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TMI Blog2012 (3) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with law. Section 129(6) places a restriction, which is reasonable and valid restriction, as held by us above. Thus, the provisions of Section 146A of the Act would have to be read in conjunction with and harmoniously to Section 129(6) of the Customs Act and the person who earns a disqualification under this provision cannot derive any extra benefit -contrary to Section 129(6) of the Customs Act from the reading of Section 146A of the Customs Act. - CIVIL APPEAL NO. 2850 OF 2012 CIVIL APPEAL NOS. 2851 OF 2012, CIVIL APPEAL NOS. 2852 OF 2012, - - - Dated:- 15-3-2012 - A.K. Patnaik, Swatanter Kumar, JJ. J U D G M E N T Swatanter Kumar, J. 1. Leave granted. 2. This judgment shall dispose of all the above three appeals, as common questions of law arise therefrom, on somewhat similar -facts for consideration of this Court. In these appeals, the following questions have been raised : "(i) Whether Section 129(6) of the Customs Act, 1962, which stipulates that on demitting office as Member of the Customs Excise and Service Tax Appellate Tribunal (hereinafter referred to as the "CESTAT") a person shall not be entitled to appear before the CESTAT, is u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act to mean the Customs, Excise and Service Tax Appellate Tribunal constituted under Section 129 of the Customs Act and any person ceasing to hold office as President, Vice-President or Member cannot appear before the Tribunal or its Benches anywhere in India in view of the bar in Section 129(6). One of the appellants, namely, N.K. Bajpai, was relieved from the case. The appellants had contended before the High Court that Section 129(6) of the Customs Act is ultra vires Articles 14, 19(1)(g) and 21 of the Constitution of India. It was further contended that, in any event, Section 129(6) has no applicability to the appellants, in view of the fact that the amendment was prospective, but when the appellants were appointed to the Tribunal as well as when they demitted office, the said provision was not a part of the Customs Act. Thus, they prayed for consequential relief. The High Court, -by a detailed judgment, rejected both these contentions. It was of the view that the predominant rationale for introduction of this provision was to strengthen the cause of administration of justice and to remove what the Legislature, in its wisdom, felt was a perceived class bias. It was further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al or any post, under the Union or a State, requiring special knowledge of law after he became an advocate. (2A) A technical member shall be a person who has been a member of the Indian Customs and Central Excise Service, Group A, and has held the post of Commissioner of Customs or Central Excise or any equivalent or higher post for at least three years. (3) The Central Government shall appoint-- (a) a person who is or has been a Judge of a High Court; or (b) one of the members of the Appellate Tribunal, to be the President thereof. (4) The Central Government may appoint one or more members of the Appellate Tribunal to be the Vice- President, or, as the case may be, Vice-Presidents, thereof. (5) A Vice-President shall exercise such of the powers and perform such of the functions of the President as may be delegated to him by the President by a general or special order in writing. (6) On ceasing to hold office, the President, Vice- President or other Member shall not be entitled to appear, act or plead before the Appellate Tribunal." 7. Part III of the Constitution is the soul of the Constitution. It is not only a charter of the rights that are availa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a `spark in a power keg'.' 9. Where the Court applies the test of `proximate and direct nexus with the expression', the Court also has to keep in mind that the restriction should be founded on the principle of least invasiveness, i.e., the restriction should be imposed in a manner and to the extent which is unavoidable in a given situation. The Court would also take into consideration whether the anticipated event would or would not be intrinsically dangerous to public interest. - 10. Now, we have to examine the various tests tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y transgression of the limitation would render the offending law pretendo void. The word "fundamental" in Article 37 of the Constitution also means basic or essential, but it is used in the normative sense of setting, before the State, goals which it should try to achieve. As already noticed, the significance of the fundamental principles stated in the directive principles have attained greater significance through judicial pronouncements. 