TMI Blog1952 (1) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... s the Jessop Factory at Dum Dum, and they were convicted and sentenced to varying terms of imprisonment by the Special Court to which the case was sent for trial by the Governor of West Bengal by a notification dated 26th January, 1950, in exercise of the powers conferred by section 5 (1) of the Act. Thereupon the respondent applied to the High Court under article 226 of the Constitution for the issue of a writ of certiorari quashing the conviction and sentence on the ground that the Special Court had no jurisdiction to try the case inasmuch as section 5 (1), under which it was sent to that Court for trial, was unconstitutional and void under article 13 (2)as it denied to the respondent the equal protection of the laws enjoined by article 14. The High Court by a Full Bench consisting of the Chief Justice and four other Judges quashed the conviction and directed the trial of the respondent and the other accused persons according to law. Hence the appeal. The Act is intituled An Act to provide for the speedier trial of certain offences , and the preamble declares that it is expedient to provide for the speedier trial of certain offences . Section 3 empowers the State Government b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame view was expressed by Holmes J. in an American case, Carroll v. Greenwich Insc. Co. (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 specific provisions and to the particular end. The title and the preamble as well as the other specific provisions of the Act here in question show unmistakably that the whole object and purpose of the legislation was to devise machinery for speedier trial of certain offences , (which must mean trial of cases involving the commission of certain 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th in the legislative and the administrative spheres in the democratic republic of India. This, however, cannot mean that all laws must be general in character and universal in application. As pointed out in Chiranjit Lal s case([1950] S.C.R. 869 ) and in numerous American decisions dealing with the equal protection clause of the 14th Amendment, the State in the exercise of its governmental power must of necessity make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws. But classification necessarily implies discrimination between persons classified and those who are not members of that class. It is the essence of a classification said Mr. Justice Brewer in Atchison, Topeka Santa Fe R. Co. v. Matthews (174 U.S. 96, 106.), that upon the class are cast duties and burdens different from those resting upon the general public. Indeed the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, could it arise when executive orders or notifications directed against individual citizens are assailed as discriminatory. It is interesting to find that the trend of recent decisions in America has been to lean strongly toward sustaining State action both in the legislative and in the administrative spheres against attacks based on hostile discrimination. Classifications condemned as discriminatory have been subsequently upheld as being within the powers of the legislature. In Tigner v. Texas (310 U.S. 141. (4) 174 U.S. 96.), the majority view in Connolly s case(184 U.S. 540. (5) 330 U.S. 552,) holding that an Illinois anti-trust law, which made certain forbidden acts criminal if done by merchants and manufacturers but declared them to be civil wrongs if done by farmers and stockmen, was manifestly a denial of the equal protection of the laws ) was considered to be no-longer controlling . While in Gulf, Colorado Santa Fe R. Co. v. Ellis (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 struck down as discriminatory be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a building constructed of brick or stone, was held discriminatory and unconstitutional. The undisputed facts disclosed in the record were that out of 320 laundries in San Francisco about 310 were constructed of wood, and about 240 of the 320 were owned and conducted by subjects of China. The petitioner, a chairman, and about 200 of his countrymen applied to the Board of Supervisors to continue their clotheswashing business in wooden buildings which they had been occupying for many years, but in all cases licence was refused, whereas not a single one of the petitions presented by 80 persons who were not subjects of China had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 discretionar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 526.), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the learned Chief Justice, lends no support to the view that the mere possibility of an Act being used in a manner not contemplated by the legislature, though 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 legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e treated alike is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person or it may only be shown by extrinsic evidence showing a discriminatory design to favour one individual or a class over another not to be inferred from the action itself. But a discriminatory purpose is not presumed; there must be a showing of clear and intentional discrimination . No attempt has been made in the present case to prove that the State Government was influenced by any discriminatory motive or design. On the other hand, the facts appearing on the record would seem to justify the reference of the case to the special court for trial. As pointed out by Chakravartti J. The notification by which the case of Anwar Ali Sirkar (the respondent herein) was directed to be tried by the special court did not relate merely to that case but covered five more cases in each of which the accused were several in number. In Anwar Ali s case itself, there were 49 other accused. All these cases related to the armed raid on the premises of Jessop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The provision of the American Constitution which corresponds to article 14 has, ever since that Constitution has been in force, greatly exercised the minds of the American Judges, who, notwithstanding their efforts to restrict its application within reasonable limits, have had to declare a number of laws and executive acts to be unconstitutional. One is also amazed at the volume of case-law which has grown round this provision, which shows the extent to which its wide language can be stretched and the large