THE STATE OF WEST BENGAL v. ANWAR ALI SARKAR
Citation: [1952] 1 S.C.R. 284; 1952 INSC 1
Court: Supreme Court of India
Bench: M. PATANJALI SASTRI , MEHR CHAND MAHAJAN , BIJAN KUMAR MUKHERJEA , SUDHI RANJAN DAS , SIR SYED FAZL ALI , N. CHANDRASEKHARA AIYAR , VIVIAN BOSE
Judgment date:
Case summary
1952 INSC 1. Supreme Court of India judgment dated 1952-01-11. THE STATE OF WEST BENGAL v. ANWAR ALI SARKAR. Read the judgment and case details on LawSphereX.
Judgment text
284 SUPREME COURT REPORTS . [1952) '1952 THE STATE OF WEST BENGAL / -cedural rights for relief and for defence with like protection and without discrimination('). The two cases referred to by the learned Attorney-General in this connection do not really support his contention. In Hayes v. Mzsrouri(') the subject-matter of complaint was a pr<>-vision 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_ (]) Vide A. K. Gopalan v. The State of Madras [1950] S. C. R. 88. (2) Weaver : Constitutional La\v, page 407. · (3) 120 U. S. 68; 30 L. Ed. 578. 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 165 U. S. 150. (4) 118 U. S. 356. [1952] F~ancisco was invalid by reason of its being in conflict with the equal protection clause. The order in question laid down that it would be unlawful for any person to engage in laundry business within the corporate limits "without having first obtained the consent of the Board of Supervisors except the same to, be located in a building constructed either of brick or stone. " The question was answered in the affirmative. It was pointed out by Matthews, J. , who delivered the opinion of the court, that the ordinance in question did not merely prescribe a rule and condition for the regulation of the laundry business.
It allowed without restriction the use for such purposes of building of brick or stone, but as to wooden buildings constituting nearly all those in previous use, it divided the owners or occupiers into two classes, not having respect to their personal character and qualifications of the business, nor the situation and nature and adaptation of the buildings themselves, but merely by an arbitrary line, on one side of which were those who were permitted to pursue their industry by the mere will and consent of the supervisors and on the other those from whom that consent was withheld at their will and pleasure. This sort of committing to the unrestrained will of a public officer the power to deprive a citizen of his, right to carry on lawful business was held to constitute an invasion of the Fourteenth Amendment.
The learned Judge pointed out in course of his judgment that there are cases where discretion is lodged by law in public officers or bodies to grant or withhold licences to keep taverns or places for sale of spirituous liquor and the like. But all these cases stood on a different footing altogether. The same view was reiterated in Crowley v. Christensen(') which related to an ordinance regulating the issue of licences to sell liquors. It appears to he 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 occa-sioned by the express terms of the statute or by their (I) 137 U. S. 86. .... '. improper application through duly constitued agents. This was clearly laid down in Sunday Lake Iron Company v. W akefield(1 ).
In this case the complaint was against a taxing officer, who was alleged to have assessed the plaintiff's properties at their full value, while all other persons in the country were assessed at not more than one-third of the worth of their properties. It was held that the equal protection clause could ~e availed of against the taxing officer ; but if he was found to have acted bona fide and the discrimination was the result of a mere error of judgment on his part, the action would fail. The position, therefore, is that when the statute is not itself discriminatory and the charge of violation of equal protection is only against the official, who is entrusted with the duty of carrying it into 'operation, the equal protection clause could be availed of in such cases ; but the officer would have a good defence if he could prove bona fides.
But when the statute itself makes a discrimination without_ any proper or reasonable basis, the statute would be invalidated for being in conflict with the equal protection clause, and the question as to how it is actually worked out may not necessarily be a material fact for consideration. As I have said already, in the present case the. discrimination arises on the terms of the Act itself. The fact that it gives unrestrained power to the State Government to select in any way it likes the particular cases or offences which should go to a Special Tribunal and withdraw in such cases the protection which the accused normally enjoy under the criminal law of the country, is on the face of it discriminatory. It may be noted in this connection that in the present case the High Court has held the provision of section 5(1) of the West Bengal Special Courts Act to be ultra vires the Constitution only so far as it allows the State Government to direct any case to be tried by the Special Court.
