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TMI Blog1952 (1) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... ng on a certain factory known as the Jessop Factory at Dum Dum, and they were convicted and sentenced to varying terms of imprisonment by the Special Court to which the case was sent for trial by the Governor of West Bengal by a notification dated 26th January, 1950, in exercise of the powers conferred by section 5 (1) of the Act. Thereupon the respondent applied to the High Court under article 226 of the Constitution for the issue of a writ of certiorari quashing the conviction and sentence on the ground that the Special Court had no jurisdiction to try the case inasmuch as section 5 (1), under which it was sent to that Court for trial, was unconstitutional and void under article 13 (2)as it denied to the respondent the equal protection of the laws enjoined by article 14. The High Court by a Full Bench consisting of the Chief Justice and four other Judges quashed the conviction and directed the trial of the respondent and the other accused persons according to law. Hence the appeal. The Act is 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 offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure might form the basis of a reasonable classification and section 5 (1) could not be regarded as discriminatory in so far as it authorises the State Government to direct that certain offences or classes of offences or classes of cases should be tried by a special court, the provision was discriminatory and violative of article 14 of the Constitution in so far as it purported to vest in the State Government an absolute and arbitrary power to refer to a special court for trial "any cases ", which must include an individual case, "whether the duration of such a case is likely to be long or not ". The learned Chief Justice rejected the argument that the word "cases" in the sub-section should, in view of the title and preamble of the Act. be construed as meaning cases requiring speedier trial." He found it" impossible to cut down the plain meaning of the word 'cases' as used in the section". He realised that "the powers under the sub-section could be so exercised as not to involve discrimination, but they also could, in my view, be exercised in a manner involving discrimination. When an Act gives power which may and can offend aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the legislature in passing the Act, and that the preamble affords a good clue to discover what that object was". The same view was expressed by Holmes J. in an American case, Carroll v. Greenwich 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quot;order" or "notification", so that even executive orders or notifications must not infringe article 14. This trilogy of articles thus ensures non-discrimination in State action both 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are other types of legislation such as, for instance, the Land Acquisition Act, which do not rest on classification, and no question of reasonable classification could fairly arise in respect of such enactments. Nor, obviously, could it arise when executive orders or notifications directed against individual citizens are assailed as discriminatory. It is interesting to find that the trend of recent decisions in America has been to lean strongly toward sustaining State action both in the legislative and in the administrative spheres against attacks based on hostile discrimination. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :4 that a law which denied the remedy of injunction in a dispute between employer and his ex-employees was a denial of the equal protection of laws, aS such a remedy was allowed in all other cases. But it is to be noted that the minority, which included Holmes and Brandeis 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 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry and unconstitutional. On the other hand, there is ample authority in the American decisions for the view that the necessarily large powers vested in a legislature must include the power of entrusting to an administrative body a plenary but not arbitrary discretion to be exercised so as to carry out the purpose of an enactment. In Engel v. O' Malley (219 U.S. 128.) a New York statute prohibiting individuals or partnerships to engage in the business of receiving deposits of money without a licence from the controller "who may approve or disapprove the application for a licence in his discretion" was sustained as constitutional. In answer to the argument that the controller might refuse a licence on his arbitrary whim, Holmes J. said: "We should suppose that in each case the controller was expected to act for cause. But the nature and extent of the remedy, if any, for a breach of duty on his part, we think it unnecessary to consider; for the power of the state to make the pursuit of a calling dependent upon obtaining a licence is well established where safety seems to require it." In New York ex rel. Lieberman v. Van De Carr(199 U.S. 552.) a provision in the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State Government is expected to exercise honestly and reasonably, and the mere fact that it is not made subject to judicial review cannot mean that it was intended to be exercised in an arbitrary manner without reference to the declared object of the Act or, as Harries C.J. put it, "whether the duration of a case is likely to be long or not." In the face of all these considerations, it seems to me difficult to condemn section 5 (1) as violative of article 14. If the discretion given to the State Government should be exercised improperly or arbitrarily, the administrative action may be challenged as discriminatory, but it cannot affect the constitutionality of the law. Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it. As observed by Kania C.J. in Dr. Khare's case([1950] S.C.R. 519, 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional and void. In other words, clause (2) of article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment, which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent." This passage, which was relied on 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s we have seen, state action on the administrative side can also be challenged as a denial of equal protection and unconstitutional. That brings us to the consideration of the validity of the notification issued in the present case. In Snowden v. Hughes (321 U.S. I.) it was laid down that' 'the unlawful administration by State officers of a State statute fair on its face resulting in its unequal application to those who were entitled to be treated alike is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person or it may only be shown by extrinsic evidence showing a discriminatory design to favour one individual or a class over another not to be inferred from the action itself. But a discriminatory purpose is not presumed; there must be a showing of clear and intentional discrimination''. No attempt has been made in the present case to prove that the State Government was influenced by any discriminatory motive or design. On the other hand, the facts appearing on the record would seem to justify the reference of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h March, 1950, is a verbatim reproduction of the earlier Ordinance, and what we have to decide is whether it is invalid because it offends against article 14 of the Constitution. In dealing with this question, the following facts have to be borne in mind:-- (1) The framers of the Act have merely copied the provisions of the Ordinance of 1949 which was promulgated when there was no provision similar to article 14 of the present Constitution. (2) The provision of the American Constitution which corresponds to article 14 has, ever since that Constitution has been in force, greatly exercised the minds of the American Judges, who, notwithstanding their efforts to restrict its application within reasonable limits, have had to declare a number of laws and executive acts to be unconstitutional. One is also amazed at the volume of case-law which has grown round this 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 af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also taken into consideration. The net result of these provisions is that offences which are summarily triable can be more speedily tried than summons cases, summons cases can be more speedily tried than warrant cases, and warrant cases can be more speedily tried than sessions cases. The framers of the Code appear to have been generally of the view that the graver the offence the more elaborate should be the procedure for its trial, which was undoubtedly an understandable point of view, and no one has suggested that their classification of offences for the four different modes of trial to which reference has been made is unreasonable in any sense. The impugned Act has completely ignored the principle of classification followed in the Code and it proceeds to lay down a new procedure without making any attempt to particularize or classify the offences or cases to which it is to apply. Indeed section 5 of the Act, which is the most vital section, baldly states that the "Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may,by general or special order in writing direct". I agree with my learned brothers tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons or cases, and if any charge of discrimination can be levelled at all, it can be levelled only against the act of the executive authority if the Act is misused. This kind of argument however does not appear to me to solve the difficulty. The result of accepting it would be that even where discrimination is quite evident one cannot challenge the Act simply because it is couched in general terms; and one cannot also challenge the act of the executive authority whose duty it is to administer the Act, because that authority will say :--I am not to blame as I am acting under the Act. 'It is clear that if the argument were to be accepted, article 14 could be easily defeated. I think the fallacy of the argument lies in overlooking the fact that the "insidious discrimination complained of is incorporated in the Act itself", it being so drafted that whenever any discrimination is made such discrimination would be ultimately traceable to it. The Act itself lays down a procedure which is less advantageous to the accused than the ordinary procedure, and this fact must in all cases be the root-cause of the discrimination which may result by the application of the Act. In the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich must be decided mainly with reference to the specific provisions of the Act. It should be noted that there is no reference to intention in article 14 and the gravamen of that Article is equality of treatment. In my opinion, it will be dangerous to introduce a subjective test when the Article itself lays down a clear and objective test. I must confess that I have been trying hard to think how the Act can be saved, and the best argument that came to my mind in support of it was this :--The Act should be held to be a good one, because it embodies all the essentials of a fair and proper trial, namely, (1) notice of the charge, (2) right to be heard and the right to test and rebut the prosecution evidence, (3) access to legal aid, and (4)trial by an impartial and experienced 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t any person or class of persons for being singled out as a special subject for discriminatory and hostile legislation. Democracy implies respect for the elementary rights of man, however suspect or unworthy. Equality of right is a principle of republicanism and article 14 enunciates this equality principle in the administration of justice. In its application to legal proceedings the article assures to everyone the same rules of evidence and modes of procedure. In other words, the same rule must exist for all in similar