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CONSTITUTIONAL LAW 1 – CASES AND MATERIALS

CONSTITUTIONAL LAW I
CASES AND MATERIALS

KHAGESH GAUTAM

© KHAGESH GAUTAM | 2014

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CONSTITUTIONAL LAW 1 – CASES AND MATERIALS

TABLE OF CONTENTS
UNIT 1 – THE CONCEPT OF STATE (ARTICLE 12) ................................................................................... 5
RAJASTHAN STATE ELECTRICITY BOARD V. MOHAN LAL ............................................................. 5
R. D. SHETTY V. INT’L AIRPORT AUTHORITY OF INDIA ............................................................... 10
AJAY HASIA V. KHALID MUJIB .................................................................................................... 19
DALCO ENGINEERING V. S. P. PADHYE ....................................................................................... 29
PRADEEP KUMAR BISWAS V. INDIAN INSTITUTE OF CHEMICAL BIOLOGY ................................... 36
UNIT 2 – FUNDAMENTAL RIGHTS COMPLIANCE REVIEW (ARTICLE 13) .............................................. 52
KESHAVA MADHAVA MENON V. STATE OF BOMBAY .................................................................. 52
STATE OF GUJARAT V. SHRI AMBIKA MILLS ............................................................................... 66
UNIT 3 – EQUALITY CLAUSE (ARTICLE 14) ......................................................................................... 76
DOCTRINE OF REASONABLE CLASSIFICATION ..................................................................................... 76
STATE OF WEST BENGAL V. ANWAR ALI SARKAR ...................................................................... 76
DOCTRINE OF ARBITRARINESS ......................................................................................................... 112
NATURAL RESOURCES ALLOCATION, IN RE SPECIAL REFERENCE NO. 1 OF 2012 ..................... 112
UNIT 4 – AFFIRMATIVE ACTION (ARTICLES 15 AND 16) .................................................................... 135
RESERVATION IN EDUCATIONAL INSTITUTIONS ................................................................................. 135
STATE OF MADRAS V. CHAMPAKAM DORAIRAJAN .................................................................... 135
RESERVATION IN GOVERNMENT EMPLOYMENT ................................................................................. 139
STATE OF KERALA V. N. M. THOMAS ........................................................................................ 139
INDRA SAWHNEY V. UNION OF INDIA ........................................................................................ 151
UNIT 5 – FUNDAMENTAL FREEDOMS (ARTICLE 19)........................................................................... 190
POLITICAL SPEECH ......................................................................................................................... 190
ROMESH THAPAR V. STATE OF MADRAS ................................................................................... 190
BRIJ BHUSHAN V. STATE OF DELHI ........................................................................................... 194
FREEDOM OF THE PRESS ................................................................................................................ 195
BENNETT COLEMAN & CO. V. UNION OF INDIA ......................................................................... 195
REASONABLE RESTRICTIONS ON FREEDOM OF SPEECH .................................................................... 207
K. A. ABBAS V. UNION OF INDIA ............................................................................................... 207
AJAY GOSWAMI V. UNION OF INDIA .......................................................................................... 224
FREEDOM OF OCCUPATION ............................................................................................................ 235

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CHINTAMAN RAO V. STATE OF MADHYA PRADESH................................................................... 235
TMA PAI V. STATE OF KARNATAKA ......................................................................................... 237
FREEDOM OF MOVEMENT ............................................................................................................... 246
DR. N. B. KHARE V. STATE OF DELHI ........................................................................................ 246
FREEDOM TO FORM ASSOCIATIONS OR UNIONS ............................................................................... 252
STATE OF MADRAS V. V. G. ROW.............................................................................................. 252
JAMAAT-E-ISLAMI HIND V. UNION OF INDIA ............................................................................. 259
UNIT 6 – RIGHTS OF THE ACCUSED IN CRIMINAL TRIALS (ARTICLE 20) ............................................ 271
PROTECTION AGAINST SELF INCRIMINATION .................................................................................... 271
STATE OF BOMBAY V. KATHI KALU OGHAD ............................................................................. 271
SELVI V. STATE OF KARNATAKA ............................................................................................... 285
UNIT 7 – PREVENTIVE DETENTION (ARTICLE 22) .............................................................................. 318
A. K. GOPALAN V. STATE OF MADRAS ...................................................................................... 318
UNIT 8 – LIFE AND PERSONAL LIBERTY (ARTICLE 21) ...................................................................... 365
PROCEDURE ESTABLISHED BY LAW ................................................................................................. 365
A. K. GOPALAN V. STATE OF MADRAS ...................................................................................... 365
MANEKA GANDHI V. UNION OF INDIA ....................................................................................... 382
LIFE AND PERSONAL LIBERTY.......................................................................................................... 392
FRANSCIS CORALIE MULLIN V. ADMINISTRATOR, UNION TERRITORY OF DELHI ...................... 392
OLGA TELLIS V. BOMBAY MUNICIPAL CORPORATION .............................................................. 400
UNIT 9 – RIGHT TO EDUCATION (ARTICLE 21A) ............................................................................... 417
SOCIETY FOR UNAIDED PRIVATE SCHOOLS V. UNION OF INDIA................................................. 417
UNIT 10 – RELIGIOUS FREEDOM (ARTICLES 25, 26, 27 & 28)............................................................ 447
DOCTRINE OF ESSENTIAL PRACTICES .............................................................................................. 447
COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS V. SWAMIAR OF SHIRUR ............................ 447
ACHARYA JAGDISHWARANAND AVADHUTA V. COMMISSIONER OF POLICE, CALCUTTA ........... 464
BIJOE EMMANUEL V. STATE OF KERALA ................................................................................... 469
SEPARATION OF RELIGION AND STATE ............................................................................................. 475
P. M. BHARGAVA V. UNIVERSITY GRANTS COMMISSION .......................................................... 475
PRAFULL GORADIA V. UNION OF INDIA ..................................................................................... 482
UNIT 11 – MINORITY RIGHTS (ARTICLES 29 AND 30) ........................................................................ 485
S. AZEEZ BASHA V. UNION OF INDIA ......................................................................................... 485
DAYANAND ANGLO VEDIC COLLEGE V. COLLEV. STATE OF PUNJAB ........................................ 496

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TMA PAI FOUNDATION V. STATE OF KARNATAKA ................................................................... 505
UNIT 12 – FUNDAMENTAL RIGHTS AND THE DOCTRINE BASIC STRUCTURE ..................................... 525
DOCTRINE OF BASIC STRUCUTRE .................................................................................................... 525
KESAVANANDA BHARTI V. UNION OF INDIA ............................................................................. 525
HARMONY BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES OF STATE POLICY ............ 550
MINERVA MILLS V. UNION OF INDIA ......................................................................................... 550
UNIT 13 – PUBLIC INTEREST LITIGATION .......................................................................................... 563
BANDHUA MUKTI MORCHA V. UNION OF INDIA ........................................................................ 563
VINEET NARAIN V. UNION OF INDIA .......................................................................................... 585

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UNIT 1 – THE CONCEPT OF STATE (ARTICLE 12)
RAJASTHAN STATE ELECTRICITY BOARD V. MOHAN LAL
AIR 1967 SC 1857
Decided On: April 3, 1967
BENCH – CHIEF JUSTICE K. SUBBA RAO, JUSTICES J. C. SHAH, J. M. SHELAT, V. BHARGAVA
& G. K. MITTER

JUSTICE BHARGAVA (FOR THE CHIEF JUSTICE, JUSTICES SHELAT, MITTER AND HIMSELF,
MAJORITY OPINION)
The appellant in this appeal is Electricity Board of Rajasthan Jaipur (hereinafter referred to as "the Board") a body corporate constituted on 1st July 1957, under the Electricity (Supply)
Act, 1948 (No. 54 of 1948). Before the constitution of the Board the supply of electricity in the State of Rajasthan was being controlled directly by a department of the State Government named as the Electrical and Mechanical Department. Respondent No. 1 Mohan Lal as well as respondents 4 to 14 were all permanent employees of the State Government holding posts of
Foremen in the Electrical and Mechanical Department. On the constitution of the Board the services of most the employees including all these respondents were provisionally placed at the disposal of the Board by a notification issued by the Government on 12th February, 1958 purporting to exercise its power under section 78A of Act 54 of 1948.
In this notification a direction was included that the Board was to frame its own new grades and service conditions under its regulations and the employees whose service were transferred to the Board were to exercise option either to accept these new grades and service conditions or to continue in their existing grades and service conditions except in regards to conduct and disciplinary rules or to obtain relief from Government service by claiming pension or gratuity as might be admissible on abolition of post under the Rajasthan Service
Rules. The Board however did not frame any new grades and service conditions at least up to the time that the present litigation arose.
Respondent No. 1 was however deputed by the State Government by its order dated 27th
January, 1960 after having worked under the Board for a period of about two years to the
Public Works Department of the Government On 10th August, 1960 an order was made by the
Government addressed to the Secretary of the Board indicating that respondent no. 1 as well as respondent no. 4 to 14 were to be treated as on deputation to the Board. On 24th November,
1962 the Public Work Department passed an order reverting respondent no. 1 to his parent department with effect from 1st December, 1962 but the period of deputation was later extended till 25th July, 1963. On 11th July, 1963 he was actually reverted to the Board from the Public Works Department and the Board issued orders posting respondents no. 1 as a
Foreman. In the interval while respondent No. 1 was working in the Public Works Department respondent 4 to 14 had been promoted by the Board as Assistant Engineers while respondent no. 1 was promoted to work as Assistant Engineer in the Public Works Department. On his reversion, respondent no. 1 claimed that he was also entitled to be promoted as Assistant
Engineer under the Board because some of the other respondents promoted were junior to him and in the alternative that in any case he was entitled to be considered for promotion.
This request made by him to the Board as well as to the State Government was turned down and thereupon respondent no. 1 filed a petition under Article 226 and 227 of the
Constitution in the High Court of Rajasthan. Respondent no. 1 claimed that he was entitled to equality of treatment with respondent 4 to 14 and inasmuch as he had not been considered for

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promotion with them by the Board, the Board had acted in violation of Article 14 and 16 of the Constitution. The Board contested the petition on two grounds. The first ground was that respondent no. 1 had never become a permanent servant of the Board and never held any substantive post under it so that he could not claim to be considered for promotion with respondents 4 to 14. The second ground was that the Board could not be held to be "State " as defined in Article 12 of the Constitution and consequently no direction could be issued to the
Board by the High Court under Art 226 or 227 of the Constitution on the basis that the action of the Board had violated Article 14 and 16 of the Constitution. The High Court rejected both these ground accepted the plea of respondent no. 1 and quashed the order of promotion of respondents 4 to 14 and issued a direction to the Board to consider promotions afresh after taking into account the claims of respondent no. 1. The Board has now come up in appeal to this Court by Special leave against this order of the High Court. Apart from the Board the
State of Rajasthan and the Chief Engineer & Technical Member of the Rajasthan State
Electricity Board Jaipur were also impleaded as opposite parties in the writ petition and they are respondents 2 and 3 in this appeal.
… [Arguments of counsel on the first ground have been omitted] …

On the second point that the Board cannot be held to be "State" within its meaning in
Art. 12 of the Constitution, Mr. Desai urged that, on the face of it, the Board could not be held to be covered by the authorities named therein, viz., the Government and Parliament of India and the Government and the Legislature of each of the States and local authorities, and the expression "other authorities", if read ejusdem generis with those named, cannot cover the
Board which is a body corporate having a separate existence and has been constituted primarily for the purpose of carrying on commercial activities. In support of his proposition that the expression "other authorities" should be interpreted ejusdem generis, he relied on a decision of the Madras High Court in University of Madras v. Shantha Bai, AIR 1954 Mad.
67. The High Court, considering the question whether a University can be held to be local or other authority as defined in Art. 12, held:
"These words must be construed 'ejusdem generis ' with Government or
Legislature, and, so construed, can only mean authorities exercising governmental functions. They would not include persons natural or juristic who cannot be regarded as instrumentalities of the Government. The University of
Madras is a body corporate created by Madras Act VII of 1923. It is not charged with the execution of any governmental functions; its purpose is purely to promote education. Though section 44 of the Act provides for financial contribution by the local Government, the University is authorised to raise its own funds of income from fees, endowments and the like. It is a State-aided institution, but it is not maintained by the State."

In B. W. Devadas v. Selection Committee for Admission of Students to the Karnatak
Engineering College, AIR 1964 Mys. 6, the High Court of Mysore similarly held:
"The term 'authority ' in the ordinary dictionary sense may comprise not merely a person or a group of persons exercising governmental power, but also any person or group of persons who, by virtue of their position in relation to other person or persons, may be able to impose their will upon that other person or persons. But there is an essential difference between a political association of persons called 'the State ' giving rise to political power connoted by the well-known expression 'imperative law ' and a non-political association of persons for other purposes by contract, consent or similar type of mutual understanding related to the common object of persons so associating themselves together giving rise to a power which operates not in the manner in which imperative law

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operates, but by virtue of its acceptance by such associating persons based upon contract, consent or mutual understanding."

Proceeding further, the Court held:
"The term 'authorities ' occurring in Art. 12 could only mean a person or a group of persons who exercise the legislative or executive functions of a State or through whom or through the instrumentality of whom the
State exercises its legislative or executive power."

The latest case on the point cited by Mr. Desai is the decision of the Punjab High Court in Krishan Gopal Ram Chand Sharma v. Punjab University, AIR 1966 P&H 34 where the decision given in the case of University of Madras, AIR 1954 Mad. 67 was followed and the principle laid down therein was approved and applied. On the basis of these decisions, and the principles laid down therein, it was urged that an examination of the provisions of the
Electricity Supply Act will show that the Board is an autonomous body which cannot be held to be functioning as an agent of the Executive Government and, consequently, it should be held that it is not "State" within the meaning of Art. 12 of the Constitution.
In our opinion, the High Courts fell into an error in applying the principle of ejusdem generis when interpreting the expression "other authorities" in Art. 12 of the Constitution, as they overlooked the basic principle of interpretation that, to invoke the application of ejusdem generis rule, there must be a distinct genus or category running through the bodies already named. Craies on Statute Law summarises the principle as follows:"The ejusdem generis rule is one to be applied with caution and not pushed too far... To invoke the application of the ejusdem generis rule there must be a distinct genus or category. The specific words must apply not to different objects of a widely differing character but to something which can be called a class or kind of objects. Where this is lacking, the rule cannot apply, but the mention of a single species does not constitute a genus."

Maxwell in his book on 'Interpretation of Statutes ' explained the principle by saying:
"But the general word which follows particular and specific words of the same nature as itself takes its meaning from them, and is presumed to be restricted to the same genus as those words.... Unless there is a genus or category, there is no room for the application of the ejusdem generis doctrine." In United Towns Electric Co., Ltd, v. Attorney-General for Newfoundland, (1939) 1 All
E.R. 423, the Privy Council held that, in their opinion, there is no room for the application of the principle of ejusdem generis in the absence of any mention of a genus, since the mention of a single species – for example, water rates - does not constitute a genus. In Art. 12 of the
Constitution, the bodies specifically named are the Executive Governments of the Union and the States, the Legislature of the Union and the States, and local authorities. We are unable to find any common genus running through these named bodies, nor can these bodies be placed in case single on any rational basis. The doctrine of ejusdem generis could not therefore, be applied to the interpretation of the expression "other authorities" in this article.
The meaning of the word "authority" given in Webster 's Third New International
Dictionary, which can be applicable, is "a public administrative agency or corporation having quasi-governmental powers and authorised to administer a revenue-producing public enterprise." This dictionary meaning of the word "authority" is clearly wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasi-governmental functions. The expression "other authorities" is wide enough to include within it every authority created by a statute and functioning within the territory of India, or

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under the control of the Government of India; and we do not see any reason to narrow down this meaning in the context in which the words "other authorities" are used in Art. 12 of the
Constitution.
In Ujjam Bai v. State of Uttar Pradesh, [1963] 1 SCR 778, Ayyangar, J., interpreting the words "other authorities" in Art. 12 held:
"Again, Art. 12 winds up the list of authorities falling within the definition by referring to 'other authorities within the territory of India which cannot obviously be read as ejusdem generis with either the
Government and the Legislatures or local authorities. The words are of wide amplitude and capable of comprehending every authority created under a statute and functioning within the territory of India or under the control of the Government of India. There is no characterisation of the nature of the 'authority ' in this residuary clause an consequently it must include every type of authority set up under a statute for the purpose of administering laws enacted by the Parliament or by the State including those vested with the duty to make decisions in order to implement those laws." In K. S. Ramamurthi Reddiar v. Chief Commissioner, Pondicherry, [1964] 1 SCR
656, this Court, dealing with Art. 12, held:
"Further, all local or other authorities within the territory of India include all authorities within the territory of India whether under the control of the Government of India or the Governments of various States and even autonomous authorities which may not be under the control of the
Government at all."

These decisions of the Court support our view that the expression "other authorities" in
Art. 12 will include all constitutional or statutory authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purpose of carrying on commercial activities. Under the Constitution, the State is itself envisaged as having the right to carry on trade or business as mentioned in Art, 19(1)(g). In Part IV, the
State has been given the same meaning as in Art. 12 and one of the Directive Principles laid down in Art. 46 is that the State shall promote with special care the educational and economic interests of the weaker sections of the people. The State, as defined in Art. 12, is thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people. The State, as constituted by our Constitution, is further specifically empowered under Art. 298 to carry on any trade or business. The circumstance that the Board under the Electricity Supply Act is required to carry on some activities of the nature of trade or commerce does not, therefore, give any indication that the Board must be excluded from the scope of the word "State" as used in Art. 12. On the other hand, there are provisions in the Electricity Supply Act which clearly show that the powers conferred on the
Board include power to give directions, the disobedience of which is punishable as a criminal offence. In [these] circumstances, we do not consider it at all necessary to examine the cases cited by Mr. Desai to urge before us that the Board cannot be held to be an agent or instrument of the Government. The Board was clearly an authority to which the provisions of Part III of the Constitution were applicable.
We have already held earlier that, in dealing with the case of respondent No. 1, the Board did not treat him on terms of equality with respondents Nos. 4 to 14 and did not afford to him the opportunity for being considered for promotion to which he was entitled on that basis. The
High Court was, therefore, right in allowing the petition of respondent No. 1. The appeal is dismissed with costs.

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JUSTICE SHAH (FOR HIMSELF, PARTLY CONCURRING)
I agree with the order proposed by Bhargava, J.
The Board is an authority invested by statute with certain sovereign powers of the State.
It has the power of promoting coordinated development, generation, supply and distribution of electricity and for that purpose to make, alter, amend and carry out schemes under Ch. V of the Electricity (Supply) Act, 1948, to engage in certain incidental undertakings; to organise and carry out power and hydraulic surveys; to conduct investigation for the improvement of the methods of transmission; to close down generating stations; to compulsorily purchase generating stations, undertakings, mains and transmission lines; to place wires, poles, brackets, appliances, apparatus, etc; to fix grid tariff; to issue directions for securing the maximum economy and efficiency in the operation of electricity undertakings; to make rules and regulations for carrying out the purposes of the Act; and to issue directions under certain provisions of the Act and to enforce compliance with those directions. The Board is also invested by statute with extensive powers of control over electricity undertakings. The power to make rules and regulations and to administer the Act is in substance the sovereign power of the State delegated to the Board. The Board is, in my judgment, "other authority" within the meaning of Art. 12 of the Constitution.
I am unable, however, to agree that every constitutional or statutory authority on whom powers are conferred by law is "other authority" within the meaning of Art. 12. The expression
"authority" in its etymological sense means a body invested with power to command or give an ultimate decision, or enforce obedience, or having a legal right to command and be obeyed.
The expression "State" is defined in Art. 12 for the purpose of Part III of the Constitution.
Article 13 prohibits the State from making any legislative or executive direction which takes away or abridges the rights conferred by Part III and declares any law or executive direction in contravention of the injunction void to the extent of such contravention. In determining what the expression "other authority" in Art. 12 connotes, regard must be had not only to the sweep of fundamental rights over the power of the authority, but also to the restrictions which may be imposed upon the exercise of certain fundamental rights (e.g., those declared by
Art. 19) by the authority. Fundamental rights within their allotted fields transcend the legislative and executive power of the sovereign authority. But some of the important fundamental rights are liable to be circumscribed by the imposition of reasonable restrictions by the State. The true content of the expression "other authority" in Art. 12 must be determined in the light of this dual phase of fundamental rights. In considering whether a statutory or constitutional body is an authority within the meaning of Art. 12, it would be necessary to bear in mind not only whether against the authority, fundamental rights in terms absolute are intended to be enforced, but also whether it was intended by the Constitution-makers that the authority was invested with the sovereign power to impose restrictions on very important and basic fundamental freedoms.
In my judgment, authorities constitutional or statutory invested with power by law but not sharing the sovereign power do not fall within the expression "State" as defined in Art. 12.
Those authorities which are invested with sovereign power i.e., power to make rules or regulations and to administer or enforce them to the detriment of citizens and others fall within the definition of "State" in Art. 12, and constitutional or statutory bodies which do not share that sovereign power of the State are not, in my judgment, "State" within the meaning of
Art. 12 of the Constitution.
Appeal dismissed.

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R. D. SHETTY V. INT’L AIRPORT AUTHORITY OF INDIA
AIR 1979 SC 1628, (1979) 3 SCC 489
Decided On: May 4, 1979
BENCH – JUSTICES P. N. BHAGWATI, V. D. TULZAPURKAR & R. S. PATHAK

JUSTICE P. N. BHAGWATI (FOR THE COURT)
This appeal by special leave raises interesting questions of law in the area of public law.
What are the constitutional obligations on the State when it takes action in exercise of its statutory or executive power? Is the State entitled to deal with its property in any manner it likes or award a contract to any person it chooses without any constitutional limitations upon it? What are the parameters of its statutory or executive power in the matter of awarding a contract or dealing with its property? These questions fell in the sphere of both administrative law and constitutional law and they assume special significance in a modern welfare State which is committed to egalitarian values and dedicated to the rule of law. But these questions cannot be decided in the abstract. They can be determined only against the back-ground of facts and hence we shall proceed to State the facts giving rise to the appeal.
On or about 3rd January, 1977 a notice inviting tenders for putting up and running a second class restaurant and two snack bars at the International Airport at Bombay was issued by the
1st respondent which is a corporate body constituted under the International Airport Authority
Act, 43 of 1971. The notice stated in the clearest terms in paragraph (1) that "Sealed tenders in the prescribed form are hereby invited from Registered IInd Class Hoteliers having at least
5 years ' experience for putting up and running a IInd Class Restaurant and two snack bars at this Airport for a period of 3 years". The 'latest point of time upto which the tenders could be submitted to the 1st respondent was stipulated in Paragraph 7 of the notice to be 12 p.m. on
25th January, 1977 and it was provided that the tenders would be opened on the same date at
12.30 hours. Paragraph (8) of the notice made it clear that "the acceptance of the tender will rest with the Airport Director who does not bind himself to accept any tender and reserves to himself the right to reject all or any of the tenders received without assigning any reasons therefore." There were six tenders received by the 1st respondent in response to the notice and one of them was from the 4th respondents of offering a licence fee of Rs. 6666.66 per month, and the others were from Cafe Mahim, Central Catering Service, one A.S. Irani, Cafe Seaside and Cafe Excelsior offering progressively decreasing licence fee very much lower than that offered by the 4th respondents. The tenders were opened in the office of the Airport Director at 12.30 p.m. on 25th January, 1977 and at that time the 4th respondents were represented by their sole proprietor Kurnaria. A.S. Irani was present on behalf of himself, Cafe Mahim, Cafe
Seaside and Cafe Excelsior and there was one representative of Central Catering Service.
The tenders of Cafe Mahim, Central Catering Service, Cafe Seaside and Cafe Excelsior were not complete since they were not accompanied by the respective income tax certificates, affidavits of immovable property and solvency certificates, as required by Clause (9) of the terms and conditions of the tender form. The tender of A.S. Irani was also not complete as it was not accompanied by an affidavit of immovable property held by him and solvency certificates. The only tender which was complete and fully complied with the terms and conditions of the tender form was that of the 4th respondents and the offer contained in that tender was also the highest amongst all the tenders. Now it is necessary to point out at this stage that while submitting their tender the 4th respondents had pointed out in their letter dated
24th January, 1977 addressed to the Airport Director that they had 10 years ' experience in catering to reputed commercial houses, training centers, banks and factories and that they were