In the opinion of the learned Chief Justice, if the State Government had directed certain offences or classes of offences committed within the (1) 247 U. S. 350. territory of West Bengal to be tried by the Special Court, the law or order could not have been impeached as discriminatory. It is to be noted that the Act itself does not mention in what classes of cases or offences such direction could be given ; nor does it purport to lay down ,the criterion or the basis upon which the classification is to be made. It is not strictly correct to say that if certain specified offences throughout the State were directed to be tried by the Special Court, there could nou be any infringement of the equality rule. It may be that in making the selection the authorities would exclude from the list of offences other offences of a cognate character in respect to which no difference in treatment is justifiable.
In such circumstances also the law or order would be offending against the equality provision in the Constitution. This is illustrated by the case of Skinder v. Oklahoma('). There a statute of Oklahoma provided for the sterilization of certairi 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 (2). If that be the position, then an action might lie for annulling the acts of the officers if they are found not to be in conformity with the equality clause.
Moreover, in the present case the notification by the State Government could come within the definition of law as given in article 13(3) of the Constitution and can be impeached apart from the Act if it violates article 14 of the Constitution. I do not consider it necessary to pursue thls matter any further, as in my opinion even on the (I) 316 U. S. SSS. (2) Vi de Witlis on C~nstitutional Law, Page 587 \ limited ground upon which the High Court bases its decision, these appeals are bound tio fail. DAs J. -1 concur in dismissing these appeals but I am not persuaded that the whole of ,section 5(1) of the West Bengal Special Courts Act is invalid. As I find myself in substantial agreement with the interpretation put upon that section by the majority of the Full Bench of the Calcutta High Court and most of the reasons adopted by Harries, C. J. , in support thereof, I do not feel called upon to q:press myself in very great detail.
I propose only to note the points urged before us and shortly state my conclusions thereon. There is no dispute that the question of the validity of section 5 of the West Bengal Special Courts Act, 1950, has to be determined in the light of the provisions of the Constitution of India which came into force on January 26, 1950. The contention of the respondents, who were petitioners before the High Court has been and is that the whole of section 5 of the Act or, at any rate, that part of it which authorises the State government , to direct particular "cases" to be tried by the Special Court offends against the guarantee of equality before the law secured by article 14.
If the provision of section 5 of the Act is invalid even to the limited extent mentioned above, then also the whole proceedings before the Special Court which was directed by the State Government to try these particular "cases" must necessarily have been without jurisdiction as has been held by the tJigh Court Full Bench and these appeals would have to be dismissed. Article 14 of our Constitution, it is well k:nown, 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 discusseed and laid ·down by this Court in the case of Chiranjit Lal Chowdhury v. The Union of India and Others(').
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 2 in The State of Bombay v. F. N. Balsara( ). 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 h:>Stile 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, attaipment or circumstances, equal and the varying needs of different classes of persons often require separate treatment and, therefore, the protecting clause has been construed as a guarantee against discrimination amongst equals only and not as taking away from the State the power to classify persons for the purpose of legislation. This classification may be on different bases. It may be geographi-cal 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 ftil-filled, namely, (1) that the classification must be founded on an intelligible diffcrentia which dis-tinguishes those that are gr011pc and Santa Fe Railway . Co. v. W. H. Ellis('), 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, unsup-ported as it is by any judicial decision, as a sound test for determining t:he validity of State action. The learned Attorney-General next contends, on the authority of -a passage in Cooley's Constitutional Limitatioru, 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(").
A careful permal 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 num- 'ber of workmen employed therein was based on an intelligible distinction having a rational relation to the subject-matter of the legislation m question. That decision, therefore, does not support the pro-pos1t10n so widely stated in the passage apparently adged by the editor to the original text of Judge Cooley. The difference brought about 'by a statute may be of such a trival, unsubstantial ·and illusory nature that that circumstance alone may-be regarded as cognent 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 ineq)lality in fact and in substance, it will be illogical and highly -undesirable to make the constitutionality of such a oStatute depend on the degree of the inequality so (1) 165 U. S. 150. (2) 235 U. S. 571; 59 L. Ed. 364. brought about. The adoption of such a principle will run counter to the plain language of article 14. The At one stage of his arguments the learned Attorney- General just put forward an argument, which he did not press very strongly, that the Article is a protection against the inequality of substantive law only and not against that of a procedural law. I am quite definitely not prepared to countenance that argument. There is no logical basis for this distinction. A procedural law may easily inflict very great hardship on persons subjected to it, as, indeed, this very Act under consideration will presently be seen to have obviously done .
