affairs of a company (following allegations of misappropriation and embezzlement) amounted to an infringement of Article 20(3). The search warrants issued under Section 96 of the erstwhile
Code of Criminal Procedure, 1898 authorised the investigating agencies to search the premises and seize the documents maintained by the said company. The relevant observations were made by Jagannadhadas, J., at pp. 1087-1088:
…The phrase used in Article 20(3) is `to be a witness '. A person can `be a witness ' not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness [see Section 119 of the
Evidence Act or the like]. `To be a witness ' is nothing more than `to furnish
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evidence ', and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes…
Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part…
These observations suggest that the phrase `to be a witness ' is not confined to oral testimony for the purpose of invoking Article 20(3) and that it includes certain non-verbal forms of conduct such as the production of documents and the making of intelligible gestures.
However, in Kathi Kalu Oghad (supra.), there was a disagreement between the majority and minority opinions on whether the expression ‘to be a witness’ was the same as ‘to furnish evidence’. In that case, this Court had examined whether certain statutory provisions, namely
- Section 73 of the Evidence Act, Sections 5 and 6 of the Identification of Prisoners Act, 1920 and Section 27 of the Evidence Act were compatible with Article 20(3). Section 73 of the
Evidence Act empowered courts to obtain specimen handwriting or signatures and finger impressions of an accused person for purposes of comparison. Sections 5 and 6 of the
Identification of Prisoners Act empowered a Magistrate to obtain the photograph or measurements of an accused person. In respect of Section 27 of the Evidence Act, there was an agreement between the majority and the minority opinions that the use of compulsion to extract custodial statements amounts to an exception to the ‘theory of confirmation by subsequent facts’. We have already referred to the relevant observations in an earlier part of this opinion. Both the majority and minority opinions ruled that the other statutory provisions mentioned above were compatible with Article 20(3), but adopted different approaches to arrive at this conclusion. In the majority opinion it was held that the ambit of the expression
‘to be a witness’ was narrower than that of ‘furnishing evidence’. …
Since the majority decision in Kathi Kalu Oghad (supra.) is the controlling precedent, it will be useful to re-state the two main premises for understanding the scope of ‘testimonial compulsion’. The first is that ordinarily it is the oral or written statements which convey the personal knowledge of a person in respect of relevant facts that amount to ‘personal testimony’ thereby coming within the prohibition contemplated by Article 20(3). In most cases, such
‘personal testimony’ can be readily distinguished from material evidence such as bodily substances and other physical objects. The second premise is that in some cases, oral or written statements can be relied upon but only for the purpose of identification or comparison with facts and materials that are already in the possession of the investigators. The bar of
Article 20(3) can be invoked when the statements are likely to lead to incrimination by themselves or ‘furnish a link in the chain of evidence’ needed to do so. We must emphasize that a situation where a testimonial response is used for comparison with facts already known to investigators is inherently different from a situation where a testimonial response helps the investigators to subsequently discover fresh facts or materials that could be relevant to the ongoing investigation. …
Evolution of the law on ‘medical examination’
With respect to the testimonial-physical distinction, an important statutory development in our legal system was the introduction of provisions for medical examination with the overhauling of the Code of Criminal Procedure in 1973. Sections 53 and 54 of the CrPC contemplate the medical examination of a person who has been arrested, either at the instance of the investigating officer or even the arrested person himself. The same can also be done at the direction of the jurisdictional court.
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However, there were no provisions for authorising such a medical examination in the erstwhile Code of Criminal Procedure, 1898. The absence of a statutory basis for the same had led courts to hold that a medical examination could not be conducted without the prior consent of the person who was to be subjected to the same. …
It was the 37th and 41st Reports of the Law Commission of India which recommended the insertion of a provision in the Code of Criminal Procedure to enable medical examination without the consent of an accused. These recommendations proved to be the precursor for the inclusion of Sections 53and 54 in the Code of Criminal Procedure, 1973.
We were also alerted to some High Court decisions which have relied on Kathi Kalu
Oghad (supra.) to approve the taking of physical evidence such as blood and hair samples in the course of investigation. Following the overhaul of the Code of Criminal Procedure in 1973, the position became amply clear. In recent years, the judicial power to order a medical examination, albeit in a different context, has been discussed by this Court in Sharda v.
Dharampal (2003) 4 SCC 493. In that case, the contention related to the validity of a civil court 's direction for conducting a medical examination to ascertain the mental state of a party in a divorce proceeding. Needless to say, the mental state of a party was a relevant issue before the trial court, since insanity is a statutory ground for obtaining divorce under the Hindu
Marriage Act, 1955. S.B. Sinha, J. held that Article 20(3) was anyway not applicable in a civil proceeding and that the civil court could direct the medical examination in exercise of its inherent powers under Section 151 of the Code of Civil Procedure, since there was no ordinary statutory basis for the same. …
The decision had also cited some foreign precedents dealing with the authority of investigators and courts to require the collection of DNA samples for the purpose of comparison. In that case the discussion centered on the ‘right to privacy’. So far, the authority of investigators and courts to compel the production of DNA samples has been approved by the Orissa High Court in Thogorani v. State of Orissa 2004 Cri L.J. 4003 (Ori).
At this juncture, it should be noted that the Explanation to Sections 53, 53A and 54 of the
Code of Criminal Procedure, 1973 was amended in 2005 to clarify the scope of medical examination, especially with regard to the extraction of bodily substances. …
The respondents have urged that the impugned techniques should be read into the relevant provisions - i.e. Sections 53 and 54 of CrPC. As described earlier, a medical examination of an arrested person can be directed during the course of an investigation, either at the instance of the investigating officer or the arrested person. It has also been clarified that it is within the powers of a court to direct such a medical examination on its own. Such an examination can also be directed in respect of a person who has been released from custody on bail as well as a person who has been granted anticipatory bail. Furthermore, Section 53 contemplates the use of ‘force as is reasonably necessary’ for conducting a medical examination. This means that once a court has directed the medical examination of a particular person, it is within the powers of the investigators and the examiners to resort to a reasonable degree of physical force for conducting the same.
The contentious provision is the Explanation to Sections 53, 53A and 54 of the CrPC
(amended in 2005) which has been reproduced above. It has been contended that the phrase
‘modern and scientific techniques including DNA profiling and such other tests’ should be liberally construed to include the impugned techniques. It was argued that even though the narcoanalysis technique, polygraph examination and the BEAP test have not been expressly enumerated, they could be read in by examining the legislative intent. Emphasis was placed on the phrase ‘and such other tests’ to argue that the Parliament had chosen an approach where the list of ‘modern and scientific techniques’ contemplated was illustrative and not exhaustive.
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It was also argued that in any case, statutory provisions can be liberally construed in light of scientific advancements. With the development of newer technologies, their use can be governed by older statutes which had been framed to regulate the older technologies used for similar purposes.
On the other hand, the counsel for the appellants have contended that the Parliament was well aware of the impugned techniques at the time of the 2005 amendment and consciously chose not to include them in the amended Explanation to Sections 53, 53A and 54 of the CrPC.
It was reasoned that this choice recognised the distinction between testimonial acts and physical evidence. While bodily substances such as blood, semen, sputum, sweat, hair and fingernail clippings can be readily characterised as physical evidence, the same cannot be said for the techniques in question. This argument was supported by invoking the rule of ‘ejusdem generis’ which is used in the interpretation of statutes. This rule entails that the meaning of general words which follow specific words in a statutory provision should be construed in light of the commonality between those specific words. In the present case, the substances enumerated are all examples of physical evidence. Hence the words ‘and such other tests’ which appear in the Explanation to Sections 53, 53A and 54 of the CrPC should be construed to include the examination of physical evidence but not that of testimonial acts.
We are inclined towards the view that the results of the impugned tests should be treated as testimonial acts for the purpose of invoking the right against self-incrimination. Therefore, it would be prudent to state that the phrase ‘and such other tests’ [which appears in the
Explanation to Sections 53, 53A and 54 of the CrPC] should be read so as to confine its meaning to include only those tests which involve the examination of physical evidence. In pursuance of this line of reasoning, we agree with the appellant 's contention about the applicability of the rule of ‘ejusdem generis’. It should also be noted that the Explanation to
Sections 53, 53A and 54 of the CrPC does not enumerate certain other forms of medical examination that involve testimonial acts, such as psychiatric examination among others. This demonstrates that the amendment to this provision was informed by a rational distinction between the examination of physical substances and testimonial acts.
… Another pertinent contention raised by the appellants is that the involvement of medical personnel in the compulsory administration of the impugned tests is violative of their professional ethics. In particular, criticism was directed against the involvement of doctors in the narcoanalysis technique and it was urged that since the content of the drug-induced revelations were shared with investigators, this technique breaches the duty of confidentiality which should be ordinarily maintained by medical practitioners. [See generally: Amar Jesani,
`Willing participants and tolerant profession: Medical ethics and human rights in narcoanalysis ', Indian Journal of Medical Ethics, Vol. 16(3), July-Sept. 2008] The counsel have also cited the text of the `Principles of Medical Ethics ' adopted by the United Nations General
Assembly [GA Res. 37/194, 111th Plenary Meeting] on December 18, 1982. This document enumerates some `Principles of Medical Ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture, and other cruel, inhuman or degrading treatment of punishment '. Emphasis was placed on Principle 4 which reads:
Principle 4
It is a contravention of medical ethics for health personnel, particularly physicians: To apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees and which is not in accordance with the relevant international instruments;
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Being a court of law, we do not have the expertise to mould the specifics of professional ethics for the medical profession. Furthermore, the involvement of doctors in the course of investigation in criminal cases has long been recognised as an exception to the physicianpatient privilege. In the Indian context, the statutory provisions for directing a medical examination are an example of the same. Fields such as forensic toxicology have become important in criminal-justice systems all over the world and doctors are frequently called on to examine bodily substances such as samples of blood, hair, semen, saliva, sweat, sputum and fingernail clippings as well as marks, wounds and other physical characteristics. A reasonable limitation on the forensic uses of medical expertise is the fact that testimonial acts such as the results of a psychiatric examination cannot be used as evidence without the subject 's informed consent.
Results of impugned tests should be treated as `personal testimony '
… Even though the actual process of undergoing a polygraph examination or a BEAP test is not the same as that of making an oral or written statement, the consequences are similar.
By making inferences from the results of these tests, the examiner is able to derive knowledge from the subject 's mind which otherwise would not have become available to the investigators.
These two tests are different from medical examination and the analysis of bodily substances such as blood, semen and hair samples, since the test subject 's physiological responses are directly correlated to mental faculties. Through lie-detection or gauging a subject 's familiarity with the stimuli, personal knowledge is conveyed in respect of a relevant fact. It is also significant that unlike the case of documents, the investigators cannot possibly have any prior knowledge of the test subject 's thoughts and memories, either in the actual or constructive sense. Therefore, even if a highly-strained analogy were to be made between the results obtained from the impugned tests and the production of documents, the weight of precedents leans towards restrictions on the extraction of ‘personal knowledge’ through such means.
During the administration of a polygraph test or a BEAP test, the subject makes a mental effort which is accompanied by certain physiological responses. The measurement of these responses then becomes the basis of the transmission of knowledge to the investigators. This knowledge may aid an ongoing investigation or lead to the discovery of fresh evidence which could then be used to prosecute the test subject. In any case, the compulsory administration of the impugned tests impedes the subject 's right to choose between remaining silent and offering substantive information. The requirement of a ‘positive volitional act’ becomes irrelevant since the subject is compelled to convey personal knowledge irrespective of his/her own volition. … [W]e are of the view that the results obtained from tests such as polygraph examination and the BEAP test should also be treated as ‘personal testimony’, since they are a means for
‘imparting personal knowledge about relevant facts’. Hence, our conclusion is that the results obtained through the involuntary administration of either of the impugned tests (i.e. the narcoanalysis technique, polygraph examination and the BEAP test) come within the scope of
‘testimonial compulsion’, thereby attracting the protective shield of Article 20(3).
… [Discussion on Article 21 and allied issues is omitted] …
CONCLUSION
In our considered opinion, the compulsory administration of the impugned techniques violates the ‘right against self- incrimination’. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as
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evidence. This Court has recognised that the protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the Code of
Criminal Procedure, 1973 it protects accused persons, suspects as well as witnesses who are examined during an investigation. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual 's choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible ‘conveyance of personal knowledge that is relevant to the facts in issue’. The results obtained from each of the impugned tests bear a ‘testimonial’ character and they cannot be categorised as material evidence. We are also of the view that forcing an individual to undergo any of the impugned techniques violates the standard of ‘substantive due process’ which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a non-penal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases, i.e. the Explanation to
Sections 53, 53A and 54 of the Code of Criminal Procedure, 1973. Such an expansive interpretation is not feasible in light of the rule of ‘ejusdem generis’ and the considerations which govern the interpretation of statutes in relation to scientific advancements. We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to ‘cruel, inhuman or degrading treatment’ with regard to the language of evolving international human rights norms. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the ‘right to fair trial’. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the ‘right against self-incrimination’.
In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty.
However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872. The National Human Rights
Commission had published ‘Guidelines for the Administration of Polygraph Test (Lie
Detector Test) on an Accused’ in 2000. These guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the ‘Narcoanalysis technique’ and the
‘Brain Electrical Activation Profile’ test. …
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UNIT 7 – PREVENTIVE DETENTION (ARTICLE 22)
A. K. GOPALAN V. STATE OF MADRAS
AIR 1950 SC 27
Decided On: May 19, 1950
BENCH – CHIEF JUSTICE H. L. KANIA, JUSTICES S. FAZL ALI, PATANJALI SASTRI, M. C.
MAHAJAN, B. K. MUKHERJEA & S. R. DAS
CHIEF JUSTICE KANIA (FOR HIMSELF)
This is a petition by the applicant under article 32(1) of the Constitution of India for a writ of habeas corpus against his detention in the Madras Jail. In the petition he has given various dates showing how he has been under detention since December, 1947. Under the ordinary
Criminal Law he was sentenced to terms of imprisonment but those convictions were set aside.
While he was thus under detention under one of the orders of the Madras State Government, on the 1st of March, 1950, he was served with an order made under section 3(1) of the
Preventive Detention Act, IV of 1950. He challenges the legality of the order as it is contended that Act IV of 1950 contravenes the provisions of articles 13, 19 and 21 and the provisions of that Act are not in accordance with article 22 of the Constitution. He has also challenged the validity of the order on the ground that it is issued mala fide. The burden of proving that allegation is on the applicant. Because of the penal provisions of section 14 of the impugned
Act the applicant has not disclosed the grounds, supplied to him, for his detention and the question of mala fides of the order therefore cannot be gone into under this petition.
The question of the validity of Act IV of 1950 was argued before us at great length. This is the first case in which the different articles of the Constitution of India contained in the
Chapter on Fundamental Rights has come for discussion before us. The Court is indebted to the learned counsel for the applicant and the Attorney-General for their assistance in interpreting the true meaning of the relevant clauses of the Constitution.
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A detailed discussion of the true limits of article 21 will not be necessary if article 22 is considered a code to the extent there are provisions therein for preventive detention. In this connection it may be noticed that the articles in Part III deal with different and separate rights.
Under the caption "Right to Freedom" articles 19 - 22 are grouped but each with a separate marginal note. It is obvious that article22(1) and (2) prescribe limitations on the right given by article 21. If the procedure mentioned in those articles is followed the arrest and detention contemplated by article 22(1) and (2), although they infringe the personal liberty of the individual, will be legal, because that becomes the established legal procedure in respect of arrest and detention. …
The learned Attorney-General contended that the subject of preventive detention does not fall under article21 at all and is covered wholly by article 22. According to him, article 22 is a complete code. I am unable to accept that contention. It is obvious that in respect of arrest and detention article 22(1) and (2) provide safeguards. These safeguards are excluded in the case of preventive detention by article 22(3), but safeguards in connection with such detention are provided by clauses (4) to (7) of the same article. It is therefore clear that article 21 has to be read as supplemented by article 22. Reading in that way the proper mode of construction will be that to the extent the procedure is prescribed by article 22 the same is to be observed; otherwise article 21 will apply. But if certain procedural safeguards are expressly stated as not
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required, or specific rules on certain points of procedure are prescribed, it seems improper to interpret these points as not covered by article 22 and left open for consideration under article 21. To the extent the points are dealt with, and included or excluded, article 22 is a complete code. On the points of procedure which expressly or by necessary implication are not dealt with by article 22, the operation of article 21 will remain unaffected. It is thus necessary first to look at article 22(4) to (7) and next at the provisions of the impugned Act to determine if the Act or any of its provisions are ultra vires.
It may be noticed that neither the American nor the Japanese Constitution contain provisions permitting preventive detention, much less laying down limitations on such right of detention, in normal times, i.e., without a declaration of emergency. Preventive detention in normal times, i.e., without the existence of an emergency like war, is recognised as a normal topic of legislation in List I, Entry 9, and List III, Entry 3, of the Seventh Schedule. Even in the Chapter on Fundamental Rights article 22 envisages legislation in respect of preventive detention in normal times. The provisions of article 22(4) to (7) by their very wording leave unaffected the large powers of legislation on this point and emphasize particularly by article 22(7) the power of the Parliament to deprive a person of a right to have his case considered by an advisory board. Part III and article 22 in particular are the only restrictions on that power and but for those provisions the power to legislate on this subject would have been quite unrestricted. Parliament could have made a law without any safeguard or any procedure for preventive detention. Such an autocratic supremacy of the legislature is certainly cut down by article 21. Therefore, if the legislature prescribes a procedure by a validly enacted law and such procedure in the case of preventive detention does not come in conflict with the express provisions of Part III or article 22(4) to (7), the Preventive Detention Act must be held valid notwithstanding that the Court may not fully approve of the procedure prescribed under such Act.
Article 22(4) opens with a double negative. Put in a positive form it will mean that a law which provides for preventive detention for a period longer than three months shall contain a provision establishing an advisory board, (consisting of persons with the qualifications mentioned in sub-clause (a), and which has to report before the expiration of three months if in its opinion there was sufficient cause for such detention. This clause, if it stood by itself and without the remaining provisions of article 22, will apply both to the Parliament and the
State Legislatures. The proviso to this clause further enjoins that even though the advisory board may be of the opinion that there was sufficient cause for such detention, i.e., detention beyond the period of three months, still the detention is not to be permitted beyond the maximum period, if any, prescribed by Parliament under article 22(7)(b). Again the whole of this sub-clause is made inoperative by article 22(4)(b) in respect of an Act of preventive detention passed by Parliament under clauses (7)(a) and (b). Inasmuch as the impugned Act is an Act of the Parliament purported to be so made, clause 22(4) has no operation and may for the present discussion be kept aside. Article 22(5) prescribes that when any person under a preventive detention law is detained, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. This clause is of general operation in respect of every detention order made under any law permitting detention. Article 22(6) permits the authority making the order to withhold disclosure of facts which such authority considers against the public interest to disclose. It may be noticed that this clause only permits the non-disclosure of facts, and reading clauses (5) and (6) together a distinction is drawn between facts and grounds of detention. Article22(4) and (7) deal not with the period of detention only but with other requirements in the case of preventive detention also. They provide for the establishment of an advisory board, and the necessity of furnishing grounds to the detenue and also to give him a right to make a representation. Reading
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article 22 clauses (4) and (7) together it appears to be implied that preventive detention for less than three months, without an advisory board, is permitted under the Chapter on
Fundamental Rights, provided such legislation is within the legislative competence of the
Parliament or the State Legislature, as the case may be.
Article 22(5) permits the detained person to make a representation. The Constitution is silent as to the person to whom it has to be made, or how it has to be dealt with. But that is the procedure laid down by the Constitution. It does not therefore mean that if a law made by the
Parliament in respect of preventive detention does not make provision on those two points it is invalid. Silence on these points does not make the impugned Act in contravention of the
Constitution because the first question is what are the rights given by the Constitution in the case of preventive detention. The contention that the representation should be to an outside body has no support in law. Even in the Liversidge case the representation had to be made to the Secretary of State and not to another body. After such representation was made, another advisory board had to consider it, but it was not necessary to make the representation itself to a third party. Article 22(4) and (7) permit the non-establishment of an advisory board expressly in a parliamentary legislation providing for preventive detention beyond three months. If so, how can it be urged that the non-establishment of an advisory board is a fundamental right violated by the procedure prescribed in the Act passed by the Parliament?
The important clause to be considered is article 22(7). Sub-clause (a) is important for this case. In the case of an Act of preventive detention passed by the Parliament this clause contained in the Chapter on Fundamental Rights, thus permits detention beyond a period of three months and excludes the necessity of consulting an advisory board, if the opening words of the sub-clause are complied with. Sub-clause (b) is permissive. It is not obligatory on the
Parliament to prescribe any maximum period. It was argued that this gives the Parliament a right to allow a person to be detained indefinitely. If that construction is correct, it springs out of the words of sub-clause (7) itself and the Court cannot help in the matter. Sub-clause (c) permits the Parliament to lay down the procedure to be followed by the advisory board in an inquiry under sub-clause (a) of clause (4). I am unable to accept the contention that article 22(4)(a) is the rule and article 22(7) the exception. I read them as two alternatives, provided by the Constitution for making laws on preventive detention.
Bearing in mind the provisions of article 22 read with article 246 and Schedule VII, List
I, Entry 9, and List III, Entry 3, it is thus clear that the Parliament is empowered to enact a law of preventive detention (a) for reasons connected with defence, (b) for reasons connected with foreign affairs, (c) for reasons connected with the security on India; and (under List III), (d) for reasons connected with the security of a State, (e) for reasons connected with the maintenance of public order, or (f) for reasons connected with the maintenance of supplies and services essential to the community. Counsel for the petitioner has challenged the validity of several provisions of the Act. In respect of the construction of a Constitution Lord Wright in James v. Commonwealth of Australia, (1936) A.C. 578 , observed:
That a Constitution must not be construed in any narrow and pedantic sense." Mr. Justice
Higgins in Attorney-General of New South Wales v. Brewery Employees ' Union (1908) 6
Com. L.R. 469 , observed :
"Although we are to interpret words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting - to remember that it is a Constitution, a mechanism under which laws are to be made and not a mere Act which declares what the law is to be." In In re The Central Provinces and Berar Act XIV of 1938, (1939) F.C.R. 18,
Sir Maurice Gwyer C.J. after adopting these observations said:
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"Especially is this true of a Federal Constitution with its nice balance of jurisdictions. I conceive that a board and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they are free to stretch or pervert the language of the enactment in the interest of any legal or constitutional theory or even for the purpose of supplying omissions or of correcting supposed errors." There is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the
Constitution but not expressed in words. Where the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument. It is difficult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written Constitution give that authority. It is also stated, if the words be positive and without ambiguity, there is no authority for a Court to vacate or repeal a Statute on that ground alone. But it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation that one can find a safe and solid ground for the authority of Courts of justice to declare void any legislative enactment. Any assumption of authority beyond this would be to place in the hands of the judiciary powers too great and too indefinite either for its own security or the protection of private rights.
It was first argued that by section 3 the Parliament had delegated its legislative power to the executive officer in detaining a person on his being satisfied of its necessity. It was urged that the satisfaction must be of the legislative body. This contention of delegation of the legislative power in such cases has been considered and rejected in numerous cases by our
Federal Court and by the English Courts. It is unnecessary to refer to all those cases. A regarding of the various speeches in Liversidge v. Anderson, (1942) A.C. 206 clearly negatives this contention. Section 3 of the impugned Act is no delegation of legislative power to make laws. It only confers discretion on the officer to enforce the law made by the legislature.
Section 3 is also impugned on the ground that it does not provide an objective standard which the Court can utilize for determining whether the requirements of law have been complied with. It is clear that no such objective standard of conduct can be prescribed, except as laying down conduct tending to achieve or to avoid a particular object. For preventive detention action must be taken on good suspicion. It is a subjective test based on the cumulative effect of different actions, perhaps spread over a considerable period. As observed by Lord Finlay in King v. Halliday, (1917) A.C. 260, a Court is the least appropriate tribunal to investigate the question whether circumstances of suspicion exist warranting the restraint on a person.
The contention is urged in respect of preventive detention and not punitive detention. Before a person can be held liable for an offence it is obvious that he should be in a position to know what he may do or not do, and an omission to do or not to do will result in the State considering him guilty according to the penal enactment. When it comes however to preventive detention, the very purpose is to prevent the individual not merely from acting in a particular way but, as the sub-heads summarized above show, from achieving a particular object. It will not be humanly possible to tabulate exhaustively all actions which may lead to a particular object. It has therefore been considered that a punitive detention Act which sufficiently prescribes the objects which the legislature considers have not to be worked up to is a sufficient standard to prevent the legislation being vague. In my opinion, therefore, the argument of the petitioner against section 3 of the impugned Act fails. It was also contended that section 3 prescribes no limit of time for detention and therefore the legislation is ultra vires. The answer is found in article 22(7)(b). A perusal of the provisions of the impugned Act moreover shows that in section 12 provision is made for detention for a period longer than three months but not
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exceeding one year in respect of clauses (a) and (b) of that section. It appears therefore that in respect of the rest of the clauses mentioned in section 3(1)(a) the detention is not contemplated to be for a period longer than three months, and in such cases a reference to the advisory board under section 9 is contemplated.
Section 7 of the Act which is next challenged, runs on the same lines article 22(5) and (6) and in my opinion infringes no provision of the Constitution. It was argued that this gave only the right of making a representation without being heard orally or without affording an opportunity to lead evidence and therefore was not an orderly course of procedure, as required by the rules of natural justice. The Parliament by the Act has expressly given a right to the person detained under a preventive detention order to receive the grounds for detention and also has given him a right to make a representation. The Act has thus complied with the requirements of article 22(5). That clause, which prescribes what procedure has to be followed as a matter of fundamental rights, is silent, about the person detained having a right to be heard orally or by a lawyer. The Constituent Assembly had before them the provisions of clause (1) of the same article. The Assembly having dealt with the requirements of receiving grounds and giving an opportunity to make a representation has deliberately refrained from providing a right to be heard orally. If so, I do not read the clause as guaranteeing such right under article
22(5). An "orderly course of procedure" is not limited to procedure which has been sanctioned by settled usage. New forms of procedure are as much, held even by the Supreme Court of
America, due process of law as old forms, provided they give a person a fair opportunity to present his case. It was contended that the right to make a representation in article 22(5) must carry with it a right to be heard by an independent tribunal; otherwise the making of a representation has no substance because it is not an effective remedy. I am unable to read clause (5) of article22 as giving a fundamental right to be heard by an independent tribunal.
The Constitution deliberately stops at giving the right of representation. This is natural because under article 22(7), in terms, the Constitution permits the making of a law by
Parliament in which a reference to an advisory board may be omitted. To consider the right to make a representation as necessarily including a right to be heard by an independent judicial, administrative or advisory tribunal will thus be directly in conflict with the express words of article 22(7).
… I am not prepared to accept the contention that a right to be heard orally is an essential right of procedure even according to the rules of natural justice. The right to make a defence may be admitted, but there is nothing to support the contention that an oral interview is compulsory. In the Local Government Board v. Arlidge, (1915) A.C. 120, the respondent applied to the Board constituted under the Housing Act to state a special case for the opinion of the High Court, contending that the order was invalid because (1) the report of the Inspector had been treated as a confidential document and had not been disclosed to the respondent, and
(2) because the Board had declined to give the respondent an opportunity of being heard orally by the person or persons by whom the appeal was finally decided. The Board rejected the application. Both the points were urged before the House of Lords on appeal. Viscount
Haldane L.C. in his speech rejected the contention about the necessity of an oral hearing by observing "But it does not follow that the procedure of every tribunal must be the same. In the case of a Court of law tradition in this country has prescribed certain principles to which, in the main, the procedure must conform. But what that procedure is to be in detail must depend on the nature of a tribunal." In rejecting the contention about the disclosure of the report of the Inspector, the Lord Chancellor stated: "It might or might not have been useful to disclose this report, but I do not think that the Board was bound to do so any more than it would have been bound to disclose all the minutes made on the papers in the office before a decision was come to… What appears to me to have been the fallacy of the judgment of the majority in the
Court of appeal is that it begs the question at the beginning by setting up the test of the
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procedure of a Court of justice instead of the other standard which was laid down for such cases in Board of Education v. Rice, (1911) A.C. 179. I do not think the Board was bound to hear the respondent orally provided it gave him the opportunities he actually had." In spite of the fact that in England the Parliament is supreme I am unable to accept the view that the parliament in making laws, legislates, against the well recognised principles of natural justice accepted as such in all civilized countries. The same view is accepted in the United States in
Federal Communications Commission v. WJR The Goodwill Station, 337 U.S. 265.
A right to lead evidence against facts suspected to exist is also not essential in the case of preventive detention. Article 22(6) permits the non-disclosure of facts. That is one of the clauses of the Constitution dealing with fundamental rights. If even the non-disclosure of facts is permitted, I fail to see how there can exist a right to contest facts by evidence and the noninclusion of such procedural right could make this Act invalid.
Section 10(3) was challenged on the ground that it excludes the right to appear in person or by any lawyer before the advisory board and it was argued that this was an infringement of a fundamental right. It must be noticed that article 22(1) which gives a detained person a right to consult or be defended by his own legal practitioner is specifically excluded by article 22(3) in the case of legislation dealing with preventive detention. Moreover, the
Parliament is expressly given power under article 22(7)(c) to lay down the procedure in an inquiry by an advisory board. This is also a part of article 22 itself. If so, how can the omission to give a right to audience be considered against the constitutional rights? It was pointed out that section 10(3) prevents even the disclosure of a portion of the report and opinion of the advisory board. It was argued that if so how can the detained person put forth his case before a Court and challenge the conclusions? This argument was similarly advanced in Local
Government Board v. Arlidge, (1915) A.C. 120 and rejected, as mentioned above. In my opinion, the answer is in the provision found in article 22(7)(c) of the Constitution of India.
It was argued that section 11 of the impugned Act was invalid as it permitted the continuance of the detention for such period as the Central Government or the State
Government thought fit. This may mean an indefinite period. In my opinion this argument has no substance because the Act has to be read as a whole. The whole life of the Act is for a year and therefore the argument that the detention may be for an indefinite period is unsound.
Again, by virtue of article 22(7)(b), the Parliament is not obliged to fix the maximum term of such detention. It has not so fixed it, except under section 12, and therefore it cannot be stated that section 11 is in contravention of article 22(7).
Section 12 of the impugned Act is challenged on the ground that it does not conform to the provisions of article22(7). It is argued that article 22(7) permits preventive detention beyond three months, when the Parliament prescribes "the circumstances in which, and the class or classes of cases in which," a person may be detained. It was argued that both these conditions must be fulfilled. In my opinion, this argument is unsound, because the words used in article 22(7) themselves are against such interpretation. The use of the words "which "twice in the first part of the sub-clause, read with the comma put after each, shows that the legislature wanted these to be read as disjunctive and not conjunctive. Such argument might have been possible (though not necessarily accepted) if the article in the Constitution was "the circumstances and the class or classes of cases in which..." I have no doubt that by the clause, as worded, the legislature intended that the power of preventive detention beyond three months may be exercised either if the circumstances in which, or the class or classes of cases in which, a person is suspected or apprehended to be doing the objectionable things mentioned in the section. This contention therefore fails.
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It was next contended that by section 12 the Parliament had provided that a person might be detained for a period longer than three months but not exceeding one year from the date of his detention, without obtaining the opinion of an advisory board, with a view to prevent him from acting in any manner prejudicial to (a) the defence of India, relations of India with foreign powers or the security of India; or (b) the security of a State or the maintenance of public order. It must be noticed that the contingency provided in section 3(1)(a) (iii), viz., the maintenance of supplies and services essential to the community is omitted in section 12.
Relying on the wording of these two sub-sections in section 12, it was argued that in the impugned Act the wording of Schedule VII List I, Entry 9, and List III, Entry 3, except the last part are only copied. This did not comply with the requirement to specify either the circumstances or the class or classes of cases as is necessary to be done under article 22(7) of the Constitution. Circumstances ordinarily mean events or situation extraneous to the actions of the individual concerned, while a class of cases mean determinable groups based on the actions of the individuals with a common aim or idea. Determinable may be according to the nature of the object also. It is obvious that the classification can be by grouping the activities of people or by specifying the objectives to be attained or avoided. The argument advanced on behalf of the petitioner on this point does not appeal to me because it assumes that the words of Schedule VII List I, Entry 9, and List III, Entry 3 are never capable of being considered as circumstances or classes of cases. In my opinion, that assumption is not justified, particularly when we have to take into consideration cases of preventive detention and not of conviction and punitive detention. Each of the expressions used in those entries is capable of complying with the requirement of mentioning circumstances or classes of cases. The classification of cases, having regard to an object, may itself amount to a description of the circumstances. It is not disputed that each of the entries in the Legislative Lists in the Seventh
Schedule has a specific connotation well understood and ascertainable in law. If so, there appears no reason why the same expression when used in section 12(1)(a) and (b) of the impugned Act should not be held to have such specific meaning and thus comply with the requirement of prescribing circumstances or classes of cases. This argument therefore must be rejected.
Section 13(2) was attacked on the ground that even if a detention order was revoked, another detention order under section 3 might be made against the same person on the same grounds. This clause appears to be inserted to prevent a man being released if a detention order was held invalid on some technical ground. There is nothing in the Chapter on Fundamental
Rights and in article 21 or 22 to prevent the inclusion of such a clause in a parliamentary legislation, permitting preventive detention. Article 20(2) may be read as a contrast on this point. Dealing with the four fundamental principles of natural justice in procedure claimed by the petitioner, it is thus clear that in respect of preventive detention no question of an objective standard of human conduct can be laid down. It is conceded that no notice before detention can be claimed by the very nature of such detention. The argument that after detention intimation of the grounds should be given has been recognised in article 22(5) and incorporated in the impugned Act. As regards an impartial tribunal, article 22(4) and (7) read together give the Parliament ample discretion. When in specified circumstances and classes of cases the preventive detention exceeds three months, the absence of an advisory board is expressly permitted by article 22(7). Under article 22(4) it appears implied that a provision for such tribunal is not necessary if the detention is for less than three months. As regards an opportunity to be heard, there is no absolute natural right recognised in respect of oral representation. It has been held to depend on the nature of the tribunal. The right to make a representation is affirmed by the Constitution in article 22(5) and finds a place in the impugned
Act. The right to an orderly course of procedure to the extent it is guaranteed by
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article 22(4) read with article 22(7)(c), and by article 22(7)(a) and (b), has also been thus provided in the Act. It seems to me therefore that the petitioner 's contentions even on these points fail.
Section 14 was strongly attacked on the ground that it violated all principles of natural justice and even infringed the right given by article 22(5) of the Constitution. It runs as follows: "14. (1) No Court shall, except for the purposes of a prosecution for an offence punishable under sub-section (2), allow any statement to be made, or any evidence to be given, before it of the substance of any communication made under section
7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order; and, notwithstanding anything contained in any other law, no Court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such communication or representation made, or the proceedings of an Advisory Board or that part of the report of an Advisory Board which is confidential.
(2) It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State
Government, as the case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub-section (1):
Provided that nothing in this sub-section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order."
By that section the Court is prevented (except for the purpose of punishment for such disclosure) from being informed, either by a statement or by leading evidence, of the substance of the grounds conveyed to the detained person under section 7 on which the order was made, or of any representation made by him against such order. It also prevents the Court from calling upon any public officer to disclose the substance of those grounds or from the production of the proceedings or report of the advisory board which may be declared confidential. It is clear that if this provision is permitted to stand the Court can have no material before it to determine whether the detention is proper or not. I do not mean whether the grounds are sufficient or not. It even prevents the Court from ascertaining whether the alleged grounds of detention have anything to do with the circumstances or class or classes of cases mentioned in section 12(1)(a) or (b). In Machindar Shivaji Mahar v. King, 1949 F.C.R. 827, the Federal Court held that the Court can examine the grounds given by the Government to see if they are relevant to the object which the legislation has in view. The provisions of article2 2(5) do not exclude that right of the Court. Section 14 of the impugned Act appears to be a drastic provision which requires considerable support to sustain it in a preventive detention Act.
The learned Attorney-General urged that the whole object of the section was to prevent ventilation in public of the grounds and the representations, and that it was a rule of evidence only which the Parliament could prescribe. I do not agree. This argument is clearly not sustainable on the words of article 22 clauses (5) and (6). The Government has the right under article 22(6) not to disclose facts which it considers undesirable to disclose in the public interest. It does not permit the Government to refrain from disclosing grounds which fall under clause (5). Therefore, it cannot successfully be contended that the disclosure of grounds may be withheld from the Court in public interest, as a rule of evidence. Moreover, the position is made clear by the words of article 22(5). It provides that the detaining authority shall communicate to such detained person the grounds on which the order has been made. It is therefore essential that the grounds must be connected with the order of preventive detention.
If they are not so connected the requirements of article 22(5) are not complied with and the detention order will be invalid. Therefore, it is open to a detained person to contend before a
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Court that the grounds on which the order has been made have no connection at all with the order, or have no connection with the circumstances or class or classes of cases under which a preventive detention order could be supported under section 12. To urge this argument the aggrieved party must have a right to intimate to the Court the grounds given for the alleged detention and the representation made by him. For instance, a person is served with a paper on which there are written three stanzas of a poem or three alphabets written in three different ways. For the validity of the detention order it is necessary that the grounds should be those on which the order has been made. If the detained person is not in a position to put before the
Court this paper, the Court will be prevented from considering whether the requirements of article 22(5) are complied with and that is a right which is guaranteed to every person. It seems to me therefore that the provisions of section 14 abridge the right given under article 22(5) and are therefore ultra vires.
It next remains to be considered how far the invalidity of this section affects the rest of the impugned Act. The impugned Act minus this section can remain unaffected. The omission of this section will not change the nature or the structure or the object of the legislation.
Therefore the decision that section 14 is ultra vires does not affect the validity of the rest of the Act. In my opinion therefore Act IV of 1950, except section 14, is not ultra vires. It does not infringe any provisions of Part III of the Constitution and the contention of the applicant against the validity of that Act, except to the extent of section 14, fails. The petition therefore fails and is dismissed.
JUSTICE FAZL ALI (FOR HIMSELF)
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To my mind, the scheme of the Chapter dealing with the fundamental rights does not contemplate what is attributed to it, namely, that each article is a code by itself and is independent of the others. In my opinion, it cannot be said that articles 19, 20, 21 and 22 do not to some extent overlap each other. The case of a person who is convicted of an offence will come under articles 20 and 21 and also under article 22 so far as his arrest and detention in custody before trial are concerned. Preventive detention, which is dealt with in article 22, also amounts to deprivation of personal liberty which is referred to in article 21, and is a violation of the right of freedom of movement dealt with in article 19(1)(d). That there are other instances of overlapping of articles in the Constitution may be illustrated by reference to article 19(1)(f) and article 31 both of which deal with the right to property and to some extent overlap each other. It appears that some learned High Court Judges, who had to deal with the very question before us, were greatly impressed by the statement in the report of the
Drafting Committee of the Constitute Assembly on article 15 (corresponding to the present article 21), that the word "liberty" should be qualified by the insertion of the word "personal" before it for otherwise it may be construed very widely so as to include the freedoms dealt with in article 13 (corresponding to the present article 19).
I am not however prepared to hold that this statement is decisive on the question of the construction of the words used in article19(1)(d) which are quite plain and can be construed without any extraneous help. Whether the report of the Drafting Committee and the debates on the floor of the House should [not] be used at all in construing the words of a statute, which are words of ordinary and common use and are not used in any technical or peculiar sense, is a debatable question; and whether they can be used in aid of a construction which is a strain upon the language used in the clause to be interpreted is a still more doubtful matter. But, apart from these legal considerations, it is, I think, open to us to analyse the statement and see
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whether it goes beyond adding a somewhat plausible reason - a superficially plausible reason
- for a slight verbal change in article 21. It seems clear that the addition of the word "personal" before "liberty" in article 21 cannot change the meaning of the words used in article 19, nor can it put a matter which is inseparably bound up with personal liberty beyond its place.
Personal liberty and personal freedom, in spite of the use of the word "personal," are, as we find in several books, sometimes used in a wide sense and embrace freedom of speech, freedom of association, etc. These rights are some of the most valuable phases or elements of liberty and they do not cease to be so by the addition of the word "personal." A general statement by the Drafting Committee referring to freedom in plural cannot take the place of an authoritative exposition of the meaning of the words used in article 19(1)(d), which has not been specifically referred to and cannot be such an overriding consideration as to compel us to put a meaning opposed to reason and authority. The words used in article 19(1)(d) must be construed as they stand, and we have to decide upon the words themselves whether in the case of preventive detention the right under article 19(1)(d) is or is not infringed. But, as I shall point out later, however literally we may construe the words used in article 19(1)(d) and however restricted may be the meaning we may attribute to those words, there can be no escape from the conclusion that preventive detention is a direct infringement of the right guaranteed in article 19(1)(d).
It was pointed out in the course of the arguments that preventive detention not only takes away the right in article19(1)(d) but also takes away all the other rights guaranteed by article 19(1), except the right to hold, acquire and dispose of property. Where exactly this argument is intended to lead us to, I cannot fully understand, but it seems to me that it involves an obvious fallacy, because it overlooks the difference in the modes in which preventive detention operates on the right referred to in sub-clause (d) and other sub-clauses of article 19(1). The difference is that while preventive detention operates on freedom of movement directly and inevitably, its operation on the other rights is indirect and consequential and is often only notional. One who is preventively detained is straightaway deprived of his right of movement as a direct result of his detention, but he loses the other rights only in consequence of his losing freedom of movement. Besides, while freedom of movement is lost by him in all reality and substance, some of the other rights may not be lost until he wishes to exercise them or is interested in exercising them. A person who is detained may not be interested in freedom of association or may not pursue any profession, occupation, trade or business. In such a case, the rights referred to are lost only in theory and not as a matter of substance. I wish only to add that when I said that I was not able to understand the full force of the argument which I have tried to deal with, what I had in mind was that if preventive detention sweeps away or affects almost all the rights guaranteed in article 19(1), the matter deserves very serious consideration and we cannot lightly lay down that article 13(2) does not come into operation.
………
Being fully alive to the fact that it is a serious matter to be asked to declare a law enacted by Parliament to be unconstitutional, I have again and again asked myself the question: What are we to put in the scales against the construction which I am inclined to adopt and in favour of the view that preventive detention does not take away the freedom of movement guaranteed in article 19(1)(d)? The inevitable answer has always been that while in one of the scales we have plain and unambiguous language, the opinion of eminent jurists, judicial dicta of high authority, constitutional practice in the sense that no Constitution refers to any freedom of movement apart from personal liberty, and the manner in which preventive detention has been treated in the very laws on which our law on this subject is based, all that we can put in the opposite scale is a vague and ill-founded apprehension that some fearful object such as the
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revision of the Penal Code is looming obscurely in the distant horizon, the peculiar objection that the mere mention of the scheduled tribes will alter the meaning of certain plain words, the highly technical and unreal distinction between restriction and deprivation and the assumption not warranted by any express provision that a person who is preventively detained cannot claim the right of freedom of movement because he is not a free man and certain other things which, whether taken singly or collectively, are too unsubstantial to carry any weight. In these circumstances, I am strongly of the view that article19(1)(d) guarantees the right of freedom of movement in its widest sense, that freedom of movement being the essence of personal liberty, the right guaranteed under the article is really a right to personal liberty and that preventive detention is a deprivation of that right. I am also of the view that even on the interpretation suggested by the learned Attorney-General, preventive detention cannot but be held to be a violation of the right conferred by article 19(1)(d). In either view, therefore, the law of preventive detention is subject to such limited judicial review as is permitted under article 19(5). The scope of the review is simply to see whether any particular law imposes any unreasonable restrictions. Considering that the restrictions are imposed on a most valuable right, there is nothing revolutionary in the legislature trusting the Supreme Court to examine whether an Act which infringes upon that right is within the limits of reason.
… [Discussion on Article 21 is omitted] …
I will now proceed to examine article 22 of the Constitution which specifically deals with the subject of preventive detention. The first point to be noted in regard to this article is that it does not exclude the operation of articles 19 and 21, and it must be read subject to those two articles, in the same way as articles 19 and 21 must be read subject to article 22. The correct position is that article 22must prevail in so far as there are specific provisions therein regarding preventive detention, but, where there are no such provisions in that article. The operation of articles 19and 21 cannot be excluded. The mere fact that different aspects of the same right have been dealt with in three different articles will not make them mutually exclusive except to the extent I have indicated.
I will now proceed to analyse the article and deal with its main provisions. In my opinion, the main provisions of this article are :- (1) that no person can be detained beyond three months without the report of an advisory board [clause 4(a)]; (2) that the Parliament may prescribe the circumstances and the class or classes of cases in which a person may be detained for more than three months without obtaining the opinion of an advisory board [clause 7(a)]; (3) that when a person is preventively detained, the authority making the order of detention shall communicate to such person the grounds on which the order is made and shall afford him the earliest opportunity of making a representation against the order [clause (5)]; and (4) that the
Parliament may prescribe the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention [clause 7(b)].
The last point does not require any consideration in this case, but the first three points do require consideration.
In connection with the first point, the question arises as to the exact meaning of the words
"such detention" occurring in the end of clause 4(a). Two alternative interpretations were put forward: (1) "such detention" means preventive detention; (2) "such detention means detention for a period longer than three months. If the first interpretation is correct, then the function of the advisory board would be to go into the merits of the case of each person and simply report whether there was sufficient cause for his detention. According to the other interpretation, the function of the advisory board will be to report to the government whether there is sufficient cause for the person being detained for more than three months. On the whole, I am inclined to agree with the second interpretation. Prima facie, it is a serious matter to detain a person
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for a long period (more than three months) without any enquiry or trial. But article 22(4)(a) provides that such detention may be ordered on the report of the advisory board. Since the report must be directly connected with the object for which it is required, the safeguard provided by the article, viz., calling for a report from the advisory board, loses its value, if the advisory board is not to apply its mind to the vital question before the government, namely, whether prolonged detention (detention for more than three months) is justified or not. Under article 22(4)(a), the advisory board has to submit its report before the expiry of three months and may therefore do so on the eighty-ninth day. It would be somewhat farcical to provide, that after a man has been detained for eighty-nine days, an advisory board is to say whether his initial detention was justified. On the other hand, the determination of the question whether prolonged detention (detention for more than three months) is justified must necessarily involve the determination of the question whether the detention was justified at all, and such an interpretation only can give real meaning and effectiveness to the provision.
The provision being in the nature of a protection or safeguard, I must naturally lean towards the interpretation which is favourable to the subject and which is also in accord with the object in view.
The next question which we have to discuss relates to the meaning and scope of article 22(7)(a)…
The question is what is meant by "circumstances" and "class or classes of cases" used in this provision. This question has arisen because of the way in which these expressions appear to have been interpreted and applied in the Act of Parliament with which we are concerned.
As the matter is important and somewhat complicated, I shall try to express my meaning as clearly as possible even at the risk of some repetition, and, in doing so, I must necessarily refer to the impugned Act as well as Lists I and III of the Seventh Schedule of the Constitution, under which Parliament had jurisdiction to enact it. Item 9 of List I - Union List - shows that the Parliament has power to legislate on preventive detention for reasons connected with (1) defence, (2) foreign affairs, and (3) security of India. Under List III - Concurrent List - the appropriate item is item 3 which shows that law as to preventive detention can be made for reasons connected with (1) the security of the State, (2) the maintenance of public order, and
(3) the maintenance of supplies and services essential to the community. The impugned Act refers to all the subjects mentioned in Lists I and III in regard to which law of preventive detention can be made. …
… On reading articles 22(4) and 22(7) together, it would be clear that so long as article 22(4)(a) holds the field and Parliament does not act under clause (7)(a) of article 22, there must be an advisory board in every case, i.e., if the legislation relates to groups A to F, as it does here, there must be an advisory board for all these groups.
Article 22(7) however practically engrafts an exception. It states in substance that the
Parliament may by an Act provide for preventive detention for more than three months without reference to an advisory board, but in such cases it shall be incumbent on the Parliament to prescribe (1) the circumstances and (2) the class or classes of cases in which such course is found to be necessary. If the case contemplated in clause (4)(a) is the rule and that contemplated in clause (7)(a) is the exception, then the circumstances and the class or classes of cases must be of a special or extraordinary nature, so as to take the case out of the rule and bring it within the exception. It is always possible to draw the line between the normal or ordinary and the abnormal or extraordinary cases, and this is what, in my opinion, the
Parliament was expected to do under clause (7)(a). I do not think that it was ever intended that
Parliament could at its will treat the normal as the abnormal or the rule as the exception. But this is precisely what has been done in this case. All the items on which preventive legislation is possible excepting one, i.e., A to E, have been put within the exception, and only one, F,
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which relates to maintenance of supplies and services essential to the community, has been allowed to remain under the rule. In other words, it is provided that there shall be an advisory board only for the last category, F, but no provision having been made for the other categories,
A to E, it may be assumed that the advisory board has been dispensed with in those cases. The learned Attorney-General maintained that it would have been open to the Parliament to dispense with the advisory board even for the category F, and if such a course had been adopted it would not have affected the validity of the Act. This is undoubtedly a logical position in the sense that it was necessary for him to go as far as this to justify his stand; but, in my opinion, the course adopted by the Parliament in enacting section 12 of the impugned
Act is not what is contemplated under article 22(7)(a) or is permitted by it. The circumstances to be prescribed must be special and extraordinary circumstaces and the class or classes of cases must be of the same nature. In my opinion, the Constitution never contemplated that the
Parliament should mechanically reproduce all or most of the categories A to F almost verbatim and not apply its mind to decide in what circumstances and in what class or classes of cases the safeguard of an advisory board is to be dispensed with.
I may state here that two views are put forward before us as to how clauses (4)(a) and 7(a) of article 22 are to be read :- (1) that clause (4)(a) lays down the rule that in all cases where detention for more than three months is ordered, it should be done in consultation with and on the report of the advisory board, and clause (7)(a) lays down an exception to this rule by providing that Parliament may pass an Act permitting detention for more than three months without reference to an advisory board; (2) that clauses (4)(a) and (7)(a) are independent clauses making two separate and alternative provisions regarding detention for more than three months, in one case on the report of an advisory board and in other case without reference to an advisory board. Looking at the substance and not merely at the words, I am inclined to hold that clause (7)(a) practically engrafts an exception on the rule that preventive detention for more than three months can be ordered only on the report of an advisory board, and so far
I have proceeded on that footing. But it seems to me that it will make no difference to the ultimate conclusion, whichever of the two views we may adopt. Even on the latter view, it must be recognized that the law which the Constitution enables the Parliament to make under article22(7)(a) would be an exceptionally drastic law, and, on the principle that an exceptionally drastic law must be intended for an exceptional situation, every word of what I have said so far must stand. Clause (7)(a) is only an enabling provision, and it takes care to provide that the Parliament cannot go to the extreme limit to which it is permitted to go without prescribing the class or classes of cases and the circumstances to which the extreme law would be applicable. It follows that the class or classes of cases and the circumstances must be of a special nature to require such legislation.
It was urged that the word "and" which occurs between "circumstances" and "class or classes of cases" is used in a disjunctive sense and should be read as "or", and by way of illustration it was mentioned that when it is said that a person may do this and that, it means that he is at liberty to do either this or that. I do not think that this argument is sound. I think that clause (7)(a) can be accurately paraphrased somewhat as follows :- "Parliament may dispense with an advisory board, but in that case it shall prescribe the circumstances and the class or classes of case....." If this is the meaning, then "and" must be read as "and" and not as
"or"; and "may" must be read as "shall". Supposing it was said that Parliament may prescribe the time and place for the doing of a thing, then can it be suggested that both time and place should not be prescribed? It seems obvious to me that the class or classes of cases must have some reference to the persons to be detained or to their activities and movements or to both.
"Circumstances" on the other hand refer to something extraneous, such as surroundings, background, prevailing conditions, etc., which might prove a fertile field for the dangerous activities of dangerous persons. Therefore the provision clearly means that both the
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circumstances and the class or classes of cases (which are two different expressions with different meanings and connotations and cannot be regarded as synonymous) should be prescribed, and prescription of one without prescribing the other will not be enough. As I have already stated, such law as can be enacted under article 22(7)(a) must involve, by reason of the extreme limit to which it can go, serious consequences to the persons detained. It will mean (1) prolonged detention, i.e., detention for a period longer than three months, and (2) deprivation of the safeguard of an advisory board. Hence article 22(7)(a) which purports to be a protective provision will cease to serve its object unless it is given a reasonable interpretation. To my mind, what it contemplates is that the law in question must not be too general but its scope should be limited by prescribing both the class or classes of cases and the circumstances.
It was contended that the expression "class or classes of cases" is wide enough to enable the Parliament to treat any of the categories mentioned in Lists I and III, items 9 and 3 respectively, (i.e., any of the categories A to F) as constituting a class. At first sight, it seemed to me to be a plausible argument, but the more I think about it the more unsound it appears to me. The chief thing to be remembered is what I have already emphasized more than once, viz., that a special or extreme type of law must be limited to special classes of cases and circumstances. Under the Constitution, the Parliament has to prescribe "the class or classes", acting within the limits of the power granted to it under Lists I and III. The class or classes must be its own prescription and must be so conceived as to justify by their contents the removal of an important safeguard provided by the Constitution. Prescribing is more than a mere mechanical process. It involves a mental effort to select and adapt the thing prescribed to the object for which it has to be prescribed. We find here that what is to be prescribed is
"class or classes" (and also "circumstances"). We also find that what the law intends to provide is prolonged detention (by which words I shall hereafter mean detention for more than three months) and elimination of the advisory board. The class or classes to be prescribed must therefore have a direct bearing on these matters and must be so selected and stated that any one by looking at them may say: "That is the reason why the law has prescribed prolonged detention without reference to an advisory board." In other words, there must be something to make the class or classes prescribed fit in with an extreme type of legislation - some element of exceptional gravity or menace which cannot be easily and immediately overcome and therefore necessitates prolonged detention; and there must be something to show that reference to an advisory board would be an undesirable and cumbersome process and wholly unsuitable for the exceptional situation to which the law applies. Perhaps a simple illustration may make the position still clearer. Under the Lists, one of the subjects on which Parliament may make a law of preventive detention is "matter connected with the maintenance of public order." The Act simply repeats this phraseology and states in section 3: "with a view to preventing him (the person to be detained) from acting in a manner prejudicial to the maintenance of public order." This may be all right for section 3, but section 12 must go further. An act prejudicial to the maintenance of public order may be an ordinary act or it may be an act of special gravity. I think that article 22(7)(a) contemplates that the graver and more heinous types of acts falling within the category of acts prejudicial to the maintenance of public order (or other heads) should be prescribed so as to define and circumscribe the area of an exceptional piece of legislation.
That some kind of sub-classification (if I may be permitted to use this word) of the categories A to F was possible can be illustrated by reference to regulation 18-B of the British
Defence of the Realm Regulations. This regulation was made under an Act of 1939 which authorized "the making of regulations for the detention of persons whose detention appears to the Secretary of State to be expedient in the interests of public safety or the defence of the realm." The two matters "public safety" and "defence of the realm" are analogous to some of
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the heads stated in Lists I and III. It will be instructive to note that under these two heads, regulation 18-B has set forth several sub-heads or class or classes of cases in which preventive detention could be ordered. These classes are much more specific than what we find in section
3 of the impugned Act and therefore there is less chance of misuse by the executive of the power to order preventive detention. The classes set out are these :- (1) If the Secretary of
State has reasonable cause to believe any person to be of hostile origin or associations, (2) if the Secretary of State has reasonable cause to believe any person to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts, (3) if the Secretary of State has reasonable cause to believe any person to have been or to be a member of or to have been or to be active in the furtherance of the objects of, any such organisation as is hereinafter mentioned...... (a) the organisation is subject to foreign influence or control, (b) the persons in control of the organisation have or have had associations with persons concerned in the government of, or sympathies with the system of government of, any Power with which His Majesty is at war, and in either case there is danger of the utilization of the organization for purposes prejudicial to the public safety, etc., (4) if the Secretary of State has reasonable cause to believe that the recent conduct of any person for the time being in an area of any words recently written or spoken by such a person expressing sympathy with the enemy, indicates or indicate that that person is likely to assist the enemy. I have only to point out that the scope within which preventive detention can be legislated upon in this country is much larger than the scope indicated in the British Act under which Regulation 18-B was framed, and therefore there is more scope for specification of the circumstances as well as the class or classes of cases under the impugned Act. But all that has been done is that words which occur in the legislative Lists have been taken and transferred into the Act.
What I have stated with regard to class or classes of cases also applies to the circumstances which are also to be prescribed under article 22(7)(a). These circumstances are intended to supply the background or setting in which the dangerous activities of dangerous persons might prove specially harmful. They must be special circumstances which demand a specially drastic measure and under which reference to an advisory board might defeat the very object of preventive action. The evident meaning of article 22(7)(a) seems to be that the picture will not be complete without mentioning both the classes and the circumstances. There was some discussion at the Bar as to what kind of circumstances might have been specified. It is not for me to answer this question, but I apprehend that an impending rebellion or war, serious disorder in a particular area such as has induced the Punjab Government to declare certain areas as "disturbed areas," tense communal situation, prevalence of sabotage or widespread political dacoities and a variety of other matters might answer the purpose the Constitution had in view.
I will now try to sum up the result of a somewhat protracted discussion into which I had to enter merely to clarify the meaning of a very important provision of the Constitution which has, in my opinion, been completely misunderstood by the framers of the impugned Act. It appears to me that article 22 deals with three classes of preventive detention:
(1) preventive detention for three months;
(2) preventive detention for more than three months on the report of the advisory board; and
(3) preventive detention for more than three months without reference to the advisory board.
If one has to find some kind of a label for these classes for a clear understanding of the subject, one may label them as "dangerous," "more dangerous" and "most dangerous." Now
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so far as the first two classes are concerned, there is nothing to be prescribed under the
Constitution. Apparently, the authors of the Constitution were not much concerned about class no. (1), and they thought that in so far as class no. (2) was concerned the provision that a reference to the advisory board was necessary coupled with the provision that detention was not to exceed the maximum period which may be fixed by the Parliament was enough. But they did take care to make a special provision for class No. (3), and it is extremely important for the liberty of the subject as well as for the smooth working of the Constitution that this provision should not be lightly treated but should receive a well-considered and reasonable construction. It is elementary that the rigour of a law should correspond to or fit the gravity of the evil or danger it aims at combating, and it is also evident that the law which the Parliament has been permitted to enact under article 22(7)(a) can, so far as rigour is concerned, go to the farthest limit. It follows that the law must have been intended for exceptionally grave situations and exigencies. Hence the authors of the Constitution have made it necessary that the Parliament should put certain specifications into the Act which it is empowered to pass under article 22(7)(a), so that by means of these specifications the necessity for enacting so drastic a law should be apparent on the face of it, and its application should be confined to the classes and circumstances specified. The Act must prescribe (1) "class or classes of cases" which are to have reference to the persons against whom the law is to operate and their activities and movements and (2) "circumstances" which would bring into prominence the conditions and the backgrounds against which dangerous activities should call for special measures. By means of such two-fold prescription, the sphere for the application of the law will be confined only to a special type of cases - it will be less vague, less open to abuse the enable those who have to administer it to determine objectively when a condition has arisen to justify the use of the power vested in them by the law. This, in my opinion, is the true meaning and significance of article 22(7)(a) and any attempt to whittle it down will lead to deplorable results.
Having stated my views as to the construction of article 22(7)(a), I propose to consider at once whether section 12 of the impugned Act conforms to the requirements of that provision.
In my opinion, it does not, because if fails to prescribe either the circumstances or the class or classes of cases in the manner required by the Constitution. It does not prescribe circumstances at all, and, though it purports to prescribe the class or classes, it does so in a manner showing that the true meaning of the provision from which the Parliament derived its power has not been grasped. I have sufficiently dwelt on this part of the case and shall not repeat what I have already said. But I must point out that even if it be assumed that the view advanced by the learned Attorney-General is correct and it was within the competence of Parliament to treat any of the categories mentioned in items 9 and 3 of Lists I and III as constituting a class and to include it without any qualification or change, the impugned section cannot be saved on account of a two-fold error :- (1) the word "and" which links "class or classes" with
"circumstances" in article22(7)(a) has been wrongly construed to mean "or;" and (2) the distinction between "circumstances" and "class or classes" has been completely ignored and they are used as interchangeable terms. The first error appears to me to be quite a serious one, because though the Constitution lays down two requirements and insists on the prescription of circumstances as well as class or classes, it has been assumed in enacting section 12 that prescription of one of them only will be enough. The other error is still more serious and goes to the root of the matter. There can be no doubt that circumstances and class or classes are two different expressions and have different meanings, but the Act proceeds on the assumption that circumstances are identical with class or classes, as will appear from the words "any person detained in any of the following classes of cases or under any of the following circumstances" used in the section. I have already shown how important the specification of circumstances is in legislation of such an extreme and drastic character. Therefore, to confuse
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"classes" with "circumstances" and to omit to mention "circumstances" at all are in my opinion grave errors. There can, in my opinion, be no escape from the conclusion that section 12 of the Act by which a most important protection or safeguard conferred on the subject by the
Constitution has been taken away, is not a valid provision, since it contravenes the very provision in the Constitution under which the Parliament derived its competence to enact it.
I will now briefly deal with article 22(5) which makes it incumbent on the authority ordering preventive detention to communicate to the person detained the grounds on which the order has been made and to give him the earliest opportunity of making a representation against the order. It must be remembered that this provision is intended to afford protection to and be a safeguard in favour of a detained person, and it cannot be read as limiting any rights which he has under the law or any other provisions of the Constitution. If article 21 guarantees that before a person is deprived of his liberty he must be allowed an opportunity of establishing his innocence before an impartial tribunal, that right still remains. In point of fact, there is no express exclusion of that right in the Constitution and no prohibition against constituting an impartial tribunal. On the other hand, the right to make a representation which has been granted under the Constitution, must carry with it the right to the representation being properly considered by an impartial person or persons. There must therefore be some machinery for properly examining the cases of the detenus and coming to the conclusion that they have not been detained without reason. If this right had been expressly taken away by the Constitution, there would have been an end of the matter, but it has not been expressly taken away, and I am not prepared to read any implicit deprivation of such a valuable right. The mere reference to an advisory board in article22(4)(a) does not, if my interpretation of the provision is correct, exclude the constitution of a proper machinery for the purpose of examining the cases of detenus on merits. The constitution of an advisory board for the purpose of reporting whether a person should be detained for more than three months or not is a very different thing from constituting a board for the purpose of reporting whether a man should be detained for a single day. In the view I take, all that Parliament could do under clause (7)(a) of article 22was to dispense with an advisory board for the purpose contemplated in clause (4)(a) of that article and not to dispense with the proper machinery, by whichever name it may be called, for the purpose of examining the merits of the case of a detained person.
It was argued that article 22 is a code by itself and the whole law of preventive detention is to be found within its four corners: I cannot however easily subscribe to this sweeping statement. The article does provide for some matters of procedure, but it does not exhaustively provide for them. It is said that it provides for notice, an opportunity to the detenu to represent his case, an advisory board which may deal with his case, and for the maximum period beyond which a person cannot be detained. These points have undoubtedly been touched, but it cannot be said that they have been exhaustively treated. The right to represent is given, but it is left to the legislature to provide the machinery for dealing with the representation. The advisory board has been mentioned, but it is only to safeguard detention for a period longer than three months. There is ample latitude still left to the Parliament, and if the Parliament makes use of that latitude unreasonably, article 19(5) may enable the Court to see whether it has transgressed the limits of reasonableness.
I will now proceed to deal with the Act in the light of the conclusions I have arrived at.
So far as section 3 of the Act is concerned, it was contended that it is most unreasonable, because it throws a citizen at the mercy of certain authorities, who may at their own will order his detention and into whose minds we cannot probe to see whether there is any foundation for the subjective satisfaction upon which their action is to rest. I am however unable to accept this argument. The administrative authorities who have to discharge their responsibilities have to come to quick decisions and must necessarily by left to act on their own judgment. This
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principle is by no means unreasonable and it underlies all the preventive or quasiadministrative measures which are to be found in the Criminal Procedure Code. Under section
107 of that code, it is left to the discretion of the magistrate concerned to determine whether in his opinion there is sufficient ground for proceeding against any person who is likely to occasion a breach of the peace. Under section 145 also, his initial action depends upon his personal satisfaction. Therefore I do not find anything wrong or unconstitutional in section 3 of the Act. But I must point out that it is a reasonable provision only for the first step, i.e., for arrest and initial detention, and must be followed by some procedure for testing the so-called subjective satisfaction, which can be done only by providing a suitable machinery for examining the grounds on which the order of detention is made and considering the representations of the persons detained in relation to those grounds.
I do not also find anything radically wrong in section 7 of the Act, which makes it incumbent on the authority concerned to communicate to a detenu the grounds on which the order has been made and to afford him the earliest opportunity of making a representation against the order. Section 10 which provides that the advisory board shall make its report within ten weeks from the date of the detention order is in conformity with article 22(4)(a) of the Constitution, and the only comment which one can make is that Parliament was not obliged to fix such a long period for the submission of a report and could have made it shorter in ordinary cases. The real sections which appear to me to offend the Constitution are sections
12 and 14. I have already dealt with the principal objection to section 12, while discussing the provisions of article 22(7)(a) and I am of the opinion that section 12 does not conform to the provisions of the Constitution and is therefore ultra vires. I also think that even if it be held that it technically complies with the requirements of article 22(7)(a), Parliament has acted unreasonably in exercising its discretionary power without applying its mind to essential matters and thus depriving the detenus of the safeguard of an advisory board which the
Constitution has provided in normal cases. So far as section 14 is concerned, all my colleagues have held it to be ultra vires, and, as I agree with the views expressed by them, I do not wish to encumber my judgment by repeating in my own words what has been said so clearly and so well by them. Section 14 may be severable from the other provisions of the Act and it may not be possible to grant any relief to the petitioner on the ground that section 14 is invalid. But
I think that section 12 goes to the very root of the legislation inasmuch as it deprives a detenu of an essential safeguard, and in my opinion the petitioner is entitled to a writ of habeas corpus on the ground that an essential provision of the Constitution has not been complied with. This writ will of course be without prejudice to any action which the authorities may have taken or may hereafter take against the petitioner under the penal law. I have to add this qualification because there were allegations of his being involved in some criminal cases but the actual facts were not clearly brought out before us.
I have only to add a few concluding remarks to my judgment. In studying the provisions of the impugned Act, I could not help instituting a comparison in my own mind between it and similar legislation in England during the last two world wars. I could not also help noticing that the impugned Act purports to be a peacetime Act, whereas the legislation to which I have referred was enacted during the war. During the first war as well as the second, a number of persons were detained and a number of cases were brought to Court in connection with their detention, but the two leading cases which will be quoted again and again are Rex v.
Halliday, [1917] A.C. 260 and Liversidge v. Sir John Anderson, [1942] A.C. 206. We are aware that in America certain standards which do not conform to ordinary and normal law have been applied by the Judges during the period of the war and sometimes they are compendiously referred to as being included in "war power". The two English cases to which
I have referred also illustrate the same principle, as will appear from two short extracts which
I wish to reproduce. In Rex v. Halliday, [1917] A.C. 260, Lord Atkinson observed as follows:
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"However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war, or escape from national plunder or enslavement."
In Liversidge v. Sir John Anderson, [1942] A.C. 206, Lord Macmillan struck the same note in these words:
"The liberty which we so justly extol is itself the gift of the law and as Magna
Charta recognizes may by the law be forfeited or abridged. At a time when it is the undoubted law of the land that a citizen may by conscription or requisition be compelled to give up his life and all that he possesses for his country 's cause it may well be no matter for surprise that there should be confided to the
Secretary of State a discretionary power of enforcing the relatively mild precaution of detention."
These passages represent the majority view in the two cases, but the very elaborate judgments of Lord Shaw in Rex v. Halliday and that of Lord Atkin in Liversidge v. Sir John
Anderson show that there was room for difference of opinion as well as for a more dispassionate treatment of the case and the points involved in it. It is difficult to say that there is not a good substratum of sound law in the celebrated dictum of Lord Atkin that even amidst the clash of arms the laws are not silent and that they speak the same language in war as in peace. However that may be, what I find is that in the regulations made in England during the first war as well as the second war there was an elaborate provision for an advisory board in all cases without any exception, which provided a wartime safeguard for persons deprived of their liberty. There was also a provision in the Act of 1939 that the Secretary of State should report at least once in every month as to the action taken under the regulation including the number of persons detained under orders made there under I find that these reports were printed and made available to the public. I also find that the Secretary of State stated in the
House of Commons on the 28th January, 1943, that the general order would be allow British subjects detained under the Regulation to have consultations with their legal advisers out of the hearing of an officer. This order applied to consultations with barristers and solicitors but not to cases where solicitors sent to interview a detained person a clerk who was not an officer of the High Court. The impugned Act suffers in comparison, on account of want of such provisions, though, so far as I can see, no great harm was likely to have been caused by setting up a machinery composed of either administrative or judicial authorities for examining the cases of detained persons so as to satisfy the essentials of fairness and justice. The Act also suffers in comparison with some of the later Provincial Acts in which the safeguard of an advisory board is expressly provided for. I find that there is a provision in section 12(2) of the
Act for the review of the cases of detenus after six months, but this is quite different from examining the merits of the case. The object of such a review is obviously to find out whether by reason of any change in the circumstances, a review of the original order is required.
I hope that in pointing out the shortcomings of the Act I will not be misunderstood. I am aware that both in England and in America and also in many other countries, there has been a reorientation of the old notions of individual freedom which is gradually yielding to social control in many matters. I also realize that those who run the State have very onerous responsibilities, and it is not correct to say that emergent conditions have altogether disappeared from this country. Granting then that private rights must often be subordinated to the public good, is it not essential in a free community to strike a just balance in the matter?
That a person should be deprived of his personal liberty without a trial is a serious matter, but the needs of society may demand it and the individual may often have to yield to those needs.
Still the balance between the maintenance of individual rights and public good can be struck only if the person who is deprived of his liberty is allowed a fair chance to establish his
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innocence, and I do not see how the establishment of an appropriate machinery giving him such a chance can be an impediment to good and just government.
JUSTICE PATANJALI SASTRI (FOR HIMSELF)
… Mr. Nambiar appearing for the petitioner advanced three main lines of argument. In the first place, the right to move freely throughout the territory of India referred to in article 19(1)(d) is of the very essence of personal liberty, and inasmuch as the detention authorised by the impugned Act was not a "reasonable restriction" which Parliament could validly impose on such right under clause (5) of the article, the impugned Act is void.
Alternatively, the petitioner had a fundamental right under article 21 not to be deprived of his personal liberty except according to procedure established by law, and the impugned Act by authorising detention otherwise than in accordance with proper procedure took away that right and was therefore void. And, lastly, the provisions of the impugned Act already referred to were ultra vires and inoperative as Parliament in enacting them has overstepped the limitations placed on its legislative power by article 22 clauses (4) to (7).
... It was said that the safeguards provided in clauses (1) and (2) of article 22 are more or less covered by the provisions of the Criminal Procedure Code, and this overlapping would have been the avoided if article 21 were intended to bear the construction as indicated above.
The argument overlooks that, while the provisions of the Code would be liable to alteration by competent legislative action, the safeguards in clauses (1) and (2) of article 22, being constitutional, could not be similarly dealt with and this sufficiently explains why those safeguards find a place in the Constitution.
The only alternative to the construction I have indicated above, if a constitutional transgression is to be avoided, would be to intercept the reference to "law" as implying a constitutional amendment pro tanto, for it is only a law enacted by the procedure provided for such amendment (article 368) that could modify or override a fundamental right without contravening article 13(2).
The question next arises as to how far the protection under article 21, such as it has been found to be, is available to persons under preventive detention. The learned Attorney-General contended that article 21 did not apply to preventive detention at all, as article 22 clauses (4) to (7) formed a complete code of constitutional safeguards in respect of preventive detention and, provided only these provisions are conformed to, the validity of any law relating to preventive detention could not be challenged. I am unable to agree with this view. The language of article 21 is perfectly general and covers deprivation of personal liberty or incarceration, both for punitive and preventive reasons. If it was really the intention of the framers of the Constitution to exclude the application of article 21 to cases of preventive detention, nothing would have been easier than to add a reference to article 21 in clause (3) of article 22 which provides that clauses (1) and (2) of the latter shall not apply to any person who is arrested or detained under any law providing for preventive detention. Nor is there anything in the language of clauses (4) to (7) of article 22 leading necessarily to the inference that article 21 is inapplicable to preventive detention. These clauses deal only with certain aspects of preventive detention such as the duration of such detention, the constitution of an advisory board for reviewing the order of detention in certain cases, the communication of the grounds of detention to the person detained and the provision of an opportunity to him of making a representation against the order. It cannot be said that these provisions form an exhaustive code dealing with all matters relating to preventive detention and cover the entire area of protection which article 21, interpreted in the sense I have indicated above, would
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afford to the person detained. I am, therefore, of opinion that article 21 is applicable to preventive detention as well.
I will now proceed to examine whether the impugned Act or any of its provisions under which the petitioner has been ordered to be detained, takes away any of the rights conferred by articles 21 and 22 or infringes the protection afforded thereby. The outstanding fact to be borne in mind in this connection is that preventive detention has been given a constitutional status. This sinister-looking feature, so strangely out of place in a democratic constitution which invests personal liberty with the sacrosanctity of a fundamental right and so incompatible with the promises of its preamble is doubtless designed to prevent an abuse of freedom by anti-social and subversive elements which might imperil the national welfare of the infant Republic. It is in this spirit that clauses (3) to (7) of article 22 should, in my opinion, be construed and harmonised as far as possible with article 21 so as not to diminish unnecessarily the protection afforded for the legitimate exercise of personal liberty. In the first place, as already stated, clause (3) of article 22 excludes a person detained under any law providing for preventive detention from the benefit of the safeguards provided in clauses (1) and (2). No doubt clause (5) of the same article makes some amends for the deprivation of these safeguards in that it provides for the communication to the person detained the grounds on which the order has been made and for an opportunity being afforded to him of making a representation against the order, but the important right to consult and to be defended by a legal practitioner of his choice is gone. Similarly, the prohibition against detention in custody beyond a period of 24 hours without the authority of a magistrate has also been taken away in cases of preventive detention. It was not disputed that, to the extent to which the express provisions of clauses (4) to (7) authorised the abrogation or abridgement of the safeguards provided under other articles of substitution of other safeguards in a modified form, those express provisions must rule.
Of the four essentials of the due process on which Mr. Nambiar insisted, (which also form part of the ordinary and established procedure under the Criminal Procedure Code, though I cannot agree that they are immutable and beyond legislative change) the requirements of notice and an opportunity to establish his innocence must, as already stated, be taken to have been provided for by clause (5) of article 22. As for an ascertainable standard of conduct to which it is possible to conform, article 22 makes no specific provision in cases of preventive detention, and if such a safeguard can be said to be implicit in the procedure established by law in the sense explained above in preventive detention cases, it could no doubt be invoked.
This point will be considered presently in dealing with provisions of the impugned Act. The only other essential requirement, and the most essential of all, is an impartial tribunal capable of giving an unbiased verdict. This, Mr. Nambiar submitted, was left unprovided for by article 22, the advisory board referred to in clause (4)(a) being, according to him, intended to deal solely with the question of duration of the detention, that is to say, whether or not there was sufficient cause for detaining the person concerned for more than three months, and not with judging whether the person detained was innocent. A tribunal which could give an unbiased judgment on that issue was an essential part of the protection afforded by article 21 in whichever way it may be interpreted, and reference was made in this connection to the preventive provisions of the Criminal Procedure Code (Ch. VIII). The impugned Act, not having provided for such a tribunal contravened article 21and was therefore void. It will be seen that the whole of this argument is based on the major premise that the advisory board mentioned in clause (4)(a) of article 22 is not a tribunal intended to deal with the issue of justification of detention. Is that view correct?
It was argued that the words "sufficient cause for such detention" in sub-clause (a) of clause (4) had reference to the detention beyond three months mentioned in clause (4) and that
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this view was supported by the language of sub-clause (a) of clause (7) whereby Parliament is authorised to prescribe the circumstances under which and the class or classes or cases in which a person may be detained for a period longer than three months without the opinion of an advisory board. In other words, learned counsel submitted, the combined effect of clauses
(4) and (7) was that no person could be detained for a period over three months without obtaining the opinion of an advisory board that there was sufficient cause for detention for the longer period, except in cases where Parliament passed a law authorising detention for such period even without the opinion of an advisory board. Thus, these two clauses were concerned solely with the duration of the preventive detention, and so was the advisory board which those clauses provided for that purpose. I am unable to accept this view. I am inclined to think that the words "such detention" in sub-clause (a) refer back to the preventive detention mentioned in clause (4) and not to detention for a longer period than three months. An advisory board, composed as it has to be of Judges or lawyers, would hardly be in a position to judge how long a person under preventive detention, say for reasons connected with defence, should be detained. That must be a matter for the executive authorities, the Department of Defence, to determine, as they alone are responsible for the defence of the country and have the necessary data for taking a decision on the point. All that an advisory board can reasonably be asked to do, as a safeguard against the misuse of the power, is to judge whether the detention is justified and not arbitrary or mala fide. The fact that the advisory board is required to make its report before the expiry of three months and so could submit it only a day or two earlier cannot legitimately lead to an inference that the board was solely concerned with the issue whether or not the detention should continue beyond that period. Before any such tribunal could send in its report a reasonable time must elapse, as the grounds have to be communicated to the person detained, he has to make his representation to the detaining authority which has got to be placed before the board through the appropriate departmental channel. Each of these steps may, in the course of official routine, take some time, and three months ' period might well have been thought a reasonable period to allow before the board could be required to submit its report.
Assuming, however, that the words "such detention" had reference to the period of detention, there is no apparent reason for confining the enquiry by the advisory board to the sole issue of duration beyond three months without reference to the question as to whether the detention was justified or not. Indeed, it is difficult to conceive how a tribunal could fairly judge whether a person should be detained for more than three months without at the same time considering whether there was sufficient cause for the detention at all. I am of opinion that the advisory board referred to in clause (4) is the machinery devised by the Constitution for reviewing orders for preventive detention in certain cases on a consideration of the representations made by the persons detained. This is the view on which Parliament has proceeded in enacting the impugned Act as will be seen from sections 9 and 10 thereof, and I think it is the correct view. It follows that the petitioner cannot claim to have his case judged by any other impartial tribunal by virtue of article 21 or otherwise.
Mr. Nambiar, however, objected that, on this view, a law could authorise preventive detention for three months without providing for review by any tribunal, and for even longer periods if Parliament passed an Act such as is contemplated in sub-clause (a) of clause (7).
That may be so, but, however deplorable such a result may be from the point of view of the person detained, there could be no remedy if, on a proper construction of clauses (4) and (7), the Constitution is found to afford no higher protection for the personal liberty of the individual. Turning next to the provisions of the impugned Act, whose constitutional validity was challenged, it will be necessary to consider only those provisions which affect the petitioner
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before us. In the first place, it was contended that section 3, which empowers the Central
Government or the State Government to detain any person if it is "satisfied" that it is necessary to do so with a view to preventing him from acting in any manner prejudicial to (among other things) the security of the State or the maintenance of public order, cannot be said to comply with the procedure established by law, as the section prescribes no objective and ascertainable standard of conduct to which it will be possible to conform, but leaves it to the will and pleasure of the Government concerned to make an order of detention. The argument proceeds on the assumption that the procedure established by law is equivalent to the due process of law. I have already endeavoured to show that it is not. Apart from this, the argument overlooks that for the purposes of preventive detention it would be difficult, if not impossible to lay down objective rules of conduct failure to conform to which should lead to such detention. As the very term implies, the detention in such cases is effected with a view to prevent the person concerned from acting prejudicially to certain objects which the legislation providing for such detention has in view. Nor would it be practicable to indicate or enumerate in advance what acts or classes of acts would be regarded as prejudicial. The responsibility for the security of the State and the maintenance of public order etc. having been laid on the executive
Government it must naturally be left to that Government to exercise the power of preventive detention whenever they think the occasion demands it.
Section 12 came in for a good deal of criticism… It was urged that this did not comply with the requirements of clause (7) of article 22 as it merely repeated the "matters" or legislative topics mentioned in Entry 9 of List I and Entry 3 of List III of the Seventh Schedule to the Constitution. What Parliament has to do under clause (7) of article 22 is to prescribe
"the circumstances under which and the class or classes of cases in which" a person may be detained for a period longer than three months without obtaining the opinion of an advisory board. It was said that clause (4)(a) provided for ordinary cases of preventive detention where such detention could not continue beyond three months without obtaining the opinion of an advisory board, whereas clause (7)(a) made provision for special cases of detention for more than three months without the safeguard of the advisory board 's opinion, for aggravated forms of prejudicial conduct. In other words, clause (4)(a) laid down the rule and clause (7)(a) enacted an exception. It was therefore necessary for Parliament to indicate to the detaining authority for its guidance the more aggravated forms of prejudicial activity, and mere mention of the subjects in respect of which Parliament is authorised under the legislative lists to make laws in respect of preventive detention could hardly afford any guidance to such authority and should not be regarded as sufficient compliance with the requirements of clause (7).
There is a two-fold fallacy in this argument. In the first place, the suggested correlation between clause (4)(a) and clause (7)(a) as enacting a rule and an exception is, as a matter of construction, without foundation. Reading clauses (4) and (7) together it is reasonably clear that preventive detention could last longer in two cases : (1) where the opinion of an advisory board is obtained, subject however to a prescribed period [sub-clause (a) of clause (4)] and (2) where a person is detained under a law made by Parliament under sub-clauses (a) and (b) of clause (7) [sub-clause (b) of clause (4)]. These are two distinct and independent provisions. It is significant that sub-clause (b) of clause (4) is not worded as a proviso or an exception to sub-clause (a) of the same clause as it would have been if it was intended to operate as such.
The attempt to correlate clause (4)(a) and clause (7)(a) as a rule and an exception respectively is opposed both to the language and the structure of those clauses.
Secondly, the argument loses sight of the fact that clause (7) deals with preventive detention which is a purely precautionary measure which "must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof" [per Lord Atkinson in Rex v. Halliday, 1917 A.C. 260. The remarks I have already made with reference to the
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absence of any objective rules of conduct in section 3 of the impugned Act apply also to this criticism of section 12. It would be difficult, if not impracticable, to mention the various circumstances, or to enumerate the various classes of cases exhaustively in which a person should be detained for more than three months for preventive purposes, except in broad outline. Suppose a person belongs to an organization pledged to violent and subversive activity as its policy. Beyond his membership of the party the person might have done nothing until he was arrested and detained. But if released he might indulge in anything from the mildest form of prejudicial activity, like sticking an objectionable handbill on a hoarding, to the most outrageous acts of sabotage. How could the insertion in section 12 of a long services of categories of aggravated forms of prejudicial activities, or the enumeration of the various circumstances in which such activities are likely to be indulged in, be of any assistance to the detaining authority in determining whether the person concerned should be detained for three months or for a longer period? All that would be necessary and sufficient for him to know for coming to a decision on the point is that the person is a member of such an organisation and will probably engage in subversive activities prejudicial to the security of the State or the maintenance of public order or, in other words, he belongs to class (b) in section 12.
While enumeration and classification in detail would undoubtedly help in grading punishment for offences committed, they would not be of much use in fixing the duration of preventive detention. Sufficient guidance in such cases could be given by broadly indicating the general nature of the prejudicial activity which a person is likely to indulge in, and that in effect is what Parliament has done in section 12. Reference was made in this connection to
Rule 34 of the Defence of India Rules framed under the Defence of India Act, 1939, where
"prejudicial act" is defined by enumeration. But it was also for the purpose of prohibiting such acts [Rule 38 sub-rule (1)] and making them offences (sub-rule 5). And even there, the definition had to end in a residuary clause sweeping in acts likely "to prejudice the efficient prosecution of the war, the defence of British India or the public safety or interest." In Lists I and III of the Seventh Schedule to the Constitution six topics are mentioned in respect of which Parliament could make laws providing for preventive detention, and section 12 of the impugned Act mentions five of them as being the classes of cases or the circumstances in which longer detention is authorised. I fail to see why this could not be regarded as a broad classification of cases or a broad description of circumstances where Parliament considers longer detention to be justifiable. A class can well be designated with reference to the end which one desires to secure, and the matters referred to as classes (a) and (b) of sub-section
(1) of section 12 being clearly the objects which Parliament desired to secure by enacting the section, it seems to me that the classification with reference to such general aims does not contravene article 22(7).
It was urged that Parliament did not, in enacting section 12, perform its duty of prescribing both the circumstances and the class or classes of cases where detention without obtaining the advisory board 's opinion could be for a period longer than three months. The use of disjunctive
"or" between the word "circumstances" and the words "class or classes of cases" showed, it was said, that Parliament proceeded on the view that it need not prescribe both. This was in contravention of article 22(7) which used the conjunctive "and" between those words. There is no substance in this objection. As I read article 22(7) it means that Parliament may prescribe either the circumstances or the classes of cases or both, and in enacting section 12 Parliament evidently regarded the matters mentioned in clause (a) and (b) of sub-section (1) as sufficiently indicative both of the circumstances under which and the classes in which a person could be detained for the longer period. To say, for instance, that persons who are likely to act prejudicially to the defence of India may be detained beyond three months is at once to
"prescribe a class of persons in which and the circumstances under which" a person may be detained for the longer period. In other words, the classification itself may be such as to
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amount to a sufficient description of the circumstances for purposes of clause (7). The circumstances which would justify precautionary detention beyond three months without recourse to an advisory board must be far too numerous for anything approaching an exhaustive enumeration, and it can, in my judgment, be no objection to the validity of section
12 that no circumstances are mentioned apart from the matters referred to in clauses (a) and
(b) of sub-section (1). It would indeed be singular for the Court to strike down a parliamentary enactment because in its opinion a certain classification therein made is imperfect or the mention of certain circumstances is unspecific or inadequate.
Lastly, Mr. Nambiar turned his attack on section 14 which prohibits the disclosure of the grounds of detention communicated to the person detained and of the representation made by him against the order of detention, and debars the Court from allowing such disclosure to be made except for purposes of a prosecution punishable under sub-section (2) which makes it an offence for any person to disclose or publish such grounds or representation without the previous authorisation of the Central Government or the State Government as the case may be. The petitioner complains that this provision nullifies in effect the rights conferred upon him under clause (5) of article 22 which entitles him to have the grounds of his detention communicated to him and to make a representation against the order. If the grounds are too vague to enable him to make any such representation, or if they are altogether irrelevant to the object of his detention, or are such as to show that his detention is not bona fide, he has the further right of moving this Court and this remedy is also guaranteed to him under article 32.
These rights and remedies, the petitioner submits, cannot be effectively exercised, if he is prevented on pain of prosecution, from disclosing the grounds to the Court. There is great force in this contention. All that the Attorney-General could say in answer was that if the other provisions of the Act were held to be valid, it would not be open to the Court to examine the sufficiency of the grounds on which the executive authority was "satisfied" that detention was necessary, as laid down in Machindar Shivaji Mahar v. King, [1949] F.C.R. 827, and so the petitioner could not complain of any infringement of his rights by reason of section 14 which enacted only a rule of evidence. The argument overlooks that it was recognised in the decision referred to above that it would be open to the Court to examine the grounds of detention in order to see whether they were relevant to the object which the legislature had in view, such as, for instance, the prevention of acts prejudicial to public safety and tranquillity, or were such as to show that the detention was not bona fide. An examination of the grounds for these purposes is made impossible by section 14, and the protection afforded by article 22(5) and article 32 is thereby rendered nugatory. It follows that section 14 contravenes the provisions of article 22(5) and article 32 in so far as it prohibits the person detained from disclosing to the Court the grounds of his detention communicated to him by the detaining authority or the representation made by him against the order of detention, and prevents the Court from examining them for the purposes aforesaid, and to that extent it must be held under article 13(2) to be void. This however, does not affect the rest of the Act which is severable.
As the petitioner did not disclose the grounds of his detention pending our decision on this point, he will now be free to seek his remedy, if so advised, on the basis of those grounds.
In the result, the application fails and is dismissed.
JUSTICE MAHAJAN (FOR HIMSELF)
… Preventive detention laws are repugnant to democratic constitutions and they cannot be found to exist in any of the democratic countries of the world. It was stated at the Bar that no such law was in force in the United States of America. In England for the first time during the First World War certain regulations framed under the Defence of the Realm Act provided
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for preventive detention at the satisfaction of the Home Secretary as a war measure and they ceased to have effect at the conclusion of hostilities. The same thing happened during the
Second World War. Similar regulations were introduced during the period of the war in India under the Defence of India Act.
The Government of India Act, 1935, conferred authority on the Central and Provincial
Legislatures to enact laws on this subject for the first time and since then laws on this subject have taken firm root here and have become a permanent part of the statute book of this country.
Curiously enough this subject has found place in the Constitution in the chapter on
Fundamental Rights. Entry 9 of the Union List and Entry 3 of the Concurrent List of the 7th
Schedule mention the scope of legislative power of Parliament in respect of this topic. The jurisdiction, however, to enact these laws is subject to the provisions of Part III of the
Constitution Article 22…
The question of the constitutional validity of the impugned statute has to be approached with great caution in view of these provisions of the Constitution and has to be considered with patient attention. The benefit of reasonable doubt has to be resolved in favour of legislative action, though such a presumption is not conclusive. It seems that the subject of preventive detention became the particular concern of the Constitution because of its intimate connection with deprivation of personal liberty to protect which certain provisions were introduced in the Chapter on Fundamental Rights and because of the conditions prevailing in the newly born Republic. Preventive detention means a complete negation of freedom of movement and of personal liberty and is incompatible with both those subjects and yet it is placed in the same compartment with them in Part III of the Constitution.
… Apart from these enabling and disabling provisions certain procedural rights have been expressly safeguarded by clause (5) of article 22. A person detained under a law of preventive detention has a right to obtain information as to the grounds of his detention and has also the right to make a representation protesting against an order of preventive detention. This right has been guaranteed independently of the duration of the period of detention and irrespective of the existence or non-existence of an advisory board. No machinery, however, has been provided or expressly mentioned for dealing with this representation. It seems to me that when a constitutional right has been conferred as a necessary consequence, a constitutional remedy for obtaining redress in case of infringement of the right must be presumed to have been contemplated and it could not have been intended that the right was merely illusory and that a representation made may well find place in cold storage. Consideration of the representation made by virtue of clause (5) by an unbiased authority is, in my opinion, a necessary consequence of the guaranteed right contained herein. The right has been conferred to enable a detained person to establish his innocence and to secure justice, and no justice can be said to be secured unless the representation is considered by some impartial person.
The interpretation that I am inclined to place on clause (5) of article 22 is justified by the solemn words of the declaration contained in the Preamble to the Constitution. It is this declaration that makes our Constitution sublime and it is the guarantees mentioned in the chapter on Fundamental Rights that make it one of the greatest charters of liberty and of which the people of this country may well be proud. This charter has not been forced out of unwilling hands of a sovereign like the Magna Carta but it has been given to themselves by the people of the country through their Constituent Assembly. Any interpretation of the provisions of
Part III of the Constitution without reference to this solemn declaration is apt to lead one into error. If the right of representation given to a detained person by clause (5) of article 22 is a guaranteed right and has been given for the purpose of securing justice, then it follows that no justice can be held secured to him unless an unbiased person considers the merits of the representation and gives his opinion on the guilt or the innocence of the persons detained. In
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my view, the right cannot be defeated or made elusive by presuming that the detaining authority itself will consider the representation with an unbiased mind and will render justice.
That would in a way make the prosecutor a judge in the case and such a procedure is repugnant to all notions of justice.
The Constitution has further curtailed the rights given in clause (5) by providing in clause
(6) a privilege on the detaining authority of withholding facts which the said authority considers not in public interests to disclose. This privilege has been conferred for the security of the State and possibly for the security of the Constitution itself, but in view of these stringent provisions no additional clogs can be put on the proper consideration of the representation of the detained person by presuming that the detaining authority itself will properly consider the representation. It has also to be remembered in this context that a person subjected to the law of preventive detention has been deprived of the rights conferred on persons who become subject to the law of punitive detention [vide clauses (1) and (2) of article 22]. He has been denied the right to consult a lawyer or be defended by him and he can be kept in detention without being produced before a magistrate.
Having examined the provisions of article 22, I now proceed to consider the first question that was canvassed before us by the learned Attorney-General, i.e., that article 22 of the
Constitution read with the entries in the 7th Schedule was a complete Code on the subject of preventive detention, and that being so, the other articles of Part III could not be invoked in the consideration of the validity of the impugned statute. It was conceded by the learned counsel for the petitioner that to the extent that express provisions exist in article 22 on the topic of preventive detention those provisions would prevail and could not be controlled by the other provisions of Part III. It was, however, urged that on matters on which this article had made no special provision on this topic the other provisions of Part III of the Constitution had application, namely, articles 19 and 21 and to that extent laws made on this subject were justifiable. In order to draw the inference that the framers of the Constitution intended the provisions as regards preventive detention in article 22 to be self-contained a clear indication of such an intention has to be gathered. If the provisions embodied in this article have dealt with all the principal questions that are likely to arise in matters of procedure or on questions of the reasonableness of the period of detention, the inference of such an indication would be irresistible. Ordinarily when a subject is expressly death with in a constitution in some detail, it has to be assumed that the intention was to exclude the application of the general provisions contained therein elsewhere. Express mention of one thing is an exclusion of the other.
Expressio unius est exclusio alterius.
I am satisfied on a review of the whole scheme of the Constitution that the intention was to make article 22 self-contained in respect of the laws on the subject of preventive detention.
It was contended that all the articles in the Constitution should be read in a harmonious manner and one article should not be read as standing by itself and as having no connection with the other articles in the same part. It was said that they were all supplementary to one another. In this connection it was argued that a law made under article 22 would not be valid unless it was in accord with the provisions of article 21 of the Constitution. This article provides that no person shall be deprived of life or liberty except according to procedure established by law. It was contended that in substance the article laid down that no person will be deprived of life or liberty without having been given a fair trial or a fair hearing and that unless a law of preventive detention provided such a hearing that law would be in contravention of this article and thus void. Conceding for the sake of argument (but without expressing any opinion on it) that this contention of the learned counsel is correct, the question arises whether there is anything in article 22 which negatives the application of article 21 as above construed to a law on preventive detention. In my opinion, sub-clause (5) of article 22 read with clauses (1) and
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(2) leads to the inference that the contention raised by the learned counsel is unsound. Clause
(5), as already stated, provides that notice has to be given to a detenu of the grounds of his detention. It also provides a limited hearing inasmuch as it gives him an opportunity to establish his innocence.
As, in my opinion, the consideration of a representation made by a detained person by an unbiased authority is implicit in clause (5), it gives to the detained person all that he is entitled to under the principles of natural justice. The right to consult and to be represented by a counsel of his own choice has been denied in express terms to such a person by the
Constitution. He is also denied an opportunity of appearing before a magistrate. When the
Constitution has taken away certain rights that ordinarily will be possessed by a detained person and in substitution thereof certain other rights have been conferred on him even in the matter of procedure, the inference is clear that the intention was to deprive such a person of the right of an elaborate procedure usually provided for in judicial proceedings. Clause (6) of article 22 very strongly supports this conclusion. There would have been no point in laying down such detailed rules of procedure in respect of a law preventive detention if the intention was that such a law would be subject to the provisions of article 21 of the Constitution. In its ultimate analysis the argument of the learned counsel for the petitioner resolves itself to this: that the impugned statute does not provide for an impartial tribunal for a consideration of the representation of the detailed person and to this extent it contravenes article 21 of the
Constitution. As discussed above, in my opinion, such a provision is implicit within article 22 itself and that being so, the application of article 21 to a law made under article 22 is excluded. It was next contended that a law of preventive detention encroaches on the right of freedom of movement within the territory of India guaranteed to a citizen under article 19(1)(d) and that being so, by reason of the provisions of sub-clause (5) of article 19 it was justifiable on the ground of reasonableness. It is true, as already pointed out, that a law of preventive detention is wholly incompatible with the right of freedom of movement of a citizen. Preventive detention in substance is a negation of the freedom of locomotion guaranteed under article 19(1)(d) but it cannot be said that it merely restricts it. Be that as it may, the question for consideration is whether it was intended that article 19 would govern a law made under the provisions of article 22. Article 19(5) is a saving and an enabling provision. It empowers Parliament to make a law imposing reasonable restriction on the right of freedom of movement while article 22(7) is another enabling provision empowering
Parliament to make a law on the subject of preventive detention in certain circumstances. If a law conforms to the conditions laid down in article 22(7), it would be a good law and it could not have been intended that that law validly made should also conform itself to the provisions of article 19(5). One enabling provision cannot be considered as a safeguard against another enabling provision. Article 13(2) has absolutely no application in such a situation.
If the intention of the constitution was that a law made on the subject of preventive detention had to be tested on the touchstone of reasonableness, then it would not have trouble itself by expressly making provision in article 22 about the precise scope of the limitation subject to which such a law could be made and by mentioning the procedure that the law dealing with that subject had to provide. Some of the provisions of article 22 would then have been redundant, for instance, the provision that no detention can last longer than three months without the necessity of such detention being examined by an advisory board. This provision negatives the idea that the deprivation of liberty for a period of three months without the consultation of the advisory board would be justifiable on the ground of reasonableness.
Again article 22 has provided a safeguard that if an advisory board has to be dispensed with, it can only be so dispensed with under a law made by Parliament and that Parliament
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also in enacting such a law has to conform to certain conditions. This provision would have been necessary in article 22 if a law on this subject was justifiable. In sub-clause (b) of clause
(7) of article 22provision has been made enabling Parliament to fix the maximum period for which a person can be detained under a law on the subject of preventive detention. Under this express provision it is open to Parliament to fix any period, say, even a period of five to ten years as the maximum period of detention of a person. Can it be said that in view of this express provision of the Constitution such a law was intended to be justifiable by reason of article 19(5)? Duration of detention is the principal matter in preventive detention laws which possibly could be examined on the touchstone of reasonableness under article 19(5), but this had been expressly excluded by express provisions in article22. In my judgment, therefore, an examination of the provisions of article 22 clearly suggests that the intention was to make it self-contained as regards the law of preventive detention and that the validity of a law on the subject of preventive detention cannot be examined or controlled either by the provisions of article 21 or by the provisions of article 19(5) because article 13(2) has no application to such a situation and article 22 is not subject to the provisions of these two articles. The Constitution in article 22 has gone to the extent of even providing that Parliament may by law lay down the procedure to be followed by an advisory board. On all important points that could arise in connection with the subject of preventive detention provision has been made in article 22 and that being so, the only correct approach in examining the validity of a law on the subject of preventive detention is by considering whether the law made satisfied the requirements of article 22 or in any way abridges or contravenes them and if the answer is in the affirmative, then the law will be valid, but if the answer is in the negative, the law would be void.
In expressing the view that article 22 is in a sense self-contained on the law of preventive detention I should not however be understood as laying down that the framers of the article in any way overlooked the safeguards laid down in article 21. Article 21, in my opinion, lays down substantive law as giving protection to life and liberty inasmuch as it says that they cannot be deprived except according to the procedure established by law; in other words, it means that before a person can be deprived of his life or liberty as a condition precedent there should exist some substantive law conferring authority for doing so and the law should further provide for a mode of procedure for such deprivation. This article gives complete immunity against the exercise of despotic power by the executive. It further gives immunity against invalid laws which contravene the Constitution. It gives also further guarantee that in its true concept there should be some form of proceeding before a person can be condemned either in respect of life or his liberty. It negatives the idea of fantastic, arbitrary and oppressive forms of proceedings. The principles therefore underlying article 21 have been kept in view in drafting article 22. A law properly made under article 22 and which is valid in all respects under that article and lays down substantive as well as adjective law on this subject would fully satisfy the requirements of article 21, and that being so, there is no conflict between these two articles.
The next question that arises for decision is whether there is anything in Act IV of 1950 which offends against the provisions of article 22 of Part III of the Constitution. The learned counsel for the petitioner contended that section 3 of the Act was bad inasmuch as it made
"satisfaction of the Government" as the criterion for detaining a person. It was said that as section 3 laid down no objective rule of conduct for a person and as people were not told as to what behavior was expected of them, the result was that it could not be known what acts a person was expected to avoid and what conduct on his part was prejudicial to the security of the State or the maintenance of public order; in other words, it was argued that section 3 left the determination of the prejudicial act of a person to the arbitrary judgment of the
Government and that even the officer who was to administer this law had been furnished no guide and no standard of conduct in arriving at his own satisfaction whether the conduct was
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prejudicial to the security of the State etc. This criticism of the learned counsel, in my opinion, is not valid. It is no doubt true that a detention order depends on the satisfaction of the
Government but this provision is in accordance with article 22 of the Constitution which to my mind contemplates detention on the satisfaction of the executive authority. By its very nature the subject is such that it implies detention on the judgment of the authority entrusted with the making of the order. The whole intent and purpose of the law of preventive detention would be defeated if satisfaction of the authority concerned was subject to such an objective standard and was also subject to conditions as to legal proof and procedure. In the 7th Schedule jurisdiction to make the law on this subject has been given for reasons connected with defence etc. and the maintenance of public order. These are subjects which concern the life and the very existence of the State. Every citizen is presumed to know what behavior is prejudicial to the life of the State or to its existence as an ordered State. Considering that the State is presumed to have a government that conducts itself in a reasonable way and also presuming that its officers usually will be reasonable men, it cannot be said that in making "satisfaction of the government" as the standard for judging prejudicial acts of persons who are subject to the law of preventive detention section 3 in any way contravenes article 22 of the constitution.
Section 7 of the impugned Act gives full effect to the provisions of article 22 sub-clause
(5) and enacts that representation has to be made to the Central or State Government as the case may be. It was impeached on the ground that no machinery has been provided herein to consider and adjudicate on the merits of the representation. To this extent, as already indicated, the law is defective. In the absence of a machinery for the investigation of the contentions raised in the representation it may be open to the detenu to move this Court under article 32 for a proper relief. It is, however, unnecessary to express any opinion as to the precise remedy open to a detained person in this respect. The absence of a provision of this nature in the statute however would not make the law wholly void. Section 9 of the Act makes reference to the advisory board obligatory in cases falling under sub-clause (iii) of clause (a) or clause (b) of sub-section (1) of section 3 within six weeks of the order. The procedure to be followed by the advisory board is laid down in section 10. Parliament has been authorized to lay down such a procedure to be followed by an advisory board in sub-clause (c) of clause (7). It was contended that the law had not provided a personal hearing to the detenu before an advisory board, nor had it given him a right to lead evidence to establish his innocence. In my opinion, this criticism is not sound and does not in any way invalidate the law. The advisory board has been given the power to call for such information as it requires even from the person detained.
It has also been empowered to examine the material placed before it in the light of the facts and arguments contained in the representation. The opportunity afforded is not as full as a person gets under normal judicial procedure but when the Constitution itself contemplates a special procedure being prescribed for preventive detention cases, then the validity of the law on that subject cannot be impugned on the grounds contended for.
Section 11 of the Act was also impugned on the ground that it offended against the
Constitution inasmuch as it provided for preventive detention for an indefinite period. This section in my opinion has to be read in the background of the provision in sub-clause (3) of section 1 of the Act which says that the Act will cease to have effect on 1st April, 1951.
Besides, the words "for such period as it thinks fit" do not in any way offend against the provisions of article 22 wherein Parliament has been given the power to make a law fixing the maximum period for preventive detention. It has to be noted that Parliament has fixed a period of one year as the maximum period for the duration of detention where detention has to be without reference to an advisory board. In my opinion, there is nothing in section 11 which is outside the constitutional limits of the powers of the supreme legislature.
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It is section 12 of the Act which was assailed by the learned counsel for the petitioner rather vehemently. This section is of a very controversial character. … The section purports to comply with the conditions laid down in clause (7) of article 22. It was, however, argued that in substance and reality it has failed to comply with any of the conditions laid down therein; that it neither mentions the circumstances under which nor the classes of cases in which preventive detention without recourse to the machinery of an advisory board could be permitted. The crucial question for consideration is whether section 12 mentions any circumstances under which or defined the classes of cases in which authority was conferred by clause (7) to dispense with an advisory board. So far as I have been able to gather from opinions of textbooks writers on the subject of classification, the rule seems clear that in making classification of cases there has to be some relationship to the classification to the objects sought to be accomplished. The question for consideration therefore is what object was sought to be accomplished when the Constitution included clause (7) in article 22. It seems clear that the real purpose of clause (7) was to provide for a contingency where compulsory requirement of an advisory board may defeat the object of the law of preventive detention. In my opinion, it was incorporated in the Constitution to meet abnormal and exceptional cases, the cases being of a kind where an advisory board could not be taken into confidence. The authority to make such drastic legislation was entrusted to the supreme legislature but with the further safeguard that it can only enact a law of such a drastic nature provided it prescribed the circumstances under which such power had to be used or in the alternative it prescribed the classes of cases or stated a determinable group of cases in which this could be done. The intention was to lay down some objective standard for the guidance of the detaining authority on the basis of which without consultation of an advisory board detention could be ordered beyond the period of three months. In this connection it has to be remembered that the Constitution must have thought of really some abnormal situation and of some dangerous groups of persons when it found it necessary to dispense with a tribunal like an advisory board which functions in camera and which is not bound even to give a personal hearing to the detenu and whose proceedings are privileged. The law on the subject of preventive detention in order to avoid even such an innocuous institution could only be justified on the basis of peculiar circumstances and peculiar situations which had to be objectively laid down and that was what in my opinion was intended by clause (7). If the peculiarity lies in a situation outside the control or view of a detained person, then it may be said that the description of such a situation would amount to a prescription of the circumstances justifying the detention for a longer period than three months by a law without the intervention of an advisory board. If however, the abnormality relates to the conduct and character of the activities of a certain determinable group of persons, then that would amount to a class of cases which was contemplated to be dealt with under clause (7). In such cases alone arbitrary detention could be held justifiable by law beyond a period of three months.