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also doing considerable outdoor catering work for various institutions. This letter showed that the 4th respondents had experience only of running canteens and not restaurants and it appeared that they did not satisfy the description of "registered IInd Class Hotelier having at least 5 years ' experience" as set out in paragraph (1) of the notice inviting tenders. The Airport
Officer, therefore, by his letter dated 15th February, 1977 requested the 4th respondents to inform by return of post whether they were a "registered IInd Class Hotelier having at least 5 years’ experience" and to produce documentary evidence in this respect within 7 days.
The 4th respondents pointed out to the Airport Officer by their letter dated 22nd February,
1977 that they had, in addition to what was set out in their earlier letter dated 24th January,
1977, experience of running canteens for Phillips India Ltd. and Indian Oil Corporation and moreover, they held Eating House Licence granted by the Bombay Municipal Corporation since 1973 and had thus experience of 10 years in the catering line. It appears that before this letter of the 4th respondents could reach Airport Officer, another letter dated 22nd February,
1977 was addressed by the Airport Officer once again requesting the 4th respondents to produce documentary evidence to show if they were "a registered IInd Class Hotelier having at least 5 years’ experience". The 4th respondents thereupon addressed another letter dated 26th
February, 1977 to the Director pointing out that they had considerable experience of catering for various reputed commercial houses, clubs, messes and banks and they also held an Eating
House Catering Establishment (Canteen) Licence, as also a licence issued under the
Prevention of Food Adulteration Act.
The 4th respondents stated that their sole proprietor Kumaria had started his career in catering line in the year 1962 at Hotel Janpath, Delhi and gradually risen to his present position and that he had accordingly "experience equivalent to that of a IInd Class or even 1st Class hotelier." This position was reiterated by the 4th respondents in a further letter dated 3rd March,
1977 addressed to the Director. This information given by the 4th respondents appeared to satisfy the 1st respondent and by a letter dated 19th April, 1977 the 1st respondent accepted the tender of the 4th respondents on the terms and conditions set out in that letter. The 4th respondents accepted these terms and conditions by their letter dated 23rd April, 1977 and deposited with the 1st respondent by way of security a sum of Rs. 39,999.96 in the form of fixed Deposit Receipts in favour of the 1st respondent and paid to the 1st respondent a sum of
Rs. 6666.66 representing licence fee for one month and other amounts representing water, electricity and conservancy charges. The 4th respondents thereafter executed and handed over to the 1st respondent an agreement in the form attached to the tender on 1st May, 1977. The 4th respondents also got prepared furniture, counters and showcases as also uniforms for the staff, purchased inter alia deep freezers, water coolers, electrical appliances, ice cream cabinets, espreings and also engaged the necessary staff for the purpose of running the restaurant and the two snack bars. But the 1st respondent could not hand over possession of the requisite sites to the 4th respondents, since A.S. Irani was running his restaurant and snack bars on these sites under a previous contract with the 1st respondent and though that contract had come to an end,
A.S. Irani did not deliver possession of these sites to the 1st respondent. The 4th respondents repeatedly requested the 1st respondent and the Airport Director who is the 2nd respondent in the appeal, to hand over possession of the sites and pointed out to them that the 4th respondents were incurring losses by reason of delay in delivery of possession, but on account of the intransigence of A.S. Irani the 1st respondent could not arrange to hand over possession of the sites to the 4th respondents.
Meanwhile one K.S. Irani who owned Cafe Excelsior filed Suit No. 6544 of 1977 in the
City Civil Court, Bombay against the respondents challenging the decision of the 1st respondent to accept the tender of the 4th respondents and took out a notice of motion for restraining the 1st respondent from taking any further steps pursuant to the acceptance of the

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tender. K.S. Irani obtained an ad-interim injunction against the respondents but after hearing the respondents, the City Civil Court vacated the ad-interim injunction and dismissed the notice of motion by an order dated 10th October, 1977. An appeal was preferred by K.S. Irani against this order, but the appeal was dismissed by the High Court on 19th October, 1977.
Immediately thereafter, on the same day, the 1st respondent handed over possession of two sites to the 4th respondents and the 4th respondents proceeded to set up snack bars on the two sites and started business of catering at the two snack bars. These two sites handed over to the
4th respondents were different from the sites occupied by A.S. Irani, because A.S. Irani refused to vacate the sites in his occupation. So far as the site for the restaurant was concerned, the 1st respondent could not hand over the possession of it to the 4th respondents presumably because there was no other appropriate site available other than the one occupied by A.S. Irani. Since
A.S. Irani refused to hand over possession of the sites occupied by him to the 1st respondent, even though his contract had come to an end, and continued to carry on the business of running the restaurant and the snack bars on these sites, the 1st respondent was constrained to file suit
No. 8032 of 1977 against A.S. Irani in the City Civil Court at Bombay and in that suit, an injunction was obtained by the 1st respondent restraining A.S. Irani from running or conducting the restaurant and the snack bars or from entering the premises save and except for winding up the restaurant and der granting the injunction, but the appeal was rejected and ultimately a petition for special leave to appeal to this Court was also turned down on 31st
July, 1978.
This was, however, not to be the end of the travails of the 4th respondents, for, as soon as the appeal preferred by K.S. Irani against the order dismissing his notice of motion was rejected by the High Court on 19th October, 1977, A.S. Irani filed another suit being suit No.
8161 of 1977 in the City Civil Court, Bombay on 24th October, 1977 seeking mandatory injunction for removal of the two snack bars put up by the 4th respondents. This was one more attempt by A.S. Irani to prevent the 4th respondents from obtaining the benefit of the contract awarded to them by the 1st respondent. He, however, did not succeed in obtaining ad-interim injunction and we are told that the notice of motion taken out by him is still pending in the
City Civil Court.
It will thus be seen that A.S. Irani failed in his attempts to prevent the 4th respondents from obtaining the contract and enjoying its benefit. The 4th respondents put up two snack bars on the sites provided by the 1st respondent and started running the two snack bars from 19th
October, 1977. The restaurant however, could not be put up on account of the inability of the
1st respondent to provide appropriate site to the 4th respondents and, therefore, the licence fee for the two snack bars had to be settled and it was fixed at Rs. 4,500/- per month by mutual agreement between the parties. But it seems that the 4th respondents were not destined to be left in peace to run the two snack bars and soon after the dismissal of the appeal of A.S. Irani on 19th October, 1977 and the failure of A.S. Irani to obtain an ad-interim mandatory injunction in the suit filed by him against the 1st and the 4th respondents, the appellant filed writ petition No. 1582 of 1977 in the High Court of Bombay challenging the decision of the
1st respondent to accept the tender of the 4th respondents. The writ petition was moved before a Single Judge of the High Court on 8th November, 1977 after giving prior notice to the respondents and after hearing the parties, the learned Single Judge summarily rejected the writ petition. The appellant preferred an appeal to the Division Bench of the High Court against the order rejecting the writ petition and on notice being issued by the Division Bench, the 1st and the 4th respondents filed their respective affidavits in reply showing cause against the admission of the appeal. The Division Bench after considering the affidavits and hearing the parties rejected the appeal in limine on 21st February, 1978. The appellant thereupon filed a petition for special leave to appeal to this Court and since it was felt that the questions raised in the appeal were of seminal importance, this Court granted special leave and decided to hear

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the appeal at an early date after giving a further [opportunity to the] parties to file their respective affidavits. That is how the appeal has now come before us for final hearing with full and adequate material placed before us on behalf of both the parties.
The main contention urged on behalf of the appellant was that in paragraph (1) of the notice inviting tenders the 1st respondent had stipulated a condition of eligibility by providing that a person submitting a tender must be a "registered IInd class Hotelier having at least 5 years’ experience." This was a condition of eligibility to be satisfied by every person submitting a tender and if in case of [a] person, this condition was not satisfied, his tender was ineligible for being considered. The 1st respondent, being a State within the meaning of
Article 12 of the Constitution or in any event a public authority, was bound to give effect to the condition of eligibility set up by it and was not entitled to depart from it at its own sweet will without rational justification. The 4th respondents had experience of catering only in canteens and did not have 5 years ' experience of running a IInd class hotel or restaurant and hence they did not satisfy the condition of eligibility and yet the 1st respondent accepted the tender submitted by them. This was clearly in violation of the standard or norm of eligibility set up by the 1st respondent and the action of the 1st respondent in accepting the tender of the
4th respondents was clearly invalid. Such a departure from the standard or norm of eligibility had the effect of denying equal opportunity to the appellant and others of submitting their tenders and being considered for entering into contract for putting up and running the restaurant and two snack bars. The appellant too was not a registered 2nd class hotelier with 5 years ' experience and was in the same position as the 4th respondents vis-a-vis this condition of eligibility and he also could have submitted his tender and entered the field of consideration for award of the contract, but he did not do so because of this condition of eligibility which he admittedly did not satisfy. The action of the 1st respondent in accepting the tender of the 4th respondents had, therefore, opportunity in the matter of consideration for award of the contract and hence it was unconstitutional as being in violation of the equality clause.
… [Arguments of parties and discussion on interpretation of terms on which tender was to be awarded has been omitted]… To-day the Government, is a welfare State, is the regulator and dispenser of special services and provider of a large number of benefits, including jobs contracts, licences, quotas, mineral rights etc. The Government pours forth wealth, money, benefits, services, contracts, quotas and licences. The valuables dispensed by Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional forms of wealth.
These valuables which derive from relationships to Government are of many kinds. They comprise social security benefits, cash grants for political sufferers and the whole scheme of
State and local welfare. Then again, thousands of people are employed in the State and the
Central Governments and local authorities. Licences are required before one can engage in many kinds of business or work. The power of giving licences means power to withhold them and this gives control to the Government or to the agents of Government on the lives of many people. Many individuals and many more businesses enjoy largess in the form of Government contracts. These contracts often resemble subsidies. It is virtually impossible to lose money on them and many enterprises are set up primarily to do business with Government.
Government owns and controls hundreds of acres of public land valuable for mining and other purposes. These resources are available for utilisation by private corporations and individuals by way of lease or licence. All these mean growth in the Government largess and with the increasing magnitude and range of governmental functions as we move closer to a welfare
State, more and more of our wealth consists of these new forms. Some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges. Page 13 of 610

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But on that account, can it be said that they do not enjoy any legal protection? Can they be regarded as gratuity furnished by the State so that the State may withhold, grant or revoke it at its pleasure? Is the position of the Government in this respect the same as that of a private giver? We do not think so. The law has not been slow to recognise the importance of this new kind of wealth and the need to protect individual interest in it and with that end in view, it has developed new forms of protection. Some interests in Government largess, formerly regarded as privileges, have been recognised as rights while others have been given legal protection not only by forging procedural safeguards but also by confining/structuring and checking
Government discretion in the matter of grant of such largess. The discretion of the
Government has been held to be not unlimited in that the Government cannot give or withhold largess in its arbitrary discretion or at its sweet will. It is insisted, as pointed out by Prof. Reich in an especially stimulating article on "The New Property" in 73 Yale Law Journal 733, "that
Government action be based on standards that are not arbitrary or unauthorised." "The
Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith. The Government is still the Government when it acts in the matter of granting largess and it cannot act arbitrarily. It does not stand in the same position as a private individual.
We agree with the observations of Mathew, J., in V. Punnan Thomas v. State of Kerala,
AIR 1969 Ker. 81 that:
"The Government is not and should not be as free as an individual in selecting the recepients for its largess. Whatever its activity, the
Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic
Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal".

The same point was made by this Court in Erusian Equipment and Chemicals Ltd. v. State of West Bengal, [1975] 2 SCR 674 where the question was whether black-listing of a person without giving him an opportunity to be heard was bad? Ray, C.J., speaking on behalf of himself and his colleagues on the Bench pointed out that black-listing of a person not only affects his reputation which is in Poundian terms an interest both of personality and substance, but also denies him equality in the matter of entering into contract with the Government and it cannot, therefore, be supported without fair hearing. It was argued for the Government that no person has a right to enter into contractual relationship with the Government and the
Government, like any other private individual, has the absolute right to enter into contract with anyone it pleases. But the Court, speaking through the learned Chief Justice, responded that the Government is not like a private individual who can pick and choose the person with whom it will deal, but the Government is still a Government when it enters into contract or when it is administering largess and it cannot, without adequate reason, exclude any person from dealing with it or take away largess arbitrarily. The learned Chief Justice said that when the
Government is trading with the public, "the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions. The activities of the
Government have a public element and, therefore, there should be fairness and equality. The
State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure." This proposition would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in

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conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts, quotas, licences etc., must be confined and structured by rational, relevant and nondiscriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. Now, it is obvious that the Government which represents the executive authority of the
State, may act through the instrumentality or agency of natural persons or it may employ the instrumentality or agency of juridical persons to carry out its functions. In the early days, when the Government had limited functions, it could operate effectively through natural persons constituting its civil service and they were found adequate to discharge governmental functions, which were of traditional vintage. But as the tasks of the Government multiplied with the advent of the welfare State, it began to be increasingly felt that the framework of civil service was not sufficient to handle the new tasks which were often of specialised and highly technical character. The inadequacy of the civil service to deal with these new problems came to be realised and it became necessary to force a new instrumentality or administrative device for handling these new problems. It was in these circumstances and with a view to supplying this administrative need that the public corporation came into being as the third arm of the
Government.
As early as 1819 the Supreme Court of the United States in McCullough v. Maryland, 4
Wheat 315 held that the Congress has power to charter corporations as incidental to or in aid of governmental functions and, as pointed out by Mathew, J., in Sukhdev v. Bhagat Ram
(supra) such federal corporations would ex-hypothesi be agencies of the Government. In Great
Britain too, the policy of public administration through separate corporations was gradually evolved and the conduct of basic industries through giant corporations has now become a permanent feature of public life. So far as India is concerned, the genesis of the emergence, of corporations as instrumentalities or agencies of Government is to be found in the
Government of India Resolution on Industrial Policy dated 6th April, 1948 where it was stated inter alia that "management of State enterprises will as a rule be through the medium of public corporation under the statutory control of the Central Government who will assume such powers as may be necessary to ensure this." It was in pursuance of the policy envisaged in this and subsequent resolutions on Industrial Policy that corporations were created by Government for setting up and management of public enterprises and carrying out other public functions.
Ordinarily these functions could have been carried out by Government departmentally through its service personnel, but the instrumentality or agency of the corporations was resorted to in these cases having regard to the nature of the task to be performed. The corporations acting as instrumentality or agency of Government would obviously be subject to the same limitations in the field of constitutional and administrative law as Government itself, though in the eye of the law, they would be distinct and independent legal entities.
If Government acting through its officers is subject to certain constitutional and public law limitations, it must follow a fortiori that Government acting through the instrumentality or agency of corporations should equally be subject to the same limitations. But the question is how to determine whether a corporation is acting as instrumentality or agency of
Government. It is a question not entirely free from difficulty.
A corporation may be created in one of two ways. It may be either established by statute or incorporated under a law such as the Companies Act 1956 or the Societies Registration Act
1860. Where a Corporation is wholly controlled by Government not only in its policy making

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but also in carrying out the functions entrusted to it by the law establishing it or by the Charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of
Government. But ordinarily where a corporation is established by statute, it is autonomous in its working, subject only to a provision, often times made, that it shall be bound by any directions that may be issued from time to time by Government in respect of policy matters.
So also a corporation incorporated under law is managed by a board of directors or committee of management in accordance with the provisions of the statute under which it is incorporated.
When does such a corporation become an instrumentality or agency of Government? Is the holding of the entire share capital of the Corporation by Government enough or is it necessary that in addition, there should be a certain amount of direct control exercised by Government and, if so, what should be the nature of such control? Should the functions which the corporation is charged to carry out possess any particular characteristic or feature, or is the nature of the functions immaterial? Now, one thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. But, as is quite often the case, a corporation established by statute may have no shares or shareholders, in which case it would be a relevant factor to consider whether the administration is in the hands of a board of directors appointed by Government, though this consideration also may not be determinative, because even where the directors are appointed by Government, they may be completely free from governmental control in the discharge of their functions. What then are the tests to determine whether a corporation established by statute or incorporated under law is an instrumentality or agency of Government? It is not possible to formulate an all-inclusive or exhaustive test which would adequately answer this question. There is no cut and dried formula, which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those which are not.
The analogy of the concept of State action as developed in the United States may not, however, be altogether out of place while considering this question. The decisions of the court in the United States seem to suggest that a private agency, if supported by extraordinary assistance given by the State, may be subject to the same constitutional limitations as the State.
Of course, it may be pointed out that "the State 's general common law and statutory structure under which its people carry on their private affairs, own property and contract, each enjoying equality in terms of legal capacity, is not such State assistance as would transform private conduct into State action". But if extensive and unusual financial assistance is given and the purpose of the Government in giving such assistance coincides with the purpose for which the corporation is expected to use the assistance and such purpose is of public character, it may be a relevant circumstance supporting an inference that the corporation is an instrumentality or agency of Government.
The leading case on the subject in the United States is Kerr v. Eneck Pratt Free
Library 149 F.d. 212. The Library system in question in this case was established by private donation in 1882, but by 1944, 99 per cent of the system 's budget was supplied by the city, title to the library property was held by the city, employees were paid by the city payroll officer and a high degree of budget control was exercised or available to the city government.
On these facts the Court of Appeal required the trustees managing the system to abandon a discriminatory admission policy for its library training courses. It will be seen that in this case there was considerable amount of State control of the library system in addition to extensive financial assistance and it is difficult to say whether, in the absence of such control it would have been possible to say that the action of the trustees constituted State action. Thomas P.
Lewis has expressed the opinion in his article on "The meaning of State Action" (60 Columbia
Law Review 1083) that in this case "it is extremely unlikely that absence of public control would have changed the result as long as 99% of the budget of a nominally private institution

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was provided by government. Such extensive governmental support should be sufficient identification with the Government to subject the institution to the provisions of the Fourteenth
Amendment".
It may, therefore, be possible to say that where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. But where financial assistance is not so extensive, it may not by itself, without anything more, render the corporation an instrumentality or agency of government, for there are many private institutions which are in receipt of financial assistance from the State and merely on that account, they cannot be classified as State agencies. Equally a mere finding of some control by the State would not be determinative of the question "since a State has considerable measure of control under its police power over all types of business operations". But “a finding of State financial support plus an unusual degree of control over the management and policies might lead one to characterise an operation as State action" vide Sukhdev v. Bhagatram, AIR 1975 SC
1331.So also the existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality. It may also be a relevant factor to consider whether the corporation enjoys monopoly status which is State conferred or State protected.
There can be little doubt that State conferred or State protected monopoly status would be highly relevant in assessing the aggregate weight of the corporation 's ties to the State. Vide the observations of Douglas, J., in Jackson v. Metropolitan Edison Co. 419 U.S. 345.
There is also another factor which may be regarded as having a bearing on this issue and it is whether the operation of the corporation is an important public function. It has been held in the United States in a number of cases that the concept of private action must yield to a conception of State action where public functions are being performed. Vide Arthur S. Miller,
"The Constitutional Law of the Security State" 10 SLR 620. It was pointed out by Douglas, J., in Evans v. Newton, 382 U.S. 296 that "when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State". Of course, with the growth of the welfare State, it is very difficult to define what functions are governmental and what are not, because, as pointed out by Villmer, L.J., in Pfizer v. Ministry of Health [1964] 1 Ch. 614 there has been, since midVictorian times, "a revolution in political thought and a totally different conception prevails today as to what is and what is not within the functions of Government". Douglas, J., also observed to the same effect in New York v. United States 326 U.S. 572: "A State 's project is as much a legitimate governmental activity whether it is traditional or akin to private enterprise, or conducted for profit." Cf. Helvering v. Gerhardt 304 U.S. 405.
A State may deem it as essential to its economy that it own and operate a railroad, a mill, or an irrigation system as it does to own and operate bridges, street lights, or a sewage disposal plant. What might have been viewed in an earlier day as an improvident or even dangerous extension of state activities may today be deemed indispensable. It may be noted that besides the so called traditional functions, the modern State operates a multitude of public enterprises and discharges a host of other public functions. If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. This is precisely what was pointed out by Mathew, J., in Sukhdev v. Bhagatram (supra) where the learned Judge said that "institutions engaged in matters of high public interest or performing public functions are by virtue pf the nature of the functions performed government agencies. Activities which are too fundamental to the society are by definition too important not to be considered government functions."

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This was one of the principal tests applied by the United States Supreme Court in Marsh
v. Alabama 326 U.S. 501 for holding that a corporation which owned a Company town was subject to the same constitutional limitations as the State. This case involved the prosecution of Marsh, a member of the Jehovah’s Witnesses sect, under a state trespass statute for refusing to leave the side walk of the company town where she was distributing her religious pamphlets. She was fined $ 5/- and aggrieved by her conviction she carried the matter right upto the Supreme Court contending successfully that by reason of the action of the corporation her religious liberty had been denied. The Supreme Court held that administration of private property such as a town, though privately carried on, was, nevertheless, in the nature of a public function and that the private rights of the corporation must, therefore, be exercised within constitutional limitations and the conviction for trespass was reversed. The dominant theme of the majority opinion written by Mr. Justice Black was that the property of the corporation used as a town not recognisably different from other towns, lost its identification as purely private property. It was said that a town may be privately owned and managed but that does not necessarily allow the corporation to treat it as if it was wholly in the private sector and the exercise of constitutionally protected rights on the public street of a company town could not be denied by the owner. "The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.... Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation". Mr. Justice
Frankfurter, concurring, reduced the case to simpler terms. He found in the realm of civil liberties the need to treat a town, private or not, as a town. The function exercised by the corporation was in the nature of municipal function and it was, therefore, subject to the constitutional limitations placed upon State action.
We find that the same test of public or governmental character of the function was applied by the Supreme Court of the United States in Evans v. Newton (supra) and Smith v.
Allwight 321 U.S. 649. But the decisions show that even this test of public or governmental character of the function is not easy of application and does not invariably lead to the correct inference because the range of governmental activity is broad and varied and merely because an activity may be such as may legitimately be carried on by Government, it does not mean that a corporation, which is otherwise a private entity, would be an instrumentality or agency of Government by reason of carrying on such activity. In fact, it is difficult to distinguish between governmental functions and non-governmental functions. Perhaps the distinction between governmental and non-governmental functions is not valid any more in a social welfare State where the laissez faire is an outmoded concept and Herbert Spencer 's social static 's has no place. The contrast is rather between governmental activities which are private and private activities which are governmental. (Mathew, J. Sukhdev v. Bhagatram (supra) at
p. 652). But the public nature of the function, if impregnated with governmental character
"tied or entwined with Government" or fortified by some other additional factor, may render the corporation an instrumentality or agency of Government. Specifically, if a department of
Government is transferred to a corporation, it would be a strong factor supportive of this inference. It will thus be seen that there are several factors which may have to be considered in determining whether a corporation is an agency or instrumentality of Government. We have referred to some of these factors and they may be summarised as under: whether there is any financial assistance given by the State, and if so, what is the magnitude of such assistance whether there is any other form of assistance, given by the State, and if so, whether it is of the usual kind or it is extraordinary, whether there is any control of the management and policies

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of the corporation by the State and what is the nature and extent of such control, whether the corporation enjoys State conferred or State protected monopoly status and whether the functions carried out by the corporation are public functions closely related to governmental functions. This particularisation of relevant factors is however not exhaustive and by its very nature it cannot be, because with increasing assumption of new tasks, growing complexities of management and administration and the necessity of continuing adjustment in relations between the corporation and Government calling for flexibility, adapt ability and innovative skills, it is not possible to make an exhaustive enumeration of the tests which would invariably and in all cases provide an unfailing answer to the question whether a corporation is governmental instrumentality or agency. Moreover even amongst these factors which we have described, no one single factor will yield a satisfactory answer to the question and the court will have to consider the cumulative effect of these various factors and arrive at its decision on the basis of a particularised inquiry into the facts and circumstances of each case. "The dispositive question in any state action case," as pointed out by Douglas, J., in Jackson v.
Metropolitan Edison Company (supra) "is not whether any single fact or relationship presents a sufficient degree of state involvement, but rather whether the aggregate of all relevant factors compels a finding of state responsibility." It is not enough to examine seriatim each of the factors upon which a corporation is claimed to be an instrumentality or agency of Government and to dismiss each individually as being insufficient to support a finding of that effect. It is the aggregate or cumulative affect of all the relevant factors that is controlling.
Now, obviously where a corporation is an instrumentality or agency of Government, it would, in the exercise of its power or discretion, be subject to the same constitutional or public law limitations as Government. The rule inhibiting arbitrary action by Government which we have discussed above must apply equally where such corporation is dealing with the public, whether by way of giving jobs or entering into contracts or otherwise, and it cannot act arbitrarily and enter into relationship with any person it likes at its sweet will, but its action must be in conformity with some principle which meets the test of reason and relevance.
… [Discussion on Article 14 and Non-Arbitrariness in State Action has been omitted] …

We accordingly dismiss the appeal and confirm the order of the High Court rejecting the writ petition. But in the circumstances of the case there will be no order as to costs throughout.