That the Act has prescribed a procedure of trial which is materially different from that laid down in the Code of Criminal Procedure cannot be disputed. The different sections of the Act have been analysed and the important differences have been clearly indicated by the learned Chief Justice of West Bengal and need not be repeated in detail. The elimination of the committal proceedings and of trial by jury (sec. 6), the taking away of the right to a de novo trial on transfer (sec. 7), the vesting of discretion in the Special Court to refuse to summon a defence witness if it be satisfied that his evidence will not be material (sec. 8), the liability to be convicted of an offence higher than that for which the accused was sent up for trial under the Act (sec. 13), the exclusion of interference of other Courts by way of revi,sion or transfer or under section 491 of the Code (sec. 16) are some of the glaring instances of inequality brought about by the impugned Act.
The learned Attorney-General has drawn our attention to various sections of the Code of Criminal Procedure in an endeavour to establish that provisions somewhat similar to those enacted in this Act are also contained in the Code. A comparison between the language of those sections of the Code and that of the several sections of this Act mentioned above will clearly show that tl1e 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 tl1rown out at the preliminary stage, as may be done by the committing Magistrate, and deprives the accused person of the opportu111ty of knowing, well in adavnce 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 beiore and the decision of a different and mdependent mind. The Jiabiiity to be c011 vie led of a higher o! Icnce has no parallel in the Code. It is true that the State can, under section 269 (1) of the Code, do away with trial by jury but that section, as pointed out by Chakravartti J.
does not clearly contemplate elimination of that proceture only in particular cases which is pre-cisely 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 afxmt a substantial ~nequality of treatment, in the matter of trial, between persons subjected to it and others who are left to be governed by the ordinary procedure laid down in the Code. The question is whether section 5 ( 1) which really imposes this substantial inequality on particular persons can be saved from the operation of article 14 on the principle of rational classification of the kind permissikle in law. Section 5 ( 1) of the Act runs as follows :- "A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may, by general or special order in writing, direct".
It will be noticed that the sub-section refers to four distinct categories, namely, "offences", "classes of of- . fences", "cases" a11d "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 to-wards 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 or section 5 ( 1), the question arises whether the process of classification thus contemplated by the Act conforms to the requiremen~ 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 intituled "An Act to provide for the speedier trial of certain offences" afld 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 l'ders 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 t'rial 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 constmction of the section, he maintains, is consonant with the object of the Act as recited in the preamble and does not offend ag~inst the inhibition of article 14 of our Constitution.
Learned counsel for the respondents, on rhe 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 ~ection 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 I have mentioned.
The preamble of the Act under consideration recites the expediency of providing for the speedier trial of certain ·1952 offences. The provision for the speedier trial of certain .. offences is, therefore, the object of the Act. To achieve The State of this object, offences or cases have to be classified upon- West Beng1d the basis of some differentia which will distinguish v. those offences ·or cases from others and which will have Anwar Ali a reasonable relation to the recited object of the Act. ~"rkar. The far as it empowers the State government to direct "offences" or "classes of. offenc~s" or "classes of cases" to be tried by a Special Court, also, by necessary implication and intendment, empowers the State government to dassify the "offences" or "classes of offences" or "classes of cases'', that is to say, te> make a proper classification in the sense I have explained.