… Dealing first with the question whether section 12 mentions any circumstances, so far as I have been able to see, it does not prescribe any circumstances unless it can be said that the prejudicial acts for reasons connected with the security of State, maintenance of public order, etc. are both the circumstances as well as the classes of cases. In my opinion, this line of approach cannot be held to be correct in the construction of clause (7) of article 22. I am inclined to agree with the learned Attorney-General that the phrase "circumstances under which" means some situation extraneous to the detenu 's own acts, in other words, it means some happening in the country with which the detenu is not concerned, such as a situation of tense communal feelings, an apprehended internal rebellion or disorder, the crisis of an impending war or apprehended war, etc. In such a situation the machinery of an advisory board could be dispensed with because it may become cumbersome or it may hamper the
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exercise of necessary powers. In this view of the matter I have no hesitation in holding that no circumstances have been stated in section 12, though the section ostensibly says so. If it was permissible to conjecture, it seems that the draftsman of section 12 repeated the words of clause (7) of article 22 without an application of his mind to the meaning of those words and as the legislation was passed in haste to meet an emergent situation, it suffers from the defects which all hasty legislation suffer from.
I now proceed to consider whether section 12 has classified the cases in which detention for a longer period beyond three months could be suffered by a citizen without the benefit of the machinery of an advisory board. The section has placed five subjects out of the legislative list within its ambit and these are described as the classes of cases. The question is whether it can be said that a mere selection of all or any of the categories of the subjects for reasons connected with which a law of preventive detention could be made under the 7th Schedule amounts to a classification of cases as contemplated in clause (7) of article 22. Entry 9 of the
Union List and Entry 3 of the Concurrent List of the 7th Schedule lay down the ambit of legislative power of Parliament on the subject of preventive detention on the following six subjects: (1) Defence of India, (2) Foreign Affairs, (3) Security of India (4) Security of the
State (5) Maintenance of public order, (6) Maintenance of supplies and services essential to the community.
Clause (4) of article 22 enjoins in respect of all the six subjects that no law can provide for preventive detention for a longer period than three months without reference to an advisory board. Clause (7) gives permission to make a law for dispensing with an advisory board by a prescription of the circumstances and by a prescription of the classes of cases in which such a dispensation can be made. The legislative authority under clauses (4) and (7) in my opinion, extends to all these six subjects. The normal procedure to be followed when detention is intended to be beyond a period of three months in respect of the six subjects is provided in sub-clause (4). The extraordinary and unusual procedure was intended to be adopted in certain abnormal cases for which provision could be made by a parliamentary statute under clause
(7). It seems to me, however, that section 12 of Act IV of 1950 has reversed this process quite contrary to the intention of the Constitution. By this section Act IV of 1950 has dispensed with the advisory board in five out of six subjects above mentioned and the compulsory procedure of an advisory board laid down in clause (4) of article 22 has been relegated to one out of these six subjects. This has been achieved by giving a construction to the phrase
"circumstances under which and the classes of cases in which" so as to make it co-extensive and coterminous with the "subjects of legislation.
In my opinion, this construction of clause (7) is in contravention of the clear provisions of article 22, and makes clause (4) of article 22 to all intents and purposes nugatory. Such a construction of the clause would amount to the Constitution saying in one breath that a law of preventive detention cannot provide for detention for a longer period than three months without reference to an advisory board and at the same breath and moment saying that
Parliament, if it so chooses, can do so in respect of all or any of the subjects mentioned in the legislative field. If that was so, it would have been wholly unnecessary to provide such a safeguard in the Constitution on a matter which very seriously affects personal liberty. On the other hand, it would be a reasonable construction of the clause to hold that the Constitution authorized Parliament that in serious classes of cases or in cases of those groups of persons who are incorrigible or whose activities are secret the procedure of an advisory board may well be dispensed with, that bearing necessary in the interests of the State. On the other construction as adopted by the framers of section 12, the Constitution need not have troubled itself by conferring an authority on Parliament for making such a law.
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Moreover, if that was the intention, it would have in very clear words indicated this by drafting article 22 clause (4) "Unless otherwise provided by Parliament no law providing for preventive detention shall authorize detention for a longer period than three months unless an Advisory Board has investigated the sufficiency of the cause of such detention." The words "Unless otherwise provided for by Parliament" would have been in accord with the construction which the framers of section 12 have placed on article 22clause (7).
I am further of the opinion that the construction placed by the learned Attorney-General on clause (7) of article 22 and adopted by the framers of Act IV of 1950 creates a very anomalous situation. The matter may be examined from the point of view of the law of preventive detention for reasons connected with supplies and services essential to the life of the community. This subject has been put under section 9 in Act IV of 1950. Suppose a tense situation arises and there is a danger of the railway system being sabotaged and it becomes necessary to pass detention orders against certain persons. According to Act IV of 1950 in such a serious state of affairs the procedure of an advisory board is compulsory, while on the other hand, if there is an apprehension of disturbance of public order by reason of a wrong decision of an umpire at a cricket match or on account of conduct of persons celebrating the festival of Holi, then detention beyond three months can be ordered without reference to an advisory board. Could such an anomalous result be in the contemplation of the framers of the
Constitution? The construction that I am inclined to place on the section is in accord with the scheme of the law punitive detention. Hurt is an offence under the Indian Penal Code and this is one of the subjects of punitive detention. The cases on the subject have been classified in different groups, namely, simple hurt, grievous hurt, grievous hurt with dangerous weapons, grievous hurt to extort a confession, grievous hurt to restrain a public officer from doing his duty, grievous hurt by a rash act, and grievous hurt on provocation. Even simple hurt has been classified in different categories. The subject of assault has also been similarly dealt with.
Sections 352 to 356 deal with cases classified according to the gravity of the offence, i.e., cases of simple assault, assault on a public servant, assault on women, assault in attempt to commit theft, assault for wrongfully confining a person and assault on grave provocation have been separately grouped. Another illustration is furnished by the Criminal Procedure Code in the preventive sections 107 to 110. These deal with different groups of persons; vagrants are in one class, habitual offenders in another, bad characters in the third and disturbers of peace in the fourth. It seems that it is on lines similar to these that it must have been contemplated by the Constitution that classes of cases would be prescribed by Parliament, but this has not been done.
The Constitution has recognised varying scales of duration of detention with the idea that this will vary with the nature of the apprehended act, detention for a period of three months in ordinary cases, detention for a longer period than three months with the intervention of an advisory board in more serious cases, while detention for a longer period than three months without the intercession of an advisory board for a still more dangerous class and for acts committed in grave situations. It can hardly be said that all cases of preventive detention for reasons connected with the maintenance of public order stand on the same footing in the degree of gravity and deserve the same duration of detention and all cases connected with the maintenance of supplies and services essential to the life of the community stand in the matter of their gravity on such a footing as to require a lenient treatment. It is true that in a sense all persons who act prejudicially to the defence of India may be comprehensively said to form one group and similarly persons who act prejudicially to the maintenance of supplies and services essential to the life of the community may form another class but the question is, whether it was in this comprehensive sense that classification was intended by the Constitution
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in clause (7) or was it intended in a narrower and restricted sense? It has to be remembered that the law under clause (7) was intended to provide detention for a longer period and such a law very seriously abridges personal liberty and in this situation giving a narrower and restricted meaning to this expression will be in accordance with well-established canons of construction of statutes.
The wide construction of clause (7) of article 22 brings within the ambit of the clause all the subjects in the legislative list and very seriously abridges the personal liberty of a citizen.
This could never have been the intention of the framers of the Constitution. The narrow and restricted interpretation is in accord with the scheme of the article and it also operates on the whole field of the legislative list and within that field it operates by demarcating certain portions out of each subject which requires sever treatment. If I may say so in conclusion, section 12 treats the lamb and the leopard in the same class because they happen to be quadrupeds. Such a classification could not have been in the thoughts of the Constitutionmakers when clause (7) was introduced in article 22. For the reasons given above, I am of the opinion that section 12 of Act IV of 1950 does not fulfil the requirements of clause (7) of article 22 of the Constitution and is not a law which falls within the ambit of that clause. That being so, this section of Act IV of 1950 is void and by reason of it the detention of the petitioner cannot be justified. There is no other provision in this law under which he can be detained for any period whatsoever. …
Section 14 of Act IV of 1950 has been impugned on the ground that it contravenes and abridges the provisions of articles 22(5) and 32 of the Constitution. … This section is in the nature of an iron curtain around the acts of the authority making the order of preventive detention. The Constitution has guaranteed to the detained person the right to be told the grounds of detention. He has been given a right to make a representation [vide article22(5)], yet section 14 prohibits the disclosure of the grounds furnished to him or the contents of the representation made by him in a Court of law and makes a breach of this injunction punishable with imprisonment.
… Now it is quite clear that if an authority passes an order of preventive detection for reasons not connected with any of the six subjects mentioned in the 7th Schedule, this Court can always declare the detention illegal and release the detenu, but it is not possible for this
Court to function if there is a prohibition against disclosing the grounds which have been served upon him. It is only by an examination of the grounds that it is possible to say whether the grounds falls within the ambit of the legislative power contained in the Constitution or are outside its scope. Again something may be served on the detenu as being grounds which are not grounds at all. In this constituency it is the right of the detained person under article 32 to move this Court for enforcing the right under article 22(5) that he be given the real grounds on which the detention order is based. This Court would be disabled from exercising its functions under article 32 and adjudicating on the point that the grounds given satisfy the requirements of the sub-clause if it is not open to it to see the grounds that have been furnished.
It is a guaranteed right of the person detained to have the very grounds which are the basis of the order of detention. This Court would be entitled to examine the matter and to see whether the grounds furnished are the grounds on the basis of which he has been detained or they contain some other vague or irrelevant material. The whole purpose of furnishing a detained person with the grounds is to enable him to make a representation refuting these grounds and of proving his innocence. In order that this Court may be able to safeguard this fundamental right and to grant him relief it is absolutely essential that the detenu is not prohibited under penalty of punishment to disclose the grounds to the Court and no injunction by law can be issued to this Court disabling it from having a look at the grounds. Section 14 creates a substantive offence if the grounds are disclosed and it also lays a duty on the Court not to
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permit the disclosure of such grounds. It virtually amounts to a suspension of a guaranteed right provided by the Constitution inasmuch as it indirectly by a stringent provision makes administration of the law by this Court impossible and at the same time it deprives a detained person from obtaining justice from this Court. In my opinion, therefore, this section when it prohibits the disclosure of the grounds contravenes or abridges the rights given by Part III to a citizen and is ultra vires the powers of Parliament to that extent.
The result of the above discussion is that, in my opinion, sections 12 and 14 of Act IV of
1950 as above indicated are void and the decision of the detenu 's case has to be made by keeping out of sight these two provisions in the Act. If sections 12 and 14 are deleted from the impugned legislation, then the result is that the detention of the petitioner is not legal. The statute has not provided for detention for a period of three months or less in such cases as it could have done under article 22(4) of the Constitution and that being so, the petitioner cannot be justifiably detained even for a period of three months. I would accordingly order his release.
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JUSTICE MUKHERJEA (FOR HIMSELF)
… It is true that by reason of preventive detention, a man may be prevented from exercising the right of free movement within the territory of India as contemplated by article 19(1)(d) of the Constitution, but that is merely incidental to or consequential upon loss of liberty resulting from the order of detention. Not merely the right under clause (1)(d), but many of the other rights which are enumerated under the other sub-clauses of article 19(1)may be lost or suspended so long as preventive detention continues. Thus a detenu so long as he is under detention may not be able to practise any profession, or carry on any trade or business which he might like to do; but this would not make the law providing for preventive detention a legislation taking away or abridging the rights under article 19(1)(g) of the Constitution and it would be absurd to suggest that in such cases the validity of the legislation should be tested in accordance with the requirement of clauses (6) of article 19 and that the only restrictions that could be placed upon the person 's free exercise of trade and profession are those specified in that clause.
Mr. Nambiar concedes that in such cases we must look to the substance of the particular legislation and the mere fact that it incidentally trenches upon some other right to which it does not directly relate is not material. He argues, however, that the essence or substance of a legislation which provides for preventive detention is to take away or curtail the right of free movements and in fact, "personal liberty" according to him, connotes nothing else but unrestricted right of locomotion. The learned counsel refers in this connection to certain passages in Blackstone 's Commentaries on the Laws of England, where the author discusses what he calls the three absolute rights inherent in every Englishman, namely, rights of personal security, personal liberty and property. "Personal security", according to Blackstone, consists in a person 's legal and uninterrupted enjoyment of his life, his limb, his body, his health and his reputation; whereas "personal liberty" consists in the power of locomotion, of changing of situation or moving one 's person to whatsoever place one 's own inclination may direct without imprisonment or restraint unless by due course of law [Vide Chase 's Blackstone, 4th Edn. pp.
68, 73].
It will be seen that Blackstone uses the expression "Personal liberty" in a somewhat narrow and restricted sense. A much wider and larger connotation is given to it by later writers on constitutional documents, particularly in America. In ordinary language "personal liberty" means liberty relating to or concerning the person or body of the individual; and "personal liberty" in this sense is the antithesis of physical restraint or coercion. According to Dicey,
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who is an acknowledge authority on the subject "personal liberty" means a personal right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification [Vide Dicey on Constitutional Law, 9th Edn. pp. 207, 208]. It is, in my opinion, this negative right of not being subjected to any form of physical restraint or coercion that constitutes the essence of personal liberty and not mere freedom to move to any part of the Indian territory.
In this connection, it may not be irrelevant to point out that it was in accordance with the recommendation of the Drafting Committee that the word "personal" was inserted before
"liberty" in article 15 of the Constitution which now stands as article 21. In the report of the
Drafting Committee it is stated that the word "liberty" should be qualified by the insertion of the word "personal" before it; otherwise, it might be construed very widely so as to include even the freedoms already dealt with in article 13. Article 13, it should be noted, is the present article 19. If the views of the Drafting Committee were accepted by the Constituent Assembly, the intention obviously was to exclude the contents of article 19 from the concept of "personal liberty" as used in article 21. To what extent the meaning of words used in the Constitution could be discovered from reports of Drafting Committee or debates on the floor of the House is a matter not quite free from doubt and I may have to take up this matter later on when discussing the meaning of the material clause in article 21 of the Constitution. It is enough to say at this stage that if the report of the Drafting Committee is an appropriate material upon which the interpretation of the words of the Constitution could be based, it certainly goes against the contention of the applicant and it shows that the words used in article 19(1)(d) of the Constitution do not mean the same thing as the expression "personal liberty" in article 21 does. It is well known that the word "liberty" standing by itself has been given a very wide meaning by the Supreme Court of the United States of America. It includes not only personal freedom from physical restraint but the right to the free use of one 's own property and to enter into free contractual relations. In the Indian Constitution, on the other hand, the expression "personal liberty" has been deliberately used to restrict it to freedom from physical restraint of person by incarceration or otherwise. Apart from the report of the Drafting
Committee, that is the plain grammatical meaning of the expression as I have already explained. It may not, I think, be quite accurate to state that the operation of article 19 of the
Constitution is limited to free citizens only and that the rights have been described in the article on the presupposition that the citizens are at liberty. The deprivation of personal liberty may entail as a consequence the loss or abridgement of many of the rights described in article 19, but that is because the nature of these rights is such that free exercise of them is not possible in the absence of personal liberty. On the other hand the right to hold and dispose of property which is in sub-clause (f) of article 19(1) and which is not dependent on full possession of personal liberty by the owner may not be affected if the owner is imprisoned or detained.
Anyway, the points is not of much importance for purposes of the present discussion. The result is that, in my opinion, the first contention raised by Mr. Nambiar cannot succeed and it must be held that we are not entitled to examine the reasonableness or otherwise of the
Preventive Detention Act and see whether it is within the permissible bounds specified in clause (5) of article 19.
………
Thus it will be seen that the "due process" clause in the American Constitution came to be used as a potent instrument in the hands of the judiciary for exercising control over social legislation. The judicial pronouncements are not guided by any uniform principle, and the economic and social ideas of the Judges, who form the majority in the Supreme Court for the
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time being, constitute, so to say, the yard-stick for measuring the reasonableness or otherwise of any enactment passed during that period. No writer of American Constitutional Law has been able until now to evolve anything like a definite and consistent set of principles out of the large mass of cases, where the doctrine of "due process of law" has been invoked or applied. It is against this background that we must consider how the constitution-makers in India dealt with and gave final shape to the provisions, on an analogous subject in the Indian
Constitution. In the Draft Constitution, article 15 (which now stands as article 21) was apparently framed on the basis of the 5th and 14th Amendments in the American Constitution.
… The Drafting Committee in their report recommended a change in the language of this article. The first suggestion was that the word "personal" shall be inserted before the word
"liberty" and the second was that the expression "in accordance with procedure established by law" shall be substituted for "due process of law", the reason given being that the former expression was more specific.
… The learned Attorney-General has placed before us the debates in the Constituent
Assembly centering round the adoption of this recommendation of the Drafting Committee and he has referred us to the speeches of several members of the Assembly who played an important part in the shaping of the Constitution. As an aid to discover the meaning of the words in a Constitution, these debates are do doubtful value. "Resort can be had to them", says
Willoughby, "with great caution and only when latent ambiguities are to be solved. The proceedings may be of some value when they clearly point out the purpose of the provision.
But when the question is of abstract meaning, it will be difficult to derive from this source much material assistance in interpretation" [Vide Willoughby on the Constitution of the United
States, p. 64].
The learned Attorney-General concedes that these debates are not admissible to explain the meaning of the words used and he wanted to use them only for the purpose of showing that the Constituent Assembly when they finally adopted the recommendation of the Drafting
Committee, were fully aware of the implications of the differences between the old form of expression and the new. In my opinion, in interpreting the Constitution, it will be better if such extrinsic evidence is left out of account. In matters like this, different members act upon different impulses and from different motives and it is quite possible that some members accepted certain words in a particular sense, while others took them in a different light.
The report of the Drafting Committee, however, has been relied upon by both parties and there are decided authorities in which a higher value has been attached to such reports than the debates on the floor of the House. In Caminetti v. United States, 242 U.S. 470, it is said that reports to Congress accompanying the introduction of proposed law may aid the Courts in reaching the true meaning of the legislation in case of doubtful interpretation. The report is extremely short. It simply says that the reason for the suggested change is to make the thing more specific.
I have no doubt in my mind that if the "due process" clause which appeared in the original draft was finally retained by the Constituent Assembly, it could be safely presumed that the framers of the Indian Constitution wanted that expression to bear the same sense as it does in
America. But when that form was abandoned and another was deliberately substituted in its place, it is not possible to say that in spite of the difference in the language and expression, they should mean the same thing and convey the same idea. Mr. Nambiar 's contention is that in view of the somewhat uncertain and fluidic state of law as prevails in America on the subject, the Drafting Committee recommended an alteration for the purpose of making the language more specific and he would have us hold that it was made specific in this way,
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namely, that instead of being extended over the whole sphere of law, substantive as well as adjective, it was limited to procedural law merely. That is the reason, he says, why instead of the word "process" the expression "procedure" was adopted, but the world "law" means the same thing as it does in the "due process" clause in America and refers not to any State-made law but to the fundamental principles which are inherent in the legal system and are based upon the immutable doctrines of natural justice.
Attractive though this argument might at first sight appear, I do not think that it would be possible to accept it as sound. In the first plea, it is quite clear that the framers of the Indian
Constitution did not desire to introduce into our system the elements of uncertainty, vagueness and changeability that have grown round the "due process" doctrine in America. They wanted to make the provision clear, definite and precise and deliberately chose the words "procedure established by law", as in their opinion no doubts would ordinarily arise about the meaning of this expression. The indefiniteness in the application of the "due process" doctrine in America has nothing to do with the distinction between substantive and procedural law. The uncertainty and elasticity are in the doctrine itself which is a sort of hidden mine, the contents of which nobody knows and is merely revealed from time to time to the judicial conscience of the
Judges. This theory, the Indian Constitution deliberately discarded and that is why they substituted a different form in its place which, according to them, was more specific.
In the second place, it appears to me that when the same words are not used, it will be against the ordinary canons of construction to interpret a provision in our Constitution in accordance with the interpretation put upon a somewhat analogous provision in the
Constitution of another country, where not only the language is different, but the entire political conditions and constitutional set-up are dissimilar. In the Supreme Court of America stress has been laid uniformly upon the word "due" which occurs before and qualifies the expression "process of law". "Due" means "what is just and proper" according to the circumstances of a particular case. It is this word which introduces the variable element in the application of the doctrine; for what is reasonable in one set of circumstances may not be so in another and a different set. In the Indian Constitution the word "due" has been deliberately omitted and this shows clearly that the Constitution-makers of India had no intention of introducing the American doctrine. The word "established" ordinarily means "fixed or laid down" and if "law" means, as Mr. Nambiar contends, not any particular piece of law but the indefinite and indefinable principles of natural justice which underlie positive systems of law, it would not at all be appropriate to use the expression "established", for natural law or natural justice cannot establish anything like a definite procedure.
It does not appear that in any part of the Constitution the word "law" has been used in the sense of "general law" connoting what has been described as the principles of natural justice outside the realm of positive law. On the other hand, the provision of article 31 of the
Constitution, which appears in the chapter on Fundamental Rights, makes it clear that the word "law" is equivalent to State-made law and to deprive a person of his property, the authority or sanction of such law is necessary. As has been said already, the provision of article 21 of the Indian Constitution reproduces, save in one particular, the language of article
31 of the Japanese Constitution and it is quite clear from the scheme and provisions of the
Japanese Constitution that in speaking of law it refers to law passed or recognised as such by the State. In the Irish Constitution also, there is provision in almost similar language which conveys the same ides. Article 40(4)(1) provides that "no citizen shall be deprived of his personal liberty save in accordance with law," and by law is certainly mean the law of the
State.
Possibly the strongest argument in support of Mr. Nambiar 's contention is that if law is taken to mean State-made law, then article 21 would not be a restriction on legislation at all.
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No question of passing any law abridging the right conferred by this article could possibly arise and article 13(2) of the Constitution would have no operation so far as this provision is concerned. To quote the words of an American Judge it would sound very much like the
Constitution speaking to the legislature that the later could not infringe the right created by these articles unless it chose to do so [Vide per Bronson J. in Taylor v. Porte, 4 Hill 140.]
Apparently this is a plausible argument but it must be admitted that we are not concerned with the policy of the Constitution. The fundamental rights not merely impose limitations upon the legislature, but they serve as checks on the exercise of executive powers as well, and in the matter of depriving a man of his personal liberty, checks on the high-handedness of the executive in the shape of preventing them from taking any step, which is not in accordance with law, could certainly rank as fundamental rights. In the Constitutions of various other countries, the provisions relating to protection of personal liberty are couched very much in the same language as in article 21. It is all a question of policy as to whether the legislature or the judiciary would have the final say in such matters and the Constitution-makers of India deliberately decided to place these powers in the hands of the legislate. Article 31 of the
Japanese Constitution, upon which article 21 of our Constitution is modelled, also proceeds upon the same principle. The Japanese Constitution, it is to be noted, guarantees at the same time other rights in regard to arrest, detention and access to Court which might serve as checks on legislative authority as well. Thus article 32 provides:
"No person shall be denied the right of access to the Courts."
Article 34 lays down:
"No person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel, nor shall he be detained without adequate cause; and upon demand of any person, such cause must be immediately shown in open Court in his presence and in the presence of his counsel."
It was probably on the analogy of article 34 of the Japanese Constitution that the first two clauses of article 22 of the Indian Constitution were framed. Article 22 was not in the original
Draft Constitution at all; and after the "due process" clause was discarded by the Constituent
Assembly and the present form was substituted in its place in article 21, article 22 was introduced with a view to provide for some sort of check in matters of arrest and detention and the protection it affords places limitations upon the authority of the legislature as well.
These protections indeed have been denied to cases of preventive detention but that again is a question of policy which does not concern us as a Court. My conclusion, therefore, is that in article 21 the word "law" has been used in the sense of State-made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice. The article presupposes that the law is a valid and binding law under the provisions of the Constitution having regard to the competency of the legislature and the subject it relates to and does not infringe any of the fundamental rights which the Constitution provides for.
In the view that I have taken, the question raised by Mr. Nambiar that the Preventive
Detention Act is invalid, by reason of the fact that the procedure it lays down is not in conformity with the rules of natural justice, does not fall for consideration. It is enough, in my opinion, if the law is a valid law which the legislature is competent to pass and which does not transgress any of the fundamental rights declared in Part III of the Constitution. It is also unnecessary to enter into a discussion on the question raised by the learned Attorney-General as to whether article 22 by itself is a self-contained Code with regard to the law of Preventive
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On the third point raised by Mr. Nambiar, the only question, therefore, which requires consideration is whether section 12 of the Preventive Detention Act is ultra vires of the
Constitution by reason of its being not in conformity with the provision of article 22(7)(a).
Article 22(7)(a) of the Constitution empowers the Parliament to prescribe the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an advisory board in accordance with the provisions of sub-clause (a) of clause
(4). Section 12 of the Preventive Detention Act which purports to be an enactment in pursuance of article 22(7)(a) of the Constitution provides as follows :
"(1) Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an advisory board for a period longer than three months, but not exceeding one year from the date of his detention, namely, where such person has been detained with a view to preventing him from acting in any manner prejudicial to
(a) the defence of India, relations of India with foreign powers or the security of
India; or
(b) the security of a State or the maintenance of public order."
It will be noticed that there are altogether six heads or subjects in the two Items in the legislative lists, namely, item No. 9 of List I and Item No. 3 of List III which deal with preventive detention. Item No. 9 of List I mentions reasons connected with defence, foreign affairs and security of India, while Item No. 3 of List III speaks of reasons connected with security of a State, the maintenance of public order and the maintenance of supplies and services essential to the community. With the exception of the last head, all the remaining five have been listed in section 12 of the Preventive Detention Act and they have been mentioned both as circumstances and classes of cases in which detention for more than three months would be permissible without the opinion of any advisory board. Mr. Nambiar 's argument is that the mentioning of five out of the six legislative heads in section 12 does not amount to prescribing the circumstances under which, or the classes of cases in which, a person could be detained for more than three months as contemplated by article 22(7)(a). It is also contended that in view of the fact that the two items "circumstances" and "classes" are separated by the conjunction "and," what the Constitution really contemplated was that both these items should be specified and a statement or specification of any one of them would not be a proper compliance with the provisions of the clause. It is further pointed out that the mentioning of the same matters as "circumstances" or "classes" is not warranted by article 22(7) of the
Constitution and is altogether illogical and unsound.
I must say that section 12 has been drafted in a rather clumsy manner and certainly it could have been framed in a better and more proper way. Under article 22(7)(a), the Parliament may specify the circumstances under which, and the classes of cases in which, the necessity of placing the cases of detention for examination by the advisory board could be dispensed with.
By "classes of cases" we mean certain determinable groups, the individuals comprised in each group being related to one another in a particular way which constitutes the determining factor of that group. "Circumstances" on the other hand connote situations or conditions which are external to the persons concerned. Preventive detention can be provided for by law for reasons connected with six different matters specified in the relevant items in the legislative lists, and whatever the reasons might be, there is a provision contained in article 22(4)(a) which lays down that detention for more than three months could not be permitted except with the sanction of the advisory board. An alternative however has been provided for by clause (b) and Parliament has been given the option to take away the protection given by clause (a) and specify the circumstances and the cases when this rule will not apply. I am extremely doubtful
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whether the classification of cases made by Parliament in section 12 of the Act really fulfils the object which the Constitution had in view. The basis of classification has been the apprehended acts of the persons detained described with reference to the general heads mentioned in the items in the legislative lists as said above. Five out of the six heads have been taken out and labelled as classes of cases to which the protection of clause (4)(a) of the article would not be available. It is against common sense that all forms of activities connected with these five items are equally dangerous and merit the same drastic treatment. The descriptions are very general and there may be acts of various degrees of intensity and danger under each one of these heads.
Although I do not think that section 12 has been framed with due regard to the object which the Constitution had in view, I am unable to say that the section is invalid as being ultra vires the Constitution. The Constitution has given unfettered powers to Parliament in the matter of making the classifications and it is open to the Parliament to adopt any method or principle as it likes. If it chose the principle implied in the enumeration of subjects under the relevant legislative heads, it cannot be said that Parliament has exceeded its powers.
I am also unable to hold that both "circumstances" as well as "classes" have to be prescribed in order to comply with the requirement of sub-clause (a) of article 22(7). The subclause (a) of the article lays down a purely enabling provision and Parliament, if it so chooses, may pass any legislation in terms of the same. Where an optional power is conferred on certain authority to perform two separate acts, ordinarily it would not be obligatory upon it to perform both; it may do either if it so likes. Here the classes have been specified and the classes apparently are composed of persons who are detained for the purpose of preventing them from committing certain apprehended acts. I am extremely doubtful whether the classes themselves could be described as "circumstances" as they purport to have been done in the section.
"Circumstances" would ordinarily refer to conditions like war, rebellion, communal disturbances and things like that, under which extra precaution might be necessary and the detention of suspected persons beyond the period of three months without the sanction of the advisory board might be justified. It is said that the likehood of these persons committing the particular acts which are specified might constitute "circumstances." In my opinion, that is not a plain and sensible interpretation. But whatever that may be, as I am of opinion that it is not obligatory on Parliament to prescribe both the circumstances and the classes of cases, I am unable to hold that section 12 is ultra vires the Constitution because the circumstances are not mentioned. As I have said at the beginning, the draft is rather clumsy and I do not know why
Parliament used the word "or" when in the Constitution itself the word "and" has been used.
In the fourth and last point raised by Mr. Nambiar the principal question for consideration is the validity of section 14 of the Preventive Detention Act. Sub-section (1) of section 14 prohibits any Court from allowing any statement to be made or any evidence to be given before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or any representation made by him against such order. It further provides that no Court shall be entitled to require any public officer to produce before it or to disclose the substance of any such communication or representation made or the proceedings of an advisory board or that part of the report of an advisory board which is confidential. Sub-section (2) further provides that:
"It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the
State Government, as the case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in subsection (1):
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Provided that nothing in this sub-section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order."
The provisions of this section are obviously of a most drastic character. It imposes a ban on the Court and prevents it from allowing any statement to be made or any evidence produced before it of the substance of any communication made to the detenu apprising him of the grounds upon which the detention order was made. The Court is also incompetent to look into the proceedings before the advisory board or the report of the latter which is confidential.
Further the disclosure of such materials has been made a criminal offence punishable with imprisonment for a term which may extent to one year. Mr. Nambiar 's contention is that these restrictions render utterly nugatory the provisions of article 32 of the Constitution which guarantees to every person the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution. It is not disputed that the petitioner has the right of moving this Court for a writ of habeas corpus, and unless the Court is in a position to look into and examine the grounds upon which the detention order has been made, it is impossible for it to come to any decision on the point and pass a proper judgment.
Though the right to move this Court is not formally taken away, the entire proceedings are rendered ineffective and altogether illusory. On behalf of the respondent, it is pointed out that article 32 guarantees only the right to constitutional remedy for enforcement of the rights which are declared by the Constitution. If there are no rights under the Constitution, guaranteed to a person who is detained under any law of preventive detention, no question of enforcing such rights by an approach to this Court at all arises. I do not think that this argument proceeds on a sound basis; and in my opinion, section 14 does take away and materially curtails some of the fundamental rights which are guaranteed by the Constitution itself.
Article 22, clause (5), of the Constitution lays down as a fundamental right that when a person is detained for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order. Under clause
(6), the authority need not disclose such facts as it considers to be against public interest to disclose. But so far as the grounds are concerned, the disclosure is not prohibited under any circumstance. It is also incumbent upon the detaining authority to afford a detenue the earlier opportunity of making a representation against the detention order. It has been held in several cases, and in my opinion quite rightly, that if the grounds supplied to a detained person are of such a vague and indefinite character that no proper and adequate representation could be made in reply to the same, that itself would be an infraction of the right which has been give to the detenu under law.
In my opinion, it would not be possible for the Court to decide whether the provisions of article 22, clause (5), have been duly complied with and the fundamental right guaranteed by it has been made available to the detenu unless the grounds communicated to him under the provisions of this article are actually produced before the Court. Apart from this, it is also open to the person detained to contend that the detention order has been a mala fide exercise of power by the detaining authority and that the grounds upon which it is based, are not proper or relevant grounds which would justify detention under the provisions of the law itself. These rights of the detenu would for all practical purposes be rendered unenforceable if the Court is precluded from looking into the grounds which have been supplied to him under section 7 of the Preventive Detention Act. In my opinion, section 14 of the Preventive Detention Act does materially affect the fundamental rights declared under Part III of the Constitution and for this reason it must be held to be illegal and ultra vires. It is not disputed, however, that this section can be severed from the rest of the Act without affecting the other provisions of the Act in any way. The whole Act cannot, therefore, be held to be ultra vires.
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Mr. Nambiar has further argued that section 3 of the Act also contravenes the provisions of article 32 of the Constitution, for it makes satisfaction of the particular authorities final in matters of preventive detention and thereby prevents this Court from satisfying itself as to the propriety of the detention order. This contention cannot succeed as no infraction of any fundamental right is involved in it. As has been pointed out already, this Court cannot interfere unless it is proved that the power has been exercised by the authorities in a mala fide manner or that the grounds are not proper or relevant grounds which justify detention. The provisions are undoubtedly harsh, but as they do not take away the rights under articles 21 and 22of the
Constitution, they cannot be held to be illegal or ultra vires.
The result, therefore, is that, in my opinion, the Preventive Detention Act must be declared to be intra vires the Constitution with the exception of section 14 which is held to be illegal and ultra vires. The present petition, however, must stand dismissed, though it may be open to the petitioner to make a fresh application if he so chooses and if the grounds that have been supplied to him under section 7 of the Act do furnish adequate reasons for making such application. JUSTICE DAS (FOR HIMSELF)
… I now pass on to article 22. … Clauses (1) and (2) of article 22 lay down the procedure that has to be followed when a man is arrested. They ensure four things: (a) right to be informed regarding grounds of arrest, (b) right to consult, and to be defended by, a legal practitioner of his choice, (c) right to be produced before a magistrate within 24 hours and (d) freedom from detention beyond the said period except by order of the magistrate. These, four procedural requirements are very much similar to the requirements of the procedural due process of law as enumerated by Willis. Some of these salutary protections are also to be found in our Code of Criminal Procedure. If the procedure has already been prescribed by article 21 incorporating the principles of natural justice, or the principles underlying our Code of Criminal Procedure what was the necessity of repeating them in clauses (1) and (2) of article 22? Why this unnecessary overlapping? The truth is that article 21 does not prescribe any particular procedure but in defining the protection to life and personal liberty merely envisages or indicates the necessity for a procedure and article 22 lays down the minimum rules of procedure that even Parliament cannot abrogate or overlook. This is so far as punitive detention is concerned. But clause (3) of article 22 expressly provides that none of the procedure laid down in clauses (1) and (2) shall apply to an alien enemy or to a person who is arrested or detained under any law providing for preventive detention. It is thus expressly made clear that a detenu need not be produced before the magistrate and he is not to have the assistance of any lawyer for consultation or for defending him. Such being the express provision of our Constitution nobody can question its wisdom. So I pass on.
Clauses (4), (5), (6) and (7) of article 22 in terms relate to preventive detention.
Article 246 authorises the appropriate legislature to make a law for preventive detention in terms of Entry 9 in List I and/or Entry 3 in List III of the Seventh Schedule. On this legislative power are imposed certain limitations by article 22(4) to (7). According to this the legislature, whether it be Parliament or a State Legislature, is reminded that no law made by it for preventive detention shall authorise the detention of a person for a longer period than three months except in two cases mentioned in sub-clauses (a) and (b). The proviso to sub-clause
(a) and sub-clause (b) refer to a law made only by Parliament under clause (7). Under clause
(7) it is Parliament alone and not any State Legislature that may prescribe what are specified in the three sub-clauses of that clause. Although a State Legislature may make a law for preventive detention in terms of Entry 3 in List III of the Seventh Schedule no such law may
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authorise detention for more than three months unless the provisions of sub-clauses (a) and
(b) of clause (4) sanction such detention. Even a law made by Parliament cannot authorise detention for more than three months unless it is a law made under the provisions of clause
(7). In short, clause (4) of article 22 provides a limitation on the legislative power as to the period of preventive detention. Apart from imposing a limitation on the legislative power, clause (4) also prescribes a procedure of detention for a period longer than three months by providing for an advisory board. Then comes clause (5). It lays down the procedure that has to be followed when a person is detained under any law providing for preventive detention, namely, (a) the grounds of the order of detention must be communicated to the detenu as soon as may be, and (b) the detenu must be afforded the earlier opportunity of making a representation against the order. The first requirement takes the place of notice and the second that of a defence or hearing. These are the only compulsory procedural requirements laid down by our Constitution. There is nothing to prevent the Legislature from providing an elaborate procedure regulating preventive detention but it is not obliged to do so. If some procedure is provided as envisaged by article 21 and the compulsory requirements of article 22 are obeyed and carried out nobody can, under our Constitution as I read it, complain of the law providing for preventive detention.
Learned counsel for the petitioner concedes that the four requirements of procedural due process summarised by Willis will have to be modified in their application to preventive detention. Thus he does not insist on a prior notice before arrest, for he recognizes that such a requirement may frustrate the very object of preventive detention by giving an opportunity to the person in question to go underground. The provision in clause (5) for supplying grounds is a good substitute for notice. He also does not insist that the Tribunal to judge the reasonableness of the detention should be a judicial tribunal. He will be satisfied if the tribunal or advisory board, as it is called in article 22 of the Constitution, is an impartial body and goes into the merits of the order of the detention and its decision is binding on the executive government. He insists that the detenu must have a reasonable and effective opportunity to put up his defence.
He does not insist on the assistance of counsel, for that is expressly taken away, by the
Constitution itself. But he insists on what he calls an effective opportunity of being heard in person before an impartial tribunal which will be free to examine the grounds of his detention and whose decision should be binding alike on the detenu and the executive authority which detains. The claim may be reasonable but the question before the Court is not reasonableness or otherwise of the provisions of article 22(4) to (7). Those provisions are not justifiable, for they are the provisions of the Constitution itself, which is supreme over everybody. The Court can only seek to find out, on a proper construction, what protection has in fact been provided.
The Constitution has provided for the giving of the grounds of detention although facts as distinguished from grounds may be withheld under clause (6) and the right of representation against the order of detention. It has provided for the duration of the detention. There the guaranteed fundamental procedural rights end. There is no provision for any trial before any tribunal. One cannot import the condition of a trial by any tribunal from the fact that a right of representation has been given. The right to make representation is nothing more than the right to "lodge objections" as provided by the Danzig Constitution and the Weimar
Constitution. The representations made will no doubt be considered by the Government. It is said a prosecutor cannot be himself the judge. Ordinarily, the orders of detention will in a great majority of cases be made by the District Magistrate or Sub-Divisional Officer or the
Commissioner of Police. The representation of the detenu goes to the Government. Why should it be assumed that a high government official at the seat of the government will not impartially consider the representation and judge the propriety of the order of detention made by local officials? Clause (5) does not imperatively provide for any oral representation which
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a hearing will entail. Indeed the exclusion of the provisions of clauses (1) and (2) negatives any idea of trial or oral defence. The Court may not, by temperament and training, like this at all but it cannot question the wisdom or the policy of the Constitution. In my judgment as regards preventive detention laws, the only limitation put upon the legislative power is that it must provide some procedure and at least incorporate the minimum requirements laid down in article 22(4) to (7). There is no limitation as regards the substantive law. Therefore a preventive detention law which provides some procedure and complies with the requirements of article22(4) to (7) must be held to be a good law, however odious it may appear to the Court to be.
Learned counsel for the petitioner contends that the impugned Act does to comply with even the bare requirements of article 22(4) to (7). It is pointed out that section 3 of the Act does not lay down any objective test but leaves it to the authority to define and say whether a particular person comes within the legislative heads. In other words, it is contended that
Parliament has not legislated at all but has delegated its legislative powers to the executive authorities. I do not think there is any substance in this contention. In the first place this is not an objection as to procedure but to substantive law which is not open in the Court 's scrutiny.
In the next place this contention overlooks the basic distinction between the delegation of power to make the law and the conferring of an authority and discretion as to its execution to be exercised under and in pursuance of the law. The impugned Act has specifically set forth an ascertainable standard by which the conduct of a particular person is to be judged by the detaining authority.
It is next urged that section 12 of the Act does not comply with the requirements of clause
(7) of article 22 for two reasons, namely - (i) that clause (7) contemplates a law prescribing the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months and then another law thereafter providing for preventive detention for a period longer than three months; and (ii) that under clause (7)
Parliament must prescribe both the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months.
As regards the first point I do not see why Parliament must make two laws, one laying down the principles for longer detention and another for detention for such longer period. It may be that a State cannot provide for longer detention until Parliament has made the law, but
I can see no reason why Parliament cannot do both by the same Act. In fact, clause (4)(b) contemplates the detention itself to be in accordance with the provisions of any law made by
Parliament under sub-clauses (a) and (b) of clause (7). Therefore, the detention can well be under the very law which the Parliament makes under sub-clauses (a) and (b) of clause (7).
As to the second point the argument is that Parliament has a discretion under clause (7) to make a law and it is not obliged to make any law but when our Parliament chooses to make a law it must prescribe both the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months. I am unable to construe clause (7)(a) in the way suggested by learned counsel for the petitioner. It is an enabling provision empowering Parliament to prescribe two things. Parliament may prescribe either or both. If a father tells his delicate child that he may play table tennis and badminton but not the strenuous game of football, it obviously does not mean that the child, if he chooses to play at all, must play both table tennis and badminton. It is an option given to the child. Likewise, the
Constitution gives to Parliament the power of prescribing two things. Parliament is not obliged to prescribe at all but if it chooses to prescribe it may prescribe either or both. Clause 7(a), in my opinion, has to be read distributively as follows: The Parliament may prescribe the circumstance under which a person may be detained for a period longer than three months and
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Parliament may prescribe the class or classes of cases in which a person may be detained for a period longer than three months. That appears to me to be consonant with sound rules of construction. Further, the circumstances and the class or classes of cases may conceivably coalesce. Indeed the Full Bench case No. 1 of 1950 before the Calcutta High Court (Kshitindra
Narayan v. Chief Secretary) itself indicates that the same provision may be read as circumstances or as a classification. In that case learned counsel conceded that section 12 had prescribed the circumstances but his complaint was that it had not prescribed the class or classes of cases. The majority of the Court repelled this contention. One learned Judge, however, held that section 12 had prescribed the class or classes of cases but had not prescribed the circumstances. It is, therefore, clear that the classification itself may indicate the circumstances. Again, the classification may be on a variety of bases. It may be according to provinces the detenus come from. It may be according to the age of the detenus. It may be according to the object they are supposed to have in view or according to the activities they are suspected to be engaged in. In this case Parliament has taken five out of the six legislative heads and divided them into two categories. The detenus are thus classified according to their suspected object or activities endangering the several matters specified in the section. I do not see why classification cannot be made on the footing of the objectives of the detenus falling in some of the legislative heads, for each legislative head has a specific connotation well understood in law. If I am correct that there has been a classification then the fact that a person falls within one or the other class may well be the circumstances under which he may be detained for a period longer than three months. I do not consider it right, as a matter of construction, to read any further limitation in clause 7(a) of article 22. In my judgment
Parliament was not obliged under clause (7) to prescribe both circumstances and classes, and in any case has in fact and substance prescribed both.
I am conscious that a law made by Parliament under article 22(7) will do away with the salutary safeguard of the opinion of an advisory board. But it must be remembered that our
Constitution itself contemplates that in certain circumstances or for certain class or classes of detenus even the advisory board may not be safe and it has trusted Parliament to make a law for that purpose. Our preference for an advisory board should not blind us to this aspect of the matter. It is true that circumstances ordinarily relate to extraneous things, like riots, commotion, political or communal or some sort of abnormal situation and it is said that the framers of the Constitution had in mind some such situation when the advisory board might be done away with. It is also urged that they had in mind that the more dangerous types of detenus should be denied the privilege of the advisory board. I am free to confess that prescription of specific circumstances or a more rigid and definite specification of classes would have been better and more desirable. But that is crying for the ideal. The Constitution has not in terms put any such limitation as regards the circumstances or the class or classes of cases and it is idle to speculate as to the intention of the Constitution-makers, who, by the way, are the very persons who made this law. It is not for the Court to improve upon or add to the Constitution. If the law duly made by Parliament is repugnant to good sense, public opinion will compel Parliament to alter it suitably.
Finally, an objection is taken that section 14 of the impugned Act takes away or abridge the right of the detenu to move this Court by appropriate proceedings. Both clauses (1) and
(2) of article 32 speak of enforcement of rights conferred by Part III. The right to move this
Court is given to a person not for the sake of moving only but for moving the Court for the enforcement of some rights conferred by Part III and this Court has been given power to issue directions or orders or writs for the enforcement of any of such rights. In order, therefore, to attract the application of article 32, the person applying must first satisfy that he has got a right under Part III which has to be enforced under article 32. I have already said that article 19 does not deal with the freedom of the person. I have also said that articles 21 and 22 provide for
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protection by insisting on some procedure. Under article 22(5) the authority making the order of detention is enjoined, as soon as may be, to communicate to the detenu the grounds on which that order has been made. This provision has some purpose, namely, that the disclosure of the grounds will afford the detenu the opportunity of making a representation against the order. Supposing the authority does not give any grounds at all as distinct from facts referred to in clause (6). Surely the detenu loses a fundamental right because he is prevented from making a representation against the order of detention. Suppose the authority hands over to the detenu a piece of paper with some scribblings on it which do not amount to any ground at all for detention. Then also the detenu can legitimately complain that his right has been infringed. He can then come to the Court to get redress under article 32, but he cannot show to the Court the piece of paper with the scribblings on it under section 14 of the Act and the
Court cannot judge whether he has actually get the grounds which he is entitled to under article 22(5). In such a case the detenu may well complain that both his substantive right under article 22(5) as well as his right to constitutional remedies under article 32 have been infringed.
He can complain of infringement of his remedial rights under article32, because he cannot show that there has been an infringement of his substantive right under article 22(5). It appears to me, therefore, that section 14 of the Act in so far as it prevents the detenu from disclosing to the Court the grounds communicated to him is not in conformity with Part III of the
Constitution and is, therefore, void under article 13(2). That section, however, is clearly severable and cannot affect the whole Act. On this question the views of Meredith C.J. and
Das J. of Patna in Criminal Miscellaneous No. 124 of 1950 (Lalit Kumar Barman v. The State) and the majority of the learned Judges of the Calcutta High Court in Full Bench Case No. 1 of 1950 (Kshitindra Narayan v. Chief Secretary) appear to be correct and sound.
For the reasons I have given above, in my opinion, the impugned Act is a valid law except as to section 14 in so far as it prevents the grounds being disclosed to the Court. The petitioner before us does not complain that he has not got proper grounds. Further, the period of his detention under the impugned Act has not gone beyond three months and, in the circumstances, this application should, in my opinion, stand dismissed.
Petition dismissed.
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UNIT 8 – LIFE AND PERSONAL LIBERTY (ARTICLE 21)
PROCEDURE ESTABLISHED BY LAW
A. K. GOPALAN V. STATE OF MADRAS
AIR 1950 SC 27
Decided On: May 19, 1950
BENCH – CHIEF JUSTICE H. L. KANIA, JUSTICES S. FAZL ALI, PATANJALI SASTRI, M. C.
MAHAJAN, B. K. MUKHERJEA & S. R. DAS
CHIEF JUSTICE KANIA (FOR HIMSELF)
… This is a petition by the applicant under article 32(1) of the Constitution of India for a writ of habeas corpus against his detention in the Madras Jail. In the petition he has given various dates showing how he has been under detention since December, 1947. Under the ordinary Criminal Law he was sentenced to terms of imprisonment but those convictions were set aside. While he was thus under detention under one of the orders of the Madras State
Government, on the 1st of March, 1950, he was served with an order made under section 3(1) of the Preventive Detention Act, IV of 1950. He challenges the legality of the order as it is contended that Act IV of 1950 contravenes the provisions of articles 13, 19 and 21 and the provisions of that Act are not in accordance with article 22 of the Constitution. He has also challenged the validity of the order on the ground that it is issued mala fide. The burden of proving that allegation is on the applicant. Because of the penal provisions of section 14 of the impugned Act the applicant has not disclosed the grounds, supplied to him, for his detention and the question of mala fides of the order therefore cannot be gone into under this petition. The question of the validity of Act IV of 1950 was argued before us at great length. This is the first case in which the different articles of the Constitution of India contained in the
Chapter on Fundamental Rights has come for discussion before us. The Court is indebted to the learned counsel for the applicant and the Attorney-General for their assistance in interpreting the true meaning of the relevant clauses of the Constitution.
………
Article 21 which is also in Part III under the caption "Right to Freedom" runs as follows:
"No person shall be deprived of his life or personal liberty except according to procedure established by law."
This article has been strongly relied upon by the petitioner in support of his contention that the impugned Act is ultra vires the Parliament as it abridges the right given by this article to every person. It was argued that under the Constitution of the United States of America the corresponding provision is found in the 5th and 14th Amendments where the provision, inter alia, is "that no person shall be deprived of his life or liberty or property except by due process of law." It was contended for the petitioner that the Indian Constitution gives the same protection to every person in India, except that in the United States "due process of law" has been construed by its Supreme Court to cover both substantive and procedural law, while in
India only the protection of procedural law is guaranteed. It was contended that the omission of the word "due" made no difference to the interpretation of the words in article 21. The word
"established" was not equivalent to "prescribed". It had a wider meaning. The word "law" did not mean enacted law because that will be no legislative protection at all. If so construed, any
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Act passed by the Parliament or the State Legislature, which was otherwise within its legislative power, can destroy or abridge this right. On the same line of reasoning, it was argued that if that was the intention there was no necessity to put this as a fundamental right in Part III at all. As to the meaning of the word "law" it was argued that it meant principles of natural justice. It meant "jus", i.e., law in the abstract sense of the principles of natural justice, as mentioned in standard works of Jurisprudence, and not "lex", i.e., enacted law. Against the contention that such construction will leave the meaning vague, it was argued that four principles of natural justice recognised in all civilized countries were covered, in any event, by the word "law". They are : (1) An objective test, i.e., a certain, definite and ascertainable rule of human conduct for the violation of which one can be detained; (2) Notice of the grounds of such detention; (3) An impartial tribunal, administrative, judicial or advisory, to decide whether the detention is justified; and (4) Orderly course of procedure, including an opportunity to be heard orally (not merely by making a written representation) with a right to lead evidence and call witnesses.
In my opinion, this line of approach is not proper and indeed is misleading. As regards the American Constitution its general structure is noticed in these words in "The Government of the United States" by Munro (5th Edition) at page 53 :
"The architects of 1787 built only the basement. Their descendants have kept adding walls and windows, wings and gables, pillars and porches to make a rambling structure which is not yet finished. Or, to change the metaphor, it has a fabric which, to use the words of James Russell Lowell, is still being 'woven on the roaring loom of time '. That is what the framers of the original Constitution intended it to be. Never was it in their mind to work out a final scheme for the government of the country and stereotype it for all time. They sought merely to provide a starting point."
The same aspect is emphasized in Professor Willis 's book on Constitutional Law and
Cooley 's Constitutional Limitations. In contrast to the American Constitution, the Indian
Constitution is a very detailed one. The Constitution itself provides in minute details the legislative powers of the Parliament and the State Legislatures. The same feature is noticeable in the case of the judiciary, finance, trade, commerce and services. It is thus quite detailed and the whole of it has to be read with the same sanctity, without giving undue weight to Part III or article 246, except to the extent one is legitimately and clearly limited by the other.
Four marked points of distinction between the clause in the American Constitution and article 21 of the Constitution of India may be noticed at this stage. The first is that in U.S.A.
Constitution the word "liberty" is used simpliciter while in India it is restricted to personal liberty. (2) In U.S.A. Constitution the same protection is given to property, while in India the fundamental right in respect of property is contained in article 31. (3) The word "due" is omitted altogether and the expression "due process of law" is not used deliberately. (4) The word "established" is used and is limited to "Procedure" in our article 21.
The whole argument of the petitioner is founded on the meaning of the word "law" given to it by the Supreme Court of America. It seems unnecessary to embark on a discussion of the powers and jurisdiction of the Supreme Court of the U.S.A. and how they came to enlarge or abridge the meaning of law in the expression "due process of law". Without going into details,
I think there is no justification to adopt the meaning of the word "law" as interpreted by the
Supreme Court of U.S.A. in the expression "due process of law" merely because the word
"law" is used in article 21. The discussion of the meaning of "due process of law" found in
Willis on Constitutional Law and in Cooley 's Constitutional Limitations shows the diverse meanings given to that expression at different times and under different circumstances by the
Supreme Court of U.S.A., so much so that the conclusion reached by these authors is that the expression means reasonable law according to the view of the majority of the judges of the
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Supreme Court at a particular time holding office. It also shows how the meaning of the expression was widened or abridged in certain decades. Moreover, to control the meaning so given to that expression from time to time the doctrine of police powers was brought into play.
That doctrine, shortly put, is that legislation meant for the good of the people generally, and in which the individual has to surrender his freedom to a certain extent because it is for the benefit of the people at large, has not to be tested by the touchstone of the "due process of law" formula.
Our attention was drawn to the debates and report of the drafting committee of the
Constituent Assembly in respect of the wording of this clause. The report may be read not to control the meaning of the article, but may be seen in case of ambiguity. In Municipal Council of Sydney v. Commonwealth, (1904) 1 Bom. L.R. 208, it was thought that individual opinion of members of the Convention expressed in the debate cannot be referred to for the purpose of construing the Constitution. The same opinion was expressed in United States v. Wong Kim
Ark, 169 U.S. 649. The result appears to be that while it is not proper to take into consideration the individual opinions of Members of Parliament or Convention to construe the meaning of the particular clause, when a question is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be permitted. In the present case the debates were referred to show that the expression "due process of law" was known to exist in the American Constitution and after a discussion was not adopted by the Constituent
Assembly in our Constitution. In Administrator-General of Bengal v. Premlal Mullick, a reference to the proceedings of the Legislature which resulted in the passing of the Act was not considered legitimate aid in the construction of a particular section. The same reasons were held as cogent for excluding a reference to such debates in construing a Indian Statute.
Resort may be had to these sources with great caution and only when latent ambiguities are to be resolved. See Craie 's Statute Law (4th Edition) page 122, Maxwell on Interpretation of
Statutes (9th Edition) pp. 28-29 and Crawford on Statutory Construction (1940 Edition) p.
379, article 214. A perusal of the report of the drafting committee to which our attention was drawn shows clearly that the Constituent Assembly had before it the American article and the expression "due process of law" but they deliberately dropped the use of that expression from our Constitution."
No extrinsic aid is needed to interpret the words of article 21, which in my opinion, are not ambiguous. Normally read, and without thinking of other Constitutions, the expression
"procedure established by law" must mean procedure prescribed by the law of the State. If the
Indian Constitution wanted to preserve to every person the protection given by the due process clause of the American Constitution there was nothing to prevent the Assembly from adopting the phrase, or if they wanted to limit the same to procedure only, to adopt that expression with only the word "procedural" prefixed to "law". However, the correct question is what is the right given by article 21? The only right is that no person shall be deprived of his life or liberty except according to procedure established by law. One may like that right to cover a larger area, but to give such a right is not the function of the Court; it is the function of the
Constitution. To read the word "law" as meaning rules of natural justice will land one in difficulties because the rules of natural justice, as regards procedure, are nowhere defined and in my opinion the Constitution cannot be read as laying down a vague standard. This is particularly so when in omitting to adopt "due process of law" it was considered that the expression "procedure established by law" made the standard specific. It cannot be specific except by reading the expression as meaning procedure prescribed by the legislature. The word, "law" as used in this Part has different shades of meaning but in no other article it appears to bear the indefinite meaning of natural justice. If so, there appears no reason why in this article it should receive this peculiar meaning. Article 31 which is also in Part III and relates to the fundamental rights in respect of property runs as follows:-
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"No person shall be deprived of his property save by authority of law."
It is obvious that in that clause "law" must mean enacted law. The object of dealing with property under a different article appears more to provide the exceptions found in article 31(2) to (6), rather than to give the word "law" a different meaning than the one given in article 21.
The word "established" according to the Oxford Dictionary means "to fix, settle, institute or ordain by enactment or agreement." The word "established" itself suggests an agency which fixes the limits. According to the dictionary this agency can be either the legislature or an agreement between the parties. There is therefore no justification to give the meaning of "jus" to "law" in article 21.
The phrase "procedure established by law" seems to be borrowed from article 31 of the
Japanese Constitution. But other articles of that Constitution which expressly preserve other personal liberties in different clauses have to be read together to determine the meaning of
"law" in the expression "procedure established by law." These articles of the Japanese
Constitution have not been incorporated in the Constitution of India in the same language. It is not shown that the word "law" means "jus" in the Japanese Constitution. In the Japanese
Constitution these rights claimed under the rules of natural justice are not given by the interpretation of the words "procedure established by law" in their article 31. The word "due" in the expression "due process of law" in the American Constitution is interpreted to mean
"just", according to the opinion of the Supreme Court of U.S.A. That word imparts jurisdiction to the Courts to pronounce what is "due" from otherwise, according to law. The deliberate omission of the word "due" from article 21 lends strength to the contention that the justifiable aspect of "law", i.e., to consider whether it is reasonable or not by the Court, does not form part of the Indian Constitution. The omission of the word "due", the limitation imposed by the word "procedure" and the insertion of the word "established" thus brings out more clearly the idea of legislative prescription in the expression used in article 21. By, adopting the phrase
"procedure established by law" the Constitution gave the legislature the final word to determine the law.
JUSTICE FAZL ALI (for himself)
………
I will now pass on to the consideration of article 21, which runs as follows:"No person shall be deprived of his life or personal liberty except according to procedure established by law."
Here again, our first step must be to arrive at a clear meaning of the provision. The only words which cause some difficulty in the proper construction of the article are "procedure established by law."
The learned Attorney-General contended before us that the word "law" which is used in article 21 means State-made law or law enacted by the State. On the other hand, the learned counsel for the petitioner strongly contended that the expression "procedure established by law" is used in a much wider sense and approximates in meaning to the expression "due process of law" as interpreted by the Supreme Court of America in the earliest times and, if that is so, it means exactly what some of the American writers mean to convey by the expression "procedural due process."
In the course of the arguments, the learned Attorney-General referred us to the proceedings in the Constituent Assembly for the purpose of showing that the article as originally drafted contained the words "without due process of law" but these words were subsequently replaced by the words "except according to procedure established by law." In
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my opinion, though the proceedings or discussions in the Assembly are not relevant for the purpose of construing the meaning of the expressions used in article 21, especially when they are plain and unambiguous, they are relevant to show that the Assembly intended to avoid the use of the expression "without due process of law." That expression had its roots in the expression "per legem terrae" (law of the land) used in Magna Carta in 1215. In the reign of
Edward III, however, the words "due process of law" were used in a statute guaranteeing that no person will be deprived of his property or imprisoned or indicted or put to death without being brought in to answer by due process of law (28, Edward III, Ch. III). The expression was afterwards adopted in the American Constitution and also in the Constitutions of some of the constituent States, though some of the States preferred to use the words "in due course of law" or "according to the law of the land." [See Cooley on "Constitutional Limitations," 8th
Edn., Vol. II, pages 734-5]. In the earliest times, the American Supreme Court construed "due process of law" to cover matters of procedure only, but gradually the meaning of the expression was widened so as to cover substantive law also, by laying emphasis on the word
"due". The expression was used in such a wide sense that the judges found it difficult to define it and in one of the cases it was observed as follows:"It would be difficult and perhaps impossible to give to those words a definition, at once accurate, and broad enough to cover every case. This difficulty and perhaps impossibility was referred to by Mr. Justice Miller in Davidson v. New
Orleans, where the opinion was expressed that it is wiser to ascertain their intent and application by the 'gradual process of judicial inclusion and exclusion, ' as the cases presented for decision shall require, with the reasoning on which such decisions may be founded :" Missouri Pacific Railway Co. v. Humes, 115 U.S.
512 .
It seems plain that the Constituent Assembly did not adopt this expression on account of the very elastic meaning given to it, but preferred to use the words "according to procedure established by law" which occur in the Japanese Constitution framed in 1946.
It will not be out of place to state here in a few words how the Japanese Constitution came into existence. It appears that on the 11th October, 1945, General McArthur directed the
Japanese Cabinet to initiate measures for the preparation of the Japanese Constitution, but, as no progress was made, it was decided in February, 1946, that the problem of constitutional reform should be taken over by the Government Section of the Supreme Commander 's
Headquarters. Subsequently the Chief of this Section and the staff drafted the Constitution with the help of American constitutional lawyers who were called to assist the Government
Section in the task. This Constitution, as a learned writer has remarked, bore on almost every page evidences of its essentially Western origin, and this characteristic was especially evident in the preamble "particularly reminiscent of the American Declaration of Independence, a preamble which, it has been observed, no Japanese could possibly have conceived or written and which few could even understand" [See Ogg and Zink 's "Modern Foreign Governments"].
One of the characteristics of the Constitution which undoubtedly bespeaks of direct American influence is to be found in a lengthy chapter, consisting of 31 articles, entitled "Rights and
Duties of the People," which provided for the first time an effective "Bill of Rights" for the
Japanese people. The usual safeguards have been provided there against apprehension without a warrant and against arrest or detention without being informed of the charges or without adequate cause (articles 33 and 34).
Now there are two matters which deserve to be noticed:- (1) that the Japanese Constitution was framed wholly under American influence; and (2) that at the time it was framed the trend of judicial opinion in America was in favour of confining the meaning of the expression "due process of law" to what is expressed by certain American writers by the somewhat quaint but useful expression "procedural due process." That there was such a trend would be clear from
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the following passage which I quote from Carl Brent Swisher 's "The Growth of Constitutional
Power in the United States" (page 107) :"The American history of its interpretation falls into three periods. During the first period, covering roughly the first century of government under the
Constitution, due process was interpreted principally as a restriction upon procedure - and largely the judicial procedure - by which the government exercised its powers. During the second period, which, again roughly speaking, extended through 1936, due process was expanded to serve as a restriction not merely upon procedure but upon the substance of the activities in which the government might engage. During the third period, extending from 1936 to date, the use of due process as a substantive restriction has been largely suspended or abandoned, leaving it principally in its original status as a restriction upon procedure." In the circumstances mentioned, it seems permissible to surmise that the expression
"procedure established by law" as used in the Japanese Constitution represented the current trend of American judicial opinion with regard to "due process of law," and, if that is so, the expression as used in our Constitution means all that the American writers have read into the words "procedural due process." But I do not wish to base any conclusions upon mere surmise and will try to examine the whole question on its merits.
The word "law" may be used in an abstract or concrete sense. Sometimes it is preceded by an article such as "a" or "the" or by such words as "any" "all," etc., and sometimes it is used without any such prefix. But, generally, the word "law" has a wider meaning when used in the abstract sense without being preceded by an article. The question to be decided is whether the word "law" means nothing more than statute law.
Now whatever may be the meaning of the expression "due process of law," the word "law" is common to that expression as well as "procedure established by law" and though we are not bound to adopt the construction put on "law" or "due process of law" in America, yet since a number of eminent American Judges have devoted much thought to the subject, I am not prepared to hold that we can derive no help from their opinions and we should completely ignore them. I will therefore in the first instance set out certain quotations from a few of the decisions of the American Supreme Court construing the word “law” as used in the expression
"due process of law," in so far as it bears on the question of legal procedure.
(1) "Although the legislature may at its pleasure provide new remedies or change old ones, the power is nevertheless subject to the condition that it cannot remove certain ancient landmarks, or take away certain fundamental rights which have been always recognized and observed in judicial procedures": Bardwell v. Collin, 9 L.R.A. 152.
(2) "By the law of the land is most clearly intended the general law: a law which hears before it condemns, which proceeds upon inquiry and renders judgments only after trial. The meaning is that every citizen shall hold his life, liberty and property, and immunities under the protection of the general rules which govern society": Dartmouth College Case, [17 U.S. 4].
(3) "Can it be doubted that due process of law signifies a right to be heard in one 's defence?
If the legislative department of the government were to enact a statute conferring the right to condemn the citizen without any opportunity whatever of being heard, would it be pretended that such an enactment would not be violative of the Constitution? If this be true, as it undoubtedly is, how can it be said that the judicial department, the source and fountain of justice itself, has yet the authority to render lawful that which if done under express legislative sanction would be violative of the Constitution? If such power obtains, then the judicial department of the government sitting to uphold and enforce the Constitution is the only possessing a power to disregard it. If such authority exists then in consequence of their
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establishment, to compel obedience to law and enforce justice, Courts possess the right to inflict the very wrongs which they were created to prevent": Hovey v. Elliott, [167 U.S. 409 at page 417].
(4) "It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his say in Court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be upheld where justice is justly administered":
Gatpin v. Page, 85 U.S. 18.
Thus, in America, the word "law" does not mean merely State-made law or law enacted by the State and does not exclude certain fundamental principles of justice which inhere in every civilized system of law and which are at the root of it. The result of the numerous decisions in America has been summed up by Professor Willis in his book on "Constitutional
Law" at page 662, in the statement that the essentials of due process are: (1) notice, (2) opportunity to heard, (3) an impartial tribunal, and (4) orderly course of procedure. It is pointed out by the learned author that these essentials may assume different forms in different circumstances, and so long as they are conceded in principle, the requirement of law will be fulfilled. For example, a person cannot require any particular form or method of hearing, but all that he can require is a reasonable opportunity to be heard. Similarly, an impartial tribunal does not necessarily mean a judicial tribunal in every case. So far as orderly course of procedure is concerned, he explains that it does not require a Court to strictly weigh the evidence but it does require it to examine the entire record to ascertain the issues, to discover whether there are facts not reported and to see whether or not the law has been correctly applied to facts. The view expressed by other writers is practically the same as that expressed by Professor Willis, though some of them do not expressly refer to the fourth element, viz., orderly course of procedure. The real point however is that these four elements are really different aspects of the same right, viz., the right to be heard before one is condemned.
So far as this right is concerned, judicial opinion in England appears to be the same as that in America. In England, it would shock one to be told that a man can be deprived of his personal liberty without a fair trial or hearing. Such a case can happen only if the Parliament expressly takes away the right in question in an emergency as the British Parliament did during the last two world wars in a limited number of cases. I will refer here to a few cases which show that the fundamental principle that a person whose right is affected must be heard has been observed not only in cases involving personal liberty but also in proceedings affecting other rights, even though they may have come before administrative or quasi-judicial tribunals. Cooper v. The Wadsworth Board of Works, 14 C.B. (N.S.) 180 was a case under an
Act which empowered the District Board to alter or demolish a house where the builder had neglected to give notice of his intention seven days before proceeding to lay or dig the foundation. Acting upon this power, the Board directed the demolition of a building without notice to the builder, but this was held to be illegal. Byles J. In dealing with the matter observed as follows:"I conceive they acted judicially because they had to determine the offence, and they had to apportion the punishment as well as the remedy. That being so, a long course of decisions, beginning with Dr. Bentley 's case, and ending with some very recent cases, establish that although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The judgment of Mr. Justice
Fortescue, in Dr. Bentley 's case, is somewhat quaint, but it is very applicable, and has been the law from that time to the present. He says, "The objection for
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want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any."
In the same case Erle C.J. observed :"It has been said that the principle that no man shall be deprived of his property without an opportunity of being heard, is limited to a judicial proceeding… I do not quite agree with that;… the law, I think, has been applied to many exercises of power which in common understanding would not be at all more a judicial proceeding than would be the act of the District Board in ordering a house to be pulled down."
… In Local Government Board v. Arlidge, [1915] A.C. 120, the Local Government dismissed an appeal by a person against whom a closing order had been made under Housing,
Town Planning, &c. Act, without an oral hearing and without being allowed to see the report made by the Board 's Inspector upon public local inquiry. The House of Lords did not interfere with the order on the ground that the appeal had been dealt with by an administrative authority whose duty was to enforce obligations on the individual in the interests of the community and whose character was that of an organization with executive functions. The principle however was conceded and lucidly set forth that when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially, and they must deal with the question referred to them without bias and must give to each of the parties an opportunity of presenting its case, and that the decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. Commenting upon this case, which is generally regarded as an extreme case, Mr. Gavin Simonds, who afterwards became a member of the
House of Lords observes:"I think you would agree that if the subject-matter of such proceedings as are here indicated was the liberty of the subject, or indeed his life, you would regard such a judicial procedure as outrageous." (See C.K. Allen 's "Law and Orders," page 167).
I have particularly referred to cases which were before administrative tribunals, because I have to deal in this case with preventive detention which is said to be an executive act and because I wish to point out that even before executive authorities and administrative tribunals an order cannot generally be passed affecting one 's rights without giving one such hearing as may be appropriate to the circumstances of the case. I have only to add that Halsbury after enumerating the most important liberties which are recognized in England, such as right of personal freedom, right to freedom of speech, right of public meeting, etc., adds :"It seems to me that there should be added to this list the following rights which appear to have become well-established-the right of the subject to have any case affecting him tried in accordance with the principles of natural justice, particularly the principles that a man may not be a judge in his own cause, and that no party ought to be condemned unheard, or to have a decision given against him unless he has been given a reasonable opportunity of putting forward his case…" (Halsbury 's Laws of England, 2nd Edition, volume 6, page 392).
The question is whether the principle that no person can be condemned without a hearing by an impartial tribunal which is well-recognized in all modern civilized systems of law and which Halsbury puts on a par with well-recognized fundamental rights cannot be regarded as part of the law of this country. I must confess that I find it difficult to give a negative answer to this question. The principle being part of the British system of law and procedure which we have inherited, has been observed in this country for a very long time and is also deeply rooted in our ancient history, being the basis of the panchayat system from the earliest times. The whole of the Criminal Procedure Code, whether it deals with trial of offences or with preventive or quasi-administrative measures such as are contemplated in sections 107, 108,
109, 110 and 145, is based upon the foundation of this principle, and it is difficult to see that
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it has not become part of the "law of the land" and does not inhere in our system of law. If that is so, then "procedure established by law" must include this principle, whatever else it may or may not include.
That the word "law" used in article 21 does not mean only State-made law is clear from the fact that though there is no statute laying down the complete procedure to be adopted in contempt of Court cases, when the contempt is not within the view of the Court, yet such procedure as now prevails in these cases is part of our law. The statute-law which regulates the procedure of trials and enquiries in criminal cases does not specifically provide for arguments in certain cases, but it has always been held that no decision should be pronounced without hearing arguments. In a number of cases, it has been held that though there may be no specific provision for notice in the statute, the provision must be read into the law. I am aware that some Judges have expressed a strong dislike for the expression "natural justice" on the ground that it is too vague and elastic, but where there are well-known principles with no vagueness about them, which all systems of law have respected and recognized, they cannot be discarded merely because they are in the ultimate analysis found to be based on natural justice. That the expression "natural justice" is not unknown to our law is apparent from the fact that the Privy Council has in may criminal appeals from this country laid down that it shall exercise its power of interference with the course of criminal justice in this country when there has been a breach of principles of natural justice or departure from the requirements of justice… In the present case, there is no vagueness about the right claimed which is the right to have one 's guilt or innocence considered by an impartial body and that right must be read into the words of article 21. Article 21 purports to protect life and personal liberty, and it would be a precarious protection and a protection not worth having, if the elementary principle of law under discussion which, according to Halsbury is on a par with fundamental rights, is to be ignored and excluded. In the course of his arguments, the learned counsel for the petitioner repeatedly asked whether the Constitution would permit a law being enacted, abolishing the mode of trial permitted by the existing law and establishing the procedure of trial by battle or trial by ordeal which was in vogue in olden times in England. The question envisages something which is not likely to happen, but it does raise a legal problem which can perhaps be met only in this way that if the expression "procedure established by law" simply means any procedure established or enacted by statute it will be difficult to give a negative answer to the question, but if the word "law" includes what I have endeavoured to show it does, such an answer may be justified. It seems to me that there is nothing revolutionary in the doctrine that the words "procedure established by law" must include the four principles set out in
Professor Willis ' book, which, as I have already stated, are different aspects of the same principle and which have no vagueness or uncertainty about them. These principles, as the learned author points out and as the authorities show, are not absolutely rigid principles but are adaptable to the circumstances of each case within certain limits. I have only to add that it has not been seriously controverted that "law" in this article means valid law and "procedure" means certain definite rules of proceeding and not something which is a mere pretense for procedure. JUSTICE PATANJALI SASTRI (for himself)
… It was further submitted that article 19 declared the substantive rights of personal liberty while article 21provided the procedural safeguard against their deprivation. This view of the correlation between the two articles has found favour with some of the Judges in the
High Courts which have had occasion to consider the constitutional validity of the impugned
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Act. It is, however, to be observed that article 19 confers the rights therein specified only on the citizens of India, while article 21 extends the protection of life and personal liberty to all persons - citizens and non-citizens alike. Thus, the two articles do not operate in a conterminous field, and this is one reason for rejecting the correlation suggested. Again, if article 21 is to be understood as providing only procedural safeguards, where is the substantive right to personal liberty of non-citizens to be found in the Constitution? Are they denied such right altogether? If they are to have no right of personal liberty, why is the procedural safeguard in article 21 extended to them? And where is that most fundamental right of all, the right to life, provided for in the Constitution?
The truth is that article 21, like its American prototype in the Fifth and Fourteenth
Amendments of the Constitution of the United States, presents an examples of the fusion of procedural and substantive rights in the same provision. The right to live, though the most fundamental of all, is also one of the most difficult to define and its protection generally takes the form of a declaration that no person shall be deprived of it save by due process of law or by authority of law. "Process" or "procedure" in this context connotes both the act and the manner of proceeding to take away a man 's life or personal liberty. And the first and essential step in a procedure established by law for such deprivation must be a law made by a competent legislature authorising such deprivation. This brings me to the consideration of articles
21 and 22 to which was devoted the greater part of the debate at the Bar.
… Mr. Nambiar urged that the word "law" in article 21 should be understood, not in the sense of an enactment but as signifying the immutable and universal principles of natural justice - the jus natural of the civil law - and that the expression "procedure established by law" meant the same thing as that famous phrase "due process of law" in the American
Constitution in its procedural aspect. Numerous American decisions were cited to show that the phrase implied the basic requirements of (1) an objective and ascertainable standard of conduct to which it is possible to confirm, (2) notice to the party of the accusation against him,
(3) a reasonable opportunity for him to establish his innocence, and (4) an impartial tribunal capable of giving an unbiased judgment.
… I am unable to agree that the term "law" in article 21 means the immutable and universal principles of natural justice. "Procedure established by law" must be taken to refer to a procedure which has a statutory origin, for no procedure is known or can be said to have been established by such vague and uncertain concepts as "the immutable and universal principles of natural justice." In my opinion, "law" in article 21 means "positive or State-made law." … On the other hand, the interpretation suggested by the Attorney-General on behalf of the intervener that the expression means nothing more than procedure prescribed by any law made by a competent legislature is hardly more acceptable. "Established" according to him, means prescribed, and if Parliament or the Legislature of a State enacted a procedure, however, novel and ineffective for affording the accused person a fair opportunity of defending himself, it would be sufficient for depriving a person of his life or personal liberty.
He submitted that the Constituent Assembly definitely rejected the doctrine of judicial supremacy when it rejected the phrase "due process of law" and made the legislative will unchallengeable, provided only "some procedure" was laid down. The Indian Constitution having thus preferred the English doctrine of Parliamentary supremacy, the phrase "procedure established by law" must be construed in accordance with the English view of due process of law, that is to say, any procedure which Parliament may choose to prescribe. Learned counsel drew attention to the speeches made by several members of the Assembly on the floor of the
House for explaining, as he put it, the "historical background." A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it
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could not reflect the inarticulate mental processes lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in accord.
The Court could only search for the objective intent of the legislature primarily in the words used in the enactment, aided by such historical material as reports of statutory committees, preambles etc. I attach no importance, therefore, to the speeches made by some of the members of the Constituent Assembly in the course of the debate of article 15 (now article 21).
The main difficulty I feel in accepting the construction suggested by the Attorney-General is that it completely stultifies article 13(2) and, indeed, the very conception of a fundamental right. It is of the essence of that conception that it is protected by the fundamental law of the
Constitution against infringement by ordinary legislation. It is not correct to say that the
Constitution has adopted the doctrine of Parliamentary supremacy. So far, at any rate, as Part
III is concerned, the Constitution, as I have already observed, has accepted the American view of fundamental rights. The provisions of articles 13 and 32 make this reasonably clear. Could it then have been the intention of the farmers of the Constitution that the most important fundamental rights to life and personal liberty should be at the mercy of legislative majorities as, in effect, they would be if "established" were to mean merely "prescribed?".
In other words, as an American Judge said in a similar context, does the constitutional prohibition in article 13(2) amount to no more than "You shall not take away life or personal freedom unless you choose to take it away," which is mere verbiage. It is no sound answer to say that, if article 21 conferred no right immune from legislative invasion, there would be no question of contravening article 13(2). The argument seems, to my mind, to beg the question, for it assumes that the article affords no such immunity. It is said that article 21 affords no protection against competent legislative action in the field of substantive criminal law, for there is no provision for judicial review, on the ground of reasonableness or otherwise, of such laws, as in the case of the rights enumerated in article 19. Even assuming it to be so the construction of the learned Attorney-General would have the effect of rendering wholly ineffective and illusory even the procedural protection which the article was undoubtedly designed to afford. It was argued that "law" in article 31 which provides that no person shall be deprived of his property "save by authority of law" must mean enacted law and that if a person 's property could be taken away by legislative action, his right to life and personal liberty need not enjoy any greater immunity. The analogy is misleading. Clause (2) of article 31 provides for payment of compensation and that the right is justifiable except in the two cases mentioned in clauses (4) and (6) which are of a transitory character. The constitutional safeguard of the right to property in the said article is, therefore, not so illusory or ineffective as clause (1) by itself might make it appear, even assuming that "law" there means ordinary legislation.
… The Attorney-General further submitted that, even on his interpretation, article 21 would be a protection against violation of the rights by the executive and by individuals, and that would be sufficient justification for the article ranking as a fundamental safeguard. There is no substance in the suggestion. As pointed out in Eshugbayi Eleko v.
Government of Nigeria (Officer Administering), [1931] A.C. 662, the executive could only act in pursuance of the powers given by law and no constitutional protection against such action is really needed. Even in monarchical Britain the struggle between prerogative and law has long since ended in favour of the latter. " In accordance with British jurisprudence" said Lord
Atkin in the case cited above, "no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice." As for protection against individuals, it is a misconception to think that constitutional safeguards are directed against individuals. They are as a rule directed against the State and its organs. Protection against violation of the rights by
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individuals must be sought in the ordinary law. It is therefore difficult to accept the suggestion that article 21 was designed to afford protection only against infringements by the executive or individuals. On the other hand, the insertion of a declaration of Fundamental Rights in the forefront of the Constitution, coupled with an express prohibition against legislative interference with these rights (article 13) and the provision of a constitutional sanction for the enforcement of such prohibition by means of a judicial review (article 32) is, in my opinion, a clear and emphatic indication that these rights are to be paramount to ordinary State-made laws. After giving the matter my most careful and anxious consideration, I have come to the conclusion that there are only two possible solutions of the problem. In the first place, a satisfactory via media between the two extreme positions contended for on either side may be found by stressing the word "established" which implies some degree of firmness, permanence and general acceptance, while it does not exclude origination by statute. "Procedure established by law" may well be taken to mean what the Privy Council referred to in King
Emperor v. Benoari Lal Sharma, [1945] F.C.R. 161 as "the ordinary and well-established criminal procedure," that is to say, those settled usages and normal modes of proceeding sanctioned by the Criminal Procedure Code which is the general law of criminal procedure in the country. Their Lordships were referring to the distinction between trial by special Courts provided by an Ordinance of the Governor-General and trial by ordinary Courts under the
Criminal Procedure Code. It can be no objection to this view that the Code prescribes no single and uniform procedure for all types of cases but provides varying procedures for different classes of cases. Certain basic principles emerge as the constant factors common to all those procedures, and they form the core of the procedure established by law. I realise that even on this view, the life and liberty of the individual will not be immune from legislative interference, for a competent legislature may change the procedure so as to whittle down the protection if so minded.
But, in the view I have indicated, it must not be a change ad hoc for any special purpose or occasion, but a change in the general law of procedure embodied in the Code. So long as such a change is not effected. The protection under article 21 would be available. The different measures of constitutional protection which the fundamental right to life and personal liberty will enjoy under article 21 as interpreted in the three ways referred to above will perhaps be best illustrated by a concrete example. Suppose that article 22(1) was not there and Parliament passed an Act, as a temporary measure, taking away in certain cases the right of an accused person to be defended by a legal practitioner. According to the petitioner 's learned counsel the
Act would be void as being contrary to the immutable principles of natural justice embodied in article 21, whereas on the construction contended for by the Attorney-General, the Act would be perfectly valid, while, on the view I have indicated above, the Act would be bad, but if the denial of such right of defence is made a normal feature of the ordinary law of criminal procedure by abrogating section 340(1) of the Code, article 21 would be powerless to protect against such legislative action. But in a free democratic republic such a drastic change in the normal law of procedure, though theoretically possible, would be difficult to bring about, and that practical difficulty will be the measure of the protection afforded by article 21.
JUSTICE MUKHERJEA (for himself)
… The detention of a man even as a precautionary measure certainly deprives him of his personal liberty, and as article 21 guarantees to every man, be he a citizen or a foreigner, that he shall not be deprived of his life and personal liberty, except in accordance with the procedure established by law, the requirements of article 21 would certainly have to be
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complied with, to make preventive detention valid in law. What these requirements are I will discuss later on. Article 22 comes immediately after article 21. It secures to all persons certain fundamental rights in relation to arrest and detention, and as already said, by way of exception to the rights thus declare, makes certain specific provisions relating to preventive detention.
The subject of preventive detention is specified in and constitutes Item No. 9 in the Union
Legislative List and it also forms Item No. 3 in the Concurrent List. Under article 246 of the
Constitution, the Parliament and the State Legislatures are empowered to legislate on this subject within the ambit of their respective authorities. Clause (3) of article 22 expressly enjoins that the protective provisions of clauses (1) and (2) of the article would not be available to persons detained under any law providing for preventive detention. The only fundamental rights which are guaranteed by the Constitution in the matter of preventive detention and which to that extent impose restraints upon the exercise of legislative powers in that respect are contained in clauses (4) to (7) of article 22. Clause (4) lays down that no law of preventive detention shall authorise the detention of a person for a period longer than three months, unless an advisory board constituted in the manner laid down in sub-clause (a) of the clause has reported before the expiration of the period that there is sufficient cause for such detention.
The period of detention cannot, in any event, exceed the maximum which the Parliament is entitled to prescribe under clause (7)(b). The Parliament is also given the authority to prescribe the circumstances and the class of cases under which a person can be detained for a period longer than three months under any law of preventive detention without obtaining the opinion of the advisory board. There is one safeguard provided for all cases which is contained in clause (5) and which lays down that the authority making the order of detention shall, as soon as possible communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. But even here, the authority while giving the grounds of detention need not disclose such facts which it considers against public interest to disclose.
The question that we have to consider is whether a law relating to preventive detention is justifiable in a Court of law on the ground of reasonableness under article 19(5 )of the
Constitution inasmuch as it takes away or abridges the right to free movement in the territory of India guaranteed by clause (1)(d) of the article. It will be seen from what has been said above that article 22 deals specifically with the subject of preventive detention and expressly takes away the fundamental rights relating to arrest and detention enumerated in clauses (1) and (2) of the article from persons who are detained under any law which may be passed by the Parliament or State Legislatures acting under article 246 of the Constitution read with the relevant items in the legislative lists.
I will leave aside for the moment the question as to how far the court can examine the reasonableness or otherwise of the procedure that is prescribed by any law relating to preventive detention, for that would involve a consideration of the precise scope and meaning of article 21; but this much is beyond controversy that so far as substantive law is concerned, article 22 of the Constitution gives a clear authority to the legislature to take away the fundamental rights relating to arrest and detention, which are secured by the first two clauses of the article. Any legislation on the subject would only have to conform to the requirements of clauses (4) to (7) and provided that is done, there is nothing in the language employed nor in the context in which it appears which affords any ground for suggestion that such law must be reasonable in its character and that it would be reviewable by the Court on that ground.
Both articles 19 and 22 occur in the same Part of the Constitution and both of them purport to lay down the fundamental rights which the Constitution guarantees. It is well settled that the
Constitution must be interpreted in a board and liberal manner giving effect to all its parts, and the presumption should be that no conflict or repugnancy was intended by its framers. …
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It seems to me that there is no conflict or repugnancy between the two provisions of the
Constitution and an examination of the scheme and language of the catena of articles which deal with the rights to freedom would be sufficient to show that what clause (1)(d) of article 19 contemplates is not freedom from detention, either punitive or preventive; it relates to and speaks of a different aspect or phase of civil liberty.
Article 19, which is the first of this series of articles, enumerates seven varieties or forms of freedom beginning with liberty of speech and expression and ending with free right to practise any trade, profession or business. The rights declared in articles 19 to 22 do not certainly exhaust the whole list of liberties which people possess under law. The object of the framers of the Constitution obviously is to enumerate and guarantee those forms of liberty which come under well-known categories recognised by constitutional writers and are considered to be fundamental and of vital importance to the community.
… To me it seems that article 19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law so that they may not conflict with public welfare or general morality. On the other hand, article 20, 21 and 22 are primarily concerned with penal enactments or other laws under which personal safety or liberty of persons could be taken away in the interests of the society and they set down the limits within which the State control should be exercised. Article 19 uses the expression "freedom" and mentions the several forms and aspects of it which are secured to individuals, together with the limitations that could be placed upon them in the general interests of the society. Articles 20, 21 and 22 on the other hand do not make use of the expression "freedom" and they lay down the restrictions that are to be placed on State control where an individual is sought to be deprived of his life or personal liberty. The right to the safety of one 's life and limbs and to enjoyment of personal liberty in the sense of freedom from physical restraint and coercion of any sort, are the inherent birth-rights of a man. The essence of these rights consists in restraining others from interfering with them and hence they cannot be described in terms of "freedom" to do particular things. There is also no question of imposing limits on the activities of individuals so far as the exercise of these rights is concerned. For these reasons, I think, these rights have not been mentioned in article 19 of the
Constitution.
An individual can be deprived of his life or personal liberty only by action of the State, either under the provisions of any penal enactment or in the exercise of any other coercive process vested in it under law. What the Constitution does therefore is to put restrictions upon the powers of the State for protecting the rights of the individuals. The restraints on State authority operate as guarantees of individual freedom and secure to the people the enjoyment of life and personal liberty which are thus declared to be inviolable except in the manner indicated in these articles. In my opinion, the group of articles 20 to 22 embody the entire protection guaranteed by the Constitution in relation to deprivation of life and personal liberty both with regard to substantive as well as to procedural law. It is not correct to say, as I shall show more fully later on, that article 21 is confined to matters of procedure only. There must be a substantive law, under which the State is empowered to deprive a man of his life and personal liberty and such law must be a valid law which the legislature is competent to enact within the limits of the powers assigned to it and which does not transgress any of the fundamental rights that the Constitution lays down. Thus a person cannot be convicted or punished under an ex post facto law, or a law which compels the accused to incriminate himself in a criminal trial or punishes him for the same offence more than once. These are the protections provided for by article 20.
Again a law providing for arrest and detention must conform to the limitations prescribed by clauses (1) and (2) or article 22. These provisions indeed have been withdrawn expressly
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in case of preventive detention and protections of much more feeble and attenuated character have been substituted in their place; but this is a question of the policy adopted by the
Constitution which does not concern us at all. The position, therefore, is that with regard to life and personal liberty, the Constitution guarantees protection to this extent that no man could be deprived of these rights except under a valid law passed by a competent legislature within the limits mentioned above and in accordance with the procedure which such laws lays down. Article 19, on the other hand, enunciates certain particular forms of civil liberty quite independently of the rights dealt with under article 21. Most of them may be connected with or dependent upon personal liberty but are not identical with it; and the purpose of article 19 is to indicate the limits within which the State could, by legislation, impose restrictions on the exercise of these rights by the individuals. The reasonableness or otherwise or such legislation can indeed be determined by the Court to the extent laid down in the several clauses of article 19, though no such review is permissible with regard to laws relating to deprivation of life and personal liberty. This may be due to the fact that life and personal freedom constitute the most vital and essential rights which people enjoy under any State and in such matters the precise and definite expression of the intention of the legislature has been preferred by the
Constitution to the variable standards which the judiciary might lay down.
… Mr. Nambiar 's endeavour throughout has been to establish that article 19(1)(d) of the
Constitution read with article 19(5) enunciates the fundamental rights of the citizens regarding the substantive law of personal liberty, while article 21 embodies the protection as regards procedural law. This, in my opinion, would be looking at these provisions from a wrong angle altogether. Article 19 cannot be said to deal with substantive law merely, nor article 21 with mere matters of procedure. It cannot also be said that the provisions of article 19(1)(d) read with clause (5) and article 21 are complementary to each other. The contents and subject matter of the two provisions are not identical and they proceed on totally different principles.
There is no mention of any "right to life" in article 19, although that is the primary and the most important thing for which provision is made in article 21. If the contention of the learned counsel is correct, we would have to hold that no protection is guaranteed by the Constitution as regards right to life so far as substantive law is concerned. In the second place, even if freedom of movement may be regarded as one of the ingredients of personal liberty, surely there are other elements included in the concept and admittedly no provision for other forms of personal liberty are to be found in article 19(5) of the Constitution. Furthermore article 19 is applicable to citizen only, while the rights guaranteed by article 21 are for all persons, citizens as well as aliens. The only proper way of avoiding these anomalies is to interpret the two provisions as applying to different subjects and this would be the right conclusion if we have in mind the scheme which underlies this group of articles.
JUSTICE DAS (for himself)
… The first part of the argument is put broadly, namely, that personal liberty is generally guaranteed by the Constitution by article 19(1) and that the Preventive Detention Act, 1950 has imposed unreasonable restrictions thereon in violation of the provisions of clauses (2) to
(6) of that article. The very first question that arises, therefore, is as to whether the freedom of the person which is primarily and directly suspended or destroyed by preventive detention is at all governed by article 19(1). If personal liberty as such is guaranteed by any of the subclauses of article 19(1) then why has it also been protected by article 21? The answer suggested by learned counsel for the petitioner is that personal liberty as a substantive right is protected by article 19(1) and article 21 gives only an additional protection by prescribing the procedure according to which that right may be taken away. I am unable to accept this contention. If this argument were correct, then it would follow that our Constitution does not guarantee to any
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person, citizen or non-citizen, the freedom of his life as a substantive right at all, for the substantive right to life does not fall within any of the sub-clauses of clause (1) of article 19.
It is restored in reply that no constitution or human laws can guarantee life which is the gift of
God who alone can guarantee and protect it. On a parity of reasoning no Constitution or human laws can in that sense guarantee freedom of speech or free movement, for one may be struck dumb by disease or may lose the use of his legs by paralysis or as a result of amputation.
Further, what has been called the procedural protection of article 21 would be an act of supererogation, for when God takes away one 's life whatever opportunity He may have had given to Adam to explain his conduct before sending him down. He is not likely in these degenerate days to observe the requirements of notice or fair trial before any human tribunal said to be required by article 21.
The Fifth Amendment and the Fourteenth Amendment of the American Constitution give specific protection to life as a substantive right. So does article 31 of the Japanese Constitution of 1946. There is no reason why our Constitution should not do the same. The truth is that article 21 has given that protection to life as a substantive right and that as will be seen hereafter, that article properly understood does not purport to prescribe any particular procedure at all. The further astounding result of the argument of counsel for the petitioner will be that the citizen of India will have only the rights enumerated in article 19 clause (1) and no other right attached to his person. As I have already stated, besides the several rights mentioned in the several sub-clauses of article 19(1) there are many other personal liberties which a free man, i.e., a man who has the freedom of his person, may exercise. Some of those other rights have been referred to by Harries C.J., of Calcutta in his unreported judgment in
Miscellaneous Case No. 166 of 1950 (Kshitindra v. Chief Secretary of West Bengal) while referring the case to a Full Bench in the following words:"It must be remembered that a free man has far more and wider rights than those stated in article 19(1) of the Constitution. For example, a free man can eat what he likes subject to rationing laws, work as much as he likes or idle as much as he likes. He can drink anything he likes subject to the licensing laws and smoke and do a hundred and one things which are not included in article 19. If freedom of person was the result or article 19, then a free man would only have the seven rights mentioned in that article. But obviously the free man in India has far greater rights."
I find myself in complete agreement with the learned Chief Justice on this point. If it were otherwise, the citizen 's right to eat what he likes will be liable to be taken away by the executive fiat of the Civil Supply Department without the necessity of any rationing laws. The
Government may enforce prohibition without any prohibition laws or licensing laws and so on. I cannot accept that our Constitution intended to give no protection to the bundle of rights which, together with the rights mentioned in sub-clauses (a) to (e) and (g) make up personal liberty. Indeed, I regard it as a merit of our Constitution that it does not attempt to enumerate exhaustively and the personal rights but uses the compendious expression "personal liberty" in article 21, and protects all of them.
It is pointed out that in the original draft the word "liberty" only was used as in the
American Constitution but the Drafting Committee added the work "personal" to make it clear that what was being protected by what is now article21 was not what had already been protected by what is now article 19. If it were permissible to refer to the Drafting Committee 's report, it would be another answer to the contentions of learned counsel for the petitioner that personal liberty as a substantive right was protected by article 19. I do not, however, desire to base my judgment on the Drafting Committee 's report and I express no opinion as to its admissibility. Whatever the intentions of the Drafting Committee might have been, the
Constitution as finally passed has in article 21 used the words "personal liberty" which have
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a definite connotation in law as I have explained. It does not mean only liberty of the person but it means liberty or the rights attached to the person (jus personarum). The expressions
"freedom of life" or "personal liberty" are not to be found in article 19 and it is straining the language of article 19 to squeeze in personal liberty into that article. In any case the right to life cannot be read into article 19.
Article 19 being confined, in its operation, to citizens only, a non-citizen will have no protection for his life and personal liberty except what has been called the procedural protection of article 21. If there be no substantive right what will the procedure protect? I recognise that it is not imperative that a foreigner should have the same privileges as are given to a citizen, but if article 21 is construed in the way I have suggested even a foreigner will have equal protection for his life and personal liberty before the laws of our country under our
Constitution. I am unable, therefore, for all the reasons given above, to agree that personal liberties are the result of article 19 or that that article purports to protect all of them.
…… Learned counsel for the petitioner before us does not contend that we should import this American doctrine of due process of law in its full glory but that we should adopt the procedural part of it and insist that no person shall be deprived of his life or personal liberty except by the observance of the formalities which justice and fair play require to be observed.
The arguments of learned counsel for the petitioner are attractive and in the first blush certainly appeal to our sentiment but on serious reflection I find several insuperable objections to the introduction of the American doctrine of procedural due process of law into our
Constitution. That doctrine can only thrive and work where the legislature is subordinate to the judiciary in the sense that the latter can sit in judgment over and review all acts of the legislature. Such a doctrine can have no application to a field where the legislature is supreme.
That is why the doctrine of "due process of law" is quite different in England where Parliament is supreme. …
This basic distinction between the two systems should never be lost sight of, if confusion of thought is to be avoided. Although our Constitution has imposed some limitations on the legislative authorities, yet subject to and outside such limitations our Constitution has left our
Parliament and the State Legislatures supreme in their respective legislative fields. In the main, subject to the limitations I have mentioned, our Constitution has preferred the supremacy of the Legislature to that of the Judiciary. The English principle of due process of law is, therefore, more in accord with our Constitution than the American doctrine which has been evolved for serving quite a different system. … In the next place, it is common knowledge that our Constitution-makers deliberately declined to adopt the uncertain and shifting American doctrine of due process of law and substituted the words "except in due process of law" that were in the original draft by the more specific expression "except in accordance with procedure established by law." To try to bring in the American doctrine, in spite of this fact, will be to stultify the intention of the Constitution as expressed in article 21.
In the third place, in view of the plain meaning of the language of that article as construed and explained above it is impossible to let in what have been called the principles of natural justice as adopted in the procedural due process of law by the American Supreme Court. Again, even the all-pervading little word "due" does not find a place in article 21 so as to qualify the procedure. It speaks of procedure and not "due" procedure and, therefore, "the intellectual yardstick" of the Court is definitely ruled out. Finally, it will be incongruous to import the doctrine of due process of law without its palliative, the doctrine of police powers. It is impossible to read the last mentioned doctrine into article 21.
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MANEKA GANDHI V. UNION OF INDIA
AIR 1978 SC 597, (1978) 1 SCC 248
Decided On: January 25, 1978
BENCH – CHIEF JUSTICE M. H. BEG, JUSTICES Y. V. CHANDRACHUD, V. R. KRISHNA IYER, P.
N. BHAGWATI, N. L. UNTWALIA, S. M. FAZAL ALI & P. S. KAILASAM
JUSTICE BHAGWATI (FOR JUSTICES UNTWALIA, FALAL ALI AND HIMSELF)
The Petitioner is the holder of the passport issued to her on 1st June, 1976 under the
Passport Act, 1967. On 4th My, 1977 the Petitioner received a letter dated 2nd July, 1977 from the Regional Passport Officer, Delhi intimating to her that it has been decided by the
Government of India to impound her passport under Section 10(3)(c) of the Act in public interest and requiring her to surrender the passport within seven days from the date of receipt of the letter. The petitioner immediately addressed a letter to the Regional Passport Officer requesting him to furnish a copy of the statement of reasons for making the order as provided in Section 10(5) to which a reply was sent by the Government of India, Ministry of External
Affairs on 6th July, 1977 stating inter alia that the Government has decided "in the interest of the general public" not to furnish her a copy of the statement of reasons for making of the order. ' The Petitioner thereupon filed the present petition challenging the action of the
Government in impounding her passport and declining to give reasons for doing so. The action of the Government was impugned inter alia on the ground that it was mala fide, but this challenge was not pressed before us at the time of the hearing of the arguments and hence it is not necessary to state any facts bearing on that question. The principal challenge set out in the petition against the legality of the action of the Government was based mainly on the ground that Section 10(3)(c), in so far as it empowers the Passport Authority to impound a passport "in the interests of the general public" is violative of the equality clause contained in
Article 14 of the Constitution, since the condition denoted by the words "in the interests of the general public" limiting the exercise of the power is vague and undefined and the power conferred by this provision is, therefore, excessive and suffers from the vice of "over-breath."
The petition also contained a challenge that an order under Section 10(3)(c) impounding a passport could not be made by the Passport Authority without giving an opportunity to the holder of the passport to be heard in defence and since in the present case, the passport was impounded by the Government without affording an opportunity of hearing to the petitioner, the order was null and void, and, in the alternative, if Section 10(3)(c) were read in such a manner as to exclude the right of hearing, the section would be infected with the vice of arbitrariness and it would be void as offending Article 14. These were the only grounds taken in the Petition as originally filed and on 20th July, 1977 the petition was admitted and rule issued by this Court and an interim order was made directing that the passport of the petitioner should continue to remain deposited with the Registrar of this Court pending the hearing and final disposal of the Petition.
The hearing of the petition was fixed on 30th August 1977, but before that, the petitioner filed an application for urging additional grounds and by this application, two further grounds were sought to be urged by her. One ground was that Section 10(3)(c) is ultra vires
Article 21 since it provides for impounding of passport without any procedure as required by that Article, or, in any event, even if it could be said that there is some procedure prescribed under the passport Act, 1967, it is wholly arbitrary and unreasonable and, therefore, not in compliance with the requirement of that article. The other ground urged on behalf of the petitioner was that Section 10(3)(c) is violative of Articles 19(1)(a) and 19(1)(g) inasmuch as it authorises imposition of restrictions on freedom of Speech and expression guaranteed under
Article 19(1)(a) and freedom to practise any profession or to carry on any occupation, or
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business guaranteed under Article 19(1)(g) and these restrictions are impermissible under
Article 19(2) and Article19(6) respectively. The application for urging these two additional grounds was granted by this Court and ultimately at the hearing of the petition these were the two principal grounds which were pressed on behalf of the petitioner.
Before we examine the rival arguments urged on behalf of the parties in regard to the various questions arising in this petition, it would be convenient, to set out the relevant provisions of the Passport Act, 1967. This Act was enacted on 24th June, 1967 in view of the decision of this Court in Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport
Officer, [1967] 3 SCR 525. The position which obtained prior to the coming into force of this
Act was that there was no law regulating the issue of passports for leaving the shores of India and going abroad. The issue of passports was entirely within the discretion of the executive and this discretion, was unguided and unchannelled. This Court, by a majority, held that the expression "personal liberty" in Article 21 takes in the right of locomotion and travel abroad and under Article 21 no person can be deprived of his right to go abroad except according to the procedure established by law and since no law had been made by the State regulating or prohibiting the exercise of such right, the refusal of passport was in violation of Article 21 and moreover the discretion with the executive in the matter of issuing or refusing passport being unchannelled and arbitrary, it was plainly violative of Article 14 and hence the order refusing passport to the petitioner was also invalid under that Article. This decision was accepted by
Parliament and the infirmity pointed out by it was set right by the enactment of the Passports
Act, 1967. This Act, as its preamble shows, was enacted to provide for the issue of passports and travel documents to regulate the departure from India of citizens of India and other persons and for incidental and ancillary matters. … [Section 6] Sub-section (3) provides that the passport authority may impound or cause to tie impounded or revoke a passport or travel document on the grounds set out in Clauses (a) to (h). The order impounding the passport in the present case was made by the Central Government under Clause (c) which reads as follows:(c) if the passport authority deems it necessary so to do in the interest of the
Sovereignty and Integrity of India, the security of India, friendly relations of
India with any foreign country, or in the interests of the general public;
The particular ground relied upon for making the order was that set out in the last part of
Clause (c), namely, that the Central Government deems it necessary to impound the passport
"in the interests of the general public." Then follows Sub-section (5) which requires the passport authority impounding or revoking a passport or travel document or varying or cancelling an endorsement made upon it to "record in writing a brief statement of the reasons for making such order and furnish to the holder of the passport or travel document on demand a copy of the same unless, in, any case, the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such a copy."
It was in virtue of the provision contained in the latter part of this sub-section that the
Central Government declined to furnish a copy of the statement of reasons for impounding the passport of the petitioner on the ground that it was not in the interests of the general public to furnish such copy to the petitioner. It is indeed a matter of regret that the Central
Government should have taken up this attitude in reply to the request of the petitioner to be supplied a copy of the statement of reasons, because ultimately, when the petition came to be filed, the Central Government did disclose the reasons in the affidavit in reply to the petition which shows that it was not really contrary to public interest and if we look at the reasons given in the affidavit in reply, it will be clear that no reasonable person could possibly have
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taken the view that the interests of the general public would be prejudiced by the disclosure of the reasons. This is an instance showing how power conferred on a statutory authority to act in the interests of general public can sometimes be improperly exercised. If the petitioner had not filed the petition, she would perhaps never have been able to find out what were the reasons for which her passport was impounded and she was deprived of her right to go abroad.
The necessity of giving reasons has obviously been introduced in Sub-section (5) so that it may act as a healthy check against abuse or misuse of power. If the reasons given are not relevant and there is no nexus between the reasons and the ground on which the passport has been impounded, it would be open to the holder of the passport to challenge the order impounding it in a court of law and if the court is satisfied that the reasons are extraneous or irrelevant, the court would strike down the order. This liability to be exposed to judicial scrutiny would by itself act as a safeguard against improper or mala fide exercise of power.
The court would, therefore, be very slow to accept, without close scrutiny, the claim of the passport authority that it would not be in the interests of the general public to disclose the reasons. The passport authority would have to satisfy the court by placing proper material that the giving of reasons would be clearly and indubitably against the interests of the general public; and if the Court is not so satisfied, the Court may require the passport authority to disclose the reasons, subject to any valid and lawful claim for privilege which may be set up on behalf of the Government. Here in the present case, as we have already pointed out, the
Central Government did initially claim that it would be against the interests of the general public to disclose the reasons for impounding the passport, but when it came to filing the affidavit in reply, the Central Government very properly abandoned this unsustainable claim and disclosed the reasons. The question whether these reasons have any nexus with the interests of the general public or they are extraneous and irrelevant is a matter which we shall examine when we deal with the arguments of the parties. Meanwhile, proceeding further with the resume of the relevant provisions, reference may be made to Section 11 which provides for an appeal inter alia against, the order impounding or revoking a passport or travel document under Sub-section (3) of Section 10. But there is a proviso to this section which says that if the order impounding or revoking a passport or travel document is passed by the
Central Government, there shall be no right to appeal. These are the relevant provisions of the
Act in the light of which we have to consider the constitutionality of Sub-section (3)(c) of
Section 10 and the validity of the order impounding the passport of the petitioner.
… The first contention urged on behalf of the petitioner in support of the petition was that the right to go abroad is part of ‘personal liberty’ within the meaning of that expression as used in Article 21 and no one can be deprived of this right except according to the procedure prescribed by law. There is no procedure prescribed by the Passport Act, 1967 far impounding or revoking a passport and thereby preventing the holder of the "passport from going abroad and in any event, even if some procedure can be traced in the relevant provisions "of the Act, it is unreasonable and arbitrary, inasmuch as it does not provide for giving an opportunity to the holder of the passport to be heard against the making of the order and hence the action of the Central Government in impounding the passport of the petitioner is in violation of
Article 21. This contention of the petitioner raises a question as to the true interpretation of
Article 21, what is the nature and extent of the protection afforded by this article?
What is the meaning of ‘personal liberty’: does it include the right to go abroad so that this right cannot be abridged or taken away except in accordance with the procedure prescribed by law? What is the inter-relation between Article 14 and Article 21? Does Article 21 merely require that there must be some semblance of procedure, howsoever arbitrary or fanciful, prescribed by law before a person can be deprived of his personal liberty or that the procedure must satisfy certain requisites in the sense that it must be fair and reasonable?
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Article 21 occurs in Part III of the Constitution which confers certain fundamental rights.
… These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a " 'pattern of guarantees on the basic-structure of human lights" and impose negative obligations on the State not to encroach on individual liberty in its various dimensions.