variety of situations in which it has been invoked. (3) Article 14 is as widely worded as, if not more widely worded than, its counterpart in the American Constitution, and is bound to lead to some inconvenient results and seriously affect some pre-Constitution laws. (4) The meaning and scope of article 14 have been elaborately explained in two earlier decisions of this Court, viz., Chiranjit Lal Chowdhury v. The Union of India and Others ([1950] S.C.R. 869.) and The State of Bombay and Another v.F.N. Balsara ([1951] S.C.R. 682.), and the principles laid down in those decisions have to be kept in view in deciding the present case. One of these principles is that article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was undoubtedly an understandable point of view, and no one has suggested that their classification of offences for the four different modes of trial to which reference has been made is unreasonable in any sense. The impugned Act has completely ignored the principle of classification followed in the Code and it proceeds to lay down a new procedure without making any attempt to particularize or classify the offences or cases to which it is to apply. Indeed section 5 of the Act, which is the most vital section, baldly states that the Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may,by general or special order in writing direct . I agree with my learned brothers that to say that the reference to speedier trial in the preamble of the Act is the basis of classification is to read into the Act something which it does not contain and to ascribe to its authors what they never intended. As I have already stated, the Act is a verbatim copy of the earlier Ordinance which was framed before the present Constitution came into force, and article 14 could not have been before the minds of those who framed it because that Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 standards or rules of guidance, to make use of the procedure laid down by it; and (2) that it infringes article 14 of the Constitution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in support of it was this :--The Act should be held to be a good one, because it embodies all the essentials of a fair and proper trial, namely, (1) notice of the charge, (2) right to be heard and the right to test and rebut the prosecution evidence, (3) access to legal aid, and (4)trial by an impartial and experienced court. If these are the requisites, so I argued with myself, to which all accused persons are equally entitled, why should a particular procedure which ensures all those requisites not be substituted for another procedure, if such substitution is necessitated by administrative exigencies or is in public interest, even though the new procedure may be different from and less elaborate than the normal procedure. This seemed to me to be the best argument in favour of the Act but the more I thought of it the more it appeared to me that it was not a complete answer to the problem before us. In the first place, it brings in the due process idea of the American Constitution, which our Constitution has 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other words, the same rule must exist for all in similar circumstances. This principle, however, does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstance, in the same position. By the process of classification the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well-defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. The classification permissible, however, must be based on some real and substantial distinction bearing a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily. Thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 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 offences by which measure these groups could be distinguished from those who are outside the purview of the Special Act. The Act has left this matter entirely to the unregulated discretion of the provincial government. It has the power to pick out a case of a person similarly situate and hand it over to the special tribunal and leave t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jecting certain individuals to a hostile and discriminatory legislation is to make the protection clause of article 14, in the words of an American decision, a mere rope of sand, in no manner restraining State action. The protection afforded by the article is not a mere eyewash but it is a real one and unless a just cause for discrimination on the basis of a reasonable classification is put forth as a defence, the statute has to be declared unconstitutional. No just cause has been shown in the present instance. The result is that the appeals fail and are dismissed. MUKHERJEA J.--These two appeals are directed against the judgment of a Special Bench of the Calcutta High Court dated the 28th of August, 1951, and they arise out of two petitions presented, respectively, by the respondent in the two appeals under article 226 of the Constitution praying for writs of certiorari to quash two criminal proceedings, one of which has ended in the trial court, resulting in conviction of the accused, while the other is still pending hearing. The questions requiring consideration in both the appeals are the same and the whole controversy centres round the point as to whether the provision of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt appointed Shri S.N. Guha Roy, who was then the Sessions Judge of Alipore, a Special Judge, with powers to try cases under the Ordinance. Anwar Ali Sarkar, who is the respondent in Appeal No. 297, along with 49 other persons, were the accused in what is known as Dum Dum Factory Raid case, where crimes of the utmost brutality were committed by an armed gang of men on the factory of Messrs. Jessop and Company at Dum Dum. The raid took place on February 26, 1949. The accused or most of them were arrested some time after the Ordinance was promulgated. On 25th of January, 1950, the State Government by a notification directed that the case of Anwar Ali and his 49 coaccused should be tried by Mr. S.N. Guha Roy in accordance with the provisions of the Ordinance. A formal complaint was lodged before the Special Judge in respect of these 50 persons on April 2, 1950, that is to say, after the Special Courts Act was passed, superseding the Ordinance. The trial lasted for several months and by his judgment dated the 31st of March, 1951, the Special Judge convicted the accused under various sections of the Indian Penal Code, some of them being sentenced to transportation for life, while other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the State has full control over procedure in courts, both in civil and criminal cases, it can effect such changes as it likes for securing due and efficient administration of justice and a legislation of the character which we have got here and which merely regulates the mode of trial in certain cases cannot come within the description of discriminatory or hostile legislation. It is further argued that the differences that have been made in the procedure for criminal trial under the West Bengal (1) Vide Dowling: Cases on Constitutional Law, 4th edn. 1139. (2) Vide Skinner v. Oklahoma (316 U.S. 535 at 540). (3) Southern Railway Co. v. Greene (216 U.S, 400 at 412). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State Constitution relating to struck jury in murder cases was in conflict with the equal protection clause. The grievance made was that the procedure of struck jury denies the defendant the same number of peremptory challenges as he would have had in a trial before an ordinary jury. It was held by the Supreme Court that the equal protection clause was not violated by this provision. It is true , thus observes Mr. Justice Brewer, that here there is no territorial distribution but in all cases in which a struck jury is ordered the same number of challenges is permitted and similarly in all cases in which the trial is by an ordinary jury either party, State or defendant, may apply for a struck jury and the matter is one which is determined by the court in the exercise of a sound discretion...... That in a given case the discretion of the court in awarding a trial by a struck jury was improperly exercised may perhaps present a matter for consideration in appeal but it amounts to nothing more . Thus it was held that the procedure of struck jury did not involve any discrimination between one person and another. Each party was at liberty to apply for a struck jury if he so chose and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Code. Under section a50 of the Criminal Procedure Code, when a case after being heard in part goes for disposal before another Magistrate, the accused has the right to demand, before the second Magistrate commences the proceedings, that the witnesses already examined should be re-examined and re-heard. This right has been taken away from the accused in cases where a case is transferred from one Special Court to another under the provision of section 7 of the Special Courts Act. Further the right of revision to the High Court does not exist at all under the new procedure, although the rights under the Constitution of India are retained. It has been pointed out and quite correctly by one of the learned Counsel for respondents that an application for bail cannot be made before the High Court on behalf of an accused after the Special Court has refused bail. These and other provisions of the Act make it clear that the rights of the accused have been curtailed in a substantial manner by the impugned legislation; and if the rights are curtailed only in certain cases and not in others, even though the circumstances in the latter cases are the same, a question of discrimination may cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 territory of West Bengal to be tried by the Special Court, the law or order could not have been impeached as discriminatory. It is to be noted that the Act itself does not mention in what classes of cases or offences such direction could be given; nor does it purport to lay down the criterion or the basis upon which the classification is to be made. It is not strictly correct to say that if certain specified offences throughout the State were directed to be tried by the Special Court, there could not be any infringement of the equality rule. It may be that in making the selection the authorities would exclude from the list of offences other offences of a cognate character in respect to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hole of section 5 of the Act or, at any rate, that part of it which authorises the State government to direct particular cases to be tried by the Special Court offends against the guarantee of equality before the law secured by article 14. If the provision of section 5 of the Act is invalid even to the limited extent mentioned above. then also the whole proceedings before the Special Court which was directed by the State government to try these particular cases must necessarily have been without jurisdiction as has been held by the High Court Full Bench and these appeals would have to be dismissed. Article 14 of our Constitution, it is well known, corresponds to the last portion of section 1 of the Fourteenth Amendment to the American Constitution except that our article 14 has also adopted the English doctrine of rule of law by the addition of the words equality before the law. It has not, however, been urged before us that the addition of these extra words has made any substantial difference in its practical application. The meaning, scope and effect of article 14 of our Constitution have been discussed and laid down by this Court in the case of Chiranjit Lal Chowdhury v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... improper discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liability proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense I have just explained. The doctrine, as expounded by this Court in the two cases I have mentioned, leaves a considerable latitude to the Court in the matter of the application of article 14 and consequently has the merit of flexibility. The learned Attorney-General, appearing in support of these appeals, however, contends that while a reasonable classification of the kind mentioned above may be a test of the validity of a particular piece of legislation, it may not be the only test which will cover all cases and that there may be other tests also. In answer to the query of the Court he formulates an alternative test in the following words: If there is in fact inequality of treatment and such inequality is not made with a special intention of prejudicing any. particular person or persons but is made in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminated 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 AttorneyGeneral 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 indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escape