AJAY HASIA V. KHALID MUJIB
AIR 1981 SC 487, (1981) 1 SCC 722
Decided On: November 13, 1980
BENCH – CHIEF JUSTICE Y. V. CHANDRACHUD, JUSTICES P. N. BHAGWATI, V. R. KRISHNA
IYER, S. M. FAZAL ALI & A. D. KOSHAL

JUSTICE BHAGWATI (FOR THE COURT)
These writ petitions under Article 32 of the Constitution challenge the validity of the admissions made to the Regional Engineering College, Srinagar for the academic year 197980.
The Regional Engineering College, Srinagar (hereinafter referred to as the College) is one of the fifteen Engineering Colleges in the country sponsored by the Government of India. The

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College is established and its administration and management are carried on by a Society registered under the Jammu and Kashmir Registration of Societies Act, 1898. The
Memorandum of Association of the Society in Clause 3 sets out the objects for which the
Society is incorporated and they include amongst other things establishment of the college with a view to providing instruction and research in such branches of engineering and technology as the college may think fit and for the advancement of learning and knowledge in such branches. Vide Sub-clause (i). The Society is empowered by Clause 3 Sub-clause (ii) of the Memorandum of Association to make rules for the conduct of the affairs of the Society and to add to, amend, vary or rescind them from time to time with the approval of the
Government of Jammu and Kashmir State (hereinafter referred to as the State Government) and the Central Government. Clause 3 Sub-clause (iii) of the Memorandum of Association confers power on the Society to acquire and hold property in the name of the State
Government. Sub-clause (v) of Clause 3 of the Memorandum of Association contemplates that monies for running the college would be provided by the State and Central Governments and Sub-clause (vi) requires the Society to deposit all monies credited to its fund in such banks or to invest them in such manner as the Society may, with the approval of the State
Government decide. The accounts of the Society as certified by a duly appointed auditor are mandatorily required by Sub-clause (ix) of Clause 3 of the Memorandum of Association to be forwarded annually to the State and Central Governments. Clause 6 of the Memorandum of
Association empowers the State Government to appoint one or more persons to review the working and progress of the Society, or the college and to hold inquiries into the affairs thereof and to make a report and on receipt of any such report, the State Government has power, with the approval of the Central Government, to take such action and issue such directions as it may consider necessary in respect of any of the matters dealt with in the report and the Society or the College, as the case may be, is bound to comply with such directions. There is a provision made in Clause 7 of the Memorandum of Association that in case the Society or the college is not functioning properly, the State Government will have the power to take over the administration and assets of the college with the prior approval of the Central Government.
The founding members of the Society are enumerated in Clause 9 of the Memorandum of
Association and they are the Chairman to be appointed by the State Government with the approval of the Central Government, two representatives of the State Government, one representative of the Central Government, two representatives of the All India Council for
Technical Education to be nominated by the northern Regional Committee, one representative of the University of Jammu and Kashmir, one non-official representative of each of the
Punjab, Rajasthan, U.P. and Jammu and Kashmir States to be appointed by the respective
Governments in consultation with the Central Government and the Principal who shall also be the ex-officio Secretary.
The Rules of the Society are also important as they throw light on the nature of the Society.
Rule 3 Clause (i) reiterates the composition of the Society as set out in Clause 9 of the
Memorandum of Association and Clause (ii) of that Rule provides that the State and the
Central Governments may by mutual consultation at any time appoint any other person or persons to be member or members of the Society. Rule 6 vests the general superintendence, direction and control of the affairs and its income and property in the governing body of the
Society which is called the Board of Governors. Rule 7 lays down the Constitution of the
Board of Governors by providing that it shall consist of the Chief Minister of the State
Government as Chairman and the following as members: Three nominees of the State
Government, three nominees of the Central Government, one representative of the All India
Council for Technical Education, Vice-Chancellor of the University of Jammu and Kashmir, two industrialists/technologists in the region to be nominated by the State Government, one nominee of the Indian Institute of Technology in the region, one nominee of the University

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Grants Commission two representatives of the Faculty of the College and the Principal of the college as ex-officio member-Secretary. The State Government is empowered by Rule 10 to remove any member of the Society other than a member representing the State or Central
Government from the membership of the Society with the approval of the Central
Government. Clause (iv) of Rule 15 confers power on the Board to make bye-laws for admission of students to various courses and Clause (xiv) of that Rule empowers the Board to delegate to a committee or to the Chairman such of its powers for the conduct of its business as it may deem fit, subject to the condition that the action taken by the committee of the
Chairman shall be reported for confirmation at the next meeting of the Board. Clause (xv) of
Rule; 15 provides that the Board shall have power to consider and pass resolution on the annual report, the annual accounts and other financial estimates of the college, but the annual report and the annual accounts together with the resolution passed thereon are required to be submitted to the State and the Central Governments. The Society is empowered by Rule 24,
Clause (i) to alter, extend or abridge any purpose or purposes for which it is established, subject to the prior approval of the State and the Central Governments and Clause (ii) of Rule
24 provides that the Rules may be altered by a Resolution passed by a majority of 2/3rd of the members present at the meeting of the Society, but such alteration shall be with the approval of the State and the Central Governments.
Pursuant to Clause (iv) of Rule 15 of the Rules, the Board of Governors laid down the procedure for admission of students to various courses in the college by a Resolution dated
4th June, 1974. We are not directly concerned with the admission procedure laid down by this
Resolution save and except that under this Resolution admissions to the candidates belonging to the State of Jammu and Kashmir were to be given on the basis of comparative merit to be determined by holding a written entrance test and a viva voce examination and the marks allocated for the written test in the subjects of English, Physics, Chemistry and Mathematics were 100, while for viva voce examination, the marks allocated were 50 divided as follows:
(i) General Knowledge and Awareness-15; (ii) Broad understanding of Specific Phenomenon15; (iii) Extra-curricular activities-10 and (iv) General Personality Trait-10, making up in the aggregate-50. The admissions to the college were governed by the procedure laid down in this
Resolution until the academic year 1979-80, when the procedure was slightly changed and it was decided that out of 250 seats, which were available for admission, 50% of the seats shall be reserved for candidates belonging to the Jammu & Kashmir State and the remaining 50% for candidates belonging to other States, including 15 seats reserved for certain categories of students. So far as the seats reserved for candidates belonging to States other than Jammu &
Kashmir were concerned, certain reservations were made for candidates belonging to
Scheduled Castes and Scheduled Tribes and sons and wards of defence personnel killed or disabled during hostilities and it was provided that "inter se merit will be determined on the basis of marks secured in the subjects of English, Physics, Chemistry and Mathematics only".
The provision made with regard to seats reserved for candidates belonging to Jammu &
Kashmir State was that "apart from 2 seats reserved for the sons and daughters of the permanent college employees, reservations shall be made in accordance with the Orders of
Jammu and Kashmir Government for admission to technical institutions and the seats shall be filled up on the basis of comparative merit as determined under the following scheme, both for seats to be filled on open merit and for reserved seats in each category separately; (1) marks for written test-100 and (2) marks for viva voce examination-50, marking up in the aggregate-150. It was not mentioned expressly that the marks for the written test shall be in the subjects of Physics, English, Chemistry and Mathematics nor were the factors to be taken into account in the viva voce examination and the allocation of marks for such factors indicated specifically in the admission procedure laid down for the academic year 1979-80,

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but we were told and this was not disputed on behalf of the petitioners in any of the writ petitions, that the subjects in which the written test was held were English, Physics, Chemistry and Mathematics and the marks at the viva voce examination were allocated under the same four heads and in the same manner as in, the case of admissions under the procedure laid down in the Resolution dated 4th June, 1974.
In or about April 1979, the college issued a notice inviting applications for admission to the first semester of the B.E. course in various branches of engineering and the notice set out the above admission procedure to be followed in granting admissions for the academic year
1979-80. The petitioners in the writ petitions before us applied for admission to the first semester of the B.E. course in one or the other branch of engineering and they appeared in the written test which was held on 16th and 17th June, 1979. The petitioners were thereafter required to appear before a Committee consisting of three persons for viva voce test and they were interviewed by the Committee. The case of the petitioners was that the interview of each of them did not last for more than 2 or 3 minutes per candidate on an average and the only questions which were asked to them were formal questions relating to their parentage and residence and hardly any question was asked which would be relevant to any of the tour factors for which marks were allocated at the viva voce examination. When the admissions were announced, the petitioners found that though they had obtained very good marks in the qualifying examination, they had not been able to secure admission to the college because the marks awarded to them at the viva voce examination were very low and candidates who had much less marks at the qualifying examination, had succeeded in obtaining very high marks at the viva voce examination and thereby managed to secure admission in preference to the petitioners. The petitioners filed before us a chart showing by way of comparison the marks obtained by the petitioners on the one hand and some of the successful candidates on the other at the qualifying examination, in the written test and at the viva voce examination. This chart shows beyond doubt that the successful candidates whose marks are given in the chart had obtained fairly low marks at the qualifying examination as also in the written test, but they had been able to score over the petitioners only on account of very high marks obtained by them at the viva voce examination. The petitioners feeling aggrieved by this mode of selection filed the present writ petitions challenging the validity of the admissions made to the college on various grounds. Some of these grounds stand concluded by the recent decision of this
Court in Nishi Maghu v. State of Jammu & Kashmir, [1980] 3 SCR 1253 and they were therefore not pressed before us. Of the other grounds, only one was canvassed before us and we shall examine it in some detail.
But before we proceed to consider the merits of this ground of challenge, we must dispose of a preliminary objection raised on behalf of the respondents against the maintainability of the writ petition. The respondents contended that the college is run by society which is not a corporation created by a statute but is a society registered under the Jammu & Kashmir
Societies Registration Act, 1898 and it is therefore not an 'authority ' within the meaning of
Article 12 of the Constitution and no writ petition can be maintained against it, nor can any complaint be made that it has acted arbitrarily in the matter of granting admissions and violated the equality clause of the Constitution.
Now it is obvious that the only ground on which the validity of the admissions to the college can be assailed is that the society adopted an arbitrary procedure for selecting candidates for admission to the college and this resulted in denial of equality to the petitioners in the matter of admission violative of Article 14 of the Constitution. It would appear that prima facie protection against infraction of Article 14 is available only against the State and complaint of arbitrariness and denial of equality can therefore be sustained against the society only if the society can be shown to be State for the purpose of Article 14. Now 'State ' is defined

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in Article 12 to include inter alia the Government of India and the Government of each of the
States and all local or other authorities within the territory of India or under the control of the
Government of India and the question therefore is whether the Society can be said to be 'State ' within the meaning of this definition. Obviously the Society cannot be equated with the
Government of India or the Government of any State nor can it be said to be a local authority and therefore, it must come within the expression "other authorities" if it is to fall within the definition of 'State '. That immediately leads us to a consideration of the question as to what are the "other authorities" contemplated in the definition of 'State ' in Article 13.
While considering this question it is necessary to bear in mind that an authority falling within the expression "other authorities" is, by reason of its inclusion within the definition of 'State ' in Article 12, subject to the same constitutional limitations as the Government and is equally bound by the basic obligation to obey the constitutional mandate of the Fundamental
Rights enshrined in Part III of the Constitution. We must therefore give such an interpretation to the expression "other authorities" as will not stultify the operation and reach of the fundamental rights by enabling the Government to its obligation in relation to the Fundamental
Rights by setting up an authority to act as its instrumentality or agency for carrying out its functions. Where constitutional fundamentals vital to the maintenance of human rights are at stake, functional realism and not facial cosmetics must be the diagnostic tool, for constitutional law must seek the substance and not the form.
Now it is obvious that the Government may act through the instrumentality or agency of natural persons or it may employ the instrumentality or agency of juridical persons to carry out its functions. In the early days when the Government had limited functions, it could operate effectively through natural persons constituting its civil service and they were found adequate to discharge governmental functions which were of traditional vintage. But as the tasks of the Government multiplied with the advent of the welfare State, it began to be increasingly felt that the frame work of civil service was not sufficient to handle the new tasks which were often specialised and highly technical in character and which called for flexibility of approach and quick decision making. The inadequacy of the civil service to deal with these new problems came to be realised and it became necessary to forge a new instrumentality or administrative device for handling these new problems. It was in these circumstances and with a view to supplying this administrative need that the corporation came into being as the third arm of the Government and over the years it has been increasingly utilised by the Government for setting up and running public enterprises and carrying out other public functions.
Today with increasing assumption by the Government of commercial ventures and economic projects, the corporation has become an effective legal contrivance in the hands of the Government for carrying out its activities, for it is found that this legal facility of corporate instrument provides considerable flexibility and elasticity and facilitates proper and efficient management with professional skills and on business principles and it is blissfully free from
"departmental rigidity, slow motion procedure and hierarchy of officers". The Government in many of its commercial ventures and public enterprises is resorting to more and more frequently to this resourceful legal contrivance of a corporation because it has many practical advantages and at the same time does not involve the slightest diminution in its ownership and control of the undertaking. In such cases "the true owner is the State, the real operator is the
State and the effective controllorate is the State and accountability for its actions to the community and to Parliament is of the State."
It is undoubtedly true that the corporation is a distinct juristic entity with a corporate structure of its own and it carries on its functions on business principles with a certain amount of autonomy which is necessary as well as useful from the point of view of effective business management, but behind the formal ownership which is cast in the corporate mould, the reality

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is very much the deeply pervasive presence of the Government. It is really the Government which acts through the instrumentality or agency of the corporation and the juristic veil of corporate personality worn for the purpose of convenience of management and administration cannot be allowed to obliterate the true nature of the reality behind which is the Government.
Now it is obvious that if a corporation is an instrumentality or agency of the Government, it must be subject to the same limitations in the field of constitutional law as the Government itself, though in the eye of the law it would be a distinct and independent legal entity.
If the Government acting through its officers is subject to certain constitutional limitations, it must follow a fortiorari that the Government acting through the instrumentality or agency of a corporation should equally be subject to the same limitations. If such a corporation were to be free from the basic obligation to obey the Fundamental Rights, it would lead to considerable erosion of the efficiency of the Fundamental Rights, for in that event the
Government would be enabled to over-ride the Fundamental Rights by adopting the stratagem of carrying out its functions through the instrumentality or agency of a corporation, while retaining control over it. The Fundamental Rights would then be reduced to little more than an idle dream or a promise of unreality. It must be remembered that the Fundamental Rights are constitutional guarantees given to the people of India and are not merely paper hopes or fleeting promises and so long as they find a place in the Constitution, they should not be allowed to be emasculated in their application by a narrow and constricted judicial interpretation. The courts should be anxious to enlarge the scope and width of the Fundamental
Rights by bringing within their sweep every authority which is an instrumentality or agency of the Government or through the corporate personality of which the Government is acting, so as to subject the Government in all its myriad activities, whether through natural persons or through corporate entities, to the basic obligation of the Fundamental Rights.
The constitutional philosophy of a democratic socialist republic requires the Government to undertake a multitude of socio-economic operations and the Government, having regard to the practical advantages of functioning through the legal device of a corporation, embarks on myriad commercial and economic activities by resorting to the instrumentality or agency of a corporation, but this contrivance of carrying on such activities through a corporation cannot exonerate the Government from implicit obedience to the Fundamental Rights. To use the corporate methodology is not to liberate the Government from its basic obligation to respect the Fundamental Rights and not to over-ride them. The mantle of a corporation may be adopted in order to free the Government from the inevitable constraints of red-tapism and slow motion but by doing so, the Government cannot be allowed to play truant with the basic human rights. Otherwise it would be the easiest thing for the government to assign to a plurality of corporations almost every State business such as Post and Telegraph, TV and
Radio, Rail Road and Telephones-in short every economic activity-and thereby cheat the people of India out of the Fundamental Rights guaranteed to them. That would be a mockery of the Constitution and nothing short of treachery and breach of faith with the people of India, because, though apparently the corporation will be carrying out these functions, it will in truth and reality be the Government which will be controlling the corporation and carrying out these functions through the instrumentality or agency of the corporation. We cannot by a process of judicial construction allow the Fundamental Rights to be rendered futile and meaningless and thereby wipe out Chapter III from the Constitution. That would be contrary to the constitutional faith of the post-Menka Gandhi era. It is the Fundamental Rights which along with the Directive Principles constitute the life force of the Constitution and they must be quickened into effective action by meaningful and purposive interpretation. If a corporation is found to be a mere agency or surrogate of the Government, "in fact owned by the
Government, in truth controlled by the government and in effect an incarnation of the government," the court must not allow the enforcement of Fundamental Rights to be frustrated

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by taking the view that it is not the government and therefore not subject to the constitutional limitations. We are clearly of the view that where a corporation is an instrumentality or agency of the government, it must be held to be an 'authority ' within the meaning of Article 12 and hence subject to the same basic obligation to obey the Fundamental Rights as the government.
We may point out that this very question as to when a corporation can be regarded as an 'authority ' within the meaning of Article 12 arose for consideration before this Court in R.D.
Shetty v. International Airport Authority of India, [1979] 1 S.C.R.1042 There, in a unanimous judgment of three Judges delivered by one of us (Bhagwati, J) this Court pointed out:
So far as India is concerned, the genesis of the emergence of corporations as instrumentalities or agencies of Government is to be found in the
Government of India Resolution on Industrial Policy dated 6th April,
1948 where it was stated inter alia that "management of State enterprises will as a rule be through the medium of public corporation under the statutory control of the Central Government who will assume such powers as may be necessary to ensure this." It was in pursuance of the policy envisaged in this and subsequent resolutions on Industrial policy that corporations were created by Government for setting up and management of public enterprises and carrying out other public functions. Ordinarily these functions could have been carried out by
Government departmentally through its service personnel but the instrumentality or agency of the corporation was resorted to in these cases having regard to the nature of the task to be performed. The corporations acting as instrumentality or agency of Government would obviously be subject to the same limitations in the field of constitutional and administrative law as Government itself, though in the eye of the law, they would be distinct and independent legal entities. If Government acting through its officers is subject to certain constitutional and public law limitations, it must follow a fortiori that Government acting through instrumentality or agency of corporations should equally be subject to the same limitations.

The Court then addressed itself to the question as to how to determine whether a corporation is acting as an instrumentality or agency of the Government and dealing with that question, observed: A corporation may be created in one of two ways. It may be either established by statute or incorporated under a law such as the Companies
Act 1956 or the Societies Registration Act 1860. Where a Corporation is wholly controlled by Government not only in its policy making but also in carrying out the functions entrusted to it by the law establishing it or by the Charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of Government. But ordinarily where a corporation is established by statute, it is autonomous in its working, subject only to a provision, often times made, that it shall be bound by any directions that may be issued from time to time by Government in respect of policy matters. So also a corporation incorporated under law is managed by a board of directors or committee of management in accordance with the provisions of the statute under which it is incorporated. When does such a corporation become an instrumentality or agency of Government? Is the holding of the entire share capital of the Corporation by Government enough or is it necessary that in addition there should be a certain amount of direct control exercised by
Government and, if so what should be the nature of such control? Should the functions which the Corporation is charged to carry out possess any particular characteristic or feature, or is the nature of the functions immaterial? Now, one thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of

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Government. But, as is quite often the case, a corporation established by statute may have no shares or shareholders, in which case it would be a relevant factor to consider whether the administration is in the hands of a board of directors appointed by Government though this consideration also may not be determinative, because even where the directors are appointed by Government, they may be completely free from governmental control in the discharge of their functions. What then are tests to determine whether a corporation established by statute or incorporated under law is an instrumentality or agency of Government?
It is not possible to formulate an inclusive or exhaustive test which would adequately answer this question. There is no cut and dried formula, which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those which are not.

The Court then proceeded to indicate the different tests, apart from ownership of the entire share capital:
...if extensive and unusual financial assistance is given and the purpose of the
Government in giving such assistance coincides with the purpose for which the corporation is expected to ' use the assistance and such purpose is of public character, it may be a relevant circumstance supporting an inference that the corporation is an instrumentality or agency of Government.... It may therefore be possible to say that where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character....
But a finding of State financial support plus an unusual degree of control over the management and policies might lead one to characterise an operation as State action-Vide Sukhdev v. Bhagatram … So also the existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality. It may also be a relevant factor to consider whether the corporation enjoys monopoly status which is State conferred or State protected. There can be little doubt that State conferred or State protected monopoly status would be highly relevant in assessing the aggregate weight of the corporation 's ties to the State.

There is also another factor which may be regarded as having a bearing on this issue and it is whether the operation of the corporation is an important public function. It has been held in the United States in a number of cases that the concept of private action must yield to a conception of State action where public functions are being performed. Vide Arthur S. Miller:
"The Constitutional Law of the Security State" (10 Stanford Law Review 620 at 664).
It may be noted that besides the so-called traditional functions, the modern state operates as multitude of public enterprises and discharges a host of other public functions. If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. This is precisely what was pointed out by Mathew, J., in Sukhdev v.
Bhagatram (supra) where the learned Judge said that "institutions engaged in matters of high public interest of performing public functions are by virtue of the nature of the functions performed government agencies. Activities which are too fundamental to the society are by definition too important not to be considered government functions.
The court however proceeded to point out with reference to the last functional test:
...the decisions show that even this test of public or governmental character of the function is not easy of application and does not invariably lead to the correct inference because the range of governmental activity is broad and varied and merely because an activity may be such as may legitimately be carried on by Government, it does not mean that a corporation, which is otherwise a private entity, would

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be an instrumentality or agency of Government by reason of carrying on such activity. In fact, it is difficult to distinguish between governmental functions and non-governmental functions. Perhaps the distinction between governmental and non-governmental functions is not valid any more in a social welfare State where the laissez faire is an outmoded concept and Herbert Spencer 's social statics has no place. The contrast is rather between governmental activities which are private and private activities which are governmental. [Mathew, J. Sukhdev v. Bhagatram
(supra) at p. 652]. But the public nature of the function, if impregnated with governmental character or "tied or entwined with Government" or fortified by some other additional factor, may render the corporation an instrumentality or agency of Government. Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of the inference.

These observations of the court in the International Airport Authority 's case (supra) have our full approval.
The tests for determining as to when a corporation can be said to be a instrumentality or agency of Government may now be called out from the judgment in the International Airport
Authority 's case. These tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression "other authorities", it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the International Airport Authority 's case as follows:
(1) One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.
(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.
(3) It may also be a relevant factor...whether the corporation enjoys monopoly status which is the State conferred or State protected.
(4) Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.
(5) If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.
(6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government.
If on a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of government, it would, as pointed out in the International Airport
Authority 's case, be an 'authority ' and, therefore, 'State ' within the meaning of the expression in Article 12.
………

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We may point out that it is immaterial for this purpose whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the
Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The corporation may be a statutory corporation created by a statute or it may be a Government Company or a company formed under the Companies Act, 1956 or it may be a society registered under the Societies
Registration Act, 1860 or any other similar statute. Whatever be its genetical origin, it would be an "authority" within the meaning of Article 12 if it is an instrumentality or agency of the
Government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression "authority" in Article 12.
It is also necessary to add that merely because a juristic entity may be an "authority" and therefore "State" within the meaning of Article 12, it may not be elevated to the position of
"State" for the purpose of Articles 309, 310 and 311 which find a place in Part XIV. The definition of "State" in Article 12 which includes an "authority" within the territory of India or under the control of the Government of India is limited in its application only to Part III and by virtue of Article 36, to Part IV. It does not extend to the other provisions of the
Constitution and hence a juristic entity which may be "State" for the purpose of Parts III and
IV would not be so for the purpose of Part XIV or any other provision of the Constitution.
That is why the decisions of this Court in S. L. Aggarwal v. Hindustan Steel Ltd. [1970] 3
S.C.R. 365 and other cases involving the applicability of Article 311 have no relevance to the issue before us.
………
It is in the light of this discussion that we must now proceed to examine whether the
Society in the present case is an "authority" falling within the definition of "State" in
Article 12. Is it an instrumentality or agency of the Government? The answer must obviously be in the affirmative if we have regard to the Memorandum of Association and the Rules of the Society. The composition of the Society is dominated by the representatives appointed by the Central Government and the Governments of Jammu & Kashmir, Punjab, Rajasthan and
Uttar Pradesh with the approval of the Central Government. The monies required for running the college are provided entirely by the Central Government and the Government of Jammu
& Kashmir and even if any other monies are to be received by the Society, it can be done only with the approval of the State and the Central Governments. The Rules to be made by the
Society are also required to have the prior approval of the State and the Central Governments and the accounts of the Society have also to be submitted to both the Governments for their scrutiny and satisfaction. The Society is also to comply with all such directions as may be issued by the State Government with the approval of the Central Government in respect of any matters dealt with in the report of the Reviewing Committee. The control of the State and the Central Governments is indeed so deep and pervasive that no immovable property of the
Society can be disposed of in any manner without the approval of both the Governments. The
State and the Central Governments have even the power to appoint any other person or persons to be members of the Society and any member of the Society other than a member representing the State or the Central Government can be removed from the membership of the Society by the State Government with the approval of the Central Government. The Board of Governors, which is in charge of general superintendence, direction and control of the affairs of Society and of its income and property is also largely controlled by nominies of the State and the

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Central Governments. It will thus be seen that the State Government and by reason of the provision for approval, the Central Government also, have full control of the working of the
Society and it would not be incorrect to say that the Society is merely a projection of the State and the Central Governments and to use the words of Ray, C.J. in Sukhdev Singh 's case
(supra), the voice is that of the State and the Central Governments and the hands are also of the State and the Central Governments. We must, therefore, hold that the Society is an instrumentality or agency of the State and the Central Governments and it is an 'authority ' within the meaning of Article 12.
… [Discussion on Article 14 and non arbitrariness in State Action has been omitted] …