… It is obvious that Article 21, though couched in negative language, confers the fundamental right to life and personal liberty. So far as the right to personal liberty is concerned, it is ensured by providing that no one shall be deprived of personal liberty except according to procedure prescribed by law. The first question that arises for consideration on the language of Article 21 is: what is the meaning and content of the words ‘personal liberty’ as used in this article? This question incidentally came up for discussion in some of the judgments in A. K. Gopalan v. State of Madras [1950] S.C.R. 88 and the observations made by Patanjali Sastri, J., Mukherjee, J., and S. R. Das, J., seemed to place a narrow interpretation on the words ‘personal liberty’ so as to confine the protection of Article 21 to freedom, of the person against unlawful detention. But there was no definite pronouncement made on this point since the question before the Court was not so much the interpretation of the words
‘personal liberty’ as the inter-relation between Article 19 and 21.
It was in Kharak Singh v. State of U.P. 1963 Cri L.J. 329 that the question as to the proper scope and meaning of the expression 'personal liberty ' came up pointedly for consideration for the first time before this Court. The majority of the Judges took the view that 'personal liberty ' is used in the article as a compendious term, to include within itself all the varieties of rights which go to make up the 'personal liberties ' of man other than those dealt with in the several clauses of Article 19(1). In other words, while Article 19(1) deals with particular species or attributes, of that freedom, 'personal liberty ' in Article 21 takes in and comprises the residue.
The minority judges, however, disagreed with this view taken by the majority and explained their position in the following words: "No doubt the expression 'personal liberty ' is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression 'personal liberty ' in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental, right of life and personal liberty bas many attributes and some of them are found in Article 19. If a person 's fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 39(1) are concerned".
There can be no doubt that in view of the decision of this Court in R. C. Cooper v. Union of India [1973] 3 S.C.R. 530 the minority view must be regarded as correct and the majority view must be held to have been overruled. We shall have occasion to analyse and discuss the decision in R. C. Cooper a little later when we deal with the arguments based on infraction of
Articles 19(1)(a) and19(1)(g), but it is sufficient to state for the present that according to this decision, which was a decision given by the full Court, the fundamental rights conferred by
Part III are not distinct and mutually exclusive rights. Each freedom has different dimensions and merely because the limits of interference with one freedom are satisfied, the Law is not freed from the necessity to meet the challenge of another guaranteed freedom.
The decision in A. K. Gopalan gave rise to the theory that the freedoms under
Articles 19, 21, 22 and 31 are exclusive - each article enacting a code relating to the protection of distinct rights, but this theory was over-turned in R. C. Cooper where Shah, J., speakingon behalf of the majority pointed out that "Part III of the Constitution weaves a pattern of
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guarantees on the texture of basic human rights. The guarantees delimit the protection of those rights in their allotted fields: they do not attempt to enunciate-distinct rights." The conclusion was summarised in these terms: "In our judgment, the assumption in A. K. Gopalan that certain articles in the Constitution exclusively deal with specific matters cannot be accepted as correct". It was held in R. C. Cooper and that is clear from the judgment of Shah, J., because
Shah, J., in so many terms disapproved of the contrary states merit of law contained in the opinions of Kania, C.J., Patanjali Sastri, J., Mahajan, J., Mukherjee, J., and S. R. Das, J., in A.
K. Gopalan that even where a person is detained in accordance with the procedure prescribed by law, as mandated by Article 21, the protection conferred by the various clauses of
Article 19(1) does not cease to be available to him and the law authorising such detention has to satisfy the test of the applicable freedom under Article 19, Clause (1). This would clearly show that Articles 19(1) and 21 are not mutually exclusive, for, if they were, there would be no question of a law depriving a person of personal liberty within the meaning of Article 21 having to meet the challenge of a fundamental right under Article 19(1). Indeed, in that event, a law of preventive detention which deprives a person of 'personal liberty ' in the narrowest sense, namely, freedom from detention and thus falls indisputably within Article 21 would not require to be tested on the touchstone of Clause (d) of Article 19(1) and yet it was held by a
Bench of seven Judges, of this Court in Shambhu Nath Sarkar v. State of West Bengal, [1973]
1 SCR 856 that such a law would have to satisfy the requirement inter alia of Article 19(1),
Clause (d) and in Haradhan Saha v. State of West Bengal, 1974 Cri L.J. 1479, which was a decision given by a Bench of five judges, this Court considered the challenge of Clause (d) of
Article 19(f) to the constitutional validity of the Maintenance of Internal Security Act, 1971 and held that that Act did not violate the constitutional guarantee embodied in that article.
It is indeed difficult to see on what principle we can refuse to give its plain natural meaning to the expression 'personal liberty ' as used in Article 21 and read it in a narrow and restricted sense so as to exclude those attributes of personal liberty which are specifically dealt with in
Article 19. We do not think that this would be a correct way of interpreting the provisions of the Constitution conferring fundamental rights. The attempt of the court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction. The wave length for comprehending the scope and ambit of the fundamental rights has been set by this Court in R. C. Cooper and our approach in the interpretation of the fundamental rights must now be in tune with this wave length. … The expression 'personal liberty ' in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19,
Now, it has been held by this Court in Satwant Singh that 'personal liberty ' within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law. Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh was struck down as invalid. It will be seen at once from the language of Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive interference which is not supported by law; and law here means 'enacted law ' or 'State Law '. …
Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passports Act, 1967 that is lays down the circumstances under which a passport may be issued or refused or cancelled or impounded
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and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21. Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned Attorney General who with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law. There was some discussion in A. K. Gopalan 's case in regard to the nature of the procedure required to be prescribed under Article 21 and at least three of the learned Judges out of five expressed themselves strongly in favour of the view that the procedure cannot be any arbitrary, fantastic or oppressive procedure. Fazal Ali, J., who was in a minority, went to the farthest limit in saying that the procedure must include the four essentials set out in Prof. Willi 's book on
Constitutional Law, namely, notice, opportunity to be heard, impartial tribunal and ordinary course of procedure. Patanjali Sastri, J. did not go as far as that but he did say that "certain basic principles emerged as the constant factors known to all those procedures and they formed the core of the procedure established by law." Mahajan, J., also observed that
Article 21 requires that "there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty" and "it negatives the idea of fantastic, arbitrary and oppressive forms of proceedings". But apart altogether from these observations in A. K. Gopalan, which have great weight, we find that even on principle the concept of reasonableness must be projected in the procedure contemplated by Article 21, having regard to the impact of Article 14 on Article 21.
The inter-relationship between Articles 14, 19 and 21
We may at this stage consider the inter-relation between Article 21 on the one hand and
Articles 14 and 19 on the other. We have already pointed out that the view taken by the majority in A. K. Gopalan was that so long as a law of preventive detention satisfies the requirements of Article 22, it would be within the terms of Article 21 and it would not be required, to meet the challenge of Article 19. This view proceeded on the assumption that
"certain articles in the Constitution exclusively deal with specific matters" and where the requirements of an article dealing with the particular matter in question are satisfied and there is no infringement of the fundamental right guaranteed by that article, no recourse can be had to a fundamental right conferred by another article. This doctrine of exclusivity was seriously questioned in R. C. Cooper and it was over-ruled by a majority of the Full Court, only Ray,
J., as he then was, dissenting. The majority judges held that though a law of preventive detention may pass the test of Article 22, it has yet to satisfy the requirements of other fundamental rights such as Article 19.
… Now, if a law depriving a person of ' 'personal liberty ' and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given, situation, ex hypothesi it must also be liable to be tested with reference to Article 14.
The nature and requirement of the procedure under Article 21
Now, the question immediately arises as to what is the requirement of Article 14: what is the content and reach of the great equalising principle enunciated in this article? …
Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment.
The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades. Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the best of reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary,
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fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of
Article 21 would not be satisfied.
………
The question immediately arises: does the procedure prescribed by the Passports Act,
1967 for impounding a passport meet the test of this requirement? Is it ‘right or fair or just’?
The argument of the petitioner was that it is not, because it provides for impounding of a passport without affording reasonable opportunity to the holder of the passport to be heard in defence. To impound the passport of a person, said the petitioner, is a serious matter, since it prevents him from exercising his constitutional right to go abroad and such a drastic consequence cannot in fairness be visited without observing the principle of audi alterant partem. Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of
Article 21. Now, it is true that there is no express provision in the Passports Act, 1967 which requires that the audi alteram partem rule should be followed before impounding a passport, but that is not conclusive of the question. If the statute makes itself clear on this point, then no more question arises. But even when the statute is silent, the law may in a given case make an implication and apply the principle stated by Bytes, J., in Cooper v. Wandsworth Board of
Works [1863] 14C B.N.S. 180. "A long course of decisions, beginning with Dr. Bentley 's case and ending with some very recent cases, establish that, although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission off the legislature". The principle of audi alterant partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice. In fact, there are two main principles in which the rules of natural justice are manifested, namely,
Nemo Judex in Sua Causa and audi alterant partem. We are not concerned here with the former, since there is no case of bias urged here. The question is only in regard to the right of hearing which involves the audi alterant partem rule. Can it be imported in the procedure for impounding a passport?
We may commence the discussion of this question with a few general observations to emphasise the increasing importance of natural justice in the field of administrative law.
Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. …
The aim of both administrative inquiry as well as quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice, or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasijudicial inquiry and not to administrative inquiry. It must logically apply to both. On what principle can distinction be made between one and the other? Can it be said; that the requirement of 'fair play it action ' is any the less in an administrative inquiry than in a quasijudicial one? Sometimes an unjust decision in an administrative inquiry may have far more serious consequences than a decision in a quasi-judicial inquiry and hence the rules of natural justice must apply equally in an administrative inquiry which entails civil consequences. There was, however, a time in the early stages of the development of the doctrine of natural justice when the view prevailed that the rules of natural justice have application only to a quasijudicial proceeding as distinguished from an administrative proceeding and the distinguishing feature of a quasi-judicial proceeding is that the authority concerned is required by the law under which it is functioning to act judicially. … The Court was constrained, in every case that came before it, to make a search for the duty to act judicially sometimes from tenuous
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material and sometimes in the services of the statute and this led to over-subtlety and overrefinement resulting in confusion and uncertainty in the law. But this was plainly contrary to the earlier authorities and in the epoch-making decision of the House of Lords in Ridge v.
Baldwin [1964] A.C. 40, which marks a turning point in the history of the development of the doctrine of natural justice. ... Lord Reid observed: "If Lord Hewart meant that it is never enough that a body has a duty to determine what the rights of an individual should be, but that there must always be something more to impose on it a duty to act judicially, then that appears to me impossible to reconcile with the earlier authorities". The learned law Lord held that the duty to act judicially may arise from the very nature of the function intended to be performed and it need not be shown to be superadded. … This development in the law had its parallel in
India in the Associated Cement Companies v. P. N. Sharma, (1965) I LLJ 433 (SC) where this
Court approvingly referred to the decision in Ridge v. Baldwin and, later in State of Orissa
v. Dr. Binapani, (1967) II LLJ 266 (SC) observed that: "If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power". This Court also pointed out in A.K. Kraipak v. Union of India, [1970] 1 SCR 457 another historic decision in this branch of the law, that in recent years the concept of quasijudicial power has been undergoing radical change and said: "The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated, for determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised".
The net effect of these and other decisions was that the duty to act judicially need not be superadded, but it may be spelt out from the nature of the power conferred, the manner of exercising it and its impact on the rights of the person effected and where it is found to exist, the rules of natural justice would be attracted.
This was the advance made by the law as a result of the decision in Ridge v. Baldwin in
England and the decision in Associated Cement Companies and other cases following upon it, in India. But that was not to be the end of the development of the law on this subject. The proliferation of administrative law provoked considerable fresh thinking on the subject and soon it came to be recognised that ‘fair play in action’ required that in administrative proceeding also, the doctrine of natural justice must be held to be applicable. We have already discussed this aspect of the question on principal and shown why no distinction can be made between an administrative and a quasi-judicial proceeding for the purpose of applicability of the doctrine of natural justice.
… Now, here, the power conferred on the Passport Authority is to impound a passport and the consequence of impounding a passport would be to impair the constitutional right of the holder of the passport to go abroad during the time that the passport is impounded.
Moreover, a passport can be impounded by the Passport Authority only on certain specified grounds set out in Sub-section (3) of Section 10 and the Passport Authority would have to apply its mind to the facts and circumstances of a given case and decide whether any of the specified grounds exists which would justify impounding of the passport. The Passport
Authority is also required by Sub-section (5) of Section 10 to record in writing a brief statement of the reasons for making an order impounding a passport and, save in certain exceptional situations, the Passport Authority is obliged to furnish a copy of the statement of reasons to the holder of the passport. Where the Passport Authority which has impounded a passport is other than the Central Government, a right of appeal against the order impounding the passport is given by Section 11, and in the appeal, the validity of the reasons given by the
Passport Authority for impounding the passport can be canvassed before the Appellate
Authority. It is clear on a consideration of these circumstances that the test laid down in the
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decisions of this Court for distinguishing between a quasi-judicial power and an administrative power is satisfied and the power conferred on the Passport Authority to impound a passport is quasi-judicial power. The rules of natural justice would, in the circumstances, be applicable in the exercise of the power of impounding a passport even on the orthodox view which prevailed prior to A. K. Kraipak. The same result must follow in view of the decision in A. K.
Kraipak, even if the power to impound a passport were regarded as administrative in character, because it seriously interferes with the constitutional right of the holder of the passport to go abroad and entails adverse civil consequences.
Now, as already pointed out, the doctrine of natural justice consists principally of two rules, namely… no one shall be a judge in his own cause, and audi alterant partem: no decision shall be given against a party without affording him a reasonable hearing. We are concerned here with the second rule and hence we shall confine ourselves only to a discussion of that rule. The learned Attorney General, appearing on behalf of the Union of India, fairly conceded that the audi alteram partem rule is a highly effective tool devised by the courts to enable a statutory authority to arrive at a just decision and it is calculated to act-as a healthy check on abuse or misuse of power and hence its reach should not be narrowed and its applicability circumscribed. He rightly did not plead for reconsideration of the historic advances made in the law as a result of the decisions of this Court and did not suggest that the Court should retrace its steps. That would indeed have been a most startling argument coming from the
Government of India and for the Court to accede to such an argument would have been so act of utter retrogression. But fortunately no such argument was advanced by the learned Attorney
General.
What he urged was a very limited contention, namely that having regard to the nature of the action involved in the impounding of a passport, the audi alteram partem rule must be held to be excluded, because if notice were to be given to the holder of the passport and reasonable opportunity afforded to him to show cause why his passport should not be impounded, he might immediately, on the strength of the passport, make good his exit from the country and the object of impounding the passport would be frustrated. The argument was that if the audi alteram partem rule were applied, its effect would be to stultify the power of impounding the passport and it would defeat and paralyse the administration of the law and hence the audi alteram partem rule cannot in fairness be applied while exercising the power to impound a passport. … Now, it is true that since the right to prior notice and opportunity of hearing arises only by implication from the duty to act fairly… it may equally be excluded where, having regard to the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provision, fairness in action does not demand its implication and even warrants its exclusion. There are certain well recognised exceptions to the audi alteram partem rule established by judicial decisions… Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same time it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. It is a wholesome rule designed to secure the rule of law and the court should not be too ready to eschew it in its application to a given case. True it is that in questions of this kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded. The
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court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that "natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances". The audi alteram partem rule is not cast in a rigid mold and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise. …
What opportunity may be regarded as reasonable would necessarily depend on the practical necessities of the situation. It may be a sophisticated full-fledged hearing or it may be a hearing which is very brief and minimal: it may be a hearing prior to the decision or it may even, be a post-decisional remedial hearing. The audi alteram partem rule is sufficiently flexible to permit modifications and variations to suit the exigencies of myriad kinds of situations which may arise. This circumstantial flexibility of the audi alteram partem rule was emphasised by Lord Reid in, Wiseman v. Someman (supra) when he said that he would be
"sorry to see this fundamental general principle degenerate into a series of hard and fast rules" and Lord Hailsham, L.C., also observed in Pearl-Berg v. Party [1971] 1 LR.728 that the courts
"have taken in increasingly sophisticated view of what is required in individual cases". It would not, therefore, be right to conclude that the audi alteram partem rule is excluded merely because the power to impound a passport might be frustrated, if prior notice and hearing were to be given to the person concerned before impounding his passport.
The Passport Authority may proceed to impound the passport without giving any prior opportunity to the person concerned to be heard, but as soon as the order impounding the passport is made, and opportunity of hearing, remedial in aim, should be given to him so that he may present his case and controvert that of the Passport Authority and point out why his passport should not be impounded and the order impounding it recalled. This should not only be possible but also quite appropriate, because the reasons for impounding the passport are required to be supplied by the Passport Authority after the making of the order and the person affected would, therefore, be in a position to make a representation setting forth his case and plead for setting aside the action impounding his passport. A fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice and a provision requiring giving of such opportunity to the person concerned can and should be read by implication in the Passports Act, 1967. If such a provision were held to be incorporated in the Passports Act, 1967 by necessary implication, as we hold it must be, the procedure prescribed by the Act for impounding a passport would be right, fair and just and it would not suffer from the vice of arbitrariness or unreasonableness. We must, therefore, hold that the procedure 'established ' by the Passports Act, 1967 for impounding a passport is in conformity with the requirement of Article 21 and does not fall foul of that article. But the question then immediately arises whether the Central Government has complied with this procedure in impounding the passport of the Petitioner. Now, it is obvious and indeed this could not be controverted, that the Central Government not only did not give an opportunity of hearing to the petitioner after making the impugned order impounding her passport but even declined to furnish to the petitioner the reasons for impounding her passport despite request made by her. We have already pointed out that the Central Government was wholly unjustified in withholding the reasons for impounding the passport from the petitioner and this was not only in breach of the statutory provision, but it also amounted to denial of opportunity of hearing to the petitioner. The order impounding the passport of the petitioner was, therefore, clearly in violation of the rule of natural justice embodied in the maxim audi alterant partem and it was not in conformity with the procedure prescribed by the Passports
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Act, 1967. Realising that this was a fatal defect which would void the order impounding the passport, the learned Attorney-General made a statement on behalf of the Government of India to the following effect:
The Government is agreeable to considering any representation that may be made by the petitioner in respect of the impounding of her passport and giving her an opportunity in the matter. The opportunity will be given within two weeks of the receipt of the representation. It is clarified that in the present case the grounds for impounding the passport are those mentioned in the affidavit in reply dated 18th August, 1977 of Shri Ghosh except those mentioned in para 2(xi).
The representation of the petitioner will be dealt with expeditiously in accordance with law.
This statement removes the vice from the order impounding the passport and it can no longer be assailed on the ground that it does not comply with the audi alteram partem rule or is not in accord with the procedure prescribed by the Passports Act, 1967.
………
LIFE AND PERSONAL LIBERTY
FRANSCIS CORALIE MULLIN V. ADMINISTRATOR, UNION TERRITORY OF DELHI
AIR 1981 SC 746, (1981) 1 SCC 608
Decided On: January 13, 1981
BENCH – JUSTICE P. N. BHAGWATI & S. M. FAZAL ALI
JUSTICE BHAGWATI (for the Court)
This petition under Article 32 of the Constitution raises a question in regard of the right of a detenu under the Conservation of Foreign Exchange & Prevention of Smuggling
Activities Act (hereinafter referred to as COFEPOSA Act) to have interview with a lawyer and the members of his family. The facts giving rise to the petition are few and undisputed and may be briefly stated as follows:
The petitioner, who is a British national, was arrested and detained in the Central Jail,
Tihar under an Order dated 23rd November 1979 issued under Section 3 of the COFEPOSA
Act. She preferred a petition in this Court for a writ of habeas corpus challenging her detention, but by a judgment delivered by this Court on 27th February 1980, her petition was rejected with the result that she continued to remain under detention in the Tihar Central Jail. Whilst under detention, the petitioner experienced considerable difficulty in having interview with her lawyer and the members of her family. Her daughter aged about five years and her sister, who was looking after the daughter, were permitted to have interview with her only once in a month and she was not allowed to meet her daughter more often, though a child of very tender age. It seems that some criminal proceeding was pending against the petitioner for attempting to smuggle hashish out of the country and for the purpose of her defence in such criminal proceeding, it was necessary for her to consult her lawyer, but even her lawyer found it difficult to obtain an interview with her because in order to arrange an interview, he was required to obtain prior appointment from the District Magistrate, Delhi and the interview could take place only in the presence of a Customs Officer nominated by the Collector of
Customs. This procedure for obtaining interview caused considerable hardship and inconvenience and there were occasions when, even after obtaining prior appointment from the District Magistrate, Delhi, her lawyer could not have an interview with her since no
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Customs Officer nominated by the Collector of Customs remained present at the appointed time. The petitioner was thus effectively denied the facility of interview with her lawyer and even her young daughter 5 years old could not meet her except once in a month. This restriction on interviews was imposed by the Prison Authorities by virtue of Clause 3 (b) Subclauses (i) and (ii) of the Conditions of Detention laid down by the Delhi Administration under an Order dated 23rd August 1975 issued in exercise of the powers conferred under Section 5 of the COFEPOSA Act. These two sub-clauses of Clause 3(b) provided inter alia as under:
The conditions of detention in respect of classification and interviews shall be as under: (a) …
(b) Interviews : Subject to the direction issued by the Administrator from time to time, permission for the grant of interviews with a detenu shall be granted by the
District Magistrate, Delhi as under :(i) Interview with legal adviser:
Interview with legal adviser in connection with defence of a detenu in a criminal case or in regard to writ petitions and the like, may be allowed by prior appointment, in the presence of an officer of Customs/Central
Excise/Enforcement to be nominated by the local Collector of Customs/Central
Excise or Deputy Director of Enforcement who sponsors the case for detention.
(ii) Interview with family members:
A monthly interview may be permitted for members of the family consisting of wife, children or parents of the detenu…
The petitioner, therefore, preferred a petition in this Court under Article 32 challenging the constitutional validity of Sub-clauses (i) and (ii) of Clause 3(b) of the Conditions of
Detention Order and praying that the Administrator of the Union Territory of Delhi and the
Superintendent of Tihar Central Jail be directed to permit her to have interview with her lawyer and the members of her family without complying with the restrictions laid down in those sub-clauses.
The principal ground on which the constitutional validity of Sub-clauses (i) and (ii) of
Clause 3(b) of the Conditions of Detention Order was challenged was that these provisions were violative of Articles 14 and 21 of the Constitution inasmuch as they were arbitrary and unreasonable. It was contended on behalf of the petitioner that allowing interview with the members of the family only once in a month was discriminatory and unreasonable, particularly when undertrial prisoners were granted the facility of interview with relatives and friends twice in a week under Rule 559A and convicted prisoners were permitted to have interview with their relatives and friends once in a week under Rule 550 of the Rules set out in the
Manual for the Superintendence and Management of Jails in the Punjab. The petitioner also urged that a detenu was entitled under Article 22 of the Constitution to consult and be defended by a legal practitioner of his choice and she was, therefore entitled to the facility of interview with a lawyer whom he wanted to consult or appear for him in a legal proceeding and the requirement of prior appointment for interview and of the presence of a Customs or Excise
Officer at the interview was arbitrary and unreasonable and therefore violative of Articles 14 and 21. The respondents resisted the contentions of the petitioner and submitted that Subclauses (i) and (ii) of Clause 3(b) were not violative of Articles 14 and 21, since the restrictions imposed by them were reasonable, fair and just, but stated that they would have no objection if instead of a monthly interview, the petitioner was granted the facility of interview with her daughter and sister twice in a week as in the case of undertrial prisoners and so far as interview with the lawyer is concerned, they would not insist on the presence of a customs or excise officer at the interview. Though these two concessions were made on behalf of the respondents
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at the hearing of the petition before us, the question still remains whether Sub-clause (i) and
(ii) of Clause 3(b) are valid and it is necessary that we should examine this question in the context of our constitutional values, since there are a large number of detenus under the
COFEPOSA Act and the conditions of their detention in regard to interviews must be finally settled by this Court.
Now it is necessary to bear in mind the distinction between 'preventive detention ' and punitive detention ', when we are considering the question of validity of conditions of detention. There is a vital distinction between these two kinds of detention. 'Punitive detention ' is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence, while 'preventive detention ' is not by way of punishment at all, but it is intended to pre-empt a person from indulging in conduct injurious to the society. The power of preventive detention has been recognised as a necessary evil and is tolerated in a free society in the larger interest of security of the State and maintenance of public order. It is a drastic power to detain a person without trial and there are many countries where it is not allowed to be exercised except in times of war or aggression. Our Constitution does recognise the existence of this power, but it is hedged-in by various safeguards set out in Articles 21 and 22.
Article 22 in Clauses (4) to (7), deals specifically with safeguards against preventive detention and any law of preventive detention or action by way of preventive detention taken under such law must be in conformity with the restrictions laid down by those clauses on pain of invalidation. But apart from Article 22, there is also Article 21 which lays down restrictions on the power of preventive detention.
Until the decision of this Court in Maneka Gandhi v. Union of India [1979] 2 SCR 338, a very narrow and constricted meaning was given to the guarantee embodied in Article 21 and that article was understood to embody only that aspect of the rule of law, which requires that no one shall be deprived of his life or personal liberty without the authority of law. It was construed only as a guarantee against executive action unsupported by law. So long as there was some law, which prescribed a procedure authorising deprivation of life or personal liberty, it was supposed to meet the requirement of Article 21. But in Maneka Gandhi, this Court for the first time opened-up a new dimension of Article 21 and laid down that Article 21 is not only a guarantee against executive action unsupported by law, but is also a restriction on law making. It is not enough to secure compliance with the prescription of Article 21 that there should be a law prescribing some semblance of a procedure for depriving a person of his life or personal liberty, but the procedure prescribed by the law must be reasonable, fair and just and if it is not so, the law would be void as violating the guarantee of Article 21.
This Court expanded the scope and ambit of the right to life and personal liberty enshrined in Article 21 and sowed the seed for future development of the law enlarging this most fundamental of Fundamental Rights. This decision in Maneka Gandhi became the starting point-the-spring-board-for a most spectacular evolution of the law culminating in the decisions in M.O. Hoscot v. State of Maharashtra 1978 Cri L.J. 1678 , Hussainara Khatoon 's case 1979 Cri L.J. 1036 , the first Sunil Batra case 1978 Cri L.J. 1741 and the second Sunil
Batra case 1978 Cri L.J. 1741.
The position now is that Article 21 as interpreted in Maneka Gandhi requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful and it is for the Court to decide in the exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure, which is reasonable, fair and just or it is otherwise. The law of preventive detention has therefore now to pass the test not only of Article 22, but also of Article 21 and if the constitutional validity of any such law is challenged, the Court would have to decide whether the procedure laid down by such
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law for depriving a person of his personal liberty is reasonable, fair and just. But despite these safeguards laid down by the Constitution and creatively evolved by the Courts, the power of preventive detention is a frightful and awesome power with drastic consequences affecting personal liberty, which is the most cherished and prized possession of man in a civilised society. It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused. It must always be remembered that preventive detention is qualitatively different from punitive detention and their purposes are different. In case of punitive detention, the person concerned is detained by way of punishment after he is found guilty of wrong doing as a result of trial where he has the fullest opportunity to defend himself, while in case of preventive detention, he is detained merely on suspicion with a view to preventing him from doing harm in future and the opportunity that he has for contesting the action of the Executive is very limited. Having regard to this distinctive character of preventive detention, which aims not at punishing an individual for a wrong done by him, but at curtailing his liberty with a view to pre-empting his injurious activities in future, it has been laid down by this Court in Sampat Prakash v. State of Jammu and Kashmir 1969 Cri L.J. 1555 "that the restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal."
The question which then arises is whether a person preventively detained in a prison has any rights which he can enforce in a Court of law. Once his freedom is curtailed by incarceration in a jail, does he have any fundamental rights at all or does he leave them behind, when he enters the prison gate? The answer to this question is no longer res integra. It has been held by this Court in the two Sunil Batra cases that "fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration." The prisoner or detenu has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration. Even before the two Sunil Batra cases, this position was impliedly accepted in
State of Maharashtra v. Prabhakar Sanzgiri 1966 Cri L.J. 311 and it was spelt-out clearly and in no uncertain terms by Chandrachud, J. as he then was, in D.B. Patnaik v. State of Andhra
Pradesh 1975 Cri L.J. 556:
Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails to by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to "practise" a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise, even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law.
This statement of the law was affirmed by a Bench of five Judges of this Court in the first
Sunil Batra case and by Krishna Iyer, J. speaking on behalf of the Court in the second Sunil
Batra case. Krishna Iyer, J. in the latter case proceeded to add in his characteristic style; "The jurisdictional reach and range of this Court 's writ to hold prison caprice and cruelty in constitutional leash is incontestable" and concluded by observing; "Thus it is now clear law that a prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through 'writ ' aid. The Indian human has a constant companion-the Court armed with the Constitution." It is interesting to note that the Supreme Court of the United States has also taken the same view in regard to rights of prisoners. Mr. Justice Douglas struck a humanistic note when he said in Eve Pall case 417 U.S. 817:
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Prisoners are still persons entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirements of due process.
So also in Charles Wolff case 41 L. Ed. 935, Mr. Justice White made the same point in emphatic terms.
But, though his rights may be diminished by environment, a prisoner is not wholly stripped off constitutional protections, when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country.
Mr. Justice Douglas reiterated his thesis when he asserted:
Every prisoner 's liberty i.e. of courses, circumscribed by the very fact of his confinement, but his interest in the limited liberty left to him is then only the more substantial. Conviction of a crime does not render one a non-person whose rights are subject to the whim of the prison administration, and therefore, the imposition of any serious punishment within the system requires procedural safeguards.
Mr. Justice Marshall also expressed himself clearly and explicitly in the same terms:
I have previously stated my view that a prisoner does not shed his basic constitutional rights at the prison gate, and I fully support the court 's holding that the interest of inmates in freedom from imposition of serious discipline is a 'liberty ' entitled to due process protection.
What is stated by these learned Judges in regard to the rights of a prisoner under the
Constitution of the United States applies equally in regard to the rights of a prisoner or detenu under our constitutional system. It must, therefore, now be taken to be well-settled that a prisoner or detenu is not stripped of his fundamental or other legal rights, save those which are inconsistent with his incarceration, and if any of these rights are violated, the Court which is to use the words of Krishna Iyer, J., "not a distant abstraction omnipotent in the books but an activist institution which is the cynosure of public hope," will immediately spring into action and run to his rescue.
We must therefore proceed to consider whether any of the Fundamental Rights of the detenu are violated by Sub-clauses (i) and (ii) of Clause 3(b) so as to result in their invalidation wholly or in part. We will first take up for consideration the Fundamental Right of the detenu under Article 21 because that is a Fundamental Right which has, after the decision in Maneka
Gandhi, a highly activist magnitude and it embodies a constitutional value of supreme importance in a democratic society. It provides that no one shall be deprived of his life or personal liberty except according to procedure established by law and such procedure shall be reasonable fair, and just.
Now what is the true scope and ambit of the right to life guaranteed under this Article?
While arriving at the proper meaning and content of the right to life, we must remember that it is a constitutional provision which we are expounding and moreover it is a provision enacting a Fundamental right and the attempt of the court should always be to expand the reach and ambit of the fundamental right rather than to attenuate its meaning and content. The luminous guideline in the interpretation of a constitutional provision is provided by the
Supreme Court of United States in Weems v. U.S. 54 L. Ed. 801:
Legislation, both statutory and constitutional is enacted, it is true, from an experience of evils, but-its general language should not, therefore, be necessarily confined to the form that evil had, therefore taken. Time works changes, brings into existence new conditions and purposes. Therefore, a principle, to be vital, must be capable of wider application than mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments designed to meet passing occasions. They are, to use the words of Chief Justice Marshall,
"designed to approach immorality as nearly as human institutions can approach
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it" The future is their care, and provisions for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule a Constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into important and lifeless formulas. Rights declared in the words might be lost in reality. And this has been recognised. The meaning and vitality of the Constitution have developed against narrow and restrictive construction.
This principle of interpretation which requires that a Constitutional provision must be construed, not in a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the Constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challenges, applies with greater force in relation to a fundamental right enacted by the Constitution. The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person.
Now obviously, the right to life enshrined in Article 21 can not be restricted to mere animal existence. It means something much more than just physical survival. In Kharak Singh
v. State of Uttar Pradesh [1964] 1 S.C.R. 232 Subba Rao J. quoted with approval the following passage from the judgment of Field, J. in Munn v. Illinois [1877] 94 U.S. 113 to emphasize the quality of life covered by Article 21: “By the term "life" as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world” and this passage was again accepted as laying down the correct law by the Constitution Bench of this
Court in the first Sunil Batra case. Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiorari, this would include the faculties of thinking and feeling.
Now deprivation which is inhibited by Article 21 may be total or partial, neither any limb or faculty can be totally destroyed nor can it be partially damaged. Moreover it is every kind of deprivation that is hit by Article 21, whether such deprivation be permanent or temporary and, furthermore, deprivation is not an act which is complete once and for all: it is a continuing act and so long as it lasts, it must be in accordance with procedure established by law. It is therefore clear that any act which damages or injures or interferes with the use of, any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of
Article 21.
But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights.
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Now obviously, any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21. It would thus be seen that there is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the International Covenant on Civil and
Political Rights. This right to live which is comprehended within the broad connotation of the right to life can concededly be abridged according to procedure established by law and therefore when a person is lawfully imprisoned, this right to live is bound to suffer attenuation to the extent to which it is incapable of enjoyment by reason of incarceration. The prisoner or detenu obviously cannot move about freely by going outside the prison walls nor can he socialise at his free will with persons outside the jail. But, as part of the right to live with human dignity and therefore as a necessary component of the right to life, he would be entitled to have interviews with the members of his family and friends and no prison regulation or procedure laid down by prison regulation regulating the right to have interviews with the members of the family and friends can be upheld as constitutionally valid under Articles 14 and 21, unless it is reason able, fair and just.
The same consequence would follow even if this problem is considered from the point of view of the right to personal liberty enshrined in Article 21, for the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that Article. The expression 'personal liberty ' occurring in Article 21 has been given a broad and liberal interpretation in Maneka Gandhi and it has been held in that case that the expression 'personal liberty used in that Article is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and it also includes rights which "have been raised to the status of distinct Fundamental Rights and given additional protection under Article 19". There can therefore be no doubt that 'personal liberty ' would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non-arbitrary. If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, it would be liable to be struck down as invalid as being violative of Articles 14 and 21.
Now obviously, when an undertrial prisoner is granted the facility of interviews with relatives and friends twice in a week under Rule 559A and a convicted prisoner is permitted to have interviews with his relatives and friends once in a week under Rule 550, it is difficult to understand how Sub-clause (ii) of Clause 3(b) of the Conditions of Detention Order, which restricts the interview only to one in a month in case of a detenu, can possibly be regarded as reasonable and nonarbitrary, particularly when a detenu stands on a higher pedestal than an undertrial prisoner or a convict and, as held by this Court in Sampath Prakash (1978) 4 SCC
494 restrictions placed on a detenu must "consistent with the effectiveness of detention, be minimal." We would therefore unhesitatingly hold Sub-clause (ii) of Clause 3(b) to be violative of
Articles 14 and 21 in so far as it permits only one interview in a month to a detenu. We are of the view that a detenu must be permitted to have atleast two interviews in a week with relatives and friends and it should be possible for a relative or friend to have interview with the detenu at any reasonable hour on obtaining permission from the Superintendent of the Jail and it
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should not be necessary to seek the permission of the District Magistrate, Delhi, as the latter procedure would be cumbrous and unnecessary from the point of view of security and hence unreasonable. We would go so far as to say that even independently of Rules 550 and 559A, we would regard the present norm of two interviews in a week for prisoners as furnishing a criterion of what we would consider reasonable and non-arbitrary.
The same reasoning must also result in invalidation of Sub-clause (i) of Clause 3(b) of the
Conditions of Detention Order which prescribes that a detenu can have interview with a legal adviser only after obtaining prior permission of the District Magistrate, Delhi and the interview has to take place in the presence of an officer of Customs/Central
Excise/Enforcement to be nominated by the local Collector of Customs/Central Excise or
Deputy Director of Enforcement who has sponsored the case for detention. The right of a detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceeding but also for securing release from preventive detention of filing a writ petition or prosecuting any claim or proceeding, civil or criminal, is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable, fair and just procedure established by a valid law. A prison regulation may, therefore, regulate the right of a detenu to have interview with a legal adviser in a manner which is reasonable, fair and just but it cannot prescribe an arbitrary or unreasonable procedure for regulating such an interview and if it does so, it would be violative of Articles 14 and 21.
Now in the present case the legal adviser can have interview with a detenu only by prior appointment after obtaining permission of the District Magistrate, Delhi. This would obviously cause great hardship and inconvenience because the legal adviser would have to apply to the District Magistrate, Delhi well in advance and then also the time fixed by the
District Magistrate, Delhi may not be suitable to the legal adviser who would ordinarily be a busy practitioner and, in that event, from a practical point of view the right to consult a legal adviser would be rendered illusory. Moreover, the interview must take place in the presence of an officer of Customs/Central Excise/Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who has sponsored the detention and this too would seem to be an unreasonable procedural requirement because in order to secure the presence of such officer at the interview, the District Magistrate, Delhi would have to fix the time for the interview in consultation with the Collector of
Customs/Central Excise or the Deputy Director of Enforcement and it may become difficult to synchronise the time which suits the legal adviser with the time convenient to the concerned officer and furthermore if the nominated officer does not, for any reason, attend at the appointed time, as seems to have happened on quite a few occasions in the case of the petitioner, the interview cannot be held at all and the legal adviser would have to go back without meeting the detenu and the entire procedure for applying for an appointment to the
District Magistrate, Delhi would have to be gone through once again. We may point out that no satisfactory explanation has been given on behalf of the respondents disclosing the rationale of this requirement.
We are therefore of view that a Sub-clause (i) of Clause 3 (b) regulating the right of a detenu to have interview with a legal adviser of his choice is violative of Articles 14 and 21 and must be held to be unconstitutional and void. We think that it would be quite reasonable if a detenu were to be entitled to have interview with his legal adviser at any reasonable hour during the day after taking appointment from the Superintendent of the Jail, which appointment should be given by the Superintendent without any avoidable delay. We may add that the interview need not necessarily take place in the presence of a nominated officer of
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Customs/Central Excise/Enforcement but if the presence of such officer can be conveniently secured at the time of the interview without involving any postponement of the interview, then such officer and if his presence cannot be so secured, then any other Jail official may, if thought necessary, watch the interview but not so as to be within hearing distance of the detenu and the legal adviser.
We accordingly allow the writ petition and grant relief to the extent indicated above.
OLGA TELLIS V. BOMBAY MUNICIPAL CORPORATION
AIR 1986 SC 180, (1985) 3 SCC 545
Decided On: July 10, 1985
BENCH – CHIEF JUSTICE Y. V. CHANDRACHUD, JUSTICE S. M. FAZAL ALI, V. D.
TULZAPURKAR, O. CHINNAPPA REDDY & A. VARADARAJAN
CHIEF JUSTICE CHANDRACHUD (for the Court)
These Writ Petitions portray the plight of lakhs of persons who live on pavements and in slums in the city of Bombay. They constitute nearly half the population of the city. The first group of petitions relates to pavement dwellers while the second group relates to both pavement and Basti or Slum dwellers. Those who have made pavements their homes exist in the midst of filth and squalor, which has to be seen to be believed. Rabid dogs in search of stinking meat and cats in search of hungry rats keep them company. They cook and sleep where they ease, for no conveniences are available to them. Their daughters, come of age, bathe under the nosy gaze of passers by, unmindful of the feminine sense of bashfulness. The cooking and washing over, women pick lice from each other 's hair. The boys beg. Menfolk, without occupation, snatch chains with the connivance of the defenders of law and order; when caught, if at all, they say: "Who doesn 't commit crimes in this city?"
It is these men and women who have come to this Court to ask for a judgment that they cannot be evicted from their squalid shelters without being offered alternative accommodation.
They rely for their rights on Article 21 of the Constitution which guarantees that no person shall be deprived of his life except according to procedure established by law. They do not contend that they have a right to live on the pavements. Their contention is that they have a right to live, a right which cannot be exercised without the means of livelihood. They have no option but to flock to big cities like Bombay, which provide the means of bare subsistence.
They only choose a pavement or a slum which is nearest to their place of work. In a word, their plea is that the right to life is illusory without a right to the protection of the means by which alone life can be lived. And, the right to life can only be taken away or abridged by a procedure established by law, which has to be fair and reasonable, not fanciful or arbitrary such as is prescribed by the Bombay Municipal Corporation Act or the Bombay Police Act. They also rely upon their right to reside and settle in any part of the country which is guaranteed by Article
19(1)(e).
… On July 13, 1981 the then Chief Minister of Maharashtra, Shri A.R. Antulay, made an announcement which was given wide publicity by the newspapers that all pavement dwellers in the city of Bombay will be evicted forcibly and deported to their respective places of origin or removed to places outside the city of Bombay. The Chief Minister directed the
Commissioner of Police to provide the necessary assistance to respondent 1, the Bombay
Municipal Corporation, to demolish the pavement dwellings and deport the pavement dwellers.
The apparent justification which the Chief Minister gave to his announcement was: "It is a very
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inhuman existence. These structures are flimsy and open to the elements. During the monsoon there is no way these people can live comfortably."
On July 23, 1981 the pavement dwelling of P. Angamuthu [one of the petitioners] was demolished by the officers of the Bombay Municipal Corporation. He and the members of his family were put in a bus for Salem. His wife and daughters stayed back in Salem but he returned to Bombay in search of a job and got into a pavement house once again. The dwelling of the other petitioner was demolished even earlier, in January 1980 but he rebuilt it. It is like a game of hide and seek. The Corporation removes the ramshackle shelters on the pavements with the aid of police, the pavement dwellers flee to less conspicuous pavements in by-lanes and, when the officials are gone, they return to their old habitats. …
… The decision or the respondents to demolish the huts is challenged by the petitioners on the ground that it is violative of Articles 19 and 21 of the Constitution. The petitioners also ask for a declaration that the provisions of Sections 312, 313 and 314 of the Bombay Municipal
Corporation Act, 1888 are invalid as violating Articles 14, 19 and 21 of the Constitution. The reliefs asked for in the two groups of writ petitions are that the respondents should be directed to withdraw the decision to demolish the pavement dwellings and the slum hutments and, where they are already demolished, to restore possession of the sites to the former occupants.
On behalf of the Government of Maharashtra, a counter-affidavit has been filed by V.S.
Munje, Under Secretary in the Department of Housing. The counter-affidavit meets the case of the petitioners thus. The Government of Maharashtra neither proposed to deport any pavement dweller out of the city of Bombay nor did it, in fact, deport anyone. Such of the pavement dwellers, who expressed their desire in writing, that they wanted to return to their home towns and who sought assistance from the Government in that behalf were offered transport facilities up to the nearest rail head and were also paid railway fare or bus tare and incidental expenses for the onward journey. The Government of Maharashtra had issued instructions to its officers to visit specific pavements on July 23, 1961 and to ensure that no harassment was caused to any pavement dweller. Out of 10,000 hutment-dwellers who were likely to be affected by the proposed demolition of hutments constructed on the pavements, only 1024 persons opted to avail of the transport facility and the payment of incidental expenses.
The counter-affidavit says that no person has any legal right to encroach upon or to construct any structure on a footpath, public street or on any place over which the public has a right of way. Numerous hazards of health and safety arise if action is not taken to remove such encroachments. Since, no civic amenities can be provided on the pavements, the pavement dwellers use pavements or adjoining streets for easing themselves. Apart from this, some of the pavement dwellers indulge in anti-social acts like chain-snatching, illicit distillation of liquor and prostitution. The lack of proper environment leads to increased criminal tendencies, resulting in more crime in the cities. It is, therefore, in public interest that public places like pavements and paths are not encroached upon. The Government of Maharashtra provides housing assistance to the weaker sections of the society like landless labourers and persons belonging to low income groups, within the frame work, of its planned policy of the economic and social development of the State. Any allocation for housing has to be made after balancing the conflicting demands from various priority sectors. The paucity of resources is a restraining factor on the ability of the State to deal effectively with the question of providing housing to the weaker sections of the society.
The Government of Maharashtra has issued policy directives that 75 percent of the housing programme should be allocated to the lower income groups and the weaker sections of the society. One of the objects of the State 's planning policy is to ensure that the influx of population from the rural to the urban areas is reduced in the interest of a proper and balanced
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social and economic development of the State and of the country. This is proposed to be achieved by reversing the rate of growth of metropolitan cities and by increasing the rate of growth of small and medium towns. The State Government has therefore, devised an
Employment Guarantee Scheme to enable the rural population, which remains unemployed or underemployed at certain periods of the year, to get employment during such periods. A sum of about Rs. 180 crores was spent on that scheme during the years 1979-60 and 1980-81.
On October 2, 1980 the State Government launched two additional schemes for providing employment opportunities for those who cannot get work due to old age or physical infirmities.
The State Government has also launched a scheme for providing self-employment opportunities under the 'Sanjay Gandhi Niradhar Anudan Yojana '. A monthly pension of Rs.
60 is paid to chose who are too old to work or are physically handicapped. In this scheme, about
1,56,943 persons have been identified and a sum of Rs. 2.25 crores was disbursed. Under another scheme called 'Sanjay Gandhi Swawalamban Yojana ', interest-free loans, subject to a maximum of Rs. 2,500, were being given to persons desiring to engage themselves in gainful employment of their own. About 1,75,000 persons had benefited under this scheme, to whom a total sum of Rs. 5.82 crores was disbursed by way of loan. In short, the objective of the State
Government was to place greater emphasis on providing infrastructural facilities to small and medium towns and to equip them so that they could act as growth and service centers for the rural hinterland. The phenomenon of poverty which is common to all developing countries has to be tackled on an All-India basis by making the gains of development available to all sections of the society through a policy of equitable distribution of income and wealth. Urbanisation is a major problem facing the entire country, the migration of people from the rural to the urban areas being a reflection of the colossal poverty existing in the rural areas. The rural poverty cannot, however, be eliminated by increasing the pressure of population on metropolitan cities like Bombay. The problem of poverty has to be tackled by changing the structure of the society in which there will be a more equitable distribution of income and greater generation of wealth.
The State Government has stepped up the rate of construction of tenements for the weaker sections of the society from 2500 to 9500 per annum.
It is denied in the counter-affidavit that the provisions of Sections 312, 313 and 314 of the
Bombay Municipal Corporation Act violate the Constitution. Those provisions are conceived in public interest and great care is taken by the authorities to ensure that no harassment is caused to any pavement dweller while enforcing the provisions of those sections. The decision to remove such encroachments was taken by the Government with specific instructions that every reasonable precaution ought to be taken to cause the least possible inconvenience to the pavement dwellers. What is more important, so the counter-affidavit says, the Government of
Maharashtra had decided that, on the basis of the census carried out in 1976, pavement dwellers who would be uprooted should be offered alternate developed pitches at Malvani where they could construct their own hutments. According to that census, about 2,500 pavement hutments only were then in existence.
The counter-affidavit of the State Government describes the various steps taken by the
Central Government under the Five year Plan of 1978-83, in regard to the housing programmes.
The plan shows that the inadequacies of Housing policies in India have both quantitative and qualitative dimensions. The total investment in housing shall have to be of the magnitude of
Rs. 2790 crores, if the housing problem has to be tackled even partially.
On behalf of the Bombay Municipal Corporation, a counter-affidavit has been filed by Shri
D.M. Sukthankar, Municipal Commissioner of Greater Bombay. That affidavit shows that he had visited the pavements on the Tulsi Pipe Road (Senapati Bapat Marg) and the Western
Express High Way, Vile Parle (east), Bombay. On July 23, 1981, certain hutments on these pavements were demolished under Section 314 of the Bombay Municipal Corporation Act. No
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prior notice of demolition was given since the section does not provide for such notice. The affidavit denies that the intense speculation in land prices, as alleged, owes its origin to the
High rise buildings which have come up in the city of Bombay. It is also denied that there are vast vacant pieces of land in the city which can be utilised for housing the pavement dwellers.
Section 61 of the B.M.C. Act lays down the obligatory duties of the Corporation. Under Clauses
(c) and (d) of the said section, it is the duty of the Corporation to remove excrementitious matters, refuse and rubbish and to take measures for abatement of every kind of nuisance.
Under Clause (g) of that section, the Corporation is under an obligation to take measures for preventing and checking the spread of dangerous diseases. Under Clause (o), obstructions and projections in or upon public streets and other public places have to be removed. Section 63(k) empowers the Corporation to take measures to promote public safety, health or convenience, not specifically provided otherwise.
The object of Sections 312 to 314 is to keep the pavements and foot-paths free from encroachment so that the pedestrians do not have to make use of the streets on which there is heavy vehicular traffic. The pavement dwellers answer the nature 's call, bathe, cook and wash their clothes and utensils on the foot-paths and or parts of public streets adjoining the footpaths. Their encroachment creates serious impediments in repairing the roads, foot-paths and drains. The refusal to allow the petitioners and other persons similarly situated to use footpaths as their abodes is, therefore, not unreasonable, unfair, or unlawful. The basic civic amenities, such as drainage, water and sanitation, cannot possibly be provided to the pavement dwellers.
Since the pavements are encroached upon, pedestrains are compelled to walk on the streets, thereby increasing the risk of traffic accidents and impeding the free flow of vehicular movement. The Municipal Commissioner disputes in his counter-affidavit that any fundamental right of the petitioners is infringed by removal of the encroachment committed by them on public property, especially the pavements. In this behalf, reliance is placed upon an order dated July 27, 1981 of Lentin, J. of the Bombay High Court, which records that counsel for the petitioners had stated expressly on July 24, 1981, that no fundamental right could be claimed to put up a dwelling on public foot-paths and public roads.
The Municipal Commissioner has stated in his counter-affidavit in Writ Petitions 5068-79 of 1981 that the huts near the Western Express Highway, Vile Parle, Bombay, were constructed on an accessory road which is a part of the Highway itself. These hutments were never regularised by the Corporation and no registration numbers were assigned to them.
In answer to the Municipal Commissioner 's counter-affidavit, petitioner no. 12.
Prafullachandra Bidwai who is a journalist, has filed a rejoinder asserting that Kamraj Nagar is not located on a foot-path or a pavement. According to him, Kamraj Nagar is a basti off the
Highway, in which the huts are numbered, the record in relation to which is maintained by the
Road Development Department and the Bombay Municipal Corporation. Contending that petitioners 1 to 5 have been residing in the said basti for over 20 years, he reiterates that the public has no right of way in or over the Kamraj Nagar. He also disputes that the huts on the foot-paths cause any obstruction to the pedestrains or to the vehicular traffic or that those huts are a source of nuisance or danger to public health and safety. His case in paragraph 21 of his reply-affidavit seems to be that since, the foot-paths are in the occupation of pavement dwellers for a long time, foot-paths have ceased to be foot-paths. He says that the pavement dwellers and the slum or basti dwellers, who number about 47.7 lakhs, constitute about 50 per cent of the total population of Greater Bombay, that they supply the major work force for Bombay from menial jobs to the most highly skilled jobs, that they have been living in the hutments for generations, that they have been making a significant contribution to the economic life of the city and that, therefore, it is unfair and unreasonable on the part of the State Government and the Municipal Corporation to destroy their homes and deport them : A home is a home wherever
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it is. The main theme of the reply-affidavit is that "The slum dwellers are the sine qua non of the city. They are entitled to a quid pro quo. "It is conceded expressly that the petitioners do not claim any fundamental right to live on the pavements. The right claimed by them is the right to live, at least to exist.
Only two more pleadings need be referred to, one of which is an affidavit of Shri Anil V.
Gokak, Administrator of Maharashtra Housing and Areas Development Authority, Bombay, who was then holding charge of the post of Secretary, Department of Housing. He filed an affidavit in answer to an application for the modification of an interim order which was passed by this Court on October 19, 1981. He says that the legislature of Maharashtra had passed the
Maharashtra Vacant Land (Prohibition of unauthorised Occupation and Summary Eviction)
Act, 1975 in pursuance of which the Government had decided to compile a list of slums which were required to be removed in public interest. It was also decided that after a spot inspection,
500 acres of vacant land in and near the Bombay Suburban District should be allocated for resettlement of the hutment dwellers who were removed from the slums. A Task Force was constituted by the Government for the purpose of carrying out a census of the hutments standing on lands belonging to the Government of the Maharashtra, the Bombay Municipal
Corporation and the Bombay Housing Board. A Census was, accordingly, carried out on
January 4, 1976 by deploying about 7,000 persons to enumerate the slum dwellers spread over approximately 850 colonies all over Bombay. About 67 per cent of the hutment dwellers from a total of about 2,60,000 hutments produced photographs of the heads of their families, on the basis of which hutments were numbered and their occupants were given identity cards. It was decided that slums which were in existence for a long time and which were improved and developed would not normally be demolished unless the land was required for a public purpose.
In the event that the land was so required, the policy of the State Government was to provide alternative accommodation to the slum dwellers who were censured and possessed identity cards. This is borne out by a circular of the Government dated February 4, 1976 (No. SIS
1176/D. 41). Shri Gokak says that the State Government has issued instructions directing, inter alia, that "action to remove the slums excepting those which are on the foot-paths or roads or which are new or casually located should not, therefore, be taken without obtaining approval from the Government to the proposal for the removal of such slums and their rehabilitation."
Since, it was never the policy of the Government to encourage construction of hutments on foot-paths, pavements or other places over which the public has a right of way, no census of such hutments was ever intended to be conducted. But, sometime in July 1981, when the
Government officers made an effort to ascertain the magnitude of the problem of evicting pavement dwellers, it was discovered that some persons occupying pavements, carried census cards of 1976. The Government then decided to allot pitches to such occupants of pavements.
The only other pleading which deserves to be noticed is the affidavit of the journalist petitioner, Ms. Olga Tellis, in reply to the counter-affidavit of the Government of Maharashtra.
According to her, one of the important reasons of the emergence and growth of squattersettlements in the Metropolitan cities in India is, that the Development and Master Plans of most of the cities have not been adhered to. The density of population in the Bombay
Metropolitan Region is not high according to the Town Planning standards. Difficulties are caused by the fact that the population is not evenly distributed over the region, in a planned manner. New constructions of commercial premises, small-scale industries and entertainment houses in the heart of the city, have been permitted by the Government of Maharashtra contrary to law and even residential premises have been allowed to be converted into commercial premises. This, coupled with the fact that the State Government has not shifted its main offices to the northern region of the city, has led to the concentration of the population in the southern region due to the availability of job opportunities in that region. Unless economic and leisure activity is decentralised, it would be impossible to find a solution to the problems arising out
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of the growth of squatter colonies. Even if squatters are evicted, they come back to the city because, it is there that job opportunities are available. The alternate pitches provided to the displaced pavement-dwellers on the basis of the so-called 1976 census, are not an effective means to their resettlement because, those sites are situated far away from the Malad Railway
Station involving cost and time which are beyond their means. There are no facilities available at Malavani like schools and hospitals, which drives them back to the stranglehold of the city.
The permission granted to the 'National center of Performing Arts ' to construct an auditorium at the Nariman Point, Backbay Reclamation, is cited as a 'gross ' instance of the short-sighted, suicidal and discriminatory policy of the Government of Maharashtra. It is as if the sea is reclaimed for the construction of business and entertainment houses in the center of the city, which creates job opportunities to which the homeless flock. They work therein and live on pavements. The grievance is that, as a result of this imbalance, there are not enough jobs available in the northern tip of the city. The improvement of living conditions in the slums and the regional distribution of job opportunities are the only viable remedies for relieving congestion of the population in the center of the city. The increase allowed by the State
Government in the Floor Space Index over and above 1.33, has led to a further concentration of population in the center of the city.
In the matter of housing, according to Ms. Tellis ' affidavit, Government has not put to the best use the finances and resources available to it. There is a wide gap between the demand and supply in the area of housing which was in the neighbourhood of forty five thousand units in the decade 1971-81. A huge amount of hundreds of crores of rupees shall have to be found by the State Government every year during the period of the Sixth Plan if adequate provision for housing is at all to be made. The Urban Land Ceiling Act has not achieved its desired objective nor has it been properly implemented. The employment schemes of the State Government are like a drop in the ocean and no steps are taken for increasing job opportunities in the rural sector. The neglect of health, education transport and communication in that sector drives the rural folk to the cities, not only in search of a living but in search of the basic amenities of life.
The allegation of the State Government regarding the criminal propensities of the pavement dwellers is stoutly denied in the reply-affidavit and it is said to be contrary to the studies of many experts. Finally, it is stated that it is no longer the objective of the Sixth Plan to reverse the rate of growth of metropolitan cities. The objective of the earlier plan (1978-83) has undergone a significant change and the target now is to ensure the growth of large metropolitan cities in a planned manner. The affidavit claims that there is adequate land in the Bombay metropolitan region to absorb a population of 20 million people, which is expected to be reached by the year 2000 A.D.
The arguments advanced before us by Ms. Indira Jaisingh, Mr. V.M. Tarkunde and Mr.
Ram Jethmalani cover a wide range but the main thrust of the petitioners ' case is that evicting a pavement dweller or slum dweller from his habitat amounts to depriving of his right to livelihood, which is comprehended in the right guaranteed by Article 21 of the Constitution that no person shall be deprived of his life except according to procedure established by law.
The question of the guarantee of personal liberty contained in Article 21 does not arise and was not: raised before us. Counsel for the petitioners contended that the Court must determine in these petitions the content of the right to life, the function of property in a welfare state, the dimension and true meaning of the constitutional mandate that property must subserve common good, the sweep of the right to reside and settle in any part of the territory of India which is guaranteed by Article 19(1)(e) and the right to carry on any occupation, trade or business which is guaranteed by Article 19(1)(g), the competing claims of pavement dwellers on the one hand and of the pedestrians on the other and, the larger question of ensuring equality before the law.
It is contended that it is the responsibility of the courts to reduce inequalities and social imbalances by striking down statutes which perpetuate them. One of the grievances of the
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petitioners against the Bombay Municipal Corporation Act, 1888 is that it is a century old antiquated piece of legislation passed in an era when pavement dwellers and slum dwellers did not exist and the consciousness of the modern notion of a welfare state was not present to the mind of the colonial legislature. According to the petitioners, connected with these issues and yet independent of them, is the question of the role of the Court in setting the tone of values in a democratic society.
The argument which bears on the provisions of Article 21 is elaborated by saying that the eviction of pavement and slum dwellers will lead, in a vicious circle, to the deprivation of their employment, their livelihood and, therefore, to the right to life. Our attention is drawn in this behalf to an extract from the judgment of Douglas, J in Baksey v. Board of Regents 347 US 442
(1954) in which the learned Judge said:
The right to work I have assumed was the most precious liberty that man possesses. Man has Indeed, as much right to work as he has to live, to be free and to own property. To work means to eat and it also means to live.
The right to live and the right to work are integrated and inter-dependant and, therefore, if a person is deprived of his job as a result of his eviction from a slum or a pavement, his very right to life is put in jeopardy. It is urged that the economic compulsions under which these persons are forced to live in slums or on pavements impart to their occupation the character of a fundamental right.
It is further urged by the petitioners that it is constitutionally impermissible to characterise the pavement dwellers as "trespassers" because, their occupation of pavements arises from economic compulsions. The State is under an obligation to provide to the citizens the necessities of life and, in appropriate cases, the courts have the power to issue order directing the State, by affirmative action, to promote and protect the right to life. The instant situation is one of crisis, which compels the use of public property for the purpose of survival and sustenance. Social commitment is the quintessence of our Constitution which defines the conditions under which liberty has to be enjoyed and justice has to be administered. Therefore,
Directive Principles, which are fundamental in the governance of the country, must serve as a beacon light to the interpretation of the Constitutional provisions. Viewed in this context, it is urged, the impugned action of the State Government and the Bombay Municipal Corporation is violative of the provisions contained in Articles 19(1)(e), 19(1)(g) and 21 of the Constitution.
The paucity of financial resources of the State is no excuse for defeating the fundamental rights of the citizens.
In support of this argument, reliance is placed by the petitioners on what is described as the 'factual context '. A publication dated January 1982 of the Planning Commission,
Government of India, namely, The Report of the Expert Group of Programmes for the
Alleviation of Poverty, is relied on as showing the high incidence of poverty in India. That
Report shows that in 1977-78, 48% of the population lived below the poverty line, which means that out of a population of 303 million who lived below the poverty line, 252 million belonged to the rural areas. In 1979-80 another 8 million people from the rural areas were found to live below the poverty line. A Government of Maharashtra Publication Budget and the new 20 Point
Socio-Economic Programme estimates that there are about 45 lakh families in rural areas of
Maharashtra who live below the poverty line. Another 40% was in the periphery of that area.
One of the major causes of the persistent rural poverty of landless labourers, marginal farmers, shepherds, physically handicapped persons and others is the extremely narrow base of production available to the majority of the rural population. The average agricultural holding of a farmer is 0.4 hectares, which is hardly adequate to enable him to make both ends meet.
Landless labourers have no resource base at all and they constitute the hardcore of poverty.
Due to economic pressures and lack of employment opportunities, the rural population is forced
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to migrate to urban areas in search of employment. The Economic Survey of Maharashtra published by the State Government shows that the bulk of public investment was made in the cities of Bombay, Pune and Thane, which created employment opportunities attracting the starving rural population to those cities. The slum census conducted by the Government of
Maharashtra in 1976 shows that 79% of the slum-dwellers belonged to the low income group with a monthly income below Rs. 600. The study conducted by P. Ramachandran of the Tata
Institute of Social Sciences shows that in 1972, 91% of the pavement dwellers had a monthly income of less than Rs. 200. The cost of obtaining any kind of shelter in Bombay is beyond the means of a pavement dweller. The principal public housing sectors in Maharashtra, namely,
The Maharashtra Housing and Area Development Agency (MHADA) and the City and
Industrial Development Corporation of Maharashtra Ltd. (CIDCO) have been able to construct only 3000 and 1000 units respectively as against the annual need of 60,000 units. In any event, the cost of housing provided even by these public sector agencies is beyond the means of the slum and pavement-dwellers. Under the Urban Land (Ceiling and Regulation) Act 1975, private land owners and holders are given facility to provide housing to the economically weaker sections of the society at a stipulated price of Rs. 90 per sq. ft., which also is beyond the means of the slum and pavement-dwellers. The reigning market price of houses in Bombay varies from Rs. 150 per sq. ft. outside Bombay to Rs. 2000 per sq. ft. in the center of the city.
The petitioners dispute the contention of the respondents regarding the non-availability of vacant land for allotment to houseless persons. According to them, about 20,000 hectares of unencumbered land is lying vacant in Bombay. The Urban Land (Ceiling and Regulation; Act,
1975 has failed to achieve its object as is evident from the fact that in Bombay, 5% of the landholders own 55% of the land. Even though 2952.53 hectares of Urban land is available for being acquired by the State Government as being in excess of the permissible ceiling area, only
41.51% of this excess land was, so far, acquired. Thus, the reason why there are homeless people in Bombay is not that there is no land on which homes can be built for them but, that the planning policy of the State Government permits high density areas to develop with vast tracts of land lying vacant. The pavement-dwellers and the slum-dwellers who constitute 50% of the population of Bombay, occupy only 25% of the city 's residential land. It is in these circumstances that out of sheer necessity for a bare existence, the petitioners are driven to occupy the pavements and slums. They live in Bombay because they are employed in Bombay and they live on pavements because there is no other place where they can live. This is the factual context in which the petitioners claim the right under Articles 19(1)(e) and (g) and
Article 21 of the Constitution.
The petitioners challenge the vires of Section 314 read with Sections 312 and 313 of the
Bombay Municipal Corporation Act, which empowers the Municipal Commissioner to remove, without notice, any object or structure or fixture which is set up in or upon any street.
It is contended that, in the first place, Section 314 does not authorise the demolition of a dwelling even on a pavement and secondly, that a provision which allows the demolition of a dwelling without notice is not just, fair or reasonable. Such a provision vests arbitrary and unguided power in the Commissioner. It also offends against the guarantee of equality because, it makes an unjustified discrimination between pavement dwellers on the one hand and pedestrains on the other. If the pedestrains are entitled to use the pavements for passing and repassing, so are the pavement dwellers entitled to use pavements for dwelling upon them. So the argument goes Apart from this, it is urged, the restrictions which are sought to be imposed by the respondents on the use of pavements by pavement-dwellers are not reasonable. A State which has failed in its constitutional obligation to usher a socialistic society has no right to evict slum and pavement-dwellers who constitute half of the city 's population. Therefore,
Sections 312, 313 and 314 of the B.M.C. Act must either be read down or struck down.
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According to the learned Attorney-General, Mr. K.K. Singhvi and Mr. Shankaranarayanan who appear for the respondents, no one has a fundamental right, whatever be the compulsion, to squat on or construct a dwelling on a pavement, public road or any other place to which the public has a right of access. The right conferred by Article 19(1)(e) of the Constitution to reside and settle in any part of India cannot be read to confer a licence to encroach and trespass upon public property. Sections 3(w) and (x) of the B.M.C. Act define "Street" and "Public Street" to include a highway, a footway or a passage on which the public has the right of passage or access. Under Section 289(1) of the Act, all pavements and public streets vest in the
Corporation and are under the control of the Commissioner. In so far as Article 21 is concerned, no deprivation of life, either directly or indirectly, is involved in the eviction of the slum and pavement-dwellers from public places. The Municipal Corporation is under an obligation under
Section 314 of the B.M.C. Act to remove obstructions on pavements, public streets and other public places. The Corporation does not even possess the power to permit any person to occupy a pavement or a public place on a permanent or quasi-permanent basis. The petitioners have not only violated the provisions of the B.M.C. Act, but they have contravened Sections 111 and 115 of the Bombay Police Act also. These sections prevent a person from obstructing any other person in the latter 's use of a street or public place or from committing a nuisance. Section
117 of the Police Act prescribes punishment for the violation of these sections.
We will first deal with the preliminary objection raised by Mr. K.K. Singhvi, who appears on behalf of the Bombay Municipal Corporation, that the petitioners are estopped from contending that their huts cannot be demolished by reason of the fundamental rights claimed by them. It appears that a writ petition, No. 986 of 1961, was filed on the Original Side of the
Bombay High Court by and on behalf of the pavement dwellers claiming reliefs similar to those claimed in the instant batch of writ petitions. A learned Single Judge granted an ad-interim injunction restraining the respondents from demolishing the huts and from evicting the pavement dwellers. When the petition came up for hearing on July 27, 1981, counsel for the petitioners made a statement in answer to a query from the court, that no fundamental right could be claimed to put up dwellings on foot-paths or public roads. Upon this statement, respondents agreed not to demolish until October 15, 1981, huts which were constructed on the pavements or public roads prior to July 23, 1981. On August 4, 1981, a written undertaking was given by the petitioners agreeing, inter alia, to vacate the huts on or before October 15,
1981 and not to obstruct the public authorities from demolishing them. Counsel appearing for the State of Maharashtra responded to the petitioners ' undertaking by giving an undertaking on behalf of the State Government that, until October 15, 1981, no pavement: dweller will be removed out of the city against his wish. On the basis of these undertakings, the learned Judge disposed of the writ petition without passing any further orders. The contention of the Bombay
Municipal Corporation is that since the pavement dwellers had conceded in the High Court that they did not claim any fundamental right to put up huts on pavements or public roads and since they had given an undertaking to the High Court that they will not obstruct the demolition of the huts after October 15, 1981 they are estopped from contending in this Court that the huts constructed by them on the pavements cannot be demolished because of their right to livelihood, which is comprehended within the fundamental right to life guaranteed by Article
21 of the Constitution.
It is not possible to accept the contention that the petitioners are estopped from setting up their fundamental rights as a defence to the demolition of the huts put up by them on pavements or parts of public roads. There can be no estoppel against the Constitution. The Constitution is not only the paramount law of the land but, it is the source and substance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. The doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs. If a person makes a representation to another, on the
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faith of which the latter acts to his prejudice, the former cannot resile from the representation made by him. He must make it good. This principle can have no application to representations made regarding the assertion or enforcement of fundamental rights. For example, the concession made by a person that he does not possess and would not exercise his right to free speech and expression or the right to move freely throughout the territory of India cannot deprive him of those constitutional rights, any more than a concession that a person has no right of personal liberty can justify his detention contrary to the terms of Article 22 of the
Constitution. Fundamental rights are undoubtedly conferred by the Constitution upon individuals which have to be asserted and enforced by them, if those rights are violated. But, the high purpose which the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger interests of the community.
… No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all-powerful state could easily tempt an individual to forego his precious personal freedoms on promise of transitory, immediate benefits. Therefore, notwithstanding the fact that the petitioners had conceded in the Bombay High Court that they have no fundamental right to construct hutments on pavements and that they will not object to their demolition after October 15, 1981, they are entitled to assert that any such action on the part of public authorities will be in violation of their fundamental rights. How far the argument regarding the existence and scope of the right claimed by the petitioners is well-founded is another matter. But, the argument has to be examined despite the concession.
The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day-today transactions. In Basheshar Nath v. Commissioner of Income
Tax Delhi [1959] Supp. 1 S.C.R. 528 a Constitution Bench of this Court considered the question whether the fundamental rights conferred by the Constitution can be waived. Two members of the Bench (Das C.J. and Kapoor J.) held that there can be no waiver of the fundamental right founded on Article 14 of the Constitution. Two others (N.H. Bhagwati and Subba Rao, JJ.) held that not only could there be no waiver of the right conferred by Article 14, but there could be no waiver of any other fundamental right guaranteed by Part III of the Constitution. The
Constitution makes no distinction, according to the learned Judges, between fundamental rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy.
We must, therefore, reject the preliminary objection and proceed to consider the validity of the petitioners ' contentions on merits.
… As we have stated while summing up the petitioners ' case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition
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and execution of the death senctence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be In accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which people their desertion of their hearths and homes in the villages that struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas J. in Baksey that the right to work is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois 94 U.S. 113 (1877), means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. …
Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Article 41, which is another
Directive Principle, provides, inter alia, that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though not enforceable by any court, are nevertheless fundamental in the governance of the country. The Principles contained in Articles 39(a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21.
… Turning to the factual situation, how far is it true to say that if the petitioners are evicted from their slum and pavement dwellings, they will be deprived of their means of livelihood? It is impossible, in the very nature of things, together reliable data on this subject in regard to each individual petitioner and, none has been furnished to us in that form. That the eviction of a person from a pavement or slum will inevitably lead to the deprivation of his means of livelihood, is a proposition which does not have to be established in each individual case. That is an inference which can be drawn from acceptable data. Issues of general public importance, which affect the lives of large sections of the society, defy a just determination if their consideration is limited to the evidence pertaining to specific individuals. In the resolution of such issues, there are no symbolic samples which can effectively project a true picture of the grim realities of life. The writ petitions before us undoubtedly involve a question relating to dwelling houses but, they cannot be equated with a suit for the possession of a house by one private person against another. In a case of the latter kind, evidence has to be led to establish
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the cause of action and justify the claim. In a matter like the one before us, in which the future of half of the city 's population is at stake, the Court must consult authentic empirical data compiled by agencies, official and non-official. It is by that process that the core of the problem can be reached and a satisfactory solution found. It would be unrealistic on our part to reject the petitions on the ground that the petitioners have not adduced evidence to show that they will be rendered jobless if they are evicted from the slums and pavements. Commonsense, which is a cluster of life 's experiences, is often more dependable than the rival facts presented by warring litigants.
It is clear from the various expert studies to which we have referred while setting out the substance of the pleadings that, one of the main reasons of the emergence and growth of squatter-settlements in big Metropolitan cities like Bombay, is the availability of job opportunities which are lacking in the rural sector. The undisputed fact that even after eviction, the squatters return to the cities affords proof of that position. The Planning Commission 's publication, The Report of the Expert Group of Programmes for the Alleviation of Poverty
(1982) shows that half of the population in India lives below the poverty line, a large part of which lives in villages. A publication of the Government of Maharashtra, Budget and the New
20 Point Socio-Economic Programme shows that about 45 lakhs of families in rural areas live below the poverty line and that, the average agricultural holding of a farmer, which is 0.4 hectares, is hardly enough to sustain him and his comparatively large family. The landless labourers, who constitute the bulk of the village population, are deeply imbedded in the mire of poverty. It is due to these economic pressures that the rural population is forced to migrate to urban areas in search of employment. The affluent and the not-so-affluent are alike in search of domestic servants. Industrial and Business Houses pay a fair wage to the skilled workman that a villager becomes in course of time. Having found a job, even if it means washing the pots and pans, the migrant sticks to the big city. If driven out, he returns in quest of another job. The cost of public sector housing is beyond his modest means and the less we refer to the deals of private builders the better for all", excluding none. Added to these factors is the stark reality of growing insecurity in villages on account of the tyranny of parochialism and casteism.
The announcement made by the Maharashtra Chief Minister regarding the deportation of willing pavement dwellers afford some indication that they are migrants from the interior areas, within and outside Maharashtra. It is estimated that about 200 to 300 people enter Bombay every day in search of employment. These facts constitute empirical evidence to justify the conclusion that persons in the position of petitioners live in slums and on pavements because they have small jobs to nurse in the city and there is no where else to live. Evidently, they choose a pavement or a slum in the vicinity of their place of work, the time otherwise taken in commuting and its cost being, forbidding for their slender means. To loss the pavement or the slum is to lose the job. The conclusion, therefore, in terms of the constitutional phraseology is that the eviction of the petitioners will lead to deprivation of their livelihood and consequently to the deprivation of life.
Two conclusions emerge from this discussion: one, that the right to life which is conferred by Article 21 includes the right to livelihood and two, that it is established that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. But the Constitution does not put an absolute embargo on the deprivation of life or personal liberty. By Article 21, such deprivation has to be according to procedure established by law. In the instant case, the law which allows the deprivation of the right conferred by Article 21 is the Bombay Municipal
Corporation Act, 1888, the relevant provisions of which are contained in Sections 312(1),
313(1)(a) and 314. These sections which occur in Chapter XI entitled 'Regulation of Streets ' read thus:
Section 312 - Prohibition of structures or fixtures which cause obstruction in streets. Page 411 of 610
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(1) No person shall, except with the permission of the Commissioner under
Section 310 or 317 erect or set up any wall, fence, rail, post, step, booth or other structure or fixture in or upon any street or upon or over any open channel, drain well or tank in any street so as to form an obstruction to, or an encroachment upon, or a projection over, or to occupy, any portion or such street, channel, drain, well or tank.
Section 313 - Prohibition of deposit, etc., of things in streets.
(1) No person shall, except with the written permission of the Commissioner,(a) place or deposit upon any street or upon any open channel drain or well in any streets (or in any public place) any stall, chair, bench, box, ladder, bale or other thing so as to form an obstruction thereto or encroachment thereon.
Section 314 - Power to remove without notice anything erected deposited or hawked in contravention of Sections 312, 313 or 313A.
The Commissioner may, without notice, cause to be removed(a) any wall, fence, rail, post, step, booth or other structure or fixture which shall be erected or set up in or any street, or upon or over any open channel, drain, well or tank contrary to the provisions of Sub-section (1) of Section 312, after the same comes into force in the city or in the suburbs, after the date of the coming into force of the Bombay Municipal (Extension of Limits) Act, 1950 or in the extended suburbs after the date of the coming into force of the Bombay Munic
(b) any stall, chair, bench, box, ladder, bale, board or shelf, or any other thing whatever placed, deposited, projected, ttached, or suspended in, upon, from or to any place in contravention of Sub-section (1) of Section 313;
(c) any article whatsoever hawked or exposed for sale in any public place or in any public street in contravention of the provisions of Section 313A and any vehicle, package, box, board, shelf or any other thing in or on which such article is placed or kept for the purpose of sale.
By Section 3(w), "street" includes a causeway, footway, passage etc., over which the public have a right of passage or access.
These provisions, which are clear and specific, empower the Municipal Commissioner to cause to be removed encroachments on footpaths or pavements over which the public have a right of passage or access. It is undeniable that, in these cases, wherever constructions have been put up on the pavements, the public have a right of passage or access over those pavements. The argument of the petitioners is that the procedure prescribed by Section 314 for the removal of encroachments from pavements is arbitrary and unreasonable since, not only does it not provide for the giving of a notice before the removal of an encroachment but, it provides expressly that the Municipal Commission may cause the encroachment to be removed
"without notice".
It is far too well-settled to admit of any argument that the procedure prescribed by law for the deprivation of the right conferred by Article 21 must be fiar, just, and reasonable. … Just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike, it is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right, in this case the right to life, must confirm to the norms of justice and fairplay. Procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it. Any action taken by a public authority which is invested with statutory powers has, therefore, to be tested by the application of two standards: The action must be within the scope of the authority conferred by law and secondly, it must be reasonable.
It any action, within the scope of the authority conferred by law, is found to be unreasonable, it must mean that the proceudre established by law under which that action is taken is itself
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unreasonable. The substance of the law cannot be divorced from the procedure which it prescribe for, how reasonable the law is, depends upon how fair is the procedure prescribed by it… … Having given our anxious and solicitous consideration to this question, we are of the opinion that the procedure prescribed by Section 314 of the Bombay Municipal Corporation
Act for removal of encroachments on the footpaths or pavements over which the public has the right of passage or access, cannot be regarded as unreasonable, unfair or unjust. There is no static measure of reasonableness which can be applied to all situations alike. Indeed, the question "is this procedure reasonable?" implies and postulates the inquiry as to whether the procedure prescribed is reasonable in the circumstances of the case…
… In the first place, footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets. The main reason for laying out pavements is to ensure that the pedestrains are able to go about their daily affairs with a reasonable measure of safety and security. That facility, which has matured into a right of the pedestrains, cannot be set at naught by allowing encroachments to be made on the pavements. There is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrains to make use of the pavements for passing and repassing, are competing claims and that, the former should be preferred to the latter. No one has the right to make use of a public property for a private purpose without the requisite authorisation and, therefore, it is erroneous to contend that the pavement dwellers have the right to encroach upon pavements by constructing dwellings thereon. Public streets, of which pavements form a part, are primarily dedicated for the purpose of passage and, even the pedestrains have but the limited right of using pavements for the purpose of passing and repassing. So long as a person does not transgress the limited purpose for which pavements are made, his use thereof is legitimate and lawful. But, if a person puts any public property to a use for which it is not intended and is not authorised so to use it, he becomes a trespasser.
… Putting up a dwelling on the pavement is a case which is clearly on one side of the line showing that it is an act of trespass. Section 61 of the Bombay Municipal Corporation Act lays down the obligatory duties of the Corporation, under Clause (d) of which, it is its duty to take measures for abatement of all nuisances. The existence of dwellings on the pavements is unquestionably a source of nuisance to the public, at least for the reason that they are denied the use of pavements for passing and repassing. They are compelled, by reason of the occupation of pavements by dwellers, to use highways and public streets as passages. The affidavit filed on behalf of the Corporation shows that the fall-out of pedestrians in large numbers on highways and streets constitutes a grave traffic hazzard. Surely, pedestrians deserve consideration in the matter of their physical safety, which cannot be sacrificed in order to accommodate persons who use public properties for a private purpose, unauthorizedly.
Under Clause (c) of Section 61 of the B.M.C. Act, the Corporation is under an obligation to remove obstructions upon public streets another public places. The counter-affidavit of the
Corporation shows that the existence of hutments on pavements is a serious impediment in repairing the roads, pavements, drains and streets. Section 63(k), which is discretionary, empowers the Corporation to take measures to promote public safety, health or convenience not specifically provided otherwise. Since it is not possible to provide any public conveniences to the pavement dwellers on or near the pavements, they answer the nature 's call on the pavements or on the streets adjoining them. These facts provide the background to the provision for removal of encroachments on pavements and footpaths.
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The challenge of the petitioners to the validity of the relevant provisions of the Bombay
Municipal Corporation Act is directed principally at the procedure prescribed by Section 314 of that Act, which provides by Clause (a) that the Commissioner may, without notice, take steps for the removal of encroachments in or upon any street, channel, drain, etc. By reason of
Section 3(w), 'street ' includes a causeway, footway or passage. In order to decide whether the procedure prescribed by Section 314 is fair and reasonable, we must first determine the true meaning of that section because, the meaning of the law determines its legality.
If a law is found to direct the doing of an act which is forbidden by the Constitution or to compel, in the performance of an act, the adoption of a procedure which is impermissible under the Constitution, it would have to be struck down. Considered in its proper perspective, Section
314 is in the nature of an enabling provision and not of a compulsive character. It enables the
Commissioner, in appropriate cases, to dispense with previous notice to persons who are likely to be affected by the proposed action. It does not require and, cannot be read to mean that, in total disregard of the relevant circumstances pertaining to a given situation, the Commissioner must cause the removal of an encroachment without issuing previous notice. The primary rule of construction is that the language of the law must receive its plain and natural meaning. What
Section 314 provides is that the Commissioner may, without notice, cause an encroachment to be removed. It does not command that the Commissioner shall, without notice, cause an encroachment to be removed. Putting it differently, Section 314 confers on the Commissioner the discretion to cause an encroachment to be removed with or without notice. That discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable. We must lean in favour of this interpretation because it helps sustain the validity of the law. Reading
Section 314 as containing a command not to issue notice before the removal of an encroachment will make the law invalid.
It must further be presumed that, while vesting in the Commissioner the power to act without notice, the Legislature intended that the power should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partem rule ( 'Hear the other side ') could be presumed.to have been intended. Section 314 is so designed as to exclude the principles of natural justice by way of exemption and not as a general rule. There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place the apprehended danger and so on. The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence. …
… Any discussion of this topic would be incomplete without reference to an important decision of this Court in S.L. Kapoor v. Jagmohan [1981] 1 SCR746. In that case, the suppression of the New Delhi Municipal Committee was challenged on the ground that it was in violation of the principles of natural justice since, no show cause notice was issued before the order of superession was passed. Linked with that question was the question whether the failure to observe the principles of natural justice matters at all, if such observance would have made no difference, the admitted or indisputable facts speaking for themselves. After referring to the decisions in Ridge v. Baldwin [1964] A.C. 40 … Chinnappa Reddy, J. Said :
In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any
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man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will comes from a person who has denied justice that the person who has been denied justice is not prejudiced.
These observations sum up the true legal position regarding the purport and implications of the right of hearing.
The jurisprudence requiring hearing to be given to those who have encroached on pavements and other public properties evoked a sharp response from the respondents counsel.
"Hearing to be given to trespassers who have encroached on public properties? To persons who commit crimes?", they seemed to ask in wonderment. There is no doubt that the petitioners are using pavements and other public properties for an unauthorised purpose, but, their intention or object in doing so is not to "commit an offence or intimidate, insult or annoy any person", which is the gist or the offence of 'Criminal trespass ' under Section 441 of the Penal Code.
They manage to find a habitat in places which are mostly filthy or marshy, out of sheer helplessness. It is not as if they have a free choice to exercise as to whether to commit an encroachment and if so, where. The encroachments committed by these persons are involuntary acts in the sense that those acts are compelled by inevitable circumstances and are not guided by choice. Trespass is a tort. But, even the law of Torts requires that though a trespasser may be evicted forcibly, the force used must be no greater than what is reasonable and appropriate to the occasion and, what is even more important, the trespasser should be asked and given a reasonable opportunity to depart before force is used to expel him. (See Ramaswamy Iyer 's 'Law of Torts ' 7th Ed. by Justice and Mrs. S.K. Desai, (page 98, para 41). Besides, under the
Law of Torts, necessity is a plausible defence, which enables a person to escape liability on the ground that the acts complained of are necessary to prevent greater damage, inter alia, to himself. "Here, as elsewhere in the law of torts, a balance has to be struck between competing sets of values..." (See Salmond and Heuston, 'Law of Torts ', 18th Ed. (Chapter 21, page 463,
Article 185 - 'Necessity ').
… Normally, we would have directed the Municipal Commissioner to afford an opportunity to the petitioners to show why the encroachments committed by them on pavements or footpaths should not be removed. But, the opportunity which was denied by the
Commissioner was granted by us in an ample measure, both sides having made their contentions elaborately on acts as well as on law. Having considered those contentions, we are of the opinion that the Commissioner was justified in directing the removal of the encroachments committed by the petitioners on pavements, footpaths or accessory roads. As observed in S.L. Kapoor, "where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs". Indeed, in that case, the Court did not set aside the order of supersession in view of the factual position stated by it. But, though we do not see any justification for asking the Commissioner to hear the petitioners, we propose to pass an order which, we believe, he would or should have passed, had he granted a hearing to them and heard what we did. We are of the opinion that the petitioners should not be evicted from the pavements, footpaths or accessory roads until one month after the conclusion of the current monsoon season, that is to say, until October 31, 1985. In the meanwhile, as explained later, steps may be taken to offer alternative pitches to the pavement dwellers who were or who happened to be censured in 1976. The offer of alternative pitches to such pavement dwellers should be made good in the spirit in which it was made, though we do not propose to make it a condition precedent to the removal of the encroachments committed by them.
… To summarise, we hold that no person has the right to encroach, by erecting a structure or otherwise, on footpaths, pavements or any other place reserved or ear-marked for a public
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purpose like, for example, a garden or a playground; that the provision contained in Section
314 of the Bombay Municipal Corporation Act is not unreasonable in the circumstances of the case; and that, the Kamraj Nagar Basti is situated on an accessory road leading to the Western
Express Highway. We have referred to the assurances given by the State Government in its pleadings here which, we repeat, must be made good. Stated briefly, pavement dwellers who were censured or who happened to be censured in 1976 should be given, though not as a condition precedent to their removal, alternate pitches at Malavani or at such other convenient place as the Government considers reasonable but not farther away in terms of distance; slum dwellers who were given identity cards and whose dwellings were numbered in the 1976 census must be given alternate sites for their re-settlement; slums which have been in existence for a long time, say for twenty years or more, and which have been improved and developed will not be removed unless the land on which they stand or the appurtenant land, is required for a public purposes, in which case, alternate sites or accommodation will be provided to them, the 'Low
Income Scheme Shelter Programme ' which is proposed to be undertaken with the aid of the
World Bank will be pursued earnestly; and, the Slum Upgradation Programme (SUP) 'under which basic amenities are to be given to slum dwellers will be implemented without delay. In order to minimise the hardship involved in any eviction, we direct that the slums, wherever situated, will not be removed until one month after the end of the current monsoon season, that is, until October 31, 1985 and, thereafter, only in accordance with this judgment. If any slum is required to be removed before that date, parties may apply to this Court. Pavement dwellers, whether censured or uncensured, will not be removed until the same date viz. October 31, 1985.
The Writ Petitions will stand disposed of accordingly. There will be no order as to costs.
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UNIT 9 – RIGHT TO EDUCATION (ARTICLE 21A)
SOCIETY FOR UNAIDED PRIVATE SCHOOLS V. UNION OF INDIA
AIR 2012 SC 3445, (2012) 6 SCC 1
Decided On: April 12, 2012
BENCH – CHIEF JUSTICE KAPADIA, K. S. P. RADHADRISHNAN & SWATANTER KUMAR
JUSTICE KAPADIA (for Justice Kumar & himself, MAJORITY OPINION)
We have had the benefit of carefully considering the erudite judgment delivered by our esteemed and learned Brother Radhakrishnan, J. Regretfully, we find ourselves in the unenviable position of having to disagree with the views expressed therein concerning the non-applicability of the Right of Children to Free and Compulsory Education Act, 2009 (for short "the 2009 Act") to the unaided non-minority schools.
The judgment of Brother Radhakrishnan, J. fully sets out the various provisions of the
2009 Act as well as the issues which arise for determination, the core issue concerns the constitutional validity of the 2009 Act.
Introduction
… Education is a process which engages many different actors: the one who provides education (the teacher, the owner of an educational institution, the parents), the one who receives education (the child, the pupil) and the one who is legally responsible for the one who receives education (the parents, the legal guardians, society and the State). These actors influence the right to education. The 2009 Act makes the Right of Children to Free and
Compulsory Education justiciable. The 2009 Act envisages that each child must have access to a neighbourhood school. The 2009 Act has been enacted keeping in mind the crucial role of Universal Elementary Education for strengthening the social fabric of democracy through provision of equal opportunities to all. The Directive Principles of State Policy enumerated in our Constitution lay down that the State shall provide free and compulsory education to all children up to the age of 14 years. The said Act provides for right (entitlement) of children to free and compulsory admission, attendance and completion of elementary education in a neighbourhood school. The word "Free" in the long title to the 2009 Act stands for removal by the State of any financial barrier that prevents a child from completing 8 years of schooling.
The word "Compulsory" in that title stands for compulsion on the State and the parental duty to send children to school. To protect and give effect to this right of the child to education as enshrined in Article 21 and Article 21A of the Constitution, the Parliament has enacted the
2009 Act.
The 2009 Act received the assent of the President on 26.8.2009. It came into force w.e.f.
1.4.2010. The provisions of this Act are intended not only to guarantee right to free and compulsory education to children, but it also envisages imparting of quality education by providing required infrastructure and compliance of specified norms and standards in the schools. The Preamble states that the 2009 Act stands enacted inter alia to provide for free and compulsory education to all children of the age of 6 to 14 years. The said Act has been enacted to give effect to Article 21A of the Constitution. Scope of the 2009 Act
Section 3(1) of the 2009 Act provides that every child of the age of 6 to 14 years shall have a right to free and compulsory education in a neighbourhood school till completion of elementary education. Section 3(2)inter alia provides that no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing the elementary education. An educational institution is charitable. Advancement
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of education is a recognised head of charity. Section 3(2) has been enacted with the object of removing financial barrier which prevents a child from accessing education. The other purpose of enacting Section 3(2) is to prevent educational institutions charging capitation fees resulting in creation of a financial barrier which prevents a child from accessing or exercising its right to education which is now provided for vide Article 21A. Thus, Sub-section (2) provides that no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing or completing the elementary education. Section 4 inter alia provides for special provision for children not admitted to or who have not completed elementary education. Section 5 deals with the situation where there is no provision for completion of elementary education, then, in such an event, a child shall have a right to seek transfer to any other school, excluding the school specified in Sub-clauses (iii) and (iv) of Clause (n) of
Section 2, for completing his or her elementary education.
Chapter III provides for duties of appropriate government, local authority and parents.
Section 6 imposes an obligation on the appropriate government and local authority to establish a school within such areas or limits of neighbourhood, as may be prescribed, where it is not so established, within 3 years from the commencement of the 2009 Act. The emphasis is on providing "neighbourhood school" facility to the children at the Gram Panchayat level.
Chapter IV of the 2009 Act deals with responsibilities of schools and teachers.
Section 12(1)(c) read with Section 2(n)(iii) and (iv) mandates that every recognised school imparting elementary education, even if it is an unaided school, not receiving any kind of aid or grant to meet its expenses from the appropriate government or the local authority, is obliged to admit in Class I, to the extent of at least 25% of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion. As per the proviso, if the School is imparting pre-school education, the same regime would apply.
By virtue of Section 12(2) the unaided school which has not received any land, building, equipment or other facilities, either free of cost or at concessional rate, would be entitled for reimbursement of the expenditure incurred by it to the extent of per child expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed. Such reimbursement shall not exceed per child expenditure incurred by a school established, owned or controlled by the appropriate government or a local authority.
Section 13 envisages that no school or person shall, while admitting a child, collect any capitation fee and subject the child or his or her parents to any screening procedure.
Section 15 mandates that a child shall be admitted in a school at the commencement of the academic year or within the prescribed extended period. Sections 16 and 17 provide for prohibition of holding back and expulsion and of physical punishment or mental harassment to a child. Section 18 postulates that after the commencement of the 2009 Act no school, other than the excepted category, can be established or can function without obtaining a certificate of recognition from the appropriate authority. The appropriate authority shall be obliged to issue the certificate of recognition within the prescribed period specifying the conditions there for, if the school fulfills the norms and standards specified under Sections 19 and 25read with the Schedule to the 2009 Act. In the event of contravention of the conditions of recognition, the prescribed authority can withdraw recognition after giving an opportunity of being heard to such school. The order of withdrawal of recognition should provide a direction to transfer the children studying in the de-recognised school to be admitted to the specified neighbourhood school. Upon withdrawal of recognition, the de-recognised school cannot continue to function, failing which, is liable to pay fine as per Section 19(5). If any person establishes or runs a school without obtaining certificate of recognition, or continues to run a school after withdrawal of the recognition, shall be liable to pay fine as specified in
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Section 19(5). The norms and standards for establishing or for grant of recognition to a school are specified in Section 19 read with the Schedule to the 2009 Act. All schools which are established before the commencement of the 2009 Act in terms of Section 19(2) are expected to comply with specified norms and standards within 3 years from the date of such commencement. Failure to do so would entail in de-recognition of such school.
Section 22 postulates that the School Management Committee constituted under
Section 21, shall prepare a School Development Plan in the prescribed manner.
Section 22(2) provides that the School Development Plan so prepared shall be the basis for the grants to be made by the appropriate government or local authority, as the case may be.
That plan, however, cannot have any impact on consideration of application for grant of recognition for establishing an unaided school. To ensure that teachers should contribute in imparting quality education in the school itself, Section 28 imposes total prohibition on them to engage in private tuition or private teaching activities. Chapter VI inter alia provides for protection of rights of children. Section 32 thus provides that any person having grievance relating to the right of child under the 2009 Act, may make a written complaint to the local authority having jurisdiction, who in turn is expected to decide it within three months after affording a reasonable opportunity of being heard to the parties concerned. In addition, in terms of Section 31, the Commissions constituted under the provisions of the Commissions for Protection of Child Rights Act, 2005 can monitor the child 's right to education, so as to safeguard the right of the child upon receiving any complaint in that behalf relating to free and compulsory education.
By virtue of the 2009 Act, all schools established prior to the commencement of the said
Act are thus obliged to fulfill the norms and standards specified inter alia in
Sections 25, 26 and the Schedule of that Act (See Section 19(2)). The State is also expected to first weed out those schools which are non-performing, or under-performing or noncompliance schools and upon closure of such schools, the students and the teaching and nonteaching staff thereof should be transferred to the neighbourhood school. The provision is meant not only to strengthen the latter school by adequate number of students but to consolidate and to impart quality education due to the addition of teaching staff. Needless to observe, that if there is inadequate response to the government funded school, it is but appropriate that either the divisions thereof or the school itself be closed and the students and staff of such schools be transferred to a neighbourhood school by resorting to Section 18(3) of the 2009 Act. Only after taking such decisions could the School Development Plan represent the correct position regarding the need of government aided schools in every locality across the State. Besides, it will ensure proper and meaningful utilization of public funds. In absence of such exercise, the end result would be that on account of existing non- performing or underperforming or non-compliance schools, the School Development Plan would not reckon that locality for establishment of another school. In our view, even the State Government(s), by resorting to the provision of the 2009 Act, must take opportunity to re-organise its financial outflow at the micro level by weeding out the non-performing or under-performing or noncompliance schools receiving grant- in- aid, so as to ensure that only such government funded schools, who fulfill the norms and standards, are allowed to continue, to achieve the object of the 2009 Act of not only providing free and compulsory education to the children in the neighbourhood school but also to provide quality education. Thus, there is a power in the 2009
Act coupled with the duty of the State to ensure that only such government funded schools, who fulfill the norms and standards, are allowed to continue with the object of providing free and compulsory education to the children in the neighbourhood school.
Validity and applicability of the 2009 Act qua unaided non-minority schools
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To begin with, we need to understand the scope of Article 21A. It provides that the State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine. Thus, under the said Article, the obligation is on the State to provide free and compulsory education to all children of specified age. However, under the said Article, the manner in which the said obligation will be discharged by the State has been left to the State to determine by law. Thus, the State may decide to provide free and compulsory education to all children of the specified age through its own schools or through government aided schools or through unaided private schools. The question is whether such a law transgresses any constitutional limitation?
In this connection, the first and foremost principle we have to keep in mind is that what is enjoined by the directive principles (in this case Articles 41, 45 and 46) must be upheld as a
"reasonable restriction" under Articles 19(2) to 19(6). As far back as 1952, in State of Bihar
v. Kameshwar Singh (1952) SCR 889, this Court has illustrated how a directive principle may guide the Court in determining crucial questions on which the validity of an important enactment may be hinged. Thus, when the courts are required to decide whether the impugned law infringes a fundamental right, the courts need to ask the question whether the impugned law infringes a fundamental right within the limits justified by the directive principles or whether it goes beyond them. For example, the scope of the right of equality of opportunity in matters relating to employment (Article 16) to any office in the State appears more fully defined when read with the obligation of the State to promote with special care the economic and other interests of the weaker sections (Article 46). Similarly, our understanding of the right “to practice any profession or occupation” (Article 19(1)(g)) is clarified when we read along with that right the obligation of the State to see that the health of the workers and the tender age of the children are not abused (Article 39). Thus, we need to interpret the fundamental rights in the light of the directive principles. The above principles are very relevant in this case because the very content of Article 21A comes from reading of
Articles 41, 45 and 46 and, more particularly, from Article 45 (as it then stood before the
Constitution (Eighty sixth Amendment) Act, 2002).
It has been urged before us that Article 45, as it then stood, imposed obligation on the
State to provide for free and compulsory education for all children until they complete the age of 14 years and that the said obligation cannot be shifted or passed on to an unaided school, as defined in Section 2(n)(iv) of the 2009 Act. To answer the said contention, one needs to appreciate the scope of Articles 21, 21A, 19(1)(g) and Articles 41, 45 and 46 of the
Constitution. At the outset, it may be stated, that fundamental rights have two aspects they act as fetter on plenary legislative powers and, secondly, they provide conditions for fuller development of our people including their individual dignity. Right to live in Article 21 covers access to education. But unaffordability defeats that access. It defeats the State 's endeavour to provide free and compulsory education for all children of the specified age. To provide for free and compulsory education in Article 45 is not the same thing as to provide free and compulsory education. The word "for" in Article 45 is a preposition. The word "education" was read into Article 21 by the judgments of this Court. However, Article 21 merely declared
"education" to fall within the contours of right to live. To provide for right to access education,
Article 21A was enacted to give effect to Article 45 of the Constitution.
Under Article 21A, right is given to the State to provide by law "free and compulsory education". Article 21A contemplates making of a law by the State. Thus,
Article 21Acontemplates right to education flowing from the law to be made which is the
2009 Act, which is child centric and not institution centric. Thus, as stated,
Article 21A provides that the State shall provide free and compulsory education to all children of the specified age in such manner as the State may, by law, determine. The manner in which
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this obligation will be discharged by the State has been left to the State to determine by law.
The 2009 Act is thus enacted in terms of Article 21A. It has been enacted primarily to remove all barriers (including financial barriers) which impede access to education. One more aspect needs to be highlighted. It is not in dispute that education is a recognised head of "charity"
(see T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481). Therefore, even according to T.M.A. Pai, if an educational institution goes beyond "charity" into commercialization, it would not be entitled to protection of Article 19(1)(g). This is where the paradox comes in. If education is an activity which is charitable, could the unaided nonminority educational institution contend that the intake of 25% children belonging to weaker section and disadvantaged group only in class I as provided for in Section 12(1)(c) would constitute violation of Article 19(1)(g)? Would such a provision not be saved by the principle of reasonable restriction imposed in the interest of the general public in Article 19(6) of the
Constitution?
Coming to the principle of reasonableness, it may be stated, that though subject-wise,
Article 21A deals with access to education as against right to establish and administer educational institution in Article 19(1)(g), it is now not open to anyone to contend that the law relating to right to access education within Article 21A does not have to meet the requirement of Article 14 or Article 19 for its reasonableness. … Article 21 (right to life) remains the core of the Constitution around which Article 14, Article 19 and others revolve. In other words, all other fundamental rights in Part III would be dependent upon right to life in Article 21 as interpreted by this Court to include right to live with dignity, right to education, etc. At the end of the day, whether one adopts the pith and substance test or the nature and character of the legislation test or the effect test, one finds that all these tests have evolved as rules of interpretation only as a matter of reasonableness. They help us to correlate Article 21 with
Article 14, Article 19 and, so on.
Applying the above principle of reasonableness, though the right to access education falls as a subject matter under Article 21A and though to implement the said Article, Parliament has enacted the 2009 Act, one has to judge the validity of the said Act in the light of the principle of reasonableness in Article 19(6), particularly, when in T.M.A. Pai it has been held that right to establish and administer an educational institution falls under Article 19(1)(g) of the Constitution. Thus, the question which arises for determination is whether
Section 12(1)(c) of the 2009 Act is a reasonable restriction on the non-minority 's right to establish and administer an unaided educational institution under Article 19(6) Article 21 says that “no person shall be deprived of his life except according to the procedure established by law” whereas Article 19(1)(g) under the chapter “right to freedom” says that all citizens have the right to practice any profession or to carry on any occupation, trade or business which freedom is not absolute but which could be subjected to social control under Article 19(6) in the interest of general public.
By judicial decisions, right to education has been read into right to life in Article 21. A child who is denied right to access education is not only deprived of his right to live with dignity, he is also deprived of his right to freedom of speech and expression enshrined in
Article 19(1)(a). The 2009 Act seeks to remove all those barriers including financial and psychological barriers which a child belonging to the weaker section and disadvantaged group has to face while seeking admission. It is true that, as held in T.M.A. Pai as well as P.A.
Inamdar, the right to establish and administer an educational institution is a fundamental right, as long as the activity remains charitable under Article19(1)(g), however, in the said two decisions the correlation between Articles 21 and 21A, on the one hand, and Article 19(1)(g), on the other, was not under consideration. Further, the content of Article 21A flows from
Article 45 (as it then stood). The 2009 Act has been enacted to give effect to Article 21A. For
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the above reasons, since the Article 19(1)(g) right is not an absolute right as Article 30(1), the
2009 Act cannot be termed as unreasonable. To put an obligation on the unaided non-minority school to admit 25% children in class I under Section 12(1)(c) cannot be termed as an unreasonable restriction. Such a law cannot be said to transgress any constitutional limitation.
The object of the 2009 Act is to remove the barriers faced by a child who seeks admission to class I and not to restrict the freedom under Article 19(1)(g).
The next question that arises for determination is whether Section 12(1)(c) of the 2009
Act impedes the right of the non- minority to establish and administer an unaided educational institution? At the outset, it may be noted that Article 19(6) is a saving and enabling provision in the Constitution as it empowers the Parliament to make a law imposing reasonable restriction on the Article 19(1)(g) right to establish and administer an educational institution while Article 21A empowers the Parliament to enact a law as to the manner in which the State will discharge its obligation to provide for free and compulsory education. If the Parliament enacts the law, pursuant to Article 21A, enabling the State to access the network (including infrastructure) of schools including unaided non-minority schools would such a law be said to be unconstitutional, not saved under Article 19(6) Answer is in the negative. Firstly, it must be noted that the expansive provisions of the 2009 Act are intended not only to guarantee the right to free and compulsory education to children, but to set up an intrinsic regime of providing right to education to all children by providing the required infrastructure and compliance of norms and standards. Secondly, unlike other fundamental rights, the right to education places a burden not only on the State, but also on the parent/ guardian of every child
(Article 51A(k)). The Constitution directs both burdens to achieve one end: the compulsory education of children free from the barriers of cost, parental obstruction or State inaction.
Thus, Articles 21Aand 51A(k) balance the relative burdens on the parents and the State. Thus, the right to education envisages a reciprocal agreement between the State and the parents and it places an affirmative burden on all stakeholders in our civil society. Thirdly, right to establish an educational institution has now been recognized as a fundamental right within the meaning of Article 19(1)(g). This view is enforced by the opinion of this Court in T.M.A. Pai and P.A. Inamdar that all citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26 but that right is subject to the provisions of
Articles 19(6) and 26(a). The constitutional obligation of the State to provide for free and compulsory education to the specified category of children is co-extensive with the fundamental right guaranteed under Article19(1)(g) to establish an educational institution.
Lastly, the fundamental right to establish an educational institution cannot be confused with the right to ask for recognition or affiliation. The exercise of a fundamental right to establish and administer an educational institution can be controlled in a number of ways. Indeed, matters relating to the right to grant of recognition and/ or affiliation are covered within the realm of statutory right, which, however, will have to satisfy the test of reasonable restrictions
(see Article19(6)). Thus, from the scheme of Article 21A and the 2009 Act, it is clear that the primary obligation is of the State to provide for free and compulsory education to children between the age of 6 to 14 years and, particularly, to children who are likely to be prevented from pursuing and completing the elementary education due to inability to afford fees or charges. Correspondingly, every citizen has a right to establish and administer educational institution under Article 19(1)(g) so long as the activity remains charitable. Such an activity undertaken by the private institutions supplements the primary obligation of the State. Thus, the State can regulate by law the activities of the private institutions by imposing reasonable restrictions under Article 19(6). The 2009 Act not only encompasses the aspects of right of children to free and compulsory education but to carry out the provisions of the 2009 Act, it also deals with the matters pertaining to establishment of school (s) as also grant of recognition
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(see Section 18). Thus, after the commencement of the 2009 Act, the private management intending to establish the school has to make an application to the appropriate authority and till the certificate is granted by that authority, it cannot establish or run the school. The matters relevant for the grant of recognition are also provided for in Sections 19, 25 read with the
Schedule to the Act. Thus, after the commencement of the 2009 Act, by virtue of
Section 12(1)(c)read with Section 2(n)(iv), the State, while granting recognition to the private unaided non-minority school, may specify permissible percentage of the seats to be earmarked for children who may not be in a position to pay their fees or charges. In T.M.A. Pai, this Court vide para 53 has observed that the State while prescribing qualifications for admission in a private unaided institution may provide for condition of giving admission to small percentage of students belonging to weaker sections of the society by giving them freeships, if not granted by the government. Applying the said law, such a condition in Section 12(1)(c) imposed while granting recognition to the private unaided non-minority school cannot be termed as unreasonable. Such a condition would come within the principle of reasonableness in
Article 19(6). Indeed, by virtue of Section 12(2) read with Section 2(n)(iv), private unaided school would be entitled to be reimbursed with the expenditure incurred by it in providing free and compulsory education to children belonging to the above category to the extent of per child expenditure incurred by the State in a school specified in Section 2(n)(i) or the actual amount charged from the child, whichever is less. Such a restriction is in the interest of the general public. It is also a reasonable restriction. Such measures address two aspects, viz., upholding the fundamental right of the private management to establish an unaided educational institution of their choice and, at the same time, securing the interests of the children in the locality, in particular, those who may not be able to pursue education due to inability to pay fees or charges of the private unaided schools.
We also do not see any merit in the contention that Section 12(1)(c) violates Article 14.