14. As difficult as it is to anticipate the right to any freedom or liberty without any reasonable restriction, equally difficult is it to imagine the existence of a right not coupled with a duty. The duty may be a direct or indirect consequence of a fair assertion of the right. Although Part III of the Constitution of India confers rights, still the duties and restrictions are inherent thereunder. These rights are basic in nature and are recognized and guaranteed as natural rights, inherent in the status of a citizen of a free country, but are not absolute in nature and uncontrolled in operation. Each -one of these rights is to be controlled, curtailed and regulated, to a certain extent, by laws made by the Parliament or the State Legislatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rily regulated by two conditions - one, that a -person's name should be on the State rolls and second, that he should be permitted by the law for the time being in force, to practice before any authority or person. Where the advocate has a right to appear before an authority or a person, that right can be denied by a law that may be framed by the competent Legislature. Thus, the right to practice is not an absolute right which is free of restriction and is without any limitation. There are persons like Mukhtiars and others, who were earlier entitled to practice before the Courts, but the Advocates Act itself took away the right to practice which was available to them prior to its coming into force. Thus, the Advocates Act placed a complete prohibition upon the right to practice of those persons who were not advocates enrolled with the State Bar Council. 16. Therefore, the right to practice, which is not only a statutory right under the provisions of the Advocates Act but would also be a fundamental right under Article 19(1)(g) of the Constitution is subject to reasonable restrictions. An argument could be raised that a person who has obtained a degree of law is entitled to prac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as an advocate on the rolls of a State Bar Council. These provisions clearly demonstrate the intention of the Legislature to place restrictions for entry to the profession of law. These restrictions have to be decided only on the touchstone of reasonableness and legislative competency. The restriction which withstands such a test would be enforceable in accordance with law. 20. The contention raised on behalf of the appellants before us is that Section 129(6) of the Customs Act imposes a complete restriction upon the appellants and, therefore, is unconstitutional. While examining the merit of this contention, we must notice that there is no challenge to the legislative competence of the Legislature which enacted and inserted Section 129(6) of the Act. Once there is no challenge to the legislative competence and the provision remains as a valid piece of legislation on the statute book, then the only question left for this Court to examine is whether this provision is so unreasonable that it inflicts an absolute restriction upon carrying on of the profession by the appellants. For two different reasons, we are unable to hold that the restriction imposed under Section 129(6) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dly, this was intended to maintain standards of the medical education which was the very object of enacting the Indian Medical Council Act. - 22. Similarly, while dealing with the question as to whether the closure of butcher houses on national holidays or on certain particular days was unconstitutional and violative of the fundamental right to carry on business in terms of Articles 19(1)(g), 19(6) and 14 of the Constitution, in the case of Municipal Corporation of the City of Ahmedabad Ors. v. Jan Mohammed Usmanbhai Anr. [(1986) 3 SCC 20], a Constitution Bench of this Court, while rejecting the challenge, held as under : "17. Clause (6) of Article 19 protects a law which imposes in the interest of general public reasonable restrictions on the exercise of the right conferred by sub-clause (g) of clause (1) of Article 19. Obviously it is left to the court in case of a dispute to determine the reasonableness of the restrictions imposed by the law. In determining that question the court cannot proceed on a general notion of what is reasonable in the abstract or even on a consideration of what is reasonable from the point of view of the person or persons on whom the restricti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder to ensure proper holidays for the municipal staff working in the municipal slaughterhouses. The only objection was that the standing orders direct closure of the slaughterhouses on Janmashtami, Jain Samvatsari, October 2 (Mahatma Gandhiji's birthday), February 12 (Shraddha day of Mahatma Gandhi), January 30 (Mahatma Gandhiji'sNirwan day), MahavirJayanti and Ram Navami. These days were declared as holidays under the standing orders for the Municipal Corporation slaughterhouses. 20. The tests of reasonableness have to be viewed in the context of the issues which faced the legislature. In the construction of such laws and in judging their validity, courts must approach the problem from the point of view of furthering the social interest which it is the purpose of the legislation to promote. They are not in these matters functioning in vacuo but as part of society which is trying, by the enacted law, to solve its problems and furthering the moral and material progress of the community as a whole. (See Jyoti Persh adv. Union Territory of Delhi) If the expression `in the interest of general public' is of wide import comprising public order, public security and public morals, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24. The objects sought to be achieved by the impugned standing orders are the preservation, protection and improvement of livestock. Cows, bulls, bullocks and calves of cows are no doubt the most important cattle for the agricultural economy of this country. Female buffaloes yield a large quantity of milk and are, therefore, well looked after and do not need as much protection as cows yielding a small quantity of milk require. As draught cattle male buffaloes are not half as useful as bullocks. Sheep and goat give very little milk compared to the cows and the female buffaloes, and have