circumstances. This principle, however, does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstance, in the same position. By the process of classification the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well-defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. The classification perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o think that their cases need speedier trial than those of others like them?" The only answer, that so far as I am able to see, the Act gives to these inquiries is that they are being made the subject of this special treatment because they need it in the opinion of the provincial government; in other words, because such is the choice of their prosecutor. This answer neither sounds rational nor reasonable. The only answer for withholding from such persons the protection of article 14 that could reasonably be given to these inquiries would be that "Of all other accused persons they are a class by themselves and there is a reasonable difference between them and those other persons who may have committed similar offences." They could be told that the law regards persons guilty of offences against the security of the State as a class in themselves. The Code of Criminal Procedure has by the process of classification prescribed different modes of procedure for trial of different offences. Minor offences can be summarily tried, while for grave and heinous offences an elaborate mode of procedure has been laid down. The present statute suggests no. reasonable basis or classifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the statute on the face of it is not discriminatory, it is so in its effect and operation inasmuch as it vests in the executive government unregulated official discretion and therefore has to be adjudged unconstitutional. It was suggested that good faith and knowledge of existing conditions on the part of a legislature has to be presumed. That is so; yet to carry that presumption to the extent of always holding that there must be some undisclosed intention or reason for subjecting certain individuals to a hostile and discriminatory legislation is to make the protection clause of article 14, in the words of an American decision, a mere rope of sand, in no manner restraining State action. The protection 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, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charged if it transpires from the evidence adduced at the time of trial that such offence was committed by him, and it is immaterial that the offence is not a minor offence. The right of revision to the High Court has been taken away entirely, though appeals have been allowed in all cases both at the instance of the accused as well as of the State and they lie both on questions of fact and law. On October 28, 1949, when the Ordinance was still in force, the West Bengal Government 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st Bengal Special Courts Act was void to the extent that it empowers the State to direct any case to be tried by the Special Court. The notifications issued under that subsection were also held to be invalid for the same reason. It is against this decision that these two appeals have been taken to this court by the State of West Bengal. In order to appreciate the points that have been canvassed before us, it would be convenient first of all to refer to the provision of article 14 of the Constitution with a view to determine the nature and scope of the guarantee that is implied in it. The article lays down that "the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." It is, in substance, modelled upon the equal protection clause, occurring in the Fourteenth Amendment of the American Constitution with a further addition of the rule of "equality before the law", which is an established maxim of the English Constitution. A number of American decisions have been cited before us on behalf of both parties in course of the arguments; and while a too rigid adherence to the views expressed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents that the presumption is always in favour of the constitutionality of an enactment and the burden is upon him who attacks it, to show that there has been transgression of constitutional principles. The learned Attorney- General, appearing in support of the appeal, has put forward his contentions under two different heads. His first line of argument is that quite apart from the question of classification there has been no infringement of article 14 of the Constitution in the present case. It is said that the State has full control over procedure in courts, both in civil and criminal cases, it can effect such changes as it likes for securing due and efficient administration of justice and a legislation of the character which we have got here and which 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). Sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jury. With a view to secure that end, the legislature could take into consideration the conditions of different communities and the strength of population in a particular city; and if all the persons within particular territorial limits are given equal rights in like cases, there could not be any question of discrimination. The other case relied upon by the learned Attorney- General is the case of Brown v. The State of New Jersey(175 U.S. 171: 44 L. Ed. 119.). In this case the question was whether the provision of the State Constitution relating to struck jury in murder cases was in conflict with the equal protection clause. The grievance made was that the procedure of struck jury denies the defendant the same number of peremptory challenges as he would have had in a 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature was actuated by a hostile or inimical intention against a particular person or class. For the same reason I cannot agree with the learned Attorney- General that in cases like these, we should enquire as to what was the dominant intention of the