As stated, Section 12(1)(c) inter alia provides for admission to class I, to the extent of 25% of the strength of the class, of the children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education to them till its completion. The emphasis is on "free and compulsory education". Earmarking of seats for children belonging to a specified category who face financial barrier in the matter of accessing education satisfies the test of classification in Article 14. Further, Section 12(1)(c) provides for level playing field in the matter of right to education to children who are prevented from accessing education because they do not have the means or their parents do not have the means to pay for their fees. As stated above, education is an activity in which we have several participants. There are number of stakeholders including those who want to establish and administer educational institutions as these supplement the primary obligation of the State to provide for free and compulsory education to the specified category of children. Hence,
Section 12(1)(c) also satisfies the test of reasonableness, apart from the test of classification in Article 14.
The last question which we have to answer under this head is whether
Section 12(1)(c) runs counter to the judgments of this Court in T.M.A. Pai and P.A. Inamdar or principles laid down therein? According to the petitioners, T.M.A. Pai defines various rights and has held vide para 50 that right to establish and administer broadly comprises the following: (i) right to admit students (ii) right to set up a reasonable fee structure etc. (the rest are not important for discussion under this Head). That, T.M.A. Pai lays down the essence and structure of rights in Article 19(1)(g) insofar as they relate to educational institutions in compliance with (a) the Charity Principle (b) the Autonomy Principle (c) the Voluntariness
Principle (d) Anti-nationalisation (e) Co-optation Principle. In support, reliance is placed by the Petitioners on number of paras from the above two judgments. At the outset, we may reiterate that Article 21A of the Constitution provides that the State shall provide free and
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compulsory education to all children of the specified age in such manner as the State may, by law, determine. Thus, the primary obligation to provide free and compulsory education to all children of the specified age is on the State. However, the manner in which this obligation will be discharged by the State has been left to the State to determine by law. The State may do so through its own schools or through aided schools or through private schools, so long as the law made in this regard does not transgress any other constitutional limitation. This is because Article 21A vests the power in the State to decide the manner in which it will provide free and compulsory education to the specified category of children. As stated, the 2009 Act has been enacted pursuant to Article 21A. In this case, we are concerned with the interplay of
Article 21, Article 21A, on the one hand, and the right to establish and administer educational institution under Article 19(1)(g) read with Article 19(6). That was not the issue in T.M.A. Pai nor in P.A. Inamdar.
In this case, we are concerned with the validity of Section 12(1)(c) of the 2009 Act. Hence, we are concerned with the validity of the law enacted pursuant to Article 21A placing restrictions on the right to establish and administer educational institutions (including schools) and not the validity of the Scheme evolved in Unni Krishnan v. State of Andhra
Pradesh (1993) 1 SCC 645. … It is true that the above two judgments have held that all citizens have a right to establish and administer educational institutions under Article 19(1)(g), however, the question as to whether the provisions of the 2009 Act constituted a restriction on that right and if so whether that restriction was a reasonable restriction under Article 19(6) was not in issue. Moreover, the controversy in T.M.A. Pai arose in the light of the scheme framed in Unni Krishnan and the judgment in P.A. Inamdar was almost a sequel to the directions in
Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697 in which the entire focus was Institution centric and not child centric and that too in the context of higher education and professional education where the level of merit and excellence have to be given a different weightage than the one we have to give in the case of Universal Elementary
Education for strengthening social fabric of democracy through provision of equal opportunities to all and for children of weaker section and disadvantaged group who seek admission not to higher education or professional courses but to Class I. In this connection, the relevant paras from T.M.A. Pai make the position clear. They are paras 37, 39, 40, 42, 45,
48, 49 and 50 (read together), 51, 53, 56, 58 - 61, 62, 67, 68, 70 etc., similarly, paras 26, 35,
104, 146 of P.A. Inamdar. We quote the relevant para in support of what we have stated above:
T.M.A. Pai
48. Private education is one of the most dynamic and fastest-growing segments of post-secondary education at the turn of the twenty-first century. A combination of unprecedented demand for access to higher education and the inability or unwillingness of the Government to provide the necessary support has brought private higher education to the forefront. Private institutions, with a long history in many countries, are expanding in scope and number, and are becoming increasingly important in parts of the world that relied almost entirely on the public sector.
50. The right to establish and administer broadly comprises the following rights:
(a) to admit students;
(b) to set up a reasonable fee structure;
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching); and
(e) to take action if there is dereliction of duty on the part of any employees.
58. For admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant
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who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate Regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions.
59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school-leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies.
60. Education is taught at different levels, from primary to professional. It is, therefore, obvious that government Regulations for all levels or types of educational institutions cannot be identical; so also, the extent of control or
Regulation could be greater vis-à-vis aided institutions.
61. In the case of unaided private schools, maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged. At the school level, it is not possible to grant admissions on the basis of merit. It is no secret that the examination results at all levels of unaided private schools, notwithstanding the stringent Regulations of the governmental authorities, are far superior to the results of the government-maintained schools.
There is no compulsion on students to attend private schools. The rush for admission is occasioned by the standards maintained in such schools, and recognition of the fact that State-run schools do not provide the same standards of education. The State says that it has no funds to establish institutions at the same level of excellence as private schools. But by curtailing the income of such private schools, it disables those schools from affording the best facilities because of a lack of funds. If this lowering of standards from excellence to a level of mediocrity is to be avoided, the State has to provide the difference which, therefore, brings us back in a vicious circle to the original problem viz. the lack of State funds. The solution would appear to lie in the States not using their scanty resources to prop up institutions that are able to otherwise maintain themselves out of the fees charged, but in improving the facilities and infrastructure of State-run schools and in subsidizing the fees payable by the students there. It is in the interest of the general public that more good quality schools are established; autonomy and non- Regulation of the school administration in the right of appointment, admission of the students and the fee to be charged will ensure that more such institutions are established. The fear that if a private school is allowed to charge fees commensurate with the fees affordable, the degrees would be "purchasable" is an unfounded one since the standards of education can be and are controllable through the Regulations relating to recognition, affiliation and common final examinations.
P.A. Inamdar
26. These matters have been directed to be placed for hearing before a Bench of seven Judges under orders of the Chief Justice of India pursuant to the order dated 15-7-2004 in P.A. Inamdar v. State of Maharashtra and order dated 29-72004 in Pushpagiri Medical Society v. State of Kerala. The aggrieved persons before us are again classifiable in one class, that is, unaided minority and nonminority institutions imparting professional education. The issues arising for decision before us are only three:
(i) the fixation of "quota" of admissions/students in respect of unaided professional institutions;
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(ii) the holding of examinations for admissions to such colleges, that is, who will hold the entrance tests; and
(iii) the fee structure.
104. Article 30(1) speaks of "educational institutions" generally and so does
Article 29(2). These articles do not draw any distinction between an educational institution dispensing theological education or professional or non-professional education. However, the terrain of thought as has developed through successive judicial pronouncements culminating in Pai Foundation is that looking at the concept of education, in the backdrop of the constitutional provisions, professional educational institutions constitute a class by themselves as distinguished from educational institutions imparting non-professional education. It is not necessary for us to go deep into this aspect of the issue posed before us inasmuch as Pai Foundation has clarified that merit and excellence assume special significance in the context of professional studies. Though merit and excellence are not anathema to non-professional education, yet at that level and due to the nature of education which is more general, the need for merit and excellence therein is not of the degree as is called for in the context of professional education.
146. Non-minority unaided institutions can also be subjected to similar restrictions which are found reasonable and in the interest of the student community. Professional education should be made accessible on the criterion of merit and on non- exploitative terms to all eligible students on a uniform basis.
Minorities or non-minorities, in exercise of their educational rights in the field of professional education have an obligation and a duty to maintain requisite standards of professional education by giving admissions based on merit and making education equally accessible to eligible students through a fair and transparent admission procedure and based on a reasonable fee structure.
P.A. Inamdar holds that right to establish and administer educational institution falls in
Article 19(1)(g). It further holds that seat-sharing, reservation of seats, fixing of quotas, fee fixation, cross-subsidization, etc. imposed by judge-made scheme in professional/ higher education is an unreasonable restriction applying the principles of Voluntariness, Autonomy,
Co-optation and Anti-nationalisation, and, lastly, it deals with inter-relationship of
Articles 19(1)(g), 29(2) and 30(1) in the context of the minority and non-minority 's right to establish and administer educational institutions. The point here is how does one read the above principles of Autonomy, Voluntariness, Co-optation and Anti-nationalisation of seats.
On reading T.M.A. Pai and P.A. Inamdar in proper perspective, it becomes clear that the said principles have been applied in the context of professional/ higher education where merit and excellence have to be given due weightage and which tests do not apply in cases where a child seeks admission to class I and when the impugned Section 12(1)(c) seeks to remove the financial obstacle. Thus, if one reads the 2009 Act including Section 12(1)(c) in its application to unaided non-minority school(s), the same is saved as reasonable restriction under
Article 19(6).
However, we want the Government to clarify the position on one aspect. There are boarding schools and orphanages in several parts of India. In those institutions, there are day scholars and boarders. The 2009 Act could only apply to day scholars. It cannot be extended to boarders. To put the matter beyond doubt, we recommend that appropriate guidelines be issued under Section 35 of the 2009 Act clarifying the above position.
Validity and applicability of the 2009 Act qua unaided minority schools
The inspiring preamble to our Constitution shows that one of the cherished objects of our
Constitution is to assure to all its citizens the liberty of thought, expression, belief, faith and worship. To implement and fortify these purposes, Part III has provided certain fundamental rights including Article 26 of the Constitution which guarantees the right of every religious
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denomination or a section thereof, to establish and maintain institutions for religious and charitable purposes; to manage its affairs in matters of religion; to acquire property and to administer it in accordance with law. Articles 29 and 30 confer certain educational and cultural rights as fundamental rights.
Article 29(1) confers on any section of the citizens a right to conserve its own language, script or culture by and through educational institutions and makes it obvious that a minority could conserve its language, script or culture and, therefore, the right to establish institutions of its choice is a necessary concomitant to the right to conserve its distinctive language, script or culture and that right is conferred on all minorities by Article 30(1). That right, however, is subject to the right conferred by Article 29(2).
Article 30(1) gives the minorities two rights: (a) to establish and (b) to administer educational institutions of their choice. The real import of Article29(2) and Article 30(1) is that they contemplate a minority institution with a sprinkle of outsiders admitted into it. By admitting a non-member into it the minority institution does not shed its character and cease to be a minority institution.
The key to Article 30(1) lies in the words "of their choice".
The right established by Article 30(1) is a fundamental right declared in terms absolute unlike the freedoms guaranteed by Article 19 which is subject to reasonable restrictions.
Article 30(1) is intended to be a real right for the protection of the minorities in the matter of setting up educational institutions of their own choice. However, Regulations may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition. However, such Regulation must satisfy the test of reasonableness and that such
Regulation should make the educational institution an effective vehicle of education for the minority community or for the persons who resort to it. Applying the above test in the case of
Rev. Sidhajbhai Sabhai v. State of Bombay (1963) SCR 837, this Court held the rule authorizing reservation of seats and the threat of withdrawal of recognition under the impugned rule to be violative of Article 30(1).
The above well-settled principles have to be seen in the context of the 2009 Act enacted to implement Article 21A of the Constitution. At the very outset, the question that arises for determination is what was the intention of the Parliament? Is the 2009 Act intended to apply to unaided minority schools? In answer to the above question, it is important to note that in the case of P.A. Inamdar, this Court held that there shall be no reservations in private unaided colleges and that in that regard there shall be no difference between the minority and nonminority institutions. However, by the Constitution (Ninety-third Amendment) Act, 2005,
Article 15 is amended. It is given Article 15(5). The result is that P.A. Inamdar has been overruled on two counts: (a) whereas this Court in P.A. Inamdar had stated that there shall be no reservation in private unaided colleges, the Amendment decreed that there shall be reservations; (b) whereas this Court in P.A. Inamdar had said that there shall be no difference between the unaided minority and non- minority institutions, the Amendment decreed that there shall be a difference. Article 15(5) is an enabling provision and it is for the respective
States either to enact a legislation or issue an executive instruction providing for reservation except in the case of minority educational institutions referred to in Article 30(1). The intention of the Parliament is that the minority educational institution referred to in
Article 30(1) is a separate category of institutions which needs protection of Article 30(1) and viewed in that light we are of the view that unaided minority school(s) needs special protection under Article30(1). Article 30(1) is not conditional as Article 19(1)(g). In a sense, it is absolute as the Constitution framers thought that it was the duty of the Government of the day to protect the minorities in the matter of preservation of culture, language and script via establishment
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of educational institutions for religious and charitable purposes (See: Article 26). Reservations of 25% in such unaided minority schools result in changing the character of the schools if right to establish and administer such schools flows from the right to conserve the language, script or culture, which right is conferred on such unaided minority schools. Thus, the 2009
Act including Section 12(1)(c) violates the right conferred on such unaided minority schools under Article 30(1). However, when we come to aided minority schools we have to keep in mind Article 29(2). As stated, Article 30(1) is subject to Article 29(2). The said Article confers right of admission upon every citizen into a State-aided educational institution.
Article 29(2) refers to an individual right. It is not a class right. It applies when an individual is denied admission into an educational institution maintained or aided by the State. The 2009
Act is enacted to remove barriers such as financial barriers which restrict his/her access to education. It is enacted pursuant to Article 21A. Applying the above tests, we hold that the
2009 Act is constitutionally valid qua aided minority schools.
Conclusion (according to majority)
Accordingly, we hold that the Right of Children to Free and Compulsory Education Act,
2009 is constitutionally valid and shall apply to the following:
(i) a school established, owned or controlled by the appropriate Government or a local authority; (ii) an aided school including aided minority school(s) receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;
(iii) a school belonging to specified category; and
(iv) an unaided non-minority school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority.
However, the said 2009 Act and in particular Sections 12(1)(c) and 18(3) infringes the fundamental freedom guaranteed to unaided minority schools under Article 30(1) and, consequently, applying the R.M.D. Chamarbaugwalla v. Union of India 1957 SCR 930 principle of severability, the said 2009 Act shall not apply to such schools.
This judgment will operate from today. In other words, this will apply from the academic year 2012-13. However, admissions given by unaided minority schools prior to the pronouncement of this judgment shall not be reopened.
Subject to what is stated above, the writ petitions are disposed of with no order as to costs.
JUSTICE RADHAKRISHNAN (for himself, DISSENTING)
… In Mohini Jain v. State of Karnataka (1992) 3 SCC 666, this Court held that the right to education is a fundamental right guaranteed under Article 21 of the Constitution and that dignity of individuals cannot be assured unless accompanied by right to education and that charging of capitation fee for admission to educational institutions would amount to denial of citizens ' right to education and is violative of Article 14 of the Constitution. The ratio laid down in Mohini Jain was questioned in Unni Krishnan v. State of A.P. (1993) 1 SCC 645 contending that if the judgment in Mohini Jain was given effect to, many of the private educational institutions would have to be closed down.
Mohini Jain was affirmed in Unni Krishnan to the extent of holding that the right to education flows from Article 21 of the Constitution and charging of capitation fee was illegal.
The Court partly overruled Mohini Jain and held that the right to free education is available only to children until they complete the age of 14 years and after that obligation of the State
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to provide education would be subject to the limits of its economic capacity and development.
Private unaided recognized/affiliated educational institutions running professional courses were held entitled to charge the fee higher than that charged by government institutions for similar courses but that such a fee should not exceed the maximum limit fixed by the State.
The Court also formulated a scheme and directed every authority to impose that scheme upon institutions seeking recognition/affiliation, even if they are unaided institutions. Unni
Krishnan introduced the concept of "free seats" and "payment seats" and ordered that private unaided educational institutions should not add any further conditions and were held bound by the scheme. Unni Krishnan also recognized the right to education as a fundamental right guaranteed under Article 21 of the Constitution and held that the right is available to children until they complete the age of 14 years.
The Department of Education, Ministry of Human Resources Development, Government of India after the judgment in Unni Krishnan made a proposal to amend the Constitution to make the right to education a fundamental right for children up to the age of 14 years and also a fundamental duty of citizens of India so as to achieve the goal of universal elementary education. The Department also drafted a Bill (Constitution (Eighty-third Amendment) Bill,
1997) so as to insert a new Article 21A in the Constitution which read as follows:
21A. Right to education.
21A (1) The State shall provide free and compulsory education to all citizens of the age of six to fourteen years.
Clause (2) The Right to Free and Compulsory Education referred to in Clause
(1) shall be enforced in such manner as the State may, by law, determine.
Clause (3) The State shall not make any law, for free and compulsory education under Clause (2), in relation to the educational institutions not maintained by the
State or not receiving aid out of State funds.
The draft Bill was presented before the Chairman, Rajya Sabha on 28.07.1997, who referred the Bill to a Committee for examination and report. The Committee called for suggestions/views from individuals, organisations, institutions etc. and ultimately submitted its report on 4.11.1997. The Committee in its Report … on Clause (3) of the proposed
Article 21, the… stated as follows:
Clause (3) of the proposed Article 21 provides that the State shall not make any law for free and compulsory education under clause (2), in relation to the educational institutions not maintained by the State or not receiving aid out of
State funds. However, strong apprehensions were voiced about Clause (3) of the proposed new Article 21A. Many of the people in the written memoranda and also educational experts in the oral evidence have expressed displeasure over keeping the private educational institutions outside the purview of the fundamental right to be given to the children. The Secretary stated that the
Supreme Court in the Unni Krishnan judgment said that wherever the State is not providing any aid to any institution, such an institution need not provide free education. The Department took into account the Supreme Court judgment in the
Unni Krishnan case which laid down that no private institution, can be compelled to provide free services. Therefore, they provided in the Constitutional amendment that this concept of free education need not be extended to schools or institutions which are not aided by the Government, the Secretary added. He, however, stated that there was no intention, to exclude them from the overall responsibility to provide education.
The Committee specifically referred to the judgment in Unni Krishnan in paragraph 15.14 of the Report. Reference was also made to the dissenting note of one of the members. Relevant portion of the report is extracted below:
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15.14. Clause (3) of the proposed Article 21(A) prohibits the State from making any law for free and compulsory education in relation to educational institutions not maintained by the State or not receiving aid out of State funds. This issue was discussed by the Members of the Committee at length. The members were in agreement that even though the so called private institutions do not receive any financial aid, the children studying in those institutions should not be deprived of their fundamental right. As regards the interpretation as to whether the private institutions should provide free education or not, the Committee is aware of the Supreme Court judgment given in the Unni Krishnan case. This judgment provides the rule for application and interpretation. In view of the judgment, it is not necessary to make a clause in the Constitution. It would be appropriate to leave the interpretation to the courts instead of making a specific provision in black and white. Some members, however, felt that the private institutions which do not get any financial aid, provide quality education.
Therefore, it would be inappropriate to bring such institutions under the purview of free education. Those members, accordingly, felt that Clause (3) should not be deleted.
15.15. The Committee, however, after a thorough discussion feels that this provision need not be there. The Committee recommends that Clause (3) of the proposed Article 21(A) may be deleted. Smt. Hedwig Michael Rego, M.P. a
Member of the Committee gave a Minute of Dissent. It is appended to the report.
15.16. The Committee recommends that the Bill be passed subject to the recommendations made in the preceding paragraphs.
MINUTES of DISSENT
I vehemently oppose the State wanting to introduce free and compulsory education in private, unaided schools.
Clause 21A (3) must be inserted as I do not wish the State to make laws regarding free and compulsory education in relation to educational institutions not maintained by the State or not receiving aid out of State funds.
A Committee of State Education Ministers have already considered the issue in view of the Unni Krishnan case, and found it not feasible to bring unaided private educational institutions within the purview of the Bill.
Hence, I state once again that the proposed clause “21A(3)” must be inserted in the Bill.
Yours sincerely,
Sd/(SMT. HEDWIG MICHAEL REGO)
(Emphasis supplied)
Report referred to above was adopted by the Parliamentary Standing Committee on
Human Resource Development and submitted the same to the Rajya Sabha on 24.11.1997 and also laid on the Table of the Lok Sabha on 24.11.1997. The Lok Sabha was however dissolved soon thereafter and elections were declared and that Bill was not further pursued.
The Chairman of the Law Commission who authored Unni Krishnan judgment took up the issue suo moto. Following the ratio in Unni Krishnan, the Law Commission submitted its
165th Report to the Ministry of Law, Justice and Company Affairs, Union of India vide letter dated 19.11.1998. Law Commission in that letter stated as follows: "Law Commission had taken up the aforesaid subject suo moto having regard to the Directive Principle of the
Constitution of India as well as the decision of the Supreme Court of India."
Referring to the Constitution (Eighty-third Amendment) Bill, 1997, Law Commission in its report in paragraph 6.1.4 stated as under:
6.1.4 (page 165.35): The Department of Education may perhaps be right in saying that as of today the private educational institutions which are not in receipt
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of any grant or aid from the State, cannot be placed under an obligation to impart free education to all the students admitted into their institutions. However, applying the ratio of Unni Krishnan case, it is perfectly legitimate for the State or the affiliating Board, as the case may be, to require the institution to admit and impart free education to fifty per cent of the students as a condition for affiliation or for permitting their students to appear for the Government/Board examination.
To start with, the percentage can be prescribed as twenty. Accordingly, twenty per cent students could be selected by the concerned institution in consultation with the local authorities and the parent-teacher association. This proposal would enable the unaided institutions to join the national endeavour to provide education to the children of India and to that extent will also help reduce the financial burden upon the State.
The Law Commission which had initiated the proceedings suo moto in the light of Unni
Krishnan suggested deletion of Clause (3) from Article 21A stating as follows:
So far as Clause (3) is concerned, the Law Commission states that it should be totally recast on the light of the basic premise of the decision in Unni Kirshnan which has been referred to hereinabove. It would neither be advisable nor desirable that the unaided educational institutions are kept outside the proposed
Article altogether while the sole primary obligation to provide education is upon the State, the educational institutions, whether aided or unaided supplement this effort. Para 6.6.2 of the report reads as under:
6.6.2. The unaided institutions should be made aware that recognition, affiliation or permission to send their children to appear for the Government/Board examination also casts a corresponding social obligation upon them towards the society. The recognition/affiliation/permission aforesaid is meant to enable them to supplement the effort of the State and not to enable them to make money.
Since they exist and function effectively because of such recognition/affiliation/permission granted by public authorities, they must and are bound to serve the public interest. For this reason, the unaided educational institutions must be made to impart free education to 50% of the students admitted to their institutions. This principle has already been applied to medical, engineering and other colleges imparting professional education and there is no reason why the schools imparting primary/elementary education should not be placed under the same obligation. Clause (3) of proposed Article 21A may accordingly be recast to give effect to the above concept and obligation.
… Law Commission was giving effect to the ratio of Unni Krishnan and made suggestions to bring in Article 21A mainly on the basis of the scheme framed in Unni Krishnan providing
"free seats" in private educational institutions.
The Law Commission report, report of the Parliamentary Standing Committee, judgment in Unni Krishnan etc. were the basis on which the Constitution (Ninety-third Amendment)
Bill, 2001 was prepared and presented. Statement of objects and reasons of the Bill given below would indicate that fact:
2. With a view to making right to education free and compulsory education a fundamental right, the Constitution (Eighty-third Amendment) Bill, 1997 was introduced in the Parliament to insert a new article, namely,
Article 21A conferring on all children in the age group of 6 to14 years the right to free and compulsory education. The said Bill was scrutinized by the
Parliamentary Standing Committee on Human Resource Development and the subject was also dealt with in its 165 th Report by the Law Commission of India.
3. After taking into consideration the report of the Law Commission of India and the recommendations of the Standing Committee of Parliament, the proposed amendments in Part III, Part IV and Part IVA of the Constitution are being made which are as follows:
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(a) to provide for free and compulsory education to children in the age group of
6 to 14 years and for this purpose, a legislation would be introduced in parliament after the Constitution (Ninety-third Amendment) Bill, 2001 is enacted;
(b) to provide in article 45 of the Constitution that the State shall endeavour to provide early childhood care and education to children below the age of six years; and
(c) to amend article 51A of the Constitution with a view to providing that it shall be the obligation of the parents to provide opportunities for education to their children. 4. The Bill seeks to achieve the above objects.
The above Bill was passed and received the assent of the President on 12.12.2002 and was published in the Gazette of India on 13.12.2002 and the following provisions were inserted in the Constitution; by the Constitution (Eighty-sixth Amendment) Act, 2002.
Part III Fundamental Rights
… Unni Krishnan had created mayhem and raised thorny issues on which the Law
Commission had built up its edifice, suo moto. The Law Commission had acknowledged the fact that but for the ratio in Unni Kirshnan the unaided private educational institutions would have no obligation to impart free and compulsory education to the children admitted in their institutions. Law Commission was also of the view that the ratio in Unni Krishnan had legitimized the State or the affiliating Board to require unaided educational institutions to provide free education, as a condition for affiliation or for permitting the students to appear for the Government/Board examination.
Unni Krishnan was questioned contending that it had imposed unreasonable restrictions under Article 19(6) of the Constitution on the administration of the private educational institutions and that the rights of minority communities guaranteed under Article 29 and
Article 30 were eroded. Unni Krishnan scheme which insisted that private unaided educational institutions should provide for "free seats" as a condition for recognition or affiliation was also questioned contending that the same would amount to nationalisation of seats.
… T.M.A. Pai examined the correctness of the ratio laid down in Unni Krishnan and also the validity of the scheme. The correctness of the rigid percentage of reservation laid down in
St. Stephen 's College v. University of Delhi (1992) 1 SCC 558 in the case of minority aided educational institutions and the meaning and contents of Articles 30 and 29(2) were also examined. T.M.A. Pai acknowledged the right of all citizens to practice any profession, trade or business under Article 19(1)(g) and Article 26 and held those rights would be subject to the provisions that were placed under Article19(6) and 26(a) and the rights of minority to establish and administer educational institutions under Article 30 was also upheld.
Unni Krishnan scheme was held unconstitutional, but it was ordered that there should be no capitation fee or profiteering and reasonable surplus to meet the cost of expansion and augmentation of facilities would not mean profiteering. Further, it was also ordered that the expression “education” in all the Articles of the Constitution would mean and include education at all levels, from primary education level up to post graduate level and the expression “educational institutions” would mean institutions that impart education as understood in the Constitution.
T.M.A. Pai has also recognised that the expression “occupation” in Article 19(1)(g) is an activity of a person undertaken as a means of livelihood or a mission in life and hence
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charitable in nature and that establishing and running an educational institution is an occupation, and in that process a reasonable revenue surplus can be generated for the purpose of development of education and expansion of the institutions. The right to establish and administer educational institutions, according to T.M.A. Pai, comprises right to admit students, set up a reasonable fee structure, constitute a governing body, appoint staff, teaching and nonteaching and to take disciplinary action. So far as private unaided educational institutions are concerned, the Court held that maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fee to be charged etc. and that the authority granting recognition or affiliation can certainly lay down conditions for the grant of recognition or affiliation but those conditions must pertain broadly to academic and educational matters and welfare of students and teachers. The Court held that the right to establish an educational institution can be regulated but such regulatory measures must be in general to ensure proper academic standards, atmosphere and infrastructure and prevention of maladministration. The necessity of starting more quality private unaided educational institutions in the interest of general public was also emphasised by the Court by ensuring autonomy and non- Regulation in the school administration, admission of students and fee to be charged. T.M.A. Pai rejected the view that if a private school is allowed to charge fee commensurate with the fee affordable, the degrees would be purchasable as unfounded since the standards of education can be and are controllable through recognition, affiliation and common final examination. Casting burden on other students to pay for the education of others was also disapproved by T.M.A.
Pai holding that there should be no cross-subsidy.
T.M.A. Pai has also dealt with the case of private aided professional institutions, minority and non-minority, and also other aided institutions and stated that once aid is granted to a private professional educational institution, the government or the state agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution. T.M.A. Pai also acknowledged that there are large number of educational institutions, like schools and non-professional colleges, which cannot operate without the support of aid from the state and the Government in such cases, would be entitled to make Regulations relating to the terms and conditions of employment of the teaching and non-teaching staff. In other words, autonomy in private aided institutions would be less than that of unaided institutions.
T.M.A. Pai also acknowledged the rights of the religious and linguistic minorities to establish and administer educational institutions of their choice under Article 30(1) of the
Constitution and held that right is not absolute as to prevent the government from making any
Regulation whatsoever. The Court further held that as in the case of a majority run institution, the moment a minority institution obtains a grant or aid, Article 28 of the Constitution comes into play.
T.M.A. Pai further held that the ratio laid down in St. Stephen is not correct and held that even if it is possible to fill up all the seats with students of the minority group, the moment the institution is granted aid, the institution will have to admit students of the non-minority group to a reasonable extent, whereby the character of the institution is not annihilated, and at the same time, the rights of the citizen engrafted under Article 29(2) are not subverted. The judgment in T.M.A. Pai was pronounced on 31.10.2002, 25.11.2002 and Article 21A, new
Article 45 and Article 51A(k) were inserted in the Constitution on 12.12.2002, but the basis for the introduction of Article 21A and the deletion of original Clause (3) from Article 21A, was due to the judgment of Unni Krishnan. Parliament, it may be noted, was presumed to be aware of the judgment in T.M.A. Pai, and hence, no obligation was cast on unaided private educational institutions but only on the State, while inserting Article 21A.
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The judgment in T.M.A. Pai, after the introduction of the above mentioned articles, was interpreted by various Courts, State Governments, educational institutions in different perspectives leading to the enactment of various statutes and Regulations as well, contrary to each other. A Bench of five Judges was, therefore, constituted to clarify certain doubts generated out of the judgment in Pai Foundation and its application. Rights of unaided minority and non-minority institutions and restrictions sought to be imposed by the State upon them were the main issues before the Court and not with regard to the rights and obligations of private aided institutions run by minorities and non- minorities. The five Judges ' Bench rendered its judgment on 14.8.2003 titled Islamic Academy of Education and another v. State of Karnataka (2003) 6 SCC 697. Unfortunately, Islamic Academy created more problems and confusion than solutions and, in order to steer clear from that predicament, a seven Judges
Bench was constituted …in P.A. Inamdar v. State of Maharashtra (2005) 6 SCC 537 and the
Court cleared all confusion and doubts, particularly insofar as unaided minority and nonminority educational institutions are concerned.
P.A.
Inamdar specifically examined the inter-relationship between Articles 19(1)(g), 29(2) and 30(1) of the Constitution and held that the right to establish an educational institution (which evidently includes schools as well) for charity or a profit, being an occupation, is protected by Article 19(1)(g) with additional protection to minority communities under Article 30(1). P.A. Inamdar, however, reiterated the fact that, once aided, the autonomy conferred by protection of Article 30(1) is diluted, as the provisions of
Articles 29(2) will be attracted and certain conditions in the nature of Regulations can legitimately accompany the State aid. Reasonable restrictions pointed out by P.A. Inamdar may be indicated on the following subjects: (i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business; (ii) the carrying on by the State, or by a corporation owned or controlled by the State of any trade, business, industry or service whether to the exclusion, complete or partial of citizens or otherwise. Referring to the judgments in Kerala Education Bill, In Re 1959 SCR 995 and St. Stephen, the Court took the view that once an educational institution is granted aid or aspires for recognition, the State may grant aid or recognition accompanied by certain restrictions or conditions which must be followed as essential to the grant of such aid or recognition. P.A.
Inamdar, as I have already indicated, was mainly concerned with the question whether the
State can appropriate the quota of unaided educational institutions both minority and nonminority. Explaining T.M.A. Pai, the Court in P.A. Inamdar held as follows:
A minority educational institution may choose not to take any aid from the State and may also not seek any recognition or affiliation. It may be imparting such instructions and may have students learning such knowledge that do not stand in need of any recognition. Such institutions would be those where instructions are imparted for the sake of instructions and learning is only for the sake of learning and acquiring knowledge. Obviously, such institutions would fall in the category of those who would exercise their right under the protection and privilege conferred by Article 30(1) "to their hearts ' content" unhampered by any restrictions excepting those which are in national interest based on considerations such as public safety, national security and national integrity or are aimed at preventing exploitation of students or the teaching community. Such institutions cannot indulge in any activity which is violative of any law of the land. They are free to admit all students of their own minority community if they so choose to do.
… As per our understanding, neither in the judgment of T.M.A. Pai nor in the Constitution
Bench decision in Kerala Education Bill which was approved by T.M.A. Pai is there anything
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which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalisation of seats which has been specifically disapproved in T.M.A. Pai. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of the minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the
State to make admissions available on the basis of reservation policy to less meritorious candidates. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non- exploitative and based on merit.
T.M.A. Pai, it was pointed out by P.A. Inamdar, merely permitted the unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat sharing with the State or adopting selection based on common entrance test of the State.
Further, it was also pointed that unaided educational institutions can frame their own policy to give free-ships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the state to cater to the educational needs of weaker and poorer sections of the society not out of compulsion, but on their own volition. P.A. Inamdar reiterated that nowhere in T.M.A. Pai, either in the majority or in the minority opinion, have they found any justification for imposing seat sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota seats or management seats. Further, it was pointed that the fixation of percentage of quota is to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State.
… Comparing the judgments in P.A. Inamdar and T.M.A. Pai, what emerges is that so far as unaided educational institutions are concerned, whether they are established and administered by minority or non-minority communities, they have no legal obligation in the matter of seat sharing and up to the level of under-graduate education they enjoy total freedom.
State also cannot compel them to give up a share of the available seats to the candidates chosen by the State. Such an appropriation of seats, it was held, cannot be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution since they have unfettered fundamental right and total freedom to run those institutions subject to the law relating to taxation, sanitation, social welfare, economic legislation, public order and morality.
Parliament, in its wisdom, brought in a new legislation Right to Education Act to provide free and compulsory education to children of the age 6 to 14 years, to discharge the constitutional obligation of the State, as envisaged under Article 21A. Provisions have also been made in the Act to cast the burden on the non-state actors as well, to achieve the goal of
Universal Elementary Education. …
… Right to education, so far as children of the age 6 to 14 years are concerned, has been elevated to the status of fundamental right under Article 21A and a corresponding obligation has been cast on the State, but through Sections 12(1)(b) and 12(1)(c) of the Act the constitutional obligation of the State is sought to be passed on to private educational institutions on the principle of social inclusiveness. Right to Education has now been declared as a fundamental right of children of the age 6 to 14 years and other comparable rights or even
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superior rights like the Right to food, healthcare, nutrition, drinking water, employment, housing, medical care may also get the status of fundamental rights, which may be on the anvil. Right guaranteed to children under Article 21A is a socio-economic right and the Act was enacted to fulfil that right. Let us now examine how these rights have been recognized and given effect to under our Constitution and in other countries.
Rights traditionally have been divided into civil rights, political rights and socio-economic rights; the former rights are often called the first generation rights and the latter, the second generation rights. First generation rights have also been described as negative rights because they impose a duty and restraint on the state and generally no positive duties flow from them with some exceptions. Over lapping of both the rights are not uncommon. It is puerile to think that the former rights can be realised in isolation of the latter or that one overrides the others.
Socio-economic rights generally serve as a vehicle for facilitating the values of equality, social justice and democracy and the state is a key player in securing that goal. The preamble of the Indian Constitution, fundamental rights in Part III and the Directive Principles of State
Policy in Part IV are often called and described as "conscience of the Constitution" and they reflect our civil, political and socio- economic rights which we have to protect for a just and humane society.
Supreme Court through various judicial pronouncements has made considerable headway in the realization of socio-economic rights and made them justiciable despite the fact that many of those rights still remain as Directive Principles of State Policy. Civil, political and socio-economic rights find their expression in several international conventions like U.N.
Convention on Economic, Social and Cultural Rights 1966 (ICESCR), International Covenant on Civil and Political Rights 1966 (ICCPR), Universal Declaration of Human Rights 1948
(UDHR), United Nations Convention on Rights of Child 1989 (UNCRC) etc. Reference to some of the socio-economic rights incorporated in the Directive Principles of the State Policy in this connection is useful. Article 47 provides for duty of the State to improve public health.
Principles enshrined in Articles 47 and 48 are not pious declarations but for guidance and governance of the State policy in view of Article 37 and it is the duty of the State to apply them in various fact situations.
… The Constitutional Court of South Africa rendered several path-breaking judgments in relation to socio- economic rights. Soobramoney v. Minister of Health (KwaZulu-Natal) 1998
(1) SA 765 (CC) was a case concerned with the right of emergency health services. Court held that the State owes no duty to provide the claimant, a diabetic sufferer, with kidney dialysis on a plea of socio- economic right. Petitioner was denied dialysis by a local hospital on the basis of a prioritization policy based on limited resources. The Court emphasised that the responsibility of fixing the health care budget and deciding priorities lay with political organization and medical authorities, and that the court would be slow to interfere with such decisions if they were rational and "taken in good faith".
In Government of the Republic of South Africa. v. Grootboom 2001 (1) SA 46 (CC) was a case where the applicants living under appalling conditions in an informal settlement, had moved into private land from which they were forcibly evicted. Camping on a nearby sports field, they applied for an order requiring the government to provide them with basic shelter.
The Constitutional Court did not recognize a directly enforceable claim to housing on the part of the litigants, but ruled that the State is obliged to implement a reasonable policy for those who are destitute. The Court, however, limited its role to that of policing the policy making process rather than recognizing an enforceable individual right to shelter, or defining a minimum core of the right to be given absolute priority.
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Another notable case of socio-economic right dealt with by the South African Court is
Minister of Health v. Treatment Action Campaign 2002 (5) SA 721 (CC). The issue in that case was whether the state is obliged under the right of access to health care (Sections 27(1) and (2) of 1996 Constitution) to provide the anti-retroviral drug Nevirapine to HIV-positive pregnant women and their new born infants. Referring the policy framed by the State, the
Court held that the State is obliged to provide treatment to the patients included in the pilot policy. The decision was the closest to acknowledging the individual 's enforceable right.
… South African Constitution, unlike many other constitutions of the world, has included socio-economic rights, health services, food, water, social security and education in the
Constitution to enable it to serve as an instrument of principled social transformation enabling affirmative action and horizontal application of rights. To most of the social rights, the State 's responsibility is limited to take reasonable legislative and other measures within its available resources to achieve the progressive realisation of those rights (Sections 26(2), and 27(2)).
Few exceptions, however, give rise to directly enforceable claims, namely, right not to be evicted (Section 26(3)); not to be refused emergency medical treatment (Section 27(3)); the rights of prisoners to adequate nutrition and medical treatment (Section 35(2)) and rights of
Children (defined as those under 18 years) to basic nutrition, shelter, basic health care and social services.
… I have referred to the rulings of India and other countries to impress upon the fact that even in the jurisdictions where socio-economic rights have been given the status of constitutional rights, those rights are available only against State and not against private state actors, like the private schools, private hospitals etc., unless they get aid, grant or other concession from the State. Equally important principle is that in enjoyment of those socioeconomic rights, the beneficiaries should not make an inroad into the rights guaranteed to other citizens.
REMOVAL OF OBSTACLES TO ACHIEVE SOCIO-ECONOMIC RIGHTS
Socio-economic rights, I have already indicated, be realized only against the State and the
Statute enacted to protect socio-economic rights is always subject to the rights guaranteed to other non-state actors under Articles 19(1)(g), 30(1), 15(1), 16(1) etc. Parliament has faced many obstacles in fully realizing the socio-economic rights enshrined in Part IV of the
Constitution and the fundamental rights guaranteed to other citizens were often found to be the obstacles. Parliament has on several occasions imposed limitations on the enjoyment of the rights guaranteed under Part III of the Constitution, through constitutional amendments.
Parliament, in order to give effect to Article 39 and to remove the obstacle for realization of socio-economic rights, inserted Article 31A vide Constitution (First Amendment) Act, 1951 and later amended by the Constitution (Fourth Amendment) Act, 1955 and both the amendments were given retrospective effect from the commencement of the Constitution. The purpose of the first amendment was to eliminate all litigations challenging the validity of legislation for the abolition of proprietary and intermediary interests in land on the ground of contravention of the provisions of Articles 14, 19 and31. Several Tenancy and Land Reforms
Acts enacted by the State also stood protected under Article 31A from the challenge of violation of Articles 14 and19.
Article 31B also saves legislations coming under it from inconsistency with any of the fundamental rights included in Part III for example Article 14, Article 19(1)(g) etc.
Article 31B read with Ninth Schedule protects all laws even if they are violative of fundamental rights. However, in I.R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1, it was held that laws included in the Ninth Schedule can be challenged, if it violates the basic structure of the Constitution which refer to Articles 14, 19, 21 etc.
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Article 31C was inserted by the Constitution (Twenty-fifth Amendment) Act, 1971 which gave primacy to Article 39(b) and (c) over fundamental rights contained under
Article 14 and 19. Article 31C itself was amended by the Constitution (Forty-second
Amendment) Act, 1976 and brought in all the provisions in Part-IV, within Article 31C for protecting laws from challenge under article 14 and 19 of the Constitution.
I have referred to Articles 31A to 31C only to point out how the laws giving effect to the policy of the State towards securing all or any of the principles laid down in Part-IV stood saved from the challenge on the ground of violation or infraction of the fundamental rights contained in Articles 14 and 19. The object and purpose of those constitutional provisions is to remove the obstacles which stood in the way of enforcing socio-economic rights incorporated in Part-IV of the Constitution and also to secure certain rights, guaranteed under
Part III of the Constitution.
Rights guaranteed under Article 19(1)(g) can also be restricted or curtailed in the interest of general public imposing reasonable restrictions on the exercise of rights conferred under
Article 19(1)(g). Laws can be enacted so as to impose Regulations in the interest of public health, to prevent black marketing of essential commodities, fixing minimum wages and various social security legislations etc., which all intended to achieve socio-economic justice.
Interest of general public, it may be noted, is a comprehensive expression comprising several issues which affect public welfare, public convenience, public order, health, morality, safety etc. all intended to achieve socio-economic justice for the people.
The law is however well settled that the State cannot travel beyond the contours of Clauses
(2) to (6) of Article 19 of the Constitution in curbing the fundamental rights guaranteed by
Clause (1), since the Article guarantees an absolute and unconditional right, subject only to reasonable restrictions. The grounds specified in Clauses (2) to (6) are exhaustive and are to be strictly construed. The Court, it may be noted, is not concerned with the necessity of the impugned legislation or the wisdom of the policy underlying it, but only whether the restriction is in excess of the requirement, and whether the law has over-stepped the
Constitutional limitations. Right guaranteed under Article 19(1)(g), it may be noted, can be burdened by constitutional limitations like Sub-clauses (i) to (ii) to Clause (6).
Article 19(6)(i) enables the State to make law relating to professional or technical qualifications necessary for practicing any profession or to carry on any occupation, trade or business. Such laws can prevent unlicensed, uncertified medical practitioners from jeopardizing life and health of people. Sub Clause (ii) to Article 19(6) imposes no limits upon the power of the State to create a monopoly in its favour. State can also by law nationalize industries in the interest of general public. Clause (6)(ii) of Article 19 serves as an exception to Clause (1)(g) of Article 19 which enable the State to enact several legislations in nationalizing trades and industries. Reference may be made to Chapter-4 of the Motor
Vehicles Act, 1938, The Banking Companies (Acquisition and Transfer of Undertakings) Act,
1970, General Insurance Business (Nationalization) Act, 1972 and so on. Sub-clause 6(ii) of
Article 19exempts the State, on the conditions of reasonableness, by laying down that carrying out any trade, business, industry or services by the State Government would not be questionable on the ground that it is an infringement on the right guaranteed under
Article 19(1)(g).
I have referred to various provisions under sub- clauses (i) and (ii) of Article 19(6) to impress upon the fact that it is possible to amend the said Article so that socio- economic rights could be realized by carving out necessary constitutional limitations abrogating or abridging the right guaranteed under Article 19(1)(g).
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Constitutional amendments have also been made to Articles 15 and 16 so as to achieve socio-economic justice. Articles 15 and 16 give power to the State to make positive discrimination in favour of the disadvantaged and particularly, persons belonging to
Scheduled Castes and Scheduled Tribes. Socio-economic empowerment secures them dignity of person and equality of status, the object is to achieve socio-economic equality.
Faced with many obstacles to achieve the above objectives and the Directive Principles of the State Policy, Articles 15 and 16 of the Constitution had to be amended on several occasions so as to get over the obstacles in achieving the socio-economic justice. In State of
Madras v. Champakam Dorairajan (1951) SCR 525, this Court laid down the law that
Article 29(2) was not controlled by Article 46 of the Directive Principles of the State Policy and that the Constitution did not intend to protect the interest of the backward classes in the matter of admission to educational institutions. In order to set right the law and to achieve social justice, Clause (4) was added to Article 15 by the Constitutional (First Amendment)
Act, 1951 enabling the State to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled
Tribes. The object of Clause (4) was to bring Articles 15 and 29 in line with
Articles 16(4), 46 and 340 of the Constitution, so as to make it constitutional for the State to reserve seats for backward classes citizens, Scheduled Castes and Scheduled Tribes in the public educational institutions, as well as to make special provisions, as may be necessary, for the advancement, e.g. to provide housing accommodation for such classes. In other words,
Article 15(4) enables the State to do what would otherwise have been unconstitutional.
Article 15(4) has to be read as a proviso or an exception to Article 29(2) and if any provision is defined by the provisions of Article 15(4), its validity cannot be questioned on the ground that it violates Article 29(2). Under Article 15(4), the State is entitled to reserve a minimum number of seats for members of the backward classes, notwithstanding Article 29(2) and the obstacle created under Article 29(2) has been removed by inserting Article 15(4).
The Parliament noticed that the provisions of Article 15(4) and the policy of reservation could not be imposed by the State nor any quota or percentage of admission be carved out to be appropriated by the State in minority or non- minority unaided educational institution, since the law was clearly declared in T.M.A. Pai and P.A. Inamdar. It was noticed that the number of seats available in aided or State maintained institutions particularly in respect of professional educational institutions were limited in comparison to those in private unaided institutions. Article 46 states that the State shall promote, with special care, the educational and economic interests of the weaker sections of the people, and, in particular of the Scheduled
Castes and Scheduled Tribes, and shall protect them from social injustice. Access to education was also found to be an important factor and in order to ensure advancement of persons belonging to Scheduled Castes, Scheduled Tribes, socially and economically backward classes, it was proposed to introduce Clause (5) to Article 15 to promote educational advancement of socially and educationally backward classes of citizens i.e. OBCs, Scheduled
Castes and Scheduled Tribes and the weaker sections of the society by securing admission in unaided educational institutions and other minority educational institutions referred to in
Clause (1) of Article 30 of the Constitution.
The Parliament has, therefore, removed the obstacles created by the law as ruled by the
Court in T.M.A. Pai and P.A. Inamdar so as to carry out the obligation under the Directive
Principles of the State Policy laid down under Article 46. Later, the Parliament enacted the
Central Educational Institutions (Reservation and Admission) Act, 2006 (for short ‘the CEI
Act’), but the Act never intended to give effect to the mandate of the newly introduced Clause
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Constitutional validity of Clause (5) to Article 15 and the CEI Act came up for consideration before a Constitutional Bench of this Court in Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1. CEI Act was enacted by the Parliament under Article 15(5), for greater access to higher education providing for 27 per cent reservation for "Other Backward
Classes" to the Central Government controlled educational institutions, but not on privately managed educational institutions. Constitutional validity of Article 15(5) was challenged stating that it had violated the basic structure doctrine. The majority of the Judges in Ashok
Kumar Thakur declined to pronounce on the question whether the application of
Article 15(5) to private unaided institutions violated the basic structure of the Constitution, in my view, rightly because that issue did not arise for consideration in that case. Justice Dalveer
Bhandari, however, examined the validity of Article 15(5) with respect to private unaided institutions and held that an imposition of reservation of that sort would violate
Article 19(1)(g) and thus the basic structure doctrine. Article 19(1)(g), as such, it may be pointed out, is not a facet of the basic structure of the Constitution, and can be constitutionally limited in its operation, with due respect, Justice Bhandari has overlooked this vital fact.
T.M.A. Pai as well as P.A. Inamdar held that Article 19(1)(g) prevents the State from creating reservation quotas or policy in private unaided professional educational institutions and, as indicated earlier, it was to get over that obstacle that Clause (5) was inserted in Article 15. In
Ashok Kumar Thakur, the majority held that Clause (5) to Article 15 though, moderately abridges or alters the equality principle or the principles under Article 19(1)(g), insofar as it dealt with State maintained and aided institutions, it did not violate the basic structure of the
Constitution. I have referred to Articles 15(4) and 15(5) and Ashok Kumar Thakur to highlight the fact that the State in order to achieve socio-economic rights, can remove obstacles by limiting the fundamental rights through constitutional amendments.
Applicability of Article 15(5), with regard to private unaided non-minority professional institutions, came up for consideration in Medical Association. A two judges Bench of this
Court has examined the constitutional validity of Delhi Act 80 of 2007 and the notification dated 14.8.2008 issued by the Government of NCT, Delhi permitting the Army College of
Medical Sciences to allocate 100% seats to the wards of army personnel. The Court also examined the question whether Article 15(5) has violated the basic structure of the
Constitution. The Court proceeded on the basis that Army Medical College is a private nonminority, unaided professional institution. Facts indicate that the College was established on a land extending to approximately 25 acres, leased out by the Ministry of Defence,
Government of India for a period of 30 years extendable to 99 years. Ministry of Defence also offered various facilities like providing clinical training at Army Hospital, NCT, Delhi and also access to the general hospitality. The constitutional validity of Article 15(5) was upheld holding that Clause (5) of Article 15 did not violate the basic structure of the Constitution.
While reaching that conclusion, Court also examined the ratio in T.M.A. Pai as well as P.A.
Inamdar. Some of the findings recorded in Medical Association, on the ratio of T.M.A. Pai and P.A. Inamdar, in my view, cannot be sustained.
… Clause (5) of Article 15 is an enabling provision and inserted by the Constitution
(Ninety-third Amendment) Act, 2005 by use of powers of amendment in Article 368. The
Constitution (Ninety-third Amendment) Act, 2005 was in response to this Court 's explanation, in P.A. Inamdar, of the ratio in T.M.A. Pai, that imposition of reservations on non-minority unaided educational institutions, covered by Sub-clause (g) of Clause (1) of Article 19, to be unreasonable restrictions and not covered by Clause (6) of Article 19. The purpose of the amendment was to clarify or amend the Constitution in a manner that what was held to be unreasonable would now be reasonable by virtue of the constitutional status given to such measures. Page 440 of 610
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Referring to T.M.A. Pai, the Court also stated, having allowed the private sector into the field of education including higher education, it would be unreasonable, pursuant to Clause
(6) of Article 19, for the State to fix the fees and also impose reservations on private unaided educational institutions. Nevertheless, the Court opined that taking into consideration the width of the original powers under Clause (6) of Article 19, one would necessarily have to find the State would at least have the power to make amendments to resurrect some of those powers that it had possessed to control the access to higher education and achieve the goals of egalitarianism and social justice.
Article 15(5), it may be noted, gives no protection to weaker sections of the society, except members belonging to Scheduled Castes/Scheduled Tribes and members of Other Backward
Community.
… The constitutional validity of Article 16(4A) substituted by the Constitution (Eightyfifth Amendment) Act, 2001 came up for consideration before this Court in M. Nagaraj v.
Union of India (2006) 8 SCC 212. The validity of the Constitution (Seventy-seventh
Amendment) Act, 1995, the Constitution (Eighty-first Amendment) Act, 2000, the
Constitution (Eighty-second Amendment) Act, 2000 and the Constitution (Eighty-fifth
Amendment) Act, 2001 were also examined and held valid. This Court held that they do not infringe either the width of the Constitution amending power or alter the identity of the
Constitution or its basic structure. This Court held that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
I have referred extensively to the constitutional amendments effected to Articles 31A to
31C, Articles 15, 16 and 19 to show that whenever the Parliament wanted to remove obstacles so as to make affirmative action to achieve socio-economic justice constitutionally valid, the same has been done by carrying out necessary amendments in the Constitution, not through legislations, lest they may make an inroad into the fundamental rights guaranteed to the citizens. Rights guaranteed to the unaided non-minority and minority educational institutions under Article 19(1)(g) and Article 30(1) as explained in T.M.A. Pai Foundation and reiterated in P.A. Inamdar have now been limited, restricted and curtailed so as to impose positive obligation on them under Section 12(1)(c) of the Act and under Article 21A of the
Constitution, which is permissible only through constitutional amendment.
Constitutional principles laid down by T.M.A. Pai and P.A. Inamdar on
Articles 19(1)(g), 29(2) and 30(1) so far as unaided private educational institutions are concerned, whether minority or non-minority, cannot be overlooked and Article 21A,
Sections 12(1)(a), (b) and 12(1)(c) have to be tested in the light of those constitutional principles laid down by T.M.A. Pai and P.A. Inamdar because Unni Krishnan was the basis for the introduction of the proposed Article 21A and the deletion of Clause (3) from that
Article. Interpretation given by the courts on any provision of the Constitution gets inbuilt in the provisions interpreted, that is, Articles 19(1)(g), 29(2) and 30.
… Principles laid down by T.M.A. Pai and P.A. Inamdar while interpreting
Articles 19(1)(g), 29(2) and 30(1) in respect of unaided non-minority and minority educational institutions like schools up to the level of under-graduation are all weighty and binding constitutional principles which cannot be undone by statutory provisions like Section 12(1)(c), since those principles get in-built in Article 19(1)(g), Article 29(2) and Article 30(1) of the
Constitution. Further Parliament, while enacting Article 21A, never thought if fit to undo those principles and thought it fit to cast the burden on the State.
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PART III
OBLIGATIONS/RESPONSIBILITIES of NON-STATE ACTORS IN REALIAZATION of
CHILDREN 'S RIGHTS
… Provisions referred to above and other provisions of International Conventions indicate that the rights have been guaranteed to the children and those rights carry corresponding State obligations to respect, protect and fulfill the realization of children 's rights. The obligation to protect implies the horizontal right which casts an obligation on the State to see that it is not violated by non-state actors. For non-state actors to respect children 's rights cast a negative duty of non-violation to protect children 's rights and a positive duty on them to prevent the violation of children 's rights by others, and also to fulfill children 's rights and take measures for progressive improvement. In other words, in the spheres of non-state activity there shall be no violation of children 's rights.
Article 24 of the Indian Constitution states that no child below the age of 14 years shall be employed to work in any factory or be engaged in any hazardous employment. The
Factories Act, 1948 prohibits the employment of children below the age of 14 years in any factory. Mines Act, 1952 prohibits the employment of children below 14 years. Child Labour
(Prohibition and Regulation) Act, 1986 prohibits employment of children in certain employments. Children Act, 1960 provides for the care, protection, maintenance, welfare, training, education and rehabilitation of neglected or delinquent children. Juvenile Justice
(Care and Protection of Children) Act, 1986 (the Amendment Act 33 of 2006) provide for the care, protection, development and rehabilitation of neglected and delinquent juveniles. There are also other legislations enacted for the care and protection of children like Immoral
Trafficking Prevention Act, 1956, Prohibition of Child Marriage Act, 2006 and so on.
Legislations referred to above cast an obligation on non-state actors to respect and protect children 's rights and not to impair or destroy the rights guaranteed to children, but no positive obligation to make available those rights.
Primary responsibility for children 's rights, therefore, lies with the State and the State has to respect, protect and fulfill children 's rights and has also got a duty to regulate the private institutions that care for children, to protect children from violence or abuse, to protect children from economic exploitation, hazardous work and to ensure human treatment of children. Non-state actors exercising the state functions like establishing and running private educational institutions are also expected to respect and protect the rights of the child, but they are, not expected to surrender their rights constitutionally guaranteed.
Article 21A requires non-state actors to achieve the socio-economic rights of children in the sense that they shall not destroy or impair those rights and also owe a duty of care. The
State, however, cannot free itself from obligations under Article 21A by offloading or outsourcing its obligation to private State actors like unaided private educational institutions or to coerce them to act on the State 's dictate. Private educational institutions have to empower the children, through developing their skills, learning and other capacities, human dignity, self-esteem and self-confidence and to respect their constitutional rights.
… T.M.A. Pai and P.A. Inamdar also cast a negative obligation on the private educational institutions in the sense that there shall be no profiteering, no demand of excessive fee, no capitation fee, no maladministration, no cross subsidy etc. Further, this Court, while interdicting the State in appropriating seats in private educational institutions, restrained them from interfering with the autonomy of those institutions and adopted a balancing approach laying down the principle of voluntariness, co-operation, concession, and so on.
T.M.A. Pai and P.A. Inamdar have categorically held that any action of the State to regulate or control admissions in the unaided professional educational institutions, so as to
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compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions, would amount to nationalization of seats. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions, it was held, are acts constituting serious encroachment on the right and autonomy of private unaided professional educational institutions and such appropriation of seats cannot be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution, so far as the unaided minority institutions are concerned.
PART IV
Article 21A has used the expression "State shall provide" not "provide for" hence the constitutional obligation to provide education is on the State and not on non-state actors, the expression is clear and unambiguous and to interpret that expression to mean that constitutional obligation or responsibility is on private unaided educational institutions also, in my view, doing violence to the language of that expression. The obligation of the State to provide free and compulsory education is without any limitation. Parliament in its wisdom has not used the expression "provide for". If the preposition "for" has been used then the duty of the State would be only to provide education to those who require it but to provide for education or rather to see that it is provided. In this connection it is useful to refer to the judgment of the Supreme Court of Ireland in Crowley v. Ireland (1980) IR 102, where the expression "provide for" came up for interpretation. It was held that the use of the preposition
"for" keeps the State at one remove from the actual provision of education indicating that once the State has made an arrangement for the provision of education provided the buildings, pay teachers and set the curriculum - it is absolved of the responsibility when the education is not actually delivered. The absence of the preposition "for" in Article 21A makes the duty on the
State imperative. State has, therefore, to "provide" and "not provide for" through unaided private educational institutions.
Article 21A has used the expression "such manner" which means the manner in which the
State has to discharge its constitutional obligation and not offloading those obligations on unaided educational institutions. If the Constitution wanted that obligation to be shared by private unaided educational institutions the same would have been made explicit in Article
21A. Further, un-amended Article 45 has used the expression "state shall endeavor … for" and when Article 21A was inserted, the expression used therein was that the "State shall provide" and not "provide for" the duty, which was directory earlier made mandatory so far as State is concerned. Article 21 read with 21A, therefore, cast an obligation on the State and
State alone.
The State has necessarily to meet all expenses of education of children of the age 6 to 14 years, which is a constitutional obligation under Article 21A of the Constitution. Children have also got a constitutional right to get free and compulsory education, which right can be enforced against the State, since the obligation is on the State. Children who opt to join an unaided private educational institution cannot claim that right as against the unaided private educational institution, since they have no constitutional obligation to provide free and compulsory education under Article 21A of the Constitution. Needless to say that if children are voluntarily admitted in a private unaided educational institution, children can claim their right against the State, so also the institution. Article 51A(k) of the Constitution states that it shall be the duty of every citizen of India, who is a parent or guardian, to provide opportunities for education to his child. Parents have no constitutional obligation under Article 21A of the
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Constitution to provide free and compulsory education to their children, but only a constitutional duty, then one fails to see how that obligation can be offloaded to unaided private educational institutions against their wish, by law, when they have neither a duty under the Directive Principles of State policy nor a constitutional obligation under Article 21A, to those 25% children, especially when their parents have no constitutional obligation.
… I am, therefore, of the considered view that Article 21A, as such, does not cast any obligation on the private unaided educational institutions to provide free and compulsory education to children of the age 6 to 14 years. Article 21A casts constitutional obligation on the State to provide free and compulsory education to children of the age 6 to 14 years.
CONSTITUTIONALLY IMPERMISSIBLE PROCEDURE ADOPTED TO ACHIEVE
SOCIAL INCLUSIVENESS UNDER THE ACT
I may endorse the view that the purpose and object of the Act is laudable, that is, social inclusiveness in the field of elementary education but the means adopted to achieve that objective is faulty and constitutionally impermissible. Possibly, the object and purpose of the
Act could be achieved by limiting or curtailing the fundamental rights guaranteed to the unaided non-minority and minority educational institutions under Article 19(1)(g) and
Article30(1) or imposing a positive obligation on them under Article 21A, but this has not been done in the instant case. I have extensively dealt with the question - how the socio economic rights could be achieved by making suitable constitutional amendments in Part II of this judgment.
Sections 12(1)(b) and 12(1)(c) are vehicles through which the concept of social inclusiveness is sought to be introduced into the private schools both aided and unaided including minority institutions, so as to achieve the object of free and compulsory education of the satisfactory quality to the disadvantaged groups and weaker sections of the society. The purpose, it is pointed out, is to move towards composite classrooms with children from diverse backgrounds, rather than homogenous and exclusive schools and it was felt that heterogeneity in classrooms leads to greater creativity.
… Section 12(1)(c) read with Section 2(n)(iv) of the Act never envisages any distinction between unaided minority schools and non-minority schools. Constitution Benches of this
Court have categorically held that so far as appropriation of quota by the State and enforcement of reservation policy is concerned, there is not much difference between unaided minority and non-minority educational institutions … Further, it was also held that both unaided minority and non-minority educational institutions enjoy "total freedom" and can claim "unfettered fundamental rights" in the matter of appropriation of quota by the State and enforcement of reservation policy. This Court also held that imposition of quota or enforcing reservation policy are acts constituting serious encroachment on the right and autonomy of such institutions both minority (religious and linguistic) and non-minority and cannot be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. Therefore, no distinction or difference can be drawn between unaided minority schools and unaided nonminority schools with regard to appropriation of quota by the State or its reservation policy under Section 12(1)(c) of the Act.
I am of the view, going by the ratio laid down by T.M.A. Pai and P.A. Inamdar, to compel the unaided non-minority and minority private educational institutions, to admit 25% of the students on the fee structure determined by the State, is nothing but an invasion as well as appropriation of the rights guaranteed to them under Article 19(1)(g) and Article 30(1) of the
Constitution. Legislature cannot under the guise of interest of general public "arbitrarily cast
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burden or responsibility on private citizens running a private school, totally unaided".
Section 12(1)(c) was enacted not only to offload or outsource the constitutional obligation of the State to the private unaided educational institutions, but also to burden them with duties which they do not constitutionally owe to children included in Section 2(d) or (e) of the Act or to their parents.
… Private unaided educational institutions are established with lot of capital investment, maybe with loan and borrowings. To maintain high standard of education, well qualified and experienced teachers have to be appointed, at times with hefty salary. Well-equipped library, laboratory etc. have also to be set up. In other words considerable money by way of capital investment and overhead expenses would go into for establishing and maintaining a good quality unaided educational institution. Section 12(1)(c), in my view, would amount to appropriation of one 's labour and makes an inroad into the autonomy of the institution.
Unaided educational institutions, over a period of time, might have established their own reputation and goodwill, a quantifiable asset. Nobody can be allowed to rob that without their permission, not even the State. Section 12(1)(c) is not a restriction which falls under
Article 19(6)but cast a burden on private unaided educational institutions to admit and teach children at the state dictate, on a fee structure determined by the State which, in my view, would abridge and destroy the freedom guaranteed to them under Article 19(1)(g) of the
Constitution.
Parliament can enact a social legislation to give effect to the Directive Principles of the
State Policy, but so far as the present case is concerned, neither the Directive Principles of the
State Policy nor Article 21A cast any duty or obligation on the unaided private educational institutions to provide free and compulsory education to children of the age of 6 to 14.
Section 12(1)(c) has, therefore, no foundation either on the Directive Principles of the State
Policy or Article 21A of the Constitution, so as to rope in unaided educational institutions.
Directive Principles of the State Policy as well as Article 21A cast the constitutional obligation on the State and State alone. State, cannot offload or outsource that Constitutional obligation to the private unaided educational institutions and the same can be done only by a constitutional provision and not by an ordinary legislation.
… Section 12(1)(c) seeks to achieve what cannot be achieved directly especially after the interpretation placed by T.M.A. Pai and P.A. Inamdar on Article 19(1)(g) and Article 30(1) of the Constitution. … Section 12(1)(c), in my view, can be given effect to, only on the basis of principles of voluntariness and consensus laid down in T.M.A. Pai and P.A. Inamdar or else, it may violate the rights guaranteed to unaided minority and non-minority institutions. …
Section 12(1)(c), if upheld would resurrect Unni Krishnan scheme which was nullified by
T.M.A. Pai and P.A. Inamdar.
… I am, therefore, of the view that so far as unaided educational institutions both minority and non-minority are concerned the obligation cast under Section 12(1)(c) is only directory and the said provision is accordingly read down holding that it is open to the private unaided educational institutions, both minority and non-minority, at their volition to admit children who belong to the weaker sections and disadvantaged group in the neighbourhood in their educational institutions as well as in pre-schools.
… Section 12(1)(b) deals with the schools receiving aid or grants to meet whole or part of its expenses from the appropriate government or local authority. Those schools are bound to provide free and compulsory elementary education to such proportion of children subject to a minimum of 25% depending upon its annual recurring aid or grants so received. …
Applying the principle laid down in T.M.A. Pai, P.A. Inamdar, St. Stephen and in Kerala
Education Bill, I am of the view that Clause 12(1)(b) directing the aided educational
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institutions minority and non-minority to provide admission to the children of the age group of 6 to 14 years would not affect the autonomy or the rights guaranteed under
Article 19(1)(g) or Article 30(1) of the Constitution of India. I, therefore, reject the challenge against the validity of Section 12(1)(b) and hold that the provision is constitutionally valid.
PART V
Private unaided educational institutions, apart from challenging Section 12(1)(c), have also raised various objections with regard to other provisions of the Act. … I am of the view that not only Section12(1)(c), but rest of the provisions in the Act are only directory so far as those institutions are concerned, but they are bound by the declaration of law by T.M.A. Pai and P.A. Inamdar, like there shall be no profiteering, no maladministration, no demand for capitation fee and so on and they have to follow the general laws of the land like taxation, public safety, sanitation, morality, social welfare etc.
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UNIT 10 – RELIGIOUS FREEDOM (ARTICLES 25, 26, 27 & 28)
DOCTRINE OF ESSENTIAL PRACTICES
COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS V. SWAMIAR OF SHIRUR
AIR 1954 SC 282
Decided On: March 16, 1954
BENCH – CHIEF JUSTICE M. C. MAHAJAN, JUSTICES B. K. MUKHERJEA, S. R. DAS, VIVIAN
BOSE, GHULAM HASAN. N. H. BHAGWATI & T.L.V. IYER
JUSTICE MUKHERJEA (for the Court)
This appeal is directed against a judgment of a Division Bench of the Madras High Court, dated the 13th of December, 1951, by which the learned Judges allowed a petition, presented by the respondent under article 226 of the Constitution, and directed a writ of prohibition to issue in his favour prohibiting the appellant from proceeding with the settlement of a scheme in connection with a Math, known as the Shirur Math, of which the petitioner happens to be the head or superior. It may be stated at the outset that the petition was filed at a time when the Madras Hindu Religious Endowments Act (Act II of 1927), was in force and the writ was prayed for against the Hindu Religious Endowment Board constituted under that Act, which was the predecessor in authority of the present appellant and had initiated proceedings for settlement of a scheme against the petitioner under section 61 of the said Act.
The petition was directed to be heard along with two other petitions of a similar nature relating to the temple at Chidambaram in the district of South Arcot and questions were raised in all of them regarding the validity of Madras Act II of 1927, hereinafter referred to as the
Earlier Act. While the petitions were still pending, the Madras Hindu Religious and Charitable
Endowments Act, 1951 (hereinafter called the ‘New Act’), was passed by the Madras
Legislature and came into force on the 27th of August, 1951. In view of the Earlier Act being replaced by the new one, leave was given to all the petitioners to amend their petitions and challenge the validity of the New Act as well. Under section 103 of the New Act, notifications, orders and acts under the Earlier Act are to be treated as notifications, orders and acts issued, made or done by the appropriate authority under the corresponding provisions of the New Act, and in accordance with this provision, the Commissioner, Hindu Religious Endowments,
Madras, who takes the place of the President, Hindu Religious Endowments Board under the
Earlier Act, was added as a party to the proceedings.
So far as the present appeal is concerned, the material facts may be shortly narrated as follows: The Math, known as Shirur Math, of which the petitioner is the superior or
Mathadhipati, is one of the eight Maths situated at Udipi in the district of South Kanara and they are reputed to have been founded by Shri Madhwacharya, the well-known exponent of dualistic theism in the Hindu Religion. Besides these eight maths, each one of which is presided over by a Sanyasi or Swami, there exists another ancient religious institution at Udipi, known as Shri Krishna Devara Math, also established by Madhwacharya which is supposed to contain an image of God Krishna originally made by Arjun and miraculously obtained from a vessel wrecked at the coast of Tulava. There is no Mathadhipati in the Shri Krishna Math and its affairs are managed by the superiors of the other eight Maths by turns and the custom is that the Swami of each of these eight Math presides over the Shri Krishna Math in turn for a period of two years in every sixteen years. The appointed time of change in the headship of the Shri Krishna Math is the occasion of a great festival, known as Pariyayam, when a vast concourse of devotees gather at Udipi from all parts of Southern India, and an ancient usage
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imposes a duty upon the Mathadhipati to feed every Brahmin that comes to the place at that time. The petitioner was installed as Mathadhipati in the year 1919, when he was still a minor, and he assumed management after coming of age some time in 1926. At that time the Math was heavily in debt. Between 1926 and 1930 the Swami succeeded in clearing off a large portion of the debt. In 1931, however, came the turn of his taking over management of the
Shri Krishna Math and he had to incur debts to meet the heavy expenditure attendant on the
Pariyayam ceremonies. The financial position improved to some extent during the years that followed, but troubles again arose in 1946, which was the year of the second Pariyayam of the
Swami. Owing to scarcity and the high price of commodities at that time, the Swami had to borrow money to meet the expenditure and the debts mounted up to nearly a lakh of rupees.
The Hindu Religious Endowment Board, functioning under the Earlier Act of 1927, intervened at this stage and in exercise of its powers under section 61-A of the Act called upon the Swami to appoint a competent manager to manage the affairs of the institution. The petitioner 's case is that the action of the Board was instigated by one Lakshminarayana Rao, a lawyer of Udipi, who wanted to have control over the affairs of the Math. It appears that in pursuance of the direction of the Board, one Sripath Achar was appointed an agent and a
Power of Attorney was executed in favour on the 24th of December, 1948.
The agent, it is alleged by the petitioner, wanted to have his own way in all the affairs of the Math and paid no regard whatsoever to the wishes of the Mahant. He did not even submit accounts to the Mahant and deliberately flouted his authority. In this state of affairs the Swami, on the 26th of September, 1950, served a notice upon the agent terminating his agency and calling upon him to hand over to the Mathadhipati all account papers and vouchers relating to the institution together with the cash in hand. Far from complying with this demand, the agent, who was supported by the aforesaid Lakshminarayana Rao, questioned the authority of the
Swami to cancel his agency and threatened that he would refer the matter for action to the
Board. On the 4th of October, 1950, the petitioner filed a suit against the agent in the SubCourt of South Kanara for recovery of the account books and other articles belonging to the
Math, for rendering an account of the management and also for an injunction restraining the said agent from interfering with the affairs of the Math under colour of the authority conferred by the Power of Attorney which the plaintiff had canceled. The said Sripath Achar anticipating this suit filed an application to the Board on the 3rd of October, 1950, complaining against the cancellation of the Power of Attorney and his management of the Math. The Board on the 4th
October, 1950, issued a notice to the Swami proposing to inquire into the matter on the 24th of October following at 2 p.m. at Madras and requesting the Swami either to appear in person or by a pleader. To this the Swami sent a reply on 21st October, 1950, stating that the subjectmatter of the very enquiry was before the court in the original suit filed by him and as the matter was sub judice, the enquiry should be put off. A copy of the plaint filed in that suit was also sent along with the reply. The Board, it appears, dropped that enquiry, but without waiting for the result of the suit, initiated proceedings suo moto under section 62 of the Earlier Act and issued a notice upon the Swami on the 6th of November, 1950, stating that it had reason to believe that the endowments of the said Math were being mismanaged and that a scheme should be framed for the administration of its affairs. The notice was served by officer on the
Swami and the 8th of December, 1950, was fixed as the date of enquiry. On that date at the request of the counsel for the Swami, it was adjourned to the 21st of December, following.
On the 8th of December, 1950, an application was filed on behalf of the Swami praying to the Board to issue a direction to the agent to hand over the account papers and other documents, without which it was not possible for him to file his objections. As the lawyer appearing for the Swami was unwell, the matter was again adjourned till the 10th of January,
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1951. The Swami was not ready with his objections even on that date as his lawyer had not recovered from his illness and a telegram was sent to the Board on the previous day requesting the latter to grant a further adjournment. The Board did not accede to this request and as no explanation was filed by the Swami, the enquiry was closed and orders reserved upon it. On the 13th of January, 1951, the Swami, it appears, sent a written explanation to the Board, which the latter admittedly received on the 15th. On the 24th of January, 1951, the Swami received a notice from the Board stating inter alia that the Board was satisfied that in the interests of proper administration of the Math and its endowments, the settlement of a scheme was necessary. A draft scheme was sent along with the notice and if the petitioner had any objections to the same, he was required to send in his objections on or before the 11th of
February, 1951, as the final order regarding the scheme would be made on the 15th of February
1951. On the 12th of February, 1951, the petitioner filed the petition, out of which this appeal arises, in the High Court of Madras, praying for a writ of prohibition to prohibit the Board from taking further steps in the matter of settling a scheme for the administration of the Math.
It was alleged inter alia that the Board was actuated by bias against the petitioner and the action taken by it with regard to the settling of a scheme was not a bona fide act at all. The main contention, however, was that having regard to the fundamental rights guaranteed under the Constitution in matters of religion and religious institutions belonging to particular religious denominations, the law regulating the framing of a scheme interfering with the management of the Math and its affairs by the Mathadhipati conflicted with the provisions of articles 19(1)(f) and 26 of the Constitution and was hence void under article 13. It was alleged further that the provisions of the Act were discriminatory in their character and offended against article 15 of the Constitution. As has been stated already, after the New Act came into force, the petitioner was allowed to amend his petition and the attack was now directed against the constitutional validity of the New Act which replaced the earlier legislation.
The learned Judges, who heard the petition, went into the matter with elaborate fullness, both on the constitutional questions involved in it as well as on its merits. On the merits, it was held that in the circumstances of the case the action of the Board was a perverse exercise of its jurisdiction and that it should not be allowed to proceed in regard to the settlement of the scheme. On the constitutional issues raised in the case, the learned Judges pronounced quite a number of sections of the New Act to be ultra vires the Constitution by reason of their being in conflict with the fundamental rights of the petitioner guaranteed under articles
19(1)(f), 25, 26, and 27 of the Constitution. In the result, the rule nisi issued on the petition was made absolute and the Commissioner, Hindu Religious Endowments, Madras, was prohibited from proceeding further with the framing of a scheme in regard to the petitioner 's
Math. The Commissioner has now come up on appeal before us on the strength of a certificate granted by the High Court under article 132(1) of the Constitution.
The learned Advocate-General for Madras, who appeared in support of the appeal, confined his arguments exclusively to the constitutional points involved in this case. Although he had put in an application to urge grounds other than the constitutional grounds, that application was not pressed and he did not challenge the findings of fact upon which the High
Court based its decision on the merits of the petition. The position, therefore, is that the order of the High Court issuing the writ of prohibition against the appellant must stand irrespective of the decision which we might arrive at on the constitutional points raised before us.
It is not disputed that a State Legislature is competent to enact laws on the subject of religious and charitable endowments, which is covered by entry 28 of List III in Schedule VII of the Constitution. No question of legislative incompetency on the part of the Madras
Legislature to enact the legislation in question has been raised before us with the exception of the provision relating to payment of annual contribution contained in section 76 of the
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impugned Act. The argument that has been advanced is, that the contribution is in reality a tax and not a fee and consequently the State Legislature had no authority to enact a provision of this character. We will deal with this point separately later on. All the other points canvassed before us relate to the constitutional validity or otherwise of the several provisions of the Act which have been held to be invalid by the High Court of Madras on grounds of their being in conflict with the fundamental rights guaranteed under articles 19(1)(f), 25, 26 and 27 of the
Constitution. In order to appreciate the contentions that have been advanced on these heads by the learned counsel on both sides, it may be convenient to refer briefly to the scheme and the salient provisions of the Act.
The object of the legislation, as indicated in the preamble, is to amend and consolidate the law relating to the administration and governance of Hindu religious and charitable institutions and endowments in the State of Madras. As compared with the Earlier Act, its scope is wider and it can be made applicable to purely charitable endowments by proper notification under section 3 of the Act. The Earlier Act provided for supervision of Hindu religious endowments through a statutory body known as the Madras Hindu Religious
Endowments Board. The New Act has abolished this Board and the administration of religious and charitable institutions has been vested practically in a department of the Government, at the head of which is the Commissioner. The powers of the Commissioner and of the other authorities under him have been enumerated in Chapter II of the Act. Under the Commissioner are the Deputy Commissioners, Assistant Commissioners and Area Committees. The
Commissioner, with the approval of the Government, has to divide the State into certain areas and each area is placed in charge of a Deputy Commissioner, to whom the powers of the
Commissioners can be delegated. The State has also to be divided into a number of divisions and an Assistant Commissioner is to be placed in charge of each division. Below the Assistant
Commissioner, there will be an Area Committee in charge of all the temples situated within a division or part of a division. Under section 18, the Commissioner is empowered to examine the records of any Deputy Commissioner, Assistant Commissioner, or Area Committee, or of any trustee not being the trustee of a Math, in respect of any proceeding under the Act, to satisfy himself as to the regularity, correctness, or propriety of any decision or order. Chapter
III contains the general provisions relating to all religious institutions. Under section 20, the administration of religious endowments is placed under the general superintendence and control of the Commissioner and he is empowered to pass any orders which may be deemed necessary to ensure that such endowments are properly administered and their income is duly appropriated for the purposes for which they were founded or exist. Section 21 gives the
Commissioner, the Deputy and Assistant Commissioners and such other officers as may be authorised in this behalf, the power to enter the premises of any religious institution or any place of worship for the purpose of exercising or any power conferred, or discharging any duty imposed, by or under the Act. The only restriction is that the officer exerting the power must be a Hindu. Section 23 makes it obligatory on the trustee of a religious institution to obey all lawful orders issued under the provisions of this Act by the Government, the
Commissioner, the Deputy Commissioner, the Area Committee or the Assistant
Commissioner. Section 24 lays down that in the administration of the affairs of the institution, a trustee should use as much care as a man of ordinary prudence would use in the management of his own affairs. Section 25 deals with the preparation of registers of all religious institutions and section 26 provides for the annual verification of such registers. Section 27 imposes a duty on the trustee to furnish to the Commissioner such accounts, returns, reports and other information as the Commissioner may require. Under section 28, power is given to the
Commissioner or any other office authorized by him to inspect all movable and immovable properties appertaining to a religious institution. Section 29 forbids alienation of all immovable properties belonging to the trust, except leases for a term not exceeding five years,
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without the sanction of the Commissioner. Section 30 lays down that although a trustee may incur expenditure for making arrangements for securing the health and comfort of pilgrims, worshipers and other people, when there is a surplus left after making adequate provision for purpose specified in section 79(2), he shall be guided in such matters by all general or special instructions which he may receive from the Commissioner or the Area Committee. Section 31 deals with surplus funds which the trustee may apply wholly or in part with the permission, in writing, of the Deputy Commissioner for any of the purpose specified in section 59(1).
Chapter IV deals specifically with Maths. Section 52 enumerates the grounds on which a suit would lie to remove a trustee. Section 54 relates to what is called "dittam" or scale of expenditure. The trustee has got to submit to the Commissioner proposals for fixing the
"dittam" and the amounts to be allotted to the various objects connected with the institution.
The proposals are to be published and after receiving suggestions, if any, from persons interested in the institution, they would be scrutinised by the Commissioner. If the
Commissioner thinks that a modification is necessary, he shall submit the case to the
Government and the orders of the Government would be final. Section 55 empowers the trustee to spend at his discretion and for purposes connected with the Math the "Pathakanikas" or gifts made to him personally, but he is required to keep regular accounts of the receipts and expenditure of such personal gifts. Under section 56, the Commissioner is empowered to call upon the trustee to appoint a manager for the administration of the secular affairs of the institution and in default of such appointment, the Commissioner may make the appointment himself. Under section 58, a Deputy Commissioner is competent to frame a scheme for any religious institutions if he has reason to believe that in the interests of the proper administration of the trust any such scheme is necessary. Sub-section (3) of this section provides that a scheme settled for a Math may contain inter alia a provision for appointment of a paid executive office professing the Hindu religion, whose salary shall be paid out of the funds of the institution. Section 59 makes provision for application of the "by pass" doctrine when the specific objects of the trust fail. Chapter VI of the Act, which comprises sections 63 to 69, deals with the notification of religious institutions. A religious institution may be notified in accordance with the provisions laid down in this chapter. Such notification remains in force for five years and the effect of it is to take over the administration and vest it in an executive officer appointed by the Commissioner. Chapter VII deals with budgets, accounts and audit and Chapter VIII relates to finance. Section 76 of Chapter VIII makes it compulsory for all religious institutions to pay annually to the Government a contribution not exceeding 5 per cent. of their income on account of the services rendered to them by the Government and their officers functioning under this Act. Chapter IX is not material for our purpose, and Chapter X deals with provisions of a miscellaneous nature. Section 89 in Chapter X prescribes the penalty for refusal by a trustee to comply with the provisions of the Act. Section 92 lays down that nothing contained in the Act shall be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination under clauses (a), (d) and
(c) of article 26 of the Constitution. Section 99 vests a revisional jurisdiction in the
Government to call for and examine the records of the Commissioner and other subordinate authorities to satisfy themselves as to the regularity and propriety of any proceeding taken or any order or decision made by then, in brief, are the provisions of the Act material for our present purpose.
The learned Judges of the High Court have taken the view that the respondent as
Mathadhipati has certain well defined rights in the institution and its endowments which could be regarded as rights to property within the meaning of article 19(1)(f) of the Constitution.
The provisions of the Act to the extent that they take away or unduly restrict the power to exercise these rights are not reasonable restrictions within the meaning of article 19(5) and must consequently be held invalid. The High Court has held in the second place that the
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respondent, as the head and representative of a religious institution, has a right guaranteed to him under article 25 of the Constitution to practice and propagate freely the religion of which he and his followers profess to be adherents. This right, in the opinion of the High Court, has been affected by some of the provisions of the Act. The High Court has held further that the
Math in question is really an institution belonging to Sivalli Brahmins, who are a section of the followers of Madhwacharya and hence constitutes a religious denomination within the meaning of article 26 of the Constitution. This religious denomination has a fundamental right under article 26 to manage its own affairs in matters of religious through the Mathadhipati who is their spiritual head and superior, and those provisions of the Act, which substantially take away the rights of the Mathadhipati in this respect, amount to violation of the fundamental right guaranteed under article 26. Lastly, the High Court has held that the provision for compulsory contribution made in section 76 of the Act comes within the mischief of article
27 of the Constitution. This last point raises a wide issue and we propose to discuss it separately later on. So far as the other three points are concerned, we will have to examine first of all the general contentions that have been raised by the learned Attorney-General, who appeared for the Union of India as an intervener in this and other connected case, and the questions are raised are, whether these articles of the Constitution are at all available to the respondent in the present case and whether they give him any protection regarding the rights and privileges, of the infraction of which he complains.
… So far as article 25 of the Constitution is concerned, the point raised is, whether this article which, it is said, is intended to protect religious freedom only so far as individuals are concerned, can be invoked in favour of an institution or organisation? With regard to article
26, the contention is that a Math does not come within the description of a religious denomination as provided for in the article and even if it does, what cannot be interfered with is its right to manage its own affairs in matters of religion only and nothing else. It is said, that the word "religion", as used in this article, should be taken in its strict etymological sense as distinguished from any kind of secular activity which may be connected in some way with religion but does not form an essential part of it. Reference is made in this connection to clause
(2)(a) of article 25 and clause (d) of article 26…
… [A]rticle 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others.
A question is raised as to whether the word "person" here means individuals only or includes corporate bodies as well. The question, in our opinion, is not at all relevant for our present purpose. A Mathadhipati is certainly not a corporate body; he is the head of a spiritual fraternity and by virtue of his office has to perform the duties of a religious teacher. It is his duty to practice and propagate the religious tenants, of which he is an adherent and if any provision of law prevents him from propagating his doctrines, that would certainly affect the religious freedom which is guaranteed to every person under article 25. Institutions as such cannot practice or propagate religion; it can be done only by individual persons and whether these persons propagate their personal views or the tenants for which the institution stands is really immaterial for purposes of article 25. It is the propagation of belief that is protected, no matter whether the propagation takes place in a church or monastery, or in a temple or parlor meeting. As regards article 26, the first question is, what is the precise meaning or connotation of the expression "religious denomination" and whether a Math could come within this expression. The word "denomination" has been defined in the Oxford Dictionary to mean "a collection of individuals classed together under same name: a religious sect or body having a
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common faith and organisation and designated by a distinctive name." It is well know that the practice of setting up Maths as centers of theological teaching was stated by Shri
Sankaracharya and was followed by various teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the
Hindu religion that we find in India at the present day. Each one of such sects or sub-sects can certainly be called a religious denomination, as it is designated by a distinctive name, - in many cases it is the name of the founder, - and has a common faith and common spiritual organization. The followers of Ramanuja, who are known by the name of Shri Vaishnabas, undoubtedly constitute a religious denomination; and so do the followers of Madhwacharya and other religious teachers. It is a fact well established by tradition that the eight Udipi Maths were founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teacher. The High Court has found that the Math in question is in charge of the Sivalli Brahmins who constitute a section of the followers of Madhwacharya.
As article 26 contemplates not merely a religious denomination but also a section thereof, the
Math or the spiritual fraternity represented by it can legitimately come within the purview of this article.
The other thing that remains to be considered by it regard to article 26 is, what is the scope of clause (b) of the article which speaks of management "of its own affairs in matters of religion ?" The language undoubtedly suggests that there could be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply. The question is, where is the line to be drawn between what are matters of religion and what are not?
It will be seen that besides the right to manage its own affairs in matters of religion, which is given by clause (b), the next two clauses of article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law.
The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of the article applies. What then are matters of religion?
The word "religion" has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition. In an American case (Vide Davis v. Benson, 133 U.S. 333 at 342.), it has been said
"that the term 'religion ' has reference to one 's views of his relation to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His will. It is often confounded with cults of form or worship of a particular sect, but is distinguishable from the latter."
We do not think that the above definition can be regarded as either precise or adequate.
Articles 25 and 26 of our Constitution are based for the most part upon article 44(2) of the
Constitution of Eire and we have great doubt whether a definition of "religion" as given above could have been in the minds of our Constitution-makers when they framed the Constitution.
Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being, but it would not be correct to say that religion is nothing else but a doctrine of belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes
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of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.
The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a relation and this is made clear by the use of the expression "practice of religion" in article 25. Latham C.J. of the High Court of Australian while dealing with the provision of section 116 of the Australian Constitution which inter alia forbids the Commonwealth to prohibit the "free exercise of any religion" made the following weighty observations (Vide Adelaide Company v. Commonwealth 67 C.L.R. 116, 127):
"It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil Government should not interfere with religious opinions, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of section 116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion."
These observations apply fully to the protection of religion as guaranteed by the Indian
Constitution. Restrictions by the State upon free exercise of religion are permitted both under articles 25 and 26 on grounds of public order, morality and health. Clause (2)(a) of article 25 reserves the right of the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice and there is a further right given to the State by sub-clause (b) under which the State can legislate for social welfare and reform even though by so doing it might interfere with religious practices. The learned
Attorney-General lays stress upon clause (2)(a) of the article and his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation.
The contention formulated in such broad terms cannot, we think, be supported. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of article
26(b). What article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices.
We may refer in this connection to a few American and Australian cases, all of which arose out of the activities of persons connected with the religious association known as “Jehova 's
Witnesses." This association of persons loosely organised throughout Australia, U.S.A. and other countries regard the literal interpretation of the Bible as fundamental to proper religious beliefs. This belief in supreme authority of the Bible colours many of their political ideas.
They refuse to take oath of allegiance to the king or other constituted human authority and even to show respect to the national flag, and they decry all wars between nations and all kinds of war activities. In 1941 a company of "Jehova 's Witnesses" incorporated in Australia commenced proclaiming and teaching matters which were prejudicial to war activities and the
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defence of the Commonwealth and steps were taken against them under the National Security
Regulations of the State. The legality of the action of the Government was questioned by means of a writ petition before the High Court and the High Court held that the action of the
Government was justified and that section 116, which guaranteed freedom of religion under the Australian Constitution, was not in any way infringed by the National Security Regulations
(Vide Adelaide Company v. Commonwealth 67 C.L.R. 116.). These were undoubtedly political activities though arising out of religious belief entertained by a particular community.
Such cases, as Chief Justice Latham pointed out, the provision for protection of religion was not an absolute protection to be interpreted and applied independently of other provisions of the Constitution. These privileges must be reconciled with the right of the State to employ the sovereign power to ensure peace, security and orderly living without which constitutional guarantee of civil liberty would be a mockery.
The courts of America were at one time greatly agitated over the question of legality of a
State regulation which required the pupils in public schools on pain of compulsion to participate in daily ceremony of saluting the national flag, while reciting in unison, a pledge of allegiance to it in a certain set formula. The question arose in Minersville School District,
Board of Education v. Gobitis (310 U.S. 586.). In that case two small children, Lillian and
William Gobitis, were expelled from the public school of Minersville, Pennsylvania, for refusing to salute the national flag as part of the daily exercise. The Gobitis family were affiliated with "Jehova 's Witnesses" and had been brought up conscientiously to believe that such a gesture of respect for the flag was forbidden by the scripture. The point for decision by the Supreme Court was whether the requirement of participation in such a ceremony exacted from a child, who refused upon sincere religious ground, infringed the liberty of religion guaranteed by the First and the Fourteenth Amendments? The court held by a majority that it did not and that it was within the province of the legislature and the school authorities to adopt appropriate means to evoke and foster a sentiment of national unity amongst the children in public schools. The Supreme Court, however, changed their views on this identical point in the later case of West Virginia State Board of Education v. Barnette (319 U.S. 624). There it was held overruling the earlier decision referred to above that the action of a State in making it compulsory for children in public schools to salute the flag and pledge allegiance constituted a violation of the First and the Fourteenth Amendments. This difference in judicial opinion brings out forcibly the difficult task which a court has to perform in cases of this type where the freedom or religious convictions genuinely entertained by men come into conflict with the proper political attitude which is expected from citizens in matters of unity and solidarity of the State organization.
As regards commercial activities, which are prompted by religious beliefs, we can cite the case of Murdock v. Pennsylvania (319 U.S. 105). Here also the petitioners were "Jehova 's
Witnesses" and they went about from door to door in the city of Jeannette distributing literature and soliciting people to purchase certain religious books and pamphlets, all published by the Watch Tower Bible and Tract Society. A municipal ordinance required religious colporteurs to pay a licence tax as a condition to the pursuit of their activities. The petitioners were convicted and fined for violation of the ordinance. It was held that the ordinance in question was invalid under the Federal Constitution as constituting a denial of freedom of speech, press and religion; and it was held further that upon the facts of the case it could not be said that Jehova 's Witnesses" were engaged in a commercial rather than in a religious venture. Here again, it may be pointed out that a contrary view was taken only a few years before in the case of Jones v. Opelika (316 U.S. 584), and it was held that a city ordinance, which required that licence be procured and taxes paid for the business of selling books and pamphlets on the streets from house to house, was applicable to a member of a
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religious organisation who was engaged in selling the printed propaganda pamphlets without having complied with the provisions of the ordinance.
It is to be noted that both in the American as well as in the Australian Constitutions the right to freedom of religion has been declared in unrestricted terms without any limitation whatsoever. Limitations, therefore, have been introduced by courts of law in these countries on grounds of morality, order and social protection. An adjustment of the competing demands of the interests of Government and constitutional liberties is always a delicate and a difficult task and that is why we find difference of judicial opinion to such an extent in cases decided by the American courts where questions of religious freedom were involved. Our
Constitution-makers, however, have embodied the limitations which have been evolved by judicial pronouncements in America or Australia in the Constitution itself and the language of articles 25 and 26 is sufficiently clear to enable us to determine without the aid of foreign authorities as to what matters come within the purview of religion and what do not. As we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the
Constitution itself has laid down. Under article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. Of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the injunction of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies. It should be noticed, however, that under article 26(d), it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of right guaranteed under clause (d) of article 26.
Having thus disposed of the general contentions that were raised in this appeal, we will proceed now to examine the specific grounds that have been urged by the parties before us in regard to the decision of the High Court so far as it declared several sections of the new Act to be ultra vires the Constitution by reason of their conflicting with the fundamental rights of the respondent. …
Section 20 of the Act describes the powers of the Commissioner in respect to religious endowments and they include power to pass any orders that may be deemed necessary to ensure that such endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded. Having regard to the fact that the
Mathadhipati occupies the position of a trustee with regard to the Math, which is a public institution, some amount of control or supervision over the due administration of the endowments and due appropriation of their funds is certainly necessary in the interest of the public and we do not think that the provision of this section by itself offends any fundamental right of the Mahant. We do not agree with the High Court that the result of this provisions would be to reduce the Mahant to the position of a servant. No doubt the Commissioner is invested with powers to pass orders, but orders can be passed only for the purposes specified in the section and not for interference with the rights of the Mahant as are sanctioned by usage or for lowering his position as the spiritual head of the institution. The saving provision contained in section 91 of the Act makes the position quite clear. An apprehension that the
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powers conferred by this section may be abused in individual cases does not make the provision itself had or invalid in law.
We agree, however, with the High Court in the view taken by it about section 21. This section empowers the Commissioner and his subordinate officers and also persons authorised by them to enter the premises of any religious institution or place of worship for the purpose of exercising any power conferred or any duty imposed by or under the Act. It is well known that there could be no such thing as an unregulated and unrestricted right of entry in a public temple or other religious institution, for persons who are not connected with the spiritual functions thereof. It is a traditional custom universally observed not to allow access to any outsider to the particularly sacred parts of a temple as for example, the place where the deity is located. There are also fixed hours of worship and rest for the idol when no disturbance by any member of the public is allowed. Section 21, it is to be noted, does not confine the right of entry to the outer portion of the premises; it does not even exclude the inner sanctuary "the
Holy of Holies" as it is said, the sanctity of which is zealously preserved. It does not say that the entry may be made after due notice to the head of the institution and at such hours which would not interfere with the due observance of the rites and ceremonies in the institution. We think that as the section stands, it interferes with the fundamental rights of the Mathadhipati and the denomination of which he is head guaranteed under articles 25 and 26 of the
Constitution. Our attention has been drawn in this connection to section 91 of the Act which, it is said, provides a sufficient safeguard against any abuse of power under section 21. We cannot agree with this contention. Clause (a) of section 91 excepts from the saving clause all express provisions of the Act within which the provision of section 21 would have to be included. Clause (b) again does not say anything about custom or usage obtaining in an institution and it does not indicate by whom and in what manner the question of interference with the religious and spiritual functions of the Math would be decided in case of any dispute arising regarding it. In our opinion, section 21 has been rightly held to be invalid.
Section 23 imposes a duty upon the trustees to obey all lawful orders issued by the
Commissioner or any subordinate authority under the provisions of the Act. No exception can be taken to the section if those provisions of the Act, which offend against the fundamental rights of the respondent, are left out of account as being invalid. Nobody can make a grievance if he is directed to obey orders issued in pursuance of valid legal authority. The same reason would, in our opinion, apply to section 24. It may be mentioned here that sections 23 and 24 have not been specifically mentioned in the concluding portion of the judgment of the High
Court set out above, though they have been attacked by the learned Judges in course of their discussion. As regards section 25, the High Court has taken exception only to clause (4) of the section.
If the preparation of registers for religious institutions is not wrong and does not affect the fundamental rights of the Mahant, one fails to see how the direction for addition to or alteration of entries in such registers, which clause (4) contemplates and which will be necessary as a result of enquiries made under clause (3), can, in any sense, be held to be invalid as infringing the fundamental rights of the Mahant. The enquiry that is contemplated by clauses (3) and (4) is an enquiry into the actual state of affairs, and the whole object of the section is to keep an accurate record of the particulars specified in it. We are unable, therefore, to agree with the view expressed by the learned Judges. For the same reasons, section 26, which provides for annual verification of the registers, cannot be held to be bad.
According to the High Court section 28 is itself innocuous. The mere possibility of its being abused is no ground for holding it to be invalid. As all endowed properties are ordinarily inalienable, we fail to see why the restrictions placed by section 29 upon alienation of endowed properties should be considered bad. In our opinion, the provision of clause (2) of section 29,
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which enables the Commissioner to impose conditions when he grants sanction to alienation of endowed property, is perfectly reasonable and to that no exception can be taken.
The provision of section 30(2) appears to us to be somewhat obscure. Clause (1) of the section enables a trustee to incur expenditure out of the funds in his charge after making adequate provision for the purposes referred to in section 70(2), for making arrangements for the health, safety and convenience of disciples, pilgrims, etc. Clause (2), however, says that in incurring expenditure under clause (1), the trustee shall be guided by such general or special instruction as the Commissioner or the Area Committee might give in that connection. If the trustee is to be guided but not fettered by such directions, possibly no objection can be taken to this clause; but if he is bound to carry out such instructions, we do think that it constitutes an encroachment on his right. Under the law, as it stands, the Mahant has large powers of disposal over the surplus income and the only restriction is that he cannot spend anything out of it for his personal use unconnected with the dignity of his office. But as the purposes specified in sub-clauses (a) and (b) of section 30(1) are beneficial to the institution there seems to be no reason why the authority vested in the Mahant to spend the surplus income for such purposes should be taken away from him and he should be compelled to act in such matters under the instructions of the Government officers. We think that this is an unreasonable restriction on the Mahant 's right of property which is blended with his office.
The same reason applies in our opinion to section 31 of the Act, the meaning of which also is far from clear. If after making adequate provision for the purposes referred to in section
70(2) and for the arrangements mentioned in section 30(2) there is still a surplus left with the trustee, section 31 enables him to spend it for the purposes specified in section 59(1) with the previous sanction of the Deputy Commissioner. One of the purposes mentioned in section
59(1) is the propagation of the religious tenants of the institution, and it is not understood why sanction of the Deputy Commissioner should be necessary for spending the surplus income for the propagation of the religious tenets of the order which is one of the primary duties of a
Mahant to discharge. The next thing that strikes one is, whether sanction is necessary if the trustee wants to spend the money for purposes other than those specified in section 59(1) ? If the answer is in the negative, the whole object of the section becomes meaningless. If, on the other hand, the implication of the section is that the surplus can be spent only for the purposes specified in section 59(1) and that too with the permission of the Deputy Commission, it undoubtedly places a burdensome restriction upon the property rights of the Mahant which are sanctioned by usage and which would have the effect of impairing his dignity and efficiency as the head of the institution. We think that sections 30(2) and 31 have been rightly held to be invalid by the High Court.
Sections 39 and 42, as said already, are not applicable to Maths and hence can be left out of consideration. Section 53 has been condemned by the High Court merely on the ground that the court has ample jurisdiction to provide for the contingencies that this section is intended to meet. But that surely cannot prevent a competent legislature from legislating on the topic, provided it can do so without violating any of the fundamental rights guaranteed by the Constitution. We are unable to agree with the High Court on this point. There seems to be nothing wrong or unreasonable in section 54 of the Act which provides for fixing the standard scale of expenditure. The proposals for this purpose would have to be submitted by the trustee; they are then to be published and suggestions invited from persons having interest in the amendment. The commissioner is to scrutinise the original proposals and the suggestions received and if in his opinion a modification of the scale is necessary, he has to submit a report to the Government, whose decision will be final. This we consider to be quite a reasonable and salutary provision.
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Section 55 deals with a Mahant 's power over Pathakanikas or personal gifts. Ordinarily a
Mahant has absolute power of disposal over such gifts, though if he dies without making any disposition, it is reckoned as the property of the Math and goes to the succeeding Mahant. The first clause of section 55 lays down that such Pathakanikas shall be spent only for the purposes of the Math. This is an unwarranted restriction on the property right of the Mahant. It may be that according to customs prevailing in a particular institution, such personal gifts are regarded as gifts to the institution itself and the Mahant receives them only as the representative of the institution; but the general rule is otherwise. As section 55(1) does not say that this rule will apply only when there is a custom of that nature in a particular institution, we must say that the provision in this unrestricted form is an unreasonable encroachment upon the fundamental right of the Mahant. The same objection can be raised against clause (2) of the section; for if the Pathakanikas constitute the property of a Mahant, there is no justification for compelling him to keep accounts of the receipts and expenditure of such personal gifts. As said already, if the Mahant dies without disposing of these personal gifts, they may form part of the assets of the Math, but that is no reason for restricting the powers of the Mahant over these gifts so long as he is alive.
Section 56 has been rightly invalidated by the High Court. It makes provision of an extremely dramatic character. Power has been given to the Commissioner to require the trustee to appoint a manager for administration of the secular affairs of the institution and in case of default, the commissioner can make the appointment himself. The manager thus appointed though nominally a servant of the trustee, has practically to do everything according to the directions of the Commissioner and his subordinates. It is to be noted that this power can be exercised at the mere option of the Commissioner without any justifying necessity whatsoever and no pre-requisites like mismanagement of property or maladministration of trust funds are necessary to enable the trustee to exercise such drastic power. It is true that the section contemplates the appointment of a manager for administration of the secular affairs of this institution. But no rigid demarcation could be made as we have already said between the spiritual duties of the Mahant and his personal interest in the trust property. The effect of the section really is that the Commissioner is at liberty at any moment he chooses to deprive the
Mahant of his right to administer the trust property even if there is no negligence or maladministration on his part. Such restriction would be opposed to the provision of article
26(d) of the Constitution. It would cripple his authority as Mahant altogether and reduce his position to that of an ordinary priest or paid servant.
We find nothing wrong in section 58 of the Act which relates to the framing of the scheme by the Deputy Commissioner. It is true that it is a Government officer and not the court who is given the power to settle the scheme, but we think that ample safeguards have been provided in the Act to rectify any error or unjust decision made by the Deputy Commissioner. Section
61 provides for an appeal to the Commissioner against the order of the Deputy Commissioner and there is a right of suit given to a party who is aggrieved by the order of the Commissioner with a further right of appeal to the High Court.
The objection urged against the provision of clause (3)(b) of section 58 does not appear to us to be of much substance. The executive officer mentioned in that clause could be nothing else but a manager of the properties of the Math, and he cannot possibly be empowered to exercise the functions of the Mathadhipati himself. In any event, the trustee would have his remedy against such order of the Deputy Commissioner by way of appeal to the Commissioner and also by way of suit as laid down in sections 61 and 62. Section 59 simply provides a scheme for the application of the cy pres doctrine in case the object of the trust fails either from the inception or by reason of subsequent events. Here again the only complaint that is raised is, that such order could be made by the Deputy Commissioner. We think that this
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objection has not much substance. In the first place, the various objects on which the trust funds could be spent are laid down in the section itself and the jurisdiction of the Deputy
Commissioner is only to make a choice out of the several heads. Further an appeal has been provided from an order of the Deputy Commissioner under this section to the Commissioner.
We, therefore, cannot agree with the High Court that sections 58 and 59 of the Act are invalid.
Chapter VI of the Act, which contains sections 63 to 69, relates to notification of religious institutions. The provisions are extremely drastic in their character and the worst feature of it is that no access is allowed to the court to set aside an order of notification. The AdvocateGeneral for Madras frankly stated that he could not support the legality of these provisions.
We hold, therefore, in agreement with High Court that these sections should be held to be void. Section 70 relates to the budget of religious institutions. Objection has been taken only to clause (3) which empowers the Commissioner and the Area Committee to make any additions to or alterations in the budget as they deem fit. A budget is indispensable in all public institutions and we do not think that it is per se unreasonable to provide for the budget of a religious institution being prepared under the supervision of the Commissioner or the Area
Committee. It is to be noted that if the order is made by an Area Committee under clause (3), clause (4) provides an appeal against it to the Deputy Commissioner.
Section 89 provides for penalties for refusal by the trustee to comply with the provisions of the Act. If the objectionable portions of the Act are eliminated, the portion that remains will be perfectly valid and for violation of these valid provisions, penalties can legitimately be provided. Section 99 vests an overall revisional power in the Government. This, in our opinion, is beneficial to the trustee, for he will have an opportunity to approach the
Government in case of any irregularity, error or omission made by the Commissioner or any other subordinate officer.
The only other point that requires consideration is the constitutional validity of section 76 of the Act which runs as follows:
"76. (1) In respect of the services rendered by the Government and their officers, every religious institution shall, from the income derived by it, pay to the
Government annually such contribution not exceeding five per cent of its income as may be prescribed.
(2) Every religious institution, the annual income of which for the fasli year immediately preceding as calculated for the purposes of the levy of contribution under sub-section (1), is not less than one thousand rupees, shall pay to the
Government annually, for meeting the cost of auditing its accounts, such further sum not exceeding one and a half per centum of its income as the Commissioner may determine.
(3) the annual payments referred to in sub-sections (1) and (2) shall be made, notwithstanding anything to the contrary contained in any scheme settled or deemed to be settled under this Act for the religious institution concerned.
(4) The Government shall pay the salaries, allowances, pensions and other beneficial remuneration of the Commissioner, Deputy Commissioners, Assistant
Commissioners and other officers and servants (other than executive officers of religious institutions) employed for the purposes of this Act and the other expenses incurred for such purposes, including the expenses of Area Committees and the cost of auditing the accounts of religious institutions."
Thus the section authorises the levy of an annual contribution on all religious institutions, the maximum of which is fixed at 5 per cent of the income derived by them. The Government is to frame rules for the purposes fixing rates within the permissible maximums and the section expressly states that the levy is in respect of the services rendered by the Government and its
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officers. The validity of the provision has been attacked on a two-fold ground: the first is, that the contribution is really a tax and as such it was beyond the legislative competence of the
State Legislature to enact such provision. The other is, that the contribution being a tax or imposition, the proceeds of which are specifically appropriated for the maintenance of a particular religion or religious denomination, it comes within the mischief or article 27 of the
Constitution and is hence void.