DALCO ENGINEERING V. S. P. PADHYE
AIR 2010 SC 1576, (2010) 4 SCC 378
Decided On: March 31, 2010
BENCH – JUSTICES R. V. RAVEENDRAN, R. M. LODHA & C. K. PRASAD

JUSTICE RAVEENDRAN (FOR THE COURT)
… [One Mr. S. P. Padhye was in employment of a private limited company (incorporated under the Companies Act, 1956) for more than 20 years. The private company terminated the employment of Padhye because he had become deaf. Padhye approached the Disability Commissioner alleging that when he joined the service, he was fit and able and the hearing impairment that he had acquired was acquired during the period of service, thus, instead of terminating his employment, he should have been given alternate employment of a suitable nature. The Disability Commissioner found in favor of Padhye and suggested that the private company to re-employ Padhye. The company rejected the suggestion.
Padhye then approached the High Court arguing that the Commissioner should have made an order under Section 47 of the Person with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 (‘the 1995 Act’) and accordingly prayed that the the private company should be directed to re-employ him in a suitable post. The High Court allowed the Writ Petition and held that the private company was an ‘establishment’ as defined in Section 2(k) of the 1995 Act.
The private company brought the case to the Supreme Court arguing that they do not fall with the scope of an ‘establishment’ as defined in Section 2(k) of the 1995 Act. Article 12 of the Constitution and the doctrine of the Court on the point was then used to interpret provisions of the 1995 Act to decide whether a private company could come within the scope of an ‘establishment’ as defined therein.] …

Questions for decision
4. The employee relies on Section 47 which provides that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. Section 47 of the Act is extracted below:
47. Non-discrimination in Government employment.--(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:

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Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
(2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.
The term "establishment" employed in Section 47 is defined in Section 2(k) of the
Act as follows:
2. Definitions.--In this Act, unless the context otherwise requires, xxxxx
(k) "establishment" means a corporation established by or under a Central,
Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in
Section 617 of the Companies Act 1956 (1 of 1956) and includes Departments of a Government;

The question is, having regard to the definition of the word `establishment ' of
Section 2(k) of the Act, whether the requirement relating to non-discrimination of employees acquiring a disability during the course of service, embodied in Section 47, is to be complied with only by authorities falling within the definition of State (as defined in Article 12 of the
Constitution), or even by private employers. This leads us to the following two questions:
(i) Whether a company incorporated under the Companies Act (other than a Government company as defined in Section 617 of the Companies Act, 1956) is an "establishment" as defined in Section 2(k) of the Act?
(ii) Whether the respondent in the first case and the appellant in the second case are entitled to claim any relief with reference to Section 47 of the Act?
Re: Question (i)
Let us examine the meaning of the crucial word `establishment ' used in Sub-section (1) of
Section 47 of the Act. The definition of the word `establishment ' in Section2(k), when analyzed, shows that it is an exhaustive definition, and covers the following categories of employers: (i) a corporation established by or under a Central, Provincial, or State Act;
(ii) an authority or a body owned or controlled or aided by the Government;
(iii) a local authority;
(iv) a Government company as defined in Section 617 of the Companies Act, 1956; and
(v) Departments of a Government.
It is not in dispute that the employers in these two cases are companies incorporated under the Companies Act, 1956 which do not fall under categories (ii) to (v) specified in
Section 2(k) of the Act.
The employee contends that a company incorporated under the Companies Act is a
Corporation falling under the first category enumerated in Section 2(k), that is `Corporation established by or under a Central, Provincial or State Act ', on the following reasoning : that a corporation refers to a company; that Companies Act is a Central Act; and that therefore a company incorporated and registered under the Companies Act is a Corporation established

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under a Central Act. He contends that the use of the words "by or under" is crucial. According to him, `a corporation established by an Act ' would refer to a corporation brought into existence by an Act; and a `corporation established under an Act ' would refer to a company incorporated under the Companies Act. On the other hand, the employer contends that the term `Corporation established by or under a Central, Provincial or State Act ' refers to a statutory Corporation which is brought into existence by a statute, or under a statute and does not include a company which is registered under the Companies Act. It is submitted that
Companies Act merely facilitates and lays down the procedure for incorporation of a company which, when incorporated, will be governed by the provisions of the said Act and therefore, a company registered under the Companies Act, is not a corporation established under an Act.
The words "a Corporation established by or under a Central, Provincial or State Act" is a standard term used in several enactments to denote a statutory corporation established or brought into existence by or under statute. For example, it is used in Sub-clause (b) of
Clause Twelfth of Section 21 of the Indian Penal Code (`IPC ' for short) and Section 2(c)(iii) of the Prevention of Corruption Act, 1988 (`PC Act ' for short). Both these statutes provide that a person in the service of a `Corporation established by or under a Central, Provincial or
State Act ' is a public servant. The Prevention of Damage to Public Property Act, 1984 defines
`public property ' as meaning any property owned by, or in the possession of, or under the control of (i) the Central Government (ii) any state government; or (iii) any local authority; or
(iv) any corporation established by, or under, a Central, Provincial or State Act; or (v) any company as defined in Section 617 of the Companies Act, 1956; or (vi) any institution, concern or undertaking which the Central Government may, by notification in the Official
Gazette, specify in that behalf provided that the Central Government shall not specify any institution, concern or undertaking under that sub- clause unless such institution, concern or undertaking is financed wholly or substantially by funds provided directly or indirectly by the
Central Government or by one or more State Governments, or partly by the Central
Government and partly by one or more State Governments. Thus the term is always used to denote certain categories of authorities which are `State ' as contrasted from non-statutory companies which do not fall under the ambit of `State '.
9. The meaning of the term came up for consideration in S.S. Dhanoa v. Municipal
Corporation, Delhi, 1981 (3) SCC 431 with reference to Section 21 of IPC. This Court held:
Clause Twelfth does not use the words "body corporate", and the question is whether the expression "corporation" contained therein, taken in collocation of the words "established by or under a Central, Provincial or State Act" would bring within its sweep a cooperative society. Indubitably, the Cooperative Store Limited is not a corporation established by a Central or State Act. The crux of the matter is whether the word 'under ' occurring in Clause Twelfth of Section 21 of the Indian
Penal Code makes a difference. Does the mere act of incorporation of a body or society under a Central or a State Act make it a corporation within the meaning of Clause Twelfth of Section 21. In our opinion, the expression 'corporation ' must, in the context, mean a corporation created by the Legislature and not a body or society brought into existence by an act of a group of individuals. A cooperative society is, therefore, not a corporation established by or under an Act of the
Central or State Legislature.
A corporation is an artificial being created by law having a legal entity entirely separate and distinct from the individuals who compose it with the capacity of continuous existence and succession, notwithstanding changes in its membership.... The term 'corporation ' is, therefore, wide enough to include private corporations. But, in the context of Clause Twelfth of Section21 of the Indian
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Corporation, in its widest sense, may mean any association of individuals entitled to act as an individual. But that certainly is not the sense in which it is used here. Corporation established by or under an Act of Legislature can only mean a body corporate which owes its existence, and not merely its corporate status, to the Act. For example, a Municipality, a Zilla Parishad or a Gram Panchayat owes its existence and status to an Act of Legislature. On the other hand, an association of persons constituting themselves into a Company under the Companies Act or a Society under the Societies Registration Act owes its existence not to the Act of
Legislature but to acts of parties though, it may owe its status as a body corporate to an Act of Legislature.
There is a distinction between a corporation established by or under an Act and a body incorporated under an Act. The distinction was brought out by this Court in Sukhdev Singh v. Bhagatram, (1975) 1 SCC 421. It was observed:
A company incorporated under the Companies Act is not created by the
Companies Act but comes into existence in accordance with the provisions of the
Act.
There is thus a well-marked distinction between a body created by a statute and a body which, after coming into existence, is governed in accordance with the provisions of a statute.
(emphasis supplied)

In Executive Committee of Vaish Degree College v. Lakshmi Narain, 1976 (2) SCC 58, this Court explained the position further:
In other words the position seems to be that the institution concerned must owe its very existence to a statute which would be the fountainhead of its powers. The question in such case to be asked is, if there is no statute, would the institution have any legal existence. If the answer is in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body.
(emphasis supplied)

A `company ' is not `established ' under the Companies Act. An incorporated company does not `owe ' its existence to the Companies Act. An incorporated company is formed by the act of any seven or more persons (or two or more persons for a private company) associated for any lawful purpose subscribing their names to a Memorandum of Association and by complying with the requirements of the Companies Act in respect of registration. Therefore, a `company ' is incorporated and registered under the Companies Act and not established under the Companies Act. Per contra, the Companies Act itself establishes the National Company
Law Tribunal and National Company Law Appellate Tribunal, and those two statutory authorities owe their existence to the Companies Act.
Where the definition of `establishment ' uses the term `a corporation established by or under an Act ', the emphasis should be on the word `established ' in addition to the words `by or under '. The word `established ' refers to coming into existence by virtue of an enactment. It does not refer to a company, which, when it comes into existence, is governed in accordance with the provisions of the Companies Act. But then, what is the difference between
`established by a central Act ' and `established under a central Act '?
The difference is best explained by some illustrations. A corporation is established by an
Act, where the Act itself establishes the corporation. For example, Section 3 of State Bank of
India Act, 1955 provides that a Bank to be called the State Bank of India shall be constituted to carry on the business of banking. Section 3 of Life Insurance Corporation Act, 1956 provides that with effect from such date as the Central Government may by notification in the
Official Gazette appoint, there shall be established a corporation called the Life Insurance

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Corporation of India. State Bank of India and Life Insurance Corporation of India are two examples of corporations established by "a Central Act". We may next refer to the State
Financial Corporation Act, 1951 which provides for establishment of various Financial
Corporations under that Act. Section 3 of that Act relates to establishment of State Financial
Corporations and provides that the State Government may, by notification in the Official
Gazette establish a Financial Corporation for the State under such name as may be specified in the notification and such Financial Corporation shall be a body corporate by the name notified. Thus, a State Financial Corporation is established under a central Act. Therefore, when the words "by and under an Act" are preceded by the words "established", it is clear that the reference is to a corporation established, that it is brought into existence, by an Act or under an Act. In short, the term refers to a statutory corporation as contrasted from a nonstatutory corporation incorporated or registered under the Companies Act.
There is indication in the definition of `establishment ' itself, which clearly establishes that all companies incorporated under the Companies Act are not establishments. The enumeration of establishments in the definition of `establishment ' specifically includes "a Government
Company as defined in Section 617 of the Companies Act, 1956". This shows that the legislature, took pains to include in the definition of `establishment ' only one category of companies incorporated under the Companies Act, that is the `Government Companies ' as defined in Section 617 of the Companies Act. If, as contended by the employee, all Companies incorporated under the Companies Act are to be considered as `establishments ' for the purposes of Section 2(k), the definition would have simply and clearly stated that `a company incorporated or registered under the Companies Act, 1956 ' which would have included a
Government company defined under Section 617 of the Companies Act, 1956. The inclusion of only a specific category of companies incorporated under the Companies Act, 1956 within the definition of `establishment ' necessarily and impliedly excludes all other types of companies registered under the Companies Act, 1956, from the definition of `establishment '.
It is clear that the legislative intent was to apply Section 47 of the Act only to such establishments as were specifically defined as `establishment ' under Section 2(k) of the Act and not to other establishments. The legislative intent was to define `establishment ' so as to be synonymous with the definition of `State ' under Article 12 of the Constitution of India.
Private employers, whether individuals, partnerships, proprietary concerns or companies
(other than Government companies) are clearly excluded from the `establishments ' to which
Section 47 of the Act will apply.
There is yet another indication in Section 47, that private employers are excluded. The caption/ marginal note of Section 47 describes the purport of the section as non-discrimination in Government employment. The word `government ' is used in the caption, broadly to refer to
`State ' as defined in Article 12 of the Constitution. If the intention of the legislature was to prevent discrimination of persons with disabilities in any kind of employment, the marginal note would have simply described the provision as `non-discrimination in employment ' and
Sub-section (1) of Section 47 would have simply used the word `any employer ' instead of using the word `establishment ' and then taking care to define the word `establishment '. The non-use of the words `any employer ', and `any employment ' and specific use of the words
`Government employment ' and `establishment ' (as defined), demonstrates the clear legislative intent to apply the provisions of Section 47 only to employment under the State and not to employment under others. While the marginal note may not control the meaning of the body of the section, it usually gives a safe indication of the purport of the section to the extent possible. Be that as it may.
The learned Counsel for the employee submitted that the decision in Dhanoa was rendered with reference to a penal statute; and that words or terms in such statutes are used in a

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restrictive and strict sense. He contended that definition of words and terms in a penal statute will not provide a safe guide to interpret the same words employed in socio-economic legislations. He further contended that the terms used in a socio-economic statute like
Disabilities Act, providing for full participation and equality, for people with disabilities and to remove any discrimination against them vis-à-vis non- disabled persons, should be interpreted liberally. He submitted that any interpretation of the term `a corporation established by or under a central, provincial or state Act ' with reference to the Penal Code should not therefore be imported for understanding the meaning of that term when used in the
Act. He referred to and relied upon the Statement of Objects and Reasons of the Act which states that India as a signatory to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region, enacted the Statute to provide for the following:
(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-à-vis non-disabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities; (v) to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and
(vi) to make special provision of the integration of persons with disabilities into the social mainstream.

He submitted that keeping the said objects in view, the term `establishment ' should be extended to all corporations incorporated under the Companies Act 1956, irrespective of whether they are in the public sector or private sector. He also relied upon the following principle of contextual interpretation enunciated by this Court in Reserve Bank of India v.
Peerless General Finance and Investment Co. Ltd., 1987 (1) SCC 424:
Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say is the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. The interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.

He next relied upon the principle that words in a social welfare legislation should receive liberal and broad interpretation, stated by this Court in Workman of American Express
International Banking Corporation v. Management of American Express International
Banking Corporation, 1985 (4) SCC 71:
The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and human rights legislation are not to be put in Procrustean beds or shrunk to Liliputian

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dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognized and reduced. Judges ought to be more concerned with the `colour ', the `content ' and the `context ' of such statutes (we have borrowed the words from Lord
Wilberforce 's opinion in Prenn v. Simmonds 1971 (3) All ER 237). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. In one of the cases cited before us, that is, Surendra Kumar Verma v. Central Government Industrial Tribunal-cumLabour Court, (1981) 1 SCR 789, we had occasion to say, Semantic luxuries are misplaced in the interpretation of "bread and butter" statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions.

He next relied upon the following observations in Kunal Singh v. Union of India, 2003 (4)
SCC 524, where this Court, referring to the very section under consideration, observed thus:
Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service. We agree that the socio-economic legislations should be interpreted liberally. It is also true that Courts should adopt different yardsticks and measures for interpreting socioeconomic statutes, as compared to penal statutes, and taxing statutes. But a caveat. The courts cannot obviously expand the application of a provision in a socio-economic legislation by judicial interpretation, to levels unintended by the legislature, or in a manner which militates against the provisions of the statute itself or against any constitutional limitations. In this case, there is a clear indication in the statute, that the benefit is intended to be restricted to a particular class of employees, that is employees of enumerated establishments (which fall within the scope of ‘state’ under Article 12). Express limitations placed by the socio-economic statute cannot be ignored, so as to include in its application, those who are clearly excluded by such statute itself. We should not lose sight of the fact that the words "corporation established by or under a Central, Provincial or State Act" is a term used in several enactments, intended to convey a standard meaning. It is not a term which has any special significance or meaning in the context of the Disabilities Act or any other socio-economic legislations. It is a term used in various enactments, to refer to statutory corporations as contrasted from nonstatutory companies. Any interpretation of the said term, to include private sector, will not only amount to overruling the clear enunciation in Dhanoa which has held the field for nearly three decades, but more importantly lead to the erasure of the distinction maintained in the
Constitution between statutory corporations which are `state ' and non-statutory bodies and corporations, for purposes of enforcement of fundamental rights. The interpretation put forth by the employee would make employees of all companies, public servants, amenable to punishment under the provisions of Indian Penal Code and Prevention of Corruption Act; and would also result in all non-statutory companies and private sector companies being included in the definition of ‘State’ thereby requiring them to comply with the requirements of nondiscrimination, equality in employment, reservations etc.
The appellant next contended that the scheme of the Act, does not confine its applicability to government or statutory corporations. Reference is invited to some provisions of the Act to

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contend that obligations/duties/ responsibilities are fixed with reference to persons with disabilities, on establishments other than those falling under Section 2(k) of the Act. It was submitted that Section 39 casts an obligation on all educational institutions, to reserve not less than three percent of the seats for persons with disabilities. In fact, it is not so. Though, the marginal note of Section 29 uses the words `all educational institutions ' with reference to reservation of seats for persons with disabilities, the section makes it clear that only government educational institutions and educational institutions receiving aid from the government shall reserve not less than three percent seats for persons with disabilities. It is well recognized that an aided private school would be included within the definition of ‘State’ in regard to its acts and functions as an instrumentality of the State. Therefore, care is taken to apply the provisions of the Act to only educational institutions belonging to the government or receiving aid from the government and not to unaided private educational institutions.
Further, Section 39 of the Act, does not use the word ‘establishment’.
Reference is next made to the Section 44 which requires non-discrimination in transport.
This section requires establishments in the transport sector to take special measures (within the limits of their economic capacity) to permit easy access to persons with disabilities. The employee contends that this would mean that all establishments whether statutory corporations falling under the definition of Section 2(k) of the Act or non-statuary corporations, or even individuals operating in the transport sector should comply with Section 44 of the Act. We do not propose to consider whether Section 44 applies to non-statutory corporations in the transport sector, as that issue does not arise in this case. Further the use of the words "within the limits of their economic capacity" makes it virtually directory. Be that as it may.
Re : Question (ii)
As the appellant in CA No. 1886/2007 and the third respondent in CA No. 1858/2007, are not establishments, within the meaning of that expression in Section 2(k) of the Act,
Section 47 of the Act will not apply. In so far the CA No. 1858 of 2007, there is an additional factor. Third respondent therein was not the employer of any persons with disability.
Therefore, in that case, the entire question is academic. In neither of the cases, any relief can be granted under Section 47 of the Act.
Therefore CA No. 1886 of 2007 is allowed and CA No. 1858 of 2007 is dismissed resulting in the dismissal of the respective writ petitions. This will not come in the way of employee of any private company, who has been terminated on the ground of disability, seeking or enforcing any right available under any other statute, in accordance with the law.

PRADEEP KUMAR BISWAS V. INDIAN INSTITUTE OF CHEMICAL BIOLOGY
(2002) 5 SCC 111
Decided On: April 16, 2002
BENCH – CHIEF JUSTICE S. P. BHARUCHA, JUSTICES S. M. QUADRI, R. C. LAHOTI, N. S.
HEGDE, D. RAJU, RUMA PAL & ARIJIT PASAYAT

JUSTICE RUMA PAL (FOR THE CHIEF JUSTICE, JUSTICES QUADRI, HEGDE, PASAYAT AND
HERSELF, MAJORITY OPINION)
In 1972 Sabhajit Tewary, a Junior Stenographer with the Council of Scientific and
Industrial Research (CSIR) filed a write petition under Article 32 of the Constitution claiming parity of remuneration with the stenographers who were newly recruited to the CSIR. His

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claim was based on Article 14 of the Constitution. A Bench of five judges of this Court denied him the benefit of that Article because they held in Sabhajit Tewari v. Union of India that the writ application was not maintainable against CSIR as it was not an "authority" within the meaning of Article 12 of the Constitution. The correctness of the decision is before us for reconsideration.
The immediate cause for such re-consideration is a writ application filed by the appellant in Calcutta High Court challenging the termination of their services by the respondent no. 1 which is a unit of CSIR. They prayed for an interim order before the learned Single Judge.
That was refused by the Court on the prima view that the writ application was itself not maintainable against the respondent no. 1. The appeal was also dismissed in view of the decision of this Court in Sabhajit Tewary 's case.
Challenging the order of the Calcutta High Court, the appellants filed an appeal by way of special leave before this Court. On 5th August, 1986 a Bench of two Judges of this Court referred the matter to a Constitution Bench being of the view that the decision in Sabhajit
Tewary required re-consideration "having regard to the pronouncement of this Court in several subsequent decisions in respect of several other institutes of similar nature set up by the Union of India".
The questions therefore before us are – is the CSIR a State within the meaning of
Article 12 of the Constitution and if it is should this Court reverse a decision which has stood for over a quarter of a century?
The Constitution has to an extent defined the word 'State ' in Article 12 itself as including:
"the Government and Parliament of India and the Government and the Legislature of each of the State and all local or other authorities within the territory of India or under thecontrol of the Government of India".

That an 'inclusive ' definition is generally not exhaustive is a statement of the obvious and as far as Article 12 is concerned, has been so held by this Court. The words 'State ' and 'Authority ' used in Article 12 therefore remain, to use the words of Cardozo, among "the great generalities of the Constitution" the content of which has been and continues to be supplied by Courts from time to time.
It would be a practical impossibility and an unnecessary exercise to note each of the multitude of decisions on the point. It is enough for our present purposes to merely note that the decisions may be categorized broadly into those which express an arrow and those that express a more liberal view and to consider some decisions of this Court as illustrative of this apparent divergence. In the ultimate analysis the difference may perhaps be attributable to different stages in the history of the development of the law by judicial decisions on the subject. But before considering the decisions in must be emphasized that the significance of
Article 12 lies in the fact that it occurs in Part III of the Constitution which deals with fundamental rights. The various Articles in Part-III have placed responsibilities and obligations on the 'State ' vis-à-vis the individual to ensure constitutional protection of the individual 's rights against the state, including the right to equality under Article 14 and equality of opportunity in matters of public employment under Article 16 and most importantly the right to enforce all or any of the fundamental rights against the 'State ' as defined in Article 12 either under Article 32 by this Court or under Article 226 by the High
Courts by issuance of writs or directions or orders.
The range and scope of Article 14 and consequently Article 16 have widened by a process of judicial interpretation so that the right to equality now not only means the right not to be

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discriminated against but also protection against any arbitrary or irrational act of the State. It has been said that:
"Article 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment".

Keeping pace with this broad approach to the concept of equality under Article 14 and 16,
Courts have whenever possible, sought to curb an arbitrary exercise of power against individuals by 'centers of power ', and there was correspondingly an expansion in the judicial definition of 'State ' in Article 12.
Initially the definition of State was treated as exhaustive and confined to the authorities or those which could be read ejusdem generis with the authorities mentioned in the definition of Article 12 itself. The next stage was reached when the definition of 'State ' came to be understood with reference to the remedies available against it. For example, historically, a writ of mandamus was available for enforcement of statutory duties or duties of a public nature.
Thus a statutory corporation, with regulations farmed by such Corporation pursuant to statutory powers was considered a State, and the public duty was limited to those which were created by statute.
The decision of the Constitution Bench of this Court in Rajasthan Electricity Board
v. Mohan Lal is illustrative of this. The question there was whether the Electricity Board – which was a Corporation constituted under a statute primarily for the purpose of carrying on commercial activities could come within the definition of 'State ' in Article 12. After considering earlier decisions, it was said:
"These decisions of the Court support our view that the expression "other authorities" in Article 12 will include all constitutional or statutory authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purpose of carrying on commercial activities".

It followed that since a Company incorporated under the Companies Act is not formed statutorily and is not subject to any statutory duty vis-à-vis an individual, it was excluded from the preview of 'State '. In Praga Tools Corporation v. Shri C. A. Imanual where the question was whether an application under Article 226 for issuance of a writ of mandamus would lie impugning an agreement arrived at between a Company and its workmen, the Court held that:
"....there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty. The High Court, therefore, was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lie against the company".

By 1975 Mathew, J. in Sukhdev Singh v. Bhagatram noted that the concept of "State" in
Article 12 had undergone "drastic changes in recent year". The question in that case was whether the Oil and Natural Gas Commission, the Industrial Finance Corporation and the Life
Insurance Corporation each of which were public corporations set up by statutes were authorities and therefore within the definition of State in Article 12. The Court affirmed the decision in Rajasthan State Electricity Board v. MohanLal (supra) and held that the Court could compel compliance of statutory rules. But the majority view expressed by A.N. Ray,
C.J. also indicated that the concept would include a public authority which:
"is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private profit. Such an authority is not precluded from making profit for the public benefit".

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The use of the alternative is significant. The Court scrutinised the history of the formation of the three Corporations, the financial support given by the Central Government, the utilization of the finances so provided, the nature of service rendered and noted that despite the fact that each of the Corporations on profits earned by it nevertheless the structure of each of the Corporation showed that the three Corporations represented the 'voice and hands ' of the
Central Government. The Court came to the conclusion that although the employees of the three Corporations were not servants of the Union or the State, "these statutory bodies are 'authorities ' within the meaning of Article 12 of the Constitution".
Mathew J in his concurring judgment went further and propounded a view which presaged the subsequent developments in the law. He said:
"A state is an abstract entity. It can only act through the instrumentality or agency of natural or juridical persons. Therefore, there is nothing strange in the notion of the state acting through a corporation and making it an agency or instrumentality of the State… "

For identifying such an agency or instrumentality he propounded four indicia:
(1) "A finding of the state financial support plus an unusual degree of control over the management and policies might lead one to characterize an operation as state action." (2) "Another factor which might be considered is whether the operation is an important public function."
(3) "The combination of state aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a state agency.
If a given function is of such pubic importance and so closely related to a governmental functions as to be classified as a government agency, then even the presence or absence of state financial aid might be irrelevant in making a finding of state action. If the function does not fall within such a description then mere addition of state money would not influence the conclusion."
(4) "The ultimate question which is relevant for our purpose is whether such a corporation is an agency or instrumentality of the government for carrying on a business for the benefit of the public. In other words, the question is, for whose benefit was the corporation carrying on the business?"