legislature in enacting the law and that the operation of article 14 would be excluded if it is proved that the legislature had no intention to discriminate, though discrimination was the necessary consequence of the Act. When. discrimination is alleged against officials in carrying out the law, a question of intention may be material in ascertaining whether the officer acted mala fide or not(sunday Lake Iron Company v. wakefield (247 U.S. 350.)); but no question of intention can arise when discrimination follows or arises on the express terms of the law itself. I agree with the Attorney-General that if the differences are not material, there may not be any discrimination in the proper sense of the word and minor deviations from the general standard might not amount to denial of equal rights. I find it difficult however, to hold that the difference in the procedure that has been introduced by the West Bengal Special Courts Act is of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of a particular case or a particular accused while in respect of other cases involving the same offences the order still remains. Amongst other important changes, reference may be made to the provision of section 13 of the Act which empowers the Special Court to convict an accused of any offence if the commission of such offence is proved during trial, although he was not charged with the same or could be charged with it in the manner contemplated by section 236 of the Criminal Procedure Code, nor was it a minor offence within the meaning of section 238 of the Code. Under section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Government to direct any cases or classes of cases to be tried by the Special Court in accordance with the procedure laid down in the Act. It is not stated that it is only when speedier trial is necessary that the discretion should be exercised. In the second place, assuming that the preamble throws any light upon the interpretation of the section, I am definitely of opinion that the necessity of a speedier trial is too vague, uncertain and elusive a criterion to form a rational basis for the discriminations made. The necessity for speedier trial may be the object which the legislature had in view or it may be the occasion for making the enactment. In a sense quick disposal is a thing which is desirable in all legal proceedings. The word used here is "speedier" which is a comparative term and as there may be degrees of speediness, the word undoubtedly introduces an uncertain and variable element. But the question is: how is this necessity of speedier trial to be determined ? Not by reference to the nature of the offences or the circumstances under which or the area in which they are committed, nor even by reference to any peculiarities or antecedents of the offenders t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mala fide exercise of powers; but no question of infringement of article 14 of the Constitution could possibly arise. We were referred to a number of authorities on this point but I do not think that the authorities really support the proposition of law in the way it is formulated. In the well known case of Yick Wo v. Hopkins (118 U.S. 356.), the question was, whether the provision of a certain ordinance of the City and County of San Francisco was invalid by reason of its being in conflict with the equal protection clause. The order in question laid down that it would be unlawful for any person to engage in laundry business within the corporate limits "without having first obtained the consent of the Board of Supervisors except 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 near ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 territory of West Bengal to be tried by the Special Court, the law or order could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 express 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 High Court Full Bench and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while the Article forbids class legislation in the sense of making improper discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liability proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense I have just explained. The doctrine, as expounded by this Court in the two cases I have mentioned, leaves a considerable latitude to the Court in the matter of the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ground that the inequality was of minor importance but, on the ground that the classification of establishments according to the number of workmen employed therein was based on an intelligible distinction having a rational relation to the subject-matter of the legislation in question. That decision, therefore, does not support the proposition so widely stated in the passage apparently added by the editor to the original text of Judge Cooley. The difference brought about by a statute may be of such a trivial, unsubstantial and illusory nature that that circumstance alone may be regarded as cogent ground for holding that the statute has not discriminated at all and that no inequality has in fact been created. This aspect of the matter apart, if a statute brings about inequality in fact and in substance, it will be illogical and highly undesirable to make the constitutionality of such a statute depend on the degree of the inequality so brought about. The adoption of such a principle will run counter to the plain language of article 14. At one stage of his arguments the learned AttorneyGeneral just put forward an argument, which he did not press very strongly, that the Article is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial before the Sessions Court, the case sought to be made against him and the evidence in support of it and, what is of the utmost importance, of the benefit of a trial before and the decision of a different and independent mind. The liability to be convicted of a higher offence has no parallel in the Code. It is true that the State can, under section 269 (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 