So far as the first ground is concerned, it is not disputed that the legislation in the present case is covered by entries 10 and 28 of List III in Schedule VII of the Constitution. If the contribution payable under section 76 of the Act is a "fee", it may come under entry 47 of the
Concurrent List which deals with "fees" in respect of any of the matters included in that list.
On the other hand, if it is a tax, as this particular tax has not been provided for in any specific entry in any of the three lists, it could come only under entry 97 of List or article 248(1) of the
Constitution and in either view the Union Legislature alone would be competent to legislate upon it. On behalf of the appellant, the contention raised is that the contribution levied is a fee and not a tax and the learned Attorney-General, who appeared for the Union of India as intervener in this as well as in the other connected appeals, made a strenuous attempt to support this position. The point is certainly not free from doubt and requires careful consideration. The learned Attorney-General has argued in the first place that our Constitution makes a clear distinction between taxes and fees. It is true, as he has pointed out, that there are a number of entries in List I of the Seventh Schedule which relate to taxes and duties of various sorts; whereas the last entry, namely entry 96, speaks of "fees" in respect of any of the matters dealt with in the list. Exactly the same is with regard to entries 46 to 62 in List II all of which relate to taxes and here again the last entry deals only with "fees" leviable in respect of the different matters specified in the list. It appears that articles 110 and 119 of the Constitution which deal with "Money Bills" lay down expressly that a bill will not be deemed to be a "Money Bill" by reason only that it provides for the imposition of fines.... or for the demand or payment of fees for licences or fees for services rendered, whereas a bill dealing with imposition or regulation of a tax will always be a Money Bill. Article 277 also mentions taxes, cesses and fees separately. It is not clear, however, whether the word "tax" as used in article 265 has not been used in the wider sense as including all other impositions like cesses and fees; and that at least seems to be the implication of clause (28) of article 366 which defines taxation as including the imposition of any tax or impost, whether general, local or special. It seems to us that though levying of fees is only a particular form of the exercise of the taxing power of the State, our
Constitution has placed fees under a separate category for purposes of legislation and at the end of each one of the three legislative lists, it has given a power to the particular legislature to legislate on the imposition of fees in respect to every one of the items dealt with in the list itself. Some idea as to what fees are may be gathered from clause (2) of articles 110 and 119 referred to above which speak of fees for licences and for services rendered. The question for our consideration really is, what are the indices or special characteristics that distinguish a fee from a tax proper? On this point we have been referred to several authorities by the learned counsel appearing for the different parties including opinions expressed by writers of recognised treatises on public finance.
A neat definition of what "tax" means has been given by Latham C.J. of the High Court of Australia in Matthews v. Chicory Marketing Board (60 C.L.R. 263, 276):
"A tax", according to the learned Chief Justice, "is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered".
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This definition brings out, in our opinion, the essential characteristics of a tax as distinguished from other forms of imposition which, in a general sense, are included within it.
It is said that the essence of taxation is compulsion, that is to say, it is imposed under statutory power without the taxpayer 's consent and the payment is enforced by law (Vide Lower
Mainland Dairy v. Orystal Dairy Ltd. 1933 A.C. 168.). The send characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax. This is expressed by saying that the levy of tax is for the purposes of general revenue, which when collected form part of the public revenues of the
State. As the object of a tax is not to confer any special benefit upon any particular individual, there is, as it is said, no element of quid pro quo between the taxpayer and the public authority
(See Findlay Shirras on "Science of Public Finance", Vol. p. 203.). Another feature of taxation is that as it is a part of the common burden, the quantum of imposition upon the taxpayer depends generally upon his capacity to pay.
Coming now to fees, a 'fee ' is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases the costs are arbitrarily assessed. Ordinarily, the fees are uniform and no account is taken of the varying abilities of different recipients to pay (Vide Lutz on "Public Finance"
p. 215.). These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable to all cases. As regards the distinction between a tax and a fee, it is argued in the first place on behalf of the respondent that a fee is something voluntary which a person has got to pay if he wants certain services from the Government; but there is no obligation on his part to seek such services and if he does not want the services, he can avoid the obligation. The example given is of a licence fee. If a man wants a licence that is entirely his own choice and then only he has to pay the fees, but not otherwise. We think that a careful examination will reveal that the element of compulsion or coerciveness is present in all kinds of imposition, though in different degrees and that it is not totally absent in fees. This, therefore, cannot be made the sole or even a material criterion for distinguishing a tax from fees. It is difficult, we think, to conceive of a tax except, it be something like a poll tax, the incidence of which falls on all person within a State. The house tax has to be paid only by those who own houses, the land tax by those who possess lands, municipal taxes or rates will fall on those who have properties within a municipality. Persons, who do not have houses, lands or properties within municipalities, would not have to pay these taxes, but nevertheless these impositions come within the category of taxes and nobody can say that it is a choice of these people to own lands or houses or specified kinds of properties, so that there is no compulsion on them to pay taxes at all.
Compulsion lies in the fact that payment is enforceable by law against a man in spite of his unwillingness or want of consent; and this element is present in taxes as well as in fees. Of course, in some cases whether a man would come within the category of a service receiver may be a matter of his choice, but that by itself would not constitute a major test which can be taken as the criterion of this species of imposition. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as a part of a common burden, while a fee is a payment for a special benefit or privilege. Fees confer a special capacity, although the special advantage, as for example in the case of registration fees for documents or marriage licences, is secondary to the primary motive of regulation in the public interest (Vide Findlay Shirras on "Science of Public Finance" Vol. I, p. 202.). Public interest seems to be at the basis of all impositions, but in a fee it is some special benefit which the individual receives. As Seligman says, it is the special benefit accruing to the individual which is the reason for payment in the
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case of fees; in the case of a tax, the particular advantage if it exists at all is an incidental result of State action (Vide Seligman 's Essays on Taxation, p. 408.).
If, as we hold, a fee is regarded as a sort of return or consideration for services rendered, it is absolutely necessary that the levy of fees should, on the face of the legislative provision, be co-related to the expenses incurred by Government in rendering the services. As indicated in article 110 of the Constitution, ordinarily there are two classes of cases where Government imposes 'fees ' upon persons. In the first class of cases, Government simply grants a permission or privilege to a person to do something, which otherwise that person would not be competent to do and extracts fees either heavy or moderate from that person in return for the privilege that is conferred. A most common illustration of this type of cases is furnished by the licence fees for motor vehicles. Here the costs incurred by the Government in maintaining an office or bureau for the granting of licences may be very small and the amount of imposition that is levied is based really not upon the costs incurred by the Government but upon the benefit that the individual receives. In such cases, according to all the writers on public finance, the tax element is predominant (Vide Seligman 's Essays on Taxation, p. 409.), and if the money paid by licence holders goes for the upkeep of roads and other matters of general public utility, the licence fee cannot but be regard as a tax.
In the other class of cases, the Government does some positive work for the benefit of persons and the money is taken as the return for the work done or services rendered. If the money thus paid is set apart and appropriated specifically for the performance of such work and is not merged in the public revenues for the benefit of the general public, it could be counted as fees and not a tax. There is really no generic difference between the tax and fees and as said by Seligman, the taxing power of a State may manifest itself in three different forms known respectively as special assessments, fees and taxes (Ibid, p. 406.).
Our Constitution has, for legislative purposes, made a distinction between a tax and a fee and while there are various entries in the legislative lists with regard to various forms of taxes, there is an entry at the end of each one of the three lists as regards fees which could be levied in respect of any of the matters that is included in it. The implication seems to be that fees have special reference to governmental action undertaken in respect to any of these matters.
Section 76 of the Madras Act speaks definitely of the contribution being levied in respect to the services rendered by the Government; so far it has the appearance of fees. It is true that religious institution do not want these services to be rendered to them and it may be that they do not consider the State interference to be a benefit at all. We agree, however, with the learned
Attorney-General that in the present day concept of a State, it cannot be said that services could be rendered by the State only at the request of those who require these services. If in the larger interest of the public, a State considers it desirable that some special service should be done for certain people, the people must accept these services, whether willing or not (Vide
Findlay Shirras on "Science of Public Finance" Vol. I, p. 202.). It may be noticed, however, that the contribution that has been levied under section 76 of the Act has been made to depend upon the capacity of the payer and not upon the quantum of benefit that is supposed to be conferred on any particular religious institution. Further the institutions, which come under the lower income group and have income less than Rs. 1,000 annually, are excluded from the liability to pay the additional charges under clause (2) of the section. These are undoubtedly some of the characteristics of a 'tax ' and the imposition bears a close analogy to income-tax.
But the material fact which negatives the theory of fees in the present case is that the money raised by levy of the contribution is not ear-marked or specified for defraying the expenses that the Government has to incur in performing the services. All the collections go to the consolidated funds of the State and all the expenses have to be met not out of these collections but out of the general revenues by a proper method of appropriation as is done in case of other
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Government expenses. That in itself might not be conclusive, but in this case there is total absence of any co-relation between the expenses incurred by the Government and the amount raised by contribution under the provision of section 76 and in these circumstances the theory of a return or counter-payment or quid pro quo cannot have any possible application to this case. In our opinion, therefore, the High Court was right in holding that the contribution levied under section 76 is a tax and not a fee and consequently it was beyond the power of the State
Legislature to enact this provision.
In view of our decision on this point, the other ground hardly requires consideration. We will indicate, however, very briefly our opinion on the second point raised. The first contention, which has been raised by Mr. Nambiar in reference to article 27 of the Constitution is that the word "taxes", as used therein, is not confined to taxes proper but is inclusive of all other impositions like cesses, fees, etc. We do not think it necessary to decide this point in the present case, for in out opinion on the facts of the present case, the imposition, although it is a tax, does not come within the purview of the latter part of the article at all. What is forbidden by the article is the specific appropriation of the proceeds of any tax in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. The reason underlying this provision is obvious. Ours being a secular State and there being freedom of religion guaranteed by the Constitution, both to individuals and to groups, it is against the policy of the Constitution to pay out of public funds any money for the promotion or maintenance of any particular religion or religious denomination. But the object of the contribution under section 76 of the Madras Act is not the fostering or preservation of the
Hindu religion or any denomination within it. The purpose is to see that religious trusts and institutions, wherever they exist, are properly administered. It is a secular administration of the religious institutions that the legislature seeks to control and the object, as enunciated in the Act, is to ensure that the endowments attached to the religious institutions are properly administered and their income is duly appropriated for the purposes for which they were founded or exist. There is no question of favouring any particular religion or religious denomination in such cases. In our opinion, article 27 of the Constitution is not attracted to the facts of the present case. The result, therefore, is that in our opinion sections 21, 30(2), 31,
56 and 63 to 69 are the only sections which should be declared invalid as conflicting with the fundamental rights of the respondent as Mathadhipati of the Math in question and section
76(1) is void as beyond the legislative competence of the Madras State Legislature. The rest of the Act is to be regarded as valid. The decision of the High Court will be modified to this extent, but as the judgment of the High Court is affirmed on its merits, the appeal will stand dismissed with costs to the respondent.
Appeal dismissed.
ACHARYA JAGDISHWARANAND AVADHUTA V. COMMISSIONER OF POLICE, CALCUTTA
AIR 1984 SC 51, (1983) 4 SCC 522
Decided On: October 20, 1983
BENCH – JUSTICES P. N. BHAGWATI, AMARENDRA NATH SEN & RANGANATH MISRA
JUSTICE MISRA (for the Court)
The petitioner in Writ Petition No. 6890/82 a monk of the Ananda Marga and currently
General Secretary, Public Relations Department of the Ananda Marga Pracharak Sangh, has filed this petition under Article 32 of the Constitution for a direction to the Commissioner of
Police Calcutta and the State of West Bengal to allow processions to be carried in the public
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streets and meetings to be held in public places by the followers of the Ananda Marga cult accompanied by the performance of Tandava dance within the State of West Bengal. …
In the original petition certain factual assertions have been made and after counter affidavits were filed several further affidavits have been placed before the Court on behalf of the petitioner and counter affidavits too have been filed. Shorn of unnecessary details, the averments on behalf of the respective contenders are as follows:
Shri Pravat Ranjan Sarkar otherwise known as Shri Ananda Murti, founded a sociospiritual organisation claimed to have been dedicated to the service of humanity in different spheres of life such as physical mental and spiritual irrespective of caste, creed or colour, in the year 1955. In the initial period the Headquarters of this organisation was located near
Ranchi in the State of Bihar but later it has been shifted to a place within the City of Calcutta in West Bengal. It has been pleaded that Ananda Marga contains no dogmatic beliefs and teaches the yogic and spiritual science to every aspirant. In order to realise the Supreme,
Ananda Marga does not believe that it is necessary to abandon home profession or occupation and spiritual sadhana is possible at any place and concurrently with fulfilling all duties and responsibilities of family life. It has been pleaded that Ananda Marga shows the way and explains the methods for spiritual advancement and this helps man to practice his dharma.
According to the petitioner Lord Shiva had performed Tandava Dance in 108 forms but
Shaivite literature has given details of 64 kinds only. Seven forms out of these 64 appear to have been commonly accepted and they are called Kalika, Gouri, Sandhya, Sambhara, Tripura,
Urdhava and Ananda. The first of these forms elaborates the main aspects of Shiva while the seventh, i.e. the Ananda Tandava portrays all the manifold responsibilities of the Lord. Ananda
Tandava is claimed to have taken place at Tillai, the ancient name of Chidambaram now situated in the State of Tamil Nadu. It is the petitioner 's stand that the word Tandava is derived from the root Tandu which means to jump about and Shiva was the originator of Tandava about
6500 years ago. Ananda Murtiji as the petitioner maintains, is the Supreme Father of the
Ananda Margis. It is customary for every Ananda Margi after being duly initiated to describe
Ananda Murtiji as his father. One of the prescriptions of religious rites to be daily performed by an Ananda Margi is Tandava Dance and this is claimed to have been so introduced from the year 1966 by the preceptor. This dance is to be performed with a skull, a small, symbolic knife and a Trishul. It is also customary to hold a lathi and a damroo. It is explained that the knife or the sword symbolises the force which cuts through the fetters of the mundane world and allows human beings to transcend towards perfection; the trishul or the trident symbolises the fight against static forces in the three different spheres of human existence - spiritual, mental and physical; the lathi which is said to be a straight stick stands out as the symbol of straightforwardness or simplicity; the damroo is the symbol to bring out rhythmic harmony between eternal universal music and the entitative sound; and the skull is the symbol of death reminding every man that life is short and therefore, every moment of life should be utilised in the service of mankind and salvation should be sought. The petitioner has further maintained that Ananda Margis greet their spiritual preceptor Shri Ananda Murti with a dance of Tandava wherein one or two followers use the skull and the symbolic knife and dance for two or three minutes. At intervals processions are intended to be taken out in public places accompanied by the Tandava dance as a religious practice.
Though in subsequent affidavits and in the course of argument an attempt was made by
Mr. Tarkunde to assert that Ananda Marga is a new religious order; we do not think there is any justification to accept such a contention when it runs counter to the pleadings in paragraphs
4 and 17 of the writ petition. In paragraph 4 it was specifically pleaded that "Ananda Marga is more a denomination than an institutionalised religion", and in paragraph 17 it was pleaded that "Ananda Margis are Shaivites" We shall, therefore, proceed to deal with this petition on
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the footing that, as pleaded by the petitioner, Ananda Marga is a religious denomination of the
Shaivite order which is a well-known segment of Hindu religion.
Though the petitioner had pleaded that Tandava dance has been practiced and performed by every Ananda Margi for more than three decades, it has been conceded in the course of the hearing that Tandava Dance was introduced for the first time as a religious rite for Ananda
Margis in or around 1966. Therefore, by the time of institution of this writ petition the practice was at best prevalent for about 16 years.
The Commissioner of Police, respondent 1 before us is alleged to have made repetitive orders Under Section 144 of the CrPC, 1973 ( 'Code ' for short) from August 1979 directing that
"no member of a procession or assembly of five or more persons should carry any fire arms, explosives, swords, spears, knives, tridents, lathis or any article which may be used as weapon of offence or any article likely to cause annoyance to the public for example skulls…" A petition was filed before the Calcutta High Court under Article 226 of the Constitution by the
General Secretary of Ananda Marga for a writ of mandamus against the respondents for a direction not to interfere with or place restraints on the freedom of conscience and free profession, practice and propagation of their religion, including Tandava Dance in matter No.
903 of 1980. The Calcutta High Court rejected the said petition on September 23, 1980 and observed: It is open to anyone in this country to practice any religion but the religious practice must not be inconsistent with the susceptibility or sensibility or fairness or public order. Tandava dance as such may not be objectionable. In the streets of
Calcutta all kinds of demonstrations and procession are being held every day which may on many occasions cause disturbance to others and interrupt the free flow of traffic. In spite of the same such demonstrations and processions are allowed to take place particularly every day by the authority concerned. If the petitioners or any member of their group want to hold a procession or reception or demonstration accompanied by any dance or music, that by itself may not be objectionable. However, brandishing fire torches or skulls or daggers in the public places including streets cannot come under the same category. Here other things are involved. The interests of other members of the public are involved, the sense of security of the others is also involved. The authorities concerned have to keep in mind the question of the feelings of other members of the public and the question of the possibility of any attempt to retaliate or counter-act to the same are also to be considered. Taking into consideration all these factors I am of the opinion that the petitioners do not have any legal right and they have not established any legal right to carry fire torches, skulls and daggers in public places or public streets and do not intend to pass any order entitling the petitioners to do so. However, the petitioners shall be entitled to go in procession or hold any demonstration without any such fire torches, daggers or skulls. However, this would be subject to prevailing law of the land in the particular area. For example, in the High Court, Dalhousie Square and Assembly order Under Section 144 of the Criminal Procedure Code is promulgated from time to time. This order would not entitle the petitioners to hold any such procession demonstration in violation of such promulgation if any. This order would also not entitle the petitioners to hold any procession or demonstration without the permission of the authority concerned when such permission is required for such purposes under any existing law. On March 29, 1982, respondent 1 made a fresh order Under Section 144 of the Code wherein the same restraints as mentioned in the earlier order were imposed. An application for permission to take out a procession on the public street accompanied with Tandava dance was rejected and that led to the filing of this petition.
The petitioner asserts that tandava dance is an essential part of the religious rites of the
Ananda Margis and that they are entitled to practise the same both in private as also in public
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places and interference by the respondents is opposed to the fundamental rights guaranteed under Articles 25 and 26 of the Constitution. The order Under Section 144 of the Code has been assailed mainly on the ground that it does not state the material facts of the case though the statute requires such statement as a condition precedent to the making of the order.
Repetitive orders Under Section 144 of the Code, it has been contended, are not contemplated by the Code and, therefore, making of such orders is an abuse of the law and should not be countenanced. Two separate returns have been made to the rule nisi. Respondent 1 has filed a counter affidavit alleging that Ananda Marga is an organisation which believes in violence and if
Ananda Margis are permitted to carry open swords or daggers in public processions it is bound or likely, to disturb public peace and tranquility and is fraught with the likelihood of breach of public order and would affect public morality. Carrying of human skulls and indulging in provocative dances with human skulls is not only repulsive to public taste and morality, but is bound, and is likely, to raise fears in the minds of the people particularly children thereby affecting public order, morality, peace and tranquility. It has been further pleaded that the petitioner, or for the matter of that, Ananda Margis can have no fundamental right to carry weapons in the public, in procession or otherwise, nor have they any right to perform tandava dance with daggers and human skulls. It is stated that Ananda Marga is a politico-religious organisation started in 1961 by Shri Pravat Ranjan Sarkar alias Sri Ananda Murti, who is a selfstyled tantrik yogi. Reference has been made to an incident of 1971 which led to prosecution of Sri Ananda Murti and some of his followers. It is stated that militancy continues to be the main feature of the organisation. Prior to promulgation of the prohibitory orders, it has been pleaded, Ananda Margis took out processions carrying lethal weapons like tridents, lathis as well as human skulls and knives from time to time and caused much annoyance to the public in general and onlookers in particular, and this tended to disturb public peace, tranquility and public order. In spite of the prohibitory orders in force from August 10, 1979, a procession was taken out on the following day within the city of Calcutta by Ananda Margis with lathis, tridents, knives, skulls, and the procession became violent. The assembly was declared unlawful and the police force was obliged to intervene. The police personnel on duty including a Deputy Commissioner of Police received injuries. Reference to several other incidents has also been made in the counter-affidavit of the Police Commissioner. The State Government has supported the stand of the Police Commissioner in its separate affidavit.
We have already indicated that the claim that Ananda Marga is a separate religion is not acceptable in view of the clear assertion that is was not an institutionalised religion but was a religious denomination. The principle indicated by Gajendragadkar, C.J., while speaking for the Court in Sastri Yagnapurushadji v. Muldas Bhudardos Vaishya [1966] 3 SCR 242 also supports the conclusion that Ananda Marga cannot be a separate religion by itself. In that case the question for consideration was whether the followers of Swaminarayan belonged to a religion different from that of Hinduism. The learned Chief Justice observed:
Even a cursory study of the growth and development of Hindu religion through the ages shows that whenever a saint or a religious reformer attempted the task of reforming Hindu religion and fighting irrational or corrupt practices which had crept into it, a sect was born which was governed by its own tenets but which basically subscribed to the fundamental notions of Hindu religion and Hindu philosophy. The averments in the writ petition would seem to indicate a situation of this type. We have also taken into consideration the writings of Shri Ananda Murti in books like Carya-Carya,
Namah Shivaya Shantaya, A Guide to Human Conduct, and Ananda Vachanamritam. These
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writings by Shri Ananda Murti are essentially founded upon the essence of Hindu philosophy.
The test indicated by the learned Chief Justice in the case referred to above and the admission in paragraph 17 of the writ petition that Ananda Margis belong to the Shaivite order lead to the clear conclusion that Ananda Margis belong to the Hindu religion. Mr. Tarkunde for the petitioner had claimed protection of Article 25 of the Constitution but in view of our finding that Ananda Marga is not a separate religion, application of Article 25 is not attracted.
The next aspect for consideration is whether Ananda Marga can be accepted to be a religious denomination. In Shirur Mutt Mukherjee, J. (as the learned Judge then was), spoke for the Court thus:
As regards Article 26, the first question is, what is the precise meaning or connotation of the expression 'religious denomination ' and whether a Math could come within this expression. The word 'denomination ' has been defined in the
Oxford Dictionary to mean 'a collection of individuals classed together under the same name: a religious sect or body having a common faith and organisation and designated by a distinctive name’.
This test has been followed in Durgah Committee, Ajmer v, Syed Hussain Ali [1962] 1
SCR383. In the majority judgment in S. P. Mittal v. Union of India [1983] 1 SCC 51 reference to this aspect has also been made and it has been stated:
The words 'religious denomination ' in Article 26 of the Constitution must take their colour from the word 'religion ' and if this be so, the expression 'religious denomination ' must also satisfy three conditions:
(1) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith; (2) common organisation; and
(3) designation by a distinctive name.
Ananda Marga appears to satisfy all the three conditions, viz., it is a collection of individuals who have a system of beliefs which they regard as conducive to their spiritual wellbeing; they have a common organisation and the collection of these individuals has a distinctive name. Ananda Marga, therefore, can be appropriately treated as a religious denomination, within the Hindu religion. Article 26 of the Constitution provides that subject to public order morality and health, every religious denomination or any section thereof shall have the right to manage its own affairs in matters of religion. …
Courts have the power to determine whether a particular rite of observance is regarded as essential by the tenets of a particular religion. … The question for consideration now, therefore, is whether performance of Tandava dance is a religious rite or practice essential to the tenets of the religious faith of the Ananda Margis. We have already indicated that tandava dance was not accepted as an essential religious rite of Ananda Margis when in 1955 the Ananda Marga order was first established It is the specific case of the petitioner that Shri Ananda Murti introduced tandava as a part of religious rites of Ananda Margis later in 1966. Ananda Marga as a religious order is of recent origin and tandava dance as a part of religious rites of that order is still more recent. It is doubtful as to whether in such circumstances tandava dance can be taken as an essential religious rite of the Ananda Margis. Even conceding that it is so, it is difficult to accept Mr. Tarkunde 's argument that taking out religious processions with tandava dance is an essential religious rite of Ananda Margis. In paragraph 17 of the writ petition the petitioner pleaded that "Tandava Dance lasts for a few minutes where two or three persons dance by lifting one leg to the level of the chest, bringing it down and lifting the other." In paragraph 18 it has been pleaded that "when the Ananda Margis greet their spiritual preceptor at the airport, etc. they arrange for a brief welcome dance of tandava wherein one or two persons
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use the skull and symbolic knife and dance for two or three minutes." In paragraph 26 it has been pleaded that "Tandava is a custom among the sect members and it is a customary performance and its origin is over four thousand years old, hence it is not a new invention of
Ananda Margis." On the basis of the literature of the Ananda Marga denomination it has been contended that there is prescription of the performance of tandava dance by every follower of
Ananda Marga. Even conceding that tandava dance has been prescribed as a religious rite for every follower of the Ananda Marg it does not follow as a necessary corollary that tandava dance to be performed in the public is a matter of religious rite. In fact, there is no justification in any of the writings of Shri Ananda Murti that tandava dance must be performed in public.
At least none could be shown to us by Mr. Tarkunde despite an enquiry by us in that behalf.
We are, therefore, not in a position to accept the contention of Mr. Tarkunde that performance of tandava dance in a procession or at public places is an essential religious rite to be performed by every Ananda Margi.
One we reach this conclusion, the claim that the petitioner has a fundamental right within the meaning of Articles 25 or 26 to perform tandava dance in public streets and public places has to be rejected. In view of this finding it is no more necessary to consider whether the prohibitory order was justified in the interest of public order as provided in Article 25.
… It is appropriate to take note of the fact that the impugned order Under Section 144 of the Code did not ban processions or gatherings at public places even by Ananda Margis. The prohibition was with reference to the carrying of daggers, trishuls and skulls. Even performance of tandava dance in public places, which we have held is not an essential part of religious rites to be observed by Ananda Margis, without these, has not been prohibited.
The writ petitions have to fail on our finding that performance of tandava dance in procession in the public streets or in gatherings in public places is not an essential religious rite of the followers of Ananda Marga. In the circumstance there will be no order as to costs.
BIJOE EMMANUEL V. STATE OF KERALA
AIR 1987 SC 748, (1986) 3 SCC 615
Decided On: August 11, 1986
BENCH – JUSTICES O. CHINNAPPA REDDY & M. M. DUTT
JUSTICE CHINNAPPA REDDY (for the Court)
The three child appellants, Bijoe, Binu Mol and Bindu Emmanuel, are the faithful of
Jehovah 's Witnesses. They attend school. Daily, during the morning Assembly, when the
National Anthem 'Jana Gana Mana ' is sung, they stand respectfully but they do not sing. They do not sing because, according to them, it is against the tenets of their religious faith not the words or the thoughts of the Anthem but the singing of it. This they and before them their elder sisters who attended the same school earlier have done all these several years. No one bothered,
No one worried. No one thought it disrespectful or unpatriotic. The children were left in peace and to their beliefs. That was until July, 1985, when some patriotic gentleman took notice. The gentleman thought it was unpatriotic of the children not to sing the National Anthem. He happened to be a Member of the Legislative Assembly. So, he put a question in the Assembly.
A Commission was appointed to enquire and report. We do not have the report of the
Commission. We are told that the Commission reported that the children are 'law-abiding ' and that they showed no disrespect to the National Anthem. Indeed it is nobody 's case that the children are other than well-behaved or that they have ever behaved disrespectfully when the
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National Anthem was sung. They have always stood up in respectful silence. But these matters of conscience, which though better left alone, are sensitive and emotionally evocative. So, under the instructions of Deputy Inspector of Schools, the Head Mistress expelled the children from the school from July 26, 1985. The father of the children made representations requesting that his children may be permitted to attend the school pending orders from the Government.
The Head Mistress expressed her helplessness in the matter. Finally the children filed a Writ
Petition in the High Court seeking an order restraining the authorities from preventing them from attending School. First a learned single Judge and then a Division Bench rejected the prayer of the children. They have now come before us by special leave under Article 136 of the Constitution.
We are afraid the High Court misdirected itself and went off at a tangent. They considered, in minute detail, each and every word and thought of the National Anthem and concluded that there was no word or thought in the National Anthem which could offend anyone 's religious susceptibilities. But that is not the question at all. The objection of the petitioners is not to the language or the sentiments of the National Anthem: they do not sing the National Anthem wherever, ‘Jana Gana Mana’ in India, ‘God save the Queen’ in Britain, the ‘Star-spangled banner’ in the United States and so on. In their words in the Writ Petition they say, "The students who are Witnesses do not sing the Anthem though they stand up on such occasions to show their respect to the National Anthem. They desist from actual singing only because of their honest belief and conviction that their religion does not permit them to join any rituals except it be in their prayers to Jehovah their God.”
That the petitioners truly and conscientiously believe what they say is not in doubt. They do not hold their beliefs idly and their conduct is not the outcome of any perversity. The petitioners have not asserted these beliefs for the first time or out of any unpatriotic sentiment.
Jehovah 's Witnesses, as they call themselves, appear to have always expressed and stood up for such beliefs all the world over as we shall presently show. Jehovah 's Witnesses and their peculiar beliefs though little noticed in this country, have been noticed, we find, in the
Encyclopaedia Britannica and have been the subject of judicial pronouncements elsewhere.
In 'The New Encyclopaedia Britannica ' (Macropaedia) Vol. 10 page 538, after mentioning that Jehovah 's Witnesses are “the adherents of the apocalyptic sect organized by Charles Taze
Russell in the early 1870”, it is further mentioned, “They believe that the Watch Tower Bible and Tract Society, their legal agency and publishing arm, exemplifies the will of God and proclaims the truths of the Bible against the evil triumvirate of organized religion, the business world, and the state The Witnesses also stand apart from civil society, refusing to vote, run for public office, serve in any armed forces, salute the flag, stand for the national anthem, or recite the pledge of allegiance. Their religious stand have brought clashes with various governments, resulting in law suits, mob violence, imprisonment, torture, and death. At one time more than
6,000 Witnesses were inmates of Nazi concentration camps. Communist and Fascist states usually forbid Watch Tower activities. In the U.S. the society has taken 45 cases to the Supreme
Court and has won significant victories for freedom of religion and speech. The Witnesses have been less successful in claiming exemptions as ministers from military service and in seeking to withhold blood transfusions from their children.”
Some of the beliefs held by Jehovah 's Witnesses are mentioned in a little detail in the statement of case in Adelaide Company of Jehovah 's Witnesses v. Commonwealth (1943) 67
CLR 116 a case decided by the Australian High Court. It is stated:
Jehovah 's Witnesses are an association of persons loosely organized throughout
Australia and elsewhere who regard the literal interpretation of the Bible as
Fundamental to proper religious beliefs.
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Jehovah 's Witnesses believe that God, Jehovah, is the Supreme ruler of the universe. Satan or Lucifer was originally part of God 's organization and the perfect man was placed under him. He rebelled against God and set up his own organization in challenge to God and through that organization has ruled the world. He rules and controls the world through material agencies such as organized political, religious, and financial bodies. Christ, they believe, came to earth to redeem all men who would devote themselves entirely to serving God 's will and purpose and He will come to earth again (His second coming has already begun) and will overthrow all the powers of evil.
These beliefs lead Jehovah 's Witnesses to proclaim and teach publicly both orally and by means of printed books and pamphlets that the British Empire and also other organized political bodies are organs of Satan, unrighteously governed and identifiable with the Beast in the thirteenth chapter of the Book of Revelation.
Also that Jehovah 's Witnesses are Christians entirely devoted to the Kingdom of
God, which is "The Theocracy", that they have no part in the: political affairs of the world and must not interfere in the least manner with war between nations.
They must be entirely neutral and not interfere with the drafting of men of nations they go to war. And also that wherever there is a conflict between the laws of
Almighty God and the Laws of man the Christian must always obey God 's law in preference to man 's law. All laws of men, however, in harmony with God 's law the Christian obeys. God 's law is expounded and taught by Jehovah 's Witnesses.
Accordingly they refuse to take an oath of allegiance to the King or other constituted human authority.
The case of Adelaide Company of Jehovah 's Witnesses v. Commonwealth arose out of an action to restrain the Commonwealth of Australia from enforcing the National Security
(Subversive Associations) Regulations to the Jehovah 's Witnesses.
Minersvill School District v. Gobitis 310 US 586 and West Virginia State Board of
Education v. Barnette 319 US 624 are two cases decided by the American Supreme Court in which Jehovah 's Witnesses claimed that they could not be compelled to salute the flag of the
United States while reciting pledge of allegiance. In the latter case, Jackson, J. referred to the particular belief of the Witnesses which was the subject matter of that case, as follows:
The Witnesses are an unincorporated body teaching that the obligation imposed by law of God is superior to that of laws enacted by temporal government. Their religious beliefs include a literal version of Exodus, Chapter XX, verses 4 and 5, which says "Thou shall not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them, nor serve them.
They consider that the flag is an "image" within this command. For this reason they refuse to salute it.
… It is evident that Jehovah 's Witnesses, wherever they are, do hold religious beliefs which may appear strange or even bizarre to us, but the sincerity of their beliefs is beyond question.
Are they entitled to be protected by the Constitution?
Article 19(1)(a) of the Constitution guarantees to all citizens freedom of speech and expression, but Article 19(2) provides that nothing in Article 19(1)(a) shall prevent a State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in; relation to contempt of Court, defamation or incitement to an offence. Article
25(1) guarantees to all persons freedom of conscience and the right freely to profess, practise and propagate religion, subject to public order, morality and health and to the other provisions of Part III of the Constitution. Now, we have to examine whether the ban imposed by the Kerala
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Education Authorities against silence when the National Anthem is: sung on pain expulsion from the school is consistent with the fights guaranteed by Articles 19(1)(a) and 25 of the
Constitution.
We may at once say that there is no provision of law which obliges anyone to sing the
National Anthem nor do we think that it is disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the signing. It is true Article 51-A(a) of the Constitution enjoins a duty on every citizen of India "to abide by the Constitution and respect its ideals and institutions, the National Flag and the National
Anthem." Proper respect is shown to the National Anthem by standing up when the National
Anthem is sung. It will not be right to say that disrespect is shown by not joining in the singing.
Parliament has not been unmindful of ‘National Honour’. The Prevention of Insults to
National Honour Act was enacted in 1971. While Section 2 deals with insult to the Indian
National Flag and the Constitution of India, Section 3 deals with the National Anthem and enacts, Whoever, intentionally prevents the singing of the National Anthem or causes disturbance to any assembly engaged in such singing shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both. Standing up respectfully when the National Anthem is sung but not singing oneself clearly does not either prevent the singing of the National Anthem or cause disturbance to an assembly engaged in such singing so as to constitute the offence mentioned in Section 3 of the Prevention of Insults to National Honour Act.
The Kerala Education Act contains no provision of relevance. Section 36, however, enables the Government to make rules for the purpose of carrying into effect the provisions of the Act and in particular to provide for standards of education and courses of study. The Kerala
Education Rules have been made pursuant to the powers conferred by the Act. Chapter VIII of the Rules provides for the organisation of instruction and progress of pupils. Rule 8 of Chapter
VIII provides for moral instruction and expressly says "Moral instruction should form a definite programme in every school but it should in no way wound the social or religious susceptibilities of the peoples generally." The rule goes on to say that 'the components of a high character ' should be impressed upon the pupils. One of the components is stated to be 'love of one 's country '. Chapter IX deals with discipline. Rule 6 of Chapter IX provides for the censure, suspension or dismissal of a pupil found guilty of deliberate insubordination, mischief, fraud, mal-practice in examinations, conduct likely to cause unwholesome influence on other pupils etc. It is not suggested that the present appellants have ever been found guilty of misconduct such as that described in: Chapter IX, Rule 6. On the other hand, the report of the Commission, we are told, is to the effect that the children have always been well-behaved, law-abiding and respectful. The Kerala Education Authorities rely upon two circulars of September 1961 and February
1970 issued by the Director of Public Instruction, Kerala. The first of these circulars is said to be a Code of Conduct for Teachers and Pupils and stresses the importance of moral and spiritual values. Several generalisations have been made and under the head patriotism it is mentioned:
Patriotism
1. Environment should be created in the school to develop the right kind of patriotisms in the children. Neither religion nor party nor anything of this kind should stand against one 's love of the country.
2. For national integration, the basis must be the school.
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3. National Anthem, as a rule, the whole school should participate in the singing of the National anthem.
In the second circular also instructions of a general nature are given and para 2 of the circular, with which we are concerned, is as follows:
It is compulsory that all schools shall have the morning Assembly every day before actual instruction begins. The whole school with all the pupils and teachers shall be gathered for the Assembly. After the singing of the National Anthem the whole school shall, in one voice, take the National Pledge before marching back to the classes.
Apart from the fact that the circulars have no legal sanction behind them in the sense that they are not issued under the authority of any statute, we also notice that (the circulars do not oblige each and every pupil to join in the singing even if he has any conscientious objection based on his religious faith, nor is any penalty attached to not joining the singing. On the other hand, one of the circulars (the first one) very rightly emphasises the importance of religious tolerance. It is said there, "All religions should be equally respected.”
If the two circulars are to be so interpreted as to compel each and every pupil to join in the singing of the National Anthem despite his genuine, conscientious religious objection, then such compulsion would clearly contravene the rights guaranteed by Article 19(1)(a) and Article
25(1).
We have referred to Article 19(1)(a) which guarantees to all citizens freedom of speech and expression and to Article 19(2) which provides that nothing in Article 19(1)(a) shall prevent a State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by Article 19(1)(a) in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence.
The law is now well settled that any law which may be made, under Clauses (2) to (6) of Article
19 to regulate the exercise of the right to the freedoms guaranteed by Article 19(1)(a) to (e) and
(g) must be 'a law ' having statutory force and not a mere executive or departmental instruction.
In Kharak Singh v. State of U.P., AIR 1963 SC 1295 the question arose whether a police regulation which was a mere departmental instruction, having no statutory basis could be said to be a law for the purpose of Article 19(2) to (6). The Constitution Bench answered the question in the negative and said:
Though learned Counsel for the respondent started by attempting such a justification by invoking Section 12 of the Indian Police Act he gave this up and conceded that the regulations contained in Chap. XX had no such statutory basis but were merely executive or departmental instructions framed for the guidance of the police officers. They would not therefore be "a law" which the State is entitled to make under the relevant Clauses (2) to (6) of Article 19 in order to regulate or curtail fundamental rights guaranteed by the several sub-clauses of
Article 19(1), nor would the same be "a procedure established by law" within
Article 21. The position therefore is that if the action of the police which is the arm of the executive of the State is found to infringe any of the freedoms guaranteed to the petitioner the petitioner would be entitled to the relief of mandamus which he seeks, to restrain the State from taking action under the regulations. The two circulars on which the department has placed reliance in the present case have no statutory basis and are mere departmental instructions. They cannot, therefore, form the foundation of any action aimed at denying to citizen 's Fundamental Right under Article
19(1)(a). Further it is not possible to hold that the two circulars were issued 'in the interest of the sovereignty and integrity of India, the security of the State, friendly relation with foreign
Stales, public order, decency or morality, or in relation to contempt of Court, defamation or
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incitement to an offence and if not so issued, they cannot again be invoked to deny a citizen 's
Fundamental Right under Article 19(1)(a). …
Turning next to the Fundamental Right guaranteed by Article 25 … Article 25 is an article of faith in the Constitution, incorporated in recognition of the principle that the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country 's Constitution. This has to be borne in mind in interpreting Article 25.
We see that the right to freedom of conscience and freely to profess, practise and propagate religion guaranteed by Article 25 is subject to (1) public order, morality and health; (2) other provisions of Part III of the Constitution; (3) any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated ' with religious practice; or (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Thus while on the one hand, Article 25(1) itself expressly subjects the right guaranteed by it to public order, morality and health and to the other provisions of Part III, on the other hand, the State is also given the liberty to make a law to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practise and to provide for social welfare and reform, even if such regulation, restriction or provision affects the right guaranteed by Article
25(1). therefore, whenever the Fundamental Right to freedom of conscience and to profess, practise and propagate religion is invoked, the act complained of as offending the Fundamental
Right must be examined to discover whether such act is to protect public order, morality and health, whether it is to give effect to the other provisions of Part III of the Constitution or whether it is authorised by a law made to regulate or restrict any economic, financial, political or secular activity which may be associated with religious practise or to provide for social welfare and reform. It is the duty and function of the Court so to do. Here again as mentioned in connection with Article 19(2) to (6), it must be a law having the force of a statute and not a mere executive or a departmental instruction. We may refer here to the observations of Latham,
C.J. in Adelaide Company of Jehovah 's Witnesses v. The Commonwealth, 1943 CLR 116
(supra), a decision of the Australian High Court quoted by Mukherjea, J. in the Shirur Mutt case AIR 1954 SC 282. Latham, C. J. had said:
The Constitution protects religion within a community organized under a
Constitution, so that the continuance of such protection necessarily assumes the continuance of the community so organized. This view makes it possible to reconcile religious freedom with ordered government. It does not mean that the mere fact that the Commonwealth Parliament passes a law in the belief that it will promote the peace, order and good government of Australia precludes any consideration by a Court of the question whether or not such a law infringes religious freedom. The final determination of that question by Parliament would remove all; reality from the Constitutional guarantee. That guarantee is intended to limit the sphere of action of the legislature. The interpretation and application of the guarantee cannot, under our Constitution, be left to Parliament. If the guarantee is to have any real significance it must be left to the Courts of justice to determine its meaning and to give effect to it by declaring the invalidity of laws which infringe it and by declining to enforce them. The Courts will therefore have the responsibility of determining whether a particular law can fairly be regarded, as a law to protect the existence of the community, or whether, on the other hand, it is a law "for prohibiting the free exercise of any religion." The word "for" shows that the purpose of the legislation in question may properly be taken into account in determining whether or not it is a law of the prohibited character.
What Latham, C.J. has said about the responsibility of the Court accords with what we have said about the function of the Court when a claim to the Fundamental Right guaranteed by Article 25 is put forward.
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The meaning of the expression 'Religion ' in the context of the Fundamental Right to freedom of conscience and the right to profess, practise and propogate religion, guaranteed by
Article 25 of the Constitution, has been explained in the well-known cases of Commissioner,
Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt
AIR 1954 SC 282; Rati Lal Panachand Gandhi v. State of Bombay 1954 SCR1055 and S.P.
Mittal v. Union of India [1983] 1 SCC 51. It is not necessary for our present purpose to refer to the exposition contained in these judgments except to say that in the first of these cases
Mukherjea, J. made a reference to "Jehova 's Witnesses" and appeared to quote with approval the views of Latham, C.J. of the Australian High Court in Adelaide Company v. The
Commonwealth and those of the American Supreme Court in West Virginia State Board of
Education v. Barnette. In Ratilal 's case we also notice that Mukherjea, J. quoted as appropriate
Davar, J.’s following observations in Jamshedji v. Soonabai (1909) 33 Bom. 122:
If this is the belief of the Community and it is proved undoubtedly to be the belief of the Zoroastrian community,a secular Judge is bound to accept that beliefit is not for him to sit in judgment on that belief, he has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of his religion and the welfare of his community or mankind.
We do endorse the view suggested by Davar, J. 's observation that the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion.
Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject, of course, to the inhibitions contained therein. … We are satisfied, in the present case, that the expulsion of the three children from the school for the reason that because of their conscientiously held religious faith, they do not join the singing of the national anthem in the morning assembly though they do stand-up respectfully when the anthem is sung, is a violation of their fundamental right ‘to freedom of conscience and freely to profess, practise and propagate religion.’
… We, therefore, find that the Fundamental Rights of the appellants under Articles 19(1)(a) and 25(1) have been infringed and they are entitled to be protected. We allow the appeal, set aside the judgment of the High Court and direct the respondent authorities to re-admit the children into the school, to permit them to pursue their studies without hindrance and to facilitate the pursuit of their studies by giving them the necessary facilities. We only wish to add: our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practises tolerance; let us not dilute it.
The appellants are entitled to their costs.
SEPARATION OF RELIGION AND STATE
P. M. BHARGAVA V. UNIVERSITY GRANTS COMMISSION
(2004) 6 SCC 661
Decided On: May 5, 2004
BENCH – CHIEF JUSTICE S. RAJENDRA BAB & JUSTICE G. P. MATHUR
JUSTICE MATHUR (for the Court)
The introduction of “Jyotir Vigyan”, (science of astrology) as a course of study by the
University Grants Commission is subject matter of challenge in the present appeal which has
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been preferred by special leave against the judgment and order dated April 27, 2001 of High
Court of Andhra Pradesh.
A writ petition by way of public interest litigation was filed in the High Court of Andhra
Pradesh praying that a writ of mandamus be issued commanding the University Grants
Commission not to start and give any funds for Graduate and Post-Graduate Courses (B.Sc. and M.Sc.) in Jyotir Vigyan. The petition was preferred by Dr. P.M. Bhargava who was founder
Director of center for Cellular and Molecular Biology, Hyderabad and had received many awards including “Padma Bhushan"”in the year 1986 for his research, work and contribution to science. The other petitioners were Prof. K. Subash Chandra Reddy who was Head of
Department of Political Science, Osmania University, and Mrs. Chandana Chakrabarti who is a writer and consultant. It was pleaded in the writ petition that the University Grants
Commission (for short “the UGC”) had taken a decision to start and give grants for Graduate and Post Graduate (B.Sc. and M.Sc.) courses in Vedic Astrology called “Jyotir Vigyan” from the year 2001 onwards in various Universities and for teaching such a course posts of one
Professor, one Reader, two Lecturers, one Library Attendant and one Computer Operator shall be created for which a non-recurring grant of Rs. 15 lakhs shall be given to the said department in the Universities. Thus the total expenditure which will be required in starting the course in various universities would run into several crores. The course in Vedic Astrology cannot be termed as a course of scientific study as astrology had never been regarded as a science. Science is defined as knowledge acquired through the use of the scientific methods and the attributes of such knowledge include fallibility, verifiability and repeatability. Scientific truths are not dependant on whims and fancies of individuals. That apart science is international and if and when differences of opinion arise, scientists all over the world work honestly and diligently to resolve them. Astrology can not be regarded as a science, as it lacks the above mentioned features. It has never been supported by any scientific research or study conducted according to stringent scientific procedure. It was further averred that the proposal to introduce “Jyotir
Vigyan” is a clear attempt on the part of the respondents to saffronise education and of thrusting their hidden agenda of imposing Hindu values in higher education. It was also pleaded that research in the fields of pure science was being affected for want of funds and therefore there was no justification in spending huge amounts on a pseudo-science called Vedic Astrology which is a giant leap backwards.
The High Court after taking note of the meaning and other attributes of Astrology held that
Astrology is a subject which according to opinion of the experts require pursuit of further studies. It was a policy decision and while exercising power of judicial review under Article
226 of the Constitution, the High Court would not interfere with the aforesaid policy decision of the UGC to start a course in “Jyotir Vigyan”. The High Court was also of the opinion that the averments made in the writ petition and the relief sought showed that the UGC had not taken any final decision in the matter and therefore it should not interfere at this stage. The writ petition was accordingly dismissed summarily as not maintainable.
Shri Shanti Bhushan, learned senior counsel for the appellants has submitted that Vedic
Astrology is not a science and cannot be introduced in University curriculum as a scientific subject. Science is attributed with provable knowledge than with beliefs or opinions and it is defined as a branch of study which is concerned either with a concerned body of demonstrated truths or with observed facts systematically classified and more or less colligated by being brought under general laws, and which includes trustworthy methods for discovery of new truth within its domain. For a field to be science the knowledge must be acquired through the use of scientific methods and should have attributes like verifiability, fallibility and repeatability. If tested against these accepted and essential attributes of science, Vedic Astrology will unarguably fail on most, if not all, parameters mentioned above. Learned counsel has also
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submitted that the scientific community all over India has unanimously protested against the introduction of Vedic Astrology as a scientific stream of study in Universities. An appeal signed by a large number of reputed members of Indian Scientific Community and others against the decision of the respondents to start courses of Vedic Astrology was sent to the UGC wherein the impugned decision of UGC was termed as a giant leap backwards, undermining whatever scientific credibility the country has so far achieved. It has also been urged that the decision to introduce Vedic Astrology would erode and negate Article 51A of the Constitution which entrusts a fundamental duty upon the citizens of the country to develop a scientific temper, humanism and spirit of enquiry and reform. The teaching of Vedic Astrology will go diametrically against fundamental duties as enshrined in the Constitution. Lastly, it has been urged that the attempt of the respondents to introduce courses of Vedic Astrology in the
Universities is malafide and it amounts to saffronising education.
In support of his submission Shri Shanti Bhushan has referred two passages from 68
American Jurisprudence 2d paragraphs 343-345 which read as under:
343. Constitutional implications of teaching creationism and evolution. Legislation forbidding the teaching in public schools of the Darwinian theory of evolution has been found to constitute an impermissible state endorsement of a particular religious viewpoint. The mandated teaching of evolution as a major theme of science is not a violation of the Establishment Clause since evolution is not religion. The allegedly religious aspects of evolution theory have been ruled too insubstantial to make its teaching an establishment clause violation, particularly in the absence of any official policy regarding evolution.
Teaching or using books referring to evolution has been found not to violate the free exercise rights of persons believing in the literal truth of the Biblical story of creation, since the mere exposure to objectionable ideas, without governmental compulsion to affirm or deny a religious belief is insufficient to support a free exercise complaint.
A state statute, providing that the public schools are not required to teach either the theory of evolution or "creation science", but that if either one is taught, the other must also be taught, advances a religious doctrine in violation of the First Amendment 's establishment of religion clause, where state officials charged with implementing the statute fail to identify a clear secular purpose for it. Even though the statute 's stated purpose is to protect academic freedom, it violates the establishment clause where the evidence shows that the statute is primarily designed either to promote a particular religious tenet or to prohibit the teaching of a scientific theory disfavored by certain religious sects.
344. Wearing of religious garb by teachers. According to some decisions, the wearing by teachers in the public schools of clothing distinctive of some religious order is violative of a constitutional provision forbidding the use of public money in support of any school or institution in which any sectarian doctrine is taught or forbidding sectarianism in public schools. And it has been held that the prohibition of the wearing of any sectarian costume, either by regulation or statute is valid. On the other hand, other decisions hold that the mere wearing of religious garb by teachers, where there is no attempt to give instruction in religious or sectarian subjects, is not violative of any constitutional provision, and that absent a prohibiting statute or regulation, religious garb may be worn by teachers in public schools.
345. Use of school as place of worship or for religious purposes, generally. Neither
Congress nor the Supreme Court has seen fit to require a school district to open its doors to non students who wish to use school facilities for the purpose of conducting religious activities within a school. If the intended use of school facilities is not required or authorized by statute, there is no constitutional right to such use where a school district has not, by policy or practice, permitted a similar use in the past.
However, where a school district denies an organisation the use of its facilities for a religious purpose, having permitted other religious uses of school property in the past,
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the denial may be viewed as lacking viewpoint-neutrality, and may therefore be deemed unconstitutional.
It has been stated that the power of school authorities to prohibit the use of a schoolhouse for religious worship is well- recognized. Some statutes authorising or providing for the authorization of the use of public school premises for non school purposes, but not specifically permitting religious meetings or utilizations, have been construed by the courts as providing authority for the use of the school building as a place for holding church or other religious meetings at times when the school is not in session. In most cases in which persons applying to use a public school building during non schooltime for the holding of church services or some other religious meeting have contested the legality of the school authorities refusal to permit the particular use of the school premises, the courts have found that the school authorities acted lawfully in refusing the application.
An agreement entered by school officials to lease a high school auditorium during noninstructional hours to a nondenominational student study group for the purpose of conducting a baccalaureate service featuring religious speakers does not violate the
Establishment Clause, where :
•
•
•
the school board maintains an "open forum" policy toward all civic, private, and student groups, both religious and nonreligious, which seek to use its facilities during non-instructional hours; allowing the service to occur in the school auditorium would not have the primary effect of advancing religion, particularly since the school board had already formally and publicly dissociated itself from the baccalaureate service and refused to lend any financial support to the sponsoring group, and faculty and board members, while invited to attend, would not be involved in any aspect of the service either in their official or personal capacities; and the school board would have a minimal role in custodial oversight of the service. Under the Federal Equal Access Act, a school which provides a limited open forum by allowing non curriculum- related student groups to meet on school premises during non-instructional time cannot discriminate among groups on the basis of the content of speech. A public high school violates the Equal Access Act by denying students permission to form a Christian club which would meet on school premises during noninstructional time for purposes of Bible study, where the school 's existing student groups include a number which are noncurriculum related.
… On the strength of the above mentioned authorities it has been vehemently contended that teaching of “Jyotir Vigyan” would saffronise the education as it is not a scientific study but something peculiar to Hindus and associated with Hindu religion and, therefore, it will erode the concept of secularism which is the basic feature of the Constitution.
A counter-affidavit on behalf of the UGC has been filed in this Court. It is averred therein that under the University Grants Commission Act, 1956, the UGC has been entrusted with the duty, inter alia, to recommend measures for the improvement of university education. The decision in relation to academic matters are arrived at collectively by the Commission, which is a multi-member body established under Section 5 of the said Act. The members include persons, who are teachers in universities and also others who are experienced and knowledgeable in various other fields. The purpose of university education is multi-directional, its object is to provide structured instruction in all subjects of relevance and interests. In a country like India, there are various subjects in which instructions need to be imparted in a structured manner in view of the relevance of these subjects to society. For example, various forms of medicines and treatments, which are not prevalent in the western world, such as 'ayurvedic ', 'unani ' and 'tibia ' systems, are also parts of medical education in India. Indian wisdom, for example, encompasses things, such as belief in rebirth and cosmic existence.
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Mysteries of nature have not been fully fathomed by the human mind and therefore it would not be proper to denounce any such belief as being utterly unworthy of recognition. It is submitted that education and instruction should, in a liberal and pluralistic society, must accommodate as far as possible all points of view and provide for all sections of society. In fact a number of National dailies and magazines carry astrological columns as a regular feature, which are read by large number of people with interest.
The counter-affidavit of UGC also gives details regarding various steps which were taken by the Commission before taking a final decision for introducing 'Jyotir Vigyan ' as a part of graduation, post-graduation and Ph.D. courses and they are as under:
(i) This matter was first mooted on June 16, 2000.
(ii) On August 14, 2000, the Chairman, UGC, constituted a nine member Expert
Committee to report and recommend on the subject of opening of “Vedic Astrology” at the select universities. The expert committee held its meetings and discussed the matter with different bodies and persons.
(iii) On January 10, 2001, at its first meeting the Expert Committee recommended opening of the departments of “Jyotir Vigyan” instead of “Vedic Astrology” in universities for course studies and research leading to the award of certificate, diploma, degrees - both in undergraduate and post-graduate and Ph.D.
(iv) After the expert committee examined the matter, it placed a set of proposed guidelines, which were adopted by the Commission on January 25, 2001.
(v) On February 23, 2001, proposals were invited from the various universities on the basis of these guidelines for setting up of departments of “Jyotir Vigyan” for providing teaching and training in the subject leading to certificate, diploma, undergraduate, post- graduate and Ph.D. degrees. The universities were requested to submit their proposals as per the guidelines, latest by March 15, 2001. The last date was later on extended to May 5, 2001.
(vi) On June 13, 2001, the second meeting of the Expert Committee examined the proposals received from 41 universities for opening of departments of Jyotir Vigyan to conduct the degree courses in “Jyotir Vigyan”. The proposals came from 16 States of the country. The Committee recommended that the independent departments be created to conduct degree courses in 'Jyotir Vigyan ' only in 20 out of 41 universities who had applied for it.
(vii) On June 27, 2001, the Commission at its 397th meeting, approved the recommendations of the Expert Committee and decided that the independent departments of 'Jyotir Vigyan ' be created at 20 selected universities to conduct the courses leading to award of B.A./B.A. (Hons.)/M.A./Ph.D. degrees in “Jyotir Vigyan”.
The Commission also decided that the aforesaid selected universities be allowed to frame the required syllabus for respective B.A. and M.A. degree courses in “Jyotir
Vigyan” and while doing so, they may prefer to include among other subjects Astronomy, Cosmology and Mathematics etc. besides “Jyotir Vigyan” as the main subject. (viii) On July 21, 2001, the selected 20 universities were communicated the decision of the Commission for opening of an independent department of 'Jyotir Vigyan ' in their universities for conducting courses leading to award of B.A./B.A. (Hons.) M.A. and Ph.D. degrees in “Jyotir Vigyan”.
In pars 14 to 19 of the counter-affidavit details of the various other courses introduced by
UGC have been given which were hitherto not being taught as conventional subjects like
Functional Hindi, Functional Sanskrit, Functional English, Tourism and Travel Management,
Agro Services, namely, Animal Farming, Forestry & Wildlife Management, Soil Conservation
& Water Management, Hill Agriculture, Non-Conventional Energy Sources, Dryland
Agriculture, Rural Handicrafts, Gemology & Jewelry Designing, Cosmetology etc. It is also averred that UGC is processing to introduce certain other subjects in degree courses in selected
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universities like B.Sc./M.Sc. in Electronic Media, Clinical Nutrition and Dietetics, Water harvesting and Oceanography etc.
Before dealing with the contentions raised it will be useful to understand the meaning of the word 'Astrology ' as given in various dictionaries.
The science or doctrine of stars, and formerly often used as equivalent to astronomy, but now restricted in meaning to the pseudo science which claims to foretell the future by studying the supposed influence of the relative positions of the moon, sun and stars on human affairs [Webster 's New International dictionary] Either a science or a pseudo science, astrology - the forecasting of earthly and human events by means of observing and interpreting the fixed stars, the sun, the moon and the planets - has exerted a sometimes extensive and a sometimes peripheral influence in many civilizations, both ancient and modern. As a science, astrology has been utilized to predict or affect the destinies in individuals, groups or nations by means of what is believed to be a correct understanding of the influence of the planets and stars on earthly affairs. As a pseudo science, astrology is considered to be diametrically opposed to the findings and theories of modern
Western science. [Encyclopedia Britannica (2nd edition)]
According to the above mentioned standard books Astrology is a science which claims to foretell the future or make predictions by studying the supposed influence of the relative positions of the moon, sun, planets and other stars on human affairs. It, therefore, requires study of celestial bodies, of their positions, magnitudes, motions, and distances, etc. Astronomy is a pure science. It was studied as a subject in ancient India and India has produced great astronomers, long before anyone in the western world studied it as a subject. Since Astrology is partly based upon study of movement of sun, earth, planets and other celestial bodies, it is a study of science at least to some extent.
The Counter-affidavit filed on behalf of the UGC shows that the UGC constituted a ninemember Committee which after discussion and deliberations recommended opening of the departments of “Jyotir Vigyan” in universities for award of degrees. The Committee has recommended to create such courses only in 20 out of 41 universities which had applied for the same and the degree which would be awarded will be B.A./B.A.(Hons.)/M.A./Ph.D. The decision to start the course has been taken by an expert body constituted by the UGC. The courts are not expert in academic matters and it is not for them to decide as what course should be taught in university and what should be their curriculum. This caution was sounded in
University of Mysore v. Govinda Rao [1964] 4 SCR 575 wherein Gajendragadkar, J. (as His
Lordship then was) speaking for the Constitution Bench held that it would normally be wise and safe for the courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than the courts generally can be. In this case challenge was made to certain appointments and the Bench held that what the High Court should consider is whether the appointment made by the Chancellor on the recommendation of the Board had contravened any statutory or binding rule or ordinance, and in doing so, the High Court should show due regard to the opinion expressed by the Board and its recommendations on which the
Chancellor has acted. This principle was reiterated in J.P. Kulshreshtha v. Chancellor,
Allahabad University (1980) 3 SCC 418 wherein it was held as under:
While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies. But university organs, for that matter any authority in our system are bound by the rule of law and cannot be law unto themselves. If the Chancellor or any other authority lesser in level decides an academic matter or an educational question, the court keeps its hands off; but where a provision of law has to be read and understood, it is not fair to keep the court out.
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The above mentioned principle has been consistently followed by this Court and it is not necessary to burden this judgment by giving references of those cases.
The appellants do not allege breach of any statutory provision, rule or regulation. Their complaint is that the inclusion of Jyotir Vigyan as a course of study in the university is wrong as the accuracy or correctness of the subject, namely Jyotir Vigyan has not been established by the scientific tests or experiments. The precise question as to whether Jyotir Vigyan should be included as a course of study having been considered and examined by an Expert Body of UGC and they having recommended for including the said course for study and award of degree in universities, it will not be proper for this Court to interfere with the aforesaid decision specially when no violation of any statutory provisions is demonstrated.
We are unable to accept the contention of the learned counsel for the appellants that the prescription of Jyotir Vigyan as a course of study has the effect of saffronising education or that it in any manner militates against the concept of secularism which is part of the basic structure of the Constitution and is essential for the governance of the country.
In DAV College v. State of Punjab AIR 1971 SC 1737, challenge was made to certain provisions of Guru Nanak University Amritsar Act (Act 21 of 1969) which made a provision for study and research on the life and teachings of Guru Nanak and their cultural and religious impact in the context of national and world civilisations on the ground that such a provision would propagate Sikh religion and would violate the rights of the writ petitioners therein guaranteed under Article 30(1) of the Constitution. Violation of Articles 14 and 19(1)(c) was also pleaded. The Constitution Bench repelled the challenge in the context of section 4(2) of the relevant Act which provided for study and research on the life and teachings of Guru Nanak and it was held as under:
Religious instruction is that which is imparted for inculcating the tenets, the rituals, the observances, ceremonies and modes of worship of a particular sect or denomination. To provide for academic study of life and teaching or the philosophy and culture of any great saint of India in relation to or the impact on the Indian and world civilizations cannot be considered as making provision for religious instructions.
In Santosh Kumar v. Secretary, Ministry of Human Resources AIR 1995 SC 293 it was held that teaching of Sanskrit alone as an elective subject can in no way be regarded as against secularism. The decision of the United States Supreme Court cited by learned counsel for the appellants can hardly have any application here as teaching of “Jyotir Vigyan” can under no circumstances be equated with teaching of any particular religion. We are, therefore, of the opinion that the challenge made to the inclusion of Jyotir Vigyan as a course of study on the ground that the same will violate or impinge upon the concept of secularism enshrined in the
Constitution has therefore no merit and must be rejected.
A similar challenge to the inclusion of “Jyotir Vigyan” as a course of study was made by one Dr. K. Natarajan by filing WP no. 13540 of 2001 (Dr. K. Natarajan v. Union of India) before the Madras High Court. Mr. Justice F.M. Ibrahim Kalifulla who heard the writ petition held that the very purpose of imparting education is to gain knowledge and therefore there should be every scope for making a study on very many subjects in order to enrich ones craving for knowledge. Any such attempt from any quarters in furtherance of that pursuit should not be stultified. The learned Judge further held that it was for the pupil concerned to select any particular field or subject in furtherance of his future career, and merely because the subject has got its basis or origin traceable to some cult, it cannot be held that the same would only result in propagation of a particular religion. On these findings the writ petition was dismissed.
We are in agreement with the view taken by the Madras High Court.
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For the reasons discussed above, the appeal lacks merit and hereby dismissed with costs.This appeal is directed against a judgment of a Division Bench of the Madras High Court, dated the 13th of December
PRAFULL GORADIA V. UNION OF INDIA
(2011) 2 SCC 568
Decided On: January 28, 2011
BENCH – JUSTICES MARKANDEY KATJU & GYAN SUDHA MISRA
ORDER PER COURT [the law reports do not indicate who authored the opinion]
… This Writ Petition under Article 32 of the Constitution had been initially filed challenging the constitutional validity of the Haj Committee Act 1959, but thereafter by an amendment application the Haj Committee Act of 2002 which replaced the 1959 Act, has been challenged. The ground for challenge is that the said Act is violative of Articles 14, 15, and 27 of the
Constitution. The grievance of the Petitioner is that he is a Hindu but he has to pay direct and indirect taxes, part of whose proceeds go for the purpose of the Haj pilgrimage, which is only done by Muslims. For the Haj, the Indian Government inter alia grants a subsidy in the air fare of the pilgrims.
Particular emphasis has been given by the Petitioner to Article 27 of the Constitution which states: 27. Freedom as to payment of taxes for promotion of any particular religion.--No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
The Petitioner contends that his fundamental right under Article 27 of the Constitution is being violated. We have, therefore, to correctly understand and interpret Article 27.
There are not many decisions which have given an indepth interpretation of Article 27. The decision in Commissioner, Hindu Religious Endowments v. Swamiar of Shirur Mutt AIR 1954
SC 282… that since the object of the Madras Hindu Religious and Charitable Endowments
Act, 1951 is not to foster or preserve the Hindu religion but to see that religious trusts and institutions are properly administered, Article 27 is not attracted. The same view was taken in
Jagannath Ramanuj Das v. State of Orissa, AIR 1954 SC 400. …
There can be two views about Article 27. One view can be that Article 27 is attracted only when the statute by which the tax is levied specifically states that the proceeds of the tax will be utilized for a particular religion. The other view can be that Article 27 will be attracted even when the statute is a general statute, like the Income Tax Act or the Central Excise Act or the
State Sales Tax Acts (which do not specify for what purpose the proceeds will be utilized) provided that a substantial part of such proceeds are in fact utilized for a particular religion.
In our opinion Article 27 will be attracted in both these eventualities. This is because
Article 27 is a provision in the Constitution, and not an ordinary statute. Principles of interpreting the Constitution are to some extent different from those of interpreting an ordinary statute … The object of Article 27 is to maintain secularism, and hence we must construe it from that angle.
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… In our opinion Article 27 would be violated if a substantial part of the entire income tax collected in India, or a substantial part of the entire central excise or the customs duties or sales tax, or a substantial part of any other tax collected in India, were to be utilized for promotion or maintenance of any particular religion or religious denomination. In other words, suppose
25 per cent of the entire income tax collected in India was utilized for promoting or maintaining any particular religion or religious denomination, that, in our opinion, would be violative of
Article 27 of the Constitution.
However, the Petitioner has not made any averment in his Writ Petition that a substantial part of any tax collected in India is utilized for the purpose of Haj. All that has been said in paragraph 5 (i) and (ii) of the Writ Petition is:
(i) That the Respondent herein has been imposing and collecting various kinds of direct and indirect taxes from the Petitioner and other citizens of the country.
(ii) That a part of the taxes so collected have been utilized for various purposes including promotion and maintenance of a particular religion and religious institutions. Thus, it is nowhere mentioned in the Writ Petition as to what percentage of any particular tax has been utilized for the purpose of the Haj pilgrimage. The allegation in para 5(ii) of the
Writ Petition is very vague.
In our opinion, if only a relatively small part of any tax collected is utilized for providing some conveniences or facilities or concessions to any religious denomination, that would not be violative of Article 27 of the Constitution. It is only when a substantial part of the tax is utilized for any particular religion that Article 27 would be violated.
As pointed out in para 8 (iv), (v) and (viii) of the counter affidavit filed on behalf of the
Central Government, the State Government incurs some expenditure for the Kumbh Mela, the
Central Government incurs expenditure for facilitating Indian citizens to go on pilgrimage to
Mansarover, etc. Similarly in para 8 (vii) of the counter affidavit it is mentioned that some State
Governments provide facilities to Hindu and Sikh pilgrims to visit Temples and Gurudwaras in Pakistan. These are very small expenditures in proportion to the entire tax collected.
Moreover, in para 8(iii) of the counter affidavit the Central Government has stated that it is not averse to the idea of granting support to the pilgrimage conducted by any community.
In our opinion, we must not be too rigid in these matters, and must give some free play to the joints of the State machinery. A balanced view has to be taken here, and we cannot say that even if one paisa of Government money is spent for a particular religion there will be violation of Article 27.
… Hence, in our opinion, there is no violation of Article 27 of the Constitution.
There is also no violation of Articles 14 and 15 because facilities are also given, and expenditures incurred, by the Central and State Governments in India for other religions. Thus there is no discrimination. … Parliament has the legislative competence to enact the Haj
Committee Act in view of entry 20 to List 1 of the Seventh Schedule to the Constitution which states: "Pilgrimages to places outside India".
Thus there is no force in this petition and it is dismissed.
Before parting with this case we would like to mention that India is a country of tremendous diversity, which is due to the fact that it is broadly a country of immigrants (like North America) as explained in detail by us in Kailas v. State of Maharashtra (2011) 1 SCC 793. As observed in paragraph 32 of the said decision, since India is a country of great diversity, it is absolutely essential if we wish to keep our country united to have tolerance and equal respect for
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communities and sects (see also in this connection the decision in Hinsa Virodhak Sangh v.
Mirzapur Moti Kuresh Jamaat AIR 2008 SC 1892 vide paragraphs 41 to 60). It is due to the wisdom of our founding fathers that we have a Constitution which is secular in character, and which caters to the tremendous diversity in our country.
It may be mentioned that when India became independent in 1947 there were partition riots in many parts of the sub-continent, and a large number of people were killed, injured and displaced. Religious passions were inflamed at that time, and when passions are inflamed it is difficult to keep a cool head. It is the greatness of our founding fathers that under the leadership of Pandit Jawaharlal Nehru they kept a cool head and decided to declare India a secular country instead of a Hindu country. This was a very difficult decision at that time because Pakistan had declared itself an Islamic State and hence there must have been tremendous pressure on Pandit
Jawaharlal Nehru and our other leaders to declare a Hindu State. It is their greatness that they resisted this pressure and kept a cool head and rightly declared India to be a secular state.
This is why despite all its tremendous diversity India is still united. In this sub-continent, with all its tremendous diversity (because 92 per cent of the people living in the sub continent are descendants of immigrants) the only policy which can work and provide for stability and progress is secularism and giving equal respect to all communities, sects, denominations, etc.
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UNIT 11 – MINORITY RIGHTS (ARTICLES 29 AND 30)
S. AZEEZ BASHA V. UNION OF INDIA
AIR 1968 SC 662
Decided On: October 20, 1967
BENCH – JUSTICES K. N. WANCHOO, R. S. BACHAWAT, V. RAMASWAMI, G. K. MITTER & K.
S. HEGDE
JUSTICE WANCHOO (FOR THE COURT)
These five writ petitions raise common questions and will be dealt with together. They attack the constitutionality of the Aligarh Muslim University (Amendment) Act, No. 62 of 1951
(hereinafter referred to as the ‘1951-Act’) and the Aligarh Muslim University (Amendment) Act,
No. 19 of 1965, (hereinafter referred to as the ‘1965-Act’). The principal attack is based on the provisions of Art. 30(1) which lays down that "all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice".
The case of all the petitioners is that the Aligarh Muslim University (hereinafter referred to as the
Aligarh University) was established by the Muslim minority and therefore the Muslims had the right to administer it and in so far as the Acts of 1951 and 1965 take away or abridge any part of that right they are ultra vires Art. 30(1). Besides this principal attack, the two Acts are also subsidiarily attacked for violating the fundamental rights guaranteed under Articles 14, 19, 25, 26,
29 and 31 of the Constitution. It is unnecessary to set out the nature of the attack under these
Articles for that will appear when we deal with the matter in detail later; suffice it to say that all the petitions do not make the attack under all these Articles, but the sum total of the subsidiary attack in all these petitions takes in its sweep all these six Articles.
The petitions have been opposed on behalf of the Union of India and its main contention is that the Aligarh University was established in 1920 by the Aligarh Muslim University Act, No.
XL of 1920, (hereinafter refereed to as the ‘1920-Act’) and that this establishment was not by the
Muslim minority but by the Government of India by virtue of a statute namely, the 1920-Act and therefore the Muslim minority could not claim any fundamental right to administer the Aligarh
University under Art. 30(1). It was further contended that as the Aligarh University was established by the 1920-Act by the Government of India, Parliament had the right to amend that statute as it thought fit in the interest of education and the amendments made by the Acts of 1951 and 1965 were perfectly valid as there was no question of their taking away the right of the Muslim minority to administer the Aligarh University, for the minority not having established the University could not claim the right to administer it. It was further contended that the fact that under the provisions of the 1920-Act the Court of the Aligarh University was to be composed entirely of Muslims, did not give any right to the Muslim community as such to administer the University when had been administered by the authorities established by the 1920-Act. It was further contended that the attack based on the six Articles of the Constitution to which we have referred already had no substance and did not in any manner make the Acts of 1951 and 1965 unconstitutional. We do not think it necessary at this stage to give in detail the reply of the Government of India on these points and shall refer to it as and when the occasion arises.
It is necessary to refer to the history previous to the establishment of the Aligarh University in
1920 in order to understand the contentions raised on either side. It appears that as far back as 1870
Sir Syed Ahmed Khan thought that the backwardness of the Muslim community was due to their neglect of modern education. He therefore conceived the idea of imparting liberal education to
Muslims in literature and science while at the same time instruction was to be given in Muslim religion and traditions also. With this object in mind, he organised a Committee to devise ways
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and means for educational regeneration of Muslims and in May 1872 a society called the
Muhammadan Anglo-Oriental College Fund Committee was started for collecting subscriptions to realise the goal that Sir Syed Ahead khan had conceived. In consequence of the activities of the committee a school was opened in May 1873. In 1876, the school become a High School and in
1877 Lord Lytton, then Viceroy of India, laid the foundation stone for he establishments of a college. The Muhammadan Anglo Oriental College. Aligarh (hereinafter referred to as the M.A.O.
College) was established thereafter and was, it is said a flourishing institution by the time sir Syed
Ahmed Khan died in 1898.
It is said that thereafter the idea of establishing a Muslim University gathered strength from year to year at the turn of the century and by 1911 some funds were collected and a Muslim
University Association was established for the purpose of establishing a teaching University at
Aligarh. Long negotiations took place between the Association and the Government of India, which eventually resulted in the establishment of the Aligarh University in 1920 by the 1920-Act.
It may be mentioned that before that a large sum of money was collected by the Association for the University as the Government of India had made it a condition that rupees thirty lakhs must be collected for University before it could be established. Further it seems that the existing M.A.O.
College was made the basis of the University and was made over to the authorities established by the 1920-Act for the administration of the University along with the properties and funds attached to the college, the major part of which had been contributed by Muslims though some contritions were made by other communities as well.
It is necessary now to refer in some detail to the provisions of the 1920-Act to see how the
Aligarh University came to be established. The long title of the 1920-Act is in these words:
An Act to establish and incorporate a teaching and residential Muslim University at Aligarh.
The preamble says that "it is expedient to establish and incorporate a teaching and residential
Muslim University at Aligarh, and to dissolve the Societies registered under the Societies
Registration Act, 1860, which are respectively known as the Muhammadan Anglo-Oriental
College, Aligarh and the Muslim University Association, and to transfer and vest in the said
University all properties and rights of the said Societies and the Muslim University Foundation
Committee". It will be seen from this that the two earlier societies, one of which was connected with the M.A.O. College and the other had been formed for collecting funds for the establishment of the University at Aligarh, were dissolved and all their properties and rights and also of the
Muslim University Foundation Committee, which presumably collected funds for the proposed
University were transferred and vested in the University established by the 1920-Act.
Section 3 of the 1920-Act laid down that "the First Chancellor, Pro-Chancellor and ViceChancellor shall be the persons appointed in this behalf by a notification of the Governor General in Council in the Gazette of India and the persons specified in the schedule [shall be] the first members of the Court" and they happened to be all Muslim. Further s. 3 constituted a body corporate by the name of the Aligarh Muslim University and this body corporate was to have perpetual succession and a Common Seal and could sue and be sued by that name. Section 4 dissolved that M.A.O. College and the Muslim University Association and all property, movable and immovable, and all rights, powers and privileges of the two said societies, and all property, movable and immovable, and all rights, powers and privileges of the Muslim University
Foundation Committee were transferred and vested in the Aligarh University and were to be applied to the object and purposes for which the Aligarh University was incorporated. All dates, liabilities and obligations of the said societies and Committee were transferred to the University, which was made responsible for discharging and satisfying them. All references in any enactment to either of the societies or to the said Committee were to be construed as references to the
University. It was further provided that any will, deed or other documents, whether made or
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executed before or after the commencement of the 1920-Act, which contained any bequest, gift or trust in favor of any of the said societies or of the said Committee would, on the commencement of the 1920-Act be construed as if the University had been named therein instead of such society or Committee. The effect of this provision was that the properties endowed for the purpose of the
M.A.O. College were to be used for the Aligarh University after it came into existence. These provisions will show that the three previous bodies legally came to an end and every thing that they were possessed of was vested in the University as established by the 1920-Act. Section 5 provides for the powers of the University including the power to hold examinations and to grant and confer degrees and other academic distinctions.
Section 6 is important. It laid down that "the degrees, diplomas and other academic distinctions granted or conferred to or on person by the University shall be recognised by the Government as are the corresponding degrees, diplomas and other academic distinctions granted by any other
University incorporated under any enactment". Section 7 provided for reserve funds including the sum of rupees thirty lakhs. Section 8 provided that "the University shall, subject to the provisions of this Act and the Ordinances, be open to all persons of either sex and of whatever race, creed or class", which shows that the University was not established for Muslim alone. Under section 9 the
Court was given the power to make Statutes providing that instruction in the Muslim religion would be compulsory in the case of Muslim students. Sections 10, 11 and 12 made other provisions necessary for the functioning of a University but they are not material for our purpose.
Section 13 is another important section. It provided that "the Governor General shall be the
Lord Rector of the University". Further sub-s. (2) of s. 13 provided that "the Lord Rector shall have the right to cause an inspection to be made by such person or persons as he may direct, of the
University, its buildings, laboratories, and equipment, and of and institution maintained by the
University, and also of the examinations, teaching and other work conducted or done by the
University, and to cause an inquiry to be made in like manner in respect of any matter connected with the University. The Lord Rector shall in every case give notice to the University of his intention to cause an inspection or inquiry." After the enquiry, the Lord Rector had the power to address the Vice-Chancellor with reference to the result of such inspection and inquiry and the
Vice-Chancellor was bound to communicate to the Court the views of the Lord Rector with such advice as the Lord Rector might offer upon the action to be taken thereon. The Court was then required to communicate through the Vice-Chancellor to the Lord Rector such action if any as was proposed to be taken or was taken upon the result of such inspection or inquiry. Finally the Lord
Rector was given the power where the Court did not, within reasonable time, take action to the satisfaction of the Lord Rector to issue such directions as he thought fit after considering any explanation furnished or representation made by the Court and the Court was bound to comply with such directions. There provisions clearly bring out that the final control in the matter was with the Lord Rector who was the Governor-General of India.
Then comes s. 14 which is again an important provision, which provided for the Visiting Board of the University, which consisted of the Governor, the members of the Executive Council the
Ministers, one member nominated by the Governor and one member nominated by the Minister in charge of Education. The Visiting Board had the power to inspect the University and to satisfy itself that the proceedings of the University were in conformity with the Act, Statutes and
Ordinances, after giving notice to the University of its intention to do so. The Visiting Board was also given the power, by order in writing, to annul any proceedings not in conformity with the Act,
Statutes and Ordinances, provided that before making such and order, the Board had to call upon the University to show cause why such an order should not be made, and to consider such cause if shown within reasonable time. This provision, though not so all - pervasive as the provision in s.
13 of the 1920-Act, shows that the Visiting Board had also certain over-riding power in case the
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University authorities acted against the Act, Statutes and Ordinances. There is no condition that the Lord Rector and the members of the Visiting Board must belong to the Muslim community.
Sections 15 to 21 are not material for our purposes. They made provisions for officers of the
University and Rectors and laid down that "the Powers of officers of the University other than the
Chancellor, the Pro-Chancellor, the Vice-Chancellor and the Pro-Vice-Chancellor shall be prescribed by the Statutes and the Ordinances". Section 22 provided for the authorities of the
University, namely, the Court, the Executive Council and the Academic Council and such other authorities as might be declared by the Statutes to be authorities of the University. Section 23 provided for the constitution of the Court, and the proviso to sub-section (1) has been greatly stressed on behalf of the petitioners which laid down that "no person other than a Muslim shall be a member thereof". It may be added here that the Select Committee which went into the Bill before the 1920-Act was passed was not very happy about this proviso and observed that:
In reference to the constitution of the Court we have retained the provision that no person other than Muslim shall be a member thereof. We have done this as we understand that such a provision is in accordance with the preponderance of
Muslim feeling though some of us are by no means satisfied that such a provision is necessary.
By section 23(2), the Court was to be the supreme governing body of the University and would exercise all the powers of the University, not otherwise provided for by the 1920-Act, the Statutes, the Ordinances and the Regulations. It was given the power to review the acts of the Executive and the Academic Councils, save where such Councils had acted in accordance with powers conferred on them under the Act, the Statutes or the Ordinances and to direct that necessary action be taken by the Executive or the Academic Council, as the case might be, on any recommendation of the Lord Rector. The power of making Statutes was also conferred on the Court along with other powers necessary for the functioning of the University.
Section 24 dealt with the Executive Council, s. 25 with the Academic Council and s. 26 with other authorities of the University. Section 27 laid down what the Statues might provide. Section
28 dealt with the question of the first Statutes and how they were to be amended, repealed and added to. There is an important provision in s. 28 which laid down that "no new Statute or amendment or repeal of an existing Statute shall have any validity, until it has been submitted through the Visiting Board (which may record its opinion thereon) to the Governor General in
Council, and has been approved by the latter, who may sanction, disallow or remit it for further consideration." This provision clearly shows that the final power over the administration of the
University rested with the Governor General in Council. Section 29 dealt with Ordinances and what they could provide and s. 30 provided which authorities of the University could make
Ordinances. Section 30(2) provided that "the first Ordinances shall be framed as directed by the
Governor General in Council…" and sub-s. (3) thereof laid down that "no new Ordinances, or amendment or repeal of an existing Ordinance shall have any validity until it has been submitted through the Court and the Visiting Board (which may record its opinion thereon) to the Governor
General in Council, and has obtained the approval of the latter, who may sanction, disallow or remit it for further consideration". This again shows that even Ordinances could not be made by the University with out the approval of the Governor General in Council. If any dispute arose between the Executive and the Academic Council as to which had the power to make an Ordinance, either Council could represent the matter to the Visiting Board and the Visiting Board had to refer the same to a tribunal consisting of three members, one of whom was to be nominated by the
Executive Council, one by the Academic Council, and one was to be a Judge of the High Court nominated by the Lord Rector. This again shows that in the matter of such disputes, the Court which is called the supreme governing body of the University, did not have the power to resolve it. Section 31 provided for the making of Regulations, which had to be consistent with the Statutes and Ordinances. It is only the Regulations which did not require the approval of the Governor
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General before they came into force. Section 32 provided for admission of students to the
University and sub-s. (4) thereof provided that "the University shall not save with the previous sanction of the Governor General in Council recognise (for the purpose of admission to a course of study for a degree) as equivalent to its own degrees, any degree conferred by any other
University or as equivalent to the Intermediate Examination of an Indian University, any examination conducted by any other authority". This shows that in the matter of admission the
University could not admit students of other institutions unless the Governor General in Council approved the degree or any other examination of the institutions other than Indian Universities established by law. Section 33 provided for examinations, s. 34 for annual report and s. 35 for annual accounts. Section 36 to 38 provided for supplementary matters like conditions of service of officers and teachers, provident and pension funds, filling of casual vacancies and are not material for our purposes. Section 39 laid down that "no act or proceeding of any authority of the
University shall be invalidated merely by reason of the existence of vacancy or vacancies among its members". Section 40 is important and laid down that "if any difficulty arises with respect to the establishment of the University or any authority of the University or in connection with the first meeting of any authority of the University, the Governor General in Council may by order make any appointment or do anything which appears to him necessary or expedient for the proper establishment of the University or any authority thereof or for the first meeting of any authority of the University." This again shows the power of the Governor General in Council in the matter of establishment of the University.
This brings us to the end of the sections of the 1920-Act. There is nothing anywhere in any section of the Act which vests the administration of the University in the Muslim community. The fact that in the proviso to s. 23(1) it is provided that the Court of the University shall consist only of Muslims does not necessarily mean that the administration of the University was vested or was intended to be vested in the Muslim minority. If anything, some of the important provisions to which we have already referred show that the final power in almost every matter of importance was in the Lord Rector, who was the Governor General or in the Governor General in Council.
Then follows the schedule which provided for the first Statutes of the Aligarh University.
These Statutes provided for the Rectors of the University, the Vice-Chancellor, Pro-ViceChancellor, Treasurer, Register, Proctor and Librarian, the Court, constitution of the Court, the first Court, meetings of the Court and the powers of the Court, the Executive Council, the powers of the Executive Council, the Academic Council and its powers, departments of studies, appointments, register of graduates, convocations, Committees and so on. The Annexure to the
1920-Act gave the names of the Foundation Members of the Court numbering 124 who were all
Muslims and who were to hold office for five years from the commencement of the Court.
Such were the provisions of the 1920-Act. They continued in force till 1951 without any substantial amendment. In 1951, the 1951-Act was passed. It made certain changes in the 1920Act mainly on account of the coming into force of the Constitution. We shall refer only to such changes as are material for our purposes. The first material change was the deletion of s. 9 of the
1920-Act which gave power to the Court to make Statutes providing for compulsory religious instruction in the case of Muslim students. This amendment was presumably made in the interest of the University in view of Art. 28(3) of the Constitution which lays down that "no person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto." It was necessary to delete s. 9 as otherwise the University might have lost the grant which was given to it by the Government of India. Further s. 8 of the 1920-Act was amended and the new section provided that "the University shall be open to persons of either sex and of whatever race,
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creed, caste, or class, and it shall not be lawful for the University to adopt or impose on any person, any test whatsoever of religious belief or profession in order to entitle him to be admitted therein, as a teacher or student, or to hold any office therein, or to graduate thereat, or to enjoy or exercise any privilege thereof, except in respect of any particular benefaction accepted by the University, where such test is made a condition thereof by any testamentary or other instrument creating such benefaction." The new s. 8 had also a proviso laying down that "nothing in this section shall be deemed to prevent religious instruction being given in the manner prescribed by the Ordinances to those who have consented to receive it". Clearly section 9 was deleted and s. 8 was amended in this manner to bring the law into conformity with the provisions of the Constitution and for the benefit of the University so that it could continue to receive aid from the Government. Some amendment was also made in s. 13 in view of the changed constitutional set-up and in place of the
Lord Rector, the University was to have a Visitor. Section 14 was also amended and the power of the Visiting Board was conferred on the Visitor by addition of a new sub-s. (6).
The next substantial change was that the proviso to s. 23(1) which required that all members of the Court would only be Muslims was deleted. Other amendments are not material for our purpose as they merely relate to administrative details concerning the University.
It will thus be seen that by virtue of the 1951-Act non-Muslims could also be members of the
Court. But the Court still remained the supreme governing body of the University as provided by
s. 23(1) of the 1920-Act. It is remarkable that though the proviso to s. 23(1) was deleted as far back as 1951, there was no challenge to the 1951 Act till after Ordinance No. II of 1965 was passed. The reason for this might be that there was practically no substantial change in the administrative set-up of the 1920-Act and it was only when a drastic change was made by the
Ordinance of 1965, followed by the 1965-Act, that challenge was made not only to the 1965 Act but also to the 1951 Act in so far as it did away with the proviso to s. 23(1). It is not our function in the present petitions to consider the policy underlying the amendments made by the 1965 Act; nor do we propose to go into the merits of the amendments made by the 1965-Act. We are in the present petitions concerned only with the constitutionality of the provisions of the 1965-Act. If the provisions are constitutional, they were within the legislative competence of Parliament.
This brings us to the changes made in the 1965-Act which have occasioned the present challenge. The main amendment in the 1965-Act was in s. 23 of the 1920-Act with respect to the composition and the powers of the Court of the University. Sub-sections (2) and (3) of the 1920Act were deleted, with the result that the Court no longer remained the supreme governing body and could no longer exercise the powers conferred on it by Sub-ss. (2) and (3) of s. 23. In place of these two sub-sections, a new sub-section (2) was put in which reduced the functions of the Court to three only, namely, "(a) to advise the Visitor in respect of any matter which may be referred to the Court for advise; (b) to advise any other authority of the University in respect of any matter which may be referred to the Court for advise; and (c) to perform such other duties and exercise such other powers as may be assigned to it by the Visitor or under this Act". It further appears from the amendments of Sections 28, 29, 34 and 38 that the powers of the Executive Council were correspondingly increased. The Statutes were also amended and many of the powers of the Court were transferred by the amendment to the Executive Council. Further the constitution of the Court was drastically changes by the amendment of the 8th Statute and it practically became a body nominated by the Visitor except for the Chancellor, the Pro-Chancellor, the members of the
Executive Council who were exofficio members and three members of Parliament, two to be nominated by the speaker of the House of the People and one by the Chairman of the Council of
States. Changes were also made in the constitution of the Executive Council. Finally the 1965-Act provided that "every person holding office as a member of the Court or the Executive Council, as the case may be, immediately before the 20th day of May 1965 (on which date Ordinance No. II of 1965 was promulgated) shall on and from the said date cease to hold office as such". It was also
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provided that until the Court or the Executive Council was reconstituted, the Visitor might by general or special order direct any officer of the University to exercise the powers and perform the duties conferred or imposed by or under the 1920-Act as amended by the 1965-Act on the Court or the Executive Council as the case may be.
The contention of the petitioners is that by these drastic amendments in 1965 the Muslim minority was deprived of the right to administer the Aligarh University and that this deprivation was in violation of Art. 30(1) of the Constitution; and it is to this question we turn now.
Under Article 30(1), “all minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice”. We shall proceed on the assumption in the present petitions that Muslims are a minority based on religion. What then is the scope of Art. 30(1) and what exactly is the right conferred therein on the religious minorities. It is to our mind quite clear that Art. 30(1) postulates that the religious community will have the right to establish and administer educational institutions of their choice meaning thereby that where a religious minority establishes an educational institution, it will have the right to administer that.
An argument has been raised to the effect that even though the religious minority may not have established the educational institution, it will have the right to administer it, if by some process it had been administering the same before the Constitution came into force. We are not prepared to accept this argument.
The Article in our opinion clearly shows that the minority will have the right to administer educational institutions of their choice provided they have established them, but not otherwise.
The Article cannot be read to mean that even if the educational institution has been established by somebody else, any religious minority would have the right to administer it because, for some reason or other, it might have been administering it before the Constitution came into force. The words "establish and administer" in the Article must be read conjunctively and so read it gives the right to the minority to administer an educational institution provided it has been established by it.
In this connection our attention was drawn to In Re: The Kerala Education Bill, 1957 [1959] 1
SCR 995 where, it is argued, this Court had held that the minority can administer an educational institution even though it might not have established it. In that case an argument was raised that under Art. 30(1) protection was given only to educational institutions established after the
Constitution came into force. That argument was turned down by this Court for the obvious reason that if that interpretation was given to Art. 30(1) it would be robbed of much of its content. But that case in our opinion did not lay down that the words “establish and administer” in Art. 30(1) should be read disjunctively, so that though a minority might not have established an educational institution it had the right to administer it. It is true that at p. 1062 the Court spoke of Art. 30(1) giving two right to a minority i.e. (i) to establish and (ii) to administer. But that was said only in the context of meeting the argument that educational institutions established by minorities before the Constitution came into force did not have the protection of Art. 30(1). We are of opinion that nothing in that case justifies the contention raised on behalf of the petitioners that the minorities would have the right to administer an educational institution even thought the institution may not have been established by them. The two words in Art. 30(1) must be read together and so read the
Article gives the right to the minority to administer institutions established by it. If the educational institution has not been established by a minority it cannot claim the right to administer it under
Art. 30(1). We have therefore to consider whether the Aligarh University was established by the
Muslim minority; and if it was so established, the minority would certainly have the right to administer it.
We should also like to refer to the observations in Durgah Committee, Ajmer v. Syed Hussain
Ali [1962] 1 SCR 383. In that case this Court observed while dealing with Art. 26(a) and (d) of the
Constitution that even if it be assumed that a certain religious institution was established by a
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minority community it may lose the right to administer it in certain circumstances. We may in this connection refer to the following observations… for they apply equally to Art. 30(1):
If the right to administer the properties never vested in the denomination or had been validly surrendered by it or had otherwise been effectively and irretrievably lost to it, Art. 26 cannot be successfully invoked.
We shall have to examine closely what happened in 1920 when the 1920-Act was passed to decide (firstly) whether in the face of that Act it could be said that the Aligarh University was established by the Muslim minority, (secondly) whether the right to administer it ever vested in the minority, and (thirdly) even if the right to administer some properties that came to the
University vested in the minority before the establishment of the Aligarh University, whether it had been surrendered when the Aligarh University came to established.
Before we do so we should like to say that the words "educational institutions" are of very wide import and would include a university also. This was not disputed on behalf of the Union of
India and therefore it may be accepted that a religious minority had the right to establish a university under Art. 30(1). The position with respect to the establishment of Universities before the Constitution came into force in 1950 was this. There was no law in India which prohibited any private individual or body from establishing a university and it was therefore open to a private individual or body to establish a university. There is a good deal in common between educational institutions which are not universities and those which are universities. Both teach students and both have teachers for the purpose. But what distinguished a university from any other educational institution is that a university grants degrees of its own while other educational institutions cannot.
It is this granting of degrees by a university which distinguished it from the ordinary run of education institutions. [See St. David 's College, Lampeter v. Ministry of Education [1951] 1 All
E.R. 559]. Thus in law in India there was no prohibition against establishment of universities by private individuals or bodies and if any university was so established it must of necessity be granting degrees before it could be called a university.
But though such a university might be granting degrees it did not follow that the Government of the country was bound to recognise those degrees. As a matter of fact as the laws stood up to the time the Constitution came into force, the Government was not bound to recognise degrees of universities established by private individuals or bodies and generally speaking the Government only recognised degrees of universities established by it by law. No private individual or body could before 1950 insist that the degrees of any university established by him or it must be recognised by Government. Such recognition depended upon the will of Government generally expressed through statue. The importance of the recognition of Government in matters of this kind cannot be minimised. This position continued even after the Constitution came into force. It was only in 1956 that by sub-s. (1) of s. 22 of University Grants Commission Act, (No. 3 of 1956) it was laid down that "the right of conferring or granting degrees shall be exercised only by a
University established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a University under section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees". Sub-section (2) thereof further provided that
"save as provided in sub-s. (1), no person or authority shall confer, or grant, or hold himself or itself as entitled to confer or grant any degree". Section 23 further prohibited the use of the word
"university" by an educational institution unless it is established by law. It was only thereafter that no private individual or body could grant a degree in India. Therefore it was possible for the
Muslim minority to establish a university before the Constitution came into force, though the degrees conferred by such a university were not bound to be recognised by Government.
There was nothing in 1920 to prevent the Muslim minority, if it so chose, to establish a university; but if it did so the degrees of such a university were not bound to be recognised by
Government. It may be that in the absence of recognition of the degrees granted by a university, it
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may not have attracted many students, and that is why we find that before the Constitution came into force, most of the universities in India were established by legislation. The Aligarh University was also in the same way established by legislation and it provided under s. 6 of the 1920-Act that
"the degrees, diplomas and other academic distinctions granted or conferred to or on persons by the University shall be recognised by the Government as are the corresponding degrees, diplomas and other academic distinctions granted by any other university incorporated under any enactment." It is clear therefore that even though the Muslim minority could have established at
Aligarh in 1920 a university, it could not insist that degrees granted by such a university should be recognised by Government. Therefore when the Aligarh university was established in 1920 and by
s. 6 its degrees were recognised by Government, an institution was brought into existence which could not be brought into existence by any private individual or body for such individual or body could not insist upon the recognition of the degrees conferred by any university established by it.
The enactment of s. 6 in the 1920-Act is a very important circumstance which shows that the
Aligarh University when it came to be established in 1920 was not established by the Muslim minority, for the minority could not insist on the recognition by Government of the degrees conferred by any university established by it.
It is true, as is clear from the 1920-Act, that the nucleus of the Aligarh University was the
M.A.O. College, which was till then a teaching institution under the Allahabad University. The conversion of that college (if we may use that expression) into a university was however not by the Muslim minority; it took place by virtue of the 1920-Act which was passed by the Central legislature. There was no Aligarh University existing till the 1920-Act was passed. It was brought into being by the 1920-Act and must therefore be held to have been established by the Central
Legislature which by passing the 1920-Act incorporated it. The fact that it was based on the
M.A.O. College, would make no difference to the question as to who established the Aligarh
University. The answer to our mind as to who established the Aligarh University is clear and that is that it was the Central Legislature by enacting the 1920-Act that the established the said
University. As we have said already, the Muslim minority could not establish a university whose degrees were bound to be recognised by Government as provide by s. 6 of 1920-Act; that one circumstance along with the fact that without the 1920-Act the University in the form that it had, could not come into existence shows clearly that the Aligarh University when it came into existence in 1920 was established by the Central Legislature by the 1920-Act. It may be that the
1920 Act was passed as a result of the efforts of the Muslim minority. But that does not mean that the Aligarh University when it came into being under the 1920-Act was established by the Muslim minority. … What does the word "establish" used in Art. 30(1) mean? In Bouvier 's Law Dictionary,
Third Edition, Vol. I, it has been said that the word "establish" occurs frequently in the Constitution of the United States and it is there used in different meanings; and five such meanings have been given, namely (1) to settle firmly, to fix unalterably, as to establish justice; (2) to make or form : as, to establish a uniform rule of naturalization; (3) to found, to create, to regulate; as, Congress shall have power to establish post offices; (4) to found, recognize, confirm or admit : as, Congress shall make no laws respecting an establishment of religion; (5) to create, to ratify, or confirm, as
We, the people, etc., do ordain and establish this constitution. Thus it cannot be said that the only meaning of the word "establish" is to found in the sense in which an eleemosynary institution is founded and we shall have to see in what sense the ward has been used in our Constitution in the
Article. In Shorter Oxford English Dictionary, Third Edition, the word "establish" has a number of meanings i.e. to ratify, confirm, settle, to found, to create. Here again founding is not the only meaning of the word "establish" and it includes creation also. In Webster ' Third New International
Dictionary, the word "establish" has been given a number of meanings, namely, to found or base squarely, to make firm or stable, to bring into assistance, create, make, start, originate. It will be seen that here also founding is not the only meaning; and the word also means "to bring into
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existence". We are of opinion that for the purpose of Art. 30(1) the word means "to bring into existence", and so the right given by Art. 30(1) to the minority is to bring into existence an educational institution, and if they do so, to administer it. We have therefore to see what happened in 1920 and who brought the Aligarh University into existence.
From the history we have set out above, it will be clear that those who were in-charge of the
M.A.O. College, the Muslim University Association and the Muslim University Foundation
Committee were keen to bring into existence a university at Aligarh. There was nothing in laws then to prevent them from doing so, if they so desired without asking Government to help them in the matter. But if they had brought into existence a university on their own, the degrees of that university were not bound to be recognised by Government. It seems to us that it must have been felt by the persons concerned that it would be no use bringing into existence a university, if the degrees conferred by the said university were not to be recognised by Government. That appears to be the reason why they approached the Government for bringing into existence a university at
Aligarh, whose degrees would be recognised by Government and that is why we find s. 6 of the
1920-Act laying down that "the degrees, diplomas and other academic distinctions granted or conferred to or on persons by the university shall be recognised by the Government…"
It may be accepted for present purposes that the M.A.O. College and the Muslim University
Association and the Muslim University Foundation Committee were institutions established by the Muslim minority and two of them were administered by Societies registered under the Societies
Registration Act, (No. 21 of 1860). But if the M.A.O. College was to be covered into a university of the kind whose degrees were bound to be recognised by Government, it would not be possible for those who were in-charge of the M.A.O. College to do so. That is why the three institutions to which we have already referred approached the Government to bring into existence a university whose degrees would be recognised by Government. The 1920-Act was then passed by the Central
Legislature and the university of the type that was established thereunder, namely, one whose degrees would be recognised by Government, came to be established. It was clearly brought into existence by the 1920-Act for it could not have been brought into existence otherwise. It was thus the Central Legislature which brought into existence the Aligarh University and must be held to have established it. It would not be possible for the Muslim minority to establish a university of the kind whose degrees were bound to be recognised by Government and therefore it must be held that the Aligarh University was brought into existence by the Central Legislature and the
Government of India. If that is so, the Muslim minority cannot claim to administer it, for it was not brought into existence by it. Art. 30(1), which protects educational institutions brought into existence and administered by a minority, cannot help the petitioners and any amendment of the
1920-Act would not be ultra vires Art. 30(1) of the Constitution. The Aligarh University not having been established by the Muslim minority, any amendment of the 1920-Act by which it was established, would be within the legislative power of Parliament subject of course to the provisions of the Constitution. The Aligarh University not having been established by the Muslim minority, no amendment of the Act can be struck down as unconstitutional under Art. 30(1).
Nor do we think that the provisions of the Act can bear out the contention that it as the Muslim minority which was administering the Aligarh University, after it was brought into existence. It is true that the proviso to s. 23(1) of 1920-Act said that "no person other a Muslim shall be member of the Court", which was declared to be the supreme governing body of the Aligarh University and was to exercise all the powers of the University, not otherwise provided for by that Act. We have already referred to the fact that the Select Committee was not happy about this provision and only permitted it in the Act out of deference to the wishes of preponderating Muslim opinion.
It appears from paragraph 8 of the Schedule that even though the members of the Court had to be Muslims, the electorates were not exclusively Muslims. For example, sixty members of the
Court had to be elected by persons who had made or would make donations of five hundred rupees
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and upwards to or for the purposes of the University. Some of these persons were and could be non-Muslims. Forty persons were to be elected by the Registered Graduates of the University, and some of the Registered Graduates were and could be non-Muslims, for the University was open to all persons of either sex and of whatever race, creed or class. Further fifteen members of the Court were to be elected by the Academic Council, the membership of which was not confined only to
Muslims.
Besides there were other bodies like the Executive Council and the Academic Council which were concerned with the administration of the Aligarh University and there was no provision in the constitution of these bodies which confined their members only to Muslims. It will thus be seen that beside the fact that the members of the Court had to be all Muslims, there was nothing in the Act to suggest that the administration of the Aligarh University was in the Muslim minority as such. Besides the above, we have already referred to s. 13 which showed how the Lord Rector, namely, the Governor General had overriding powers over all matters relating to the administration of the University. Then there was s. 14 which gave certain over-riding powers to the Visiting
Board. The Lord Rector was then the Viceroy and the Visiting Board consisted of the Governor of the United Provinces, the members of his Executive Council, the Ministers, one member nominated by the Governor and one member nominated by the Minister in charge of Education.
These people were not necessarily Muslims and they had over-riding powers over the administration of the University. Then reference may be made to s. 28(2)(c) which laid down that no new Statute or amendment or repeal of an existing Statute, made by the University, would have any validity until it had been approved by the Governor General in Council who had power to sanction, disallow or remit it for further consideration. Same powers existed in the Governor
General in Council with respect to Ordinances. Lastly reference may be made to s. 40, which gave power to the Governor General in Council to remove any difficulty which might arise in the establishment of the University. These provisions in our opinion clearly show that the administration was also not vested in the Muslim minority; on the other hand it was vested in the statutory bodies created by the 1920-Act, and only in one of them, namely, the Court, there was a bar to the appointment of any one else except a Muslim, though even there some of the electors for some of the members included non-Muslims. We are therefore of opinion that the Aligarh
University was neither established nor administered by the Muslim minority and therefore there is no question of any amendment to the 1920-Act being unconstitutional under Art. 30(1) for that
Article does not apply at all to the Aligarh University.
… The next Article of the Constitution on which reliance is placed is Art. 29. That Article provides that "any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same". We have not been able to understand how the amendments made by the 1965-Act in the 1920-Act in any way interfere with the right of the Muslim minority to conserve any distinct language, script or culture which they might have. Here again we may add that no serious argument was raised before us on the basis of Art. 29.
... We are therefore of opinion that there is no force in any of these petitions. It is not disputed that the 1951 and 1965 Acts are within the competence of Parliament unless they are hit by any of the constitutional provisions to which we have referred above. As they are not hit by any of these provision, these Acts are good and are not liable to be struck down as ultra vires the Constitution.
The petitions therefore fail and hereby dismissed. In the circumstances we make no order as to costs. Page 495 of 610
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DAYANAND ANGLO VEDIC COLLEGE V. COLLEV. STATE OF PUNJAB
AIR 1971 SC 1737, (1971) 2 SCC 269
Decided On: May 5, 1971
BENCH – CHIEF JUSTICE S. M. SIKRI, JUSTICES G. K. MITTER, K. S. HEGDE. A. N. GROVER &
P. JAGANMOHAN REDDY
JUSTICE REDDY (FOR THE COURT)
These are fourteen Writ Petitions by various Colleges managed and administered by Dayanand
Anglo Vedic College (D.A.V. College) Trust and the Managing Society, against the Respondents challenging the Constitutional validity of certain provisions of Guru Nanak University, Amritsar,
Act 21 of 1969 (hereinafter called the 'University ' or the 'Act ', as the context may permit) and in particular Sections 4, 4(2), 4(3) and 5 of the Act as being violative of Articles 14, 19(1)(c) and (f),
26, 29(1) and 30(1) of the Constitution of India. There was also a prayer for quashing the
Notification No. 2201-4-RDI-70/7147 dated 16th March 1970 issued under Sub-section (1) of
Section 5, by the first Respondent, the State of Punjab as being illegal, unconstitutional and void.
As all these petitions raised a common question as to the validity of the provisions of the Act the
Notification issued by the Government pursuant to that Act and certain provisions of the statutes made thereunder it would be sufficient if facts in Writ Petition No. 256 are set out.
The Managing Committee of the D.A.V. College is composed of 24 members and manages a score of other D.A.V. Institutions established in the Country. The D.A.V. College Trust and the
Managing Society was formed to perpetuate the memory of Swami Dayanand Saraswati who was the founder of an organisation known as Arya Samaj, which organisation it is claimed has a fixed religious programme and its Constitution is designed to perpetuate the religious teaching and philosophy of its founder. The Arya Samaj it is stated has its own philosophy conception of God worship, religious tenets, rituals, social work, educational work etc., as would appear from the
Constitution of the Arya Samaj. It is therefore claimed that it being a religious sect and denomination, is a minority within the meaning of Article 30(1) of the Constitution. These Schools and Colleges were established 'on the lines teachings and principles of Arya Samaj ' in which 'the imparting of the Vedic culture and religious instructions and worship based on the concept of
Vedas, was and has its essential ingredient '.