Sabhajit Tewary was decided by the same Bench on the same day as Sukhdev
Singh (supra). The contentions of the employee was the CSIR is an agency of the Central
Government on the basis of the CSIR Rules which, it was argued, showed that the Government controlled the functioning of CSIR in all its aspect. The submission was somewhat cursorily negatived by this Court on the ground that all this:
… "will not establish anything more than the fact that the Government takes special care that the promotion, guidance and co-operation of scientific and
Industrial Research, the institution and financing of specific researches, establishment or development and assistance to special institutions or departments of the existing institutions for scientific study of problems affecting particular industry in a trade, the utilisation of the result of the researches conducted under the auspices of the Council towards the development of industries in the country are carried out in a responsible manner."

Although the Court noted that it was the Government which was taking the "special care" nevertheless the writ petition was dismissed ostensibly because the Court factored into its decision two premises:
i) "The society does not have a statutory character like the Oil and Natural Gas
Commission or the Life Insurance Corporation or Industrial Finance Corporation.
It is a Society incorporated in accordance with the provisions of the Society 's
Registration Act", and

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ii) "This Court has held in Praga Tools Corporation v. C. A. Imanual, Heavy
Engineering Mazdoor Union v. State of Bihar, and in S. L. Agarwal v. Hindustan
Steel Ltd. that the Praga Tools Corporation, Heavy Engineering Mazdoor Union and Hindustan Steel Ltd. are all companies incorporated under the Companies Act and the employees of these companies do not enjoy the protection available to
Government servants as contemplated in Article 311. The Companies were held in these cases to have independent existence of the Government and by the law relating to corporations. These could not be held to be departments of the
Government".

With respect, we are of the view that both the premises were not really relevant and in fact contrary to the 'voice ' and 'hands ' approach in Sukhdev Singh. Besides reliance by the
Court on decisions pertaining to Article 311 which is contained in Part XIV of the Constitution was inapposite. What was under consideration was Article 12 which by definition is limited to Part III and by virtue of Article 36 to Part IV of the Constitution. As said by another
Constitution Bench later in this context:
"Merely because a juristic entity may be an "authority" and therefore "State" within the meaning of Article 12, it may not be elevated to the position of "State" for the purpose of Articles 309, 310 and 311 which find a place in Part XIV. The definition of "State" in Article 12 which includes an "authority" within the territory of India or under the control of the Government of India is (sic) in its application only to Part III and by virtue of Article 36, to Part IV: it does not extend to the other provisions of the Constitution and hence a juristic entity which may be "State" for the purpose of Parts III and IV would not be so for the purpose of Part XIV or any other provision of the Constitution. This is why the decisions of this Court in S. L. Aggarwal v. Hindustan Steel Ltd., and other cases involving the applicability of Article 311 have no relevance to the issue before us".

Normally, a precedent like Sabhajit Tewary which has stood for a length of time should not be reversed, however erroneous the reasoning if it has stood unquestioned, without its reasoning being 'distinguished ' out of all recognition by subsequent decisions and if the principles enunciated in the earlier decision can stand consistently and be reconciled with subsequent decisions of this Court, same equally authoritative. In our view Sabhajit
Tewary fulfills both conditions.
Side-stepping the majority approach in Sabhajit Tewary, the 'drastic changes ' in the perception of 'State ' heralded in Sukhdev Singh by Mathew, J and the tests formulated by him were affirmed and amplified in R. D. Shetty v. International Airport Authority of India.
Although the International Airport Authority of India is a statutory corporation and therefore within the accepted connotation of State, the Bench of three Judges developed the concept of
State. The rationale for the approach was the one adopted Mathew J in Sukhdev Singh:
"In the early days, when the Government had limited functions, it could operate effectively through natural persons constituting its civil service and they were found adequate to discharge governmental functions, which were of traditional vintage. But as the tasks of the Government multiplied with the advent of the welfare State, it began to be increasingly felt that the frame work of civil service was not sufficient to handle the new tasks which were often of specialised and highly technical character. The inadequacy of the civil service to deal with these new problems came to be realized and it became necessary to forge a new instrumentality or administrative device for handling these new problems. It was in these circumstances and with a view to supplying this administrative need that the public corporation came into being as the third arm on the Government".

From this perspective, the logical sequitur is that it really does not matter what guise the
State adopts for this purpose, whether by a Corporation established by statute or incorporated under a law such as the Companies Act or formed under the Societies Registration Act, 1860.
Neither the form of the Corporation, nor its ostensible autonomy would take away from its

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character as 'State ' and its constitutional accountability under Part III vis-à-vis the individual if it were in fact acting as an instrumentality or agency of Government.
As far as Sabhajit Tewary was concerned it was explained and distinguished in R. D.
Shetty saying:
"The Court no doubt took the view on the basis of facts relevant to the constitution and functioning of the Council that it was not an 'authority ', but we do not find any discussion in this case as to what are the features which must be present before a corporation can be regarded as an 'authority ' within the meaning of Article 12.
This decision does not lay down any principle or test for the purpose of determining when a corporation can be said to be an 'authority '. If at all any test can be gleaned from the decision, it is whether the Corporation is 'really an agency of the Government '. The Court seemed to hold on the facts that the Council was not an agency of the Government and was, therefore, not an 'authority '".

The tests propounded by Mathew, J in Sukhdev Singh were elaborated in R. D. Shetty and were re-formulated two years later by a Constitution Bench in Ajay Hasia v. Khalid Mujib.
What may have been technically characterised as obiter dicta in Sukhdev Singh and R. D.
Shetty (since in both cases the "authority" in fact involved was a statutory corporation), formed the ratio decidendi of Ajay Hasia. The case itself dealt with a challenge under Article 32 to admissions made to a college established and administered by a Society registered under the
Jammu & Kashmir Registration of Societies Act 1898. The contention of the Society was that even if there were an arbitrary procedure followed for selecting candidates for admission, and that this may have resulted in denial of equality to the petitioners in the matter of admission in violation of Article 14, nevertheless Article 14 was not available to the petitioners because the Society was not a State within Article 12.
The Court recognised that:
"Obviously the Society cannot be equated with the Government of India or the
Government of any State nor can it be said to be a local authority and therefore, it must come within the expression "other authorities" if it is to fall within the definition of 'State ' ".

But it said that:
"The courts should be anxious to enlarge the scope and width of the Fundamental
Rights by bringing within their sweep every authority which is an instrumentality or agency of the government or through the corporate personality of which the government is acting, so as to subject the government in all its myriad activities, whether through natural persons or through corporate entities, to the basic obligation of the Fundamental Rights".

It was made clear that the genesis of the corporation was immaterial and that:
"The concept of instrumentality or agency of the government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the government so as to come within the meaning of the expression "authority" in
Article 12".

R. D. Shetty was noted and quoted with approval in extenso and the tests propounded for determining as to when a corporation can be said to be an instrumentality or agency of the
Government therein were culled out and summarised as follows:
(1) One thing is clear that if the entire share capital of the corporation is held by
Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.

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(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.
(3) It may also be a relevant factor.....whether the corporation enjoys monopoly status which is State conferred or State protected.
(4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality.
(5) If the functions of the corporation are of public importance and closely related a governmental functions it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.
(6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government.

In dealing with Sabhajit Tewary the Court in Ajay Hasia noted that since Sabhajit
Tewary was a decision given by a Bench of Five Judges of this Court it was undoubtedly binding. The Court read Sabhajit Tewary as implicitly assenting to the proposition that CSIR could have been an instrumentality of agency of the Government even though it was a
Registered Society and limited the decision to the facts of the case. It held that the Court in Sabhajit Tewari:
"did not rest its conclusion on the ground that the council was a society registered under the Societies Registration Act, 1860, but proceeded to consider various other features of the council for arriving at the conclusion that it was not an agency of the government and therefore not an 'authority '".

The conclusion was then reached applying the test formulated to the facts that the Society in Ajay Hasia was an authority falling within the definition of "State" in Article 12. On the same day that the decision in Ajay Hasia was pronounced came the decision of Som Prakash
Rekhi v. Union of India. Here too, the reasoning in R. D. Shetty was followed and Bharat
Petroleum Corporation was held to be a 'State ' within the "enlarged meaning of Article 12.
Sabhajit Tewary was criticised and distinguished as being limited to the facts of the case. It was said:
"The rulings relied on are, unfortunately, in the province of Article 311 and it is clear that a body may be 'State ' under Part III but not under Part XIV. Ray, C.J., rejected the argument that merely because the Prime Minister was the President or that the other members were appointed and removed by Government did not make the Society a 'State '. With great respect, we agree that in the absence of the other features elaborated in [R. D. Shetty] the composition of the Government
Body alone may not be decisive. The laconic discussion and the limited ratio in
Tewary hardly help either side here."

The tests to determine whether a body falls within the definition of 'State ' in Article 12 laid down in R. D. Shetty with the Constitution Bench imprimatur in Ajay Hasia form the keystone of the subsequent jurisprudential superstructure judicially crafted on the subject which is apparent from a chronological consideration of the authorities cited.
In P. K. Ramachandra Iyer v. Union of India, it was held that both the Indian Council of
Agricultural Research (ICAR) and its affiliate Indian Veterinary Research Institute were bodies as would be comprehended in the expression 'other authority ' in Article 12 of the
Constitution. Yet another judicial blow was dealt to the decision in Sabhajit Tewary when it was said:
"Much water has flown down the Jamuna since the dicta in Sabhajit Tewary and conceding that it is not specifically overruled in later decision, its ratio is considerably watered down so as to be a decision confined to its own facts."

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B. S. Minhas v. Indian Statistical Institute held that the Indian Statistical Institute, a registered Society is an instrumentality of the Central Government and as such is an 'authority ' within the meaning of Article 12 of the Constitution. The basis was that the composition of respondent no. 1 is dominated by the representatives appointed by the Central Government.
The money required for running the Institute is provided entirely by the Central Government and even if any other moneys are to be received by the Institute it can be done only with the approval of the Central Government, and the accounts of the Institute have also to be submitted to the Central Government for its scrutiny and satisfaction. The Society has to comply with all such directions as may be issued by the Central Government. It was held that the control of the Central Government is deep and pervasive.
The decision in Central Inland Water Transport Corporation Ltd. v. Brojo Nath
Ganguli held that the appellant company was covered by Article 12 because it is financed entirely by three Governments and is completely under the control of the Central Government and is managed by the Chairman and Board of Directors appointed by the Central Government and removable by it and also that the activities carried on by the Corporation are of vital national importance.
However, the tests propounded in Ajay Hasia were not applied in Tekraj Vasandi alias
K.S. Basandhi v. Union of India, 1988 (1) SCC 237, where the Institute of Constitutional and
Parliamentary Studies (ICPS), a society registered under the Societies Registration Act, 1860 was held not to be an "other authority" within the meaning of Article 12. The reasoning is not very clear. All that was said was:
"Having given our anxious consideration to the facts of this case, we are not in a position to hold that ICPS is either an agency or instrumentality of the State so as to come within the purview of 'other authorities ' in Article 12 of the Constitution".

However, the Court was careful to say that "ICPS is a case of its type – typical in many ways and the normal tests may perhaps not properly apply to test its character".
All India Sainik Schools Employees ' Association v. Defence Minister, 1989 Supp. (1) SCC
205 held applying the tests indicated in Ajay Hasia that the Sainik School Society is a 'State '.
Perhaps this rather over-enthusiastic application of the broad limits set by Ajay Hasia may have persuaded this Court to curb the tendency in Chander Mohan Khanna v. National
Council of Educational Research and Training. The Court referred to the tests formulated in Sukhdev Singh, Ramana, Ajay Hasia, and Som Prakash Rekhi but striking a note of caution said that "these are merely indicative indicia and are by no means conclusive or clinching in any case". In that case, the question arose whether the National Council of Educational
Research (NCERT) was a 'State ' as defined under article 12 of the Constitution. The NCERT is a society registered under the Societies Registration Act. After considering the provisions of its Memorandum of Association as well as the rules of NCERT, this Court came to the conclusion that since NCERT was largely an autonomous body and the activities of the
NCERT were not wholly related to governmental functions and that the Government control was confined only to the proper utilisation of the grant and since its funding was not entirely from Government resources, the case did not satisfy the requirements of the State under
Article 12 of the Constitution. The Court relied principally on the decision in Tekraj Vasandi.
However, as far as the decision in Sabhajit Tewary was concerned, it was noted that "the decision has been distinguished and watered down in the subsequent decisions".
Fresh off the judicial anvil is the decision in the Mysore Paper Mills Ltd. v. The Mysore
Paper Mills Officers Association which fairly represents what we have seen as a continuity of thought commencing from the decision in Rajasthan Electricity Board in 1967 up to the present time. It held that a company substantially financed and financially controlled by the
Government, managed by a Board of Directors nominated and removable at the instance of

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the Government and carrying on important functions of public interest under the control of the Government is 'an authority ' within the meaning of Article 12.
The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be
– whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.
Coming now to the facts relating to CSIR, we have no doubt that it is well within the range of Article 12, a conclusion which is sustainable when judged according to the tests judicially evolved for the purpose.
The Formation of CSIR
On 27th April 1940 the Board of Scientific and Industrial Research and on 1st February
1941, the Industrial Research Utilisation Committee were set up by the Department of
Commerce, Government of India with the broad objective of promoting industrial growth in this country. On 14th November1941, a resolution was passed by the Legislative Assembly and accepted by the Government of India to the following effect:
"This Assembly recommends to the Governor General in Council that a fund called the Industrial Research Fund be constituted, for the purpose of fostering industrial development in this country and that provision be made in the Budget for an annual grant of rupees ten lakhs to the fund for a period of five years."

For the purpose of coordinating and exercising administrative control over the working of the two research bodies already set up by the Department of Commerce, and to oversee the proper utilisation of the Industrial Research Fund, by a further resolution dated 26th September
1942, the Government of India decided to set up a Council of Industrial Research on a permanent footing which would be a registered society under the Registration of Societies
Act, 1860. Pursuant to the resolution, on 12th March, 1942 the CSIR was duly registered. Byelaws and Rules were framed by the Governing Body of the Society in 1942 which have been subsequently revised and amended. Unquestionably this shows that the CSIR was 'created ' by the Government to carry on in an organized manner what was being done earlier by the
Department of Commerce of the Central Government. In fact the two research bodies which were part of the Department of Commerce have since been subsumed in the CSIR.
Objects and Functions
The 26th September 1942 Resolution had provided that the functions of the CSIR would be: (a) to implement and give effect to the following resolution moved by the Hon 'ble
Dewan Bahadur Sir A. R. Mudaliar and passed by the Legislative Assembly on the 14th Nov. 1941 and accepted by the Government of India … (quoted earlier in this Judgment)
(b) the promotion, guidance and co-ordination of scientific and Industrial
Research in India including the institution and the financing of specific researches: (c) the establishment or development and assistance to special institutions or
Department of existing institutions for scientific study of problems affecting particular industries and trade;
(d) the establishment and award of research studentships and fellowships;

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(e) the utilisation of the results of the researches conducted under the auspices of the Council towards the development of industrial in the country and the payment of a share of royalties arising out of the development of the results of researches to those who are considered as having contributed towards the pursuit of such researches; (f) the establishment, maintenance and management of laboratories, workshops, institutes, and organisation to further scientific and industrial research and utilise and exploit for purposes of experiment or otherwise any discovery or invention likely to be of use Indian Industries.
(g) the collection and dissemination or information in regard not only to research but to industrial matters generally;
(h) publication of scientific papers and a journal of industrial research and development, and
(i) any other activities to promote generally the objects of the resolution mentioned in (a) above.

These objects which have been incorporated in the Memorandum of Association of CSIR manifestly demonstrate that CSIR was set up in the national interest to further the economic welfare of the society by fostering planned industrial development in the country. That such a function is fundamental to the governance of the country has already been held by a
Constitution Bench of this Court as far back as in 1967 in Rajasthan Electricity Board where it was said:
"The State, as defined in Article 12, as thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people".

We are in respectful agreement with this statement of the law. The observations to the contrary in Mohan Khanna v. NCERT (supra) relied on by the Learned Attorney General in this context, do not represent the correct legal position.
Incidently, the CSIR was and continues to be a non-profit making organization and according to clause (4) of CSIR 's Memorandum of Association, all its income and property, however derived shall be applied only 'towards the promotion of those objects subject nevertheless in respect of the expenditure to such limitations as the Government of India may from time to time impose '.
Management and Control
When the Government of India resolved to set up the CSIR on 26th February, 1942 it also decided that the Governing Body would consist of the following members:
(1) The Hon’ble Member of the Council of His Excellency the Governor General in charge of the portfolio of Commerce (Ex-officio).
(2) A representative of the Commerce Department of the Government of India, appointed by the Government of India.
(3) A representative of the Finance Department of the Government of India, appointed by the Government of India.
(4) Two members of the Board of Scientific and Industrial Research elected by the said Board.
(5) Two members of the Industrial Research Utilisation committee elected by the said Committee.
(6) The Director of Scientific and Industrial Research.
(7) One or more members to be nominated by the Government of India to represent interests not otherwise represented.

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The present Rules and Regulations 1999 of CSIR provide that:
(a) The Prime Minister of India shall be the ex-office President of the Society.
(b) The Minister-in-Charge of the Ministry or Deptt. dealing with the Council of
Scientific & Industrial Research shall be the ex-officio Vice President of the
Society.
Provided that during any period when the Prime Minister is also such Minister, any person nominated in this behalf by the Prime Minister shall be the VicePresident.
(c) Ministers In charge of Finance and Industry (ex-officio).
(d) The members of the Governing Body.
(e) Chairman, Advisory Board.
(f) Any other person or persons appointed by the President, CSIR."
The Governing Body of the Society is constituted by the:
(a) Director General,
(b) Member Finance,
(c) Directors of two National Laboratories,
(d) Two eminent Scientists/Technologists, one of whom shall be from Academia;
(e) Heads of two Scientific Departments/Agencies of the Government of India.

The dominant role played by the Government of India in the Governing Body of CSIR is evident. The Director-General who is ex-officio Secretary of the Society is appointed by the
Government of India [Rule 2(iii)]. The submission of the learned Attorney General that the
Governing Body consisted of members, the majority of whom were non-governmental members is, having regard to the facts on record, unacceptable. Furthermore, the members of the Governing Body who are not there ex officio are nominated by the President and their membership can also be terminated by him and the Prime Minister is the ex officio President of CSIR. It was then said that although the Prime Minister was ex officio President of the
Society but the power being exercised by the Prime Minister is as President of the Society.
This is also the reasoning in Sabhajit Tewary. With respect, the reasoning was and the submission is erroneous. An ex officio appointment means that the appointment is by virtue of the office; without any other warrant or appointment than that resulting from the holding of a particular office. Powers may be exercised by an officer, in this case the Prime Minister, which are not specifically conferred upon him, but are necessarily implied in his office (as
Prime Minister), these are ex officio.
The control of the Government in the CSIR is ubiquitous. The Governing Body is required to administer, direct and control the affairs and funds of the Society and shall, under Rule 43, have authority 'to exercise all the powers of the Society subject nevertheless in respect of expenditure to such limitations as the Government of India may from time to time impose '.
The aspect of financial control by the Government is not limited to this and is considered separately. The Governing Body also has the power to frame, amend or repeal the bye-laws or CSIR but only with the sanction of the Government of India. Bye-law44 of the 1942 Byelaws had provided 'any alteration in the bye-laws shall require the prior approval of the
Governor General in Council '.
Rule 41 of the present Rules provide that:
"The President may review/amend/vary any of the decisions of the Governing
Body and pass such orders as considered necessary to be communicated to the
Chairman of the Governing Body within a month of the decision of the Governing
Body and such order shall be binding on the Governing Body. The Chairman may

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also refer any question which in his opinion is of sufficient importance to justify such a reference for decision of the President, which shall be binding on the
Governing Body."

Given the fact that the President of CSIR is the Prime Minister, under this Rule the subjugation of the Governing Body to the will of the Central Government is complete.
As far as the employees of the CSIR are concerned the Central Civil Services
(Classification, Control & Appeal) Rules and the Central Civil Services (Conduct) Rules, for the time being in force, are from the outset applicable to them subject to the modification that references to the President and 'Government Servant ' in the Conduct Rules would be construed as 'President of the Society ' and 'Officer & establishments in the service of the Society ' respectively. (Bye Law 12). The scales of pay applicable to all the employees of CSIR are those prescribed by the Government of India for similar personnel, save in the case of specialists (Bye Law 14) and in regard to all matters concerning service conditions of employees of the CSIR, the Fundamental and Supplementary Rules framed by the Govt. of
India and such other rules and orders issued by the Govt. of India from time to time are also, under Bye Law 15 applicable to the employees of the CSIR. Apart from this, the rules/Orders issued by Government of India regarding reservation of posts for SC/ST apply in regard to appointments to posts to be made in CSIR. (Bye Law 19). The CSIR cannot lay down or change the terms and conditions of service of its employees and any alteration in the bye-laws can be carried out only with the approval of Government of India. (Bye Laws 20).
Financial Aid
The initial capital of the CSIR was Rs. 10 lakhs, made available pursuant to the Resolution of the Legislative Assembly on 14th November, 1941. Paragraph 5 of the 26th September, 1942
Resolution of the Government of India pursuant to which CSIR was formed reads:
"The Government of India have decided that a fund, viz., the Industrial Research
Fund, should be constituted by grants from the Central Revenues to which additions are to be made from time to time as moneys flow in from other sources.
These 'other sources ' will comprise grants, if any, by Provincial Governments by industrialists for special or general purposes, contributions from Universities or local bodies, donations or benefactions, royalties, etc., received from the development of the results of Industrial Research, and miscellaneous receipts. the
Council of Scientific and Industrial Research will exercise full powers in regard to the expenditure to be met out of the Industrial Research Fund subject to its observing the Bye-laws framed by the Governing Body of the Council, from time to time, with the approval of the Governor General-in-Council, and to its annual budget being approved by the Governor General-in-Council."

As already noted, the initial capital of Rs. 10 lakhs was made available by the Central
Government. According to the statement handed up to the Court on behalf of CSIR the present financial position of CSIR is that at least 70% of the funds of CSIR are available from grants made by the Government of India. For example out of the total funds available to CSIR for the years 1998-99, 1999-2000, 2000-01 of Rs. 1023.68 crores, Rs. 1136.69 crores and Rs.
1219.04 crores respectively, the Government of India has contributed Rs. 713.32 crores, Rs.
798.74 crores and Rs. 877.88 crores. A major portion of the balance of the funds available is generated from charges for rendering research and development works by CSIR for projects such as the Rajiv Gandhi Drinking Water Mission Technology Mission on oilseeds and pulses and maize or grant in aid projects from other Government Departments. Funds are also received by CSIR from sale proceeds of its products, publications, royalties etc. Funds are also received from investments but under Bye-Law 6 of CSIR, funds of the Society may be invested only in such manner as prescribed by the Government of India. Some contributions are made by the state Governments and to a small extent by 'individuals, institutions and other

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agencies '. The non-governmental contributions are a pittance compared to the massive governmental input.
As far as expenditure is concerned, under Bye-law (1) as it stands at present, the budget estimates of the Society are to be prepared by the Governing Body 'keeping in view the instructions issued by the Government of India from time to time in this regard '. Apart from an internal audit, the accounts of the CSIR are required to be audited by the controller and
Auditor General and placed before the table of both Houses of Parliament (Rule 69).
In the event of dissolution, unlike other registered societies which are governed by
Section 14 of the Societies Registration Act, 1860, the members of CSIR have no say in the distribution of its assets and under clause (5) of the Memorandum of Association of CSIR, on the winding up or dissolution of CSIR any property remaining after payment of all debts shall have to be dealt with "in such manner as the Government of India may determine". CSIR is therefore both historically and in its present operation subject to the financial control of the
Government of India. The assets and funds of CSIR though nominally owned by the Society are in the ultimate analysis owned by the Government.
From whichever perspective the facts are considered there can be no doubt that the conclusion reached in Sabhajit Tewary was erroneous. If the decision of Sabhajit Tewary had sought to lay down as a legal principle that a society registered under the Societies Act or a company incorporated under the Companies Act is, by that reason alone, excluded from the concept of State under Article 12, it is a principle which has long since been discredited.
"Judges have made worthy, if shamefaced, efforts, while giving lip service to the rule, to riddle it with exceptions and by distinctions reduce it to a shadow".
In the assessment of the facts, the Court had assumed certain principles, and sought precedential support from decisions which were irrelevant and had "followed a groove chased amidst a context which has long since crumbled". Had the facts been closely scrutinised in the proper perspective, it could have led and can only lead to the conclusion that CSIR is a State within the meaning of Article 12.
Should Sabhajit Tewary still stand as an authority even on the facts merely because it has stood for 25 years? We think not. Parallels may be drawn even on the facts leading to an untenable interpretation of Article 12 and a consequential denial of the benefits of fundamental rights to individuals who would otherwise be entitled to them and "there is nothing in our
Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public." Since on a reexamination of the question we have come to the conclusion that the decision was plainly erroneous, it is our duty to say so and not perpetuate our mistake.
………
Sabhajit Tewary must be and is in the circumstances overruled. Accordingly the matter is remitted back to the appropriate Bench to be dealt with in the light of our decision. There will be no order as to costs.