from the fact that it quite definitely brings about a substantial inequality of treatment, in the matter of trial, between persons subjected to it and others who are left to be governed by the ordinary procedure laid down. in the Code. The question is whether section 5 (1) which really imposes this substantial inequality on particular persons can be saved from the operation of article 14 on the principle of rational classification of the kind permissible in law. Section 5 (1) of the Act runs as follows :-- A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may, by general or special order in writing, direct . It will be noticed that the sub-section refers to four distinct categories, namely, offences , classes of offences , cases and classes of cases and empowers 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 expressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 theft in a dwelling house by a servant should do, the State government may nevertheless select the former offence for special and discriminatory treatment in the matter of its trial by bringing it under the Act. A little reflection will show that this argument is not sound. The part of sub-section 5(1) which I am now examining confers a power on the State government to make a classification of offences, classes of offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reasonahttp:// ble 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 circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsibly 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 AttorneyGeneral 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State Government to direct cases to be tried by a Special Court offends against the provisions of article 14 and therefore the Special Court had no jurisdiction to try these cases of the respondents. In ray judgment, the High Court was right in quashing the conviction of the respondents in the one case and in prohibiting further proceedings in the other case and these appeals should be dismissed. CHANDRASEKHARA AIYAR J.--The short question that arises for consideration in these cases is whether the whole, or any portion of the West Bengal Special Courts Act, X of 1950, is invalid as being opposed to equality before the law and the equal protection of the laws guaranteed under article 14 of the Constitution of India. The facts which have led up to the cases have been stated in the judgments of the High Court at Calcutta and their recapitulation is unnecessary. I agree in the conclusion reached by my learned brothers that the appeals should be dismissed and I propose to indicate my views as shortly as possible on a few only of the points raised and discussed. The preamble to the Constitution mentions one of the objects to be to secure to all its citizens equality of st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight 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 inequalhttp:// ity of treatment was not specifically intended to prejudice any particular person or group 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 unexceptiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd nullifies what they do only when it is without any reasonable basis. Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis. The seven principles formulated by Fazl Ali J. are as follows :-- 1. The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds. 2. The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class. 3. The principle of equality does not mean that every law must have universal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... require more expeditious trial than other offences and this was a good enough classification. But as speedy administration of justice, especially in the field of the law of crimes, is a necessary characteristic of every civilised Government, there is not much point in stating that there is a class of offences that require such speedy trial. Of course, there may be certain offences whose trial requires priority over the rest and quick progress, owing to their frequent occurrence, grave danger to public peace or tranquillity, and any other special features that may be prevalent at a particular time in a specified area. And when it is intended to provide that they should be tried more speedily than other offences, requiring in certain respects a departure from the procedure prescribed for the general class of offences, it is but reasonable to expect the legislature to indicate the basis for any such classification. If the Act does not state what exactly are the offences which in its opinion need a speedier trial and why it is so considered, a mere statement in general words of the object sought to be achieved, as we find in this case, is of no avail because the classification, if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 on 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 neighbouring coal company to decide about the thickness of the barrier pillar to be left unmined between the two adjoining coal properties, the plaintiff company declined to co-operate. Thereupo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. Co. v. Illinois, Prof. Weaver says at page 404 of his compendious book on Constitutional Law under the heading of DISCRIMINATION IN THE ADMiNiSTRATION OF THE LAWS :-- Discrimination may exist in the administration of the laws and it is the purpose of the equal protection clause to secure all the inhabitants of the state from intentional and arbitrary discrimination arising in their improper or prejudiced execution, as well as by the express terms of the law itself. The validity or invalidity of a statute often depends on how it is construed and applied. It may be valid when given a particular application and invalid when given another. A difficulty was suggested and discussed in the course of the arguments in case article 14 was to receive a very wide interpretation. Under article 12 of the Constitution, even a local authority comes within the definition of the State and section 13 provides in sub-clause (3) that law includes any ordinance, order, bye-law, rule, regulation, notification............ Therefore any ordinance or notification issued by a local authority acting under the powers conferred on it by a statute might be challenged as discriminatory and if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eating a denial of equality of rights as a discrimination made by law. There is only one other point that I would like to deal with. Trevor Harries C.J. has taken the view that section 5 of the Act would have been unexceptionable had it only provided for the trial by a Special Court of certain offences or classes of offences or certain classes of cases and that in his opinion the discrimination arose by the provision for the trial of cases, as distinguished from classes of cases. It is rather difficult, however, to appreciate this distinction. If the statute makes no classification at all, or if the classification purported to be made is not reasonable or rational but is arbitrary and illusory, as in this case, Section 5 would be void as contravening article. 14. It is no doubt true that totally different considerations might arise if specified offences or groups of offences in a particular area or arising out of a particular event or incident were to be,tried by a Special Court but this is not the case here. I am unable to see how if the Act merely provided that certain classes of cases as distinguished from cases should be tried by a Special Court, the attack against dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd equality before it in any literal sense is impossible unless these laws are swept away, but that is not what the Constitution says, for these very laws are preserved and along with equality before the law is also guaranteed the right to the practice of one s faith. Then, again, what does equality mean? All men are not alike. Some are rich and some are poor. Some by the mere accident of birth inherit riches, others are born to poverty. There are differences in social standing and economic status. High sounding phrases cannot alter such fundamental facts. It is therefore impossible to apply rules of abstract equality to conditions which predicate in equality from the start; and yet the words have meaning though in my judgment their true content is not to be gathered by simply taking the words in one hand and a dictionary in the other, for the provisions of the Constitution are not mathematical formula which have their essence in mere form. They constitute a frame-work of government written for men of fundamentally differing opinions and written as much for the future as the present. They are not just pages from a text book but form the means of ordering the life of a progr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that apart. What material have we for delving into the mind of a legislature? It is useless to say that a man shall be judged by his acts, for acts of this kind can spring from good motives as well as bad, and in the absence of other material the presumption must be overwhelmingly in favour of the former. I can conceive of cases where there is the utmost good faith and where the classification is scientific and rational and yet which would offend this law. Let us take an imaginary case in which a State legislature considers that all accused persons whose skull measurements are below a certain standard, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the people of the land; and they must be given the widest latitude to exercise their functions within the ambit of their powers, else all progress is barred. But, because of the Constitution, there are limits beyond which they cannot go and even though it fails to the lot of judges to determine where those limits lie, the basis of their decision cannot be whether the Court thinks the law is for the benefit of the people or not. Cases of this type must be decided solely on the basis whether the Constitution forbids it. I realise that this is a function which is incapable of exact definition but I do not view that with dismay. The common law of England grew up in that way. It was gradually added to as each concrete case arose and a decision was given ad hoc on the facts of that particular case. It is true the judges who thus contributed to its growth were not importing personal predilections into the result and merely stated what was the law applicable to that particular ease. But though they did not purport to make the law and merely applied what according to them, had always been the law handed down by custom and tradition, they nevertheless had to draw for their material on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he slightest reflection on the Judges and the Courts so constituted, the fact remains that when these tribunals were declared invalid and the same persons were retried in the ordinary Courts, many were acquitted, many who had been sentenced to death were absolved. That was not the fault of the judges but of the imperfect tools with which they were compelled to work. The whole proceedings were repugnant to the peoples of this land and, to my mind, article 14 is but a reflex of this mood. What I am concerned to see is not whether there is absolute equality in any academical sense of the term but whether the collective conscience of a sovereign democratic republic can regard the impugned law, contrasted with the ordinary law of the land, as the sort of substantially equal treatment which men of resolute minds and unbiassed views can regard as right and proper in a democracy of the kind we have proclaimed ourselves to be. Such views must take into consideration the practical necessities of government, the right to alter the laws and many other facts, but in the forefront must remain the freedom of the individual from unjust and unequal treatment, unequal in the broad sense in which a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 done. Justice must also be seen to be done and a sense of satisfaction and confidence in it engendered. That cannot be when Ramchandra is tried by one procedure and Sakharam, similarly placed, facing equally serious charges, also answering for his life and liberty, by another which differs radically from the first. The law of the Constitution is not only for those who govern or for the theorist, but also for the bulk of the people, for the common man for whose benefit and pride and safeguard the Constitution has also been written. Unless and until these fundamental provisions are altered by the constituent processes of Parliament they must be interpreted in a sense which the common man, not versed in the niceties of grammar and dialectical logic, can understand and appreciate so that he may have faith and confidence and unshaken trust in that which has been enacted for his benefit an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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