The Institutions which have filed the Writ Petitions were before the Punjab Reorganisation
Act (hereinafter called the 'Reorganisation Act ') affiliated to the Punjab University constituted under the East Punjab Act 7 of 1947 (hereinafter called the 'Punjab Uniersity ' or the 'Punjab
University Act ' as the context admits). Before the partition of India some of these Institutions were affiliated to the Punjab University, Lahore. After the partition other Universities were set up in
Punjab State like the Punjabi University, the Kurukshetra University, the Agricultural University etc., each of which had its own territorial jurisdiction.
There being a strong movement in the State of Punjab by the Sikhs to have a State of their own and others who did not want it, the Government of India being faced with this problem ultimately decided to reorganise the State of Punjab on linguistic basis. A Boundary Commission was appointed under the Chairmanship of Shah, J., as he then was, and on the basis of that report
Parliament ultimately passed the Reorganisation Act by and under which the State of Punjab and the State of Haryana were formed and certain other territories were added to Himachal Pradesh.
Chandigarh, the erstwhile Capital was to be a Union territory and was to serve as Capital of both these States. A provision was made in this Act for the continuance of certain Corporations and
Institutions which had served the needs of the people of both areas to continue as heretofore subject to the special provisions enacted in the Act. Three of such institutions were the Punjab University, the Punjab Agricultural University and the Board constituted under the provisions of Part III of
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Sikh Gurdwaras Act 1925. The continuance of the aforementioned two Universities was dealt along with other statutory Corporations under the general provisions contained in Section 72 of the Reorganisation Act. As already pointed out at the time of the reorganisation of the State other
Universities other than the University of Punjab were in existence namely the Punjabi University in Punjab, and Kurukshetra University in Haryana. After the reorganisation the various Colleges which were in the State of Punjab other than those over which the Punjabi University had jurisdiction were continued to be affiliated to the Punjab University. While this was the position till 1969 the Punjab Legislature in order to mark the 500th Birth anniversary of Shri Guru Nanak
Devji established a University to perpetuate his name. The Act received the assent of the Governor on 28th November 1969. On the 16th March 1970 the first Respondent in exercise of the powers conferred on it by Sub-section (1) of Section 5 of the Act specified the Districts of Amritsar,
Gurdaspur, Jullundur and Kapurthala in the State of Punjab as the area in which the University shall exercise its power and perform its duties. It further notified on 16th March 1970 in exercise of the powers under Sub-section (3) of Section 5, 30th June 1970 as the date for the purpose of the said Sub-section in respect of the educational institutions situated within the limits of the aforesaid area, which meant that as and from that date the Colleges in the areas specified above which were affiliated to the Punjab University ceased to be affiliated to that University and were deemed to be associated with and admitted to the privileges of the University.
The contentions urged before us are that the main purpose and object of the University as constituted by the University Act is to propagate Sikh religion and promote Punjabi language in
Gurmukhi script, that since the Petitioners institutions belong to a minority based on religion and language in that they being adherents of Arya Samaj Sect and denomination their compulsory affiliation to the University violates Article 29(1) and 30(1) of the Constitution of India. In support of this main contention it is submitted that Section 5(3) of the Act and also Clauses 2(1)(a), 17 and
18 of the statutes in Chapter V which inter-alia interfere with the management of the minority institutions are ultra-vires being violative of the guarantee under Article 30(1). It is also contended that the minority educational institutions have the freedom to choose to which University they will be affiliated and that the legislature cannot compel affiliation to any particular University. In any case in view of Section 72 of the Reorganisation Act it is the Central Government which must determine whether Colleges affiliated to the Punjab University can be disaffiliated before any
Notification under the Act can be issued specifying the areas in which educational institutions are to be affiliated and admitted to the privileges of the University as from the date notified. On this view it is submitted that the notification of the 16th March '70 is bad and must be struck down. It is also submitted that this statutory affiliation being compulsory affects the Petitioners right of
Association guaranteed under Article 19(1)(c) and that Article 14 is contravened because Section
4(2) and 4(3) discriminate against the Hindus, for while providing for the study of the teachings of Guru Nanak and the encouragement of the Punjabi language no provision is made for the study of the religion or teachings of the Hindus or of their language-the Hindi.
Now the question is, have the Petitioners been established and administered by a religious or linguistic minority, having a distinct script or culture of its own within the meaning of Articles
29(1) and 30(1) of the Constitution and do the provisions of the Act or any statute or ordinance or
Notification made thereunder offend any of the rights guaranteed to them. This in turn leads to an enquiry whether the Arya Samaj Sect is a religious or linguistic minority. …
It will be observed that Article 29(1) is wider than Article 30(1), in that, while any Section of the citizens including the minorities, can invoke the rights guaranteed under Article 29(1), the rights guaranteed under Article 30(1) are only available to the minorities based on religion or language. It is not necessary for Article 30(1) that the minority should be both a religious minority as well as a linguistic minority. It is sufficient if it is one or the other or both. A reading of these two Articles together would lead us to conclude that a religious or linguistic minority has a right
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to establish and administer educational institutions of its choice for effectively conserving its distinctive language, script or culture, which right however is subject to the regulatory power of the State for maintaining and facilitating the excellence of its standards. This right is further subject to Clause (2) of Article 29 which provides that no citizen shall be denied admission into any educational institution which is maintained by the State or receives aid out of State funds, on grounds only of religion, race, caste, language or any of them. While this is so these two articles are not inter-linked nor does it permit of their being always read together.
In Rev. Father W. Proost v. State of Bihar [1969] 2 SCR 73 where while conceding that the
Jesuits of Ranchi who were a religious minority established the petitioner Institution the St.
Xaviers College which was admitting students of other communities also, the Attorney General had contended that as the protection to minorities in Article 29(1) is only a right to conserve a distinct language, script or culture of its own the College did not qualify for the protection of
Article 30(1) because (i) it was not founded to conserve them, and (ii) it was open to all sections of people. An attempt was made to read into the protection granted by Article 30(1) a corollary taken from Article 29(1). While conceding that the Jesuit community is a minority community based on religion and therefore it has a right to establish and administer educational institutions of its choice, it was contended that as the protection to minorities in Article 29(1) is only a right to conserve the distinct language, script or culture of its own, the College does not qualify for the protection of Article 30(1) because it is not founded to conserve them. Hidayatullah, C.J., rejected the interpretation sought to be placed on Article 29(1) and 30(1) as if they have to be read together.
At page 80 he said:
In our opinion, the width of Article 30(1) cannot be cut down by introducing in it considerations on which Article 29(1) is based. The latter article is a general protection which is given to minorities to conserve their language, script or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institution, seeking to conserve language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. That is a circumstance irrelevant for the application of Article 30(1) since no such limitation is expressed and none can be implied. The two articles create two separate rights, although it is possible that they may meet in a given case.
The next question is what constitutes a religious or linguistic minority and how is it to be determined? It was submitted that in In Re: Kerala Education Bill [1959] SCR 995 this Court did not in fact lay down any test for ascertaining what is meant by minority community or how it is to be ascertained because in that case it had assumed that question (2) itself proceeded on the footing that there were minorities in Kerala who are entitled to the rights conferred under Article 30(1).
No doubt to some extent this is true. Das, C.J., had observed … that "strictly speaking for answering question (2) we need not enquire as to what a minority community means or how is it to be ascertained". Nonetheless earlier he did consider these matters … and laid down the principles which govern it, including an examination of the figures relating to the total population of the Kerala State and the population of the minorities, the Christians, the Muslim and the Anglo
Indians.
Though there was a faint attempt to canvas the position that religious or linguistic minorities should be minorities in relation to the entire population of the country, in our view they are to be determined only in relation to the particular legislation which is sought to be impugned, namely that if it is the State legislature these minorities have to be determined in relation to the population of the State. On this aspect Das, C.J., in Kerala Education Bill case speaking for the majority thought that there was a fallacy in the suggestion that a minority or Section envisaged Article 30(1) and Article 29(1) could mean only such persons as constitute numerically, minority in the particular region where the educational institution was situated or resided under local authority.
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He however, thought, it was not necessary to express a final opinion as to whether education being the subject matter of item 11 of the State list, subject only to the provisions of entry 62, 63, 64 and
66 of List I and entry 25 of List III, the existence of a minority community should in all circumstances and for purposes of all laws of that State be determined on the basis of the population of the whole State or whether it should be determined on the said basis only when the validity of a law extending to the whole State is in question or whether it should be determined on the basis of a population of a locality when the law under that Act applies only to that locality, because in that case the Bill before the Court extended to the whole of the State of Kerala and consequently the minority must be determined by reference to the entire population of that State.
It is undisputed, and it was also conceded by the State of Punjab, that the Hindus of Punjab are a religious minority in the State though they may not be so in relation to the entire country.
The claim of Arya Samaj to be a linguistic minority was however contested. A linguistic minority for the purpose of Article 30(1) is one which must at least have a separate spoken language. It is not necessary that that language should also have a distinct script for those who speak it to be a linguistic minority. There are in this country some languages which have no script of their own, but nonetheless those sections of the people who speak that language will be a linguistic minority entitled to the protection of Article 30(1).
The Punjab Boundary Commission Report under the Chairmanship of Shah, J. as he then was dealt not only with the several scripts in use but also the language of the dominant sections residing in Punjab. Earlier the States Reorganisation Report also went into the question and noted the controversies between Akali Dal sponsoring Punjabi with Gurmukhi script and Hindus who while at home they speak Punjabi asserted that in their religious ceremonies and festivals, in their
Schools and Colleges they use Hindi. In any case they never accepted Gurmukhi script. At page
143 it was observed "The problem of language in the Punjab is therefore primarily one of scripts; and in this battle of scripts; sentiment is arrayed against sentiment". This matter was dealt with, in somewhat great detail in Shah 's report at page 2 and 3:
History of the language controversy in the Punjab is over fifty years old. In the
Punjab of pre-British days, the Court language was Persian, and Punjabi was almost invariably written in the Persian script. Under the British rule, Urdu was the language of the Courts and of district administration in addition to English.
During the last decades of the 19th Century two important social reform movements gained strong foothold in the Punjab. The Arya Samaj movement took hold among the urban Hindu population and use of Hindi in the Devnagri script was propagated. After Swami Dayanand, founder of the Arya Samaj movement, published his 'Satyarath Prakash ' in the eyes of a section of the Hindus the Hindi language and the Devnagri script acquired religious, significance. During the same period, the cause of Punjabi was espoused by the Chief Khalsa Dewan. They published a large number of books and pamphlets dealing with the lives of Gurus and diverse facets of the Sikh religion. These books were written in Punjabi and in Gurmukhi script which had been given its present form by the second Guru of the Sikhs, and in which the holy Granth is written. The language issue in course of time got linked up with the politics of the province. Demands for giving better status in the administrative scheme to Punjabi in Gurmukhi script and Hindi in
Devnagri script gained strength, and the Government of the day agreed to accede to those demands and recognised the status of both Punjabi and Hindi in the educational curricula.
In our view it is unnecessary to consider whether Arya Samajis are a linguistic minority, because if they can be considered to be a religious minority they will be entitled to invoke the protection under Article 30(1).
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For the purposes of Article 29(1) even though it may not be necessary to enquire whether all the Hindus of Punjab as also the Arya Samajis speak Hindi as a spoken language, nonetheless there can be no doubt that the script of the Arya Samajis is distinct from that of the Sikhs who form the majority. It is claimed that while the Sikhs have Gurmukhi as their script the Arya Samajis have their own script which is the Devnagri script. Their claim to be a religious minority with distinct script of their own seems to us to be justified as would appear from the following:
The Arya Samaj is a reformist movement, believes in one God and in the Vedas as the books of true knowledge. It holds that it is the duty of every Arya Samaj to read the Vedas and have them read, to teach or preach them to others. It has a distinct organisation, the membership of which is open to all those who subscribe to its aims and objects. The Arya Samajis worship before the Vedic fire and it begins with the burning of incence (the homa 'sacrifice ') accompanied by the chanting of the Vedic verses.
Encyclopaedia Britannica (Vol. II-1968) has this to say about Arya Samaj at page 558:
Arya Samaj, a vigorously reforming Sect of modern Hinduism, founded in 1875 by Swami Dayanand Saraswati (1824-83) at Bombay… The Vedas as interpreted by the method laid down by Dayanand may be said to be the theology of the Arya
Samaj and are held to contain all truth and all knowledge, including the basis for modern science. The Arya Samaj is completely opposed to idolatry, is sternly monotheistic and denies the efficacy of priestly intervention. Its organization and services are strongly reminiscant of Protestantism… The Arya Samaj opposes the caste system based upon birth, as un-vedic and insists that caste should reflect merit.... The Arya Samaj has sought to revitalize Hindu life and to instill selfconfidence and national pride among Hindus. It has established a network of excellent Schools and Colleges, including the Dayanand Anglo-Vedic College in
Lahore, which teach rigorously in the Vedas and in modern sciences…
To show the affinity between Arya Samaj and Protestantism a comparison is made in the
Encyclopaedia of Religion and Ethics between Dayanand Saraswati and Martin Luther. In Volume
2 at page 58-59, it is said:
As Luther the German monk was a child of the European Renaissance, so
Dayanand the Gujrati monk was a child of the Indian Renaissance. Luther attacked indulgences, while Dayanand attacked idolatry. Luther appealed from the Roman church and the authority of tradition to the scriptures of the Old and
New Testaments. Swami Dayanand appealed from the Brahmanical Church and the authority of Smriti to the earliest and most sacred of Indian Scriptures. The watchword of Luther was 'Back to the Bible '; the watchword of Dayanand was 'back to the Vedas '... but be it noted to the Vedas as interpreted, not by the traditional scholarship of Indian orthodoxy or by the critical scholarship of the
West, but by the scholarship of the Arya Samaj alone.... The scripture basis of the
Arya Samaj then, while formally the Vedas, is in reality a certain interpretation of the Vedas, which is not recognized as legitimate by a single Sanskrit scholar, either Indian or European, outside of the Arya Samaj.
Shri Motilal Setalvad learned advocate for the respondents contends that there is nothing to indicate that the Arya Samajis should be Hindus. This argument however overlooks the basic tenets of the Sect in that it admits to membership only those Hindus who subscribe to the decalogue and its beliefs in the cannons of vedic interpretation laid down by Swami Dayanand but all outsiders who are non-Hindus such as Muslim and Christians must undergo a ceremony of purification or
Shudhi.
The passages read above show beyond doubt that the Arya Samaj by "rejecting the manifold absurdities found in Smriti and in tradition and in seeking a basis in the early literature for a purer and more rational faith" can be considered to be a religious minority, at any rate as part of the
Hindu religious minority in the State of Punjab.
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… Now coming to the question whether the Arya Samajis have a distinct script of their own bye-law 32 of their Constitution shows that the proceedings of all meetings and sub-committees will have to be written in Arya Bhasha in Hindi languages and Devnagri character, All Aryas and
Arya Sabhasads should know Arya Bhasha, Hindi or Sanskrit. The belief is that the name of the script Devnagri is derived from Deva and therefore has divine origin. From what has been stated it is clear that the Arya Samajis have a distinct script of their own, namely Devnagri. They are therefore entitled to invoke the right guaranteed under, Article 29(1) because they are a section of citizens having a distinct script and under Article 30(1) because of their being a religious minority.
It is now to be ascertained whether any of the provisions of the Act, statutes or Ordinances offend the guaranteed rights of the petitioners. The petitioners contend that Sub-sections (2) and
(3) of Section 4 directly infringe the fundamental rights guaranteed under Article 29(1) and 30(1) of the Constitution. Under these provisions the Arya Samaj through its educational institutions have the right to conserve its script, culture and its language.
Sub-section (2) of the Act, it is submitted enacts a provision for making it imperative to study and conduct research on the life and teachings of Guru Nanak and their cultural and religious impact on Indian and World civilizations while Sub-section (3) contemplates the adopting of measures for the study of Punjabi language literature and culture which provisions according to the petitioners directly aim at strangulating the growth of Hindi while encouraging the growth of
Punjabi. Their apprehension is that Punjabi with Gurmukhi script will be made the sole medium of instruction in the University and that all Colleges affiliated to this University may be forced to impart education through that medium.
The State of Punjab in its counter denied that the provisions of Sub-sections (2) and (3) of
Section 4 seek to strangulate the development and growth of Hindi language. It is stated that there is nothing in these provisions which offends the religious susceptibilities of the Petitioners nor can the provision for the promotion of and research in Punjabi language, literature and culture in the
State of Punjab, which has as its declared policy the adoption of Punjabi as the sole language of the Punjabi speaking area, be construed as offending the rights of the minorities.
The second Respondent the University traversed the Petitioners allegations on grounds similar to those taken by the State of Punjab except that it was further stated that Respondent 3 the
University of Punjab has also set up a Guru Nanak Chair and that the Punjab Government has offered to set up Guru Nanak Chairs in the Universities of Calcutta, Dharwar, Madras, Kurushetra,
Bombay as also in the Khalsa College, Amritsar.
Assuming for the moment that the Punjab Legislature had the competence to enact the Act, about which considerable argument was addressed before us particularly in respect of the scope and ambit of Section 72 of the Reorganisation Act-Sub-section (2) and (3) of Section 4 do not in our view offend by themselves any of the rights of the petitioners either under Article 29(1) or
Article 30(1) of the Constitution. Sub-section (2) & (3) of Section 4 are as follows:
24. Section 4.-The University shall exercise the following powers and perform the following duties:
(1) ….
(2) To make provision for study and research on the life and teachings of Guru
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It will be seen from the language of Sub-section (2) that nowhere is there a mandate for compelling Colleges affiliated to it either to study the religious teachings of Guru Nanak or to adopt in any way the culture of the Sikhs.
Guru Nanak is the founder of the Sikh religion. His teachings were inspired by a need to synthesis the essentials of the Hindu and Mohamadan faith which were always irreconcilable, by preaching that in no essentials of faith did they differ. His was intensely a monotheistic philosophy of the unit of God largely directed against idolatory hypocrisy distinction of castes, creeds and the pretentions of priest craft. He was an inspired soul from his very childhood, travelled widely and his pilgrimages extended to Mecca and Madina. If the University makes provision for an academic study and research of the life and teachings of any saint it cannot on any reasonable view be considered to require Colleges affiliated to the University to compulsorily study his life and teachings or to do research in them. The impugned provision would merely indicate that the
University can institute courses of study or provide research facilities for any student of the
University whether he belongs to the majority or the minority community to engage himself in such study or research but be it remembered that this study and research on the life and teachings of the Guru Nanak must be a study in relation to their culture and religious impact in the contact of Indian and world civilizations which is mostly an academic and philosophical study.
It is however contended that as the Guru Nanak University is wholly maintained out of the
State funds the provision under 4(2) offends Article 28(1) which is not saved by Clause 2 thereof.
The petitioners pointed out that Section 23(1) of the Act enjoins on the State Government to provide from time to tune 'such amounts by way of grants for meeting the capital, recurring or other expenditure of the University as it may deem fit ' and at any rate require it to provide a minimum annual grant of Rs. 50 lakhs to the University for meeting its recurring expenditure provided that if during any financial year the entire amount of the aforesaid grant is not utilized for meeting the recurring expenditure the unutilized balance may with the previous consent of the
State Government be utilised for meeting capital expenditure of the University. Neither the State
Government nor the University in their counter denied this allegation and even in the counter filed during the course of the hearing by the State of Punjab nothing was stated to controvert the assertion that the University is wholly maintained out of State funds. During the course of the arguments however learned Advocate appearing on behalf of the State and the University suggested that this was not so because the University gets income from affiliation fees and examination fees as such it cannot be said that the University is wholly maintained out of State funds. We can only say that this was not a serious attempt to deny the averment. The income from affiliation fees and the examination fees as the term 'fee ' itself indicates is something that is charged for rendering the service in respect of those two items which is a sort of quid-pro quo and could hardly be said to be an income for the purposes of running the University.
Even so the Petitioners have still to make out that Section 4(2) implies that religious instruction will be given. We think that such a contention is too remote and divorced from the object of the provision. Religious instruction is that which is imparted for inculcating the tenets, the rituals, the observances, ceremonies and modes of worship of a particular Sect or denomination. To provide for academic study of life and teaching or the philosophy and culture of any great saint of India in relation to or the impact on the Indian and world civilizations cannot be considered as making provision for religious instructions.
Sub-section (3) of Section 4 also does not in our view transgress the guarantee under Article
29(1). Whether one may like it or not, linguistic States in this country have come to stay. The purpose and object of these linguistic states is to provide with greater facility the development of the people of that area educationally, socially and culturally, in the language of that region but while the State or the University has every right to provide for the education of the majority in the regional medium, it is subject to the restrictions contained in Article 25 to 30. Neither the
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University nor the State can provide for imparting education in a medium of instruction in a language and script which stifles the language and script of any Section of the citizens. Such a course will trespass on the rights of those Sections of the citizens which have a distinct language or script and which they have a right to conserve through educational institutions of their own. In our view Section 4(3) does not lend itself to the interpretation that the medium of instruction of all affiliated Colleges has to be Punjabi. The provision, as we construe it, is for the promotion of
Punjabi studies and research in and the development of the Punjabi language, literature and culture which is far from saying that the University can under that provision compel the affiliated Colleges particularly those of the minority to give instruction in the Punjabi language or in any way impede the right to conserve their language script and culture.
… The next ground of attack is in respect of the statutes made in exercise of the powers conferred under Sub-section (1) of Section 19 of the University Act which according to the petitioners interferes with the management of their institutions as such violates Article 30(1) of the
Constitution. The relevant impugned statutes are contained in Chapter V relating to admission to
Colleges. These are 2(1)(a)17, and 18 read with Clause 1(2) and (3) which are as follows:1(1) …
1(2) Colleges shall be of two types namely University Colleges and affiliated
Colleges.
1(3) The educational institutions and Colleges situated in the Districts of
Amritsar, Jullundur, Gurdaspur and Kapurthalla are deemed to be associated with and admitted to the privileges of the University with effect from 30th day of June
1970. These institutions shall observe the conditions for admission to the privileges of the University failing which the rights conferred may be withdrawn.
2(1)(a) A College applying for admission to the privileges of the University shall send a letter of application to the Registrar and shall satisfy the Senate:(a) that the College shall have a regularly constituted governing body consisting of not more than 20 persons approved by the Senate and including, among others,
2 representatives of the University and the Principal of the College Ex-officio.
Provided that the said condition shall not apply in the case of Colleges maintained by Government which shall however have an advisory Committee consisting of among others the principal of the College (Ex-officio) and two representatives of the University.
The staff initially appointed shall be approved by the Vice Chancellor. All subsequent changes shall be reported to the University for Vice Chancellor 's approval. In the case of training institutions the teacher, pupil ratio shall not be less than 1:12. Non-Government Colleges shall comply with the requirements laid down in the ordinance governing service and conduct of teachers in non-Government Colleges as may be framed by the University.
Non-Government Colleges shall comply with the requirements laid down in the ordinances governing service and conduct of teachers in non-Government Colleges as may be framed by the
University.
It is contended that these provisions interfere with the Petitioners in the management of their institutions, in that the Colleges are required to constitute a regular governing body for each of them, of not more than 20 persons to be approved by the University Senate. Of these, two representatives of the University and the Principal of the College are to be ex-officio members.
According to the Petitioners the Managing Committee of their institution is composed of 24 members under the D.A.V. College Trust and Management Society registered under the Societies
Registration Act (Act 21 of 1960). It will be observed that under Clause 1(3) if the petitioners do not comply with the requirements under Ha) their affiliation is liable to be withdrawn. Similarly it is stated that Clause 17 also interferes with the petitioners right to administer their College as the
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appointment of all the staff has to be approved by the Vice-Chancellor and that subsequent changes will also have to be reported to the University for Vice Chancellor 's approval. We have already held that the Petitioners institutions are established by a religious minority and therefore under
Article 30 this minority has the right to administer their educational institutions according to their choice. Clauses 2(1)(a) and 17 of Chapter V in our view certainly interferes with that right.
In Kerala Education Bill dealing with Article 30(1) this Court observed:
The key to the understanding of the true meaning and implication of the Article under consideration are the words "of their own choice". It is said that the dominant word is "choice" and the content of that Article is as wide as the choice of the particular minority community may make it. The ambit of the rights conferred by Article 30(1) has therefore to be determined on a consideration of the matter from the points of view of the educational institutions themselves.
While so stating it was nonetheless observed:
That the Constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institution to be aided.
Similarly in Rev. Sidhajbhai Sabhai v. State of Bombay [1963] 3 SCR 837 it was held that:
Unlike Article 19 the fundamental freedom under Clause (1) of Article 30 is absolute in terms; it is not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Article 19 may be subjected to. All minorities, linguistic or religious have by Article 30(1) an absolute right to establish and administer educational institutions of their choice; and any law or executive direction which seeks to infringe the substance of that right under
Article 30(1) would to that extent be void. This, however, is not to say that it is not open to the State to impose regulations upon the exercise of this right....
Regulation made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed; they secure the proper functioning of the institution, in matters educational. We have already seen that in Rev. Father W. Proost the provisions of Section 48(A) which required to selection of the teachers of all affiliated Colleges including the Colleges established by the minorities, to be made by the University Service Commission, was held to interfere with the rights of the petitioners in that case. In that case, while the petition was pending in the Court,
Section 48 (B) was added to the Bihar State University Act whereby notwithstanding the provisions of Section 48 (A) exemption was given to the minority institutions to make appointments with the approval of the Commission and the Syndicate, the petitioners claimed exemption under Section 48(B) and submitted that as an affiliated College established by a minority based on religion or language they are exempted from Section 48 (A) and that if this petition was accepted they will withdraw the petition which had become superfluous. Even this prayer was not acceded to by the State and consequently it was held that they were entitled to the exemption claimed. This decision is not therefore an authority for the proposition that even the requirement that the staff of a minority educational institution be appointed, dismissed or removed only with the approval of the University or the State does not infringe the right to administer the institution guaranteed under Article 30(1).
In our view there is no possible justification for the provisions contained in Clauses 2(1)(a) and 17 of Chapter V of the statutes which decidedly interfere with the rights of management of the
Petitioners Colleges. These provisions cannot therefore be made as conditions of affiliation, the non-compliance of which would involve disaffiliation and consequently they will have to be struck down as offending Article 30(1). …
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TMA PAI FOUNDATION V. STATE OF KARNATAKA
AIR 2003 SC 355, (2002) 8 SCC 481
Decided On: November 25, 2002
BENCH – CHIEF JUSTICE B. N. KIRPAL, JUSTICES G. B. PATTANAIK, V. N. KHARE, S.
RAJENDRA BABU, SYED SHAH MOHAMMED QUADRI, RUMA PAL, S. N. VARIAVA, K. G.
BALAKRISHNAN, P. VENKATARAMA REDDI, ASHOK BHAN & ARIJIT PASAYAT
CHIEF JUSTICE KIRPAL (for himself, Justices Pattanaik, Babu, Balakrishnan, Reddi & Pasayat,
MAJORITY OPINION) [Justice Khare CONCURRING but wrote his separate opinion]
India is a land of diversity – of different castes, peoples, communities, languages, religions and culture. Although these people enjoy complete political freedom, a vast part of the multitude is illiterate and lives below the poverty line. The single most powerful tool for the upliftment and progress of such diverse communities is education. The state, with its limited resources and slowmoving machinery, is unable to fully develop the genius of the Indian people very often the impersonal education that is imparted by the state, devoid of adequate material content that will make the students self-reliant only succeeds in producing potential pen-pushers, as a result of which sufficient jobs are not available.
India is a land of diversity – of different castes, peoples, communities, languages, religions and culture. Although these people enjoy complete political freedom, a vast part of the multitude is illiterate and lives below the poverty line. The single most powerful tool for the upliftment and progress of such diverse communities is education. The state, with its limited resources and slow-moving machinery, is unable to fully develop the genius of the Indian people very often the impersonal education that is imparted by the state, devoid of adequate material content that will make the students self-reliant only succeeds in producing potential pen-pushers, as a result of which sufficient jobs are not available.
It is in this scenario where there is a lack of quality education and adequate number of schools and colleges that private educational institutions have been established by educationists, philanthropists and religious and linguistic minorities. Their grievance is that the necessary and unproductive load on their back in the form of governmental control, by way of rules and regulations, has thwarted the progress of quality education. It is their contention that the government must get off their back, and that they should be allowed to provide quality education uninterrupted by unnecessary rules and regulations, laid down by the bureaucracy for its own self-importance. The private educational institutions, both aided and unaided, established by minorities and non-minorities, in their desire to break free of the unnecessary shackles put on their functioning as modern educational institutions and seeking to impart quality education for the benefit of the community for whom they were established, and others, have filed the present writ petitions and appeals asserting their right to establish and administer educational institutions of their choice unhampered by rules and regulations that unnecessarily impinge upon their autonomy.
… On behalf of all these institutions, the learned counsel have submitted that the
Constitution provides a fundamental right to establish and administer educational institutions.
With regard to non-minorities, the right was stated to be contained in Article 19(1)(g) and/or
Article 26, while in the case of linguistic and religious minorities, the submission was that this right was enshrined and protected by Article 30. It was further their case that private educational institutions should have full autonomy in their administration. While it is
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necessary for an educational institution to secure recognition or affiliation, and for which purpose rules and regulations or conditions could be prescribed pertaining to the requirement of the quality of education to be provided, e.g., qualifications of teachers, curriculum to be taught and the minimum facilities which should be available for the students, it was submitted that the state should not have a right to interfere or lay down conditions with regard to the administration of those institutions. In particular, objection was taken to the nominations by the state on the governing bodies of the private institutions, as well as to provisions with regard to the manner of admitting students, the fixing of the fee structure and recruitment of teachers through state channels.
The counsel for these educational institutions, as well as the Solicitor General of India, appearing on behalf of the Union of India, urged that the decision of this Court in Unni
Krishnan v. State of Andhra Pradesh [1993] 1 SCR 594 case required reconsideration. It was submitted that the scheme that had been framed in Unni Krishnan had imposed unreasonable restrictions on the administration of the private educational institutions, and that especially in the case of minority institutions, the right guaranteed to them under Article 30(1) stood infringed. It was also urged that the object that was sought to be achieved by the scheme was, in fact, not achieved.
On behalf of the private minority institutions, it was submitted that on the correct interpretation of the various provisions of the Constitution, and Articles 29 and 30 in particular, the minority institutions have a right to establish and administer educational institutions of their choice. The use of the phrase "of their choice" in Article 30(1) clearly postulated that the religious and linguistic minorities could establish and administer any type of educational institution, whether it was a school, a degree college or a professional college; it was argued that such an educational institution is invariably established primarily for the benefit of the religious and linguistic minority, and it should be open to such institutions to admit students of their choice. While Article 30(2) was meant to ensure that these minority institutions would not be denied aid on the ground that they were managed by minority institutions, it was submitted that no condition which curtailed or took away the minority character of the institution while granting aid could be imposed. In particular, it was submitted that Article 29(2) could not be applied or so interpreted as to completely obliterate the right of the minority institution to grant admission to the students of its own religion or language.
It was also submitted that while secular laws relating to health, town planning, etc., would be applicable, no other rules and regulations could be framed that would in any way curtail or interfere with the administration of the minority educational institution. It was emphasized by the learned counsel that the right to administer an educational institution included the right to constitute a governing body, appoint teachers and admit students. It was further submitted that these were the essential ingredients of the administration of an educational institution, and no fetter could be put on the exercise of the right to administer. It was conceded that for the purpose of seeking recognition, qualifications of teachers could be stipulated, as also the qualification of the students who could be admitted; at the same time, it was argued that the manner and mode of appointment of teachers and selection of students had to be within the exclusive domain of the autochthones institution.
On behalf of the private non-minority unaided educational institutions, it was contended that since secularism and equality were part of the basic structure of the Constitution the provisions of the Constitution should be interpreted so that the right of the private nonminority unaided institutions were the same as that of the minority institutions. It was submitted that while reasonable restrictions could be imposed under Article 19(6), such private institutions should have the same freedom of administration of an unaided institution as was sought by the minority unaided institutions.
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The learned Solicitor General did not dispute the contention that the right in establish an institution had been confined on the non-minorities by Articles 19 and 26 and on the religious and linguistic minorities by Article 30. He agreed with the submission of the counsels for the appellants that the Unni Krishnan required reconsideration, and that the private unaided educational institutions were entitled to greater autonomy. He, however, contended that
Article 29(2) was applicable to minority institutions, and the claim of the minority institutions that they could preferably admit students of their own religion or language to the exclusion of the other communities was impermissible. In other words, he submitted that Article 29(2) made it obligatory even on the minority institutions not to deny admission on the ground of religion, race, caste, language or any of them.
Several States have totally disagreed with the arguments advanced by the learned Solicitor
General with regard to the applicability of Article 29(2) and 30(1). The States of Madhya
Pradesh, Chattisgarh and Rajasthan have submitted that the words "their choice" in Article
30(1) enabled the minority institutions to admit members of the minority community, and that the inability of the minority institutions to admit others as a result of the exercise of "their choice" would not amount to a denial as contemplated under Article 29(2). The State of
Andhra Pradesh has not expressly referred to the inter-play between Article 29(2) and Article
30(1), but has stated that "as the minority educational institutions are intended to benefit the minorities, a restriction that at least 50 per cent of the students admitted should come from the particular minority, which has established the institution should be stipulated as a working rule", and that an institution which fulfilled the following conditions should be regarded as minority educational institutions: 1. All the office bearers, members of the executive committee of the society must necessarily belong to the concerned religious/linguistic minority without exception; 2. The institution should admit only the concerned minority candidates to the extent of sanctioned intake permitted to be filed by the respective managements and that the Court "ought to permit the State to regulate the intake in minority educational institutions with due regard to the need of the community in the area which the institution is intended to serve. In no case should such intake exceed 50% of the total admissions every year."
The State of Kerala has submitted, again without express reference to Article 29(2), "that the constitutional right of the minorities should be extended to professional education also, but while limiting the right of the minorities to admit students belonging to their community to 50% of the total intake of each minority institution". The State of Karnataka has submitted that "aid is not a matter of right but receipt thereof does not in any way dilute the minority character of the institution. Aid can be distributed on non-discriminatory conditions but in so far as minority institutions are concerned, their core rights will have to be protected. On the other hand, the States of Tamil Nadu, Punjab, Maharashtra, West Bengal, Bihar and Uttar
Pradesh have submitted that Article 30(1) is subject to Article 29(2), arguing that a minority institution availing of state aid loses the right to admit members of its community on the basis of the need of the community.
The Attorney General, pursuant to the request made by the court, made submissions on the constitutional issues in a fair and objective manner. We recorded our appreciation for the assistance rendered by him and the other learned counsel.
………
The right to establish and maintain educational institutions may also be sourced to Article
26(a), which grants, in positive terms, the right to every religious denomination or any section
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thereof to establish and maintain institutions for religious and charitable purposes, subject to public order, morality and health. Education is a recognized head of charity. Therefore, religious denominations or sections thereof, which do not fall within the special categories carved out in Article 29(1) and 30(1), have the right to establish and maintain religious and educational institutions. This would allow members belonging to any religious denomination, including the majority religious community, to set up an educational institution. Given this, the phrase "private educational institution" as used in this judgment would include not only those educational institutions set up by the secular persons or bodies, but also educational institutions set up by religious denominations; the word "private" is used in contradistinction to government institutions.
………
IN CASE OF PRIVATE INSTITUTIONS, CAN THERE BE GOVERNMENT
REGULATIONS AND, IF SO, TO WHAT EXTENT?
Private educational institutions, both aided and unaided, are established and administered by religious and linguistic minorities, as well as by non-minorities. Such private educational institutions provide education at three levels, viz., school, college and professional level. It is appropriate to first deal with the case of private unaided institutions and private aided institutions that are not administered by linguistic or religious minorities. Regulations that can be framed relating to minority institutions will be considered while examining the merit and effect of Article 30 of the Constitution.
………
IN ORDER TO DETERMINE THE EXISTENCE OF A RELIGIOUS OR LINGUISTIC
MINORITY IN RELATION TO ARTICLE 30, WHAT IS TO BE THE UNIT - THE STATE
OR THE COUNTRY AS A WHOLE?
We now consider the question of the unit for the purpose of determining the definition of
"minority" within the meaning of Article 30(1).
Article 30(1) deals with religious minorities and linguistic minorities. The opening words of Article 30(1) make it clear that religious and linguistic minorities have been put at par, insofar as that Article is concerned. Therefore, whatever the unit - whether a state or the whole of India - for determining a linguistic minority, it would be the same in relation to a religious minority. India is divided into different linguistic states. The states have been carved out on the basis of the language of the majority of persons of that region. For example, Andhra
Pradesh was established on the basis of the language of that region. viz., Telugu. "Linguistic minority" can, therefore, logically only be in relation to a particular State. If the determination of "linguistic minority" for the purpose of Article 30 is to be in relation to the whole of India, then within the State of Andhra Pradesh, Telugu speakers will have to be regarded as a
"linguistic minority". This will clearly be contrary to the concept of linguistic states.
If, therefore, the state has to be regarded as the unit for determining "linguistic minority" vis-à-vis Article 30, then with "religious minority" being on the same footing, it is the state in relation to which the majority or minority status will have to be determined.
… It had been contended by the State of Kerala that for claiming the status of minority, the persons must numerically be a minority in the particular region in which the education institution was situated, and that the locality or ward or town where the institution was to be situated had to be taken as the unit to determine the minority community.
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In two cases pertaining to the DAV College, this Court had to consider whether the Hindus were a religious minority in the State of Punjab. In D.A.V. College v. State of Punjab 1971
(Supp.) SCR 688 the question posed was as to what constituted a religious or linguistic minority, and how it was to be determined. After examining the opinion of this Court in the
Kerala Education Bill, the Court held that the Arya Samajis, who were Hindus, were a religious minority in the State of Punjab, even though they may not have been so in relation to the entire country. In another case, D.A.V. College, Bhatinda v. State of Punjab AIR 1971
SC 1731, the observations in the first D.A.V. College case were explained, and … it was stated that “what constitutes a linguistic or religious minority must be judged in relation to the State inasmuch as the impugned Act was a State Act and not in relation to the whole of India.” The
Supreme Court rejected the contention that since Hindus were a majority in India, they could not be a religious minority in the state of Punjab, as it took the state as the unit to determine whether the Hindus were a minority community.
There can, therefore, be little doubt that this Court has consistently held that, with regard to a state law, the unit to determine a religious or linguistic minority can only be the state.
The Forty-Second Amendment to the Constitution included education in the Concurrent
List under Entry 25. Would this in any way change the position with regard to the determination of a "religious" or "linguistic minority" for the purposes of Article 30?
As a result of the insertion of Entry 25 into List III, Parliament can now legislate in relation to education, which was only a state subject previously. The jurisdiction of the Parliament is to make laws for the whole or a part of India. It is well recognized that geographical classification is not violative of Article 14. It would, therefore, be possible that, with respect to a particular State or group of States, Parliament may legislate in relation to education.
However, Article 30 gives the right to a linguistic or religious minority of a State to establish and administer educational institutions of their choice. The minority for the purpose of Article
30 cannot have different meanings depending upon who is legislating. Language being the basis for the establishment of different states for the purposes of Article 30 a “linguistic minority” will have to be determined in relation to the state in which the educational institution is sought to be established. The position with regard to the religious minority is similar, since both religious and linguistic minorities have been put at par in Article 30.
TO WHAT EXTENT CAN THE RIGHTS OF AIDED PRIVATE MINORITY
INSTITUTIONS TO ADMINISTER BE REGULATED?
… Article 28(1) prohibits any educational institution, which is wholly maintained out of state funds, to provide for religious instruction. Moral education dissociation from any demon national doctrine is not prohibited; but, as the state is intended to be secular, an educational institution wholly maintained out of state funds cannot impart or provide for any religious instruction. The exception to Article 28(1) is contained in Article 28(2). Article 28(2) deals with cases where, by an endowment or trust, an institution is established, and the terms of the endowment or the trust require the imparting of religious instruction, and where that institution is administered by the state. In such a case, the prohibition contained in Article 28(1) does not apply. If the administration of such an institution is voluntarily given to the government, or the government, for a good reason and in accordance with law, assumes or takes over the management of that institution, say on account of mal-administration, then the government, on assuming the administration of the institution, would be obliged to continue with the imparting of religious instruction as provided by the endowment or the trust.
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While Article 28(1) and Article 28(2) relate to institutions that are wholly maintained out of state funds, Article 28(3) deals with an educational institution that is recognized by the state or receives aid out of state funds. Article 28(3) gives the person attending any educational institution the right not to take part in any religious instruction, which may be imparted by an institution recognized by the state, or receiving aid from the state. Such a person also has the right not to attend any religious worship that may be conducted in such an institution, or in any premises attached thereto, unless such a person, or if he/she is a minor, his/her guardian, has given his/her consent. The reading of Article 28(3) clearly shows that no person attending an educational institution can be required to take part in any religious instruction or any religious worship, unless the person or his/her guardian has given his/her consent thereto, in a case where the educational institution has been recognized by the state or receives aid out of its funds. We have seen that Article 26(a) gives the religious denomination the right to establish an educational institution, the religious denomination being either of the majority community or minority community. In any institution, whether established by the majority or a minority religion, if religious instruction in imparted, no student can be compelled to take part in the said religious instruction or in any religious worship. An individual has the absolute right not to be compelled to take part in any religious instruction or worship. Article 28(3) thereby recognizes the right of an individual to practice or profess his own religion. In other words, in matters relating to religious instruction or worship, there can be no compulsion where the educational institution is either recognized by the state or receives aid from the state. Articles 29 and 30 are a group of articles relating to cultural and educational rights. Article
29(1) gives the right to any section of the citizens residing in India or any part thereof, and having a distinct language, script or culture of its own, to conserve the same. Article 29(1) does not refer to any religion, even though the marginal note of the Article mentions the interests of minorities. Article 29(1) essentially refers to sections of citizens who have a distinct language script or culture, even though their religion may not be the same. The common thread that runs through Article 29(1) in language, script or culture, and not religion.
For example, if in any part of the country, there is a section of society that has a distinct language, they are entitled to conserve the same, even though the persons having that language may profess different religions. Article 29(1) gives the right to all sections of citizens, whether they are in a minority or the majority religions, to conserve their language, script or culture.
In the exercise of this right to converse the language, script or culture, that section of the society can set up educational institutions. The right to establish and maintain institutions of its choice is a necessary concomitant to the right conferred by Article 30. The right under
Article 30 is not absolute. Article 29(2) provides that, where any educational institution is maintained by the state or receives aid out of state funds no citizen shall be denied admission on the grounds only of religion, race, caste, language or any of them. The use of the expression
"any educational institution" in Article 29(2) would refer to any educational institution established by anyone, but which is maintained by the state or receives aid out of state funds.
In other words, on a plain reading, state-maintained or aided educational institutions, whether established by the Government or the majority or a minority community cannot deny admission to a citizen on the grounds only of religion, race, caste or language.
The right of the minorities to establish and administer educational institutions is provided for by Article 30(1). To some extent, Article 26(1)(a) and Article 30(1) overlap, insofar as they relate to the establishment of educational institutions but whereas Article 26 gives the right both to the majority as well as minority communities to establish and maintain institutions for charitable purposes, which would inter alia, include educational institutions,
Article 30(1) refers to the right of minorities to establish and maintain educational institutions
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of their choice. Another difference between Article 26 and Article 30 is that whereas Article
26 refers only to religious denominations, Article 30 contains the right of religious as well as linguistic minorities to establish and administer educational institutions of their choice.
Article 30(1) bestows on the minorities, whether based on religion or language, the right to establish and administer educational institution of their choice. Unlike Article 25 and 26,
Article 30(1) does not specifically state that the right under Article 30(1) is subject to public order, morality and health or to other provisions of Part III. This Sub-Article also does not specifically mention that the right to establish and administer a minority educational institution would be subject to any rules or regulations.
Can Article 30(1) be so read as to mean that it contains an absolute right of the minorities, whether based on religion or language, to establish and administer educational institutions in any manner they desire, and without being obliged to comply with the provisions of any law?
Des Article 30(1) give the religious or linguistic minorities a right to establish an educational institution that propagates religious or racial bigotry or ill will amongst the people? Can the right under Article 30(1) be so exercised that it is opposed to public morality or health? In the exercise of its right, would the minority while establishing educational institutions not be bound by town planning rules and regulations? Can they construct and maintain buildings in any manner they desire without complying with the provisions of the building by-laws or health regulations?
In order to interpret Article 30 and its interplay, it any, with Article 29, our attention was drawn to the Constituent Assembly Debates. While referring to them, the learned Solicitor
General submitted that the provisions of Article 29(2) were intended to be applicable to minority institutions seeking protection of Article 30. He argued that if any educational institution sought aid, it could not deny admission only on the ground of religion, race, caste or language and, consequently giving a preference to the minority over more meritorious nonminority students was impermissible. It is now necessary to refer to some of the decisions of this Court insofar as they interpret Articles 29 and 30, and to examine whether any creases therein need ironing out.
In State of Madras v. Champakam Dorairajan [1951] SCR 525 the State had issued an order, which provided that admission to students to engineering and medical colleges in the
State should be decided by the Selection Committee strictly on the basis of the number of seats fixed for different communities. While considering the validity of this order this Court interpreted Article 29(2) and held that if admission was refused only on the grounds of religion, race, caste, language or any of them, then there was a clear breach of the fundamental right under Article 29(2). The said order was construed as being violative of Article 29(2), because students who did not fall in the particular categories were to be denied admission. In this connection it was observed as follows:So far as those seats are concerned, the petitioners are denied admission into any of them, not on any ground other than the sole ground of their being Brahmins and not being members of the community for whom those reservations were made. This government order was held to be violative of the Constitution and constitutive of a clear breach of Article 29(2). Article 30 did not come up for consideration in that case.
In State of Bombay v. Bombay Education Society [1955] SCR 568, the State had issued a circular, the operative portion of which directed that no primary or secondary school could, from the date of that circular admit to a class where English was used as a medium of instruction, any pupil other than pupils belonging to a section of citizens, the language of whom was English, viz, Anglo-Indians and citizens of non-Asiatic descent. The validity of
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the circular was challenged while admission was refused, inter alia, to a member of the
Gujarati Hindu Community. A number of writ petitions were filed and the High Court allowed them. In an application filed by the State of Bombay, this Court had to consider whether the said circular was ultra vires Article 29(2). In deciding this question, the Court analyzed the provisions of Articles 29(2) and 30, and repelled the contention that Article 29(2) guaranteed the right only to the citizens of the minority group. It was observed, in this connection, at page
579, as follows:
The language of Article 29(2) is wide and unqualified and may well cover all citizens whether they belong to the majority or minority group. Article 15 protects all citizens against the State whereas the protection of Article 29(2) extends against the State or anybody who denies the right conferred by it. Further
Article 15 protects all citizens against discrimination generally but Article 29(2) is a protection against a particular species of wrong namely denial of admission into educational institutions of the specified kind. In the next place Article 15 is quite general and wide in its terms and applies to all citizens, whether they belong to the majority or minority groups, and gives protection to all the citizens against discrimination by the State on certain specific grounds. Article 29(2) confers a special right on citizens for admission into educational institutions maintained or aided by the State. To limit this right only to citizens belonging to minority groups will be to provide a double protection for such citizens and to hold that the citizens of the majority group have no special educational rights in the nature of a right to be admitted into an educational institution for the maintenance of which they make contributions by way of taxes. We see no cogent reason for such discrimination. The heading under which Articles 29 and 30 are grouped together - namely "Cultural and Educational Rights" is quite general and does not in terms contemplate such differentiation. If the fact that the institution is maintained or aided out of State funds is the basis of this guaranteed right then all citizens, irrespective of whether they belong to the majority or minority groups; are alike entitled to the protection of this fundamental right.
It is clear from the aforesaid discussion that this Court came to the conclusion that in the case of minority educational institutions to which protection was available under Article 30, the provisions of Article 29(2) were indeed applicable. But, it may be seen that the question in the present from i.e., whether in the matter of admissions into aided minority educational institutions, minority students could be preferred to a reasonable extent, keeping in view the special protection given under Article 30(1), did not arise for consideration in that case.
... The interplay of Article 29 and Article 30 came up for consideration again before this
Court in the D.A.V. College 1971 (Supp.) SCR 688. Some of the provisions of the Guru Nanak
University Act established after the reorganization of the State of Punjab in 1969 provided for the manner in which the governing body was to be constituted; the body was to include a representative of the University and a member of the College. These and some other provisions were challenged on the ground that they were violative of Article 30. In this connection at page 695, it was observed as follows:It will be observed that Article 29(1) is wider than Article 30(1), in that, while any Section of the citizens including the minorities, can invoke the rights guaranteed under Article 29(1), the rights guaranteed under Article 30(1) are only available to the minorities based on religion or language. It is not necessary for Article 30(1) that the minority should be both a religion minority as well as a linguistic minority. It is sufficient if it is one or the other or both. A reading of these two Articles together would lead us to conclude that a religious or linguistic minority has a right to establish and administer educational institutions of its choice for effectively conserving its distinctive language, script or culture, which right however is subject to the regulatory power of the State for maintaining and facilitating the excellence of its standards. This right is further subject to Clause
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(2) of Article 29 which provides that no citizen shall be denied admission into any educational institution which is maintained by the State or receives aid out of State funds, on grounds only of religion, race, caste, language or any of them.
While this is so these two articles are not inter-linked nor does it permit of their being always read together.
Though it was observed that Article 30(1) is subject to 29(2), the question whether the preference to minority students is altogether excluded, was not considered.
… In the St. Stephen 's College, the right of minorities to administer educational institutions and the applicability of Article 29(2) to an institution to which Article 30(1) was applicable came up for consideration. St. Stephen 's College claimed to be a minority institution, which was affiliated to Delhi University, the College had its own provisions with regard to the admission of students. This provision postulated that applications would be invited by the college by a particular date. The applications were processed and a cut-off percentage for each subject was determined by the Head of the respective Departments and a list of potentially suitable candidates was prepared on the basis of 1:4 and 1:5 ratios for Arts and Science students respectively, and they were then called for an interview (i.e., for every available seat in the Arts Department, four candidates were called for interviews; similarly, for every available seat in the Science Department, five candidates were called for interviews).
In respect of Christian Students, a relaxation of up to 10% was given in determining the cutoff point. Thereafter, the interviews were conducted and admission was granted. The Delhi
University, however, had issued a circular, which provided that admission should be granted to the various courses purely on the basis of merit, i.e., the percentage of marks secured by the students in the qualifying examination. The said circular did not postulate any interview.
Thereafter, the admission policy of St. Stephen 's College was challenged by a petition under
Article 32. It was contended by the petitioners that the College was bound to follow the
University policy, rules and regulations regarding admission, and further argued that it was not a minority institution, and in the alternative, it was not entitled to discriminate against students on the ground of religion, as the college was receiving grant-in-aid from the government, and that such discrimination was violative of Article 29(2). The College had also filed a writ petition in the Supreme Court taking the stand that it was a religious minority institution, and that the circular of the University regarding admission violated its fundamental right under Article 30. This Court held that St. Stephen 's College was a minority institution.
With regard to the second question as to whether the college was bound by the University circulars regarding admission, this Court, by a majority of 4-1, upheld the admission procedure used by the College, even though it was different from the one laid down by the
University. In this context, the contention of the College was that it had been following its own admission programme for more than a hundred years and that it had built a tradition of excellence in a number of distinctive activities. The College challenged the University circular on the ground that it was not regulatory in nature, and that it violated its right under Article
30. Its submission was that if students were admitted purely on the basis of marks obtained by them in the qualifying examination, it would not be possible for any Christian student to gain admission. The college had also found that unless a concession was afforded, the Christian students could not be brought within the zone of consideration as they generally lacked merit when compared to the other applicants. This Court referred to the earlier decisions, and with regard to Article 30(1), observed … as follows:
The minorities whether based on religion or language have the right to establish and administer educational institutions of their choice. The administration of educational institutions of their choice under Article 30(1) means ‘management of the affairs of the institution’. This management must be free from control so that the founder or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the community in general
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and the institution in particular will be best served. But the standards of education are not a part of the management as such. The standard concerns the body politic and is governed by considerations of the advancement of the country and its people. Such regulations do not bear directly upon management although they may indirectly affect it. The State, therefore has the right to regulate the standard of education and allied matters. Minority institutions cannot be permitted to fall below the standards of excellence expected of educational institutions. They cannot decline to follow the general pattern of education under the guise of exclusive right of management. While the management must be left to them, they may be compelled to keep in step with others.
It was further noticed that the right under Article 30(1) had to be read subject to the power of the state to regulate education, educational standards and allied matters. … Dealing with the question of the selection of students, it was accepted that the right to select students for admission was a part of administration, and that this power could be regulated, but it was held that the regulation must be reasonable and should be conducive to the welfare of the minority institution or for the betterment of those who resort to it. Bearing this principle in mind, this
Court took note of the fact that if the College was to admit students as per the circular issued by the University, it would have to deny admissions to the students belonging to the Christian community because of the prevailing situation that even after the concession, only a small number of minority applicants would gain admission. It was the case of the College that the selection was made on the basis of the candidate 's academic record, and his/her performance at the interview keeping in mind his/her all round competence, his/her capacity to benefit from attendance at the College, as well as his/her capacity to benefit from attendance at the College, as well as his/her potential to contribute to the life of the College. While observing that the oral interview as a supplementary test and not as the exclusive test for assessing the suitability of the candidates for college admission had been recognized by this Court, this Court observed that the admission programme of the college "based on the test of promise and accomplishment of candidates seems to be better than the blind method of selection based on the marks secured in the qualifying examinations." The Court accordingly held that St.
Stephen 's College was not bound by the impugned circulars of the University. This Court then dealt with the question as to whether a preference in favour of, or a reservation of seats for candidates belonging to, its own community by the minority institutions would be invalid under Article 29(2) of the Constitution. After referring to the Constituent Assembly Debates and the proceedings of the Draft Committee that led to the incorporation of Articles 29 and
30, this Court proceeded to examine the question of the true import and effect of Articles 29(2) and 30(1) of the Constitution.
On behalf of the institutions, it was argued that a preference given to minority candidates in their own educational institutions, on the ground that those candidates belonged to that minority community, was not violative of Article 29(2), and that in the exercise of Article
30(1), the minorities were entitled to establish and administer educational institutions for the exclusive advantage of their own community 's candidates. This contention was not accepted by this Court on two grounds. Firstly, it was held that institutional preference to minority candidates based on religion was apparently an institutional discrimination on the forbidden ground of religion -- the Court stated that "if an educational institution says yes to one candidate but says no to other candidate on the ground of religion, it amounts to discrimination on the ground of religion. The mandate of Article 29(2) is that there shall not be any such discrimination." … The Court then dealt with the contention on behalf of the University that the minority institutions receiving government aid were bound by the mandate of Article 29(2), and that they could not prefer candidates from their own community. The Court referred to the decision in Champakam Dorairajan, but observed as follows:
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"… the fact that Article 29(2) applied to minorities as well as non-minorities did not mean that it was intended to nullify the special right guaranteed to minorities in Article 30(1). Article 29(2) deals with non-discrimination and is available only to individuals. General equality by non-discrimination is not the only need of minorities. Minority rights under majority rule implies more than nondiscrimination; indeed, it begins with non-discrimination. Protection of interests and institutions and the advancement of opportunity are just as important.
Differential treatment that distinguishes them from the majority is a must to preserve their basic characteristics."
Dealing with the submission that in a secular democracy the government could not be utilized to promote the interest of any particular community, and that the minority institution was not entitled to state aid as of right, this Court … held as follows:It is quite true that there is no entitlement to State grant for minority educational institutions. There was only a stop-gap arrangement under Article 337 for the
Anglo-Indian community to receive State grants. There is no similar provision for other minorities to get grant from the State. But under Article 30(2), the State is under an obligation to maintain equality of treatment in granting aid to educational institutions. Minority institutions are not to be treated differently while giving financial assistance. They are entitled to get the financial assistance much the same way as the institutions of the majority communities.
It was further held that the state could lay down reasonable conditions for obtaining grantin-aid and for its proper utilization, but that the state had no power to compel minority institutions to give up their rights under Article 30(1).
… The two competing rights are the right of the citizen not to be denied admission granted under Article 29(2), and right of the religious or linguistic minority to administer and establish an institution of its choice granted under Article 30(1). While treating Article 29(2) as a facet of equality, the Court gave a contextual interpretation to Articles 29(2) and 30(1) while rejecting the extreme contention on both sides, i.e., on behalf of the institutions that Article
29(2) did not prevent a minority institution to preferably admit only members belonging to the minority community, and the contention on behalf of the State that Article 29(2) prohibited any preference in favour of a minority community for whose benefit the institution was established. The Court concluded … as follows:In the light of all these principles and factors, and in view of the importance which the Constitution attaches to protective measures to minorities under
Article 30(1), the minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions subject of course to conformity with the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the institution is intended to serve. But in no case such intake shall exceed 50 per cent of the annual admission. The minority institutions shall make available at least 50 per cent of the annual admission to members of communities other than the minority community. The admission of other community candidates shall be done purely on the basis of merit.
If we keep these basic features, as highlighted in St. Stephen 's case, in view, then the real purposes underlying Articles 29(2) and 30 can be better appreciated.
We agree with the contention of the learned Solicitor General that the Constitution in Part
III does not contain or give any absolute right. All rights conferred in Part III of the
Constitution are subject to at least other provisions of the said Part. It is difficult to comprehend that the framers of the Constitution would have given such an absolute right to the religious or linguistic minority which would enable them to establish and administer educational institutions in manner so as to be in conflict with the other Parts of the
Constitution. We find difficult to accept that in the establishment and administration of
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educational institutions by the religious and linguistic minorities, no law of the land, even the
Constitution, is to apply to them.
Decisions of this Court have held that the right to administer does not include the right to mal-administer. It has also been held that the right to administer is not absolute, but must be subject to reasonable regulations for the benefit of the institutions as the vehicle of education, consistent with national interest. General laws of the land applicable to all persons have been held to be applicable to the minority institutions also -- for example, laws relating to taxation, sanitation, social welfare, economic regulation, public order and morality.
It follows from the aforesaid decisions that even though the words of Article 30(1) are unqualified, this Court has held that at least certain other laws of the land pertaining to health, morality and standards of education apply. The right under Article 30(1) has, therefore, not been held to be absolute or above other provisions of the law, and we reiterate the same. By the same analogy, there is no reason why regulations or conditions concerning, generally, the welfare of students and teachers should not be made applicable in order to provide a proper academic atmosphere, as such provisions do not in any way interfere with the right of administration or management under Article 30(1).
As we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality being two of the basic features of the Constitution,
Article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate against such minorities with regard to the establishment and administration of educational institutions visa-vis other educational institutions. Any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down. At the same time, there also cannot be any reverse discrimination. … [T]he essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. No one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another.
Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions. The minority institutions must be allowed to do what the non-minority institutions are permitted to do.
Like any other private unaided institutions, similar unaided educational institutions administered by linguistic or religious minorities are assured maximum autonomy in relation thereto; e.g., method of recruitment of teachers, charging of fees and admission of students.
They will have to comply with the conditions of recognition, which cannot be such as to whittle down the right under Article 30.
We have now to address the question of whether Article 30 gives a right to ask for a grant or aid from the state, and secondly, if it does get aid, to examine to what extent its autonomy in administration, specifically in the matter of admission to the educational institution established by the community, can be curtailed or regulated.
The grant of aid is not a constitutional imperative. Article 337 only gives the right to assistance by way of grant to the Anglo-Indian community for a specified period of time. If no aid is granted to anyone, Article 30(1) would not justify a demand for aid, and it cannot be said that the absence of aid makes the right under Article 30(1). The founding fathers have not incorporated the right to grants in Article 30, whereas they have done so under Article 337; what, then, is the meaning, scope and effect of Article 30(2)? Article 30(2) only means what it states, viz that a minority institution shall not be discriminated against when aid to
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educational institutions is granted. In other words the state cannot, when it chooses to grant aid to educational institutions, deny aid to a religious or linguistic minority institution only on the ground that the management of that institution is with the minority. We would, however, like to clarify that if an object surrender of the right to management is made a condition of aid, the denial of aid would be violative of Article 30(2). However, conditions of aid that do not involve a surrender of the substantial right of management would not be inconsistent with constitutional guarantees, even if they indirectly impinge upon some fact of administration.
If, however, aid were denied on the ground that the educational institution is under the management of a minority, then such a denial would be completely invalid.
The implication of Article 30(2) is also that it recognizes that the minority nature of the institution should continue, notwithstanding the grant of aid. In other words, when a grant is given to all institutions for imparting secular education, a minority institution is also entitled to receive it subject to the fulfillment of the requisite criteria, and the state gives the grant knowing that a linguistic or minority educational institution will also receive the same. Of course, the state cannot be compelled to grant aid, but the receipt of aid cannot be a reason for altering the nature of character of the incipient educational institution.
This means that the right under Article 30(1) implies that any grant that is given by the state to the minority institution cannot have such conditions attached to it, which will in any way dilute or abridge the rights of the minority institution to establish and administer that institution. The conditions that can normally be permitted to be imposed, on the educational institutions receiving the grant, must be related to the proper utilization of the grant and fulfillment of the objectives of the grant. Any such secular conditions so laid, such as a proper audit with regard to the utilization of the funds and the manner in which the funds are to be utilized, will be applicable and would not dilute the minority status of the educational institutions. Such conditions would be valid if they are also imposed on other educational institutions receiving the grant.
It cannot be argued that no conditions can be imposed while giving aid to a minority institution. Whether it is an institution run by the majority or the minority, all conditions that have relevance to the proper utilization of the grant-in-aid by an educational institution can be imposed. All that Article 30(2) states is that on the ground that an institution is under the management of a minority, whether based on religion or language, grant of aid to that educational institution cannot be discriminated against, if other educational institutions are entitled to receive aid. The conditions for grant or non-grant of aid to educational institutions have to be uniformly applied, whether it is a majority-run institution or a minority-run institution. As in the case of a majority-run institution, the moment a minority institution obtains a grant of aid, Article 28 of the Constitution comes into play. When an educational institution is maintained out of State funds, no religious institution can be provided therein.
Article 28(1) does not state that it applies only to educational institutions that are not established or maintained by religious or linguistic minorities. Furthermore, upon the receipt of aid, the provisions of Article 28(3) would apply to all educational institutions whether run by the minorities or the non-minorities. Article 28(3) is the right of a person studying in a state recognized institution or in an educational institution receiving aid from state funds, not to take part in any religious instruction, if imparted by such institution, without his/her consent
(or his/her guardian 's consent if such a person is a minor).
Just as Article 28(1) and (3) become applicable the moment any educational institution takes aid, likewise, Article 29(2) would also be attracted and become applicable to an educational institution maintained by the state or receiving aid out of state funds. It was strenuously contended that the right to give admission is one of the essential ingredients of the right to administer conferred on the religious or linguistic minority, and that this right
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should not be curtailed in any manner. It is difficult to accept this contention. If Article 23(1) and (3) apply to a minority institution that receives aid out of state funds, there is nothing in the language of Article 30 that would make the provisions of Article 29(2) inapplicable. Like
Article 28(1) and Article 28(3), Article 29(2) refers to "any educational institution maintained by the State or receiving aid out of State funds". A minority institution would fall within the ambit of Article 29(2) in the same manner in which Article 28(1) and Article 28(3) would be applicable to an aided minority institution. It is true that one of the rights to administer an educational institution is to grant admission to the students. As long as an educational institution, whether belonging to the minority or the majority community, does not receive aid, it would, in our opinion, be its right and discretion to grant admission to such students as it chooses or selects subject to what has been clarified before. Out of the various rights that the minority institution has in the administration of the institution, Article 29(2) curtails the right to grant admission to a certain extent. By virtue of Article 29(2), no citizen can be denied admission by an aided minority institution on the grounds only of religion, race, caste, language or any of them. It is no doubt true that Article 29(2) does curtail one of the powers of the minority institution, but on receiving aid, some of the rights that an unaided minority institution has are also curtailed by Article 28(1) and 28(3). A minority educational institution has a right to impart religious instruction - this right is taken away by Article 28(1), if that minority institution is maintained wholly out of state funds. Similarly on receiving aid out of state funds or on being recognized by the state, the absolute right of a minority institution requiring a student to attend religious instruction is curtailed by Article 28(3). If the curtailment of the right to administer a minority institution on receiving aid or being wholly maintained out of state funds as provided by Article 28 is valid, there is no reason why Article
29(2) should not be held to be applicable. There is nothing in the language of Article 28(1) and (3), Article 29(2) and Article 30 to suggest that on receiving aid, Article 28(1) and (3) will apply, but Article 29(2) will not. Therefore, the contention that the institutions covered by
Article 30 are outside the injunction of Article 29(2) cannot be accepted.
What is the true scope and effect of Article 29(2)? Article 29(2) is capable of two interpretations--one interpretation, which is put forth by the Solicitor General and the other counsel for the different States, is that a minority institution receiving aid cannot deny admission to any citizen on the grounds of religion, race, caste, language or any of them. In other words, the minority institution, once it takes any aid, cannot make any reservation for its own community or show a preference at the time of admission, i.e., if the educational institution was a private unaided minority institution, it is free to admit all students of its own community, but once aid is received, Article 29(2) makes it obligatory on the institution not to deny admission to a citizen just because he does not belong to the minority community that has established the institution.
The other interpretation that is put forth is that Article 29(2) is a protection against discrimination on the ground of religion, race, caste or language, and does not in any way come into play where the minority institution prefers students of its choice. To put it differently, denying admission, even though seats are available, on the ground of the applicant 's religion, race, caste or language, is prohibited, but preferring students of minority groups does not violate Article 29(2).
It is relevant to note that though Article 29 carries the head note "Protection of interests of minorities" it does not use the expression "minorities" in its text. The original proposal of the Advisory Committee in the Constituent Assembly recommended the following:(1) Minorities in every unit shall be protected in respect of their language, script and culture and no laws or regulations may be enacted that may operate
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oppressively or prejudicially in this respect" [B. Siva Rao, "Select Documents"
(1957) Vol. 2 page 281]
But after the clause was considered by the drafting Committee on 1st November, 1947, it emerged with substitute of 'section of citizen '. [B. Siva Rao, Select Documents (1957) Vol. 3, pages 525-26. Clause 23, Draft Constitution]. It was explained that the intention had always been to use 'minority ' in a wide sense, so as to include (for example) Maharashtrians who settled in Bengal. (7 C.A.D. pages 922-23)
Both Articles 29 and 30 from a part of the fundamental rights Chapter in Part III of the
Constitution. Article 30 is confined to minorities, be it religious or linguistic, and unlike
Article 29(1), the right available under the said Article cannot be availed by any section of citizens. The main distinction between Article 29(1) and Article 30(1) is that in the former, the right is confined to conservation of language, script or culture. …
Although the right to administer includes within it a right to grant admission to students of their choice under Article 30(1), when such a minority institution is granted the facility of receiving grant-in-aid, Article 29(2) would apply, and necessarily, therefore, one of the right of administration of the minorities would be eroded to some extent. Article 30(2) is an injunction against the state not to discriminate against the minority educational institution and prevent it from receiving aid on the ground that the institution is under the management of a minority. While, therefore, a minority educational institution receiving grant-in-aid would not be completely outside the discipline of Article 29(2) of the Constitution by no stretch of imagination can the rights guaranteed under Article 30(1) be annihilated. It is this context that some interplay between Article 29(2) and Article 30(1) is required. As observed quite aptly in
St. Stephen 's case "the fact that Article 29(2) applies to minorities as well as non-minorities does not mean that it was intended to nullify the special right guaranteed to minorities in
Article 30(1)." The word "only" used in Article 29(2) is of considerable significance and has been used for some avowed purpose. Denying admission to non-minorities for the purpose of accommodating minority students to a reasonable extent will not be only on grounds of religion etc., but is primarily meant to preserve the minority character of the institution and to effectuate the guarantee under Article 30(1). The best possible way is to hold that as long as the minority educational institution permits admission of citizens belonging to the nonminority class to a reasonable extent based upon merit, it will not be an infraction of Article
29(2), even though the institution admits students of the minority group of its own choice for whom the institution was meant. What would be a reasonable extent would depend upon variable factors, and it may not be advisable to fix any specific percentage. The situation would vary according to the type of institution and the nature of education that is being imparted in the institution. Usually, at the school level, although it may be possible to fill up all the seats with students of the minority group, at the higher level, either in colleges or in technical institutions, it may not be possible to fill up all the seats with the students of the minority group. However, even if it is possible to fill up all the seats with students of the minority group, the moment the institution is granted aid, the institution will have to admit students of the non-minority group to a reasonable extent, whereby the character of the institution is not annihilated, and at the same time, the rights of the citizen engrafted under
Article 29(2) are not subverted. It is for this reason that a variable percentage of admission of minority students depending on the type of institution and education is desirable, and indeed, necessary, to promote the constitutional guarantee enshrined in both Article 29(2) and Article
30.
… We would, however, like to clarify one important aspect at this stage. The aided linguistic minority educational institution is given the right to admit students belonging to the linguistic minority to a reasonable extent only to ensure that its minority character is preserved
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and that the objective of establishing the institution is not defeated. If so, such an institution is under an obligation to admit the bulk of the students fitting into the description of the minority community. Therefore, the students of that group residing in the state in which the institution is located have to be necessarily admitted in a large measure because they constitute the linguistic minority group as far as that state is concerned. In other words, the predominance of linguistic students hailing from the state in which the minority educational institution is established should be present. The management bodies of such institution cannot resort to the device of admitting the linguistic students of the adjoining state in which they are in a majority, under the facade of the protection given under Article 30(1). If not, the very objective of conferring the preferential right of admission by harmoniously constructing Articles 30(1) and
29(2), which we have done above, may be distorted.
We are rightly proud of being the largest democracy in the world. The essential ingredient of democracy is the will and the right of the people to elect their representatives from amongst a government is formed.
It will be wrong to presume that the government or the legislature will act against the
Constitution or contrary to the public or national interest at all times. Viewing every action of the government with skepticism, and with the belief that it must be invalid unless proved otherwise, goes against the democratic form of government. It is no doubt true that the Court has the power and the function to see that no one including the government acts contrary to the law, but the cardinal principle of our jurisprudence is that it is for the person who alleges that the law has been violated to prove it to be so. In such an event, the action of the government or the authority may have to be carefully examined, but it is improper to proceed on the assumption that, merely because an allegation is made, the action impugned or taken must be bad in law. Such being the position, when the government frames rules and regulations or lays down norms, specially with regard to deduction, one must assume that unless shown otherwise, the action taken is in accordance with law. Therefore, it will not be in order to so interpret a Constitution, and Article 29 and 30 in particular, on the presumption that the state will normally not act in the interest of the general public or in the interest of concerned sections of the society.
CONCLUSION
… Our country is often depicted as a person in the form of "Bharat Mata -- Mother India".
The people of India are regarded as her children with their welfare being in her heart. Like and loving mother, the welfare of the family is of paramount importance for her.
For a healthy family, it is important that each member is strong and healthy. But then, all members do not have the same constitution, whether physical and/or mental. For harmonious and healthy growth, it is natural for the parents, and the mother in particular, to give more attention and food to the weaker child so as to help him/her become stronger. Giving extra food and attention and ensuring private tuition to help in his/her studies will, in a sense, amount to giving the weaker child preferential treatment. Just as lending physical support to the aged and the infirm, or providing a special diet, cannot be regarded as unfair or unjust, similarly, conferring certain rights on a special class, for good reasons, cannot be considered inequitable. All the people of India are not alike, and that is why preferential treatment to a special section of the society is not frowned upon. Article 30 is a special right conferred on the religious and linguistic minorities because of their numerical handicap and to instill in them a sense of security and confidence, even though the minorities cannot be per se regarded as weaker sections or underprivileged segments of the society.
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The one billion population of India consists of six main ethnic groups and fifty-two major tribes; six major religions and 6,400 castes and sub-castes; eighteen major languages and
1,600 minor languages and dialects. The essence of secularism in India can best be depicted if a relief map of India is made in mosaic, where the aforesaid one billion people are the small pieces of marble that go into the making of a map. Each person, whatever his/her language, caste, religion has his/her individual identity, which has to be preserved, so that when pieced together it goes to form a depiction with the different geographical features of India. These small pieces of marble, in the form of human beings, which may individually be dissimilar to each other, when placed together in a systematic manner, produce the beautiful map of India.
Each piece, like a citizen of India, plays an important part in making of the whole. The variations of the colours as well as different shades of the same colour in a map is the result of these small pieces of different shades and colours of marble, but even when one small piece of marble is removed, the whole map of India would be scarred, and the beauty would be lost.
Each of the people of India has an important place in the formation of the nation. Each piece has to retain its own colour. By itself, it may be an insignificant stone, but when placed in a proper manner, goes into the making of a full picture of India in all its different colours and hues.
A citizen of India stands in a similar position. The Constitution recognizes the differences among the people of India, but it gives equal importance to each of them, their differences notwithstanding, for only then can there be a unified secular nation. Recognizing the need for the preservation and retention of different pieces that go into the making of a whole nation, the Constitution, while maintaining, inter alia, the basic principle of equality, contains adequate provisions that ensure the preservation of these different pieces.
The essence of secularism in India is the recognition and preservation of the different types of people, with diverse languages and different beliefs, and placing them together so as to form a whole and united India. Articles 29 and 30 do not more than seek to preserve the differences that exist, and at the same time, unite the people to form one strong nation.
ANSWERS TO ELEVEN QUESTIONS
Q.1. What is the meaning and content of the expression "minorities" in Article 30 of the
Constitution of India?
A. Linguistic and religious minorities are covered by the expression "minority" under
Article 30 of the Constitution. Since reorganisation of the State in India has been on linguistic lines, therefore, for the purpose of determining the minority the unit will be the State and note the whole of India. Thus, religious and linguistic minorities, who have been put at par in
Article 30, have to be considered State-wise.
Q.2. What is meant by the expression "religion" in Article 30(1)? Can the followers of a sect or denomination of a particular religion claim protection under Article 30(1) on the basis that they constitute a minority in the State, even though the followers of that religion are in majority in that State?
A. This question need not be answered by this Bench; it will be dealt with by a regular
Bench.
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Q.3(a) What are the indicia for treating an educational institution as a minority educational institution? Would an institution be regarded as a minority educational institution because it was established by a person(s) belonging to a religious or linguistic minority or its being administered by a person(s) belonging to a religious or linguistic minority?
A. This question need not be answered by this Bench; it will be dealt with by a regular
Bench.
Q3(b) To what extent can professional education be treated as a matter coming under minorities rights under Article 30?
A. Article 30(1) gives religious and linguistic minorities the right to establish and administer educational institutions of their choice. The use of the words "of their choice" indicates that even professional educational institutions would be covered by Article 30.
Q.4 Whether the admission of students to minority educational institution, whether aided or unaided, can be regulated by the State Government or by the University to which the institution is affiliated?
A. Admission of students to unaided minority educational institutions, viz., schools and undergraduates colleges where the scope for merit-based selection is practically nil, cannot be regulated by the concerned State or University, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards.
The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the state government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions.
A minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-minority students, so that the rights under Article
30(1) are not substantially impaired and further the citizens rights under Article 29(2) are not infringed. What would be a reasonable extent, would vary from the types of institution, the courses of education for which admission is being sought and other factors like educational needs. The concerned State Government has to notify the percentage of the non-minority students to be admitted in the light of the above observations. Observance of inter se merit amongst the applicants belonging to the minority group could be ensured. In the case of aided professional institutions, it can also be stipulated that passing of the common entrance test held by the state agency is necessary to seek admission. As regards non-minority students who are eligible to seek admission for the remaining seats, admission should normally be on the basis of the common entrance test held by the state agency followed by counselling wherever it exists.
Q5(a) Whether the minority 's rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students?
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A. A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not tantamount to mal-administration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence.
Q5(b) Whether the minority institutions ' right of admission of students and to lay down procedure and method of admission, if any, would be affected in any way by the receipt of
State aid?
A. While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe by-rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the state qua non-minority students. The merit may be determined either through a common entrance test conducted by the concerned University or the Government followed by counselling, or on the basis of an entrance test conducted by individual institutions--the method to be followed is for the university or the government to decide. The authority may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit. In the case of such institutions, it will be permissible for the government or the university to provide that consideration should be shown to the weaker sections of the society. Q5(c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and Principal including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities?
A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to an university or board have to be complied with, but in the mater of day-to-day management like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.
For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a Judicial Officer of the rank of District Judge.
The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution.
Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the state, without interfering with the overall administrative control of the management over the staff.
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Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee.
Q6(a) Where can a minority institution be operationally located? Where a religious or linguistic minority in State 'A" establishes an educational institution in the said State, can such educational institution grant preferential admission/reservations and other benefits to members of the religious/linguistic group from other States where they are non-minorities?
A. This question need not be answered by this Bench; it will be dealt with by a regular
Bench.
Q6(b) Whether it would be correct to say that only the members of that minority residing in
State 'A ' will be treated as the members of the minority vis-à-vis such institution?
A. This question need not be answered by this Bench; it will be dealt with by a regular
Bench.
Q.7 Whether the member of a linguistic non-minority in one State can establish a trust/society in another State and claim minority status in that State?
A. This question need not be answered by this Bench; it will be dealt with by a regular
Bench.
Q.8 Whether the ratio laid down by this Court in the St. Stephen 's is correct? If no, what order?
A. The basic ratio laid down by this Court in the St. Stephen 's is correct, as indicated in this judgment. However, rigid percentage cannot be stipulated. It has to be left to authorities to prescribe a reasonable percentage having regard to the type of institution, population and educational needs of minorities.
Q.9 Whether the decision of this Court in Unni Krishnan (except where it holds that primary education is a fundamental right) and the scheme framed thereunder required reconsideration/modification and if yes, what?
A. The scheme framed by this Court in Unni Krishnan and the direction impose the same, except where it holds that primary education is fundamental right, is unconstitutional.
However, the principle that there should not be capitation fee or profiteering is correct.
Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however amount to profiteering.
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UNIT 12 – FUNDAMENTAL RIGHTS AND THE DOCTRINE
BASIC STRUCTURE
DOCTRINE OF BASIC STRUCUTRE
KESAVANANDA BHARTI V. UNION OF INDIA
AIR 1974 SC 1461, (1973) 4 SCC 225
Decided On: April 24, 1973
BENCH – CHIEF JUSTICE S. M. SIKRI, JUSTICES A. N. GROVER, A. N. RAY, D. G. PALEKAR, H.
R. KHANNA, J. M. SHELAT, K. K. MATHEW, K. S. HEGDE, M. HAMEEDULLAH BEG, P.
JAGANMOHAN REDDY, S. N. DWIVEDI, A. K. MUKHERJEA & Y. V. CHANDRACHUD
CHIEF JUSTICE SIKRI (for himself)
I propose to divide my judgment into eight parts. Part I will deal with Introduction; Part II with interpretation of Golakhnath case; Part III with the interpretation of the original Article 368, as it existed prior to its amendment; Part IV with the validity of the Constitution (Twenty-fourth
Amendment) Act; Part V with the validity of Section 2 of the Constitution (Twenty-fifth
Amendment) Act; Part VI with the validity of Section 3 of the Constitution (Twenty-fifth
Amendment) Act; Part VII with Constitution (Twenty-ninth Amendment) Act; and Part VIII with conclusions. Part I – Introduction
All the six writ petitions involve common questions as to the validity of the Twenty-fourth,
Twenty-fifth and Twenty-ninth Amendments of the Constitution.
… The Constitution (Twenty-fifth Amendment) Act came into force on November 5, 1971, the Constitution (Twenty-fifth Amendment) Act came into force on April 20, 1972 and the
Constitution (Twenty-ninth Amendment) Act came into force on June 9, 1972. The effect of the
Twenty-ninth Amendment of the Constitution was that it inserted the following Acts in the Ninth
Schedule to the Constitution:
65. The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969)
66. The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971)
… It was then felt that it would be necessary to decide whether Golak Nath v. State of Punjab
[1967] 2 SCR 762 was rightly decided or not. However, as I see it, the question whether Golak
Nath was rightly decided or not does not matter because the real issue is different and of much greater importance, the issue being: what is the extent of the amending power conferred by Article
368 of the Constitution, apart from Article 13(2), on Parliament?
The respondents claim that Parliament can abrogate fundamental rights such as freedom of speech and expression, freedom to form associations or unions, and freedom of religion. They claim that democracy can even be replaced and one-party rule established. Indeed, short of repeal of the Constitution, any form of Government with no freedom to the citizens can be set up by
Parliament by exercising its powers under Article 368.
On the side of the petitioners it is urged that the power of Parliament is much more limited.
The petitioners say that the Constitution gave the Indian citizen freedoms which were to subsist for ever and the Constitution was drafted to free the nation from any future tyranny of the
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representatives of the people. It is this freedom from tyranny which, according to the petitioners, has been taken away by the impugned Article 31C which has been inserted by the Twenty-fifth
Amendment. If Article 31C is valid, they say, hereafter Parliament and State Legislatures and not the Constitution, will determine how much freedom is good for the citizens.
These cases raise grave issues. But however grave the issues may be, the answer must depend on the interpretation of the words in Article 368, read in accordance with the principles of interpretation which are applied to the interpretation of a Constitution given by the people to themselves. I must interpret Article 368 in the setting of our Constitution, in the background of our history and in the light of our aspirations and hopes, and other relevant circumstances. No other
Constitution in the world is like ours. No other Constitution combines under its wings such diverse peoples, numbering now more than 550 millions, with different languages and religions and in different stages of economic development, into one nation, and no other nation is faced with such vast socio-economic problems.
I need hardly observe that I am not interpreting an ordinary statute, but a Constitution which apart from setting up a machinery for government, has a noble and grand vision. The vision was put in words in the Preamble and carried out in part by conferring fundamental rights on the people.
The vision was directed to be further carried out by the application of directive principles.
… [Part II has been omitted. Chief Justice Sikri discusses all major cases till this case dealing with article 368 and cites from those decisions extensively. Since all these cases had opinions delivered by several judges, some of them being dissenting opinions expressing their reservations about fundamental rights being ‘playthings’ of a special majority, he quotes and highlights the conclusions of those dissenting opinions as well.] …
PART III – Interpretation of Article 368
Let me now proceed to interpret Article 368. Article 368, as originally enacted, read as follows:
An amendment of this Constitution may be initiated only by the introduction of a
Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change in(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States specified in Parts A and B of the First Schedule by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
It will be noticed that Article 368 is contained in a separate part and the heading is
“Amendment of the Constitution”, but the marginal note reads “Procedure for amendment of the
Constitution”.
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The expression “amendment of the Constitution” is not defined or expanded in any manner, although in other parts of the Constitution, the word “Amend” or “Amendment” has, as will be pointed out later, been expanded. In some parts they have clearly a narrow meaning. The proviso throws some light on the problem. First, it uses the expression “if such amendment seeks to make any change in”; it does not add the words “change of”, or omit “in”, and say “seeks to change” instead of the expression “seeks to make any change in”.
The articles which are included in the proviso may be now considered. Part V, Chapter I, deals with “the Executive”. Article 52, provides that there shall be a President of India, and Article 53 vests the executive power of the Union in the President and provides how it shall be exercised.
These two articles are not mentioned in the proviso to Article 368 but Articles 54 and 55 are mentioned. … Why were Articles 52 and 53 not mentioned in the proviso to Article 368 if the intention was that the States would have a say as to the federal structure of the country? One of the inferences that can be drawn is that the Constitution-makers never contemplated, or imagined that Article 52 will be altered and there shall not be a President of India. In other words they did not contemplate a monarchy being set up in India or there being no President.
Another article which has been included in the proviso to Article 368 is Article 73 which deals with the extent of executive powers of the Union. As far as the Vice-President is concerned, the
States have been given no say whether there shall be a Vice-President or not; about the method of his election, etc. But what is remarkable is that when we come to Part VI of the Constitution, which deals with the "States", the only provision which is mentioned in the proviso to Article 368 is
Article 162 which deals with the extent of executive power of States. The appointment of a
Governor, conditions of service of a Governor, and the Constitution and functions of the Council of Ministers, and other provisions regarding the Ministers and the conduct of government business are not mentioned at all in the proviso to Article 368. Another article which is mentioned in Clause
(a) of the proviso to Article 368 is Article 241 which originally dealt with High Courts for States in Part C of the First Schedule.
Chapter IV of Part V of the Constitution which deals with the Union Judiciary, and Chapter V of Part VI which deals with the High Courts in the State are included in the proviso to Article 368 but it is extra-ordinary that Chapter VI of Part VI which deals with subordinate Judiciary is not mentioned in Clause (b). Chapter I of Part XI is included and this deals with the Legislative
Relations between the Union and the States, but Chapter II of Part XI which deals with
Administrative Relations between the Union and the States, and various other matters in which the
States would be interested are not included. Provisions relating to services under the State and
Trade and Commerce are also not included in the proviso.
This analysis of the provisions contained in Clauses (a) and (b) of the proviso to Article 368 shows that the reason for including certain articles and excluding certain other from the proviso was not that all articles dealing with the federal structure or the status of the States had been selected for inclusion in the proviso.
Clause (c) of the proviso mentions the Lists in the Seventh Schedule, Clause (d) mentions the representation of States in Parliament, and Clause (e) the provisions of Article 368 itself. The provisions of Sub-clauses (c), (d) and (e) can rightly be said to involve the federal structure and the rights of the States.
What again is remarkable is that the fundamental rights are not included in the proviso at all.
Were not the States interested in the fundamental rights of their people? The omission may perhaps be understandable because of the express provision of Article 13(2) which provided that States shall not make any law which takes away or abridges the rights conferred by Part III and any law
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made in contravention of this clause shall to the extent of the contravention be void, assuming for the present that Article 13(2) operates on Constitutional amendments.
In construing the expression “amendment of this Constitution” I must look at the whole scheme of the Constitution. It is not right to construe words in vacuum and then insert the meaning into an article. Lord Greene observed in Bidie v. General Accident, Fire and Life Assurance
Corporation [1948] 2 All E.R. 995:
The first thing one has to do, I venture to think, in construing words in a section of an Act of Parliament is not to take those words in vacuo, so to speak, and attribute to them what is sometimes called their natural or ordinary meaning. Few words in the English language have a natural or ordinary meaning in the sense that they must be so read that their meaning is entirely independent of their context. The method of construing statutes that I prefer is not to take particular words and attribute to them a sort of prima facie meaning which you may have to displace or modify. It is to read the statute as a whole and ask oneself the question:
In this state, in this context, relating to this subject-matter, what is the true meaning of that word?
I respectfully adopt the reasoning of Lord Greene in construing the expression "the amendment of the Constitution.
… [Discussion of another English case supporting this observation on statutory interpretation made by
Lord Greene, by Chief Justice Gwyer of the Federal Court and of Justice Holmes of the U.S. Supreme
Court have been omitted] …
In the Constitution the word "amendment" or "amend" has been used in various places to mean different things. In some articles, the word "amendment" in the context has a wide meaning and in another context it has a narrow meaning. In Article 107, which deals with legislative procedure,
Clause (2) provides that "subject to the provisions of Articles 108 and 109, a Bill shall not be deemed to have been passed by the House of Parliament unless it has been agreed to by both
Houses, either without amendment or with such amendments only as are agreed to by both
Houses." It is quite clear that the word "amendment" in this article has a narrow meaning.
Similarly, in Article 111 of the Constitution, whereby the President is enabled to send a message requesting the Houses to consider the desirability of introducing amendments, the "amendments" has a narrow meaning.
The opening of Article 4(1) reads:
4(1) Any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law…
Here the word "amendment" has a narrower meaning. "Law" under Articles 3 and 4 must
"conform to the democratic pattern envisaged by the Constitution; and the power which the
Parliament may exercise… is not the power to over-ride the Constitutional scheme. No state can, therefore, be formed, admitted or set up by law under Article 4 by the Parliament which has no effective legislative, executive and judicial organs". (Per Shah J.Mangal Singh v. Union of India
[1967] 2 SCR 109)
Article 169(2) reads:
Any law referred to in Clause (1) shall contain such provisions for the amendment of this Constitution as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions as Parliament may deem necessary.
Here also the word "amendment" has a narrow meaning.
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Para 7 of Part D, Fifth Schedule, which deals with amendment of the schedule, reads:
7. Amendment of the Schedule. - (1) Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this
Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shall be construed as a reference to such schedule as so amended. Here the word "amend" has been expanded by using the expression "by way of addition, variation or repeal", but even here, it seems to me, the amendments will have to be in line with the whole Constitution. Similarly, under para 21 of the Sixth Schedule, which repeats the phraseology of para 7 of the Fifth Schedule, it seems to me, the amendments will have to be in line with the
Constitution.
I may mention that in the case of the amendments which may be made in exercise of the powers under Article 4, Article 169, para 7 of the Fifth Schedule, and para 21 of the Sixth Schedule, it has been expressly stated in these provisions that they shall not be deemed to be amendments of the
Constitution for the purposes of Article 368.
It is also important to note that the Constituent Assembly which adopted Article 368 on
September 17, 1949, had earlier on August 18, 1949, substituted the following section in place of the old Section 291 in the Government of India Act, 1935:
291. Power of the Governor-General to amend certain provisions of the Act and orders made thereunder(1) The Governor-General may at any time by order make such amendments as he considers necessary whether by way of addition, modification or repeal, in the provisions of this Act or of any order made thereunder in relation to any Provincial
Legislature with respect to any of the following matters, that is to say (a) the composition of the Chamber or Chambers of the Legislature;
(b) the delimitation of territorial constituencies for the purpose of elections under this Act.
Here, the word "amendment" has been expanded. It may be that there really is no expansion because every amendment may involve addition, variation or repeal of part of a provision.
According to Mr. Seervai, the power of amendment given by Article 4, read with Articles 2 and 3, Article 169, Fifth Schedule and Sixth Schedule, is a limited power limited to certain provisions of the Constitution, while the power under Article 368 is not limited. It is true every provision is prima facie amendable under Article 368 but this does not solve the problem before us. I may mention that an attempt was made to expand the word "amend" in Article 368 by proposing an amendment that "by way of variation, addition, or repeal" be added but the amendment was rejected.
Again, in Article 196(2), the word "amendment" has been used in a limited sense. Article
196(2) reads:
196(2). Subject to the provisions of Articles 197 and 198, a Bill shall not be deemed to have been passed by the Houses of the Legislature of a State having a
Legislative Council unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses.
Similar meaning may be given to the word "amendment" in Article 197(2), which reads:
197(2). If after a Bill has been so passed for the second time by the Legislative
Assembly and transmitted to the Legislative Council(a) the Bill is rejected by the Council; or
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(b) more than one month elapses from the date on which the Bill is laid before the
Council without the Bill being passed by it; or
(c) the Bill is passed by the Council with amendments to which the Legislative
Assembly does not agree,
(c) the Bill is passed by the Legislative Assembly does not agree, the Bill shall be deemed to have been passed by the Houses of the Legislature of the State in the form in which it was passed by the Legislative Assembly for the second time with such amendments, if any, as have been made or suggested by the Legislative
Council and agreed to by the Legislative Assembly.
Under Article 200 the Governor is enabled to suggest the desirability of introducing any such amendments as he may recommend in his message. Here again "amendment" has clearly a limited meaning. In Article 35(b) the words used are:
Any law in force immediately before the commencement of this
Constitution...subject to the terms thereof and to any adaptations and modifications that may be made therein under Article 372, continue in force until altered or repealed or amended by Parliament.
Here, all the three words are used giving a comprehensive meaning. Reliance is not placed by the draftsman only on the word "amend".
Similar language is used in Article 372 whereby existing laws continue to be in force until
"altered or repealed or amended ' by a competent Legislature or other competent authority.
In the original Article 243(2), in conferring power on the President to make regulations for the peace and good government of the territories in part D of the First Schedule, it is stated that "any regulation so made may repeal or amend any law made by Parliament." Here, the two words together give the widest power to make regulations inconsistent with any law made by Parliament
In Article 252 again, the two words are joined together to give a wider power. … In Article
320(5), "all regulations made under the proviso to Clause (3)" can be modified "whether by way of repeal or amendment" as both Houses of Parliament or the House or both Houses of the
Legislature of the States may make during the session in which they are so laid.
I have referred to the variation in the language of the various articles dealing with the question of amendment or repeal in detail because our Constitution was drafted very carefully and I must presume that every word was chosen carefully and should have its proper meaning. I may rely for this principle on the following observations of the United States Supreme Court in Holmes v.
Jennison (10) L. Ed. 579 and quoted with approval in William v. United States (77) L. Ed. 1372:
In expounding the Constitution of the United States, every word must have its due force, and appropriate meaning: for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added…
Reference was made to Section 6(2) of the Indian Independence Act, 1947, in which the last three lines read:
… and the powers of the Legislature of each Dominion include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the Dominion.
Here, the comprehensive expression "repeal or amend" gives power to have a completely new
Act different from an existing act of Parliament.
So, there is no doubt from a perusal of these provisions that different words have been used to meet different demands. In view of the great variation of the phrases used all through the
Constitution it follows that the word "amendment" must derive its colour from Article 368 and the
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rest of the provisions of the Constitution. There is no doubt that it is not intended that the whole
Constitution could be repealed. This much is conceded by the learned Counsel for the respondents.
Therefore, in order to appreciate the real content of the expression "amendment of this
Constitution", in Article 368 I must look at the whole structure of the Constitution. The
Constitution opens with a preamble which reads:
WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all;
FRATERNITY assuring the dignity of the individual and the unity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this Twenty-sixth day of November,
1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION.
This Preamble, and indeed the Constitution, was drafted in the light and direction of the
Objective Resolutions adopted on January 22, 1947, which runs as follows:
(1) THIS CONSTITUENT ASSEMBLY declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution:
(2) wherein the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States, as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and
(3) wherein the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of autonomous units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in of assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and
(4) wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and
(5) wherein shall be guaranteed and secured to all people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and
(6) wherein adequate safeguards shall be provided for minorities backward and tribal areas, and depressed and other backward classes; and
(7) whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilized nations, and
(8) this ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind.
While moving the resolution for acceptance of the Objectives Resolution, Pandit Jawaharlal
Nehru said:
It seeks very feebly to tell the world of what we have thought or dreamt for so long, and what we now hope to achieve in the near future. It is in that spirit that I venture to place this Resolution before the House and it is in that spirit that I trust
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the House will receive it and ultimately pass it. And may I, Sir, also with all respect, suggest to you and to the House that, when the time comes for the passing of this Resolution let it be not done in the formal way by the raising of hands, but much more solemnly, by all of us standing up and thus taking this pledge anew.
I may here trace the history of the shaping of the Preamble because this would show that the
Preamble was in conformity with the Constitution as it was finally accepted. Not only was the
Constitution framed in the light of the Preamble but the Preamble was ultimately settled in the light of the Constitution. This appears from the following brief survey of the history of the framing of the Preamble extracted from the Framing of India 's Constitution by B. Shiva Rao. In the earliest draft the Preamble was something formal and read: "We, the people of India, seeking to promote the common good, do hereby, through our chosen representatives, enact, adopt and give to ourselves this Constitution. (Shiva Rao 's Framing of India 's Constitution, p. 127)
After the plan of June 3, 1947, which led to the decision to partition the country and to set up two independent Dominions of India and Pakistan, on June 8, 1947, a joint sub-committee of the
Union Constitution and Provincial Constitution Committees, took note that the objective resolution would require amendment in view of the latest announcement of the British Government. The announcement of June 3 had made it clear that full independence, in the form of Dominion Status, would be conferred on India as from August 15, 1947. After examining the implications of partition the sub-committee thought that the question of making changes in the Objectives
Resolution could appropriately be considered only when effect had actually been given to the June
3 Plan. (Special Sub-Committee minutes June 9, 1947). Later on July 12, 1947, the special subcommittee again postponed consideration of the matter. Select Documents II, 20(ii), p. 617. (Shiva
Rao, Framing of India 's Constitution, p. 127 footnote). The Union Constitution Committee provisionally accepted the Preamble as drafted by B.N. Rao and reproduced it in its report of July
4, 1947 without any change, with the tacit recognition at that stage that the Preamble would be finally based on the Objectives Resolution. In a statement circulated to members of the Assembly on July 18, 1947 Pandit Jawaharlal Nehru inter alia, observed that the Preamble was covered more or less by the Objectives Resolution which it was intended to incorporate in the final Constitution subject to some modification on account of the political changes resulting from partition. Three days later, moving the report of the Union Constitution Committee for the consideration of the
Assembly, he suggested that it was not necessary at that stage to consider the draft of the Preamble since the Assembly stood by the basic principles laid down in the Objectives Resolution and these could be incorporated in the Preamble in the light of the changed situation (Shiva Rao, Framing of India 's Constitution, pp. 127-128, also see footnote 1 p. 128). The suggestion was accepted by the Assembly and further consideration of the Preamble was held over.
We need not consider the intermediate drafts, but in the meantime the declaration (See
Constituent Assembly Debates, Vol. 8, page 2) was adopted at the end of April, 1949 by the
Government of the various Commonwealth countries and the resolution was ratified by
Constituent Assembly on May 17; 1949 after two days ' debate.
In the meantime the process of merger and integration of Indian States had been completed and Sardar Vallabhbhai Patel was able to tell the Constituent Assembly on October 12, 1949, that the new Constitution was "not an alliance between democracies and dynasties, but a real union of the Indian people, built on the basic concept of the sovereignty of the people (Shiva Rao, Framing of India 's Constitution, pp. 130-132).
The draft Preamble was considered by the Assembly on October 17, 1949. Shiva Rao observes that "the object of putting the Preamble last, the President of the Assembly explained, was to see that it was in conformity with the Constitution as accepted." Once the transfer of power had taken place the question of British Parliament 's subsequent approval which was visualised in the British
Cabinet Commission 's original plan of May 1946 could no longer arise. The sovereign character
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of the Constituent Assembly thus became automatic with the rapid march of events without any controversy, and the words in the Preamble "give to ourselves this Constitution" became appropriate. The Preamble was adopted by the Assembly without any alteration. Subsequently the words and figure "this twenty-sixth day of November 1949" were introduced in the last paragraph to indicate the date on which the Constitution was finally adopted by the Constituent Assembly.
Regarding the use which can be made of the preamble in interpreting an ordinary statute, there is no doubt that it cannot be used to modify the language if the language of the enactment is plain and clear. If the language is not plain and clear, then the preamble may have effect either to extend or restrict the language used in the body of an enactment. "If the language of the enactment is capable of more than one meaning then that one is to be preferred which comes nearest to the purpose and scope of the preamble." (See Tribhuban Parkash Nayyar v. Union of India [1970] 2
SCR 732)
We are, however, not concerned with the interpretation of an ordinary statute. As Sir Alladi
Krishnaswami, a most eminent lawyer said, "so far as the Preamble is concerned, though in an ordinary statute we do not attach any importance to the Preamble, all importance has to be attached to the Preamble in a Constitutional statute". (Constituent Assembly Debates, Vol. 10, p. 417). Our
Preamble outlines the objectives of the whole Constitution. It expresses what we had thought or dreamt for so long.
… It is urged in the written submission of Mr. Palkhivala that there is a distinction between the Indian Constitution Statute and the Constitution of India. He urges as follows:
This Constitution is the Constitution which follows the Preamble. It starts with
Article 1 and ended originally with the Eighth Schedule and now ends with the
Ninth Schedule after the First Amendment Act, 1951. The way the Preamble is drafted leaves no doubt that what follows, or is annexed to, the Preamble, is the
Constitution of India.
He has also urged that the Preamble came into force on November 26, 1949 alongwith Articles
5, 6, 7 etc. as provided in Article 394 because Articles 5, 6, 7 and the other Articles mentioned therein could hardly come into force without the enacting clause mentioned in the Preamble having come into force. He says that the Preamble is a part of the Constitution statute and not a part of the
Constitution but precedes it. There is something to be said for his contention but, in my view, it is not necessary to base my decision on this distinction as it is not necessary to decide in the present case whether Article 368 enables Parliament to amend the Preamble. Parliament has not as yet chosen to amend the Preamble.
The Preamble was used by this Court as an aid to construction in Behram Khurshed Pasikaka
v. State of Bombay 1955 Cri L.J. 215. After referring to Part III, Mahajan, C.J., observed:
We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefits, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of Constitutional policy.
… In Sajjan Singh v. State of Rajasthan [1965] 1 SCR 933 Mudholkar, J. after assuming that the Preamble is not a part of the Constitution, observed:
While considering this question it would be of relevance to bear in mind that the preamble is not of the common run such as is to be found in an Act of a legislature.
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It has the stamp of deep deliberation and is marked by precision. Would this not suggest that the framers of the Constitution attached special significance to it?
… It seems to me that the Preamble of our Constitution is of extreme importance and the
Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble.
… [Chief Justice Sikri now goes into a discussion of the various provisions of the Constitution in order to describe the scheme of the Constitution and notes that the Fundamental Rights were considered of such importance that the aggrieved were given the right to move directly to the Supreme Court for enforcement of those rights. He also notes that the Directive Principles were not made judicially enforceable and that the Constituent Assembly was keenly aware of this fact.] …
I may here mention that while our fundamental rights and directive principles were being fashioned and approved of by the Constituent Assembly, on December 10, 1948 the General
Assembly of the United Nations adopted a Universal Declaration of Human Rights. The
Declaration may not be a legally binding instrument but it shows how India understood the nature of Human Rights. …
Do rights remain inalienable if they can be amended out of existence? The Preamble Articles
1, 55, 56, 62, 68 and 76 of the United Nations Charter had provided the basis for the elaboration in the Universal Declaration of Human Rights. Although there is a sharp conflict of opinion whether respect for human dignity and fundamental human rights is obligatory under the Charter
(see Oppenheim 's International Law; 8th ed. Vol. 1, pp. 740-41; footnote 3), it seems to me that, in view of Article 51 of the directive principles, this Court must interpret language of the
Constitution, if not intractable, which is after all a municipal law, in the light of the United Nations
Charter and the solemn declaration subscribed to by India. …
… I may here notice some relevant facts which constitute the background of the process of drafting the Constitution. The British Parliament knowing the complexities of the structure of the
Indian people expressly provided in Section 6(6) of the Indian Independence Act, 1947, that "the powers referred to in Sub-section (1) of this section extends to the making of laws limiting for the future the powers of the legislature of the Dominion." Sub-section (1) of Section 6 reads:
The legislature of each of the new Dominions shall have full power to make laws for that Dominion, including laws having extraterritorial operation.
That Section 6(1) included making provision as to the Constitution of the Dominion is made clear by Section 8(1) which provided:
In the case of each of the new Dominions, the powers of legislature of the
Dominion shall for the purpose of making provision as to the Constitution of the
Dominion be exercisable in the first instance by the Constituent Assembly of that
Dominion, and references in this Act to the legislature of the Dominion shall be construed accordingly.
… These provisions of the Indian Independence Act amply demonstrate that when the
Constituent Assembly started functioning, it knew, if it acted under the Indian Independence Act, that it could limit the powers of the future Dominion Parliaments.
No similar provisions exists in any of the Independence Acts in respect of other countries, enacted by the British Parliament, e.g., Ceylon Independence Act, 1947, Ghana Independence Act,
1957, Federation of Malaya Independence Act, 1957, Nigeria Independence Act, 1960, Sierra
Leone Independence Act, 1961, Tanganyika Independence Act, 1961, Southern Rhodesia Act,
1965, Jamaica Independence Act, 1962.
I may mention that the aforesaid provisions in the Indian Independence Act were enacted in line with the Cabinet Statement dated May 16, 1947 and the position of the Congress Party. Para
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20 (See: Shiva Rao, Framing of India 's Constitution, Vol. I, p. 216) of the Statement by the Cabinet
Mission provided:
The Advisory Committee on the rights of citizens, minorities, and tribal and excluded areas should contain full representation of the interests affected, and their function will be to report to the Union Constituent Assembly upon the list of
Fundamental Rights, the clauses for the protection of minorities, and a scheme for the administration of the tribal and excluded areas, and to advise whether these rights should be incorporated in the Provincial, Group, or Union Constitution.
In clarifying this statement Sir Stafford Cripps at a Press Conference dated May 16, 1946 stated: But in order to give these minorities and particularly the smaller minorities like the Indian Christians and the Anglo-Indians and also the tribal representatives a better opportunity of influencing minority provisions, we have made provision for the setting up by the Constitution-making body of an influential advisory
Commission which will take the initiative in the preparation of the list of fundamental rights, the minority protection clauses and the proposals for the administration of tribal and excluded areas. This Commission will make its recommendations to the Constitution making body and will also suggest at which stage or stages in the Constitution these provisions should be inserted, that is whether in the Union, Group or Provincial Constitutions or in any two or more of them. (P. 224, Supra).
In the letter dated May 20, 1946, from Maulana Abul Kalam Azad to the Secretary of State, it is stated:
The principal point, however, is, as stated above, that we look upon this
Constituent Assembly as a sovereign body which can decide as it chooses in regard to any matter before it and can give effect to its decisions. The only limitation, we recognise is that in regard to certain major communal issues the decision should be by a majority of each of the two major communities. (P. 251,
Supra).
In his reply dated May 22, 1946, the Secretary of State observed:
When the Constituent Assembly has completed its labours, His Majesty 's
Government will recommend to Parliament such action as may be necessary for the cession of sovereignty to the Indian people, subject only to two provisos which are mentioned in the statement and which are not, we believe, controversial, namely, adequate provision for the protection of minorities and willingness to conclude a treaty to cover matters arising out of the transfer of power.
In the Explanatory statement dated May 22, 1946, it was again reiterated as follows:
When the Constituent Assembly has completed its labours, His Majesty 's
Government will recommend to Parliament such action as may be necessary for the cession of sovereignty to the Indian people, subject only to two matters which are mentioned in the statement and which, we believe are not controversial, namely, adequate provision for the protection of the minorities (paragraph 20 of the statement) and willingness to conclude a treaty with His Majesty 's
Government to cover matters arising out of the transfer of power (paragraph 22 of the statement) (P. 258, Supra).
In pursuance of the above, a resolution for the setting up of an Advisory Committee on fundamental rights was moved by Govind Ballabh Pant in the Constituent Assembly on January
24, 1947. He laid special importance on the issue of minorities. The Advisory Committee met on
February 27, 1947 to constitute various sub-committees including the Minorities Sub-Committee.