procedure only in particular cases which is precisely what the Act authorises the Government to do. On a fair reading of the Act there can be no escape from the fact that it quite definitely brings about a substantial inequality of treatment, in the matter of trial, between persons subjected to it and others who are left to be governed by the ordinary procedure laid down. in the Code. The question is whether section 5 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of certain offences" and then points out that the purpose of the Act, as stated in its preamble, also is "to provide for the speedier trial of certain offences". He next refers us to the different sections of the Act and urges that all the procedural changes introduced by the Act are designed to accomplish the object of securing speedier trial. The Act accordingly empowers the State government to direct the offences, which, in its view, require speedier trial, to be tried by a Special Court according to the special procedure provided by it for the speedier trial of those offences. This construction of the section, he maintains, is consonant with the object of the Act as recited in the preamble and does not offend against the inhibition of article 14 of our Constitution. Learned counsel for the respondents, on the other hand, urge that there is no ambiguity whatever in the language used in the sub-section, that there is no indication in the sub-section itself of any restriction or qualification on the power of classification conferred by it on the State government and that the power thus given to the State government cannot be controlled and cut down by calling in ai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gives an uncontrolled and unguided power of classification which may well be exercised by the State government capriciously or "with an evil eye and an unequal band" so as to deliberately bring about invidious discrimination between man and man, although both of them are situated in exactly the same or similar circumstances. By way of illustration it is pointed out that in the Indian Penal Code there are different chapters dealing with offences relating tO different matters, e.g., Chapter XVII which deals with offences against property, that under this generic head are set forth different species of offences against property, e.g., theft (section 378), theft in a dwelling house (section 380), theft by a servant (section 381), to take only a few examples, and that according to the language of section 5(1) of the impugned Act it will be open to the State government to direct all offences of theft in a dwelling house under section 380 to be tried by the Special Court according to the special procedure laid down in the Act leaving all offences of theft by a servant under section 381 to be dealt with in the ordinary Court in the usual way. In other words, if a stranger is cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sy to visualise a situation when certain offences, e.g., theft in a dwelling house, by reason of the frequency of their perpetration or other attending circumstances, may legitimately call for a speedier trial and swift retribution by way of punishment to check the commission of such offences. Are we not familiar with gruesome crimes of murder, arson, loot and rape committed on a large scale during communal riots in particular localities and are they not really different from a case of a stray murder, arson, loot or rape in another district which may not be affected by any communal upheaval ? Do not the existence of the communal riot and the concomitant crimes committed on a large scale call for prompt and speedier trial in the very interest and safety of the community ? May not political murders or crimes against the State or a class of the community, e.g., women, assume such proportions as would be sufficient to constitute them into a special class of offences requiring special treatment ? Do not these special circumstances add a peculiar quality to these offences or classes of offences or classes of cases which distinguish them from stray cases of similar crimes and is it not re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, its action will be either an abuse of its power if it is purposeful or in excess of its powers even if it is done in good faith and in either case the resulting discrimination will encounter the challenge of the Constitution and the Court will strike down, not the law which is good, but the abuse or misuse or the unconstitutional administration of the law creating or resulting in unconstitutional discrimination. In the present case, however, the State government has not purported to proceed under that part of section 5(1) which I have been discussing so far. It has, on the other hand, acted 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 than as 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 "ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equire speedier trial any more than another individual case of murder may do. It is, therefore, clear, for the foregoing reasons, that the power to direct "cases" as distinct from "classes of cases" to be tried by a Special Court contemplates and involves a purely arbitrary selection based on nothing more substantial than the whim and pleasure of State Government and without any appreciable relation to the necessity for a speedier trial. Here the law lays an unequal hand on those who have committed intrinsically the same quality of offence. ]his power must inevitably result in discrimination and this discrimination is, in terms incorporated in this part of the section itself and, therefore, this part of the section itself must incur our condemnation. It is not a question of an unconstitutional administration of a statute otherwise valid on its face but here the unconstitutionality is writ large on the face of the statute itself. I, therefore, agree with the High Court that section 5(1) of the Act in so far as it empowers the State Government to direct "cases" to be tried by a Special Court offends against the provisions of article 14 and therefore the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 convicted of an offence disclosed by the evidence as having been committed by him, even though he was not charged with it and it happens to be a more serious offence. This power of the Special Court is much wider than the powers of ordinary courts. The points of prejudice against the accused which appear in the challenged Act have been pointed out in detail in the judgment of Trevor Harries C.J. They cannot all be brushed aside as variations of minor and unsubstantial importance. The argument that changes in procedural law are not material and cannot be said to deny equality before the law or the equal protection of the laws so long as the substantive law remains unchanged or that only the fundamental rights referred to in articles 20 to 22 should be safeguarded is, on the face of 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 ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es most of the useful observations of this Court in the Sholapur Mills case, ChiranLal Chowdhury v. The Union of India and Others([1950] S.C.R. 869) Willis says :-- "The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. "It merely requires that all persons subject to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed." "The inhibition of the amendment was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation." It does not take from the states the power to classify either in the adoption of police laws, or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis. Mathematical nicety ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... background in which they were delivered. With great respect, I fail to see why we should allow ourselves to be unduly weighted-down or over-encumbered in this manner. To say this is not to shut out illumining light from any quarter; it is merely to utter a note of caution that we need not stray far into distant fields and try to clutch at something which may not after all be very helpful. What we have to find out is whether the statute now m question before us offends to any extent the equal protection of the laws guaranteed by our written Constitution. Whether the classification, ii any, is reasonable or arbitrary, or is substantial or unreal, has to be adjudicated upon by the courts and the decision must turn more on one's commonsense than on over-refined legal distinctions or subtleties. The Attorney-General argued that if the principle of classification has to be applied as a necessary test, there is a classification in the impugned Act as it says that it is intended to provide for the speedier trial of certain offences; and in the opinion of the legislature certain offences may require more expeditious trial than other offences and this was a good enough classification. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, whatever its nature, whether it has arisen out of a particular incident or relates to a crime of normal occurrence, whether the offence involved is grave or simple, whether it needs more expeditious trial or not. Thus, we have before us an enactment which does not make any reasonable classification and which confers on the executive an uncontrolled and unguided power of discrimination. The question whether there is any proper classification where no standard is set up by the enactment to control executive action has arisen for consideration before the American courts and has been differently answered. Willis says at page 586 :- "Is it proper classification to put in one class those who get the consent of a board or of an official and into another class those who do not, where no standard is set up to control the action of the board or official ? Some cases answer. this question in the affirmative, while other cases answer it in the negative. Perhaps the best view on this subject is that due process and equality are not violated by the mere conference of unguided power, but only by its arbitrary exercise by those upon whom it is conferred." The case cited in supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that will suit the necessities of the particular situation, and constitute a compliance with the general rule." This case is no authority for the position that the mere conferment of naked or uncontrolled power is no violation of the due process or c equality clauses. it is true that the power to deal with a particular situation within the general rule prescribed by the enactment may be conferred on an administrative body or even on a single individual but this entrustment or delegation is subject to the condition that the statute must itself be a valid one, as not being opposed to the 5th or 14th Amendment of the American Constitution, corresponding to articles 14 and 22 of our Constitution. Discrimination may not appear in the statute itself but may be evident in the administration of the law. If an uncontrolled or unguided power is conferred without any reasonable and proper standards or limits being laid down in the enactment, the statute itself may be challenged and not merely the particular administrative act. Citing the case of Sunday Lake Iron Co. v. Wakefield, Rogers v. Alabama and Concordia Fire Ins. Co. v. Illinois, Prof. Weaver says at page 404 of his compendiou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, but if the Act remains, the validity of the notification or order etc., when impugned, may have to be considered independently. There may be cases where individual acts of state officials are questioned and not the legislation itself. As regards such cases, Willoughby states at page 1932 of his Volume III on the Constitution of the United States :-- "It is, however, to be observed in this connection, that the prohibitions apply to the acts of State officials even when they are done in pursuance of some State legislative direction, for, while no constitutional objection may be made to any law of the State, it has been held