In my judgment, this part of" the section, properly construed and understood, does not confer an uncontrolled and unguided power on the State government. On the contrary, this power is controlled by the necessity for making a . proper classification which is guided by the preamble in the sense that the classification mmt 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 abritrarily and not on any reasonable basis having a relation to tbe 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 disrcrimination. In the present case, however, the State government has not purported to proceed under that part of section 5(1) which I have been discussing so far. It has, on the other hand, acted under that part of the section which authorises it to direct "cases" to be tried by the Special Court, for by the notifications it has directed certain specific cases identified by their individual numbers in the records of the particular 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 casses". 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, tlf'at 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 th~ "case" from other "cases" and having a relation to the obiect ot 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 m-di vi dual 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 haxe meutioned, 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 appreci-, able 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 i12 this pan of the section itself and, therefore, this part of the sectiqn 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 unconstitu-tionality 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. CHANDRASEKHARA AIYAR J. -The s_hort question that arises for consideration in these cases is whether the whole, or any ·portion of the West Bengal Special Court 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 whicli have led up to the cases ha,c heen 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 propo5e to indicate my views as shortly as possible on a few only of, the points raised and discussed. The preamble to the Constitution mentions one of the objects to be to secure to all its citizens equality of status and opportunity. Article 14 provides : "The State shall not deny to any person equality before the · law or the equal protection of the laws within the territory of India. " Then follow articles 15 and 16, the former prohibiting discrimination on grounds of religion, race, caste, sex, place of birth, or any of them and the latter providing for equality of opportunity in matters of public em-ployment. Leaving aside articles 17 to 19 as irrele-vant for present purposes, we proceed to articles 20, 21 and 22, which deal with prosecutions and convictions for offences and cases of preventive . detention and prescribe, in rough and general outline, certain matters of procedure.
Article 21 is, so to say, the key of this group or bunch and it is in these terms:- "No person shall be deprived of his life or personal liberty except according to procedure est~blished by law. " 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 asse~sors, the right of a .
de novo trial on transfer of a case from one Court to another, have been taken away from the accused who are to be tried by a Special Court ; even graver is section 13, which provides that a person may be wn-victed 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 ~gainst 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 beforn the law or the equal protection of the laws so long as the substantive law remains unchanged or that only the fundamental· rights referred to in articles 20 to 22 should be safeguarded is, on the face of it, unsound. The right to equality postulated by article 14 is as much a fundamental right as any other fundamental right dealt with in Part III of the Constitution. Procedural law may and does confer very valuable rights on a person, and their protection must be as milch 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 fac~ 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 gerieral 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 legislatiqn may be unexcep-· tionable and the object sought to be ac11ieved may be praiseworthy but the question which falls to be considered under rarticle 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 anv State or country. To use the felicitous language of Mr. Justice Holmes in Bain Peanut Co. v. Pinson(1) "We must remember that the machinery of government could nor 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, The State of Bombay and Another v. F. N. BalsaraC), where my learned brother Faz! 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. The Union of India and Otlters(3) . Willis says:- "The guaranty of the equal protection of the laws means the protection of equal laws. It forbids (1) 282 U. S. 499 at p. 501. m [1950] S. C. R. 869. (2) [1951] S. C. R. 682. 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 dass 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 l&ws, or er'1inent domain laws, but permits to them the exercise of a wide scope of discretion, and ,nullifies what they s Gupta in the following passage of his judgment :- / "The Act lays down no principle on which selection of "classes of offnces" or "classes of cases" should be made by the State Government. The State Government may even arbitracily 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 what-soever 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 nN save the rest of the Act from being invalid. " BosE J.
-We are concerned here with article 14 of the Constitution and in particular with the words "equality before the law" and "equal prot,ction of the law. " Now I yield to none in my insistence that plain unambiguous words in a statute, or i n the Constitution, must having regard to the context, be interpreted according to their ordinary meaning and be given full effect. Bnt 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 whe-there "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" means ? 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 stand-ing and economic statuts.
High -sounding phrases cannot alter such fundamental facts. It is therefore impossible to apply rules of abstract equality to conditions which predicate inequality from the start ; and yet the words have meaning though in my judgmen~ 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 mathe-matical 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 from the means of ordering the life of a progressive people. There is consequently grave danger in endeavouring to confine them in watertight compartments made up of ready-made generalisations like classification.
I have no doubt those tests serve as a rough and ready guide in some cases but they are not the only tests, nor are they the true tests on· a final analysis. What, fater all, is classification ? It l. s merely a systematic arrangement of things into groups or classes, usually in accordance with some definite scheme. But the scheme can be anything and the laws which are laid down to govern the grouping must necessarily be arbitrarily selected ; also granted the right to select, the classification can be as broadbased as one pleases, or it can be broken down and down until finally just one solitary unit is divided off from the rest. Even those [1952] 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 sub-stantiality or otherwise of the discrimination ? And, much more important, whose standards of reasonableness are to be applied ? -the judges ? -the govern-mf;nt'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 statisfactory 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 mah~ for differentiation the ones which do not offend axticle 14 and separate them from those which do. It is true the word can also be useJ in the sense of showing favouritism, but in so far as it means that, it suffers from the same defect as the 'hostile action' test. We are then compelled 'to import into the question the element of motive and delve into the minds of those who make the differentiation or pass the discriminatory law and thus at once substitute a subjective test for an objective analysis. I would always be slow to impute want of good faith in these cases, I have no doubt that the motive, except in rare cases, is beyond reproach and were it not for the fact that the Constitution demands equality of treatment these laws would, in my opinion, be valid. But 1hat apart.