JUSTICE LAHOTI (FOR D. RAJU AND HIMSELF, DISSENTING)
65. We have had the advantage of reading the judgment proposed by our learned sister Rama
Pal, J. With greatest respect to her, we find ourselves not persuaded to subscribe to her view overruling Sabhajit Tewary and holding Council for Scientific and Industrial Research (CSIR) 'the State ' within the meaning of Article 12 of the Constitution. The development of law has

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travelled through apparently a zig-zag track of judicial pronouncements, rhythmically traced by Rama Pal, J. in her judgment. Of necessity, we shall have to retread the track, for, we find that though the fundamentals and basic principles for determining whether a particular body is 'the State ' or not many substantially remain the same but we differ in distributing the emphasis within the principles in their applicability to the facts found. We also feel that a distinction has to be borne in mind between an instrumentality or agency of 'the State ' and an authority includible in 'other authorities '. The distinction cannot be obliterated.
… [Discussion on prior cases, argument of counsel and other authorities on the subject is omitted] …

Simply by holding a legal entity to be an instrumentality or agency of the State it does not necessarily become an authority within the meaning of 'other authorities ' in Article 12, To be an authority, the entity should have been created by a statute or under a statute and functioning with liability and obligations to public. Further the statute creating the entity should have vested that entity with power to make law or issue binding directions amounting to law within the meaning of Article 13(2) governing its relationship with other people or the affairs of other people – their rights, duties, liabilities or other legal relations. If created under a statute, then there must exist some other statute conferring on the entity such powers. In either case, it should have been entrusted with such functions as are governmental or closely associated therewith by being of public importance or being fundamental to the life of the people and hence governmental. Such authority would be the State, for, one who enjoys the powers or privileges of the State must also be subjected to limitations and obligations of the State. It is this strong statutory flavour and clear indicia of power – constitutional or statutory and its potential or capability to act to the detriment of fundamental rights of the people, which makes it an authority; though in a case, depending on the facts and circumstances, an authority may also be found to be an instrumentality or agency of the State and to that extent they may overlap. Tests 1, 2 and 4 in Ajay Hasia enable determination of Governmental ownership or control. Tests 3, 5and 6 are 'functional ' tests. The propounder of the tests himself has used the words suggesting relevancy of those tests for finding out if an entity was instrumentality or agency of the State. Unfortunately thereafter the tests were considered relevant for testing if an authority is the State and this fallacy has occurred because of difference between 'instrumentality and agency ' of the state and an 'authority ' having been lost sight of subsilentio, unconsciously and un-deliberated. In our opinion, and keeping in view the meaning which 'authority ' carries, the question whether an entity is an 'authority ' cannot be answered by applying Ajay Hasia tests.
The tests laid down in Ajay Hasia are relevant for the purpose of determining whether an entity is an instrumentality or agency of the State. Neither all the tests are required to be answered to positive nor a positive answer to one or two tests would suffice. It will depend upon a combination of one or more of the relevant factors depending upon the essentiality and overwhelming nature of such factors in identifying the real source of governing power, if need be by removing the mask or piercing the veil disguising the entity concerned. When an entity has an independent legal existence, before it is held to be the State, the person alleging it to be so must satisfy the Court of brooding presence of government or deep and pervasive control of the government so as to hold it to be an instrumentality or agency of the State.
CSIR if 'the State '?
Applying the tests formulated hereinabove, we are clearly of the opinion that CSIR is not an 'authority ' so as to fall within the meaning of expression 'other authorities ' under Article 12.
It has no statutory flavour -- neither it owes its birth to a statute nor is there any other statute

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conferring it with such powers as would enable it being branded an authority. The indicia of power is absent. It does not discharge such functions as are governmental or closely associated therewith or being fundamental to the life of the people.
We may now examine the characteristics of CSIR. On a careful examination of the material available consisting of the memorandum of association, rules and regulations and bye-laws of the society and its budget and statement of receipts and outgoings, we proceed to record our conclusions. The Government does not hold the entire share capital of CSIR. It is not owned by the Government. Presently, the Government funding is about 70% and grant by
Government of India is one out of five categories of avenues to derive its funds. Receipts from other sources such as research, development, consultation activities, monies received for specific projects and job work, assets of the society, gifts and donations are permissible sources of funding of CSIR without any prior permission/consent/sanction from the
Government of India. Financial assistance from the Government does not meet almost all expenditure of the CSIR and apparently it fluctuates too depending upon variation from its own sources of income. It does not enjoy any monopoly status, much less conferred or protected by Government. The governing body does not consist entirely of Government nominees. The membership of the Society and the manning of its governing body - both consist substantially of private individuals of eminence and independence who cannot be regarded as hands and voice of the State. There is no provision in the rules or the byelaws that the government can issue such directives as it deems necessary of CSIR and the latter is bound to carry out the same. The functions of the CSIR cannot be regarded as governmental or of essential public importance or as closely related to governmental functions or being fundamental to the life of the people or duties and obligations to public at large. The functions entrusted to CSIR can as well be carried out by any private (sic) organization. Historically it was not a department of government which was transferred to CSIR. There was a Board of
Scientific and Industrial Research and an Industrial Research Utilisation Committee. The
CSIR was set up as a society registered under the Societies Registration Act, 1860 to coordinate and generally exercise administrative control over the two organizations which would tender their advice only to CSIR. The membership of the society and the Governing body of the counsel may be terminated by the President not by the Government of India. The governing body is headed by the Director General of CSIR and not by the President of Society
(i.e. the Prime Minister). Certainly the board and the committee, taken over by CSIR, did not discharge any regal, governmental or sovereign functions. The CSIR is not the offspring or the blood and bones or the voice and hands of the government. The CSIR does not and cannot make law.
However, the Prime Minister of India is the President of the Society. Some of the members of the society and of the governing body are persons appointed ex-officio by virtue of their holding some office under the Government also. There is some element of control exercised by the government in matters of expenditure such as on the quantum and extent of expenditure more for the reason that financial assistance is also granted by the Government of India and the later wishes to see that its money is properly used and not misused. The President is empowered to renew, amend and vary any of the decisions of the governing body which is in the nature of residual power for taking corrective measures vesting in the President but then the power is in the President in that capacity and not as Prime Minister of India. On winding up or dissolution of CSIR any remaining property is not available to members but 'shall be dealt with in such manner as Government of India may determine '. There is nothing special about such a provision in Memorandum of Association of CSIR as such a provision is a general one applicable to all societies under Section 14 of the Societies Registration Act, 1860.
True that there is some element of control of the government but not a deep and pervasive control. To some extent, it may be said that Government 's presence or participation is felt in

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the society but such presence cannot be called a brooding presence or the over-lordship of government. We are satisfied that the tests in Ajay Hasia are not substantially or on essential aspects even satisfied to call CSIR an instrumentality or agency of the State. A mere governmental patronage, encouragement, push or recognition would not make an entity 'the
State '.
On comparison, we find that in substance CSIR stands on a footing almost similar to the
Institute of Constitutional and Parliamentary Studies (in Tekraj Vasandi @ K.S.
Basandhi v. Union of India) and National Council of Educational Research and Training
(in Chander Mohan Khanna v. NCERT) and those cases were correctly decided.
………
For the foregoing reasons, we are the opinion that Council for Scientific and Industrial
Research (CSIR) is not the State within the meaning of Article 12 of the Constitution. Sabhajit
Tewary was correctly decided and must hold the field. The High Court has rightly followed the decision of this Court in Sabhajit Tewary. The appeal is liable to be dismissed.

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UNIT 2 – FUNDAMENTAL RIGHTS COMPLIANCE REVIEW
(ARTICLE 13)
KESHAVA MADHAVA MENON V. STATE OF BOMBAY
AIR 1951 SC 128
Decided On: January 22, 1951
BENCH – CHIEF JUSTICE H. L. KANIA, JUSTICES S. FAZL ALI, PATANJALI SASTRI, M. C.
MAHAJAN, MUKHERJEA, DAS & C. AIYAR

JUSTICE DAS (FOR HIMSELF)
At all material times the petitioner, who is the appellant before us, was the Secretary of People 's Publishing House, Ltd., a company incorporated under the Indian Companies Act with its registered office at 190-B, Khedwadi Main Road in Bombay. In September, 1949, a pamphlet entitled "Railway Mazdooron ke khilaf Nai Zazish" is alleged to have been published in Bombay by the petitioner as the secretary of that company. Learned counsel for the petitioner states that the pamphlet was published as a "book" within the meaning of section 1 of the Press and Registration of Books Act (XXV of 1867) and that the provisions of that Act had been duly complied with. The Bombay Government authorities, however, took the view that the pamphlet was a "news sheet" within the meaning of section 2(6) of the Indian
Press (Emergency Powers) Act, 1931, and that as it had been published without the authority required by section 15(1) of that Act, the petitioner had committed an offence punishable under section 18(1) of the same Act. A prosecution under that Act was accordingly started against the petitioner in the Court decided that question of law. This was followed and was registered as Case No. 1102/P of 1949. During the pendency of the proceedings the
Constitution of India came into force on January 26, 1950. On March 3, 1950, the petitioner filed a written statement submitting, inter alia, that the definition of "news sheet" as given in section 2(6) of the Indian Press (Emergency Powers) Act, 1931 and sections 15 and 18 thereof were ultra vires and void in view of article 19(1)(a) read with article 13 and that the hearing of the case should be stayed till the High Court decided that question of law. This was followed up by a petition filed in the High Court on March 7, 1950, under article 228 of the Constitution, praying that the record of Case No. 1102/P of 1949 be sent for, that it be declared that sections
15 and 18 read with section 2(6) and (10), in so far as they create liability for restrictive measure for a citizen, are ultra vires of article 19(1)(a) and are, therefore, void and inoperative and that the petitioner be ordered to be acquitted. During the pendency of this petition the
Chief Presidency Magistrate on March 23, 1950, framed a charge against the petitioner under section 18 of the Press (Emergency Powers) Act, 1931.
The petition under article 228 was heard on April 12, 1950, by a Bench of the Bombay
High Court consisting of Chagla, C.J. and Bavdekar and Shah, JJ. Two questions were raised before the Bench, namely: (1) Whether sections 15(1) And 18(1) read with the definitions contained in sections 2(6) and 2(10) of the Indian Press (Emergency Powers) Act, 1931, were inconsistent with article 19(1)(a)read with clause (2) of that article? And (2) Assuming that they were inconsistent, whether the proceedings commenced under section 18(1) of that Act before the commencement of the Constitution could nevertheless be proceeded with?
The High Court considered it unnecessary to deal with or decide the first question and disposed of the application only on the second question. The High Court took the view that the word "void" was used in article 13(1) in the sense of "repealed" and that consequently it attracted section 6 of the General Clauses Act, which Act by article 367 was made applicable

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for the interpretation of the Constitution. The High Court, therefore, reached the conclusion that proceedings under the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of the commencement of the Constitution were not affected, even if the Act were inconsistent with the fundamental rights conferred by article 19(1)(a) and as such became void under article 13(1) of the Constitution after January 26, 1950. The High Court accordingly answered the second question in the affirmative and dismissed the petitioner 's application. The petitioner has now come up on appeal before us on the strength of a certificate granted by the
High Court under article 132(1) of the Constitution.
Learned counsel appearing in support of this appeal urged that the Indian Press
(Emergency Powers) Act, 1931, was one of the many repressive laws enacted by an alien
Government with a view to stifle the liberty of the Indian subjects and particularly of the
Indian Press; that, with the advent of independence the people of India began to breathe freely and by the Constitution which they gave unto themselves they took care to guarantee to themselves the fundamental rights of free citizens of a democratic republic and that article 13(1) of that Constitution brushed aside all vestiges of subordination which the tyranny of the alien rulers had imposed upon them and declared all laws inconsistent with the fundamental rights to be void as if they had never been passed and had never existed. It was, therefore, against the spirit of the Constitution, argued the learned counsel, that a free citizen of India still continue to be persecuted under such a retrograde law which, being inconsistent with the fundamental rights, must be declared to be void. Learned counsel urged that it was not necessary for him to contend that such inconsistent laws became void ab initio or that all past and closed transactions could be reopened but he contended that on and from January 26,
1950, when the constitution came into force such inconsistent laws which became void could not be looked at for any purpose and far less could they be utilised for the purpose of framing a charge or punishing a free citizen. As the void law cannot be utilised any longer, the pending prosecutions, according to learned counsel, must fall to the ground. To permit pending proceedings under a law which, after the commencement of the Constitution had become void, to proceed further, after the Constitution has taken effect, is to prolong the efficacy of the law notwithstanding that it has become void on and from the date the Constitution came into force and that is against the spirit of the Constitution.
An argument founded on what is claimed to be the spirit of the Constitution is always attractive, for it has a powerful appeal to sentiment and emotion; but a court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or think to be the spirit of the Constitution cannot prevail if the language of the
Constitution does not support that view. Article 372(2) gives power to the President to adapt and modify existing laws by way of repeal or amendment. There is nothing to prevent the
President, in exercise of the powers conferred on him by that article, from repealing, say the whole or any part of the Indian Press (Emergency Powers) Act, 1931. If the President does so, then such repeal will at once attract section 6 of the General Clauses Act. In such a situation all prosecutions under the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of its repeal by the President would be saved and must be proceeded with notwithstanding the repeal of that Act unless an express provision was otherwise made in the repealing Act. It is therefore clear that the idea of the preservation of past inchoate rights or liabilities and pending proceedings to enforce the same is not foreign or abhorrent to the
Constitution of India. We are, therefore, unable to accept the contention about the spirit of the
Constitution as invoked by the learned counsel in aid of his plea that pending proceedings under a law which has become void cannot be proceeded with. Further, if it is against the spirit of the Constitution to continue the pending prosecutions under such a void law, surely it should be equally repugnant to that spirit that men who have already been convicted under such repressive law before the Constitution of India came into force should continue to rot in jail.

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It is, therefore, quite clear that the court should construe the language of article 13(1) according to the established rules of interpretation and arrive at its true meaning uninfluenced by an assumed spirit of the Constitution.
Article 13(1) with which we are concerned for the purposes of this application is in these terms:"All laws in force in the territory of Indian immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void."

It will be noticed that all that this clause declares is that all existing laws, in so far as they are inconsistent with the provisions of Part III shall, to the extent of such inconsistency, be void. Every statute is prima facie prospective unless it is expressly or by necessary implications made to have retrospective operation. There is no reason why this rule of interpretation should not be applied for the purpose of interpreting our Constitution. We find nothing in the language of article 13(1) which may be read as indicating an intention to give it retrospective operation. On the contrary, the language clearly points the other way. The provisions of Part III guarantee what are called fundamental rights. Indeed, the headings of
Part III is "Fundamental Rights". These rights are given, for the first time, by and under our
Constitution. Before the Constitution came into force there was no such thing as fundamental right. What article 13(1) provides is that all existing laws which clash with the exercise of the fundamental rights (which are for the first time created by the Constitution) shall to that extent be void. As the fundamental rights became operative only on and from the date of the
Constitution the question of the inconsistency of the existing laws with those rights must necessarily arise on and from the date those rights came into being. It must follow, therefore, that article 13(1) can have no retrospective effect but is wholly prospective in its operation.
After this first point is noted, it should further be seen that article13(1) does not in terms make the existing laws which are inconsistent with the fundamental rights void ab initio or for all purposes. On the contrary, it provides that all existing laws, in so far as they are inconsistent with the fundamental rights, shall be void to the extent of their inconsistency.
They are not void for all purposes but they are void only to the extent they come into conflict with the fundamental rights. In other words, on and after the commencement of the
Constitution no existing law will be permitted to stand in the way of the exercise of any of the fundamental rights. Therefore, the voidness of the existing law is limited to the future exercise of the fundamental rights. Article 13(1) cannot be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the statute book, for to do so will be to give them retrospective effect which, we have said, they do not possess. Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution.
Learned counsel for the appellant has drawn our attention to articles 249(3), 250, 357, 358 and 369 where express provision has been made for saving things done under the laws which expired. It will be noticed that each of those articles was concerned with expiry of temporary statutes. It is well known that on the expiry of a temporary statute no further proceedings can be taken under it, unless the statute itself saved pending proceedings. If, therefore, an offence had been committed under a temporary statute and the proceedings were initiated but the offender had not been prosecuted and punished before the expiry of the statute, then, in the absence of any saving clause, the pending prosecution could not be proceeded with after the expiry of the statute by efflux of time. It was on this principle that express provision was made in the several articles noted above for saving things done or omitted to be done under the expiring laws referred to therein. As explained above,

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article 13(1) is entirely prospective in its operation and as it was not intended to have any retrospective effect there was no necessity at all for inserting in that article any such saving clause. The effect of article 13(1) is quite different from the effect of the expiry of a temporary statute or the repeal of a statute by a subsequent statute. As already explained, article 13(1) only has the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with respect to the exercise of fundamental rights on and after the date of the commencement of the Constitution.
It has no retrospective effect and if, therefore, an act was done before the commencement of the Constitution in contravention of the provisions of any law which, after the Constitution, becomes void with respect to the exercise of any of the fundamental rights, the inconsistent law is not wiped out so far as the past act is concerned, for, to say that it is, will be to give the law retrospective effect. There is no fundamental right that a person shall not be prosecuted and punished for an offence committed before the Constitution came into force. So far as the past acts are concerned the law exists, notwithstanding that it does not exist with respect to the future exercise of fundamental rights. We, therefore, agree with the conclusion arrived at by the High Court on the second question, although on different grounds. In view of that conclusion, we do not consider it necessary to examine the reasons of the High Court for its conclusion. In our opinion, therefore, this appeal fails, and is dismissed.

JUSTICE FAZL ALI (FOR HIMSELF)
I regret that I cannot agree with the view which the majority of my colleagues are inclined to take in this case.
… [Narration of facts is omitted] …

One of the points discussed elaborately by the learned counsel appearing for the parties in the course of their arguments was as to what was the effect upon pending proceedings when an Act was repealed or when a temporary Act expired. In Craies on Statute
Law, the effect of the expiry of a temporary Act is stated to be as follows:"As a general rule, and unless it contains some special provision to the contrary, after a temporary Act has expired no proceedings can be taken upon it, and it ceases to have any further effect. Therefore, offences committed against temporary Acts must be prosecuted and punished before the Act expires, and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate." (4th Ed., pp. 347-348)

This statement of law by Craies was referred to with approval and adopted by the Federal
Court in J. K. Gas Plant Manufacturing v. King Emperor,[1947] F.C.R. 141. As to the effect of the repeal of an Act, the following passage from Craies ' book seems to sum up the legal position as it obtained in England before the enactment of the Interpretation Act of 1889 :"When an Act of Parliament is repealed," said Lord Tenterden in Surtees v. Ellison
(1829) 9 B.&C. 752 "it must be considered (except as to transactions past and closed) as if it had never existed. That is the general rule." Tindal, C.J. states the exception more widely. He says (in Kay v. Goodwin) (1830) 6 Bing. 576: "The effect of repealing a statute is to obliterate it as completely from the records of the
Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law." (P. 350)

Again, Crawford in his book on "Statutory Construction" dealing with the general effect of the repeal of an Act states the law in America to be as follows :-

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"A repeal will generally, therefore, divest all inchoate rights which have arisen under the repealed statute, and destroy all accrued causes of action based thereon.
As a result, such a repeal, without a saving clause, will destroy any proceedings whether not yet begun, or whether pending at the time of the enactment of the repealing Act, and not already prosecuted to a final judgment so as to create a vested right." (Pp. 599-600)

In a footnote relating to the cases which the learned author cites in support of the above proposition, he adds:"See Cleveland, etc., R. Co. v. Mumford (Ind.) 197 N.E. 826 where the repeal of a statute during the trial prevented a judgment from being rendered. Similarly, there can be no legal conviction for an offence, unless the act be contrary to law at the time it is committed; nor can there be a judgment, unless the law is in force at the time of the indictment and judgment. If the law ceases to operate, by its own limitation or by a repeal, at any time before judgment, no judgment can be given.
Hence, it is usual in every repealing law to make it operate prospectively only, and to insert a saving clause, preventing the retroactive operation of the repeal and continuing the repealed law in force as to all pending prosecutions, and often as to all violations of the existing law already committed."

The author then proceeds to quote the following passage from Wall v. Chesapeake & Ohio
Ry., Company 125 N.E. 20:"It is well settled that if a statute giving a special remedy is repealed without a saving clause in favour of pending suits all suits must stop where the repeal finds them. If final relief has not been granted before, the repeal went into effect, it cannot be after. If a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the case under the law in force when its decision was rendered. The effect of the repeal is to obliterate the statute repealed as completely as if it had never been passed, and it must be considered as a law which never existed, except for the purposes of those actions or suits which were commenced, prosecuted and concluded while it was an existing law. Pending judicial proceedings based upon a statute cannot proceed after its repeal. This rule holds true until the proceedings have reached a final judgment in the court of last resort, for that court, when it comes to announce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was correct when pronounced in the subordinate tribunal from whence the appeal was taken, if it appears that pending the appeal a statute which was necessary to support the judgment of the lower court has been withdrawn by an absolute repeal." (P. 601)

It is well known that formerly the practice in England used to be to insert in most of the repealing statutes a clause saving anything duly done or suffered under the repealed statutes and any pending legal proceeding or investigations. Ultimately, to dispense with the necessity of having to insert a saving clause in almost every repealing Act, section 38(2) was inserted in the Interpretation Act, 1889, which provides that a repeal, unless the contrary intention appears, does not affect the previous operation of the repealed enactment or anything duly done or suffered under it, and any investigations, legal proceedings or remedies may be instituted, continued or enforced in respect of rights, liabilities and penalties under the repealed Act, as if the repealing Act had not been passed.
Crawford in his book to which I have referred adverts in these words to a similar difficulty which was experienced in America and to the manner in which it has been met:"Due to the numerous troublesome problems which constantly arose with the repeal of statutes, as well as to the numerous cases where hardship was caused, statutes have been enacted in several States expressly providing that the repeal of a statute shall not affect any rights, causes of action, penalties, forfeitures, and pending suits, accrued or instituted under the repealed statute."

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In India, the earliest attempt that was made to guard against the normal legal effect of a repeal is to be found in section 6 of Act I of 1868. This provision was further elaborated by section 6 of the General Clauses Act of 1897 which is on the same lines as section 38(2) of the Interpretation Act of England. The position therefore now in India as well as in England is that a repeal has not the drastic effect which it used to have before the enactment of the
Interpretation Act in England or the General Clauses Act in this country. But this is due entirely to the fact that an express provision has been made in these enactments to counteract that effect. Hence, in those cases which are not covered by the language of the General Clauses
Act, the principle already enunciated will continue to operate. The learned Attorney-General had to concede that it was doubtful whether section 6 of that Act is applicable where there is a repeal by implication, and there can be no doubt that the law as to the effect of the expiry of a temporary statute still remains as stated in the books, because section6 of the General
Clauses Act and section 38(2) of the Interpretation Act have no application except where an
Act is repealed. It should be remembered that the soundness of the law which has been consistently applied to cases governed by statutes which have ceased to be in force, by reason having been repealed or having expired, has never been questioned, and it cannot be brushed aside as if it embodied some archaic or obsolete rule peculiar only to the common law of
England. It is the law which has been enunciated by eminent Judges both in England and in
America and is based on good sense and reason.
I shall now proceed to consider what would be the correct legal position, when a provision of an existing law is held to be void under article 13(1) of the Constitution. From the earlier proceedings before the Constituent Assembly, it appears that in the original draft of the
Constitution, the words "shall stand abrogated" were used instead of "shall be void," in article 13(1), and one of the questions directly before the Assembly was what would be the effect of the use of those words upon pending proceedings and anything duly done or suffered under the existing law. Ultimately, the article emerged in the form in which it stands at present, and the words "shall stand abrogated" were replaced by the words "shall be void." If the words
"stand abrogated" had been there, it would have been possible to argue that those words would have the same effect as repeal and would attract section 6 of the General Clauses Act, but those words have been abandoned and a very strong expression, indeed the strongest expression which could be used, has been used in their place. The meaning of the word "void" is stated in Black 's Law Dictionary (3rd Edn.) to be as follows:"null and void; ineffectual; nugatory; having no legal force or binding effect; unable in law to support the purpose for which it was intended; nugatory and ineffectual so that nothing can cure it; not valid."