practically no utility as draught animals. These different categories of animals being susceptible of classification into separate groups on the basis of their usefulness to society, the butchers who kill each category of animals may also be placed in distinct classes according to the effect produced on society by the carrying on of their respective occupations. The butchers who -slaughter cattle formed the well defined class based on their occupation. That classification is based on intelligible differentia and distinguishes them from those who kill goats and sheep and this differentiation has a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 44(1) of the -Karnataka Land Reforms Amendment Act, 1974 which was challenged on the ground that it was ultra vires Articles 39(b) and 39(c) of the Constitution and was destructive of the basic structure of the Constitution. An ancillary question that fell for the consideration of this Court was where sub- section (8) of Section 48 of that Act, which prohibited legal practitioners from appearing in such proceedings before the Tribunals, was repugnant to Section 30 of the Advocates Act, and Section 14 of the Bar Council of India Act. The challenge was primarily accepted by this Court on the ground that it was a case of lack of legislative competence, inasmuch as the State Legislature was not competent to make a law repugnant to the laws made by the Parliament pursuant to Entries 77 and 78 of List I of the Seventh Schedule to the Constitution. This Court directed that Section 48(8) of that Act would not be enforced against the advocates to prevent them from appearing before the Tribunal. This case, relied upon by the learned counsel for the appellant, is completely different on facts and in law. In the case in hand, the consistent position is that there is no challenge to the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 45 years of age being enrolled as an advocate was violative of Article 14 of the Constitution as being discriminatory and arbitrary, made some observations with regard to duties and functions of the advocates -and Bar Councils, for the dignity and purity of the profession, which are worthy of being noticed and are accordingly reproduced : "3. It will be seen from the above provisions that unless a person is enrolled as an advocate by a State Bar Council, he shall have no right to practise in a court of law or before any other Tribunal or authority. Once a person fulfils the requirements of Section 24 for enrolment, he becomes entitled to be enrolled as an advocate and on such enrolment he acquires a right to practise as stated above. Having thus acquired a right to practise he incurs certain obligations in regard to his conduct as a member of the noble profession. The Bar Councils are enjoined with the duty to act as sentinels of professional conduct and must ensure that the dignity and purity of the profession are in no way undermined. Its job is to uphold the standards of professional conduct and etiquette. Thus every State Bar Council and the Bar Council of India has a pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a person who is otherwise qualified to be admitted as an advocate, but is either in full or part time service or employment, or is engaged in any trade, business or profession, shall not be admitted as an advocate, was a restriction imposed by the Bar Council of State of Maharasthra and Goa. Upon challenge, this Court had taken the view that under Article 19(1)(g), all citizens have a right to practice any profession or carry on any occupation, trade or business. The term `any profession' may include even plurality of professions. However, this is not an absolute right and is subject to reasonable restrictions under Article 19(6). It cannot be gainsaid that litigants are also members of general public and if in their interest, any rule imposes a restriction on the entry to the legal profession and if such restriction is founded to be reasonable, Article 19(1)(g) would not get stultified {Dr. Haniraj L. Chulani v. Bar Council, State of Maharashtra Goa [(1996) 3 SCC 342]}. - 32. In this very case, the Court also observed that these well- established connotations and contours of the requirements of the legal profession itself supply the necessary guidelines to the concerned Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t perceived bias is not too readily inferred, such as to negate the doing of justice. In Porter v. Magill [(2002) 2 AC 357], the House of Lords finally decided the proper test for finding perceived or apparent bias, after judicial debate for over two decades, which displayed the welcome interplay of judicial pronouncements within the jurisdictions of the English common law, Scotland and Strasbourg jurisprudence. The test is now whether the fair-minded observer, having considered the facts, would consider that there was a reasonable possibility that the tribunal was biased. [See Sir Louis Blom, Q.C., `Bias, Malfunction in Judicial Decision-making', (2009) Public Law 199]. 