What material have we for delving into the mind of a legislature? It is useless to say that a man shall be judged by his acts, for acts of this kind can spring from good motives as well as bad, and in the absence of other material the presumption must be overwhelmingly in favour of the former. I can conceive of cases where there is the utmost good faith and where the classification is scientific and rational and yet which would offend this law. Let us take an imaginary case in which a State legislature considers that all accused persons whose skull measurements are below a certain standard, or who cannot pass a given series of intelligence tests, shall be tried summarily whatever the offence on the ground that the less complicated the trial the fairer it is to their sub-standard of intelligence. Here' is classification. It is scientific and systematic. The intention and motive are good.
There is no question of favouritism, and yet I can hardly believe that such a law would be allowed to stand. But what would· be the true basis of the decision ? Surely simply this that the judges would not consider that fair and proper. However much the real ground of decision may be hidden behind a screen of words like 'reasonable', 'substantial', 'rational' and 'arbitrary' the fact would remain that judges are substituting their own judgment of what is right and proper and reasonable and just for that of the legislature ; and up to a point that, I think, is inevitable when a judges is called upon to crystallise a vague generality like article 14 into a concrete concept.
Even in England, where Parliament is supreme, that is inevitable, for, as Dicey tells us in his Law of the Constitution: "Parliament is the supreme legislator, but from the moment Parliament has uttered its will as law-giver, that will become 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 dispo~ed to construe statutory exceptions to common law principles in a mode which would not commend itself either to a body of officials, or to the Houses of Parliament, if the Homes were called upon to interpret their own enactments. " This, however, does not mean that judges are to determine what is for the good of the people and substitute their individual and personal opinions for that of the government of the day, or that they may usurp the functions of the legislature.
That is not their province and though there must -always be a a narrow margin within which judges, who are human, will always be influenced by subjective factors, their training and their tradition makes the main body of their decisions speak with the same voice of 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 limit• lie, the ha. sis of their decision cannot be whether the Court thinks the law is for the benefit of the people or . not.
Cases of this type must be decided solely on the basis whether the Constitution forbids it. I realise that this is a function which is incapable of exact definition but I do not view that with dismay. The common law of England grew up in that way. It was gradually added to as each concrete case arose and a decision was given ad hoc on the facts of that particular case. It is true the judges who thus contri-buted 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 awarenes in man's minds, nevertheless were neither clearly definable, nor even necessarily identifiable, until crystallised into concrete existence by a judicial decision ; nor indeed is it necessary to travel as far afield. Much of the existing Hindu law has grown up in that way from instance to instance, the threads being gathered now from the rishis, now from custom, now from tradition. In the same way, the laws of liberty, of freedom and of protection under the Constitution will also slowly assume recognisable shape as decision is added to decision. They cannot in my judgment, be enunciated in static form by hide-bound rules and arbitrarily applied standards or tests.
I find it impossible to read these portions of the Constitution without regard to the background out oi whicJi 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 my judgment, be left elastic enough to meet from time to time the altering conditions of . a changing world with its shifting emphasis and deffering needs.
I feel therefore that in each case judges must look straight into the heart of things and regard the facts of each case concretely much as a jury would do ; and yet, not quite as a jury, for we are considering here a matter of law and not just one of fact : Do these "laws" which have been called in question offend a still greater law before which even they must bow ? Doing that, what is the history of these provisions ? They arose out of the fight for freedom in this land - and are but the endeavour to compress into a few pregn~nt phrases some of the main attributes of a sovereign democratic republic as seen through Indian eyes. There was present to the collective mind of the Constituent Assembly, reflecting the mood of the peoples of India, the memory of grim trials by hastily constituted tribunals with novel forms of procedure set forth in Ordinances promulgated in haste because of what was then felt to be the urgent necessities of the moment.