A reference to the Constitution will show that the framers thereof have used the word
"repeal" wherever necessary (see articles 252, 254, 357, 372 and 395). They have also used such words as "invalid" (see articles 245,255 and 276), "cease to have effect" (see articles 358 and372), "shall be inoperative", etc. They have used the word "void" only in two articles, these being article 13(1) and article 154, and both these articles deal with cases where a certain law is repugnant to another law to which greater sanctity is attached. It further appears that where they wanted to save things done or omitted to be done under the existing law, they have used apt language for the purpose; see for example articles 249, 250, 357, 358 and 369. The thoroughness and precision which the framers of the
Constitution have observed in the matters to which reference has been made, disinclines me to read into article 13(1) a saving provision of the kind which we are asked to read into it.
Nor can I be persuaded to hold that treating an Act as void under article 13(1) should have a milder effect upon transactions not past and closed than the repeal of an Act or its expiry in due course of time. In my opinion, the strong sense in which the word "void" is normally used

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and the context in which it has been used are not to be completely ignored. Evidently, the framers of the Constitution did not approve of the laws which are in conflict with the fundamental rights, and, in my judgment, it would not be giving full effect to their intention to hold that even after the Constitution has come into force, the laws which are inconsistent with the fundamental rights will continue to be treated as good and effectual laws in regard to certain matters, as if the Constitution had never been passed. How such a meaning can be read into the words used in article 13(1), it is difficult for me to understand. There can be no doubt that article 13(1) will have no retrospective operation, and transactions which are past and closed, and rights which have already vested, will remain untouched. But with regard to inchoate matters which were still not determined when the Constitution came into force, and as regards proceedings whether not yet begun, or pending at the time of the enforcement of the Constitution and not yet prosecuted to a final judgment, the very serious question arises as to whether a law which has been declared by the Constitution to be completely ineffectual can yet be applied. On principle and on good authority, the answer to this question would appear to me to be that the law having ceased to be effectual can no longer be applied. In R. v. Mawgan
(Inhabitants) (1888) 8 A. & E. 496 a presentment as to the non-repair of a highway had been made under 13 Geo. 3, c. 78, s. 24, but before the case came on to be tried, the Act was repealed. In that case, Lord Denman C.J. said:
"If the question had related merely to the presentment, that no doubt is complete.
But dum loquimur, we have lost the power of giving effect to anything that takes place under that proceeding."

And Littledale J. added:
"I do not say that what is already done has become bad, but that no more can be done." In my opinion, this is precisely the way in which we should deal with the present case.

It was argued at the Bar that the logical outcome of such a view would be to hold that all the convictions already recorded and all the transactions which are closed, should be reopened, but, in my opinion, to argue on those lines is to overlook what has been the accepted law for centuries, namely, that when a law is treated as dead, transactions which are past and closed cannot be revived and actions which were commenced, prosecuted and concluded whilst the law was operative cannot be reopened.
In the course of the arguments, a doubt was also raised as to what would be the effect in the case of an appeal pending when the Constitution came into force, from a conviction already recorded before the 26th January, 1950. The law applicable to such a situation is well-known and has been correctly summed up by Crawford in these words:"Pending judicial proceedings based upon a statute cannot proceed after its repeal.
The rule holds true until the proceedings have reached a final judgment in the court of last resort, for that court, when it comes to announce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was correct when pronounced in the subordinate tribunal from whence the appeal was taken, if it appears that pending the appeal a statute which was necessary to support the judgment of the lower court has been withdrawn by an absolute repeal." I think I should at this state deal briefly with two points which were raised in the course of the arguments in support of the opposite view. It was urged in the first place that without there being a saving clause to govern article 13(1), it can be so construed as to permit offences committed prior to the 26th January, 1950, to be punished. The argument has been put forward more or less in the following form. The law which is said to be in conflict with the fundamental rights was a good law until the 25th January, and, since article 13(1) is to be construed prospectively, and not retrospectively, every act constituting an offence under the old law

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remains an offence and can be punished even after the 26th January. It seems to me that the same argument could be urged with reference to matters which constituted offences under a repealed Act or a temporary Act which has expired. But such an argument has never succeeded. The real question is whether a person who has not been convicted before the Act has ceased to exist or ceased to be effectual can still be prosecuted under such an Act. The answer to this question has always been in the negative, and I do not see why a different answer should be given in the case of an Act which has been come void, i.e., which has become so ineffectual that it cannot be cured.
The second argument which also has failed to impress me is that if section 6 of the General
Clauses Act does not in terms apply, the principle underlying that section should be applied.
The answer to this argument is that the Legislature in its wisdom has confined that section to a very definite situation, and, though it was open to it to make the section more comprehensive and general, it has not done so. It is well-known that situations similar to those which arise by reason of the repeal of an Act have arisen in regard to Acts which have expired or Acts which have been declared to be void, and, though such situations must have been well-known to the
Legislature, they have not been provided for. In these circumstances, I do not see how the very clear and definite provision can be enlarged in the manner in which it is attempt to be enlarged.
Besides, I have not come across any case in which the principle underlying section 38(2) of the Interpretation Act or section 6 of the General Clauses Act has been invoked or applied.
In the present case, we have to look at the state of the law at the time when the question arises as to whether a person has committed any offence. If we find that the law which made the act an offence has become completely ineffectual and nugatory, then neither can a charge be framed nor can the accused person be convicted. In my opinion, if the assumption on which the High Court has proceeded is correct, the appellant is entitled to a declaration that he cannot be convicted for the offence of which he is accused.

JUSTICE MUKHERJEA (CONCURRING WITH JUSTICE FAZL ALI)
I am in entire agreement with the view taken by my learned brother Fazl Ali J. In his judgment and I concur both in his reasons and his conclusion.

JUSTICE MAHAJAN (FOR HIMSELF)
The appellant is the secretary of the People 's Publishing House Ltd., Bombay. In
September, 1949, he published a pamphlet entitled "Railway Mazdoorum Ke Khilaf Nai
Sazish." On the 9th December, 1949, he was arrested and a prosecution was launched against him under section 18(1) of the Indian Press (Emergency Powers) Act (XXIII of 1931) in the
Court of the Chief Presidency Magistrate at Bombay in respect of this pamphlet, as it had been published without any authority as required under section 16 of the said Act. On the 8th March,
1950, an application was made on his behalf in the High Court of Judicature at Bombay under article 228 of the Constitution of India for quashing the proceedings started against him and it was contended that sections 16 and 18 of Act XXIII of 1931 were ultra vires of Part III of the Constitution of India and were thus void and had no effect whatsoever and no prosecution launched under these sections could be proceeded with after the coming into force of the
Constitution. The High Court refused this application and held that the proceedings instituted against the appellant before the commencement of Constitution could not be affected by the provisions of the Constitution that came into force on the 26th January, 1950. Dissatisfied with this decision, the appellant has preferred the present appeal to this court.

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The sole point to decide in the appeal is whether proceedings instituted under section 18(1) of the Indian Press (Emergency Powers) Act, XXIII of 1931, before the commencement of the Constitution of India are affected by its provisions. The High Court has answered this question in the negative and, in my opinion, rightly.
I am in respectful agreement with the observations of the learned Chief Justice of Bombay that it is difficult to believe that the Constituent Assembly contemplated that with regard to the laws which it was declaring to be void under article 13 all vested rights and all proceedings taken should be disturbed and affected by particulars laws ceasing to be in force as a result of inconsistencies with the fundamental rights guaranteed to the citizens. It is not arguable and was not argued that Part III of the Constitution has any retrospective operation. The appellant was not possessed of any fundamental rights in September, 1949, when he published the pamphlet in question and his act clearly came within the mischief of the provisions of section
18 of Act XXIII of 1931 and he thus became liable to the penalties prescribed therein.
It was, however, contended by Mr. Chari, the learned counsel for the appellant, that the effect of the language employed in article 13(1) of the Constitution was that the proceedings commenced before the coming into force of the Constitution could not be continued after its commencement under the laws that became inconsistent with its provisions. For this proposition he placed reliance on the rule of construction stated in Maxwell on "Interpretation of Statutes", p. 404, which is to the following effect:"Where an Act expired or was repealed, it was formerly regarded, in the absence of provision to the contrary, as having never existed, except as to matters and transactions passed and closed. Where, therefore, a penal law was broken, the offender could not be punished under it if it expired before he was convicted, although the prosecution was begun while the Act was still in force."

This rule seems to be based on a statement of Tindal C.J. in Kay v. Goodwin 130 E.R.
1403; (1830) 6 Bing. 576. The learned Chief Justice made the following observations:"I take the effect of repealing a statute to be, to obliterate, it as completely from the records of Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law."

This was the rule of the English common law which was applied in cases of statutes which were repealed and under this rule all pending actions and prosecutions could not be proceeded with after the repeal of the law under which they were started. This rule was however changed by the Interpretation Act of 1889, section 38. Therein it was enacted that unless the contrary intention appears, no repeal is to affect any investigation, legal proceeding, including the initiation of criminal proceedings, or remedy in respect of any such right, privilege, obligation, liability penalty, forfeiture, or punishment and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed. A similar provision exists in India in section 6 of the General Clauses Act of 1868 and 1897. The High Court held that the provisions of article 13(1) were analogous to the repeal of a statute and therefore section 6 of the General Clauses Act had application to the construction of these provisions and that being so, the coming into force of the Constitution did not in any way affect the continuance of the proceedings that had been commenced against the appellant under the law that was in force at the time of the publication of the pamphlet.
Mr. Chari contended that the High Court was in error in applying the provisions of section 6 of the General Clauses Act to the interpretation of article 13(1) of the Constitution inasmuch as the provisions of this article were not analogous to repeal and did not amount to a repeal of the existing law. He contended that a repeal of the law could only be by the

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legislature but that under article 13 power had been given to the court to declare any law inconsistent with the Constitution to be void; in other words, the power given was larger in scope and effect than the power of repeal and the effect of the declaration that a certain statute was void as it was repugnant to the freedom guaranteed by the Constitution was to wipe out the statute altogether from the date of the coming into force of the Constitution and that nothing could be done under that statute with effect from the 26th January, 1950, and therefore the court could not frame a charge under the law that was declared void, or pass a judgment of conviction against a person under a law that had been declared void.
Mr. Chari went to the length of saying that a statute which was inconsistent with the
Constitution became dead on the coming into force of the Constitution and under a dead statute no action could be taken whatsoever. He emphasised his contention by stressing the fact that freedoms guaranteed by Part III of the Constitution could not be tainted by keeping alive prosecutions and actions under laws framed by a foreign government which were inconsistent with those freedoms. It was said that some of the laws which the Constitution intended to be declared void by the court because of their repugnancy to the fundamental rights guaranteed to the citizen by the Constitution were those which a foreign government had enacted to keep the people of this country under its domination and that to continue prosecutions under these laws after the coming into force of the Constitution would be wholly contrary and repugnant not only to the letter of the Constitution but also to its spirit. It was conceded that transactions finally closed under such laws could not be reopened but that prosecutions and actions which were still continuing should be stopped and further action concerning them would become illegal and would be contrary to the freedoms guaranteed by the Constitution. Reference was made to articles 249, 250, 357, 358 and 369 to show that the scheme of the Constitution was that wherever it intended that the proceedings commenced under existing laws which became in-operative on the 26th January, 1950, were to continue after that date, apt phraseology had been used to indicate that intention but that in article 13 no such saving words were used and therefore it must be presumed that the Constituent Assembly did not intend that proceedings taken under such laws were to be continued after the 26th January, 1950.
Article 13(1) of the Constitution is in these terms:"All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void."

The freedom guaranteed to the citizen which has application to the case of the appellant is in article 19(1)(a)and this article is in these terms :"All citizens shall have the right to freedom of speech and expression."

It is admitted that after the 26th January, 1950, there has been no infringement of the appellant 's right of freedom of speech or expression. In September 1949, he did not enjoy either complete freedom of speech or full freedom of expression. It is in relation to the freedom guaranteed in article 19(1) of the Constitution to the citizen that the provisions of article 13(1) come into play. This article does not declare any law void independently of the existence of the freedoms guaranteed by Part III. A citizen must be possessed of a fundamental right before he can ask the court to declare a law which is inconsistent with it void; but if a citizen is not possessed of the right, he cannot claim this relief. The appellant in the present case was not possessed of any fundamental right on the day that he published the pamphlet and in these circumstances the question is whether he can claim protection under the rights guaranteed to him on 26th January, 1950, for escaping the consequence of his act on any principles of construction of statutes.

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According to the contention of the learned counsel, the principles applicable to repealed statutes are not in terms applicable to such a case, whether they are to be found in the rules of the common law of England or whether they are contained in the Interpretation Act or the
General Clauses Act. Those rules are applicable to cases either of repeal or to cases of a statute dying a natural death by efflux of time. None of those however have any application to the construction of statutes framed in languages like the one contained in article 13(1) of the
Constitution. Besides the rule of construction which applies to repealed statutes or to temporary statutes our attention was not drawn to any other rule of construction under which a person who commits an offence against an Act during its existence as a law becomes unpunishable on its termination.
Both on considerations of convenience and also on grounds of justice and reason I am inclined to think that penalties incurred under a law in force at the time when the act was committed would survive its extinction so that persons who violate its provisions might afterwards be punished. Persons who during the continuance of a statute have obtained rights under it cannot be affected by a declaration that the statute with effect from a certain date will become an inoperative statute. When in the case of repeal of a statute, which according to
Tindal C.J. obliterates it completely from the records of Parliament as if it had never been passed, the common law rule has been abrogated by statute, it is difficult to apply that rule on any sentimental grounds at this date to the case of statutes which are declared void or declared to have no effect whatsoever after a certain date only.
The expression "void" has no larger effect on the statute so declared than the word
"repeal". The expression "repeal" according to common law rule obliterates a statute completely as if it had never been passed and thus operates retrospectively on past transactions in the absence of a saving clause or in the absence of provisions such as are contained in the
Interpretation Act, 1889, or in the General Clauses Act, 1897, while a provision in a statute that with effect from a particular date an existing law would be void to the extent of the repugnancy as no such retrospective operation and cannot affect pending prosecutions or actions taken under such laws. There is in such a situation no necessity of introducing a saving clause and it does not need the aid of a legislative provision of the nature contained in the
Interpretation Act or the General Clauses Act. To hold that a prospective declaration that a statute is void affects pending cases is to give it indirectly retrospective operation and that result is repugnant to the clear phraseology employed in the various articles in Part III of the
Constitution.
The contention of the learned Attorney-General that the phraseology employed in article 13(1) of the Constitution clearly indicates that there was no intention to give any retrospective operation to the provisions of Part III of the Constitution and that of the declaration that laws repugnant to Part III of the Constitution are void only operates from 26th
January, 1950, has, in my opinion, force. It seems clear that an existing statute in spite of a declaration by court that it is void remains in force till the 25th January, 1950, and continues to remain on the statute book even after the 26th January, 1950, except that no effect can be given to any of its provisions which are repugnant to the fundamental rights guaranteed by the
Constitution. The effect of article 13(1) is only prospective and it operates in respect to the freedoms which are infringed by the State subsequent to the coming into force of the
Constitution but the past acts of a person which came within the mischief of the law then in force are not affected by Part III of Constitution. The reference made by Mr. Chari to different articles of the Constitution where saving clauses have been inserted to save pending proceedings or acts is not very helpful inasmuch as where a certain provision has retrospective effect, then it is necessary to introduce a saving clause if things done in the past have to be saved from the retrospective effect of the statute; but where the provision is clearly not

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intended to be retrospective, then the necessity of saving clause does not arise. The provisions of the Constitution to which Mr. Chari made reference were of the nature that but for the saving clause the effect of them would be retrospective in character under the accepted canons of construction of statutes.
Mr. Chari 's argument that it could not have been intended by the Constitution makers that prosecutions started under laws passed by a foreign power and which affect the freedoms guaranteed to the citizen under the Constitution in Part III were to be continued after the dawn of independence and after India had become a democratic republic to a certain extent seems to me to be plausible; but on further thought I have come to the conclusion that this argument appeals more to the heart than to the head and is not based on any sound principle of construction of statutes. Under the accepted canons of construction of statutes, if a law has no retrospective operation of any kind whatsoever, then such a law cannot affect pending prosecutions or actions and the Constitution not being retrospective in its operation could not therefore in any way affect prosecutions started for offences that were complete under the law in force at the time they were committed. The cure for such an incongruous state of affairs and the relief for such situation lies with the Government and the legislature and not with the courts. If a case of sedition against an alien government is continued after the coming into force of the Constitution, the court cannot decline to proceed with it and to pass some sentence howsoever lenient, against an accused by placing a construction on the Constitution which gives it retrospective operation, but the government of the republic or its legislature can always by executive or legislative action bring to a close all such distasteful proceedings and not only can it do so in the case of pending prosecutions but it can give relief also to persons who have suffered under laws of sedition against an alien government and are suffering terms of imprisonment in the jails of the Republic. If punishment for contravention of such laws cannot be given to offenders because decision in their case has been delayed beyond the 26th January,
1950, it will be highly unreasonable not to give relief and to let punishments continue in case of persons, the sentence against whom have already been passed under laws which were solely enacted to maintain the alien rule. Both cases, in my opinion, stand on the same footing and relief in those cases lies not with courts but with the executive government of the Republic.
If Mr. Chari 's argument that on the commencement of the Constitution on 26th January,
1950, all proceedings started under laws that became repugnant and inconsistent with the
Constitution were to be stopped was accepted, it would lead to very strange results, and Mr.
Chari had to concede that it would be so. Suppose a person was convicted of the offence of sedition or of an offence under one of the safety Acts, the provisions of which are repugnant to the Constitution, but his appeal was pending in the High Court against his conviction, then, according to the contention of Mr. Chari, the court has no power to hear the appeal because the law being void, no further action could be taken in the matter. The result would be that the
Court would not be able to hear an appeal and to give relief to the accused if he had been erroneously convicted. If a court cannot frame a charge or convict a person under a law that is repugnant to the Constitution equally it would not be entitled to continue any proceeding for the benefit of the accused under cover of such a law.
Great deal of emphasis was laid during the course of the argument on the meaning to be given to the word "void" and it was said that this word in its widest sense meant that the law declared void was void ab initio, i.e., from the very inception of the law it was bad. If that meaning was given to this word, then it would mean that all laws existing on the 26th January,
1950, and which were declared void by article 13(1) because of their being repugnant to the
Constitution were bad when they were passed by the legislature, though at the same time the

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subject enjoyed no fundamental rights. It was sought to give to this word "void" the same wide meaning as was given to the word "repeal" by Tindal C.J. in the case above mentioned.
With every respect to the great Judges who administered the common law in England during the earlier period of British history and in all humility I venture to say that the rule evolved by them qua "repeal" was of an artificial nature. The dictum of the learned Chief
Justice that a repeal of a statute obliterates it completely from the records of Parliament as if it had never been passed is to my mind based on an extended meaning of that expression than its ordinary dictionary sense. When a statute has been in operation, say for a period of fifty years, people have suffered penalties under it or have acquired rights thereunder and the law has been enforced by courts for such a long period, then to say that when it is repealed it is completely obliterated and that it never had any existence and was never passed by Parliament, is rather saying too much and is ignoring hard real facts and amounts to shutting one 's eyes to the actualities of the situation.
It would be more consonant with reason and justice to say that the law existed and was good at the time when it was passed but that since the date of its repeal it has no longer any effect whatsoever. The Parliament may however say in the repealing statute that it will have retrospective operation and it may also prescribe the limits of its retrospectivity and to that extent past transactions may be affected by it. Because the rule of common law evolved by the English Judges was not in consonance with reason and justice, a legislative practice was evolved under which each repealing statute contained a saving clause under which past transactions were not allowed to be affected by the repeal. Eventually the rule of common law was completely abrogated by the enactment of the Interpretation Act, 1889. In India in the year 1868, section 6 of the General Clauses Act enacted what was later on enacted in England in the Interpretation Act and for over eighty years it is this rule of construction that has been adopted in this country, the rule being that past transactions, whether closed or inchoate cannot be affected by the repeal of an earlier statute or by the coming into effect of a new one. In my opinion, the rule contained in the General Clauses Act and in the English Interpretation Act is more in consonance with reason and justice and is also a rule of convenience and should be followed in this country, in preference to the rule evolved by the English Judges in the earlier part of English legal history. Be that as it may, it is unnecessary in this case to have resort either to the rule of common law or to the General Clauses Act as the language of article 13 itself furnishes a solution to the problem.
Reference was also made to the rule of construction applicable to temporary statutes. In the case of such statutes, the rule of English law is that after the expiry of the life of the statute no action can be taken under the expired statute unless an intention can be gathered from its provisions to the contrary, but transactions already completed during the period that these statutes had the force of law are not in any way affected. That rule seems to be quite logical and is consonant with reason and justice. When the life of a statute is limited and it dies a natural death, then no question either of its retrospective or of prospective nature arises. If the intention of the statute was that anything done under it has to continue, then it will be allowed to continue; otherwise nothing done under it will be continued after its natural death. Any rule applicable to construction of such a statute has no application to the interpretation of the
Constitution of Indian and the reference to this rule, in my opinion, is not relevant for the decision of this matter.
Reference was also made to the rule of construction laid down by the American courts in respect of statutes declared void because of their being repugnant to the Constitution of the
United States of America. It is obvious that if a statute has been enacted and is repugnant to the Constitution, the statute is void since its very birth and anything done under it is also void and illegal. The courts in America have followed the logical result of this rule and even

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convictions made under such an unconstitutional statute have been set aside by issuing appropriate writs. If a statute is void from its very birth then anything done under it, whether closed, completed, or inchoate, will be wholly illegal and relief in one shape or another has to be given to the person affected by such an unconstitutional law. This rule, however, is not applicable in regard to laws which were existing and were constitutional according to the
Government of India Act, 1935. Of course, if any law is made after the 25th January, 1950, which is repugnant to the Constitution, then the same rule will have to be followed by courts in India as is followed in America and even convictions made under such an unconstitutional law will have to be set aside by resort to exercise of powers given to this court by the
Constitution.
The only rule of construction applicable to the interpretation of article 13 of the
Constitution is the one that concerns the determination of the question whether a statute is intended to have any retrospective operation. If the well-known canons of construction on this point are applied, then it has to be held that article 13 was not intended to have any retrospective effect whatever; on the other hand, its language denotes that it recognized the validity of the existing laws up to the date of the commencement of the Constitution and even after its commencement except to the extent of their repugnancy to any provisions of Part III of the Constitution. On this construction of article 13 it cannot affect any past transactions, whether closed or inchoate. Reference in this connection may be made to the provisions of article 372(2) of the Constitution. Under this article the President has been given power to adapt existing laws and to bring them in accordance with the articles of the Constitution by a process of amendment, repeal or adaptation. The President could have repealed the Press
(Emergency Powers) Act and brought the law in accordance with the provisions of Part III of the Constitution and if he had used the powers of repeal given to him by this article, the provisions of the General Clauses Act would have been immediately attracted to that situation and pending prosecution of the appellant would have to be continued in view of those provisions. If in that situation the Constitution contemplates the continuance of pending proceedings under existing laws, it becomes difficult to place a different interpretation on the phraseology employed in article 13(1) of the Constitution, that the one that is in accord with that situation. By the construction that I have placed on this article that incongruous result is avoided. In view of the decision above arrived at it seems unnecessary to pronounce on the alternative argument of the learned Attorney-General to the effect that the expression "void", used in article 13 of the Constitution is synonymous with the word "repeal" and that it was an apt word used in the context to indicate the same intention. It was said that the word "repeal" was not used in the article but instead the expression "void" was employed therein by the draftsmen in order to include within its ambit cases of custom and usage where such custom and usage were also repugnant to the provisions of Part III of the Constitution. It was also urged that by article 13(1) the Constitution in express terms repealed all laws inconsistent with its provisions and that the only power given to the court was to find out which of these laws was inconsistent with the provisions of Part III. The declaration that these laws were void or repealed was by the force of the provisions of article13 itself and did not result from the decision of the courts. It is also unnecessary to examine the further argument of the learned
Attorney-General that in any case since 1868 in this country the rule of construction of statutes is the one laid down by section 6 of the General Clauses Act, 1868 and that though in express terms that statute may not be applicable to the construction of article 13(1) of the Constitution, yet that rule is a rule of justice, equity and good conscience and has become a rule of common law in this country and should be applied even to cases where statutes become void by reason of their being repugnant to the Constitution.