that its officials may exercise their public authority in such a discriminatory or arbitrary manner as to bring them within the scope of the prohibitions of the Fourteenth Amendment. This, it will be remembered, was one of the grounds upon which, in Yick Wo v. Hopkins (118 U.S. 356) it was held that due process of law had been denied. In Tarrance v. Florida (188 U.S. 519) the administration of a State law and not the law itself was challenged and the court said: 'Such an actual discrimination is as potential in creating a denial of equality of rights as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution and in particular with the words "equality before the law" and "equal protection of the law." Now I yield to none in my insistence that plain unambiguous words in a statute, or in the Constitution, must having regard to the context, be interpreted according to their ordinary meaning and be given full effect. But that predicates a position where the words are plain and unambiguous. I am clear that that is not the case here. Take first the words "equality before the law". It is to be observed that equality in the abstract is not guaranteed but only equality before the law. That at once leads to the question, what is the law, and whether "the law" does not draw distinctions between man and man and make for inequalities in the sense of differentiation? One has only to look to the differing personal laws which are applied daily to see that it does; to trusts and foundations from which only one particular race or community may benefit, to places of worship from which all but members of particular faith are excluded, to cemeteries and towers of silence which none but the faithful may use, to the laws of property, marriage and divor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut what then becomes of the classification? and who are to be the judges of the reasonableness and the substantiality or otherwise of the discrimination? And, much more important, whose standards of reasonableness are to be applied? --the judges'?--the government's?--or that of the mythical ordinary reasonable man of law which is no single man but a composite of many men whose reasonableness can be measured and gauged even though he can neither be seen nor heard nor felt? With the utmost respect I cannot see how these vague generalisations serve to clarify the position. To my mind they do not carry us one whit beyond the original words and are no more satisfactory than saying that all men are equal before the law and that all shall be equally treated and be given equal protection. The problem is not solved by substituting one generalisation for another. To say that the law shall not be discriminatory carries us nowhere for unless the law is discriminatory the question cannot arise. The whole problem is to pick out from among the laws which make for differentiation the ones which do not offend article 14 and separate them from those which do. It is true the word can also be used in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the moment Parliament has uttered its will as lawgiver, that will becomes subject to the interpretation put upon it by the judges of the land, and the judges, who are influenced by the feelings of magistrates no less than by the general spirit of the common law, are disposed to construe statutory exceptions to common law principles in a mode which would not commend itself either to a body of officials, or to the Houses of Parliament, if the Houses were called upon to interpret their own enactments." This, however, does not mean that judges are to determine what is for the good of the people and substitute their individual and personal opinions for that of the government of the day, or that they may usurp the functions of the legislature. That is not their province and though there must always be a a narrow margin within which judges, who are human, will always be influenced by subjective factors, their training and their tradition makes the main body of their decisions speak with the same voice and reach impersonal results whatever their personal predilections or their individual backgrounds. It is the function of the legislature alone, headed by the government of the day, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r its being, tongues of dynamic fire, potent to mould the future as well as guide t, he 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 differing needs. I feel therefore that in each case judges must look straight into the heart of things and regard the facts of each case concretely much as a jury would do; and yet, not quite as a jury, for we are considering here a matter of law and not just one of fact: Do these "laws" which have been called in question offend a still greater law before which even they must bow? Doing that, what is the history of these provisions ? They arose out of the fight for freedom in this land and are but the endeavour to compress into a few pregnant phrases some of the main attributes of a sovereign democratic republic as seen through Indian eyes. There was present to the collective mind of the Constituent Assembly, reflecting the mood of the peoples of India, the memory of grim trials by hastily constituted tribunals with novel forms of procedure set forth in Ordinances promulgated in haste because of what was then felt t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. 32 at 42.) and so did Puranik J. and I in the Nagpur High Court in Bhagwati Charan Shukla's case(I.L.R. 1946 Nag. 865 at 878 and 879.). Coming now to the concrete cases with which we have to deal here. I am far from suggesting that the departures made from the procedure prescribed by the Criminal Procedure Code are 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 kind fraught with the most serious consequences to the individuals concerned, for special, and what some would regard as peculiar, treatment. It may b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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