Without casting the slightest reflection on the judges and the Courts so constituted, the fact remains that when these tribunals were declared invalid and the same persons were retried in the ordinary Courts, many were acquited, many who had been sentenced to death were obsolved. 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, constrasted with the ordinary law of the land, as the sort of substantially equal treatment which men of resolute minds and unbiassed views can regard as right and proper in a democracy of the kind we have proclaimed ourselves to be.
Such views must take into consideration the practical necessities of government, the right to alter the laws and many other facts, but in the forefront must remain the freedom of the individual from unjust and unequal treatment, unequal in the broad sense in which a democracy would view it. In my opinion, 'law' as used in article 14 does not mean the "legal precepts which are actually recognised and applied in the tribunals of a given time and place" but "the more general bodv 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 startling doctrine. It is just what happened in the cases of blasphemy and sedition in England. Lord Sumner has explained this in Bo111-man's case(1) and the Federal Court in Niharendu Dutt Majumdar's case(2) and so did Puranik J. and I in the Nagpur High Court in Bhagwati Charan Shuklds 3 case( ). Coming now to the concrete cases with which we have to deal here. I am far from suggesting that the departures made from the proc!! dure ' prescribed by the Criminal Procedure Code are bad or undesirable , in themselves. Some may be good in the sense that they will better promote the ends of justice and would thus form welcome additions to the law of the land. But I am not here to consider that.
That is no part of a Judge's province. What I have to determine is whether the differentiation made offends what I may call the social conscience of a sovereign democratic republic. That is not a question which can be answered in the abstract, but, viewed in the background of our history. I am of opinion that it does. It is not that these laws are necessarily bad in themselves. It is the differentiation which matters ; the singling out of cases or groups of cases, or even of offences or classes of offences, of a k:ind fraught with the most serious consequences to the individuals concerned, for special, and what some would rega~d as peculiar, treatmeu. t. It may be that justice would be fully done by fol. lowing the new procedure. It may even be that it would be more truly done.
But it would not be satis-factorily 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 jmtice shoul,l be done. Justice must also be seen to be done and a sense of satisfaction' and confidence in it engendered. That cannot be when Ramchandra is tried by one procedure and Sakharam, similarly placed, facing equally serious charges, also answering for his life and liberty, by another which differs radically from the first. The law of the Constitution is not only for those who govern or for the theorist, but also for the bulk of the people, for the common man for whose benefit and pride and safeguard the Constitution has also been written.
Unle>s 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 gram-mar and dialectical logic, can understand and appre.. . :iale so that he may have faith and confidence and unshaken trust in that which has been enacted for his benefit and protection. Tested in the light of these considerations, I am of opinion that the whole of the West Bengal Special Courts Act of 1950 offends the provisions of article 14 and is therefore bad. When the froth and the foam of discussion is cleared away and learned dialectics placed on one side, we reach at last the human element which to my miud is the most important of all. W c find men accused of heinous crimes called upon to answer for their lives and liberties.
We find them picked out from their fellows, and however much the new procedure may give them a few crumbs of advantage, in the bulk they are deprived of substantial and valuable privileges of defence which others, similarly charged, are able to claim. It matters not to me, nor indeed to them and their families and their friends, whether this be done in good faith, whether it be done for the convenience of government, whether the process can be scientifically class'fied 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, un-biased 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 iiberties which is expected of a sovereign democratic xepublic in the conditions which obtain in India . today? I have but one answer to that. On that short and simple ground I would decide this case and hold the Act bad. I; Appeals dismissed. (1) [1917] A. c. 406 at 454, 466 and 467. (2) [1942] p. c. R. 32 at_42. (3) 1. L. R. 1946Nag. 865 at 878 and879 Agent for the appellant in Case No. 297: P. K. Bose. Agent for the respondent in Case No. 297: Sukumar ,Ghose. Agent for Habib Mohammad (Intervener) : Rajin4er Narain. . ·Agent for the State of Hyderabad and for the State 'of Mysore (Interveners): P. A. Mehta. Agent for the appellant in Case No. 298: P. K. Bose. Agent for the respondent in Case No.
298: Sukumar Ghose.
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