The Sub-Committee on Minorities met later the same day. A questionnaire was drafted to enquire about political, economic, religious, educational and cultural safeguards. In other words all these safeguards were considered.
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Divergent views were expressed, and the Minorities Sub-Committee met on April 17, 18 and
19, 1947 to consider this important matter. At these meetings the sub-committee considered the interim proposals of the fundamental rights Sub-Committee in so far as these had a bearing on minority rights. These discussions covered such important matters as the prohibition of discrimination on grounds of race, religion, caste, etc.; the abolition of untouchability and the mandatory requirements that the enforcement of any disability arising out of untouchability should be made an offence punishable according to law; freedom to profess, practise and propagate one 's religion; the right to establish and maintain institutions for religious and charitable purposes; the right to be governed by one 's personal, law; the right to use one 's mother-tongue and establish denominational communal or language schools etc.
Having dealt with the question of fundamental rights for minorities, the Minorities SubCommittee met again on July 21, 1947, to consider the political safeguards for minorities and their presentation in the public services.
In forwarding the report of the Advisory Committee on the subject of Minority Rights, Sardar
Vallabhbhai Patel, in his report dated August 8, 1947, said:
… It should be treated as supplementary to the one forwarded to you with my letter No. CA/24/Com./47, dated the 23rd April 1947 and dealt with by the
Assembly during the April session. That report dealt with justiciable fundamental rights; these rights, whether applicable to all citizens generally or to members of minority communities in particular offer a most valuable safeguard for minorities over a comprehensive field of social life. The present report deals with what may broadly be described as political safeguards of minorities and covers the following points: (i) Representation in Legislature; joint versus separate electorates; and weightage.
(ii) Reservation of seats for minorities in Cabinets.
(iii) Reservation for minorities in the public services.
(iv) Administrative machinery to ensure protection of minority rights.
Sardar Patel, while moving the report for consideration on August 27, 1947, said:
You will remember that we passed the Fundamental Rights Committee 's Report which was sent by the Advisory Committee; the major part of those rights has been disposed of and accepted by this House. They cover a very wide range of the rights of minorities which give them ample protection; and yet there are certain political safeguards which have got to be specifically considered. An attempt has been made in this report to enumerate those safeguards which are matters of common knowledge, such as representation in legislatures, that is, joint versus separate electorate.
The above proceedings show that the minorities were particularly concerned with the fundamental rights which were the subject-matter of discussion by the Fundamental Rights
Committee.
The above brief summary of the work of the Advisory Committee and the Minorities SubCommittee shows that no one ever contemplated that fundamental rights appertaining to the minorities would be liable to be abrogated by an amendment of the Constitution. The same is true about the proceedings in the Constituent Assembly. There is no hint anywhere that abrogation of minorities rights was ever in the contemplation of the important members of the Constituent
Assembly. It seems to me that in the context of the British Plan, the setting up of Minorities SubCommittee, the Advisory Committee and the proceedings of these Committees, as well as the proceedings in the Constituent Assembly mentioned above, it is impossible to read the expression
"Amendment of the Constitution" as empowering Parliament to abrogate the rights of minorities.
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Both sides relied on the speeches made in the Constituent Assembly. It is, however, a sound rule of construction that speeches made by members of a legislature in the course of debates relating to the enactment of a statute cannot be used as aids for interpreting any of provisions of the statute. The same rule has been applied to the provisions of this Constitution by this Court in
State of Travancore-Cochin v. Bombay Co. Ltd. [1952] 1 SCR 1112. … In Golak Nath Subba Rao,
C.J., referred to certain portions of the speeches made by Pandit Nehru and Dr. Ambedkar but he made it clear at p. 792 that he referred to these speeches “not with a view to interpret the provisions of Article 368, which we propose to do on its own terms, but only to notice the transcendental character given to the fundamental rights by two of the important architects of the Constitution.”
… There is an additional reason for not referring to debates for the purpose of interpretation.
The Constitution, as far as most of the Indian States were concerned, came into operation only because of the acceptance by the Ruler or Rajpramukh. … [D]eclarations were issued by the Rulers or Rajpramukhs accepting the Constitution. It seems to me that when a Ruler or Rajpramukh or the people of the State accepted the Constitution of India in its final form, he did not accept it subject to the speeches made during the Constituent Assembly debates. The speeches can, in my view, be relied on only in order to see if the course of the progress of a particular provision or provisions throws any light on the historical background or shows that a common understanding or agreement was arrived at between certain sections of the people. …
In this connection reference was made to Article 305 of the draft Constitution which provided that notwithstanding anything contained in Article 304 of the Constitution, the provisions of the
Constitution relating to the reservation of seats for the Muslims etc., shall not be amended during the period of ten years from the commencement of the Constitution. Although this draft Article
305 has no counterpart in our Constitution, it was sought to be urged that this showed that every provision of the Constitution was liable to be amended. I have come to the conclusion that every provision is liable to be amended subject to certain limitations and this argument does not affect my conclusion as to implied limitations.
A very important decision of the Judicial Committee of the Privy Council in Bribery
Commissioner v. P. Ranasinghe [1965] A.C. 172 throws considerable light on the topic under discussion. The import of this decision was not realised by this Court in Golak Nath. Indeed, it is not referred to by the minority in its judgments, and Subba Rao, C.J., makes only a passing reference to it. In order to fully appreciate the decision of the Privy Council it is necessary to set out the relevant provisions of the Ceylon Independence Order in Council, 1947, hereinafter referred to as the ‘Ceylon Constitution’.
Part III of the Ceylon Constitution deals with "Legislature". Section 7 provides that "there shall be a Parliament of the Island which shall consist of His Majesty, and two Chambers to be known respectively as the Senate and the House of Representatives.
… Section 29 deals with the power of Parliament to make laws. It reads:
29(1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island.
(2) No such law shall(a) prohibit or restrict the free exercise of any religion, or
(b) make persons of any community or religion liable to disabilities or restrictions to which persons or other communities or religions are not made liable; or
(c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions; or
(d) alter the Constitution of any religious body except with the consent of the governing authority of that body. So, however, that in any case where a religious
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body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body.
Provided, however, that the preceding provisions of this subsection shall not apply to any law making provision for, relating to, or connected with the, election of
Members of the House of Representatives, to represent persons registered as citizens of Ceylon under the Indian & Pakistani Residents (Citizenship Act).
This proviso shall cease to have effect on a date to be fixed by the GovernorGeneral by Proclamation published in the Gazette.
(3) Any law made in contravention of Sub-section (2) of this section shall, to the extent of such contravention, be void.
(4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island:
Provided that no Bill for the amendment or repeal of any of the Provisions of this
Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than twothirds of the whole number of members of the House (including those not present).
Every certificate of the Speaker under this sub-section shall be conclusive for all purposes and shall not be questioned in any court of law.
According to Mr. Palkhivala, Section 29(1) corresponds to Articles 245 and 246, and Section
29(4) corresponds to Article 368 of our Constitution, and Sections 29(2) and 29(3) correspond to
Article 13(2) of our Constitution, read with fundamental rights.
The question which arose before the Judicial Committee of the Privy Council was whether
Section 41 of the Bribery Amendment Act, 1958 contravened Section 29(4) of the Ceylon
Constitution, and was consequently invalid. The question arose out of the following facts. The respondent, Ranasinghe, was prosecuted for a bribery offence before the Bribery Tribunal created by the Bribery Amendment Act, 1958. The Tribunal sentenced him to a term of imprisonment and fine. The Supreme Court on appeal declared the conviction and orders made against him null and inoperative on the ground that the persons composing the Tribunal were not validly appointed to the Tribunal.
Section 52 of the Ceylon Constitution provided for the appointment of the Chief Justice and
Puisne Judges of the Supreme Court. Section 53 dealt with the setting up of the Judicial Service
Commission, consisting of the Chief Justice, a Judge of the Supreme Court, and one other person who shall be, or shall have been, a Judge of the Supreme Court. It further provided that no person shall be appointed as, or shall remain, a member of the Judicial Service Commission, if he is
Senator or a Member of Parliament. Section 55 provided for the appointment of other Judicial
Officers. Section 55(1) reads:
55. (1) The appointment, transfer, dismissal and disciplinary control of judicial officers is hereby vested in the Judicial Service Commission.
The Judicial Committee deduced from these provisions thus:
Thus there is secured a freedom from political control, and it is a punishable offence to attempt directly or indirectly to influence any decision of the
Commission (Section 56).
The Judicial Committee then described the position of the Bribery Tribunal as follows:
A bribery tribunal, of which there may be any number, is composed of three members selected from a panel (Section 42). The panel is composed of not more than 15 persons who are appointed by the Governor-General on the advice of the
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Minister of Justice (Section 41). The members of the panel are paid remuneration
(Section 45).
The Judicial Committee held that the members of the Tribunal held judicial office and were judicial officers within Section 55 of the Ceylon Constitution. They found that there was a plain conflict between Section 55 of the Constitution and Section 41 of the Bribery Amendment Act under which the panel was appointed.
Then the Judicial Committee examined the effect of this conflict. After setting out Section 18,
Section 29(1) and Section 29(2)(a), the Judicial Committee observed:
There follow (b), (c) and (d), which set out further entrenched religious and racial matters, which shall not be the subject of legislation. They represent the solemn balance of rights, between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution; and these are, therefore unalterable under the Constitution.
After making these observations, the Judicial Committee set out Sub-sections (3) and (4) of
Section 29 of the Ceylon Constitution. The observations, which I have set out above, are strongly relied on by Mr. Palkhivala in support of his argument that Part III similarly entrenched various religious and racial and other matters and these represented solemn balance of rights between the citizens of India, the fundamental conditions on which inter se they accepted the Constitution of
India and these are, therefore, unalterable under the Constitution of India.
Mr. Seervai, in reply, submitted that the word "entrenched" meant nothing else that than these provisions were subject to be amended only by the procedure prescribed in Section 29(4) of the
Ceylon Constitution. But I am unable to accept this interpretation because in that sense other provisions of the Constitution were equally entrenched because no provision of the Ceylon
Constitution could be amended without following the procedure laid down in Section 29(4).
The interpretation urged by Mr. Palkhivala derives support in the manner the Judicial
Committee distinguished McCawley 's case [1920] A.C. 691 (McCawley v. King). I may set out here the observations of the Judicial Committee regarding McCawley. They observed:
It is possible now to state summarily what is the essential difference between the
McCawley case (supra) and this case. There the legislature, having full power to make laws by a majority, except upon one subject that was not in question, passed a law which conflicted with one of the existing terms of its Constitution Act. It was held that this was valid legislation, since it must be treated as pro tanto an alteration of the Constitution, which was neither fundamental in the sense of being beyond change nor so constructed as to require any special legislative process to pass upon the topic dealt with.
It is rightly urged that the expression "which was neither fundamental in the sense of being beyond change" has reference to Section 29(2) of the Ceylon Constitution. I have no doubt that the Judicial Committee held that the provisions of Section 29(2) in the Ceylon Constitution were unamendable. I may mention that Prof. S A de Smith in reviewing the book "Reflections on the
Constitution and the Constituent Assembly (Ceylon 's Constitution)" by L.J.M. Cooray, reads the obiter dicta in Bribery Commissioner v. Ranasinghe [1965] A.C. 172 indicating that certain provisions of the Constitution were unalterable by the prescribed amending procedure.
It may be that these observations are obiter but these deserve our careful consideration, coming as they do from the Judicial Committee.
Why did the Judicial Committee say that the provisions of Section 29(2) were "unalterable under the Constitution" or "fundamental in the sense of being beyond change"? There is nothing in the language of Section 29(4) to indicate any limitations on the power of the Ceylon Parliament.
It could "amend or repeal" any provision of the Constitution, which included Section 29(2) and
Section 29(4) itself. The reason could only be an implied limitation on the power to amend under
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Section 29(4) deducible from "the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution". Unless there was implied a limitation on the exercise of the amending power under Section 29(4), Section 29(4) could itself be amended to make it clear that Section 29(2) is amendable.
This case furnishes an exact example where implied limitations on the power to amend the
Constitution have been inferred by no less a body than the Judicial Committee of the Privy Council.
… I may mention that the Judicial Committee while interpreting the British North America
Act, 1867 had also kept in mind the preservation of the rights of minorities for they say In re The
Regulation and Control of Aeronautics in Canada [1933] A.C. 54:
Inasmuch as the Act (British North America Act) embodies a compromise under which the original Provinces agreed to federate, it is important to keep in mind that the preservation of the rights of minorities was a condition on which such minorities entered into the federation, and the foundation upon which the whole structure was subsequently erected. The process of interpretation as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction of the Provisions of Sections 91 and 92 should impose a new and different contract upon the federating bodies.
The words of the Judicial Committee in Ranasinghe, are apposite and pregnant. “They represent the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution and these are, therefore unalterable under the
Constitution.” It is true that the Judicial Committee in the context of minorities and religious rights in Ceylon used the word “unalterable”. But the India context is slightly different. The guarantee of fundamental rights extends to numerous rights and it could not have been intended that all of them would remain completely unalterable even if Article 13(2) of the Constitution be taken to include Constitutional amendments. A more reasonable inference to be drawn from the whole scheme of the Constitution is that some other meaning of “Amendment” is most appropriate. This conclusion is also reinforced by the concession of the Attorney-General and Mr. Seervai that the whole Constitution cannot be abrogated or repealed and a new one substituted. In other words, the expression “Amendment of this Constitution” does not include a revision of the whole
Constitution. If this is true – I say that the concession was rightly made – then which is that meaning of the word “Amendment” that is most appropriate and fits in with the while scheme of the Constitution. In my view that meaning would be appropriate which would enable the country to achieve a social and economic revolution without destroying the democratic structure of the
Constitution and the basic inalienable rights guaranteed in Part III and without going outside the contours delineated in the Preamble.
I come to the same conclusion by another line of reasoning. In a written Constitution it is rarely that everything is said expressly. Powers and limitations are implied from necessity or the scheme of the Constitution. …
… What is the necessary implication from all the provisions of the Constitution?
It seems to me that reading the Preamble, the fundamental importance of the freedom of the individual, indeed its inalienability, and the importance of the economic, social and political justice mentioned in the Preamble, the importance of directive principles, the non-inclusion in Article 368 of provisions like Articles 52, 53 and various other provisions to which reference has already been made an irresistible conclusion emerges that it was not the intention to use the word "amendment" in the widest sense.
It was the common understanding that fundamental rights would remain in substance as they are and they would not be amended out of existence. It seems also to have been a common
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understanding that the fundamental features of the Constitution, namely, secularism, democracy and the freedom of the individual would always subsist in the welfare state.
In view of the above reasons, a necessary implication arises that there are implied limitations on the power of Parliament that the expression “amendment of this Constitution” has consequently a limited meaning in our Constitution and not the meaning suggested by the respondents.
This conclusion is reinforced if I consider the consequences of the contentions of both sides.
The respondents, who appeal fervently to democratic principles, urge that there is ho limit to the powers of Parliament to amend the Constitution. Article 368 can itself be amended to make the
Constitution completely flexible or extremely rigid and unamendable. If this is so, a political party with a two-third majority in Parliament for a few years could so amend the Constitution as to debar any other party from functioning, establish totalitarianism, enslave the people, and after having effected these purposes make the Constitution unamendable or extremely rigid. This would no doubt invite extra-Constitutional revolution. Therefore, the appeal by the respondents to democratic principles and the necessity of having absolute amending power to prevent a revolution to buttress their contention is rather fruitless, because if their contention is accepted the very democratic principles, which they appeal to, would disappear and a revolution would also become a possibility.
However, if the meaning I have suggested is accepted a social and economic revolution can gradually take place while preserving the freedom and dignity of every citizen.
For the aforesaid reasons, I am driven to the conclusion that the expression “amendment of this Constitution” in Article 368 means any addition or change in any of the provisions of the
Constitution within the broad contours of the Preamble and the Constitution to carry out the objectives in the Preamble and the Directive Principles. Applied to fundamental rights, it would mean that, while fundamental rights cannot be abrogated reasonable abridgements of fundamental rights can be effected in the public interest.
It is of course for Parliament to decide whether an amendment is necessary. The Courts will not be concerned with wisdom of the amendment.
If this meaning is given it would enable Parliament to adjust fundamental rights in order to secure what the Directive Principles direct to be accomplished, while maintaining the freedom and dignity of every citizen.
It is urged by Mr. Seervai that we would be laying down a very unsatisfactory test which it would be difficult for the Parliament to comprehend and follow. He said that the Constitutionmakers had discarded the concept of “due process” in order to have something certain, and they substituted the words “by authority of law” in Article 21. I am unable to see what bearing the dropping of the words “due process” has on this question. The Constitution itself has used words like “reasonable restrictions” in Article 19 which do not bear an exact meaning, and which cannot be defined with precision to fit in all cases that may come before the courts; it would depend upon the facts of each case whether the restrictions imposed by the Legislature are reasonable or not.
It seems to me that the concept of amendment within the contours of the Preamble and the
Constitution cannot be said to be a vague and unsatisfactory idea which Parliamentarians and the public would not be able to understand.
The learned Attorney-General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the
Constitution can be amended provided in the result the basic foundation and structure of the
Constitution remains the same. The basic structure may be said to consist of the following features:
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(1) Supremacy of the Constitution;
(2) Republican and Democratic form of Government.
(3) Secular character of the Constitution;
(4) Separation of powers between the Legislature, the executive and the judiciary;
(5) Federal character of the Constitution.
The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.
The above foundation and the above basic features are easily discernible not only from the preamble but the whole scheme of the Constitution, which I have already discussed.
In connection with the question of abrogation of fundamental rights, Mr. Seervai boldly asserted that there was no such thing as natural or inalienable rights because the scheme of Part III itself shows that non-citizens have not been given all the fundamental freedoms; for example,
Article 19 speaks of only citizens. He says that if there were natural rights, why is it that they were not conferred on non-citizens. The answer seems to be that they are natural rights but our country does not think it expedient to confer these fundamental rights, mentioned in Article 19, on noncitizens. Other rights have been conferred on non-citizens because the Constitution-makers thought that it would not be detrimental to the interests of the country to do so.
He then said that even as far as citizens are concerned, there is power to modify those rights under Article 33 of the Constitution, which enables Parliament to modify rights in their application to the Armed Forces. This power has been reserved in order to maintain discipline among the armed forces, which is essential for the security of the country. But it does not mean that the rights cease to be natural or human rights. He then said that similarly Article 34 restricts fundamental rights while martial law is in force in any area. This again is a case where the security of the country is the main consideration. Citizens have to undergo many restrictions in the interest of the country.
He then pointed out Articles 358 and 359 where certain rights are suspended during
Emergency. These provisions are again based on the security of the country.
He also relied on the words “rights conferred” in Article 13(2) and “enforcement of any rights conferred by this Part” to show that they were not natural or inalienable and could not have been claimed by them. There is no question of the sovereign people claiming them from an outside agency. The people acting through the Constituent Assembly desired that the rights mentioned in
Part III shall be guaranteed and, therefore, Part III was enacted. In the context ‘conferred’ does not mean that some superior power had granted these rights. It is very much like a King bestowing the title of ‘His Imperial Majesty’ on himself.
I am unable to hold that these provisions show that some rights are not natural or inalienable rights. As a matter of fact, India was a party to the Universal Declaration of Rights which I have already referred to and that Declaration describes some fundamental rights as inalienable.
PART IV – Validity of 24th Amendment
Now I may deal with the question whether the Constitution (Twenty-Fourth Amendment) Act,
1971 is valid. It reads thus:
(2) In Article 13 of the Constitution, after Clause (3), the following clause shall be inserted, namely:
(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.
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(3) Article 368 of the Constitution shall be re-numbered as Clause (2) thereof, and(a) for the marginal heading to that article, the following marginal heading shall be substituted, namely:
Power of Parliament to amend the Constitution and procedure therefore;
(b) before Clause (2) as so re-numbered, the following clause shall be inserted, namely: (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article;
(c) in Clause (2) as so re-numbered, for the words "it shall be presented to the
President for his ascent and upon such assent being given to the Bill", the words
"it shall be presented to the President who shall give his attest to the Bill and thereupon" shall be substituted;
(d) after Clause (2) as so re-numbered, the following shall be inserted, namely:
(3) Nothing in Article 13 shall apply to any amendment made under this article.
According to the petitioner, the 24th Amendment has sought to achieve five results: (i) It has inserted an express provision in Article 368 to indicate that the source of the amending power will be found in that Article itself; (ii) It has made it obligatory on the President to give his assent to any Bill duly passed under that Article; (iii) It has substituted the words "amend by way of addition, variation or repeal" in place of the bare concept of "amendment" in the Article 368; (iv) It makes explicit that when Parliament makes a Constitutional amendment under Article 368 it acts "in exercise of its constituent power; (v) It has expressly provided, by amendments in Article 13 and
368, that the bar in Article 13 against abridging or taking away any of the fundamental rights should not apply to any amendment made under Article 368.
Mr. Palkhivala did not dispute that the amendments covered by (i) and (ii) above were within the amending power of Parliament. I do not find it necessary to go into the question whether Subba
Rao, C.J., rightly decided that the amending power was in List I entry 97, or Article 248, because nothing turns on it now.
Mr. Palkhivala rightly conceded that Parliament could validly amend Article 368 to transfer the source of amending power from List I entry 97 to Article 368.
Mr. Palkhivala however contended that "if the amendments covered by (iii) and (iv) above are construed as empowering Parliament to exercise the full constituent power of, the people themselves, and as vesting in Parliament the ultimate legal sovereignty of the people, and as authorising Parliament to alter or destroy all or any of the essential features, basic elements and fundamental principles of the Constitution (hereinafter referred to “essential features”), the amendments must be held, to be illegal and void. He further urges that "if the amendment covered by (v) is construed as authorising Parliament to damage or destroy the essence of all or any of the fundamental rights, the amendment must be held to be illegal and void."
He says that the 24th Amendment is void and illegal for the following reasons: A creature of the Constitution, as the Parliament is, can have only such amending power as is conferred by the
Constitution which is given by the people unto themselves. While purporting to exercise that amending power, Parliament cannot increase that very power. No doubt, Parliament had the power to amend Article 368 itself, but that does not mean that Parliament could so amend Article 368 as to change its own amending power beyond recognition. A creature of the Constitution cannot enlarge its own power over the Constitution, while purporting to act under it, any more than the creature of an ordinary law can enlarge its own power while purporting to act under that law. The power of amendment cannot possibly embrace the power to enlarge that very power of amendment,
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or to abrogate the limitations, inherent or implied, in the terms on which the power was conferred.
The contrary view would reduce the whole principle of inherent and implied limitations to an absurdity. It is contended on behalf of the respondents that the 24th Amendment does enlarge the power of Parliament to amend the Constitution, if Golak Nath limited it, and as Article 368 clearly contemplates amendment of Article 368 itself, Parliament can confer additional powers of amendment on it.
… It seems to me that it is not legitimate to interpret Article 368 in this manner. Clause (e) of the proviso does not give any different power than what is contained in the main article. The meaning of the expression “Amendment of the Constitution” does not change when one reads the proviso. If the meaning is the same, Article 368 can only be amended so as not to change its identity completely. Parliament, for instance, could not make the Constitution uncontrolled by changing the prescribed two third majority to simple majority. Similarly it cannot get rid of the true meaning of the expression “Amendment of the Constitution” so as to derive power to abrogate fundamental rights. If the words "notwithstanding anything in the Constitution" are designed to widen the meaning of the word "Amendment of the Constitution" it would have to be held void as beyond the amending power. But I do not read these to mean this. They have effect to get rid of the argument that Article 248 and Entry 97 List I contains the power of amendment. Similarly, the insertion of the words "in exercise of its constituent power" only serves to exclude Article 248 and Entry 97
List I and emphasize that it is not ordinary legislative power that Parliament is exercising under
Article 368 but legislative power of amending the Constitution.
It was said that if Parliament cannot increase its power of amendment Clause (d) of Section 3 of the 24th Amendment which makes Article 13 inapplicable to an amendment of the Constitution would be bad. I see no force in this contention. Article 13(2) as existing previous to the 24th
Amendment as interpreted by the majority in Golak Nath case prevented legislatures from taking away or abridging the rights conferred by Article 13. In other words, any law which abridged a fundamental right even to a small extent was liable to be struck down under Article 368 Parliament can amend every article of the Constitution as long as the result is within the limits already laid down by me. The amendment of Article 13(2) does not go beyond the limits laid down because
Parliament cannot even after the amendment abrogate or authorise abrogation or the taking away of fundamental rights. After the amendment now a law which has the effect of merely abridging a right while remaining within the limits laid down would not be liable to be struck down.
In the result, in my opinion, the 24th Amendment as interpreted by me is valid.
PART V – Validity of Section 2 of the Constitution (Twenty-fifth Amendment) Act, 1971.
Section 2 of the Constitution (Twenty-fifth Amendment) Act, 1971 enacted as follows:
(a) for Clause (2), the following clause shall be substituted, namely:
(2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquisition or requisitioning of the property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law; and no such law shall be called in question in any court on the ground that the amount so fixed or determined is not adequate or that the whole or any part of such amount is to be given otherwise than in cash:
Provided that in making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority,
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referred to in Clause (1) of Article 30, the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
(b) after Clause (2A), the following clause shall be inserted, namely:
(2B) Nothing in Sub-clause (f) of Clause (1) of Article 19 shall affect any such law as is referred to in Clause (2).
There cannot be any doubt that the object of the amendment is to modify the decision given by this Court in Rustom Cavasjee Cooper v. Union of India, [1970] 3 SCR 530 where it was held by ten Judges that the Banking Companies (Acquisition and Transfer of Undertakings) Act violated the guarantee of compensation under Article 31(2) in that it provided for giving certain amounts determined according to principles which were not relevant in the determination of compensation of the undertaking of the named Banks and by the method prescribed the amounts so declared could not be regarded as compensation.
If we compare Article 31(2) as it stood before and after the 25th Amendment, the following changes seem to have been effected. Whereas before the amendment, Article 31(2) required the law providing for acquisition to make provision for compensation by either fixing the amount of compensation or specifying the principles on which and the manner in which the compensation should be determined after the amendment Article 31(2) requires such a law to provide for an
"amount" which may be fixed by the law providing for acquisition or requisitioning or which may be determined in accordance with such principles and given in such manner as may be specified in such law. In other words, for the idea that compensation should be given, now the idea is that an "amount" should be given. This amount can be fixed directly by law or may be determined in accordance with such principles as may be specified.
It is very difficult to comprehend the exact meaning which can be ascribed to the word
"amount". In this context, it is true that it is being used in lieu of compensation, but the word
"amount" is not a legal concept as "compensation" is.
… Let us then see if the other part of the article throws any light on the word "amount". The article postulates that in some cases principles may be laid down for determining the amount and these principles may lead to an adequate amount or an inadequate amount. So this show that the word "amount" here means something to be given in lieu of the property to be acquired but this amount has to and can be worked out by laying down certain principles. These principles must then have a reasonable relationship to the property which is sought to be acquired, if this is so, the amount ultimately arrived at by applying the principles must have some reasonable relationship with the property to be acquired; otherwise the principles of the Act could hardly be principles within the meaning of Article 31(2).
If this meaning is given to the word "amount" namely, that the amount given in cash or otherwise is of such a nature that it has been worked out in accordance with the principles which have relationship to the property to be acquired, the question arises : what meaning is to be given, to the expression "the amount so fixed". The amount has to be fixed by law but the amount so fixed by law must also be fixed in accordance with some principles because it could not have been intended that if the amount is fixed by law, the legislature would fix the amount arbitrarily. It could not, for example, fix the amount by a lottery.
Law is enacted by passing a bill which is introduced. The Constitution and legislative procedure contemplate that there would be discussion, and in debate, the Government spokesman in the legislature would be able to justify the amount which has been fixed. Suppose an amendment is moved to the amount fixed. How would the debate proceed? Can the Minister say-"This amount is fixed as it is the government 's wish." Obviously not. Therefore, it follows that the amount, if
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fixed by the legislature, has also to be fixed according to some principles. These principles cannot be different from the principles which the legislature would lay down.
In this connection it must be borne in mind that Article 31(2) is still a fundamental right. Then, what is the change that has been brought about by the amendment? It is no doubt that a change was intended, it seems to me that the change effected is that a person whose property is acquired can no longer claim full compensation or just compensation but he can still claim that the law should lay down principles to determine the amount which he is to get and these principles must have a rational relation to the property sought to be acquired. If the law were to lay down a principle that the amount to be paid in lieu of a brick of gold acquired shall be the same as the market value of an ordinary brick or a brick of silver it could not be held to be a principle at all. Similarly if it is demonstrated that the amount that has been fixed for the brick of gold is the current value of an ordinary brick or a brick of silver the amount fixed would be illegal.
If I were to interpret Article 31(2) as meaning that even an arbitrary or illusory or a grossly low amount could be given which would shock not only the judicial conscience but the conscience of every reasonable human being, a serious question would arise whether Parliament has not exceeded its amending power under Article 368 of the Constitution. The substance of the fundamental right to property, under Article 31, consists of three things: one, the property shall be acquired by or under a valid law; secondly, it shall be acquired only for a public purpose; and, thirdly, the person whose property has been acquired shall be given an amount in lieu thereof, which, as I have already said, is not arbitrary, illusory or shocking to the judicial conscience or the conscience of mankind. I have already held that Parliament has no power under Article 368 to abrogate the fundamental rights but can amend or regulate or adjust them in its exercise of amending powers without destroying them. Applying this to the fundamental right of property,
Parliament cannot empower legislatures to fix an arbitrary amount or illusory amount or an amount that virtually amounts to confiscation, taking all the relevant circumstances of the acquisition into consideration. Same considerations apply to the manner of payment. I cannot interpret this to mean that an arbitrary manner of payment is contemplated. To give an extreme example, if an amount is determined or fixed at Rs. 10,000 a legislature cannot lay down that payment will be made at the rate of Rs. 10 per year or Rs. 10 per month.
… Although I am unable to appreciate the wisdom of inserting Clause (2B) in Article 31, the effect of which is to make Article 19(1)(f) inapplicable, I cannot say that it is an unreasonable abridgement of rights under Article 19(1)(f). While passing a law fixing principles, the legislatures are bound to provide a procedure for the determination of the amount, and if the procedure is arbitrary that provision may well be struck down under Article 14.
In view of the interpretation which I have placed on the new Article 31(2), as amended, it cannot be said that Parliament has exceeded its amending power under Article 368 in enacting the new Article 31(2).
For the reasons aforesaid I hold that Section 2 of the Constitution (Twenty-fifth Amendment)
Act, 1971, as interpreted by me, valid.
PART VI – Validity of Section 3 of the Constitution (Twenty-Fifth Amendment) Act, 1971.
Section 3 of the twenty-fifth amendment, reads thus:
3. After Article 31B of the Constitution, the following article shall be inserted, namely: 31. C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in Clause (b) or
Clause (c) of Article 39 shall be deemed to be void on the ground that it is
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inconsistent with, or takes away or abridges any of the rights conferred by Article
14, Article 19 or Article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy:
Provided that where such law is made by the legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.
It will be noted that Article 31C opens with the expression “notwithstanding anything contained in Article 13”. This however cannot mean that not only fundamental rights like Article
19(1)(f) or Article 31 are excluded but all fundamental rights belonging to the minorities and religious groups are also excluded. The article purports to save laws which a State may make towards securing the principles specified in Clauses (b) or (c) of Article 39 from being challenged on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by
Articles 14, 19 or 31. This is the only ground on which they cannot be challenged. It will be noticed that the article provides that if the law contains a declaration that it is for giving effect to such policy, it shall not be called in question in any court on the ground that it does not give effect to such policy. In other words, once a declaration is given, no court can question the law on the ground that it has nothing to do with giving effect to the policy; whether it gives effect to some other policy is irrelevant. Further, a law may contain some provisions dealing with the principles specified in Clauses (b) or (c) of Article 39 while other sections may have nothing to do with it, yet on the language it denies any court power or jurisdiction to go into this question.
In the face of the declaration, this Court would be unable to test the validity of incidental provisions which do not constitute an essential and integral part of the policy directed to give effect to Article 39(b) and Article 39(c).
… According to Mr. Palkhivala, Article 31C has four features of totalitarianism: (1) There is no equality. The ruling party could favour its own party members, (2) There need not be any freedom of speech, (3) There need be no personal liberty which is covered by Article 19(1)(b), and
(4) The property will be at the mercy of the State. In other words, confiscation of property of an individual would be permissible.
It seems to me that in effect, Article 31C enables States to adopt any policy they like and abrogate Articles 14, 19 and 31 of the Constitution at will. In other words, it enables the State to amend the Constitution. Article 14, for instance, would be limited by the State according to its policy and not the policy of the amending body, i.e., the Parliament, and so would be Articles 19 and 31, while these fundamental rights remain in the Constitution. It was urged that when an Act of Parliament or a State Legislature delegates a legislative power within permissible limits the delegated legislation derives its authority from the Act of Parliament. It was suggested that similarly the State law would derive authority from Article 31C. It is true that the State law would derive authority from Article 31C but the difference between delegated legislation and the State law made under Article 31C is this: It is permissible, within limits, for a legislature to delegate its functions, and for the delegate to make law. Further the delegated legislation would be liable to be challenged on the ground of violation of fundamental rights regardless of the validity of the State
Act. But a State legislature cannot be authorised to amend the Constitution and the State law deriving authority from Article 31C cannot be challenged on the ground that it infringes Articles
14, 19 and 31.
It will be recalled that Article 19 deals not only With the right to property but it guarantees various rights: freedom of speech and expression; right to assemble peaceably and without arms; right to form associations or unions; right to move freely throughout the territory of India; right to practice any profession or to carry on any occupation, trade or business. I am unable to appreciate the reason for giving such powers to the State legislature to abrogate the above freedoms. In effect,
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Parliament is enabling State legislatures to declare that "a citizen shall not be free; he will have no freedom of speech to criticise the policy of the State; he shall not assemble to protest against the policy; he shall be confined to a town or a district and shall not move outside his State; a resident of another state shall not enter the State which is legislating; he shall not, if a lawyer, defend people who have violated the law. It could indeed enable legislatures to apply one law to political opponents of the ruling party and leave members of the party outside the purview of the law. In short, it enables a State Legislature to set up complete totalitarianism in the State. It seems that its implications were not realised by Parliament though Mr. Palkhiwala submits that every implication was deliberately intended.
I have no doubt that the State legislatures and Parliament in its ordinary legislative capacity will not exercise this new power conferred on them fully but I am concerned with the amplitude of the power conferred by Article 31C and not with what the legislatures may or may not do under the powers so conferred.
I have already held that Parliament cannot under Article 368 abrogate fundamental rights.
Parliament equally cannot enable the legislatures to abrogate them. This provision thus enables legislatures to abrogate fundamental rights and therefore must be declared unconstitutional.
It has been urged before us that Section 3 of the 25th Amendment Act is void as it in effect delegates the constituent amending power to State legislatures. The question arises whether Article
368 enables Parliament to delegate its function of amending the Constitution to another body. It seems to me clear that it does not. It would be noted that Article 368 of this Constitution itself provides that amendment may be initiated only by the introduction of a bill for the purpose in either House of Parliament. In other words, Article 368 does not contemplate any other mode of amendment by Parliament and it does not equally contemplate that Parliament could set up another body to amend the Constitution.
… It has been urged before us that in fact there has been no delegation of the amending powers to the State legislatures by Article 31C and what has been done is that Article 31C lifts the ban imposed by Part III from certain laws. I am unable to appreciate this idea of the lifting of the ban.
Fundamental rights remain as part of the Constitution and on the face of them they guarantee to every citizen these fundamental rights. But as soon as the State legislates under Article 31C and the law abrogates or takes away these Constitutional rights, these fundamental rights cease to have any effect. The amendment is then made not by Parliament as the extent of the amendment is not known till the State legislates. It is when the State legislates that the extent of the abrogation or abridgement of the fundamental rights becomes clear. To all intents and purposes it seems to me that it is State legislation that effects an amendment of the Constitution. If it be assumed that
Article 31C does not enable the States to amend the Constitution then Article 31C would be ineffective because the law which in effect abridges or takes away the fundamental rights would have been passed not in the form required by Article 368, i.e. by 2/3rd of the majority of Parliament but by another body which is not recognised in Article 368 and would be void on that ground.
… It seems to me that Article 31C cannot be read to be an implied amendment of Article 368 because it opens with the words "notwithstanding anything contained in Article 13" and Article
31C does not say that "notwithstanding anything contained in Article 368." What Article 31C does is that it empowers legislatures, subject to the condition laid down in Article 31C itself, to take away or abridge rights conferred by Articles 14, 19 and 31. At any rate, if it is deemed to be an amendment of Article 368, it is beyond the powers conferred by Article 368 itself. Article 368 does not enable Parliament to constitute another legislature to amend the Constitution, in its exercise of the power to amend Article 368 itself.
For the aforesaid reasons I hold that Section 3 of the Constitution (Twenty-fifth Amendment)
Act 1971 is void as it delegates power to legislatures to amend the Constitution.
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PART VII – Twenty-Ninth Amendment
The Constitution (Twenty-Ninth Amendment) reads:
2. Amendment of Ninth Schedule
In the Ninth Schedule to the Constitution after entry 64 and before the
Explanation, the following entries shall be inserted, namely:
65. The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969).
66. The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971).
The effect of the insertion of the two Kerala Acts in the Ninth Schedule is that the provisions of Article 31-B get attracted. Article 31-B which was inserted by Section 5 of the Constitution (First Amendment) Act, 1951, reads:
Insertion of new Article 31B.
490. After Article 31A of the Constitution as inserted by Section 4, the following article shall be inserted, namaly:
31B. Validation of certain Acts and Regulations
Without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it continue in force.
The First Amendment had also inserted Article 31A and the ninth Schedule including 13 State enactments dealing with agrarian, reforms.
Before dealing with the points debated before us, it is necessary to mention that a new Article
31A was substituted by the Constitution (Fourth Amendment) Act, 1955, for the original article with retrospective effect. The new article contained original Article 31A(1) as Clause (a) and added
Clauses (b) to (e) and also changed the nature of the protective umbrella. The relevant part of
Article 31A(1) as substituted has already been set out.
Under Article 31-A as inserted by the First Amendment a law was protected even if it was inconsistent with or took away or abridged any rights conferred by any provisions of Part III.
Under the Fourth Amendment the protective umbrella extended to only Article 14, Article 19 or
Article 31. The Seventeenth Amendment further amended the definition of the word "estate" in
Article 31A. It also added seven Acts to the Ninth Schedule.
… I have held that Article 368 does not enable Parliament to abrogate or take away fundamental rights. If this is so, it does not enable Parliament to do this by any means, including the device of Article 31-B and the Ninth Schedule. This device of Article 31-B and the Ninth
Schedule is bad insofar as it protects statutes even if they take away fundamental rights. Therefore, it is necessary to declare that the Twenty-Ninth Amendment is ineffective to protect the impugned
Acts if they take away fundamental rights.
… Broadly speaking, Constitutional amendments hitherto made in, Article 19 and Article 15 and, the agrarian laws enacted by various States furnish illustrations of reasonable abridgement of fundamental rights in the public interest. …
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HARMONY BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES
OF STATE POLICY
MINERVA MILLS V. UNION OF INDIA
AIR 1980 SC 1789, (1980) 3 SCC 625
Decided On: May 09, 1980/July 31. 1980
BENCH – CHIEF JUSTICE Y. V. CHANDRACHUD, JUSTICES P. N. BHAGWATI, A. C. GUPTA, N.
L. UNTWALIA & P. S. KAILASAM
CHIEF JUSTICE CHANDRACHUD (for himself, Justices Gupta, Untwalia & Kailasam, MAJORITY
OPINION)
… Petitioner No 1 which is a limited company owned a textile undertaking called Minerva
Mills situated in the State of Karnataka. This undertaking was nationalised and taken over by the Central Government under the provisions of the Sick Textile Undertakings
(Nationalisation) Act, 1974. Petitioners 2 to 6 are shareholders of Petitioner No. 1, some of whom are also unsecured creditors and some secured creditors.
Respondent 1 is the Union of India. Respondent 2 is the National Textile Corporation
Limited in which the textile undertaking of Minerva Mills comes to be vested under Section
3(2) of the Nationalisation Act of 1974. Respondent 3 is a subsidiary of respondent 2.
On August 20, 1970, the Central Government appointed a Committee under Section 15 of the Industries (Development and Regulation) Act, 1951 to make a full and complete investigation of the affairs of the Minerva Mills Ltd., as it was of the opinion that there had been or was likely to be substantial fall in the volume of production. The said Committee submitted its report to the Central Government in January 1971, on the basis of which the
Central Government passed an order dated October 19, 1971 under Section 18A of the Act of
1951, authorising Respondent 2 to take over the management of the Minerva Mills Ltd. on the ground that its affairs were being managed in a manner highly detrimental to public interest.
By these petitions, the petitioners challenge the constitutional validity of certain provisions of the Sick Textile Undertakings (Nationalisation) Act and of the order dated October 19, 1971.
We are not concerned with the merits of that challenge at this stage. The petitioners further challenge the constitutionality of the Constitution (39th Amendment) Act which inserted the impugned Nationalisation Act as Entry 105 in the 9th Schedule to the Constitution. That raises a question regarding the validity of Article 31B of the Constitution with which we propose to deal in another batch of petitions. Finally, the petitioners challenge the constitutionality of
Sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 and it is this contention alone with which we propose to deal in these petitions.
The challenge to the validity of Sections 4 and 55 of the 42nd Amendment rests on the ratio of the majority judgment in Kesavananda Bharati (1973) 4 SCC 225. The several opinions rendered in that case have been discussed and analysed threadbare in texts and judgments too numerous to mention. All the same, we cannot avoid making a brief resume of the majority judgments since the petitioners must stand or fall by them. Those judgments, on the point now in issue, were delivered by Sikri, C. J., Shelat and Grover, JJ., Hegde and Mukherjea, JJ.,
Jaganmohan Ready, J. and Khanna, J.
Sikri C. J., held that the fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence. According
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to the learned Chief Justice, fundamental rights conferred by Part III of the Constitution cannot be abrogated, though a reasonable abridgement of those rights could be effected in public interest. There is a limitation on the power of amendment by necessary implication which was apparent from a reading of the preamble and therefore, according to the learned Chief Justice, the expression "amendment of this Constitution", in Article 368 means any addition or 'change in any of the provisions of the Constitution within the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution. Accordingly, every provision of the
Constitution was open to amendment provided the basic foundation or structure of the
Constitution was not damaged or destroyed.
Shelat and Grover, JJ. held that the preamble to the Constitution contains the clue to the fundamentals of the Constitution. According to the learned Judges, Parts HI and IV of the
Constitution which respectively embody the fundamental rights and the directive principles have to be balanced and harmonised. This balance and harmony between two integral parts of the Constitution forms a basic element of the Constitution which cannot be altered. The word 'amendment ' occurring in Article 368 must therefore be construed in such a manner as to preserve the power of the Parliament to amend the Constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution. There was thus an implied limitation on the amending power which precluded Parliament from abrogating or changing the identity of the Constitution or any of its basic features.
Hegde and Mukherjea, JJ. held that the Constitution of India which is essentially a social rather than a political document, is founded on a social philosophy and as such has two main features basic and circumstantial. The basic constituent remained constant, the circumstantial was subject to change. According to the learned Judges, the broad contours of the basic elements and the fundamental features of the Constitution are delineated in the preamble and the Parliament has no power to abrogate or emasculate those basic elements of fundamental features. The building of a welfare State, the learned Judges said, " the ultimate goal of every
Government .but that does not mean that in order to build a welfare State, human freedoms have to suffer a total destruction. Applying these tests, the learned Judges invalidated Article
31C even in its un-amended form.
Jaganmohan Reddy, J., held that the word 'amendment ' was used in the sense of permitting a change, in contradistinction to destruction, which the repeal or abrogation brings about. therefore, the width of the power of amendment could not be enlarged by amending the amending power itself. The learned Judge held mat the essential elements of the basic structure of the Constitution are reflected in its preamble and that some of the important features of the
Constitution are justice, freedom of expression and equality of status and opportunity. The word 'amendment ' could not possibly embrace the right to abrogate the pivotal features and the fundamental freedoms and therefore, that part of the basic structure could not be damaged or destroyed. According to the learned Judge, the provisions of Article31C, as they stood then, conferring power on Parliament and the State Legislatures to enact laws for giving effect to the principles specified in Clauses (b) and (c) of Article 39, altogether abrogated the right given by
Article 14 and were for that reason unconstitutional. In conclusion, the learned Judge held that though the power of amendment was wide, it did not comprehend the power to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements of the basic structure of the Constitution or to destroy the identity of the Constitution. Subject to these limitations, Parliament had the right to amend any and every provision of the Constitution.
Khanna, J. broadly agreed with the aforesaid views of the six learned Judges and held that the word 'amendment ' postulated that the Constitution must survive without loss of its identity, which meant that the basic structure or framework of the Constitution must survive any amendment of the Constitution. According to the learned Judge, although it was permissible to
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the Parliament, in exercise of its amending power, to effect changes so as to meet the requirements of changing conditions, it was not permissible to touch the foundation or to alter the basic institutional pattern. Therefore, the words "amendment of the Constitution" in spite of the width of their sweep and in spite of their amplitude, could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the
Constitution.
The summary of the various judgments in Kesavananda Bharati was signed by nine out of the thirteen Judges. Paragraph 2 of the summary reads to say that according to the majority.
"Article 368 does not enable Parliament to alter the basic structure 01 framework of the
Constitution; '. Whether or not the summary is a legitimate part of the judgment, or is per incuriam for the scholarly reasons cited by authors, it is undeniable that it correctly reflects the majority view.
The question which we have to determine on the basis of the majority view in Kesavananda
Bharati is whether the amendments introduced by Sections 4 and 55 of the Constitution (42nd
Amendment) Act, 1976 damage the basic structure of the Constitution by destroying any of its basic features or essential elements.
Section 4 of the 42nd Amendment, which was brought into force with effect from January
3, 1977 amended Article 31C of the Constitution by substituting the words and figures "all or any of the principles laid down in Part IV" for the words and figures "the principles specified in Clause (b) or Clause (c) of Article 39". Article31C, as amended by the 42nd Amendment Act reads thus:
31C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in
Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14. Article 19 of
Article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy:
Provided that where such law is made by the Legislature of a State the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.
Section 55 of the Constitution (Forty-second Amendment) Act, 1976, which was also brought into force with effect from January 3, 1977 inserted subsections (4) and (5) in Article
368 which read thus:
(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article (whether before or after the commencement-of Section 55 of the Constitution (Forty-second Amendment)
Act, 1976} shall be called in question in any court on any ground.
(5) Fox the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.
We will first take up for consideration the comparatively easier question as regards the validity of the amendments made by Section 55 of the 42nd Amendment. It introduces two new
Clauses in Article 368, namely, Clauses (4) and (5). Clause (5) speaks for itself and is selfexplanatory. Its avowed purpose is the "removal of doubts" but after the decision of this Court in Kesavananda Bharati. There could be no doubt as regards the existence of limitations on the
Parliament 's power to amend the Constitution. In the context of the constitutional history of
Article 368, the true object of the declaration contained in Article 368 is the removal of those limitations. Clause (5) confers upon the Parliament a vast and undefined power to amend the
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Constitution, even so as to distort it out of recognition. The theme song of the majority decision in Kesavananda Bharati is: ‘Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But, the
Constitution is a precious heritage; therefore, you cannot destroy its identity.’
The majority conceded to the Parliament the right to make alterations in the Constitution so long as they are within its basic framework. And what fears can that judgment raise or misgivings generate if it only means this and no more. The Preamble assures to the people of
India a polity whose basic structure is described therein as a Sovereign Democratic Republic;
Parliament may make any amendments to the Constitution as it deems expedient so long as they do not damage or destroy India s sovereignty and its democratic, republican character.
Democracy is not an empty dream. It is a meaningful concept whose essential attributes are recited in the preamble itself: Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; and Equality of status and opportunity. Its aim, again as set out in the preamble, is to promote among the people an abiding sense of 'Fraternity assuring the dignity of the individual and tile unity of the Nation '. The newly introduced Clause (5) of
Article 368 demolishes the very pillars on which the preamble rests by empowering the
Parliament to exercise its constituent power without any limitation whatever". No constituent power can conceivably go higher than t sky-high power conferred by Clause (5), for it even empowers the Parliament to "repeal the provisions of this Constitution", that is to say, to abrogate the democracy and substitute for it a totally antithetical form of Government. That can most effectively be achieved, without calling a democracy by any other name, by a total denial of social, economic and political Justice to the people, by emasculating liberty of thought, expression, belief, faith and worship and by abjuring commitment to the magnificent ideal of a society of equals. The power to destroy is not a power to amend.
Since the Constitution had conferred a limited amending power on the Parliament, the
Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our
Constitution and therefore, the limitations on that power cannot be destroyed. In other words,
Parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one,
The very 42nd Amendment which introduced clauses (4) and (5) in Article 368 made amendments to the preamble to which no exception can be taken. Those amendments are not only within the framework of the Constitution but they give vitality to its philosophy; they afford strength and succor to its foundations. By the aforesaid amendments, what was originally described as a 'Sovereign Democratic Republic ' became a "Sovereign Socialist Secular
Democratic Republic" and the resolution to promote the 'unity of the Nation ' was elevated into a promise to promote the "unity and integrity of the Nation". These amendments furnish the most eloquent example of how the amending power can be exercised consistently with the creed of the Constitution. They offer promise of more, they do not scuttle a precious heritage.
In Indira Nehru Gandhi v. Raj Narain [1976] 2 SCR 347 Khanna, J. struck down clause 4 of Article 329A of the Constitution which abolished the forum for adjudicating upon a dispute relating to the validity in an election, on the ground that the particular Article which was introduced by a constitutional amendment violated the principle of free and fair elections which is an essential postulate of democracy and which, in its turn, is a part of the basic structure of the Constitution. Mathew, J. also struck down the Article on the ground that it damaged the essential feature of democracy, One of us, Chandrachud, J. reached the same conclusion by holding that the provisions of the Article were an outright negation of the right of equality
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conferred by Article 14, aright which, more than any other, is a basic postulate of the
Constitution. Thus, whereas amendments made to the preamble by the 42nd Amendment itself afford an illustration of the scope of the amending power, the case last referred to afford an illustration of the limitations on the amending power.
Since, for the reasons above mentioned, clause (5) of Article 368 transgresses the limitations on the amending power, it must be held to be unconstitutional.
The newly introduced clause (4) of Article 368 must suffer the same fate as clause (5) because the two clauses are inter-linked. Clause (5) purports to remove all limitations on the amending power while clause (4) deprives the courts of, their power to call in question any amendment of the Constitution. Our Constitution is founded on a nice balance of power among the three wings of the State, namely, the Executive, the Legislature and the Judiciary. It is the function of the Judges, nay their duty, to pronounce upon the validity of laws. If courts are totally deprived of that power the fundamental rights conferred upon the people will become a mere adornment because rights without remedies are as writ in water. A controlled Constitution will then become uncontrolled. Clause (4) of Article 368 totally deprives the citizens it one of the most valuable modes of redress which is guaranteed by Article 32. The conferment of the right to destroy the identity of the Constitution coupled with the provision that no court or law shall pronounce upon the validity of such destruction seems to us a transparent case of transgression of the limitations on the amending power.
If a constitutional amendment cannot be pronounced to be invalid even if it destroys the basic structure of the Constitution, a law passed in pursuance of such an amendment will be beyond the pale of judicial review because it will receive the protection of the constitutional amendment which the courts ' will be powerless to strike down. Article 13 of me Constitution will then become a dead letter because even ordinary laws will escape the scrutiny of the courts on the ground that they are passed on the strength of a constitutional amendment which is not open to challenge.
Clause (4) of Article 368 is in one sense an appendage of clause (5), though we do not like to describe it as a logical consequence of clause (5). If it be true, as stated in Clause (5), that the Parliament has unlimited power to amend the Constitution, courts can have no jurisdiction to strike down any constitutional amendment as unconstitutional. Clause (4), therefore, says nothing more or less than what clause (5) postulates. If clause (5) is beyond the amending power of the Parliament, clause (4) must be equally beyond that power and must be struck down as such.
The next question which we have to consider is whether the amendment made by Section
4 of the 42nd Amendment to Article 31C of the Constitution is valid. Mr. Palkhivala did not challenge the validity of the unamended Article 31C and indeed that could not be done. The unamended Article 31C forms the subject-matter of a separate proceeding and we have indicated therein that it is constitutionally valid to the extent to which it was upheld in
Kesavananda Bharati.
By the amendment introduced by Section 4 of the 42nd Amendment, provision is made in
Article 31C saying that no law giving effect to the policy of the State towards securing "all or any of the principles laid down in Part IV" shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14, Article
19 or Article 31. It is manifest that the scope of laws which fall within Article 31C has been expanded vastly by the amendment. Whereas under the original Article 31C, the challenge was excluded only in respect of laws giving effect to the policy of the State towards securing "the principles specified in Clause (b) or Clause (c) of Article 39" under the amendment, all laws giving effect to the policy of the State towards securing "all or any of the principles laid down
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in Part IV" are saved from a constitutional challenge under Articles 14 and 19. (The reference to Article 31 was deleted by the 44th Amendment as a consequence of the abolition of the right to property as a fundamental right) The question for consideration in the light or this position is whether Section 4 of the 42nd Amendment has brought about a result which is basically and fundamentally different from the one arising under the unamended article. If the amendment does not bring about any such result its validity shall have to be upheld for the same reasons for which the validity of the unamended article was upheld.
The argument of Mr. Palkhivala, who appears on behalf of the petitioners, runs thus: The amendment introduced by Section 4 of the 42nd Amendment destroys the harmony between
Parts III and IV of the Constitution by making the fundamental rights conferred by Part III subservient to the directive principles of State Policy set out in Part IV of the Constitution. The
Constitution makers did not contemplate a disharmony or imbalance between the fundamental rights and the directive principles and indeed they were both meant to supplement each other.
The basic structure of the Constitution rests on the foundation that while the directive principles are the mandatory ends of government, those ends can be achieved only through permissible means which are set out in Part III of the Constitution. In other words, the mandatory ends set out in Part IV can be achieved not through totalitarian methods but only through those which are consistent with the fundamental rights conferred by Part III. If Article 31C as amended by the 42nd Amendment is allowed to stand, it will confer an unrestricted licence on the legislature and the executive, both at the center and in the States, to destroy democracy and establish an authoritarian regime. All legislative action and every governmental action purports to be related, directly or indirectly, to some directive principle of State policy. The protection of the amended article will therefore be available to every legislative action under the sun. Article
31C abrogates the right to equality guaranteed by Article 14, which is the very foundation of a republican form of government and is by itself a basic feature of the Constitution.
The learned Counsel further argues that it is impossible to envisage that a destruction of the fundamental freedoms guaranteed by Part III is necessary for achieving the object of some of the directive principles like equal justice and free legal aid. Organising village panchayats, providing living wages for workers and just and humane conditions of work, free and compulsory education for children, organisation of agriculture and animal husbandry, and protection or environment and wild life. What the Constituent Assembly had rejected by creating a harmonious balance between parts III and IV is brought back by the 42nd
Amendment.
Finally it is urged that the Constitution had made provision for the suspension of the right to enforce fundamental rights when an emergency is proclaimed by the President. Under the basic scheme of the Constitution, fundamental rights were to lose their supremacy only during the period that the proclamation of emergency is in operation. Section 4 of the 42nd Amendment has robbed the fundamental rights of their supremacy and made them subordinate to the directive principles of State policy as if there were a permanent emergency in operation. While
Article 359 suspends the enforcement of fundamental rights during the Emergency, Article 31C virtually abrogates them in normal times. Thus, apart from destroying one of the basic features of the Constitution, namely, the harmony between Parts III and IV, Section 4 of the 42nd
Amendment denies to the people the blessings of a free democracy and lays the foundation for the creation of an authoritarian State.
These contentions were stoutly resisted by the learned Attorney General thus: Securing the implementation of directive principles by the elimination of obstructive legal procedures cannot ever be said to destroy or damage the basic features of the Constitution. Further, laws made for securing the objectives of Part IV would necessarily be in public interest and will fall within Article 19(5) of the Constitution, in so far us clauses (d) and (e) of Article 19(1) are
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concerned. They would therefore be saved in any case. The history of the Constitution, particularly the incorporation of Articles 31(4) and 31(6) and the various amendments made by
Articles 31A, 31B and the amended Article 31C, which were all upheld by this Court, establish the width of the amending power under Article 368. The impugned amendment therefore manifestly falls within the sweep of the amending power.
The learned Attorney General further argues: A law which fulfils the directive of Article
38 is incapable of abrogating fundamental freedoms or of damaging the basic structure of the
Constitution inasmuch as that structure itself is founded on the principle of justice – social, economic and political. Article 38, which contains a directive principle, provides that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. A law which complies with Article 38 cannot conceivably abrogate the fundamental freedoms except certain economic rights and that too, for the purpose of minimising inequalities. A law which will abrogate fundamental freedoms will either bring about social injustice or economic injustice or political injustice. It will thereby contravene
Article 38 rather than falling within it and will for that reason be outside the protection of
Article 31C. In any event, each and every violation of Article 14 or Article 19 does not damage the basic structure of the Constitution.
………
The argument of the learned Additional Solicitor General proceeds thus: For extracting the ratio of Kesavananda Bharati one must proceed on the basis that there were as many cases as there were declarations sought for by the petitioners therein. The majority in regard to Article
368 is different from the majority in regard to the decision in respect of Article 31C. The binding ratio in regard to Article 368 as well as the ratio resulting in upholding the validity of the first part of Article 31C will both sustain the validity of Section 4 of the 42nd Amendment.
In regard to fundamental rights, the ratio of the judgments of 12 out of 13 Judges, i.e., all excepting Jaganmohan Reddy J. will empower amendment of each one of the articles in Part
III, so long as there is no total abrogation of the fundamental rights which constitute essential features of the basic structure of the Constitution. Abrogation of fundamental rights which do not constitute essential features of the basic structure or abridgement of fundamental rights which constitute such essential lectures is within the permissible limits of amendment. The unamended Article 31C having been upheld by the majority in Kesavananda Bharati both on the ground of stare decisis and on the ground of contemporaneous practical exposition, the amended Article 31C must be held to be valid, especially since it has not brought about a qualitative change in comparison with the provisions of the unamended article. A harmonious and orderly development of constitutional law would require that the phrases 'inconsistent with ' or ‘take away’ which occur in Articles 31A, 31B and 31C should be read down to mean 'restrict or 'abridge ' and not 'abrogate '. If two constructions of those expressions were reasonably possible, the Court should accept that construction which would render the constitutional amendment valid.
The learned Counsel further argues: The directive principles, including the one contained in Article 38, do not cover the exercise of each and every legislative power relatable to the
Seventh Schedule of the Constitution. Besides, the directive principles being themselves fundamental in the governance of the country, no amendment of the Constitution to achieve the ends specified in the directive principles can ever alter the basic structure of the
Constitution. If the unamended Article 31C is valid in reference to laws relatable to clause (b) and (c) of Article 39 no dichotomy can be made between laws relatable to these provisions on
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the one hand and laws relatable to other directive principles. A value judgment is not permissible to the Court in this area.
It is finally urged by the learned Additional Solicitor General that judicial review is not totally excluded by the amended Article 31C because it will still be open to the Court to consider: (i) whether the impugned law has 'direct and reasonable nexus ' with any of the directive principles;
(ii) whether the provisions encroaching on fundamental rights are integrally connected with and essential for effectuating the directive principles or are at least ancillary thereto;
(iii) whether the fundamental right encroached upon is an essential feature of the basic structure of the Constitution; and
(iv) if so, whether the encroachment, in effect, abrogates that fundamental right.
………
Both the Attorney General and the Additional Solicitor General have raised a preliminary objection to the consideration of the question raised by the petitioners as regards the validity of Sections 4 and 55 of the 42nd Amendment. It is contended by them that the issue formulated for consideration of the court: "whether the provisions of the Forty-second Amendment of the
Constitution which deprived the Fundamental Rights of their Supremacy and, inter alia, made them subordinate to the directive principles of State Policy are ultra vires the amending power of Parliament?" is too wide and academic. It is urged that since it is the settled practice of the court not to decide academic questions and since property rights claimed by the petitioners under Articles 19(1)(f) and 31 do not survive after the 44th Amendment, the court should not entertain any argument on the points raised by the petitioners.
………
But, we find it difficult to uphold the preliminary objection because, the question raised by the petitioners us regards the constitutionality of Sections 4 and 55 of the 42nd Amendment is not an academic or a hypothetical question. The 42nd Amendment is there for anyone to see and by its Sections 4 and 55 Amendments have been made to Articles 31C and 368 of the
Constitution. An order has been passed against the petitioners under Section 18A of the
Industries (Development and Regulation) Act, 1951 by which the petitioners are aggrieved.
Besides there are two other relevant considerations which must be taken into account while dealing with the preliminary objection. There is no constitutional or statutory inhibition against the decision of questions before they actually arise for consideration. In view of the importance of the question raised and in view of the fact that the question has been raised in many a petition, it is expedient in the interest of Justice to settle the true position, Secondly, what we are dealing with is not an ordinary law which may or may not be passed so that it could be said that our jurisdiction is being invoked on the hypothetical consideration that a law may be passed in future which will injure the rights of the petitioners. We are dealing with a constitutional amendment which has been brought into operation and which, of its own force, permits lie violation of certain freedoms through lows passed for certain purposes. We therefore, overrule the preliminary objection and proceed to determine the point raised by the petitioners.
The main controversy in these petitions centers round the question whether the directive principles of State policy contained in Part IV can have primacy over the fundamental rights conferred by Part III of the Constitution. That is the heart of the matter. Every Other consideration and all other contentions are in the nature of by-products of that central theme of
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the case. The competing claims of parts III and IV constitute the pivotal point of the case because, Article 31C as amended by Section 4 of the 42nd Amendment provides in terms that a law giving effect to any directive principle cannot be challenged as void on the ground that it violates the rights conferred by Article 14 or Article 19. The 42nd Amendment by its Section 4 thus subordinates the fundamental rights conferred by Articles 14 and 19 to the directive principles. The question of questions is whether in view of the majority decision in Kesavananda
Bharati it is permissible to the Parliament to so amend the Constitution as to give a position of precedence to directive principles over the fundamental rights. The answer to this question must necessarily depend upon whether Articles 14 and 19, which must now give way to laws passed in order to effectuate the policy of the State towards securing all or any of the principles of Directive Policy are essential features of the basic structure of the Constitution. It is only if the rights conferred by these two articles are not a part of the basic structure of the Constitution that they ran be allowed to be abrogated by a constitutional amendment. If they are a part of the basic structure, they cannot be obliterated out of existence in relation to a category of laws described in Article 31C or, for the matter of that, in relation to laws of any description whatsoever, passed in order to achieve any object or policy whatsoever. This will serve to bring out the point that a total emasculation of the essential features of the Constitution is, by the ratio in Kesavananda Bharati, not permissible to the Parliament.
There is no doubt that though the courts have always attached very great importance to the preservation of human liberties, no less importance has been attached to some of the Directive
Principles of State Policy enunciated in Part IV. In the words of Granville Austin, (The Indian
Constitution: Cornerstone of a Nation, p. 50) the Indian Constitution is first and foremost a social document and the majority of its provisions are aimed at furthering the goats of social revolution by establishing the conditions necessary for its achievement. Therefore, the importance of directive principles in the scheme of our Constitution cannot ever be overemphasized. Those principles project the high ideal which the Constitution aims to achieve. In fact directive principles of State policy are fundamental in the governance of the country and the Attorney General is right that there is no sphere of public life where delay can defeat justice with more telling effect than the one in which the common man seeks the realisation of his aspirations. The promise of a better tomorrow must be fulfilled today; day after tomorrow it runs the risk of being conveniently forgotten. Indeed, so many tomorrows have come and gone without a leaf turning that today there is a lurking danger that people will work out their destiny through the compelled cult of their own "dirty hands". Words bandied about in marbled halls say much but fail to achieve as much.
48. But there is another competing constitutional interest which occupies an equally important place in that scheme. That interest is reflected in the provisions of Part III which confer fundamental rights, some on citizens as Articles 15, 16 and 19 do and some on all persons alike as Articles 14, 20, 21 and 22 do. As Granville Austin says:
The core of the commitment to the social revolution lies in Parts III and IV …
These are the conscience of the Constitution.
………
The history of India 's struggle for independence and the debates of the Constituent
Assembly show how deeply our people value their personal liberties and how those liberties are regarded as an indispensable and integral part of our Constitution. It is significant that though Parts III and IV appear in the Constitution as two distinct fasciculus of articles, the leaders of our independence movement drew no distinction between the two kinds of State 's obligations – negative and positive. … The demand for inalienable rights traces its origin in
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India to the 19th Century and flowered into the formation of the Indian National Congress in
1885. Indians demanded equality with their British rulers on the theory that the rights of the subjects cannot in a democracy be inferior to those of the rulers. Out of that demand grew the plants of equality and free speech. Those and other basic rights found their expression in Article
16 of the Constitution of India Bill, 1895. A series of Congress resolutions reiterated that demand between 1917 and 1919. The emergence of Mahatma Gandhi on the political scene gave to the freedom movement a new dimension: it ceased to be merely anti-British; it became a movement for the acquisition of rights of liberty for the Indian Community. Mrs. Besant 's
Commonwealth of India Bill, 1925 and the Madras Congress resolution of 1928 provided a striking continuity for that movement. The Motilal Nehru Committee appointed by the Madras
Congress resolution said at pp. 89-90:
It is obvious that our first care should be to have our Fundamental Rights guaranteed in a manner which will not permit their withdrawal under any circumstances … Another reason why great importance attaches to a Declaration of Rights is the unfortunate existence of communal differences in the country.
Certain safeguards are necessary to create and establish a sense of security among those who look upon each other with distrust and suspicion. We could not better secure the full enjoyment of religious and communal rights to all communities than by including them among the basic principles of the Constitution.
India represents a mosaic of humanity consisting of diverse religious, linguistic and caste groups. The rationale behind the insistence on fundamental rights has not yet lost its relevance, alas or not. The Congress Session of Karachi adopted in 1931 the Resolution on Fundamental
Rights as well as on Economic and Social change. The Sapru Report of 1945 said that the fundamental rights should serve as a "standing warning" to all concerned that:
What the Constitution demands and expects is perfect equality between one section of the community and another in the matter of political and civic rights, equality of liberty and security in the enjoyment of the freedom of religion, worship, and the pursuit of the ordinary applications of life.
The Indian nation marched to freedom in this background. The Constituent Assembly resolved to enshrine the fundamental rights in the written text of the Constitution. The interlinked goals of personal liberty and economic freedom then came to be incorporated in two separate parts, nevertheless parts of an integral, indivisible scheme which was carefully and thoughtfully nursed over half a century. The seeds sown in the 19th Century saw their fruition in 1950 under the leadership of Jawaharlal Nehru and Dr. Ambedkar. To destroy the guarantees given by Part III in order purportedly to achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure.
Fundamental rights occupy a unique place in the lives of civilized societies and have been variously described in our Judgments as "transcendental", "inalienable and "primordial." For us, it has been said in Kesavananda Bharati, they constitute the ark of the Constitution.
The significance of the perception that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution is to be traced to a deep understanding of the scheme of the Indian Constitution. Granville Austin 's observation brings out the true position that Parts III and IV are like two wheels of a chariot, one no less important than the other. You snap one and the other will lose its efficacy. They are like a twin formula for achieving the social revolution, which is the ideal which the visionary founders of the Constitution set before themselves. In other words, the Indian
Constitution is founded on the bedrock of the balance between Parts III and IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.
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………
It is in this light that the validity of the amended Article 31C has to be examined. Article
13(2) says that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of that clause shall to the extent of the contravention be void. Article 31C begins with a non obstante clause by putting Article 13 out of harm 's way. It provides for a certain consequence notwithstanding anything contained in
Article 13. It then denudes Articles 14 and 19 of their functional utility by providing that the rights conferred by these Articles will be no barrier against passing laws for giving effect to the principles laid down in Part IV. On any reasonable interpretation, there can be no doubt that by the amendment introduced by Section 4 of the 42nd Amendment, Articles 14 and 19 stand abrogated at least in regard to the category of laws described in Article 31C. The startling consequence which the amendment has produced is that even if a law it in total defiance of the mandate of Article 13 read with Articles 14 and 19, its validity will not be open to question so long as its object is to secure a directive principle of State Policy. We are disposed to accept the submission of the learned Solicitor General, considering the two charts of cases submitted by him, that it is possible to conceive of laws which will not attract Article 31C since they may not bear direct and reasonable nexus with the provisions of Part IV. But, that, in our opinion, is beside the point. A large majority of laws, the bulk of them, can at any rate be easily justified as having been passed for the purpose of giving effect to the policy of the State towards securing some principle or the other laid down in Part IV. In respect of all such laws, which will cover an extensive gamut of the relevant legislative activity, the protection of Articles 14 and 19 will stand wholly withdrawn. It is then no answer to say, while determining whether the basic structure of the Constitution is altered, that at least some laws will fall outside the scope of
Article 31C.
We have to decide the matter before us not by metaphysical subtlety, nor as a matter of semantics, but by a broad and liberal approach. We must not miss the wood for the trees. A total deprivation of fundamental rights, even in a limited area, can amount to abrogation of a fundamental right just as partial deprivation in every area can. An author, who writes exclusively on foreign matters, shall have been totally deprived of the right of free speech and expression if he is prohibited from writing on foreign matters. The fact therefore that some laws may fall outside the scope of Article 31C is no answer to the contention that the withdrawal of protection of Articles 14 and 19 from a large number of laws destroys the basic structure of the Constitution.
It was repeatedly impressed upon us, especially by the Attorney General, that Article 38 of the Constitution is the kingpin of the directive principles and no law passed in order to give effect to the principle contained therein can ever damage or destroy the basic structure of the
Constitution. That Article provides that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. We are unable to agree that all the Directive Principles of State Policy contained in Part IV eventually verge upon Article 38. Article 38 undoubtedly contains a broad guideline, but the other directive principles are not mere illustrations of the principle contained in Article 38. Secondly, if it be true that no law passed for the purpose of giving effect to the directive principle contained in
Article 38 can damage or destroy the basic structure of the Constitution, what was the necessity, and more so the justification, for providing by a constitutional amendment that no law which is passed for giving effect to the policy of the State towards securing any principle laid down in Part IV shall be deemed to be void on the ground that it Is inconsistent with or takes away or bridges the rights conferred by Articles 14 and 19? The object and purpose of the amendment of Article 31C is really to save laws which cannot be saved under Article 19(2) to (6). Laws
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which fall under those provisions are in the nature of reasonable restrictions on the fundamental rights in public interest and therefore they abridge but do not abrogate the fundamental rights.
It was in order to deal with laws which do not get the protection of Article 19(2) to (6) that
Article 31C was amended to say that the provisions of Article 19, inter alia, cannot be invoked for voiding the laws of the description mentioned in Article 31C.
Articles 14 and 19 do not confer any fanciful rights. They confer rights which are elementary for the proper and effective functioning of a democracy. They are universally so regarded, as is evident from the Universal Declaration of Human Rights. Many countries in the civilised world have parted with their sovereignty in the hope and belief that their citizens will enjoy human freedoms. And they preferred to be bound by the decisions and decrees of foreign tribunals on matters concerning human freedoms. It Articles 14 and 19 are put out of operation in regard to the bulk of laws which the legislatures are empowered to pass, Article 32 will be drained of its life-blood. Article 32(4) provides that the right guaranteed by Article 32 shall not be suspended except as otherwise provided for by the Constitution. Section 4 of the 42nd
Amendment found an easy way to circumvent Article 32(4) by withdrawing totally the protection of Articles 14 and 19 in respect of a large category of laws, so that there will be no violation to complain of in regard to which redress can be sought under Article 32. The power to take away the protection of Article 14 is the power to discriminate without a valid basis for classification. By a long series of decisions this Court has held that Article 14 forbids class legislation but it does not forbid classification. The purpose of withdrawing the protection of
Article 14, therefore, can only be to acquire the power to enact class legislation. Then again, regional chauvinism will have a field day if Article 19(1)(d) is not available to the citizens.
Already, there are disturbing trends on a part of the Indian horizon. Those trends will receive strength and encouragement if laws can be passed with immunity, preventing the citizens from exercising their right to move freely throughout the territory of India. The nature and quality of the amendment introduced by Section 4 of the 42nd Amendment is therefore such that it virtually tears away the heart of basic fundamental freedoms.
Article 31C speaks of laws giving effect to the policy of the "State". Article 12 which governs the interpretation of Article 31C provides that the word "State" in Part III includes the
Government and Parliament of India and the Government and the Legislature of each of the
States and all local or other authorities within the territory of India or under the control of the
Government of India. Wide as the language of Article 31C is, the definition of the word "State" in Article 12 gives to Article 31C an operation of the widest amplitude. Even if a State
Legislature passes a law for the purpose of giving effect to the policy by a local authority towards securing a directive principle, the law will enjoy immunity from the provisions of
Articles 14 and 19. The State Legislatures are thus given an almost unfettered discretion to deprive the people of their civil liberties.
………
Mr. Palkhivala read out to us an extract from the speech of the then Law Minister who, while speaking on the amendment to Article 31C, said that the amendment was being introduced because the government did not want the “let and hindrance" of the fundamental rights. If the Parliament has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited. The principle of reading down cannot be invoked or applied in opposition to the clear intention of the legislature. We suppose that in the history of the constitutional law, no constitutional amendment has ever been read down to mean the exact opposite of what it says and intends. In fact, to accept the argument that we should read down Article 31C, so as to make it conform to the ratio of the majority decision in Kesavananda Bharati is to destroy the avowed purpose of
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Article 31C as indicated by the very heading "Saving of certain laws” under which Articles
31A, 31B and 31C are grouped. Since the amendment to Article 31C was unquestionably made with a view to empowering the legislatures to pass laws of a particular description even if those laws violate the discipline of Articles 14 and 19, it seems to us impossible to hold that we should still save Article 31C from the challenge of unconstitutionality by reading into that
Article words which destroy the rationale of that Article and an intendment which is plainly contrary to its proclaimed purpose.
………
Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are
Articles 14, 19 and 21. Article 31C has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the Preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual,
These then are our reasons for the order which we passed on May 9, 1980 to the following effect: Section 4 of the Constitution 42nd Amendment Act is beyond the amending power of the Parliament and is void since it damages the basic or essential features of the
Constitution and destroys its basic structure by a total exclusion of challenge to any law on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 of the Constitution, if the law is for giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV of the Constitution.
Section 55 of the Constitution 42nd Amendment Act is beyond the amending power of the Parliament and is void since it removes all limitations on the power of the Parliament to amend the Constitution and confers power upon it to amend the Constitution, so as to damage or destroy its basic or essential features or it basic structure.
There will be no order as to costs.
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UNIT 13 – PUBLIC INTEREST LITIGATION
BANDHUA MUKTI MORCHA V. UNION OF INDIA
AIR 1984 SC 802, (1984) 3 SCC 161
Decided On: December 16, 1983
BENCH – JUSTICES P. N. BHAGWATI, R. S. PATHAK & AMARNDRA NATH SEN
JUSTICE BHAGWATI (FOR HIMSELF) [JUSTICE PATHAK AND JUSTICE PATHAK CONCURRING
BUT WROTE THEIR SEPARATE OPINIONS]
The petitioner is an organisation dedicated to the cause of release of bonded labourers in the country. The system of bonded labour has been prevalent in various parts of the country since long prior to the attainment of political freedom and it constitutes an ugly and shameful feature of our national life. This system based on exploitation by a few socially and economically powerful persons trading on the misery and suffering of large numbers of men and holding them in bondage is a relic of a feudal hierarchical society which hypocritically proclaims the divinity of men but treats large masses of people belonging to the lower rungs of the social ladder or economically impoverished segments of society as dirt and chattel. This system under which one person can be bonded to provide labour to another for years and years until an alleged debt is supposed to be wiped out which never seems to happen during the life time of the bonded labourer, is totally incompatible with the new egalitarian socio-economic order which we have promised to build and it is not only an affornt to basic human dignity but also constitutes gross and revolting violation of constitutional values. …
They are non-beings, exiles of civilisation, living a life worst than that of animals, for the animals are at least free to roam about as they like and they can plunder or grab food whenever they are hungry but these out castes of society are held in bondage, robbed of their freedom and they are consigned to an existence where they have to live either in hovels or under the open sky and be satisfied with whatever little unwholesome food they can manage to get, inadequate though it be to fill their hungry stomachs. Not having any choice, they ate driven by poverty and hunger into a life of bondage a dark bottomless pit from which, in a cruel exploitative society, they cannot hope to be rescued.
This pernicious practice of bonded labour existed in many States and obviously with the ushering in of independence it could not be allowed to continue to blight the national life any longer and hence, when we framed our Constitution, we enacted Article 23 of the Constitution which prohibits "traffic in human beings and begar and other similar forms of forced labour" practised by any one. The system of bonded labour therefore stood prohibited by Article 23 and there could have been no more solemn and effective prohibition than the one enacted in the Constitution in Article 23. But, it appears that though the Constitution was enacted as far back as 26th January, 1950 and many years passed since then, no serious effort was made to give effect to Article 23 and to stamp out the shocking practice of to bonded labour. It was only in 1976 that Parliament enacted the Banded Labour System (Abolition) Act, 1976 providing for the abolition of bonded labour system with a view to preventing the economic and physical exploitation of the weaker sections of the people. But, unfortunately, as subsequent events have shown and that is borne out also by the Report made by the center for
Rural Development Administration, Indian Institute of Public Administration to the Ministry of Labour Government of India on "Rehabilitation of Bonded Labour in Monghyr District,
Bihar", the Report made by the Public Policy and Planning Division of the Indian Institute of
Public Administration to the Ministry of Labour, Government of India on "Evaluation Study of Bonded Labour Rehabilitation Scheme In Tehri Garhwal, U.P.", the Report of Laxmi Dhar
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Misra, the Director-General (Labour Welfare) of the Government of India based on On the
Spot Studies Regarding Identification, Release of Bonded Labourers and Rehabilitation of
Freed Labourers in Uttar Pradesh, Madhya Pradesh, Andhra Pradesh, Karnataka, Orissa,
Bihar, Rajasthan, Tamilnadu and Kerala and the Report of the National Seminar on
"Indentification and Rehabilitation of Bonded Labour" held from 7th to 9th February, 1983 that the pernicious practice of bonded labour has not yet been totally eradicated from the national scene and that it continues to disfigure the social and economic life of the country at certain places. There are still a number of bonded labourers in various parts of the country and significantly, as pointed out in the Report of the National Seminar on "Identification and
Rehabilitation of Bonded Labour" a large number of them belong to Scheduled Castes and
Scheduled Tribes account for the next largest number while the few who are not from
Scheduled Castes or Scheduled Tribes are generally landless agricultural labourers. It is absolutely essential we would unhesitatingly declare that it is a constitutional imperative-that the bonded labourers must be identified and released from the shackles of bondage so that they can assimilate themselves in the main stream of civilised human society and realise the dignity, beauty and worth of human existence. …
… [T]his problem has to be solved if we want to emancipate those who are living in bondage and serfdom and make them equal participants in the fruits of freedom and liberty. It is a problem which needs urgent attention of the Government of India and the State
Governments and when the Directive Principles of State Policy have obligated the Central and the State Governments to take steps and adopt measures for the purpose of ensuring social justice to the have-notes and the handicapped, it is not right on the part of the concerned governments to shut their eyes to the inhuman exploitation to which the bonded labourers are subjected. It is not uncommon to find that the administration in some States is not willing to admit the existence of bended labour, even though it exists in their territory and there is incontrovertible evidence that it does so exist. We fail to see why the administration should feel shy in admitting the existence of bonded labour, because it is not the existence of bonded labour that is a slur on the administration but its failure to take note of it and to take all necessary steps for the purpose of putting an end to the bonded labour system by quickly identifying, releasing and permanently rehabilitating bonded labourers: What is needed is determination, dynamism and a sense of social commitment of the part of the administration to free bonded labourers and rehabilitate them and wipe out this ugly inhuman practice which is a blot on our national life.
What happened recently in the Ranga Reddy District of Andrha Pradesh as a result of the initiative taken by this Court in Writ Petitions Nos. 1574 of 1982 and 54 of 1983 shows clearly that if the political and administrative apparatus has a sense of commitment to the constitutional values and is determined to take action for identifying releasing and rehabilitating bonded labourers despite pressures and pulls from different quarters, much can be done for securing emancipation and rehabilitation of bonded labourers. The District
Administration of Ranga Reddy District could in less than six months release over 3000 bonded labourers from the clutches of contractors in stone quarries in Ranga Reddy District and send them back to their homes with tickets and pocket expenses. It is therefore essential that whichever be the State Government it should, where there is bonded labour, admit the existence of such bonded labour and make all possible efforts to eradicate it. By doing so, it will not only be performing a humanitarian function but also discharging a constitutional obligation and strengthening the foundations of participatory democracy in the country.
We also find that in some cases the State Governments in order to shirk their obligation, take shelter under the plea that there may be some forced labour in their State but that is not bonded labour. We shall have occasion to deal with this plea a little later when we refer to the
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definition of 'bonded labour ' given in the Bonded Labour System (Abolition) Act, 1976 which at first blush appears to be a narrow definition limited only to a situation where a debtor is forced to provide labour to a creditor. The State of Haryana has in the present case tried to quibble with this definition of 'bonded labour ' and its argument has been that these labourers may be providing forced labour but they are not bonded labourers within the meaning of the
Bonded Labour System (Abolition) Act, 1976 and they may therefore be freed by the Court if it so pleases but the State of Haryana cannot be compelled to rehabilitate them. We are constrained to observe that this agrument, quite apart from its invalidity, ill-behoves a State
Government which is committed to the cause of socialism and claims to be striving to ensure social justice to the vulnerable sections of the community. But we do not wish to anticipate the discussion in regard to this argument and at the present stage we content ourselves by merely observing that it is unfortunate that any State Government should take up the plea that persons who are forced to provided labour may be forced labourers but unless it is shown by them by proper evidence tested by cross-examination that they are forced to provide labour against a bonded debt, they cannot be said to be bonded labourers and the State Government cannot be held to be under any obligation to rehabilitate them.
The petitioner made a survey of some of the stone quarries in Faridabad district near the city of Delhi and found that there were a large number of labourers from Maharashtra, Madhya
Pradesh, Uttar Pradesh and Rajasthan who were working in these stone quarries under
"inhuman and intolerable conditions" and many of whom were bonded labourers. The petitioner therefore addressed a letter to one of us on 25th February, 1982 pointing out that in the mines of Shri S.L. Sharma, Gurukula Indra Prastha, Post Amar Nagar Faridabad, District, a large number of labourers were languishing under abject conditions of bondage for last about ten years, and the petitioner gave the names of 11 bonded labourers who were from village
Asarha, Banner district of Rajasthan, 7 bonded labourers who were from village Bharol, district Jhansi of Madhya Pradesh and 23 bonded labourers who were from village Barodia,
Bhanger, Tehsil Khurai, district Sagar, M.P. The petitioner pointed out that there were "yet another 14 bonded labourers from Lalitpur in U.P." The petitioner also annexed to its letter, statements in original bearing the thumb marks or signatures as the case may be of these bended labourers referred to in the letter. The petitioner pointed out in the letter that the labourers working in these stone quarries were living under the most inhuman conditions and their pitiable lot was described by the petitioner in the following words:
Besides these cases of bonded labour, there are in-numerable cases of fatal and serious injuries caused due to accidents while working in the mines, while dynamiting the rocks or while crushing the stones. The stone-dust pollution near the stone crushers is so various that many a valuable lives are lost due to tuberculosis while others are reduced to mere skeletons because of T.B. and other diseases. The workers are not provided with any medical care, what to speak of compensating the poor worker for injury or for death. No cases are registered against the mine owners or the lessees for violation of safety rules under Mines
Act. We are enclosing herewith the statements of about 75 workers who have suffered or are suffering continuously due to non-implementation of the rules by the Central Government or by Haryana Government or by the employers.
Almost 99% of the workers are migrant from drought prone areas of Rajasthan,
Madhya Pradesh, Andhra Pradesh, Orissa, Maharashtra and Bihar. But if there is any one place where the Central legislation of Inter State Migrant Workmens Act
1979 is being most flagrantly violated it is here in these mines, without any residential accommodation, with the name-not even a thatched roof to fend against the icy winds and winter rain or against the scorching heat in midsummer, with scanty clothing, with very impure and polluted drinking water accumulated during rainy season in the clitches, with absolutely no facilities for schooling or childcare, braving all the hazards of nature and pollution and illtreatment, these
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thousands of sons and daughters of Mother India epitomise the "Wretched of the
Earth".
On top of all these forms of exploitation is the totally illegal system of
"Thekedars", middlemen who extract 30% of the poor miner 's wages as their ill gotten commission (Rs. 20 out of Rs. 60, wages for per truck load of stone ballast).
The trucks are invariably oversigned in some cases they doubt the prescribed size of 150 Sq. feet but payment remains the same. The hills are dotted with liquor vends-legal and illegal. Murders and molestation of women is very common.
The petitioner also set out the various provisions of the Constitution and the statutes which were not being implemented or observed in regard to the labourers working in these stone quarries. The petitioner in the end prayed that a writ be issued for proper implementation of these provisions of the Constitution and statutes with a view to ending the misery, suffering and helplessness of "these victims of most inhuman exploitation".
The letter dated 25th February 1982 addressed by the petitioner was treated as a writ petition and by an order dated 26th February 1982 this Court issued notice on the writ petition and appointed two advocates, namely, M/s. Ashok Srivastava and Ashok Panda as commissioners to visit the stone quarries of Shri S.L. Sharma in Godhokhor (Anangpur) and
Lakkarpur in Faridabad district and to interview each of the persons whose names were mentioned in the letter of the petitioner as also a cross section of the other workers with a view to finding out whether they are willingly working in these stone quarries and also to inquire about the conditions in which they are working. M/s. Ashok Srivastava and Ashok Panda were directed to visit these stone quarries on 27th and 28th February 1982 and to make a report to this Court on or before 2nd March 1982. Pursuant to this order made by us, M/s. Ashok
Srivastava and Ashok Panda visited the stone quarries of S.L. Shrma in Godhokhor and
Lakkarpur and carried out the assignment entrusted to them and submitted a report to this
Court on 2nd March 1982. The Report pointed out inter alia that in the stone quarries of S.L.
Sharma at Godhakhpur, "many stone crushing machines were operating with the result that the whole atmosphere was full of dust and it was difficult even to breathe".
The Report then referred to the statements of various workers interviewed by M/s. Ashok
Srivastava and Ashok Panda and according to the statements given by some of them, namely,
Lalu Ram, Dalla Ram, Thakur Lal, Budh Ram, Harda, Mahadev, Smt. Shibban, Hardev,
Anam, Punnu, Ghanshyam, Randhir and Mute, they were not allowed to leave the stone quarries and were providing forced labour and they did not have even pure water to drink but wire compelled in most cases to drink dirty water from a nallah and were living in Jhuggies with stones piled one upon the other as walls and straw covering at the top, which did not afford any protection against sun and rain and which were so low that a person could hardly stand inside them. The statements of these workers showed that a few of them were suffering from tuberculosis and even when injuries were caused due to accidents arising in the course of employment, no compensation was being paid to them and there were no facilities for medical treatment or schooling for children.
The Report proceeded to state that M/s. Ashok Srivastava and Ashok Panda then visited mine No. 8 in Godhokhor stone quarries and here they found that the condition of the jhuggies was much worse inasmuch as the jhuggies were made only of straw and most of the people living in jhuggies had no clothes to wear and were shivering from cold and even the small children were moving about without any proper clothing. M/s. Ashok Srivastava and Ashok
Panda found that none of the inmates of the jhuggies had any blanket or woolen clothes and they did not even have any mat on which they could sleep. The statements of Phool Chand,
Babu Lal, Bhoolu, Karaya, Ram Bahadur and Sallu also showed that all these workers were bonded labourers who were not allowed to leave the stone quarries and one of them, namely,
Sallu was seriously injured on his left leg only a day before the visit of M/s. Ashok Srivastava
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and Ashok Panda but be did not hope to get any compensation "because here no one gets any compensation for any injury". Most of the workers interviewed by M/s. Ashok Srivastava and
Ashok Panda stated that they got very little by way of wages from the mine lessees or owners of stone crushers since they had to purchase explosives with their own moneys and they had to incur other expenses which, according to Dr. Patwardhan 's report to which we shall refer hereafter, included 50 per cent of the expenses of drilling holes. M/s. Ashok Srivastava and
Ashok Panda also pointed out in the Report that the following persons working in the
Godhokhor stone quarries claimed that they were bonded labourers:
(1) Chand Bahadur son of Hastbir (2) Lal Bahadur son of Umbar Bahadur (3)
Chhotey Lal son of Jarau (4) Harak Bahadur son of Jeet Bahadur (5) Gopal
Bahadur son of Jhabu Singh (6) Roop Singh son of Govinda (7) Medh Bahadur son of Aspteir (8) Jiddey Bahadur son of Nunbahadur (9) Phool Bahadur son of
Ram Bahadur (10) Heera Bahadur son of Balbahadur (11) Veer Bahadur son of
Chhalvir (12) Nam Singh son of Lal Bahadur (13) Lal Bahadur son of Gang
Bahadur (14) Ganesh son of Gang Pahrdur (15) Amber Bahadur son of Sadhu
Bahadur (16) Hira Lal son of Atbahadur (17) Kamar Bahadur (18) Jagadh
Bahadur son of Top Bahadur (19) Gajender Bahadur son of Shyam Lal (20) Ganga
Ram son of Lal Bahadur (21) Nar Bahadur and (22) Sant Bahadur son of Bhag
Bahadur.
So far as the workers working in Lakkarpur stone quarries were concerned, the report of
M/s. Ashok Srivastava and Ashok Panda stated that out of about 250 persons living in straw jhuggies, 100 persons hailed from Bilaspur while 150 persons belonged to Allahabad and according to the report, 100 persons coming from Bilaspur stated that they were forcibly kept by the contractor and they were not allowed to move out of their place and they were bonded labourers. M/s. Ashok Srivastava and Ashok Panda described in the Report the pitiable condition in which these workers were living in straw jhuggies without any protection against sun and rain and with drinking water available only from the barsati nallah. The Report pointed out that while M/s. Ashok Srivastava and Ashok Panda were interviewing the workers in the
Lakkarpur stone quarry, it started raining heavily and thereupon they took shelter in one of the jhuggies "but inside the jhuggi it was not safe, as water was pouring inside" and they were completely drenched inside the jhuggi. The Report also stated that, according to these workers, there were no medical facilities available and even where workers were injured, they did not get any medical aid. The Report ended by observes that these workmen "presented a picture of helplessness, poverty and extreme exploitation at the hands of moneyed people" and they were found "leading a most miserable life and perhaps beasts and animals could be leading more comfortable life than these helpless labourers",
Thereafter, the writ petition came up for hearing on 5th March 1982 along with another writ petition filed by the present petitioner for release of some other bonded labourers and on this day the Court made an order directing that the copies of the Report of M/s. Ashok
Srivistava and Ashok Panda should be supplied to all the minelessees and stone crushers who are respondents to the writ petitions so that they may have an opportunity to file their reply to the facts found in the Report. The Court also appointed Dr. Patwardhan of Indian Institute of
Technology to carry out a socio-legal investigation in the following terms:
It is necessary that a socio-legal investigation should be carried out for the purpose of determining what are the condition prevailing in the various quarries in
Faridabad District and whether there are any workmen in those quarries against their will or without their consent and what are the conditions in which they are living and whether any of the provisions of the Bonded Labour System
(Abolition) Act and Inter-State Migrant Workmen (Regulation of Employment &
Conditions of Service) Act is being violated. We may make it clear that when we are directing a socio-legal investigation of these matters it is not in a spirit to criticise the State Government or any of its officers but with a view to find out the
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correctness of the state of affairs so that the State Government and its officers could take necessary steps for remedying the situation if a state of affairs exists which is contrary to the provisions of law and the basic human norms. The Court can take action only after the socio-legal investigation is carried out by some responsible person and a copy of the report of the socio-legal investigation is made available to the parties. We would, therefore, request Dr. Patwardhan of I.I.T. to be good enough to carry out a socio-legal investigation into the aforesaid matters in the quarries in Faridabad District a list of which will be supplied by Mr.
Mukhoty on behalf of the petitioners to Dr. Patwardhan within ten days from today after giving a copy to Mr. K.G. Bhagat, learned Counsel appearing for the
State of Haryana. Dr. Patwardhan is requested to carry out socio-legal investigation with a view to putting forward a scheme for improving the living conditions for the workers working in the stone quarries and after the scheme is submitted to us we propose to hear the parties on the scheme with a view to evolving a final scheme with the assistance of the State of Haryana for the purpose of economic regeneration of these workmen.
The Court permitted Dr. Patwardhan to take the assistance of any person other than the parties to the writ petition in order to help him in his task and at the suggestion of the Court, the State of Haryana agreed to deposit a sum of Rs. 1500 to meet the expenses of Dr.
Patwardhan in carrying out the socio-legal investigation. The Court also recorded in its order that when it was pointed out in the Report of M/s. Ashok Srivastava and Ashok Panda that the workers in the stone quarries did not have any pure drinking water but were using dirty water from the nallah for drinking purposes, Mr. K.G. Bhagat learned Additional Solicitor General appearing on behalf of the State of Haryana fairly stated that "though it may not be strictly the obligation of the State Government, the State Government will take necessary measures for providing drinking facilities to the workmen in the stone quarries". The Court also directed the the workmen whose names were set out in the writ petition and in the Report of M/s.
Ashok Srivastava and Ashok Panda and particularly in regard to whom a separate statement had been filed in Court on behalf of the petitioner, would be free to go wherever they liked and they should not be restrained from doing so by any one and "if they go to their respective villages, the district magistrates having jurisdiction over those villages" shall "take steps or measures to the extent possible for rehabilitating them.
Pursuant to this order made by the Court, the State of Haryana deposited a sum of Rs.
1500 in Court to meet the expenses of the socio-legal investigation and Dr. Patwardhan embarked upon his task with the assistance of Mr. Krishan Mahajan, the legal correspondent of the Hindustan Times. It took some time for Dr. Patwardhan to complete his assignment and prepare his report but having regard to the immensity of the task, the time within which Dr.
Patwardhan finished the inquiry and submitted his report was remarkably short. We shall have occasion to refer to this Report a little latter when we deal with the arguments advanced on behalf of the parties, but we may point out at this stage that the report of Dr. Patwardhan is a comprehensive, well documented socio-legal study of the conditions in which the workmen engaged in stone quarries and stone crushers live and work and it has made various constructive suggestions and recommendations for the purpose of improving the living conditions of these workmen. We are indeed grateful to Dr. Patwirdhan for carrying out this massive assignment so efficiently and in such a short time. Dr. Patwardhan has submitted a statement of the expenses incurred by him in carrying out this socio-legal investigation and this statement shows that he has incurred a total expense of Rs. 2078 which after withdrawal of the amount of Rs. 1500 deposited by the State of Haryana, leaves a balance of Rs. 578 to be reimbursed to Dr. Patwardhan. We are of the view that Dr. Patwardhan should also be paid a small honorarium of Rs. 1000. We would therefore direct the State of Haryana to deposit a sum of Rs. 1578 with the Registry of this Court within 4 weeks from today with liberty to Dr.
Patwardhan to withdraw the same.
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Though it was stated by Shri K.G. Bhagat on behalf of the State of Haryana that the State
Government will take necessary measures for providing drinking facilities to the workmen in the stone quarries referred to in the writ petition and in the report of M/s. Ashok Srivastava and Ashok Panda, it appears that either no such measures were taken on behalf of the State
Government or even if they were taken, they were short lived. The result was that the workmen working in most of these stone quarries had to remain without pure drinking water and they had to continue "to quench their thirst by drinking dirty and filthy water". Whether it is the obligation of the State Government to provide pure drinking water and if so what measures should be directed to be taken by the State Government in that behalf are matters which we shall presently consider. These are matters of some importance because there can be no doubt that pure drinking water is absolutely essential to the health and welfare of the workmen and some authority has to be responsible for providing it.
Before we proceed to consider the merits of the controversy between the parties in all its various aspects it will be convenient at this stage to dispose of a few preliminary objections urged on behalf of the respondents. The learned Additional Solicitor General appearing on behalf of the State of Haryana as also Mr. Phadke on behalf of one of the mine lessees contended that even if what is alleged by the petitioner in his letter which has been treated as a writ petition, is true, it cannot support a writ petition under Article 32 of the Constitution, because no fundamental right of the petitioner or of the workmen on whose behalf the writ petition has been filed, can be said to have been infringed. This contention is, in our opinion, futile and it is indeed surprising that the State Government should have raised it in answer to the writ petition. We can appreciate the anxiety of the mine lessees to resist the writ petition on any ground available to them, be it hyper-technical or even frivolous, but we find it incomprehensible that the State Government should urge such a preliminary objection with a view to stifling at the thresh-hold an inquiry by the Court as to whether the workmen are living in bondage and under inhuman conditions. We should have thought that if any citizen brings before the Court a complaint that a large number of peasants or workers are bonded serfs or are being subjected to exploitation by a few mine lessees or contractors or employers or are being denied the benefits of social welfare laws, the State Government, which is, under our constitutional scheme, charged with the mission of bringing about a new socio-economic order where there will be social and economic justice for every one and equality of status and opportunity for all, would welcome an inquiry by the court, so that if it is found that there are in fact bonded labourers or even if the workers are not bonded in the strict sense of the term as defined in the Bonded Labour System (Abolition) Act 1976 but they are made to provide forced labour or are consigned to a life of utter deprivation and degradation, such a situation can be set right by the State Government. Even if the State Government is on its own inquiry satisfied that the workmen are not bonded and are not compelled to provide forced labour and are living and working in decent conditions with all the basic necessities of life provided to them, the State Government should not baulk an inquiry by the court when a complaint is brought by a citizen, bat it should be anxious to satisfy the court and through the court, the people of the country, that it is discharging its constitutional obligation fairly and adequately and the workmen are being ensured social and economic justice. We have on more occasions thin one said that public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the signature time of our Constitution. The Government and its officers must welcome public interest litigation, because it would provide them an occasion to examine whether the poor and the down-trodden are getting their social and economic entitlements or whether they are continuing to remain victims of deception and exploitation at the hands of strong and powerful sections of the community and whether social and
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economic justice has become a meaningful reality for them or it has remained merely a teasing illusion and a promise of unreality, so that in case the complaint in the public interest litigation is found to be true, they can in discharge of their constitutional obligation root out exploitation and injustice and ensure to the weaker sections their rights and entitlements. When the Court entertains public interest litigation, it does not do so in a cavilling spirit or in a confrontational mood or with a view to tilting at executive authority or seeking to usurp it but its attempt is only to ensure observance of social and economic rescue programmes, legislative as well as executive, framed for the benefit of the have-nots and the handicapped and to protect them against violation of their basic human rights, which is also the constitutional obligation of the executive. The Court is thus merely assisting in the realisation of the constitutional objectives.
Moreover, when a complaint is made on behalf of workmen that they are held in bondage and are working and living in miserable conditions without any proper or adequate shelter over their heads, without any protection against sun and rain, without two square meals per day and with only dirty water from a nullah to drink, it is difficult to appreciate how such a complaint can be thrown out on the ground that it is not violative of the fundamental right of the workmen. It is the fundamental right of every one in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullen (1981) 1 SCC 608 to live with human dignity, free from exploitation. This right to live with human dignity enshrined in
Article 21 derives its life breath from the Directive Principles of State Policy and particularly
Clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State neither the Central
Government nor any State Government-has the right to take any action which will deprive a person of the enjoyment of these basic essentials.
Since the Directive Principles of State Policy contained in Clauses (e) and (f) of Article
39, Article 41 and 42 are not enforceable in a court of law, it may not be possible to compel the State through the judicial process to make provision by statutory enactment or executive fiat for ensuring these basic essentials which go to make up a life of human dignity but where legislation is already enacted by the State providing these basic requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 21, more so in the context of Article 256 which provides that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State. We have already pointed out in Asiad Construction Worker (1982) 3 SCC 235 that the State is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when he belongs to the weaker sections of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. The Central Government is therefore bound to ensure observance of various social welfare and labour laws enacted by Parliament for the purpose of securing to the workmen a life of basic human dignity in compliance with the Directive Principles of State Policy.
It must also follow as a necessary corollary that the State of Haryana in which the stone quarries are vested by reason of Haryana Minerals (Vesting of Rights) Act 1973 and which is therefore the owner of the mines cannot while giving its mines for stone quarrying operations, permit workmen to be denied the benefit of various social welfare and labour laws enacted
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with a view to enabling them to live a life of human dignity. The State of Haryana must therefore ensure that the mine-lessees or contractors, to whom it is giving its mines for stone quarrying operations, observe various social welfare and labour laws enacted for the benefit of the workmen. This is a constitutional obligation which can be enforced against the Central
Government and the State of Haryana by a writ petition under Article 32 of the Constitution.
The next preliminary objection urged by the learned Additional Solicitor General on behalf of the State of Haryana and Mr. Phadke on behalf of one of the mine-lessees was that the court had no power to appoint either Mr. Ashok Srivastava and Mr. Ashok Panda or Mr.
Patwardhan as commissioners and the Reports made by them had no evidentiary value since what was stated in the Reports was based only on ex-parte statements which had not been tested by cross-examination. The learned Additional Solicitor General as also Mr. Phadke relied on Order XLVI of the Supreme Court Rules 1966 which, as its heading shows, deals with commissions and contended that since the commissions issued by the court in the present case did not fall within the terms of any of the provisions of Order XLVI, they were outside the scope of the power of the court and the court was not entitled to place any reliance on their reports for the purpose of adjudicating the issues arising in the writ petition. This arguemnt, plausible though it may seem at first sight, is in our opinion not well founded and must be rejected. It is based upon a total misconception of the true nature of a proceeding under Article
32 of the Constitution.
Article 32 is so frequently used by lawyers and judges for enforcement of fundamental rights without any preliminary objection against its invocation being raised on behalf of the
State, that we have rarely any occasion to examine its language and consider how large is the width and amplitude of its dimension and range. We are so much accustomed to the concepts of Anglo-Saxon jurisprudence which require every legal proceeding including a proceeding for a high prerogative writ to be cast in a rigid or definitive mould and insist on observance of certain well settled rules of procedure, that we implicitly assume that the same sophisticated procedureal rules must also govern a proceeding under Article 32 and the Supreme Court cannot permit itself to be freed from the shackles of these rules even if that be necessary for enforcement of a fundamental right. It was on the basis of this impression fostered by long association with the Anglo-Saxon system of administration of justice that for a number of years this Court had taken the view that it is only a person whose fundamental right is violated who can approach the Supreme Court for relief under Article 32 or in other words, he must have a cause of action for enforcement of his fundamental right. It was only in the year 1981 in the Judges Appointment and Transfer Case [1982]2SCR365 that this Court for the first time took the view that where a person or class of persons to whom legal injury is caused by reason of violation of a fundamental right is unable to approach the court for judicial redress on account of poverty or disability or socially or economically disadvantaged position, any member of the public acting bona fide can move the court for relief under Article 32 and a fortiorari, also under Article 226, so that the fundamental rights may become meaningful not only for the rich and the well-to-do who have the means to approach the court but also for the large masses of people who are living a life of want and destitution and who are by reason of lack of awareness, assertiveness and resources unable to seek judicial redress. This view which we took in the Judges Appointment and Transfer Case is clearly within the terms of Article
32 if only we look at the language of this Article uninfluenced and uninhibited by any preconceptions and prejudices or any pre-conceived notions. …
While interpreting Article 32, it must be borne in mind that our approach must be guided not by any verbal or formalistic canons of construction but by the paramount object and purpose for which this Article has been enacted as a Fundamental Right in the Constitution and its interpretation must receive illumination from the trinity of provisions which permeate
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and energise the entire Constitution namely, the Preamble, the Fundamental Rights and the
Directive Principles of State Policy. Clause (1) of Article 32 confers the right to move the
Supreme Court for enforcement of any of the fundamental rights, but it does not say as to who shall have this right to move the Supreme Court nor does it say by what proceedings the
Supreme Court may be so moved. There is no limitation in the words of Clause (1) of Article
32 that the fundamental right which is sought to be enforced by moving the Supreme Court should be one belonging to the person who moves the Supreme Court nor does it say that the
Supreme Court should be moved only by a particular kind of proceeding. It is clear on the plain language of Clause (1) of Article 32 that whenever there is a violation of a fundamental right, any one can move the Supreme Court for enforcement of such fundamental right. Of course, the Court would not, in exercise of its discretion, intervene at the instance of a meddlesome interloper or busy body and would ordinarily insist that only a person whose fundamental right is violated should be allowed to activise the court, but there is no fetter upon the power of the court to entertain a proceeding initiated by any person other than the one whose fundamental right is violated, though the court would not ordinarily entertain such a proceeding, since the person whose fundamental right is violated can always approach the court and if he does not wish to seek judicial redress by moving the court, why should some one else be allowed to do so on his behalf. This reasoning however breaks down when we have the case of a person or class of persons whose fundamental right is violated but who cannot have resort to the court on account of their poverty or disability or socially or economically disadvantaged position and in such a case, therefore, the court can and must allow any member of live public acting bona fide to espouse the cause of such person or class of persons and move the court for judicial enforcement of the fundamental right of such person or class of persons. This does not violate, in the slightest measure, the language of the constitutional provision enacted in Clause (1) of Article 32.