35. Bias must be shown to be present. Probability of bias, possibility of bias and reasonable suspicion that bias might have affected the decision are terms of different connotations. They broadly fall under two categories, i.e., suspicion of bias and likelihood of bias. Likelihood of bias would be the possibility of bias and bias which can be shown to be present, while suspicion of bias would be the probability or reasonable suspicion of bias. The former lead to vitiation of action, while the latter could hard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghed on the mind of the Legislature. When you have been a member of a Tribunal over a long period, and other members have been your co-members whether judicial or technical, it is difficult to hold that there would be no possibility of bias or no real danger of bias. Even -if we rule out this possibility, still, it will always be better advised and in the institutional interest that restrictions are enforced. Then alone will the mind of the litigant be free from a lurking doubt of likelihood of bias and this would enhance the image of the Tribunal. The restriction, as already discussed, leaves the entire field of legal profession wide open for the appellants and all persons situated alike except to practice before CESTAT. 38. Besides the possibility of bias, there is a legitimate expectation on the part of a litigant before the Tribunal that there shall not be any possibility of justice being denied or being not done fairly. These are the concepts which are very difficult to be defined and demarcated with precision. Some element of uncertainty would be prevalent. There can be removal of doubts to the facts of a given case that would help in determining matters with somewhat gre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Pradesh [(1974) 3 SCC 459]. The Court found that `real likelihood' and `reasonable suspicion' were terms really inconsistent with each other and the Court must make a determination, on the basis of the whole evidence before it, whether a reasonable man would, in the circumstance, infer that there is real likelihood of bias or not. The Court has to examine the matter from the view point of the people. The term `bias' is used to denote a departure from the standing of even ended justice. After discussing this law, another Bench of -this Court in the case of State of Punjab v. V.K. Khanna [(2001) 2 SCC 330], finally held as under:- "8. The test, therefore, is as to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom. In the event, however, the conclusion is otherwise that there is existing a real danger of bias administrative action cannot be sustained. If on the other hand allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefor, woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or practice by the appellants. Though such a restriction may have the effect of relating back to a date prior to the presenti. In that sense, the law stricto sensu is not retrospective, but would be retroactive. It is not for the Court to interfere with the implementation of a restriction, which is otherwise valid in law, only on the ground that it has the effect of restricting the rights of the people who attain that status prior to the introduction of the restriction. It is certainly not a case of settled or vested rights, which are incapable of being interfered with. It is a settled canon of law that the rights are subject to restrictions and the restrictions, if reasonable, are subject to judicial review of a very limited scope. - 44. We do not find any reason to accept the submission that enforcement of the restriction retroactively would be impermissible, particularly in the facts and circumstances of the present case. 45. We may refer to the case of R. v. Inhabitants of St. Mary, Whitechapel [(1881) 12 QB 149] whereby under Section 2 of the Poor Removal Act, 1846, `No woman residing in any parish with her husband at the time of his death shall be removed... from such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "One such formulation by Dixon C.J. is as follows : `The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But given rights and liabilities fixed by reference to the past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption'." 49. In such matters, in judiciously examining the question of retrospectivity or otherwise, the relevant considerations include the circumstances in which legislation was created and the test of fairness. The principles of statutory interpretation have expanded. With the development of law, it is desirable that the Courts should -apply the latest tools of interpretation to arrive at a more meaningful and definite conclusion. The doctrine of fairness has also been applied by this Court in the case of Vijay v. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 129(6) of the Customs Act and its operation cannot be faulted with. Another half-hearted attempt was made to raise a contention that the appellants can continue to appear before the Tribunal as they are permitted to do so in terms of Section 146A of the Customs Act, despite the provisions of Section 129(6) of the Customs Act. We are unable to find any merit in this contention as well. The provisions of Section 129(6) of the Customs Act are specific and both these provisions have to be construed harmoniously. We find nothing contradictory in these three provisions. Section 146(2)(c) of the Customs Act refers to the appearance by a legal practitioner who is entitled to practice as such in accordance with law. Section 129(6) places a restriction, which is reasonable and valid restriction, as held by us above. Thus, the provisions of Section 146A of the Act would have to be read in conjunction with and harmoniously to Section 129(6) of the Customs Act and the person who earns a disqualification under this provision cannot derive any extra benefit -contrary to Section 129(6) of the Customs Act from the reading of Section 146A of the Customs Act. Thus, we have no h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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