Then again Clause (1) of Article 32 says that the Supreme Court can be moved for enforcement of a fundamental right by any 'appropriate ' proceeding. There is no limitation in regard to the kind of proceeding envisaged in Clause (1) of Article 32 except that the proceeding must be "appropriate" and this requirement of appropriateness must be judged in the light of the purpose for which the proceeding is to be taken, namely, enforcement of a fundamental right. The Constitution makers deliberately did not lay down any particular form of proceeding for enforcement of a fundamental right nor did they stipulate that such proceeding should conform to any rigid pattern or straight jacket formula as, for example, in
England, because they knew that in a country like India where there is so much of poverty, ignorance, illiteracy, deprivation and exploitation, any insistence on a rigid formula of proceeding for enforcement of a fundamental right would become self-defeating because it would place enforcement of fundamental rights beyond the reach of the common man and the entire remedy for enforcement of fundamental rights which the Constitution makers regarded as so precious and invaluable that they elevated it to the status of a fundamental right, would become a more rope of sand so far as the large masses of the people in this country are concerned. The Constitution makers therefore advisedly provided in Clause (1) of Article 32 that the
Supreme Court may be moved by any 'appropriate ' proceeding, 'appropriate ' not in terms of any particular form but 'appropriate ' with reference to the purpose of the proceeding. That is the reason why it was held by this Court in the Judges Appointment and Transfer Case tint where a member of the public acting bona fide moves the Court for enforcement of a fundamental right on behalf of a person or class of persons who on account of poverty or disability or socially or economical disadvantaged position cannot approach the court for relief, such member of the public may move the court even by just writing a letter, because it would not be right or fair to expect a person acting pro bono publico to incur expenses out of
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his own pocket for going to a lawyer and preparing a regular writ petition for being filed in court for enforcement of the fundamental right of the poor and deprived sections of the community and in such a case, a letter addressed by him can legitimately be regarded as an
"appropriate" proceeding.
But the question then arises as to what is the power which may be exercised by the
Supreme Court when it is moved by an "appropriate" proceeding for enforcement of a fundamental right. The only provision made by the Constitution makers in this behalf is to be found in Clause (2) of Article 32 which confers power on the Supreme Court "to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, which-ever may be appropriate, for enforcement of any of the fundamental rights. It will be seen that the power conferred by Clause (2) of Article
32 is in the widest terms. It is not confined to issuing the high prerogative writs of habeas corpus, mandamus, prohibition, certiorari and quo quarranto, which are hedged in by strict conditions differing from one writ to another and which to quote the words spoken by Lord
Atkin in United Australia Limited v. Barclays Bank Ltd. [1941] AC 1 in another context often
"stand in the path of justice Clanking their mediavel chains". But it is much wider and includes within its matrix, power to issue any directions, orders or writs which may be appropriate for enforcement of the fundamental right in question and this is made amply clear by the inclusive clause which refers to in the nature of habeas corpus, mandamus, prohibition, quo warranto and cartiorari. It is not only the high prerogative writs of mandamus is, habeas corpus, prohibition, quo warranto and certiorari which can be issued by the Supreme Court but also writs in the nature of these high prerogative writs and therefore even if the conditions for issue of any of these high prerogative writs are not fulfilled, the Supreme Court would not be constrained to fold its hands in despair and plead its inability to help the citizen who has come before it for judicial redress, but would have power to issue any direction, order or writ including a writ in the nature of any high prerogative writ.
This provision conferring on the Supreme Court power to enforce the fundamental rights in the widest possible terms shows the anxiety of the Constitution makers not to allow any procedureal technicalities to stand in the way of enforcement of fundamental rights. The
Constitution makers clearly intended that the Supreme Court should have the amplest power to issue whatever direction, order or writ may be appropriate in a given case for enforcement of a fundamental right But what procedure shall be followed by the Supreme Court in exercising the power to issue such direction, order or writ? That is a matter on which the
Constitution is silent and advisedly so, because the Constitution makers never intended to fetter the discretion of the Supreme Court to evolve a procedure appropriate in the circumstances of a given case for the purpose of enabling it to exercise its power of enforcing a fundamental right. Neither Clause (2) of Article 32 nor any other provision of the
Constitution requires that any particular procedure shall be followed by the Supreme Court in exercising its power to issue an appropriate direction, order or writ. The purpose for which the power to issue an appropriate direction, order or writ is conferred on the Supreme Court is to secure enforcement of a fundamental right and obviously therefore, whatever procedure is necessary for fulfilment of the purpose must be permissible to the Supreme Court. It is not at all obligatory that an adversarial procedure, where each party produces his own evidence tested by cross examination by the other side and the judge sits like an umpire and decides the case only on the basis of such material as may be produced before him by both parties, must be followed in a proceeding under Article 32 for enforcement of a fundamental right. In fact, there is no such constitutional compulsion enacted in Clause (2) of Article 32 or in any other pant of the Constitution. It is only because we have been following the adversarial procedure for over a century owing to the introduction of the Anglo-Saxon system of jurisprudence under the British Rule that it has become a part of our conscious as well as sub-conscious thinking
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that every judicial proceeding must be cast in the mould of adversarial procedure and that justice cannot be done unless the adversarial procedure is adopted. But it may be noted that there is nothing sacrosanct about the adversarial procedure and in fact it is not followed in many other countries where the civil system of law prevails. The adversarial procedure with evidence led either party and tested by cross-examination by the other party and the judge playing a passive role has become a part of our legal system because it is embodied in the
CPC and the Indian Evidence Act.
But these statutes obviously have no application where a new jurisdiction is created in the
Supreme Court for enforcement of a fundamental right. We do not think we would be justified in imposing any restriction on the power of the Supreme Court to adopt such procedure as it thinks fit in exercise of its new jurisdiction, by engrafting adversarial procedure on it when the Constitution makers have deliberately chosen not to insist on any such requirement and instead, left it open to the Supreme Court to follow such procedure as it thinks appropriate for the purpose of securing the end for which the power is conferred, namely, enforcement of a fundamental right. The adversarial procedure has, in fact, come in for a lot of criticism even in the country of its origin, and there is an increasing tendency even in that country to depart from its strict norms. Lord Delin speaking of the English judicial system said: "If our methods were as antiquated as our legal methods, we should be a bankrupt country". And Foster Q.C. observed: "I think the whole English system is non-sense. I would go to the root of it-the civil case between two private parties is a mimic battle … conducted according to rules of evidence." There is a considerable body of juristic opinion in our country also which believes that strict adherence to the adversarial procedure can some times lead to injustice, particularly where the parties are not evenly balanced in social or economic strength.
Where one of the parties to a litigation belongs to a poor and deprived section of the community and does not possess adequate social and material resources, he is bound to be at a disadvantage as against a strong and powerful opponent under the adversary system of justice, because of his difficulty in getting competent legal representation and more than anything else, his inability to produce relevant evidence before the court. Therefore, when the poor come before the court, particularly for enforcement of their fundamental rights, it is necessary to depart from the adversarial procedure and to evolve a new procedure which will make it possible for the poor and the weak to bring the necessary in material before the court for the purpose of securing enforcement of their fundamental rights. It must be remembered that the problems of the poor which are now coming before the court are qualitatively different from those which have hither to occupied the attention of the court and they need a different kind of lawyering skill and a different kind of judicial approach. If we blindly follow the adversarial procedure in their case, they would never be able to enforce their fundamental rights and the result would be nothing but a mockery of the Constitution. We have therefore to abandon the laissez faire approach in the judicial process particularly where it involves a question of enforcement of fundamental rights and forge new tools devise new methods and adopt new strategies for the purpose of making fundamental rights meaningful for the large masses of people. And this is clearly permissible on the language of Clause (2) of Article 32 because the Constitution makers while enacting that clause have deliberately and advisedly not used any words restricting the power of the court to adopt any procedure which it considers appropriate in the circumstances of a given case for enforcing a fundamental right.
It is true that the adoption of this non-traditional approach is not likely to find easy acceptance from the generality of lawyers because their minds are conditioned by constant association with the existing system of administration of justice which has become ingrained in them as a result of long years of familiarity and experience and become part of their mental make up and habit and they would therefore always have an unconscious predilection for the
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prevailing system of administration of justice. But if we want the fundamental rights to become a living reality and the Supreme Court to become a real sentinel on the quivive, we must free ourselves from the shackles of outdated and outmoded assumptions and bring to bear on the subject fresh outlook and original unconventional thinking.
Now it is obvious that the poor and the disadvantaged cannot possibly produce relevant material before the court in support of their case and equally where an action is brought on their behalf by a citizen acting pro 'bono publico, it would be almost impossible for him to gather the relevant material and place it before the court. What is the Supreme Court to do in such a case? Would the Supreme Court not be failing in discharge of its constitutional duty of enforcing a fundamental right if it refuses to intervene because the petitioner belonging to the underprivileged segment of society or a public spirited citizen espousing his cause is unable to produce the relevant material before the court. If the Supreme Court were to adopt a passive approach and decline to intervene in such a case because relevant material has not been produced before it by the party seeking its intervention the fundamental rights would remain merely a teasing illusion so far as the poor and disadvantaged sections of the community are concerned. It is for this reason that the Supreme Court has evolved the practice of appointing commissions for the purpose of gathering facts and data in regard to a complaint of breach of fundamental right made on behalf of the weaker sections of the society.
The Report of the commissioner would furnish prima facie evidence of the facts and data gathered by the commissioner and that is why the Supreme Court is careful to appoint a responsible person as commissioner to make an inquiry or investigation into the facts relating to the complaint. It is interesting to note that in the past the Supreme Court has appointed sometimes a district magistrate, sometimes a district Judge, sometimes a professor of law, sometimes a journalist, sometimes an officer of the court and sometimes an advocate practising in the court, for the purpose of carrying out an inquiry or investigation and making report to the court because the commissioner appointed by the Court must be a responsible person who enjoys the confidence of the court and who is expected to carry out his assignment objectively and impartially without any predilection or prejudice. Once the report of the
Commissioner is received, copies of it would be supplied to the parties so that either party, if it wants to dispute any of the facts or data stated in the Report, may do so by filing an affidavit and the court then consider the report of the commissioner and the affidavits which may have been filed and proceed to adjudicate upon the issue arising in the writ petition, It would be entirely for the Court to consider what weight to attach to the facts and data stated in the report of the commissioner and to what extent to act upon such facts and data. But it would not be correct to say that the report of the commissioner has no evidentiary value at all, since the statements made in it are not tested by cross-examination. To accept this contention would be to introduce the adversarial procedure in a proceeding where in the given situation, it is totally inapposite. The learned Additional Solicitor General and Mr. Phadke relied on Order XXVI of the CPC and Order XLVI of the Supreme Court Rules 1966 for the purpose of contending that a commission can be appointed by the Supreme Court only for the purpose of examining witnesses, making legal investigations and examining accounts and the Supreme Court has no power to appoint a commission for making an inquiry or investigation into facts relating to a complaint of violation of a fundamental right in a proceeding under Article 32. Now it is true that Order XLVI of the Supreme Court Rules 1966 makes, the provisions of Order XXVI of the CPC, except Rules 13, 14, 19, 20, 21 and 22 applicable to the Supreme Court and lays down the procedure for an application for issue of a commission, but Order XXVI is not exhaustive and does not detract from the inherent power of the Supreme Court to appoint a conmission, if the Appointment of such commission is found necessary for the purpose of securing enforcement of a fundamental right in exercise of its constitutional jurisdiction under
Article 32. Order XLVI of the Supreme Court Rules 1966 cannot in any way militate against
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the power of the Supreme Court under Article 32 and in fact Rule 6 of Order XLVII of the
Supreme Court Rules 1966 provides that nothing in those Rules "shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of justice." We cannot therefore accept the contention of the learned Addl. Solicitor
General and Mr. Phadke that the court acted beyond its power in appointing M/s. Ashok
Srivastava and Ashok Panda as commissioners in the first instance and Dr. Patwardhan as commissioner at a subsequent stage for the purpose of making an inquiry into the conditions of workmen employed in the stone quarries. The petitioner in the writ petition specifically alleged violation of the fundamental rights of the workmen employed in the stone quarries under Articles 21 and 23 and it was therefore necessary for the court to appoint these commissioners for the purpose of inquiring into the facts related to this complaint. The Report of M/s. Ashok Srivastava and Ashok Panda as also the Report of Dr Patwardhan were clearly documents having evidentiary value and they furnished prima facie evidence of the facts and data stated in those Reports. Of course, as we have stated above, it will be for us to consider what weight we should attach to the facts and data contained in these Reports in the light of the various affidavits filed in the proceedings.
We may point out that what we have said above in regard to the exercise of jurisdiction by the Supreme Court under Article 32 must apply equally in relation to the exercise of jurisdiction by the High Courts under Article 226, for the latter jurisdiction is also a new constitutional jurisdiction and it is conferred in the same wide terras as the jurisdiction under
Article 32 and the same powers can and must therefore be exercised by the High Courts while exercising jurisdiction under Article 226. In fact, the jurisdiction of the High Courts under
Article 226 is much wider, because the High Courts are required to exercise this jurisdiction not only for enforcement of a fundamental right but also for enforcement of any legal right and there are many rights conferred on the poor and the disadvantaged which are the creation of statute and they need to be enforced as urgently and vigorously as fundamental rights.
Having disposed of these preliminary objections, we shall now proceed to consider the writ petition on merits. …
………
Lastly, we must consider the provisions of the Bonded Labour System (Abolition) Act
1976. We have already pointed out that many of the States are not prepared to admit the existence of bonded labour in their territories and the State of Haryana is no exception. But, in order to determine whether there is any bonded labour in the stone quarries and stone crushers in the Faridabad area of the State of Haryana, it is necessary to examine some of the relevant provisions of the Bonded Labour System (Abolition) Act 1976. This Act was enacted with a view to giving effect to Article 23 of the Constitution which prohibits traffic in human beings and begar and other similar forms of forced labour. We have had occasion to consider the true scope and dimension of this Article of the Constitution in People 's Union for
Democratic Rights v. Union of India (1982) 3 SCC 235 commonly known as the Asiad
Workers case and it is not necessary for us to say anything more about it in the present judgment. Suffice it to state that this Act is intended to strike against the system of bonded labour which has been a shameful scar on the Indian social scene for decades and which has continued to disfigure the life of the nation even after independence. The Act was brought into force through out the length and breadth of the country with effect from 25th October 1975, which means that the Act has been in force now for almost 8 years and if properly implemented, it should have by this time brought about complete identification, freeing and rehabilitation of bonded labour. But as official, semi-official and non-official reports show, we have yet to go a long way in wiping out this outrage against humanity. Clause (d) of Section
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2 defines "bonded debt" to mean an advance obtained or presumed to have been obtained, by a bonded labourer, under or in pursuance of, the bonded labour system. The expression 'bonded labourer ' is defined in Clause (f) to mean "a labourer who incurs, or has or is presumed to have incurred a bonded debt". Clause (g) defines "bonded labour system" to mean: the system of forced, or partly forced, labour under which a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect that,(i) in consideration of an advance obtained by him or by any of his lineal ascendants or descendants (whether or not such advance is evidenced by any document) and in consideration of the interest, if any, due on such advance, or
(ii) in pursuance of any customary or social obligation, or
(iii) for any economic consideration received by him or by any of his lineal ascendants or descendants, or he would(1) render, by himself or through any member of his family, or any person dependent on him, labour or service to the creditor, or for the benefit of the creditor, for a specified period or for an unspecified period, either without wages or for nominal wages, or
(2) forfeit the freedom of employment or other means of livelihood for a specified period or for an un-specified period, or
(3) forfeit the right to move freely throughout the territory of India, or
(4) forfeit the right to appropriate or sell at market value any of his property of his product of his labour or the labour of a member of his family or any person dependent on him.
The expression "nominal wages" is defined in Clause (i) of Section 2 to mean, in relation to any labour, a wage which is less than(a) the minimum wages fixed by the Government, in relation to the same or similar labour, under any law for the time being in force, and
(b) where no such wage has been fixed in relation to any form of labour, the wages that are normally paid, for the same or similar labour, to the labourers working in the same locality.
Section 4 is the material section which provides for abolition of bonded labour system and it runs as follows:
4(1) On the commencement of this Act, the bonded labour system shall stand abolished and every bonded labourer shall, on such commencement, stand freed and discharged from any obligation to render any bonded labour.
(2) after the commencement of this Act, no person shall(a) make any advance under, or in pursuance of, the bonded labour system, or
(b) compel any person to render any bonded labour or other form of forced labour.
Section 5 invalidates any custom or tradition or any contract agreement or other instrument by virtue of which any person or any member of the family or dependent of such person is required to do any work or render any service as a bonded labourer. Section 6 provides inter alia that on the commencement of the Act, every obligation of a bonded labourer to repay any bonded debt or such part of any bonded debt as remains unsatisfied immediately before such commencement, shall be deemed to have been extinguished. There are certain other consequential provisions in Section 7 to 9 but it is not necessary to refer to them. Sections
10 to 12 impose a duty on every District Magistrate and every officer to whom power may be delegated by him, to inquire whether after the commencement of the Act, any bonded labour
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system or any other form of forced labour is being enforced by or on behalf of, any person resident within the local limits of his jurisdiction and if, as a result of such inquiry, any person is found to be enforcing the bonded labour system or any other system of forced labour, he is required forthwith to take the necessary action to eradicate the enforcement of such forced labour. Section 15 provides for Constitution of a Vigilance Committee in each District and each sub-division of a District and sets out what shall be the composition of each Vigilance
Committee. The functions of the Vigilance Committee are set out in Section 14 and among other things, that Section provides that the Vigilance Committee shall be responsible inter alia to advise the District Magistrate as to the efforts made and action taken, to ensure that the provisions of the Act or any Rule made thereunder are properly implemented, to provide for the economic and social rehabilitation of the freed bonded labourers and to keep an eye on the number of offences of which cognizance has been taken under the Act. Then comes Section
15 which lays down that whenever any debt is claimed by any labourer or a Vigilance
Committee to be a bonded debt, the burden of proof that such debt is not a bonded debt shall lie on the creditor. These are some of the material provisions of the Bonded Labour System
(Abolition) Act 1976 which need to be considered.
It is a matter of regret that though Section 13 provides for Constitution of a Vigilance
Committee in each District and each sub-division of a District, the Government of Haryana, for some reason or the other, did not constitute any Vigilance Committee until its attention was drawn to this requirement of the law by this Court. It may be that according to the
Government of Haryana there were not at any time any bonded labourers within its territories, but even so Vigilance Committees are required by Section 13 to be constituted because the function of the Vigilance Committee is to identify bonded labourers, if there are any, and to free and rehabilitate them and it would not be right for the State Government not to constitute
Vigilance Committees on the assumption that there are no bonded labour at all. But we are glad to find that the Government of Haryana has now constituted a Vigilance Committee in each District. It does not appear from the record whether a Vigilance Committee his been constituted also in each sub-division of a District but we have no doubt that the Government of Haryana will without any delay and at any rate within six weeks from today constituees a
Vigilance Committee in each sub-division and thus comply with the requirement of Section
13 of the Act. We may point out that in constituting Vigilance Committee in each District and sub-division, the Haryana Government would do well to include representatives of nonpolitical social action groups operating at the grass root level, for it is only through such social action groups and voluntary agencies that the problem of identification of bonded labour can be effectively solved.
It was contended by the learned Additional Solicitor General on behalf of the State of
Haryana that in the stone quarries and stone crushers there might be forced labourers but they were not bonded labourers within the meaning of that expression as used in the Act, since a labourer would be a bonded labourer only if he has or is presumed to have incurred a bonded debt and there was nothing in the present case to show that the workmen employed in the stone quarries and stone crushers had incurred or could be presumed to have incurred any bonded debt. It was not enough, contended the learned Additional Solicitor General, for the petitioner merely to show that the workmen were providing forced labour in that they were not allowed to leave the premises of the establishment, but it was further necessary to show that they were working under the bonded labour system. The learned Additional Solicitor
General also submitted that in any event, even if the workmen filed affidavits to the effect that they had taken advances from thekedar or jamadar and or mine lessees and/or stone crusher owners and they were not allowed to leave the premises of the establishment until the advances were paid of, that would not be enough evidence for the Court to hold that they were bonded labourers, because the mine-lessees and stone crusher owners had no opportunity to cross-
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examine the workmen making such affidavits. This contention was seriously pressed by the learned Additional Solicitor General on behalf of the State of Haryana, but as we shall presently show, there is no substance in this contention. We may point out that in the course of the arguments we did suggest to the learned Additional Solicitor General that even if the workmen were not bonded labourers in the strict sense of the term but were merely forced to provide labour, should the State Government not accept liability for freeing and rehabilitating them, particularly in view of the Directive Principles of State Policy. The State of Haryana was however not prepared to come forward with any proposal in this behalf.
Now it is clear that bonded labour is a form of forced labour and Section 12 of the Bonded
Labour System (Abolition) Act 1976 recognises this self-evident proposition by laying a duty on every District Magistrate and every officer specified by him to inquire whether any bonded labour system or any other form of forced labour is being enforced by or on behalf of any person and, if so, to take such action as may be necessary to eradicate the enforcement of such forced labour. The thrust of the Act is against the continuance of any form of forced labour. It is of course true that, strictly speaking, a bonded labourer means a labourer who incurs or has or is presumed to have incurred a bonded debt and a bonded debt means an advance obtained or presumed to have been obtained by a bonded labourer under or in pursuance of the bonded labour system and it would therefore appear that before a labourer can be regarded as a bonded labourer, he must not only be forced to provide labour to the employer but he must have also received an advance or other economic consideration from the employer unless he is made to provide forced labour in pursuance of any custom or social obligation or by reason of his birth in any particular caste or community. It was on the basis of this definitional requirement that the learned Additional Solicitor General on behalf of the State of Haryana put forward the argument that even if the workmen employed in the stone quarries and stone crushers were being compelled to provide forced labour, they were not bonded labourers, since it as not shown by them or by the petitioner that they were doing so in consideration of an advance or other economic consideration received from the mine-lessees and owners of stone crushers.
Now if this contention of the learned Additional Solicitor General were well founded, it would become almost impossible to enforce the provisions of the Bonded Labour System
(Abolition) Act 1976 because in every case where bonded labourers are sought to be identified for the purpose of release and rehabilitation under the provisions of the Act, the State
Authorities as also the employer would be entitled to insist that the bonded labourers must first prove that they are providing forced labour in consideration of an advance or other economic consideration received by them and then only they would be eligible of the benefits provided under the Act and this would make it extremely difficult, if not impossible, for the labourers to establish that they are bonded labourers because they would have no evidence at all to prove that any advance or economic consideration was provided to them by the employer and since employment of bonded labourers is a penal offence under the Act the employer would immediately, without any hesitation, disown having given any advance or economic consideration to the bonded labourers. It is indeed difficult to understand how the State
Government which is constitutionally mandated to bring about change in the life conditions of the poor and the down-trodden and to ensure social justice to them could possibly take up the stand that the labourers must prove that they are made to provide forced labour in consideration of an advance or other economic consideration received from the employer and are therefore bonded labourers.
It is indeed a matter of regret that the State Government should have insisted on a formal, rigid and legalistic approach in the matter of a statute which is one of the most important measures for ensuring human dignity to these unfortunate specimens of humanity who are exiles of civilization and who are leading a life of abject misery and destitution. It would be
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cruel to insist that a bonded labourer in order to derive the benefits of this social welfare legislation, should have to go through a formal process of trial with the normal procedure for recording of evidence. That would be a totally futile process because it is obvious that a bonded labourer can never stand up to the rigidity and formalism of the legal process due to his poverty, illiteracy and social and economic backwardness and if such a procedure were required to be followed, the State Government might as well obliterate this Act from the statute book. It is now statistically established that most of bonded labourers are members of
Scheduled Castes and Scheduled Tribes or other backward classes and ordinary course of human affairs would show, indeed judicial notice can be taken of it, that there would be no occasion for a labourer to be placed in a situation where he is required to supply forced labour for no wage or for nominal wage, unless he has received some advance or other economic consideration from the employer and under the pretext of not having returned such advance or other economic consideration, he is required to render service to the employer or is deprived of his freedom of employment or of the right to move freely wherever he wants. Therefore, whenever it is shown that a labourer is made to provide forced labour, the Court would raise a presumption that he is required to do so in consideration of an advance or other economic consideration received by him and he is therefore a bonded labourer. This presumption may be rebutted by the employer and also by the State Government if it so chooses but unless and until satisfactory material is produced for rebutting this presumption, the Court must proceed on the basis that the labourer is a bonded labourer entitled to the benefit of the provisions of the Act. The State Government cannot be permitted to repudiate its obligation to identify, release and rehabilitate the bonded labourers on the plea that though the concerned labourers may be providing forced labour, the State Government does not owe any obligation to them unless and until they show in an appropriate legal proceeding conducted according to the rules of adversary system of justice, that they are bonded labourers.
The first question that arises in regard to the implementation of the Bonded Labour System
(Abolition) Act 1976 is that of identification of bonded labour. One major handicap which impedes the identification of bonded labour is the reluctance of the administration to admit the existence of bonded labour, even where it is prevalent. It is therefore necessary to impress upon the administration that it does not help to ostrich-like bury its head in the sand and ignore the prevalence of bonded labour, for it is not the existence of bonded labour that is a slur on the administration but its failure to eradicate it and moreover not taking the necessary steps for the purpose of wiping out this blot on the fair name of the State is a breach of its constitutional obligation. We would therefore direct the Government of Haryana and also suggest to the other State Governments, to take steps to sensitised the officers concerned with the implementation of the Act to this acute human problems and its socio-economic parameters. Moreover it may be noted that the District Magistrates have a central role to play under the provisions of the Act and the State Governments would therefore do well to instruct the District Magistrates to take up the work of identification of bonded labour as one of their top priority tasks. There are certain areas of concentration of bonded labour which can be easily identified on the basis of various studies and reports made by governmental authorities, social action groups and social scientists from time to time. These areas of concentration of bonded labour are mostly to be found in stonequarries, brick kilns and amongst agricultural landless labourers and such areas must be mapped out by each State Government and task forces should be assigned for identification and release of bonded labour. Labour camps should be held periodically in these areas with a view to educating the labourers and for this purpose, the assistance of the National Labour Institute may be taken, because the National
Labour Institute has the requisite expertise and experience of holding such camps and it should be associated with the organisation and conduct of such camps and in each such camp, individuals with organisational capability or potential should be identified and given training
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in the work of identification and release of bonded labour. More importantly non-political social action groups and voluntary agencies and particularly those with a record of honest and competent service for Scheduled Castes and Scheduled Tribes, agricultural labourers and other unorganised workmen should be involved in the task of identification and release of bonded labourers, for it is primarily through such social action groups and voluntary agencies alone that it will be, possible to eradicate the bonded labour system, because social action groups and voluntary agencies comprising men and women dedicated to the cause of emancipation of bonded labour will be able to penetrate through the secrecy under which very often bonded labourers are required to work and discover the existence of bonded labour and help to identify and release bonded labourers. We would therefore direct the Vigilance
Committees as also the District Magistrates to take the assistance of non-political social action groups and voluntary agencies for the purpose of ensuring implementation of the provisions of the Bonded Labour System (Abolition) Act 1976.
The other question arising out of the implementation of the Bonded Labour System
(Abolition) Act 1976 is that of rehabilitation of the released bonded labourers and that is also a question of the greatest importance, because if the bonded labourers who are identified and freed, are not rehabilitated, their condition would be much worse than what it was before during the period of their serfdom and they would become more exposed to exploitation and slide back once again into serfdom even in the absence of any coercion. The bonded labourer who is released would prefer slavery to hunger, a world of 'bondage and (illusory) security ' as against a world of freedom and starvation. The State Governments must therefore concentrate on rehabilitation of bonded labour and evolve effective programmes for this purpose. Indeed they are under an obligation to do so under the provisions of the Bonded Labour System
(Abolition) Act 1976. It may be pointed out that the concept of rehabilitation has the following four main features as admirably set out in the letter dated 2nd September 1982 addressed by the Secretary. Ministry of Labour, Government of India to the various States Governments:
(i) Psychological rehabilitation must go side by side will be social and economic rehabilitation; (ii) The physical and economic rehabilitation has 15 major components namely allotment of house-sites and agricultural land, land development, provision of low cost dwelling units, agriculture, provision of credit, horticulture, animal husbandry, training for acquiring new skills and developing existing skills, promoting traditional arts and crafts, provision of wage employment and enforcement of minimum wages, collection and processing of minor forest produce, health, medical care and sanitation, supply of essential commodities, education of children of bonded labourers and protection civil rights;
(iii) There is scope for bringing about an integration among the various central and centrally sponsored schemes and the on-going schemes of the State
Governments for a more qualitative rehabilitation. ' The essence of such integration is to avoid duplication i.e. pooling resources from different sources for the same purpose. It should be ensured that while funds are not drawn from different sources for the same purpose drawn from different sectors for different components of the rehabilitation scheme are integrated skillfully; and
(iv) While drawing up any scheme/programme of rehabilitation of freed bonded labour, the latter must necessarily be given the choice between the various alternatives for their rehabilitation and such programme should be finally selected for execution as would need the total requirements of the families of freed bonded labourers to enable them to cross the poverty line on the one hand and to prevent them from sliding back to debt bondage on the other.
We would therefore direct the Government of Haryana to draw up a scheme on programme for "a better and more meaningful rehabilitation of the freed bonded labourers" in the light of the above guidelines set out by the Secretary to the Government of India, Ministry
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of Labour in his letter dated 2nd September 1982. The other State Governments are not parties before us and hence we cannot give any direction to them, but we hope and trust that they will also take suitable steps for the purpose of securing identification, release and rehabilitation of bonded labourers on the lines indicated by us in this Judgment.
We are not at all satisfied that the stand taken on behalf of the State of Haryana that there is no bonded labour at all in the stone quarries and stone crushers is correct. The Report of
M/s. Ashok Srivastava and Ashok Panda shows that, according to the statements given by some of the workers, they were not allowed to leave the stone quarries and were providing forced labour and this Report also stated that several persons working in the Ghodhokor and
Lakarpur stone quarries were forcibly kept by the contractors and they were not allowed to move out of their places and were bonded labourers.
The petitioner also filed the affidavits of a large number of workers on 24th August 1982, each of them stating that he is under heavy debt of the thekedar who does not allow him to leave the premises without settling the account. We cannot ignore this material which has been placed before us and unquestioningly accept the statement made on behalf of the State of
Haryana that there is no bonded labour in the stone quarries and stone crushers. But at the same time, we do not think that it would be right for us on the basis of this material to come to a definite finding that these workers whose names are given in the Report of M/s. Ashok
Srivastava and Ashok Panda or who have filed affidavits are providing forced labour or are bonded labourers. It is necessary to direct a further inquiry for the purpose of ascertaining whether any of the labourers working in the stone quarries and stone crushers in Faridabad
District are bonded labourers in the light of the law laid down by us in this judgment.
We would therefore direct Shri Laxmi Dhar Misra, Joint Secretary in the Ministry of
Labour, Government of India, who has considerable experience of the work of identification, release and rehabilitation of bonded labourers, to visit the stone quarries and stone crushers in
Faridabad District and ascertain by enquiring from the labourers in each stone quarry or stone crusher whether any of them are being forced to provide labour and are bonded laboureres.
While making this inquiry, Shri Laxmi Dhar Misra will take care to see that when he interviews the labourers either individually or collectively, neither the mine-lessees or owners of stone crushers nor the thekedar of jamadar nor any one else is present. Shri Laxmi Dhar
Misra will prepare in respect of each stone quarry or stone crusher a statement showing the names and particulars of those who, according to the inquiry made by him, are bonded labourers and he will also ascertain from them whether they want to continue to work in the stone quarry or stone crusher or they want to go back to their homes and if they want to go back, the District Magistrate of Faridabad will on receipt of the statement from Shri Laxmi
Dhar Misra, make necessary arrangements for releasing them and provide for their transportation back to their hromes and for this purpose the State Government shall make the requisite funds available to the District Magistrate.
Shri Laxmi Dhar Misra will also enquire from the mine-lessees and owners of stone crushers as also from the thekedar or jamadar whether there are any advances made by them to the labourers working in the stone quarry or stone crusher and if so, whether there is any documentary evidence in support of the same and he will also ascertain what, according to the mine-lessees and owners of stone crushers or the jamadar or thekedar, are the amounts of loans still remaining outstanding against such labourers. Shri Laxmi Dhar Misra will submit his report to this Court on or before 28th February 1984. We may make it clear that the object and purpose of this inquiry by Shri Laxmi Dhar Misra is not to fasten any liability on the minelessees and owners of stone crushers and the jamadar or thekedar on the basis of the
Report of Shri Laxmi Dhar Misra but to secure the release and repatriation of those labourers who claim to be bonded labourers and who want to leave the employment and go some where
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else. We may point out that the problem of bonded labourers is a difficult problem because unless, on being freed from bondage, they are provided proper and adequate rehabilitation, it would not help to merely secure their release. Rather in such cases it would be more in their interest to ensure proper working conditions with full enjoyment of the benefits of social welfare and labour laws so that they can live a healthy decent life. But of course this would only be the next best substitute for release and rehabilitation which must receive the highest priority. So far as implementation of the provisions of the Minimum Wages Act 1948 is concerned we would direct the Central Government and State of Haryana to take necessary steps for the purpose of ensuring that minimum wages are paid to the workmen employed in the stone quarries and stone crushers in accordance with the principles laid down by us in this judgment.
It may not be a matter of any consequence as to which mode of payment is followd, whether the workmen are paid on truck basis or on any other basis, but what is essential is and that is what the Minimum Wages Act 1948 requires that the workmen must not receive any wage less than the minimum wage. Even if payment of wages is made to the workmen on truck basis, a formula would have to be evolved by the Central Government and the State of Haryana to ensure that the workmen receive no less than the minimum wage and to facilitate this formula it would have to be provided that the expenses on explosives and drilling holes shall be borne by the mine-lessees and or the jamadar or thekedar and the work of drilling holes and shot firing shall be entrusted only to those who have received requisite training under the
Mines Vocational Training Rules 1966.
We would direct the Central Government and the State of Haryana to take the necessary steps in this behalf so that within the shortest possible time and as far as possible within six weeks from today the workmen start actually receiving in their hands a wage not less than the minimum wage. If payment of wages is continued to be made on truck basis, it is necessary that the appropriate officer of the Central Enforcement Machinery must determine the measurement of each truck as to how many cubic feet of stone it can contain and print or inscribe such measurement on the truck, so that appropriate and adequate wage is received by the workmen for the work done by them and they are not c heated out of their legitimate wage.
We would also direct the inspecting officers of Central Enforcement Machinery to carry out surprise checks for the purpose of ensuring that the trucks are not loaded beyond their true measurement capacity. Such surprise checks shall be carried out by the inspecting officers of the Central Enforcement Machinery at least once in a week and if it is found that the trucks are loaded in excess of their true measurement capacity and the workmen are thereby deprived of their legitimate wages, the inspecting officers carrying out such checks will immediately bring this fact to the notice of the appropriate authorities for initiation of necessary action against the defaulting mine owners and/or thekedar or jamadar.
We would also direct the Central Government and the State of Haryana to ensure that payment of wage is made directly to the workmen by the mine-lessees and stone-crusher owners or at any rate in the presence of a representative of the mine-lessees and stone crushers owners and the inspecting officers of the Central Government as also of the State of Haryana shall carry out periodic checks in order to ensure that payment of the stipulated wage is made to the workmen. Shri Laxmi Dhar Misra will also, while holding an inquiry pursuant to this order, ascertain, by carrying out sample check, whether the workmen employed in any particular stone quarry or stone crusher are actually in receipt of wage not less than the minimum wage and whether the directions given by us in this order are being implemented by the authorities.
There are also two other matters in respect of which it is necessary for us to give directions. The first is that, apart from poverty and helplessness, one additional reason why
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the workmen employed in stone quarries and stone crushers are deprived of the rights and benefits conferred upon them under various social welfare laws enacted for their benefit and are subjected to deception and exploitation, in that they are totally ignorant of their rights and entitlements. It is this ignorance which is to some extent responsible for the total denial of the rights and benefits conferred upon them. It is therefore necessary to educate the workmen employed in stone quarries and stone crushers so that they become aware as to what are the rights and benefits to which they are entitled under the various social welfare laws. The knowledge of their rights and entitlements will give them the strength to fight against their employers for securing their legitimate dues and it will go a long way towards reducing, if not eliminating, their exploitation. We have fortunately in our country the Central Board of
Workers Education which is entrusted with the function of educating workers in their rights and entitlements and we would therefore direct the Central Board of Workers Education to organise periodic camps near the sites of stone quarries and stone crushers in Faridabad
District for the purpose of creating awareness amongst the workmen about the rights and benefits conferred upon them by social welfare laws. This educational campaign shall be taken up by the Central Board of Workers Education as early as possible and the progress made shall be reported to this Court by the Central Board of Workers Education from time to time, at least once in three months.
The other matter in regard to which we find it necessary to give directions relates to the tremendous pollution of air by dust thrown out as a result of operation of the stone crushers.
When the stone crushers are being operated, they continually throw out large quantities of dust which not only pollute the air, but also affect the visibility and constitute a serious health hazard to the workmen. The entire air in the area where stone crushers are being operated is heavily laden with dust and it is this air which the workmen breathe day in and day out and it is no wonder that many of them contract tuberculosis. We would therefore direct the Central
Government and the State of Haryana to immediately take steps for the purpose of ensuring that the stone crushers owners do not continue to foul the air and they adopt either of two devices, namely, keeping a drum of water above the stone crushing machine with arrangement for continues spraying of water upon it or installation of dust sucking machine. This direction shall be carried out by the Central Government and the State of Haryana in respect of each stone crusher in the Faridabad District and a compliance report shall be made to this Court on or before 28th February, 1984.
So far as the provisions of the Contract Labour Act and the Inter-State Migrant Workmen
Act are concerned, we have already discussed those provisions and pointed out in what circumstances those provisions would be applicable in relation to workmen employed in the stone quarries and stone crushers. It is not possible for us on the material on record to come to a definite finding whether the provisions of the Contract Labour Act and the Inter-State
Migrant Workmen Act are applicable in the case of any particular stone quarry or stone crusher, because it would be a matter for investigation and determination, particularly since it has been disputed by the Central Government that there are any inter-State migrant workmen at all in any of the stone quarries or stone crushers.
We would therefore direct Shri Laxmi Dhar Misra to conduct an inquiry in each of the stone quarries and stone crushers in Faridabad District for the purpose of ascertaining whether there are any contract labourers or inter-State migrant workmen in any of these stone quarries or stone crushers, in the light of the interpretation laid down by us in this judgment, and, if so, what is the number of such contract labourers or inter-State migrant workmen in each stone quarry or stone crusher. If Shri Laxmi Dhar Misra finds as a result of his inquiry that the
Contract Labour Act and/or the Inter-State Migrant Workmen Act is applicable, he will make a report to that effect to the Court on or before 15th February 1984. We may make it clear that
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this inquiry by Shri Laxmi Dhar Misra is not directed for the purpose of fastening any liability on the mine-lessees and stone crusher owners or the jamadars and thekedars proprio vigore on the basis of such report, but merely for the purpose of considering whether a prima facie case exists on the basis of which action can be initiated by the Central Government, in which the mine-lessees and stone crusher owners and/or the jamadars or thekedars would have an opportunity of contesting the allegation that the Contract Labour Act and/or the Inter-State
Migrant Workmen Act applies to their stone quarry or stone crusher and defending such action. ………
We accordingly allow this writ petition and issue the above directions to the Central
Government and the State of Haryana and the various authorities mentioned in the preceding paragraphs of this judgment so that these poor unfortunate workmen who lead a miserable existence in small hovels, exposed to the vagaries of weather, drinking foul water, breathing heavily dust-laden polluted air and breaking and blasting stone all their life, may one day be able to realise that freedom is not only the monopoly of a few but belongs to them all and that they are also equally entitled along with others to participate in the fruits of freedom and development. VINEET NARAIN V. UNION OF INDIA
AIR 1998 SC 889, (1998) 1 SCC 226
Decided On: December 18, 1997
BENCH – CHIEF JUSTICE J. S. VERMA, JUSTICES S. P. BHARUCHA & S. C. SEN
CHIEF JUSTICE VERMA (for the Court)
These writ petitions under Article 32 of the Constitution of India brought in public interest, to begin with, did not appear to have the potential of escalating to the dimensions they reached or to give rise to several issues of considerable significance to the implementation of rule of law, which they have, during their progress. They began as yet another complaint of inertia by the Central Bureau of Investigation (CBI) in matters where the accusation made was against high dignitaries. It was not the only matter of its kind during the recent past.
The primary question was: Whether it is within the domain of judicial review and it could be an effective instrument for activating the investigative process which is under the control of executive? The focus was on the question, whether any judicial remedy is available in such a situation? However, as the case progressed, it required innovation of a procedure within the constitutional scheme of judicial review to permit intervention by the court to find a solution to the problem. This case had helped to develop a procedure within the discipline of law for the conduct of such a proceeding in similar situations. It has also generated awareness of the need of probity in public life and provided a mode of enforcement of accountability in public life. Even though the matter was brought to the court by certain individuals claiming to represent public interest, yet as the case progressed, in keeping with the requirement of public interest, the procedure devised was to appoint the petitioners ' counsel as the amicus curiae and to make such orders from time to time as were consistent with public interest. Intervention in the proceedings by everyone else was shut out but permission was granted to all, who so desired, to render such assistance as they could, and to provide the relevant material available with them to the amicus curiae for being placed before the court for its consideration. In short,
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the proceedings in this matter have had great educative value and it does appear that it has helped in future decision making and functioning of the public authorities.
We must at. the outset place on record our great appreciation of the assistance rendered by the amicus curiae, Shri Anil B. Divan and the lawyers assisting him, namely, Shri Abani
Kumar Sahu, Shri Anil Kumar Panda, Shri Mukul Mudgal, Shri Anil Nauriya and also Ms.
Latha Krishnamurthy. We also place on record equal appreciation of the law officers and the team which has assisted them in these proceedings. At the commencement of the proceedings, the then Solicitor General Shri Dipankar P. Gupta appeared for the Union of India and the government agencies. Later after Dipankar P. Gupta demitted office, the Attorney General
Shri Ashok H. Desai appeared in this case throughout. The law officers and their team of assistants, namely Shri K.N. Bhat, Additional Solicitor General, Shri Pallav Shishodia, Shri
P. Parmeswaran and Ms. Anuradha Bindra, rendered very able assistance throughout and discharged the duty expected of law officers. All of them, at great personal inconvenience and expense, rose to extraordinary heights in keeping with the true traditions of the Bar. In essence, everyone of them discharged the role of amicus curiae, without, at any stage, adopting the adversarial stance. If it has been possible to achieve some success in these proceedings to improve and innovate the procedure and fructify new ideas for betterment of the polity, it is only because of the positive response of the Bar and the assistance rendered by it. We must also record our appreciation of the officers of the CBI and the Revenue Department who actively participated in these proceedings and showed a definite improvement in their perception of the rule of law as the case progressed; and their ability to perform improved once they were assured of protection in the honest discharge of their duties.
This experience revealed to us the need for the insulation of these agencies from any extraneous influence to ensure the continuance of the good work they have commenced. It is this need which has impelled us to examine the structure of these agencies and to consider the necessary steps which would provide permanent insulation to the agencies against extraneous influences to enable them to discharge their duties in the manner required for proper implementation of the rule of law. Permanent measures are necessary to avoid the need of every matter being brought to the court for taking ad hoc measures to achieve the desired results. This is the occasion for us to deal with the structure, Constitution and the permanent measures necessary for having a fair and impartial agency. The faith and commitment to the rule of law exhibited by all concerned in these proceedings is the surest guarantee of the survival of democracy of which rule of law is the bedrock. The basic postulate of the concept of equality: 'Be you ever so high, the law is above you ', has governed all steps taken by us in these proceedings.
Facts
A brief narration of the facts of this case is necessary. On 25th March, 1991, one Ashfak
Hussain Lone, alleged to be an Official of the terrorist organisation Hizbul Mujahideen, was arrested in Delhi. Consequent upon his interrogation, raids were conducted by the Central
Bureau of Investigation (CBI) on the premises of Surender Kumar Jain, his brothers, relations and businesses. Along with Indian and foreign currency, the CBI seized two diaries and two note books from the premises. They contained detailed accounts of vast payments made to persons identified only by initials. The initials corresponded to the initials of various high ranking politicians, in power and out of power, and of high ranking bureaucrats. Nothing having been done in the matter of investigating the Jains or the contents of their diaries, the present writ petitions were filed on 4th October, 1993, in the public interest under Article 32 of the Constitution of India.
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The gist of the allegations in the writ petitions is that Government agencies like the CBI and the revenue authorities had failed to perform their duties and legal obligations inasmuch as they had failed to investigate matters arising out of the seizure of the "Jain diaries"; that the apprehension of terrorists had led to the discovery of financial support to them by clandestine and illegal means using tainted funds obtained through 'havala ' transactions; that this had also disclosed a nexus between politicians, bureaucrats and criminals, who were recipients of money from unlawful sources, given for unlawful consideration; that the CBI and other
Government agencies had failed to investigate the matter, take it to its logical conclusion and prosecute all persons who were found to have committed an offence; that this was done with a view to protect the persons involved, who were very influential and powerful; that the matter disclosed a nexus between crime and corruption at high places in public life and it posed a serious threat to the integrity, security and economy of the nation; that probity in public life, the rule of law and the preservation of democracy required that the Government agencies be compelled to duly perform their legal obligations and to proceed in accordance with law against every person involved, irrespective of where he was placed in the political hierarchy.
The writ petitions prayed, inter alia, for the following reliefs:
(a) that the above said offences disclosed by the facts mentioned in the petition be directed to be investigated in accordance with law;
(b) that this Hon 'ble Court may be pleased to appoint officers of the police or others in whose integrity, independence and competence this Hon 'ble Court has confidence for conducting and/or supervising the said investigation;
(c) that suitable directions be given by this Hon 'ble Court and orders issued to ensure that the culprits are dealt with according to law; xxx xxx xxx
(f) that directions be given so that such evil actions on the part of (he investigating agencies and their political superiors are not repeated in future.
It will be seen that the reliefs sought in the writ petitions fall into two broad classes. The first class relates to investigations in the matter of the "Jain diaries". The second class [prayer
(f)] relates to the manner in which investigations of offences of a similar nature that may occur hereafter should be conducted.
Procedure adopted
We have taken the view that, given the political personalities of the people to be investigated in the "Jain diaries" case and the time already lost in commencing the investigations, it was advantageous not to hear the matter through and issue a writ of mandamus, leaving it to the authorities to comply with it, but to keep the matter pending while the investigations were being carried on, ensuring that this was done by monitoring them from time to time and issuing orders in this behalf.
… The sum and substance of these orders is that the CBI and other Governmental agencies had not carried out their public duty to investigate the offences disclosed; that none stands above the law so that an alleged offence by him is not required to be investigated; that we would monitor the investigations, in the sense that we would do what we permissibly could to see that the investigations progressed while yet ensuring that we did not direct or channel those investigations or in any other manner prejudice the right of those who might be accused to a full and fair trial. We made it clear that the task of the monitoring court would end the moment a charge-sheet was filed in respect of a particular investigation and that the ordinary
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processes of the law would then take over. Having regard to the direction in which the investigations were leading, we found it necessary to direct the CBI not to report the progress of the investigations to the person occupying the highest office in the political executive; this was done to eliminate any impression of bias or lack of fairness or objectivity and to maintain the credibility of the investigations. In short, the procedure adopted was of ‘continuing mandamus’. Even after this matter was brought to the court complaining of the inertia of CBI and the other agencies to investigate into the offences because of the alleged involvement of several persons holding high offices in the executive, for quite some time the disinclination of the agencies to proceed with the investigation was apparent. The accusation, if true, revealed a nexus between high ranking politicians and bureaucrats who were alleged to have been funded by a source linked with the source funding the terrorists. In view of the funding also through foreign currency, some undesirable foreign elements appeared to be connected. This revealed a grave situation posing a serious threat even to the unity and integrity of the nation. The serious threat posed to the Indian polity could not be underscored. The obvious need for an expeditious and thorough probe which had already been delayed for several years could not but be countenanced. The continuing inertia of the agencies to even commence a proper investigation could not be tolerated any longer. In view of the persistence of that situation, it became necessary as the proceedings progressed to make some orders which would activate the CBI and the other agencies to at least commence a fruitful investigation. Merely issuance of a mandamus directing the agencies to perform their task would be futile and, therefore, it was decided to issue directions from time to time and keep the matter pending requiring the agencies to report the progress of investigation so that monitoring by the court could ensure continuance of the investigation. It was, therefore, decided to direct the CBI and other agencies to complete the investigation expeditiously, keeping the court informed from time to time of the progress of the investigation so that the court retained siesin of the matter till the investigation was completed and the chargesheets were filed in the competent court for being dealt with, thereafter, in accordance with law.
… The gist of the allegations in the writ petition are that Government agencies, like the
CBI and the revenue authorities have failed to perform their duties and legal obligations inasmuch as they have failed to properly investigate matters arising out of the seizure of the so called "Jain Diaries" in certain raids conducted by the CBI. It is alleged that the apprehending of certain terrorists led to the discovery of financial support to them by clandestine and illegal means, by use of tainted funds obtained through 'havala ' transactions; that this also disclosed a nexus between several important politicians, bureaucrats and criminals, who are all recipients of money from unlawful sources given for unlawful considerations; that the CBI and other Government agencies have failed to fully investigate into the mater and take it to the logical end point of the trial and to prosecute all persons who have committed any crime; that this is being done with a view to protect the persons involved, who are very influential and powerful in the present set up; that the matter discloses a definite nexus between crime and corruption in public life at high places in the country which poses a serious threat to the integrity, security and economy of the nation; that probity in public life, to prevent erosion of the rule of law and the preservation of democracy in the country, requires that the Government agencies be compelled to duly perform their legal obligations and to proceed in accordance with law against each and every person involved, irrespective of the height at which he is placed in the power set up.
The facts and circumstances of the present case do indicate that it is of utmost public importance that this matter is examined thoroughly by this Court to ensure that all Government agencies, entrusted with the duty to discharge their functions and obligations in accordance
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with law, do so, bearing in mind constantly the concept of equality enshrined in the
Constitution and the basic tenet of rule of law: "Be you ever so high, the law is above you".
Investigation into every accusation made against each and every person on a reasonable basis, irrespective of the position and status of that person, must be conducted and completed expeditiously. This is imperative to retain public confidence in the impartial working of the
Government agencies.
In this proceeding we are not concerned with the merits of the accusations or the individuals alleged to be involved, but only with the performance of the legal duly by the
Government agencies to fairly, properly and fully investigate into every such accusation against every person, and to take the logical final action in accordance with law.
In case of persons against whom a prima facie case is made out and a charge sheet is filed in the competent court, it is that court which will then deal with that case on merits, in accordance with law.
However, if in respect of any such person the final report after full investigation is that no prima facie case is made out to proceed further, so that the case must be closed against him, that report must be promptly submitted to this Court for its satisfaction that the concerned authorities have not failed to perform their legal obligations and have reasonably come to such conclusion. No such report having been submitted by the CBI or any other agency till now in this Court, action on such a report by this Court would be considered, if and when that occasion arises. We also direct that no settlement should be arrived at nor any offence compounded by any authority without prior leave of this Court.
We may add that on account of the great public interest involved in this matter, the CBI and other Government agencies must expedite their action to complete the task and prevent pendency of this matter beyond the period necessary. It is needless to observe that the results achieved so far do not match the available time and opportunity for a full investigation ever since the matter came to light. It is of utmost national significance that no further time is lost in completion of the task.
………
It is significant that the machinery of investigation started moving as a result of these orders and after investigation of the allegations made against several persons on the basis of the contents of the Jain Diaries, chargesheets were filed in the competent court in the first instance against 14 persons, as reported to the court on 22.2.1996. Chargesheets against many other persons were filed in the competent court thereafter as reported later from time to time.
In all, 34 chargesheets against 54 persons have been filed on this basis. Thus, as indicated earlier, the purpose of these proceedings to the extent to the complaint of inertia of the investigating agencies come to an end with the filing of these chargesheets, since the merits of the accusation against each individual has, thereafter, to be considered and dealt with by the competent court at the trial, in accordance with law. Trial in the competent court is now a separate proceeding.
… During the monitoring of the investigations, the Solicitor General/Attorney General, from time to time, reported the progress made during the course of investigation, in order to satisfy us that the agencies were not continuing to drag their feet and the "continuing mandamus" was having the effect of making the agencies perform their statutory function.
The procedure adopted by us was merely to hear what they had to report or the CBI Director and the Revenue Secretary had to tell us to be satisfied that the earlier inaction was not persisting. We maintained this stance throughout. We also ensured that no observation of any kind was made by us nor was any response given which may be construed as our opinion
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about the merits of the case or the accusation against any accused. We also did not identify or name any accused during performance of this task. At the very outset, the then Solicitor
General Shri Dipankar P. Gupta requested that a part of the proceedings be held 'in camera ' to enable him to state certain facts and, if necessary, place before us material, the secrecy of which was required to be maintained for integrity of the investigation and also to avoid any prejudice to the concerned accused. In these circumstances, such a procedure was adopted only to the extent necessary for this purpose, in the interest of justice, and that is how a part of some hearings was held in camera. This innovation in the procedure was made, on request, to reconcile the interest of justice with that of the accused.
It is settled that the requirement of a public hearing in a court of law for a fair trial is subject to the need of proceedings being held in camera to the extent necessary in public interest and to avoid prejudice to the accused. We consider it appropriate to mention these facts in view of the nature of these proceedings wherein innovations in procedure were required to be made from time to time to sub-serve the public interest, avoid any prejudice to the accused and to advance the cause of justice. The medium of "continuing mandamus", was a new tool forged because of the peculiar needs of this matter.
Inertia was the common rule whenever the alleged offender was a powerful person. Thus, it became necessary to take measures to ensure permanency in the remedial effect to prevent reversion to inertia of the agencies in such matters.
Everyone against whom there is reasonable suspicion of committing a crime has to be treated equally and similarly under the law and probity in public life is of great significance.
The Constitution and working of the investigating agencies revealed the lacuna of its inability to perform whenever powerful persons were involved. For this reason, a close examination of the Constitution of these agencies and their control assumes significance. No doubt, the overall control of the agencies and responsibility of their functioning has to be in the executive, but then a scheme giving the needed insulation from extraneous influences even of the controlling executive, is imperative. It is this exercise which became necessary in these proceedings for the future. This is the surviving scope of these writ petitions.
Point for consideration
As a result of the debate in these proceedings and the experience gained thereby the Union of India came to realise that an in-depth study of the selection of personnel of these agencies, particularly the CBI and the Enforcement Directorate of the Revenue Department, and their functioning is necessary. The Government of India, sharing this perception, by an Order No.
S/7937/SS(ISP)/93 dated 9th July, 1993 constituted a Committee headed by the then Home
Secretary Shri N.N. Vohra to take stock of all available information about the activities of crime syndicates/mafia organisations which had developed links with, and were being protected by, government functionaries and political personalities. It was stated that on the basis of recommendations of the Committee the Government shall determine the need, if any, to establish a special organization/agency to regularly collect information and pursue cases against such elements. The Committee was headed by the then Home Secretary Shri N.N.
Vohra and had as its Members-Secretary (Revenue), Director, Intelligence Bureau, Director,
CBI, Joint Secretary (PP), Ministry of Home Affairs. The Committee gave its recommendations dated 5.10.1993.
It has made scathing comments and has painted a dismal picture of the existing scene. It has said that the network of the mafia is virtually running a parallel government pushing the
State apparatus into irrelevance. The Committee recommended the creation of a nodal agency under the Ministry of Home Affairs for the collation and compilation of all information
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received from Intelligence Bureau (IB), Central Bureau of Investigation (CBI) and Research and Analysis Wing (R & AW) and the various agencies under the Department of Revenue.
The report is significant for the dismal picture of the existing scenario which discloses a powerful nexus between the bureaucracy and politicians with the mafia gangs, smugglers and the underworld. The report of the Vohra Committee is the opinion of some top bureaucrats and it confirmed our worst suspicions focusing the need of improving the procedure for
Constitution and monitoring the functioning of intelligence agencies. There is, thus, no doubt that this exercise cannot be delayed further.
The same perception of the Government of India led it to constitute another Committee by Order No. 226/2/97-AVD-II dated 8th September, 1997 comprising of Shri B.G.
Deshmukh, former Cabinet Secretary, Shri N.N. Vohra, Principal Secretary to the Prime
Minister and Shri S.V. Giri, Central Vigilance Commissioner, called the Independent Review
Committee (IRC). …
Before we refer to the report of the Independent Review Committee (IRC), it would be appropriate at this stage to refer to the Single Directive issued by the Government which requires prior sanction of the designated authority to initiate the investigation against officers of the Government and the Public Sector Undertakings (PSUs), nationalised banks above a certain level. The Single Directive is a consolidated set of instructions issued to the CBI by the various Ministries/Departments in this behalf. It was first issued in 1969 and thereafter amended on many occasions. The Single Directive contains certain instructions to the CBI regarding modalities of initiating an inquiry of registering a case against certain categories of civil servants. Directive No. 4.7(3) in its present form is as under:
4.7(3) (i) In regard to any person who is or has been a decision making level officer (Joint Secretary or equivalent or above in the Central Government or such officers as are or have been on deputation to a Public Sector Undertaking; officers of the Reserve Bank of India of the level equivalent to Joint Secretary or above in the Central Government, Executive Directors and above of the SEBI and
Chairman & Managing Director and Executive Directors and such of the Bank officers who are one level below the Board of Nationalised Banks), there should be prior sanction of the Secretary of the Ministry/Department concerned before
SPE takes up any enquiry (PE or RC), including ordering search in respect of them. Without such sanction, no enquiry shall be initiated by the SPE.
(ii) All cases referred to the administrative Ministries/Departments by CBI for obtaining necessary prior sanction as aforesaid, except those pertaining to any officer of the rank of Secretary or Principal Secretary, should be disposed of by them preferably within a period of two months of the receipt of such a reference.
In respect of the officers of the rank of Secretary or Principal Secretary to
Government, such references should be made by the Director, CBI to the Cabinet
Secretary for consideration of a Committee consisting of the Cabinet Secretary as its Chairman and the Law Secretary and the Secretary (Personnel) as its members.
The Committee should dispose of all such reference preferably within two months from the date of receipt of such a reference by the Cabinet Secretary.
(iii) When there is any difference of opinion between the Director, CBI and the
Secretary of the Administrative Ministry/Department in respect of an officer up to the rank of Additional Secretary or equivalent, the matter shall be referred by
CBI to Secretary (Personnel) for placement before the Committee referred to in
Clause (ii) above. Such a matter should be considered and disposed of by the
Committee preferably within two months from the date of receipt of such a reference by Secretary (Personnel).
(iv) In regard to any person who is or has been Cabinet Secretary, before SPE takes any step of the kind mentioned in (i) above the case should be submitted to the Prime Minister for orders.
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We were informed that the above Directive, in this application, is limited to officials at decision making levels in the Government and certain other public institutions like the RBI,
SEBI, nationalised banks, etc. and its scope is limited to official acts. The stated objective of the Directive is to protect decision making level officers from the threat and ignominy of malicious and vexatious inquiries/investigations. It is said that such protection to officers at the decision making level is essential to protect them and to relieve them of the anxiety from the likelihood of harassment for taking honest decisions. It was also stated that absence of any such protection to them could adversely affect the efficiency and efficacy of these institutions because of the tendency of such officers to avoid taking any decisions which could later lead to harassment by any malicious and vexatious inquiries/investigations. It was made clear that the Directive does not extend to any extraneous or non-official acts of the government functionaries and a time frame has been prescribed for grant of sanction in such cases to prevent any avoidable delay.
Two questions arise in relation to Directive No. 4.7(3) of the Single Directive, namely, its propriety/legality and the extent of its coverage, if it be valid.
The learned Attorney General categorically stated in response to our repeated query that the Single Directive acts as a restriction only on the CBI but is inapplicable against the general power of the State Police to register and investigate any such offence under the general law,
i.e. CrPC. He added that it is also not an inhibition against a complaint being lodged under the
Cr.P.C. before the competent court for any such offence. The Single Directive was sought to be supported by the Attorney General on the ground that the CBI being a special agency created by the Central Government, it: was required to function according to the mandate of the Central Government which has constituted this special agency for specified purpose. The desirability of the Single Directive was supported by the learned Attorney General on the ground that the officers at the decision making level need this protection against malicious or vexatious investigations in respect of honest decisions taken by them.
We were also informed that during hearing of this matter when this aspect was being debated, the Ministry of Finance has set up a High Power Board of experts in finance and a retired High Court Judge to examine the merits in every case for the purpose of grant of sanction to the CBI for recording the information and investigating into any such offence, and a time frame for the decision has also been specified. Similarly, in the case of government servants, the authority for grant of sanction with a provision for appeal in case the sanction is declined has been provided. It was submitted that such a structure to regulate the grant of sanction by a high authority together with a time frame to avoid any delay is sufficient to make the procedure reasonable and to provide for an objective decision being taken for the grant of sanction within the specified time. It was urged that refusal of sanction with reasons would enable judicial review of that decision in case of any grievance against refusal of the sanction.
…
The provision made for deciding the question of grant of sanction in the cases of officers to whom the Single Directive applies is, as under:
OFFICE MEMORANDUM DATED FEBRUARY 17, 1997 OF THE
RESERVE BANK OF INDIA, CENTRAL OFFICE, DEPARTMENT OF
ADMINISTRATION & PERSONNEL MANAGEMENT
Advisory Board on bank frauds
It has been decided to set-up an 'Advisory Board on bank frauds ' to advise the
Bank on the cases referred the Central Bureau of Investigation either directly or through the Ministry of Finance for investigation/registration of cases against bank officers of the rank of General Manager and above. The Constitution of the
Board will be as under:
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Shri S.S. Tarapore, Chairman Ex-Deputy Governor Reserve Bank of India Justice
Shri B.V. Chavan Member Retd. Judge of Bombay High Court & Member,
Reserve Bank of India Services Board. Shri B.N. Bhagwal, Member Retd.
Secretary, Government of India. Shri Satish Sawhney, Member Retd. Director
General of Police Maharashtra. Shri Y.H. Malegam, Mamber
Chartered Accountant & Senior Partner in M/s. S.S. Billimoria & Co.
Another action taken by the Government of India is, as under:
Letter No. I 11011/33/95-IS DI(B) dated 1st /2nd August, 1995 of Ministry of
Home Affairs, Government of India
Government had through its Order No. S-7937/SS(ISP)/93 dated 9th July, 1993 constituted a Committee under the Chairmanship of former Home Secretary (Shri
N.N. Vohra) to take stock of all available information about the activities of the crime syndicates/mafia organisations which had developed links with and were being protected by Government functionaries and political personalities. The
Vohra Committee in its Report submitted to the Government recommended a
Nodal Set-up directly under the Home Secretary to which all existing intelligence and enforcement agencies of the Government shall promptly pass on any information which they may come across, relating to links of crime syndicates with functionaries of the Government and political personalities.
Accordingly, Government have now decided to set up a Group under the
Chairmanship of the Home Secretary to act as a Nodal Set-up to collect and collate the information and to decide on the action that is required to be taken to ensure that the nexus of criminals with businessmen, politicians or bureaucrats is broken.
(3) The Group shall comprise :
(i) Home Secretary, Chairman (ii) Secretary (Revenue) Member (iii) Director, IB
Member (iv) Director, CBI Member (v) Secretary, R & AW Member
4. It is felt that it would be necessary for this Group to interact with various State
Governments in order to both make use of such information as may be available with the States as well as to utilise the expertise of the relevant agencies of the
State Governments. For this purpose, the above Group would interact appropriately from time to time with Chief Secretaries and other senior functionaries of the State Governments.
5. All the Intelligence and enforcement agencies under the Government like the
Intelligence Bureau, the CBI and various bodies functioning under the
Department of Revenue shall forthwith report to the Home Secretary whenever substantive information/evidence of collusion of officials/politicians with criminal syndicates comes to their knowledge in the course of their working. The
Group shall meet periodically to decide upon the action required to be taken and identify an agency or agencies to take up further investigations. The Nodal Group would also review the information in the above context already available with the various agencies and decide upon the follow up action that is required to be taken.
6. This issues with the approval of Home Minister.
Report of IRC
The IRC has in its report accepted the legality of the Single Directive placing reliance on the decision of this Court in K. Veeraswami (1991) 3 SCC 655. Alter considering the functions of the CBI and the Directorate of Enforcement, it has made certain recommendations which are as under:
MEASURES FOR SPEEDY INVESTIGATIONS AND TRIALS
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4.1. The Committee recommends that the following measures should be taken to ensure speedy investigations and trials:
(a) Special Courts should be got established at identified stations to deal exclusively with FERA offences so that cases can be decided speedily.
(b) To ensure against delays in investigations abroad, the Revenue Secretary should be the competent authority to approve filing of applications for Letters
Rogatory.
(c) The Directorate of Enforcement should be delegated powers to appoint special counsels for conducting trials, who may also act as legal advisers for the
Department in respect of the cases entrusted to them.
(d) In many of the major cases of the Directorate, the suspects have been able to abuse the process of law by stalling the investigations at the initial stages through litigation at various levels, obtaining stay orders from High Courts and injunctions on flimsy grounds. In consultation with the Attorney General, the Revenue
Department may examine the possibility of making a representation to the Apex
Court to consider issuing appropriate directions so that the pace and progress of cases is not thwarted by interlocutory procedures or stay orders issued by the
Courts below.
(e) Taking into account the instances in which suspected persons have been able to stall investigations on alleged health grounds, the Revenue Department should approach the Ministry of Health to establish standing medical boards in identified cities to examine such persons. Such boards should comprise outstanding medical experts of unimpeachable integrity. The Courts can be requested to refer the prayer of the accused for staying proceedings on health grounds to such medical boards before passing judgment."
CHECKS AND BALANCES
5.1. The Directorate must be provided adequate financial and administrative delegations to enable it to exercise autonomy in the conduct and pursuit of investigations without let or hindrance. Side by side, it is necessary to provide appropriate checks and balances to ensure against miscarriage of justice. In this context, the Committee recommends the following:
(a) The Revenue Department should undertake regular review of the progress of cases before the Directorate. To enable this, the Directorate should regularly furnish information regarding the number of cases instituted, progress of investigations, cases settled in adjudication and those put to Courts. The
Committee note that while such information is already being supplied in reply to
Parliament Questions, information to be placed before the Parliamentary
Committee/Standing Committee, etc ', there is no established procedure for the
Directorate to furnish relevant information in a well devised format.
(b) The present system of the Directorate furnishing fortnightly reports providing statistical information and brief outline of the cases taken up for investigation should be further fine tuned. These reports should be carefully examined by the
Revenue Department to ensure that the Directorate is performing its functions efficiently. The Revenue Secretary should hold regular review meeting with the
Director Enforcement, also involving the Director Revenue Intelligence and other concerned officers.
(c) Guidelines relating to interrogation, prosecution, adjudication, time frame for completion of investigation, etc., have been issued by the Directorate from time to time. These guidelines should be comprehensively reviewed and, based thereon, a circular should be released for the information of the public at large, to enable all concerned to know the systems and procedures followed by the
Directorate. This shall contribute to greater transparency. This effort should be concluded within 2-3 months.
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5.2. It is important that the Directorate lays down a clearly spelt out time frame for the completion of investigation, launching of prosecution and completion of adjudication proceedings and for the Director to ensure that the prescribed time limits are strictly adhered to. The Committee are of the view that the Directorate would be able to more efficiently discharge its functions if immediate steps are taken to upgrade the level and quality of its in-house legal advice mechanism. At our request, the Cabinet Secretary convened a meeting with the Revenue
Department, Enforcement Directorate and other concerned officers to consider various proposals for strengthening the Directorate. The Committee hope that the various decisions taken at the Cabinet Secretary 's level shall witness implementation within 6-8 weeks.
5.3. The Committee recommends that the Directorate should take time bound steps to establish a grievances redressal mechanism to promptly deal with complaints received from the public against actions of the Enforcement
Directorate. Insofar as complaints of arbitrary action by senior officers of the
Directorate are concerned, the Committee recommends that these should be looked into by a Committee headed by the Central Vigilance Commissioner and comprising Revenue Secretary, Director General Revenue Intelligence,
Enforcement Director and a senior representative of the Ministry of Law.
5.4. As regards the pursuit of cases which appear to have a politico-beaurocraicriminal nexus, the Home Secretary agreed with the Committee 's suggestion that the Nodal Agency in the Home Ministry (chaired by Home Secretary) shall also include Member (Investigation) of the Central Board of Direct Taxes, Director
General Revenue Intelligence and the Director Enforcement as members.
5.5. The Committee recommends that the Annual Report of the Department of
Revenue should have a section devoted exclusively to the functioning of the
Enforcement Directorate. This report should highlight the number of cases taken up for investigation by ED, raids and searches conducted, amount of Indian and foreign currency seized etc. The report should also indicate the number of persons arrested, prosecutions launched and convictions ordered by the Courts. The
Committee feels that enhanced public knowledge about the work being done by the Directorate shall demystify its operations and contribute to improved public confidence." SUMMARY OF RECOMMENDATIONS
I. CBI AND CVC
1. CVC to be conferred statutory status; appointment of Central Vigilance
Commissioner to be made under the hand and seal of the President (para 4.2.)
2. Constitution of a Committee for selection of CVC (para 4.3.)
3. CVC to overview CBI 's functioning (para 5)
4. CBI 's reporting to Government to be streamlined without diluting its functional autonomy (para 3.3)
5. CVC to have a separate section in its Annual Report on the CBI 's functioning after the supervisory function is transferred to it (para 6)
6. Constitution of a Selection Committee for identifying a panel of names for selection of Director CBI; final selection to be made by ACC from such panel
(para 8.2.)
7. Central Government to pursue with the State Governments to set up a credible mechanism for selection of Police Chief (para 3.3)
8. Director CBI to have a minimum tenure of 2 years (para 8.4)
9. Transfer of incumbent Director CBI would need endorsement of the Selection
Committee (para 8.5)
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10. Director CBI to ensure full freedom for allocation of work within the Agency, including Constitution of investigation teams (para 8.6)
11. Selection/extension of tenure of officers upto to the level of Joint Director
(JD) to be decided by a Board under Central Vigilance Commissioner; .ID and above would need the approval of ACC (para 8.7)
12. Change in the existing Tenure Rules not recommended (para 8.8)
13. Proposals for improvement of infrastructure, methods of investigation, etc., to be decided urgently (para 8.9.2.)
14. No need for creation of a permanent core group in the CBI (para 8.9.3)
15. Severe disciplinary action against officers who deviate from prescribed investigation procedures (para 9.1.)
16. Director CBI to be responsible for ensuring time limits for filing charge sheets in courts (para 9.2)
17. Document on CBI 's functioning to be published within three months (para 9.4)
18. Essential to protect officers at the decision making levels from vexatious enquiries/prosecutions (para 10.6)
19. Secretaries to adhere strictly to prescribe time frames for grant of permission for registration of PE/RC. CBI to be free to proceed if decision not conveyed within the specified lime (para 10.9)
20. Secretary of Administrative Ministry to convey a decision regarding registration of PE/RC within 2 months of receipt of request. If not satisfied with decision, Director CBI free to make fresh reference to the Committee headed by
Cabinet Secretary within a period of four weeks and the latter to decide thereon within a period of four weeks (para 10.10)
21. Protection under the Single Directive not to cover offences like bribery, when prima-facie established in a successful trap (para 10.12)
22. Cases of disproportionate assets of Central Government and All India Services
Officers to be brought within the ambit of the Single Directive (para 10.13)
23. Time limit of 3 months for sanction for prosecution. Where consultation is required with the Attorney General or the Solicitor General, additional time of one month could be allowed (paras 10.14 and 10.15)
24. Government to undertake a review of the various types of offences notified for investigation by the CBI to retain focus on anti-corruption activities which is its primary objective (para 11.1)
25. Cases falling within the jurisdiction of the State Police which do not have inter-state or inter-national ramifications should not be handed over to CBI by
States/Courts (para 11.2)
26. Government to establish Special Courts for the trial of CBI cases (11.3)
27. Severe action against officials found guilty of high handed-ness; prompt action against those officials chastised by the Courts (para 11.4)
28. Director CBI to conduct regular appraisal of personnel to weed out the corrupt and inefficient, and maintain strict discipline within the organisation (para 11.5)
II. ENFORCEMENT DIRECTORATE
1. Selection Committee headed by Central Vigilance Commissioner to recommend panel for appointment of Director Enforcement by the ACC (para 2.2)
2. Director Enforcement to have minimum tenure of 2 years. For his premature transfer, the Selection Committee headed by Central Vigilance Commissioner to make suitable recommendations to the ACC (para 2.3.)
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3. Post of Director Enforcement to be upgraded to that of Additional
Secretary/Special Secretary to the Government (para 2.4)
4. Officers of the Enforcement Directorate handling sensitive assignments to be provided adequate security for enabling fearless discharge of their functions (para
2.5)
5. Extension of tenures up to the level of Joint Directors in the Enforcement
Directorate to be decided by a Committee headed by Central Vigilance
Commissioner (para 2.6)
6. Proposals for foreign visits to conduct investigations to be cleared by the
Revenue Secretary and the Financial Adviser (para 2.7)
7. While enjoying full internal autonomy Enforcement Directorate to he made accountable. Responsibility of Government to ensure efficient and impartial functioning (para 3.1)
8. Premature media publicity to be ensured against (para 3.3)
9. Adjudication proceedings prosecution to be finalised by the Enforcement
Directorate within a period of one year (para 3.4)
10. Director Enforcement to monitor speedy completion of investigation and launching of adjudications/prosecution. Revenue Secretary to review regularly
(para 3.4)
11. The Director Enforcement to keep close watch against vexations search; action against functionaries who act without due care (para 3.5)
12. Special Courts to be established to deal with FER A offences for speedy completion of trials [para 4.1(a)]
13. For speedy conduct of investigations abroad, Revenue Secretary be authorised to approve filing of applications for Letters Rogatory [para 4.1(b)
14. The Enforcement Directorate to be delegated powers to appoint Special
Counsels for trials [para 4.1(c)]
15. The Revenue Department to consult Attorney General regarding measures against conclusion of cases being thwarted by stay orders, etc. (para 4.1(d)]
16. Revenue Department to approach Health Ministry to establish Standing
Medical Boards in identified cities for examination of accused persons seeking deferment of proceedings on health grounds [para 4.1(c)]
17. Revenue Department to undertake regular reviews of cases pending with the
Directorate [para 5.1(a) and (b)].
18. Comprehensive circular to be published by the Directorate to inform public about procedures/systems of its functioning [para 5.l(c)]
19. In-house legal advice mechanism to be strengthened (para 5.2)
20. Proposals for strengthening the Directorate to be implemented within 8 weeks
(para 5.2)
21. Directorate to establish a grievance redressal mechanism (para 5.3)
22. Committee headed by Central Vigilance Commissioner to decide complaints of arbitrary action by Directorate officials (para 5.3)
23. Nodal Agency headed by Home Secretary on politico-beaurocrai-criminal nexus to include Member investigation CBDT, Director General Revenue
Intelligence and Director Enforcement as members (para 5.4)
24. Annual Report of the Department of Revenue to contain an exhaustive section on the working of the Enforcement Directorate (para 5.5)
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25. Suitable incentives to be provided to functionaries of Enforcement Directorate at various levels, to attract best material, to be decided within two months (para
6.1)
III. NODAL AGENCY ON CRIMINAL NEXUS
1. Requirements of inter-agency co-ordination at field unit level to be evolved by
Home Secretary (para 2.1)
2. NA 's functioning to be watched for some time before considering need for structural changes (para 3)
3. Home Secretary will hold meetings of NA every month (para 3)
The reference to paragraphs within brackets at the end of each recommendation is to the paragraphs of the report containing discussion pertaining to the Central Bureau of
Investigation (CBI) and the Central Vigilance Commission (CVC) in Part I and Directorate of
Enforcement in Part II of the report. These recommendations have, therefore, to be read along with the discussion in the corresponding paras in Part I and Part II of the report.
Need for Court 's intervention
The IRC is a body constituted by the Central Government itself as a result of its perception that the Constitution and functioning of the CBI, CVC and Directorate of Enforcement require a close scrutiny in the background of the recent unsatisfactory functioning of these agencies with a view to improve their functioning. The view taken by the IRC is a reaffirmation of this belief shared by everyone. The preface to the report indicates the reason for the Constitution of the IRC and says that "In the past several years, there has been progressive increase in allegations of corruption involving public servants. Understandably, cases of this nature have attracted heightened media and public attention. A general impression appears to have gained ground that the concerned Central investigating agencies are subject to extraneous pressures and have been indulging in dilatory tactics in not bringing the guilty to book. The decisions of higher courts to directly monitor investigations in certain cases have added to the aforesaid belief." There can thus be no doubt that there is need for the exercise we were called upon to perform and which has occasioned consideration of this crucial issued by this Court in exercise of its powers conferred by the Constitution of India. The conclusions reached by the IRC and the recommendation it has made for improving the functioning and thereby the image of these agencies is a further reaffirmation of this general belief. There can also be no doubt that the conclusions reached by the IRC and its recommendations are the minimum which require immediate acceptance and implementation in a, bid to arrest any further decay of the polity.
It follows that the exercise to be performed now by this Court is really to consider whether any modifications/additions are required to be made to the recommendations of the IRC for achieving the object for which the Central Government itself constituted the IRC. We are informed by the learned Attorney General that further action on the report of the IRC could not be taken so far because of certain practical difficulties faced by the Central Government but there is no negative reaction to the report given by the Central Government.
The only caveat entered by the Attorney General is on the basis of a note by an individual
Minister in the Central Cabinet in which emphasis has been laid that the ultimate responsibility for the functioning of these agencies to the Parliament is that of the concerned Minister and this aspect may be kept in mind. It has been specifically mentioned that the Minister would remain the final disciplinary authority and would have the power to refer complaints against the agency or its officers to an appropriate authority for necessary action. There can be no quarrel with the Minister 's ultimate responsibility to the Parliament for the functioning of these
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agencies and he being the final disciplinary authority in respect of the officers of the agency with power to refer complaints them to the appropriate authority. Some other specific powers of the Minister were indicated as under:
1. The Minister has the power to review the working of the agencies which are under his Department.
2. The Minister has the power to give broad policy directions regarding investigation and prosecution of classes or categories of cases.
3. The Minister has the power to appraise the quality of the work of the Head of the agency as well as other senior officers of the agency.
4. The Minister has the power to call for information regarding progress of cases.
It is sufficient to say that the Minister 's general power to review the working of the agency and to give broad policy directions regarding the functioning of the agencies and to appraise the quality of the work of the Head of the agency and other officers as the executive head is in no way to be diluted. Similarly, the Minister 's power to call for information generally regarding the cases being handled by the agencies is not to be taken away. However, all the powers of the Minister are subject to the condition that none of them would extend to permit the Minister to interfere with the course of investigation and prosecution in any individual case and in that respect the concerned officers are to be governed entirely by the mandate of law and the statutory duty cast upon them.
It is useful to remember in this context what this Court has on several occasions in the past said about the nature of duty and functions of police officers in the investigation of an offence. It is sufficient to refer to one of them namely Union of India v. Sushil Kumar Modi
(1997) 4 SCC 770 (Bihar Fodder Scam Case):
… According to the CrPC the formation of the opinion as to whether or not there is a case to place the accused for trial is that of the police officer making the investigation and the final step in the investigation is to be taken only by the police and by no other authority, see Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC
117. This must be borne in mind as also that the scope and purpose of a proceeding like the present is to ensure a proper and faithful performance of its duty by the police officer by resort to the prerogative writ of mandamus.
The Minister 's power in these matters has, therefore, to be understood as circumscribed by these limitations under the law.
History of CBI
It is useful to refer at this stage to the history of the CBI. The Special Police Establishment was formed during the World War II when large sums of public money were being spent in connection with the War and there arose enormous potential for corruption amongst the officers dealing with the supplies. An executive order was made by the Government of India in 1941 setting up the Special Police Establishment (SPE) under a DIG in the then Department of War. The need for a central government agency to investigate cases of bribery and corruption by the Central Government servants continued and, therefore, the Delhi Special
Police Establishment Act was brought into force in 1946.
Under this Act, the superintendence of the Special Police Establishment was transferred to the Home Department and its functions were enlarged to cover all departments of the
Government of India. The jurisdiction of the SPE extended to all the Union Territories and could also be extended to the States with the consent of the concerned State Governments.
Then the SPE was put under the charge of Director, Intelligence Bureau. Later in 1948 a post of Inspector General of Police, SPE was created and the organisation was placed under his
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charge. The Central Bureau of Investigation was established on 1.4.1963 vide Government of
India 's Resolution No. 4/31/61-T/MHA. This was done to meet the felt need of having a central police agency at the disposal of the Central Government to investigate into cases not only of bribery and corruption but also those relating to the breach of central fiscal laws, frauds in government departments and PSUs and other serious crimes. On enlargement of the role of
CBI and Economic Offences Wing was added to the existing Divisions of the CBI. In 1987 two Divisions were created in the CBI known as Anti-Corruption Division and Special Crimes
Division, the latter dealing with cases of conventional crimes besides economic offences. In
1994 due to increased workload relating to bank frauds and economic offences a separate
Economic Offences Wing was established in CBI with the result that since then the CBI has three Investigation Divisions, namely, Anti-Corruption Division, Special Crimes Division and
Economic Offences Division. Further particulars thereof are not necessary in the present context. We are informed that almost all the State Governments have given concurrence for extension of the jurisdiction of the Delhi Special Police Establishment in the States with the exception of only a few. The result is that for all practical purposes, the jurisdiction in respect of all such offences is exercised in the consenting States only by the CBI and not by the Slate
Police. This is the significance of the role of the CBI in such matters and, therefore, technically the additional jurisdiction under the general law of the State Police in these matters is of no practical relevance. The pragmatic effect of the Single Directive is, therefore, to inhibit investigation against the specified category of officers without sanction in accordance with the Single Directive.
Validity of Directive No. 4.7(3) of the Single Directive
We may now refer to the two decisions on which specific reliance has been placed by the learned Attorney General before us as well as the IRC in its report.
… The other decision of this Court is in K. Veeraswami. That was a decision in which the majority held that the Prevention of Corruption Act applies even to the Judges of the High
Court and the Supreme Court. After taking that view, it was said by the majority (per Shetty,
J.) that in order to protect the independence of judiciary, it was essential that no criminal case shall be registered under Section 154 Cr.P.C. against a Judge of the High Court or of the
Supreme Court unless the Chief Justice of India is consulted and he assents to such an action being taken. The learned Attorney General contended that this decision is an authority for the proposition that in case of high officials, the requirement of prior permission/sanction from a higher officer or Head of the Department is permissible and necessary to save the concerned officer from harassment caused by a malicious or vexatious prosecution. We are unable to accept this submission.
The position of Judges of High Courts and Supreme Court, who are constitutional functionaries, is distinct, and the independence of judiciary, keeping it free from any extraneous influence, including that from executive, is the rationale of the decision in K.
Veerasawami. In strict terms the Prevention of Corruption Act, 1946 could not be applied to the superior Judges and, therefore, while bringing those Judges within the purview of the Act yet maintaining the independence of judiciary, this guideline was issued as a direction by the
Court. The feature of independence of judiciary has no application to the officers covered by the Single Directive. The need for independence of judiciary from the executive influence does not arise in the case of officers belonging to the executive. We have no doubt that the decision in K. Veeraswami has no application to the wide proposition advanced by the learned
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Attorney General to support the Single Directive. For the same reason, reliance on that decision by the IRC to uphold the Single Directive is misplaced.
The question, however, is whether, without the aid of these decisions, the Single Directive can be upheld. In this context, meaning of the word "superintendence" in Section 4(1) of the
Delhi Special Police Establishment Act, 1946 requires consideration.
The Delhi Special Police Establishment Act, 1946 is an Act to make provision for the
Constitution of a special police force in Delhi for the investigation of certain offences in the
Union Territories for the superintendence and administration of the said force and for the extension to other areas of the powers and jurisdiction of members of the said force in regard to the investigation of the said offences. Section 6 of the Act requires consent of the State
Government to exercise powers and jurisdiction under the Act by the Delhi Special Police
Establishment. This is because 'Police ' is a State subject, being in List II, Entry 2 of the
Seventh Schedule. For this reason, the learned Attorney General contended that the power and jurisdiction of the State Police in respect of an offence within its jurisdiction remains intact and is not inhibited by the Single Directive; and that the CBI alone is inhibited thereby. Section
2 of the Act deals with Constitution and powers of the Special Police Establishment (SPE).
This is how the CBI has been constituted. Section 3 provides for offences to be investigated by the SPE and says that the offences or class of offences to be investigated by the agency may be specified by notification in the Official Gazette by the Central Government.
Section 3 of the Police Act, 1861 is in pari materia with Section 4 of the Delhi Special
Police Establishment Act, 1946. These Sections read as under:
Section 3 of the Police Act, 1861:
3 Superintendence in the State Government. - The superintendence of the police throughout a general police district shall vest in and shall be exercised by the State
Government to which such district is subordinate, and except as authorised under the provisions of this Act, no person, officer or Court shall be empowered by the
State Government to supersede or control any police functionary.
Sections 3 and 4 of the Delhi Special Police Establishment Act, 1946:
Offences to be investigated by S.P.E.
3. The Central Government may, by notification in the Official Gazette specify the offences or classes of offences which are to be investigated by the Delhi
Special Police Establishment.
Superintendence & Administration of S.P.E.
4(1) The Superintendence of the Delhi Special Police Establishment shall vest in the Central Government.
(2) The administration of the said police establishment shall vest in an officer appointed in this behalf by the Central Government who shall exercise in respect of that police establishment such of the powers exercisable by an InspectorGeneral of Police in respect of the police force in a State, as the Central
Government may specify in this behalf."
The meaning of the word "superintendence" in Section 4(1) of the Delhi Special Police
Act, 1946 determines the scope of the authority of the Central Government in this context.
There can be no doubt that the overall administration of the said force, i.e., CBI vests in the Central Government, which also includes, by virtue of Section 3, the power to specify the offences or class of offences which are to be investigated by it. The general superintendence over the functioning of the Department and specification of the offences which are to be investigated by the agency is not the same as and would not include within it the control of the initiation and the actual process of investigation, i.e., direction. Once the CBI is
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empowered to investigate an offence generally by its specification under Section 3, the process of investigation, including its initiation, is to be governed by the statutory provisions which provide for the initiation and manner of investigation of the offence. This is not an area which can be included within the meaning of "superintendence" in Section 4(1).
It is, therefore, the notification made by the Central Government under Section 3 which confers and determines the jurisdiction of the CBI to investigate an offence; and once that jurisdiction is attracted by virtue of the notification under Section 3, the actual investigation is to be governed by the statutory provisions under the general law applicable to such investigations. This appears to us the proper construction of Section 4(1) in the context, and it is in harmony with the scheme of the Act, and Section 3 in particular. The word
"superintendence" in Section 4(1) cannot be construed in a wider sense to permit supervision of the actual investigation of an offence by the CBI contrary to the manner provided by the statutory provisions. The broad proposition urged on behalf of the Union of India that it can issue any directive to the CBI to curtail or inhibit its jurisdiction to investigate an offence specified in the notification issued under Section 3 by a directive under Section 4(1) of the
Act cannot be accepted. The jurisdiction of the CBI to investigate an offence is to be determined with reference to the notification issued under Section 3 and not by any separate order not having that character.
… Once the jurisdiction is conferred on the CBI to investigate an offence by virtue of notification under Section 3 of the Act, the powers of investigation are governed by the statutory provisions and they cannot be estopped or curtailed by any executive instruction issued under Section 4(1) thereof. This result follows from the fact that conferment of jurisdiction is under Section 3 of the Act and exercise of powers of investigation is by virtue of the statutory provisions governing investigation of offences. It is settled that statutory jurisdiction cannot be subject to executive control.
There is no similarity between a mere executive order requiring prior permission or sanction for investigation of the offence and the sanction needed under the statute for prosecution. The requirement of sanction for prosecution being provided in the very statute which enacts the offence, the sanction for prosecution is a pre-requisite for the court to take cognisance of the offence. In the absence of any statutory requirement of prior permission or sanction for investigation, it cannot be imposed as a condition precedent for initiation of the investigation once jurisdiction is conferred on the CBI to investigate the offence by virtue of the notification under Section 3 of the Act. The word "superintendence" in Section 4(1) of the
Act in the context must be construed in a manner consistent with the other provisions of the
Act and the general statutory powers of investigation which govern investigation even by the
CBI. The necessity of previous sanction for prosecution is provided in Section 6 of the
Prevention of Corruption Act, 1947 (Section 19 of the 1988 Act) without which no court can take cognizance of an offence punishable under Section 5 of that Act. There is no such previous sanction for investigation provided for either in the Prevention of Corruption Act or the Delhi Special Police Establishment Act or in any other statutory provision. The above is the only manner in which Section 4(1) of the Act can be harmonised with Section 3 and the other statutory provisions.
The Single Directive has to be examined in this background. The law does not classify offenders differently for treatment thereunder, including investigation of offences and prosecution for offences, according to their status in life. Every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The Single Directive is applicable only to certain persons above the specified level who are described as "decision making officers". The question is whether
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any distinction can be made for them for the purpose of investigation of an offence of which they arc accused.
Obviously, where the accusation of corruption is based on direct evidence and it does not require any inference to be drawn dependent on the decision making process, there is no rational basis to classify them differently. In other words, if the accusation be of bribery which is supported by direct evidence of illegal gratification by them, including trap cases, it is obvious that no other factor is relevant and the level or status of the offender is irrelevant. It is for this reason that it was conceded that such cases, i.e., of bribery, including trap cases, are outside the scope of the Single Directive. After some debate at the Bar, no serious attempt was made by the learned Attorney General to support inclusion within the Single Directive of cases in which the offender is alleged to be in possession of disproportionate assets. It is clear that the accusation of possession of disproportionate assets by a person is also based on direct evidence and no factor pertaining to the expertise of decision making is involved therein. We have, therefore, no doubt that the Single Directive cannot include within its ambit cases of possession of disproportionate assets by the offender. The question now is only with regard to cases other than those of bribery, including trap cases, and of possession of disproportionate assets being covered by the Single Directive.
There may be other cases where the accusation cannot be supported by direct evidence and is a matter of inference of corrupt motive for the decision, with nothing to prove directly any illegal gain to the decision maker. Those are cases in which the inference drawn is that the decision must have been made for a corrupt motive because the decision could not have been reached otherwise by an officer at that level in the hierarchy. This is, therefore, an area where the opinion of persons with requisite expertise in decision making of that kind is relevant and, may be even decisive in reaching the conclusion whether the allegation requires any investigation to be made. In view of the fact that the CBI or the Police force does not have the expertise within its fold for the formation of the requisite opinion in such cases, the need for the inclusion of such a mechanism comprising of experts in the field as a part of the infrastructure of the CBI is obvious, to decide whether the accusation made discloses grounds for a reasonable suspicion of the commission of an offence and it requires investigation. In the absence of any such mechanism within the infrastructure of the CBI, comprising of experts in the field who can evaluate the material for the decision to be made, introduction therein of a body of experts having expertise of the kind of business which requires the decision to be made, can be appreciated. But then, the final opinion is to be of the CBI with the aid of that advice and not that of anyone else. It would be more appropriate to have such a body within the infrastructure of the CBI itself.
The Single Directive cannot, therefore, be upheld as valid on the ground of it being permissible in exercise of the power of superintendence of the Central Government under
Section 4(1) of the Act. The matter has now to be considered de hors the Single Directive.
Power of the Supreme Court
In view of the common perception shared by everyone including the Government of India and the Independent Review Committee (IRC) of the need for insulation of the CBI from extraneous influence of any kind, it is imperative that some action is urgently taken to prevent the continuance of this situation with a view to ensure proper implementation of the rule of law. This is the need of equality guaranteed in the Constitution. The right to equality in a situation like this is that of the Indian polity and not merely of a few individuals. The powers conferred on this Court by the Constitution are ample to remedy this defect and to ensure enforcement of the concept of equality.
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There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of this Court as provided in Article 144 of the Constitution. In a catena of decisions of this Court, this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role. It is in the discharge of this duty that the IRC was constituted by the Government of India with a view to obtain its recommendations after an indepth study of the problem in order to implement them by suitable executive directions till proper legislation is enacted. The report of the IRC has been given to the Government of India but because of certain difficulties in the present context, no further action by the executive has been possible. The study having been made by a Committee considered by the Government of India itself as an expert body, it is safe to act on the recommendations of the IRC to formulate the directions of this Court, to the extent they are of assistance. In the remaining area, on the basis of the study of the IRC and its recommendation, suitable directions can be formulated to fill the entire vacuum. This is the exercise we propose to perform in the present case since this exercise can no longer be delayed. It is essential and indeed the constitutional obligation of this Court under the aforesaid provisions to issue the necessary directions in this behalf. We now consider formulation of the needed directions in the performance of this obligation. The directions issued herein for strict compliance are to operable till such time as they are replaced by suitable legislation in this behalf.
There is another aspect of rule of law which is of equal significance. Unless a proper investigation is made and it is followed by an equally proper prosecution, the effort made would not bear fruition. The recent experience in the field of prosecution is also discouraging.
To emphasise this point, some reference has to be made to a large number of prosecutions launched as a result of monitoring by the court in this matter which have resulted in discharge of the accused at the threshold. It took several years for the CBI to commence investigation and that too as a result of the monitoring by this Court. It is not as if the CBI, on conclusion of the investigation, formed the opinion that no case was made out for prosecution so that the earlier inaction may have been justified. The CBI did file numerous chargesheets which indicated that in its view a prima facie case for prosecution had been made out. This alone is sufficient to indicate that the earlier inaction was unjustified. However, discharge of the accused on filing of the chargesheet indicates, irrespective of the ultimate outcome of the matters pending in the higher courts, that the trial court at least was not satisfied that a prima fade case was made out by the investigation. These facts are sufficient to indicate that either the investigation or the prosecution or both were lacking. A similar result of discharge of the accused in such a large number of cases where chargesheets had been filed by the CBI is not consistent with any other inference. The need for a strong and competent prosecution machinery and not merely a fair and competent investigation by the CBI can hardly be overemphasised. This is the occasion for us to take the view that a suitable machinery for prosecution of the cases filed in court by the CBI is also essential to ensure discharge of its full responsibility by the CBI. Unless a competent prosecution follows a fair and competent investigation, the exercise in the ultimate analysis would be futile. Investigation and prosecution are inter-related and improvement of investigation without improving the prosecution machinery is of no practical significance. We would, therefore, consider the aspect of prosecution also in the formulation of the guidelines.
… As pointed out in Vishakha (1997) 6 SCC 241, it is the duty of the executive to fill the vacuum by executive orders because its field is coterminous with that the legislature, and where there is inaction even by the executive for whatever reason, the judiciary must step in,
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in exercise of its constitutional obligations under the aforesaid provisions to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field.
On this basis, we now proceed to give the directions enumerated hereafter for rigid compliance till such time as the legislature steps in to substitute them by proper legislation.
These directions made under Article 32 read with Article 142 to implement the rule of law wherein the concept of equality enshrined in Article 14 is embedded, have the force of law under Article 141 and by virtue of Article 144, it is the duty of all authorities, civil and judicial, in the territory of India to act in aid of this Court. In the issuance of these directions, we have accepted and are reiterating as far as possible the recommendations made by the IRC.
It is a similar perception in England which has led to the Constitution of a Committee headed by Lord Nolan on “Standards in Public Life”. …
The Seven Principles of Public Life are stated in the Report by Lord Nolan, thus:
The Seven Principles of Public Life
Selflessness
Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends.
Integrity
Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisation that might influence them in the performance of their official duties.
Objectivity
In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.
Accountability
Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office. Openness
Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.
Honesty
Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.
Leadership
Holders of public office should promote and support these principles by leadership and example.
These principles of public life arc of general application in every democracy and one is expected to bear them in mind while scrutinising the conduct of every holder of a public office.
It is trite that the holders of public offices are entrusted with certain power to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with instead of being pushed under the carpet. If the conduct amounts an
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offence, it must be promptly investigated and the offender against whom a prima jade, case is made out should be prosecuted expeditiously so that the majesty of law is upheld and the rule of law vindicated. It is the duly of the judiciary to enforce the rule of law and, therefore, to guard against erosion of the rule of law.
The adverse impact of lack of probity in public life leading to a high degree of corruption is manifold. It also has adverse effect on foreign investment and funding from the International
Monetary Fund and the World Bank who have warned that future aid to under-developed countries may be subject to the requisite steps being taken to eradicate corruption, which prevents international aid from reaching those for whom it is meant. Increasing corruption has led to investigative journalism which is of value to a free society. The need to highlight corruption in public life through the medium of public interest litigation invoking judicial review may be frequent in India but is not unknown in other countries : R v. Secretary of State for Foreign and Commonwealth Affairs (1955) 1 WLR 386.
Of course, the necessity of desirable procedures evolved by court rules to ensure that such a litigation is properly conducted and confined only to matters of public interest is obvious.
This is the effort made in these proceedings for the enforcement of fundamental rights guaranteed in the Constitution in exercise of powers conferred on this Court for doing complete justice in a cause. It cannot be doubted that there is a serious human rights aspect involved in such a proceeding because the prevailing corruption in public life, if permitted to continue unchecked, has ultimately the deleterious effect of eroding the Indian polity.
As a result of the aforesaid discussion, we hereby direct as under:
I CENTRAL BUREAU OF INVESTIGATION (CBI) AND CENTRAL VIGILANCE
COMMISSION (CVC)
1. The Central Vigilance Commission (CVC) shall be given statutory status.
2. Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Minister, Home Minister and the Leader of the Opposition from a panel of outstanding civil servants and others with impeccable integrity, to be furnished by the Cabinet Secretary. The appointment shall be made by the President on the basis of the recommendations made by the Committee. This shall be done immediately.
3. The CVC shall be responsible for the efficient functioning of the CBI. While
Government shall remain answerable for the CBI 's functioning, to introduce visible objectivity in the mechanism to be established for over viewing the CBI 's working, the
CVC shall be entrusted with the responsibility of superintendence over the CBPs functioning. The CBI shall V report to the CVC about cases taken up by it for investigation; progress of investigations; cases in which chargesheets are filed and their progress. The CVC shall review the progress of all cases moved by the CBI for sanction of prosecution of public servants which are pending with the competent authorities, specially those in which sanction has been delayed or refused.
4. The Central Government shall take all measures necessary to ensure that the CBI functions effectively and efficiently and is viewed as a non-partisan agency.
5. The CVC shall have a separate section in its Annual Report on the CBl 's functioning alter the supervisory function is transferred to it.
6. Recommendations for appointment of the Director, CBI shall be made by a Committee headed by the Central Vigilance Commissioner with the Home Secretary and Secretary
(Personnel) as members. The views of the incumbent Director shall be considered by the
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Committee for making the best choice. The Committee shall draw up a panel of IPS officers on the basis of their seniority, integrity, experience in investigation and anticorruption work. The final selection shall be made by the Appointments Committee of the
Cabinet (ACC) from the panel recommended by the Selection Committee. If none among the panel is found suitable, the reasons thereof shall be recorded and the Committee asked to draw up a fresh panel.
7. The Director, CBI shall have a minimum tenure of two years, regardless of the date of his superannuation. This would ensure that an officer suitable in all respects is not ignored merely because he has less than two years to superannuate from the date of his appointment. 8. The transfer of an incumbent Director, CBI in an extraordinary situation, including the need for him to take up a more important assignment, should have the approval of the
Selection Committee.
9. The Director, CBI shall have full freedom for allocation of work within the agency as also for constituting teams for investigations. Any change made by the Director, CBI in the Head of an investigative team should be for cogent reasons and for improvement in investigation, the reasons being recorded.
10. Selection/extension of tenure of officers upto the level of Joint Director (JD) shall be decided by a Board comprising the Central Vigilance Commissioner, Home Secretary and
Secretary (Personnel) with the Director, CBI providing the necessary inputs. The extension of tenure or premature repatriation of officers upto the level of Joint Director shall be with final approval of (his Board. Only cases pertaining to (he appointment or extension of (enure of officers of the rank of Joint Director or above shall be referred to the Appointments Committee of the Cabinet (ACC) for decision.
11. Proposals for improvement of infrastructure, methods of investigation, etc. should be decided urgently. In order to strengthen CBI 's in-house expertise, professionals from the revenue, banking and security sectors should be inducted into the CBI.
12. The CBI Manual based on statutory provisions of the Cr.P.C. provides essential guidelines for the CBI 's functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the concerned officials.
13. The Director, CBI shall be responsible for ensuring the filing of chargesheets in courts within the stipulated time limits, and the matter should be kept under constant review by the Director, CBI.
14. A document on CBI 's functioning should be published within three months to provide the general public with a feedback on investigations and information for redress of genuine grievances in a manner which does not compromise with the operational requirements of the CBI.
15. Time limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG 's office.
16. The Director, CBI should conduct regular appraisal of personnel to prevent corruption and/or inefficiency in the agency.
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II. ENFORCEMENT DIRECTORATE
1. A Selection Committee headed by the Central Vigilance Commissioner and including the Home Secretary, Secretary (Personnel) and Revenue Secretary, shall prepare a panel for appointment of the Director, Enforcement Directorate. The appointment to the post of
Director shall be made by the Appointments Committee of the Cabinet (ACC) from the panel recommended by the Selection Committee.
2. The Director, Enforcement Directorate like the Director, CBI shall have a minimum tenure of two years. In his case also, premature transfer for any extraordinary reason should be approved by the aforesaid Selection Committee headed by the Central Vigilance
Commissioner.
3. In view of the importance of the post of Director, Enforcement Directorate, it shall be upgraded to that of an Additional Secretary/Special Secretary to the Government.
4. Officers of the Enforcement Directorate handling sensitive assignments shall be provided adequate security to enable them to discharge their functions fearlessly.
5. Extensions of tenure upto the level of Joint Director in the Enforcement Directorate should be decided by the said Committee headed by the Central Vigilance Commissioner.
6. There shall be no premature media publicity by the CBI/Enforcement Directorate.
7. Adjudication/commencement of prosecution shall be made by the Enforcement
Directorate within a period of one year.
8. The Director, Enforcement Directorate shall monitor and ensure speedy completion of investigations/adjudications and launching of prosecutions. Revenue Secretary must review their progress regularly.
9. For speedy conduct of investigations abroad, the procedure to approve filing of applications for Letters Rogatory shall be streamlined and, if necessary, Revenue
Secretary authorised to grant the approval.
10. A comprehensive circular shall be published by the Directorate to inform the public about the procedures/systems of its functioning for the sake of transparency.
11. In-house legal advice mechanism shall be strengthened by appointment of competent legal advisers in the CBI/Directorate of Enforcement.
12. The Annual Report of the Department of Revenue shall contain a detailed account on the working of the Enforcement Directorate.
III. NODAL AGENCY
1. A Nodal Agency headed by the Home Secretary with Member (Investigation), Central
Board of Direct Taxes, Director General, Revenue Intelligence, Director, Enforcement and Director, CBI as members, shall he constituted for coordinated action in cases having politico-bureaucrat-criminal nexus.
2. The Nodal Agency shall meet at least once every month.
3. Working and efficacy of the Nodal Agency should be watched for about one year so as to improve it upon the basis of the experience gained within this period.
IV. PROSECUTION AGENCY
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1. A panel of competent lawyers of experience and impeccable reputation shall be prepared with the advice of the Attorney General. Their services shall be utilised as
Prosecuting Counsel in cases of significance. Even during the course of investigation of an offence, the advice of a lawyer chosen from the panel should be taken by the
CBI/Enforcement Directorate.
2. Every prosecution which results in the discharge or acquittal of the accused must be reviewed by a lawyer on the panel and, on the basis of the opinion given, responsibility should be fixed for dereliction of duly, if any, of the concerned officer. In such cases, strict action should be taken against the officer found guilty of dereliction of duty,
3. The preparation of the panel of lawyers with the approval of the Attorney General shall be completed within three months.
4. Steps shall be taken immediately for the Constitution of an able and impartial agency comprising persons of unimpeachable integrity to perform functions akin to those of the
Director of Prosecutions in U.K. On the Constitution of such a body, the task of supervising prosecutions launched by the CBI/Enforcement Directorate shall be entrusted to it.
5. Till the Constitution of the aforesaid body, Special Counsel shall be appointed for the conduct of important trials on the recommendation of the Attorney General or any other law officer designated by him.
The learned amicus curiae had urged us to issue directions for the appointment of an authority akin to the Special or Independent Counsel in the United States of America for the investigation of charges in politically sensitive matters and for the prosecution of those cases and to ensure that appointments to sensitive posts in the CBI and other enforcement agencies and transfers therefrom were not made by the political executive. We are of the view that the time for these drastic steps has not come. It is our hope that it never will, for we entertain the belief that the investigative agencies shall function far better now, having regard to all that has happened since these writ petitions were admitted and to the directions which are contained in this judgment. The personnel of the enforcement agencies should not now lack the courage and independence to go about their task as they should, even where those to be investigated are prominent and powerful persons.
In view of the problem in the States being even more acute, as elaborately discussed in the Report of the National Police Commission (1979), there is urgent need for the State
Governments also to set up credible mechanism for selection of the Police Chief in the States.
The Central Government must pursue the matter with the State Governments and ensure that a similar mechanism, as indicated above, is set up in each State for the selection/appointment, tenure, transfer and posting of not merely the Chief of the State Police but also all police officers of the rank of Superintendent of Police and above. It is shocking to hear, a matter of common knowledge, that in some States the tenure of a Superintendent of Police is on an average only a few months and transfers are made for whimsical reasons. Apart from demoralising the police force, it has also the adverse effect of politicizing the personnel. It is, therefore, essential that prompt measures are taken by the Central Government within the ambit of their constitutional powers in the federation to impress upon the State Governments that such a practice is alien to the envisaged constitutional machinery. The situation described in the National Police Commission 's Report (1979) was alarming and it has become much worse by now. The desperation of the Union Home Minister in his letters to the State
Governments, placed before us at the hearing, reveal a distressing situation which must be
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cured, if the rule of law is to prevail. No action within the Constitutional Scheme found necessary to remedy the situation is too stringent in these circumstances.
In the result, we strike down Directive No. 4.7(3) of the Single Directive quoted above and issue the above directions, which have to be construed in the light of the earlier discussion.
The Report of the Independent Review Committee (IRC) and its recommendations which are similar to this extent can be read, if necessary, for a proper appreciation of these directions.
To the extent we agree with the conclusions and recommendations of the IRC, and that is a large area, we have adopted the same in the formulation of the above directions. These directions require the strict compliance/adherence of the Union of India and all concerned.
The writ petitions are disposed of in the above terms. …
Page 610 of 610
Citations: In BALCO Employees Union v. Union of India, (2002) 2 SCC 333, this Court further pointed out that the Court ought to stay away from judicial review of efficacy of policy
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