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For the reasons given above I see no force in this appeal and I would accordingly dismiss it. STATE OF GUJARAT V. SHRI AMBIKA MILLS
AIR 1974 SC 1300, (1974) 4 SCC 656
Decided On: March 26, 1974
BENCH – CHIEF JUSTICE A. N. RAY, JUSTICES H. R. KHANNA, K. K. MATHEW, Y. V.
CHANDRACHUD & A. ALAGIRISWAMI

JUSTICE MATHEW (FOR THE COURT)
The facts are similar in all these cases. We propose to deal with Civil Appeal No. 2271 of
1968. The decision there will dispose of the other appeals.
The first respondent, a company registered under the Companies Act, filed a Writ petition in the High Court of Gujarat, In that petition it impugned the provisions of
Sections 3, 6A and 7 of the Bombay Labour Welfare Fund Act, 1953 (hereinafter referred to as (the Act) and Section 13 of the Bombay Labour Welfare Fund (Gujarat Extension and
Amendment) Act, 1961 (hereinafter referred to as the First Amendment Act) and Rules 3 and
4 of the Bombay Labour Welfare Fund Rules, 1953 (hereinafter referred to as the Rules) as unconstitutional and prayed for the issue of a writ in the nature of mandamus or other appropriate writ or direction against the respondents in the writ petition to desist from enforcing the direction in the notice dated August 2, 1962 of respondent no. 3 to the writ petition requiring the petitioner-1st respondent to pay the unpaid accumulations specified therein. The High Court held that Section 3(1) of the Act in so far as it relates to unpaid accumulations specified in Section 3(2)(b), Section 3(4) and Section 6A of the Act and Rules
3 and 4 of the Rules was unconstitutional and void.
In order to appreciate the controversy, it is necessary to state the background of the amendment made by the Legislature of Gujarat in the Act. The Act was passed by the legislature of the then State of Bombay in 1953 with a view to provide for the constitution of a fund for financing the activities for promoting the welfare of labour in the State of Bombay.
Section 2(10) of the Act defined "unpaid accumulation" as meaning all payments due to the employees but not made to them within a period of three years from the date on which they became due, whether before or after the commencement of the Act, including the wages and gratuity legally payable, but not including the amount of contribution, if any, paid by any employer to a Provident Fund established under the Employees ' Provident Fund Act, 1952.
Section 3(1) provided that the State Government shall constitute a fund called the Labour
Welfare Fund and that notwithstanding anything contained in any other law for the time being in force, the sums specified in Sub-section (2) shall, subject to the provisions of Sub-section
(4) and Section 6A be paid in to the fund. Clause (b) of Sub-section (2) of Section 3 provided that the Fund shall consist of "all unpaid accumulations". Section7(1) provided that the fund shall vest in and be applied by the Board of Trustees subject to the provisions and for the purposes of the Act. Section 19 gave power to the State Government to make rules and in the exercise of that power, the State Government made the Rules. Rules 3 and 4 concerned" the machinery for enforcing the provisions of the Act in regard to fines and unpaid accumulations.
In Bombay Dyeing & Manufacturing Co. Ltd. v. State of Bombay [1958] S.C.R. 1122 this
Court held that the provisions of Sections 3(1) and 3(2)(b) were invalid on the ground that

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they violated the fundamental right of the employer under Article 19(1)(f). The reasoning of the Court was that the effect of the relevant provisions of the Act was to transfer to the Board the debts due by the employer to the employees free from the bar of limitation without discharging the employer from his liability to the employees and that Section 3(1) therefore operated to take away the moneys of the employer without releasing him from his liability to the employees. The Court also found that there was no machinery provided for adjudication of the claim of the employees when the amounts were required to be paid to the fund.
The State sought to justify the provisions of the Act as one relating to abandoned property and, therefore, by their very nature, they could not be held to violate the rights of any person either under Article 19(1)(f) or Article 31(2). The Court did not accept the contention of the
State but held that the purpose of a legislation with respect to abandoned property being in the first instance to safeguard the property for the benefit of the true owners and the State taking it over only in the absence of such claims, the law which vests the property absolutely in the
State without regard to the claims of the true owners cannot be considered as one relating to abandoned property.
On May 1, 1960, the State of Bombay was bifurcated into the States of Maharashtra and
Gujarat. The legislature of Gujarat thereafter enacted to First Amendment Act making various amendments in the Act, some of them with retrospective effect. The First Amendment Act was intended to remedy the defects pointed out in the decision of this Court in the Bombay
Dyeing Case [1958] S.C.R. 1122. The preamble to the First Amendment Act recites that "it is expedient to constitute a Fund for the financing of activities to promote welfare of labour in the State of Gujarat, for conducting such activities and for certain other purposes".
Section 2(2) defines 'employee '. Section 2(3)defines 'employer ' as any person who employs either directly or through another person either on behalf of himself or any other person, one or more employees in an establishment and includes certain other persons.
Section 2(4) defines 'establishment ' and that sub-section as amended reads:
2(4) 'Establishment ' means:
(i) A factory;
(ii) A Tramway or motor omnibus service; and
(iii) Any establishment including a society registered under the Societies
Registration Act, 1960, and a charitable or other trust, whether registered under the Bombay Public Trusts Act, 1950, or not, which carries on any business or trade or any work in connection with or ancillary thereto and which employs or on any working day during the preceding twelve months employed more than fifty persons; but does not include an establishment (not being a factory) of the Central or any State Government.

Sub-section (10) of Section 2 defines 'unpaid accumulations ': 'unpaid accumulations ' means all payments due to the employees but not made to them within a period of three years from the date on which they became due whether before or after the commencement of this Act including the wages and gratuity legally payable but not including the amount of contribution if any, paid by an employer to a provident fund established under the Employees ' Provident
Funds Act, 1952.

Section 3 is retrospectively amended and the amended section in its material part provides that the State Government shall constitute a fund called the Labour Welfare Fund and that the
Fund shall consist of, among other things, all unpaid accumulations. It provides that the sums specified shall be collected by such agencies and in such manner and the accounts of the fund shall be maintained and audited in such manner as may be prescribed. The section further provides that notwithstanding anything contained in any law for the time being in force or any

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contract or instrument, all unpaid accumulations shall be collected by such agencies and in such manner as may be prescribed and be paid in the first instance to the Board which shall keep a separate account therefore until claims thereto have been decided in the manner provided in Section 6A. Section 6A is a new section introduced retrospectively in the Act and
Sub-section (1) and (2) of that section state that all unpaid accumulations shall be deemed to be abandoned property and that any unpaid accumulations paid to the Board in accordance with the provisions of Section 3 shall, on such payment, discharge an employer of the liability to make payment to an employee in respect thereof, but to the extent only of the amount paid to the Board and that the liability to make payment to the employee to the extent aforesaid shall, subject to the other provisions of the section, be deemed to be transferred to the Board.
Sub-section (3) provides that as soon as possible after any unpaid accumulation is paid to the Board, the Board shall, by a public notice, call upon interested employees to submit to the
Board their claims for any payment due to them.
Sub-section (4) provides that such public notice shall contain such particulars as may be prescribed and that it shall be affixed on the notice board or in its absence on a conspicuous part of the premises, of each establishment in which the unpaid accumulations were earned and shall be published in the Official Gazette and also in any two newspapers in the language commonly understood in the area in which such establishment is situated, or in such other manner as may be prescribed, regard being had to the amount of the claim.
Sub-section (5)states that after the notice is first affixed and published under Sub-section
(4) it shall be again affixed and published from time, to time for a period of three years from the date on which it was first affixed and published, in the manner provided in that Sub-section in the months of June and December each year.
Sub-section (6) states that a certificate of the Board to the effect that the provisions of
Sub-section (4) and (5) were complied with shall be conclusive evidence thereof.
Sub-section (7) provides that any claim received whether in answer to the notice or otherwise within a period of four years from the date of the first publication of the notice in respect of such claim, shall be transferred by the Board to the authority appointed under
Section 15 of the Payment of Wages Act, 1936, having jurisdiction in the area in which the factory or establishment is situated, and the Authority shall proceed to adjudicate upon and decide such claim and that in hearing such claim the Authority shall have the powers conferred by and shall follow the procedure (in so far as it is applicable) followed in giving effect to the provisions of that Act.
Sub-section (8) states that if in deciding any claim under Sub-section (7), the Authority allows the whole or part of such claim, it shall declare that the unpaid accumulation in relation to which the claim is made shall, to the extent to which the claim is allowed ceases to be abandoned property and shall order the Board to pay to the claimant the amount of the claim as allowed by it and the Board shall make payment accordingly : provided that the Board shall not be liable to pay any sum in excess of that paid under Sub-section (4) of Section 3 to the
Board as unpaid accumulations, in respect of the claim.
Sub-section (9) provides for an appeal against the decision rejecting any claim.
Sub-section (10) provides that the Board shall comply with any order made in appeal.
Sub-section (11) makes the decision in appeal final and conclusive as to the right to receive payment, the liability of the Board to pay and also as to the amount, if any; and Subsection (12) states that if no claim is made within the time specified in Sub-section (7) or a claim or part thereof has been rejected, then the unpaid accumulations in respect of such claim

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shall accrue to and vest in the State as bona vacantia and shall thereafter without further assurance be deemed to be transferred to and form part of the Fund.
Section 7(1) provides that the Fund shall vest in and be held and applied by the Board as
Trustees subject to the provisions and for the purposes of the Act and the moneys in the Fund shall be utilized by the Board to defray the cost of carrying out measures which may be specified by the State Government from time to time to promote the welfare of labour and of their dependents. Sub-section (2) of Section 7 specifies various measures for the benefit of employees in general on which the moneys in the Fund may be expended by the Board.
Section 11 provides for the appointment of an officer called the Welfare Commissioner and defines his powers and duties.
Section 19 confers rule-making power on the State Government.
Section 22 empowers the State Government by notification in the official gazette to exempt any class of establishment from all or any of the provisions of the Act subject to such conditions as may be specified in the notification.
During the pendency of the writ petition before the High Court, the Gujarat Legislature passed the Bombay Labour Welfare Fund (Gujarat Amendment) Act, 1962 on February 5,
1963 (hereinafter referred to as the Second Amendment Act) introducing Sub-section (13) in
Section 6A with retrospective effect from the date of commencement of the Act. That Subsection provides as follows:
(13) Nothing in the foregoing provisions of this section shall apply to unpaid accumulations not already paid to the Board;
(a) in respect of which no separate accounts have been maintained so that the unpaid claims of employees are not traceable, or
(b) which are proved to have been spent before the sixth day of December, 1961, and accordingly such unpaid accumulations shall not be liable to be collected and paid under Sub-section (4) of Section 3.

The State Government, in the exercise of its rule-making power under Section 19 amended the Rules by amending Rule 3 and adding a new Rule 3A setting out the particulars to be contained in the public notice issued under Section6A(3).
The first respondent raised several contentions before the High Court, but the Court rejected all except two of them and they were: (1) that the impugned provisions violated the fundamental right of citizen-employers and employees under Article 19(1)(f) and, therefore, the provisions were void under Article 13(2) of the Constitution and hence there was no law, and so, the notice issued by the Welfare Commissioner was without the authority of law; and
(2) that discrimination was writ large in the definition of 'establishment ' in Section 2(4) and since the definition permeates through every part of the impugned provisions and is an integral part of the impugned provisions, the impugned provisions were violative of Article 14 and were void.
So, the two questions in this appeal are, whether the first respondent was competent to challenge the validity of the impugned provisions on the basis that they violated the fundamental right under Article 19(1)(f) of citizen-employers or employees and thus show that the law was void and non-existent and, therefore, the action taken against it was bad; and whether the definition of 'establishment ' in Section 2(4) violated the fundamental right of the respondent under Article 14 and the impugned provisions were void for that reason.
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We, however, proceed on the assumption that the impugned provisions abridge the fundamental right of citizen-employers and citizen-employees under Article 19(1)(f) in order to decide the further question and that is, whether, on that assumption, the first respondent could claim that the law was void as against the non-citizen employers or employees under
Article 13(2) and further contend that the non-citizen employers have been deprived of their property without the authority of law, as, ex hypothesi a void law is a nullity.
It is settled by the decisions of this Court that a Corporation is not a citizen for the purposes of Article 19 and has, therefore, no fundamental right under that article (see Tata Engineering and Locomotive Co. Ltd. v. State of Bihar, [1964] 6 SCR 885, R. C. Cooper v. Union of India,
[1970] 3 SCR 530. The same view was taken in Bennett Coleman v. Union of India, [1973] 2
SCR 757.
As already stated, the High Court found that the impugned provisions, in so far as they abridged the fundamental rights of the citizen-employers and employees under
Article 19(1)(f) were void under Article 13(2) and even if the respondent-company had no fundamental right under Article 19(1)(f), it had the ordinary right to hold and dispose of its property, and that the right cannot be taken away or even affected except under the authority of a law. Expressed in another way, the reasoning of the Court was that since the impugned provisions became void as they abridged the fundamental right under Article 19(1)(f) of the citizen-employers and employees the law was void and non-est, and therefore, the first respondent was entitled to challenge the notice issued by the Welfare Commissioner demanding the unpaid accumulation as unauthorized by any law.
The first respondent, no doubt, has the ordinary right of every person in the country to hold and dispose of property and that right, if taken away or even affected by the act of an
Authority without the authority of law, would be illegal. That would give rise to a justiciable issue which can be agitated in a proceeding under Article 226.
The real question, therefore, is, even if a law takes away or abridges the fundamental right of citizens under Article 19(1)(f), whether it would be void and therefore non-est as respects non-citizens? In Keshava Madhava Menon v. State of Bombay, AIR 1951 SC 128 the question was whether a prosecution commenced before the coming into force of the Constitution could be continued after the Constitution came into force as the Act in question there became void as violating Article 19(1)(a) and 19(2). Das, J. who delivered the majority judgment was of the view that the prosecution could be continued on the ground that the provisions of the
Constitution including Article 13(1) were not retrospective. The learned judge said that after the commencement of the Constitution, no existing law could be allowed to stand in the way of the exercise of fundamental rights, that such inconsistent laws were not wiped off or obliterated from the statute book and that the statute would operate in respect of all matters or events which took place before the Constitution came into force and that it is also operated after the Constitution came into force and would remain in the statute book as operative so far as non-citizens are concerned.
This decision is clear that even though a law which is inconsistent with fundamental rights under Article 19 would become void after the commencement of the Constitution, the law would still continue in force in so far as non-citizens are concerned. This decision takes the view that the word 'void ' in Article 13(1) would not have the effect of wiping out preConstitution laws from the statute book, that they will continue to be operative so far as noncitizens are concerned, notwithstanding the fact that they are inconsistent with the fundamental rights of citizens and therefore become void under Article 13(1).

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In Behram Khurshed Pesikaka v. State of Bombay, 1955 Cri L.J. 215 the question was about the scope of Article 13(1). This Court had held that certain provisions of the Bombay
Prohibition Act, 1949 (a pre-Constitution Act), in so far as they prohibited the possession, use and consumption of medicinal preparations were void as violating Article 19(1)(f). The appellant was prosecuted under the said Act and he pleaded that he had taken medicine containing alcohol. The controversy was whether the burden of proving that fact was on him.
It became necessary to consider the legal effect of the declaration made by this Court that
Section 13(b) of the said Act in so far as it affected liquid medicinal and toilet preparations containing alcohol was invalid as it infringed Article 19(1)(f). At the first hearing all the judges were agreed that a declaration by a Court that part of a section was invalid did not repeal or amend that section. Venkatarama Aiyar, J. with whom Jagannadhadas, J. was inclined to agree, held that a distinction must be made between unconstitutionality arising from lack of legislative competence and that arising from a violation of constitutional limitations on legislative power. According to him, if the law is made without legislative competence, it was a nullity; a law violating a constitutional prohibition enacted for the benefit of the public generally was also a nullity; but a law violating a constitutional prohibition enacted for individuals was not a nullity but was merely unenforceable. At the second hearing of the case,
Mahajan, J. after referring to Madhava Menon 's Case, said that for determining the rights and obligations of citizens, the part declared void should be notionally taken to be obliterated from the section for all intents and purposes though it may remain written on the statute book and be a good law when a question arises for determination of rights and obligations incurred prior to January 26, 1950, and also for the determination of rights of persons who have not been given fundamental rights by the Constitution. Das, J. in his dissenting judgment held that to hold that the invalid part was obliterated would be tantamount to saying covertly that the judicial declaration had to that extent amended the section. At p. 659, the learned Judge observed: It is beyond all dispute that it is for the Court to judge whether the restrictions imposed by any existing law or any part thereof on the fundamental rights of citizens are reasonable or unreasonable in the interest of the general public or for the protection of the interests of any Scheduled Tribe. If the Court holds that the restrictions are unreasonable then the Act or the part thereof which imposes such unreasonable restrictions comes into conflict and becomes inconsistent with the fundamental right conferred on the citizens by Article 19(1)(f) and is by Article
13(1) rendered void, not in toto or for all purposes or for all persons but 'to the extent of such inconsistency ' i.e., to the extent it is inconsistent with the exercise of that fundamental right by the citizens. This is plainly the position, as I see it.

Mahajan, C.J. rejected the distinction between a law void for lack of legislative power and a law void for violating a constitutional fetter or limitation on legislative power. Both these declarations, according to the learned Chief Justice, of unconstitutionally go to the root of the power itself and there is no real distinction between them and they represent but two aspects of want of legislative power.
In Bhikhai Narain Dhakras v. State of M.P.,[1955] 2 SCR 589 the question was whether the C.P. and Berar Motor Vehicles (Amendment) Act, 1947, amended Section 43 of the Motor
Vehicles Act, 1939, by introducing provisions which authorized the Provincial Government to take up the entire motor transport business in the Province and run it in competition with and even to the exclusion of motor transport operators. These provisions, though valid when enacted, became void on the coming into force of the Constitution, as they violated
Article 19(1)(g). On June 18, 1951, the Constitution was amended so as to authorize the State to carry on business "whether to the exclusion, complete or partial, or citizens or otherwise".
A notification was issued after the amendment and the Court was concerned with the validity of the notification. The real question before the Court was that although Section 43 was void

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between January 26, 1950, and June 18, 1951, the amendment of the Article 19(6) had the affect of removing the constitutional invalidity of Section 43 which, from the date of amendment, became valid and operative. After referring to the meaning given to the word 'void ' in Madhva Menon 's Case Das, Acting C.J. said for the Court:
All laws, existing or future, which are inconsistent with the provisions of Part III of our Constitution are, by the express provision of Article 13, rendered void 'to the extent of such inconsistency '. Such laws were not dead for all purposes. They existed for the purposes of pre-Constitution rights and liabilities and they remained operative, even after the Constitution, as against non-citizens. It is only as against the citizens that they remained in a dormant or moribund condition (at pp. 599-600)

In M. P. V. Sundararamaier v. State of A.P., [1958] 1 SCR 1422, Venkatarama Aiyar, J. said that a law made without legislative competence and a law violative of constitutional limitations on legislative power were both unconstitutional and both had the same reckoning in a court of law; and they were both unenforceable but it did not follow from this that both laws were of the same quality and character and stood on the same footing for all purposes.
The proposition laid down by the learned Judge was that if a law is enacted by a legislature on a topic not within its competence, the law was a nullity but if the law was on a topic within its competence but if it violated some constitutional prohibition, the law was only unenforceable and not a nullity. In other words, a law if it lacks legislative competence was absolutely null and void and a subsequent cession of the legislative topic would not revive the law which was still-born and the law would have to be re-enacted; but a law within the legislative competence but violative of constitutional limitation was unenforceable but once the limitation was removed, the law became effective. The learned judge said that the observations of Mahajan. J, in Pesikaka 's case that [the] part of Section 13(b) of the Bombay
Prohibition Act, 1949, which had been declared invalid by this Court "had to be regarded as null and void" could not in the context be construed as implying that the impugned law must be regarded as non-est so as to be incapable of taking effect when the bar was removed. He summed up the result of the authorities as follows:
Where an enactment is unconstitutional in part but valid as to the rest, assuming of course that the two portions are severable, it cannot be held to have been wiped out of the statute book as it admittedly must remain there for the purpose of enforcement of the valid portion thereof, and being on the statute book, even that portion which is unenforceable on the ground that it is unconstitutional will operate proprio vigore when the Constitutional bar is removed, and there is no need for a fresh legislation.

In Deep Chand v. State of U.P., [1959] Supp. 2 S.C.R. 8 it was held that a postConstitution law is void from its inception but that a pre-Constitution law having been validly enacted would continue in force so far as non-citizens are concerned after the Constitution came into force. The Court further said that there is no distinction in the meaning of the word 'void ' in Article 13(1) and in 13(2) and that it connoted the same concept but, since from its inception the post-constitution lay is void, the law cannot be resuscitated without reenactment. Subba Rao, J. who wrote the majority judgment said after citing the observations of Das, Actg. C.J. in Madhava Menon 's Case (supra):
The second part of the observation directly applies only to a case covered by
Article 13(1), for the learned Judges say that the laws exist for the purposes of pre-Constitution rights and liabilities and they remain operative even after the
Constitution as against non-citizens. The said observation could not obviously apply to post Constitution laws. Even so, it is said that by a parity of reasoning the post-Constitution laws are also void to the extent of their repugnancy and therefore the law in respect of non-citizens will be on the statute-book and by the application of the doctrine of eclipse, the same result should flow in its case also.

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There is some plausibility in this argument, but it ignores one vital principle, viz., the existence or the non-existence of legislative power or competency at the time the law is made governs the situation (p. 38).

Das, C.J. dissented. He was of the view that a post-constitution law may infringe either a fundamental right conferred on citizens only or a fundamental right conferred on any person, citizen or non-citizen and that in the first case the law will not stand in the way of the exercise by the citizens of that fundamental right and, therefore, will not have any operation on the rights of the citizens, but it will be quite effective as regards non-citizens.
In Mahendra Lal Jain v. State of U.P., [1963] Supp 1 S.C.R. 912, the Court was of the view that the meaning of the word 'void ' is the same both in Article 13(1) and Article 13(2) and that the application of the doctrine of eclipse in the case of pre-constitution laws and not in the case of post-constitution laws does not depend upon the two parts of Article 13; "that it arises from the inherent difference between Article 13(1) and Article 13(2) arising from the fact that one is dealing with pre-Constitution laws, and the other is dealing with postConstitution laws, with the result that in one case the laws being not still-born the doctrine of eclipse will apply while in the other case the law being still-born there will be no scope for the application of the doctrine of eclipse."
If the meaning of the word 'void ' in Article 13(1) is the same as its meaning in
Article 13(2), it is difficult to understand why a pre-Constitution law which takes away or abridges the rights under Article 19 should remain operative even after the Constitution came into force as regards non-citizens and a post-Constitution law which takes away or abridges them should not be operative as respects non-citizens. The fact that pre-Constitution law was valid when enacted can afford no reason why it should remain operative as respects noncitizens after the Constitution came into force as it became void on account of its inconsistency with the provisions of Part III. Therefore, the real reason why it remains operative as against non-citizens is that it is void only to the extent of its inconsistency with the rights conferred under Article 19 and that its void-ness is, therefore, confined to citizens, as, ex hypothesi, the law became inconsistent with their fundamental rights alone. If that be so, we see no reason why a post-Constitution law which takes away or abridges the rights conferred by Article
19 should not be operative in regard to non-citizens as it is void only to the extent of the contravention of the rights conferred on citizens, namely, those under Article 19.
Article 13(2) is an injunction to the 'state ' not to pass any law which takes away or abridges the fundamental rights conferred by Part III and the consequence of the contravention of the injunction is that the law would be void to the extent of the contravention. The expression 'to the extent of the contravention ' in the sub-article can only mean, to the extent of the contravention of the rights conferred under that part. Rights do not exist in vacuum. They must always inhere in some person whether natural or juridical and, under Part III, they inhere even in fluctuating bodies like a linguistic or religious minorities or denominations. And, when the sub-article says that the law would be void "to the extent of the contravention", it can only mean to the extent of the contravention of the rights conferred on persons, minorities or denominations, as the case may be. Just as a pre-Constitution law taking away or abridging the fundamental rights under Article 19 remains operative after the Constitution came into force as respects non-citizens as it is not inconsistent with their fundamental rights, so also a post-Constitution law offending Article 19, remains operative as against non-citizens as it is not in contravention of any of their fundamental rights. The same scheme permeates both the
Sub-articles, namely, to make the law void in Article 13(1) to the extent of the inconsistency with the fundamental rights, and in Article 13(2) to the extent of the contravention of those rights. In other words, the void-ness is not in rem but to the extent only of inconsistency or contravention, as the case may be of the rights conferred under Part III. Therefore, when

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Article 13(2) uses the expression 'void ', it can only mean, void as against persons whose fundamental rights are taken away or abridged by a law. The law might be 'still-born ' so far as the persons, entities or denominations whose fundamental rights are taken away or abridged, but there is no reason why the law should be void or 'still-born ' as against those who have no fundamental rights.
It is said that the expression "to the extent of the contravention" in the article means that the part of the law which contravenes the fundamental right would alone be void and not the ether parts which do not so contravene. In other words, the argument was that the expression is intended to denote only the part of the law that would become void and not to show that the law will be void only as regards the persons or entities whose fundamental rights have been taken away or abridged.
The first part of the sub-article speaks of 'any law ' and the second part refers to the same law by using the same expression, namely, 'any law '. We think that the expression 'any law ' occurring in the latter part of the sub-article must necessarily refer to the same expression in the former part and therefore, the Constitution-makers have already made it clear that the law that would be void is only the law that contravenes the fundamental rights conferred by Part
III, and so, the phrase 'to the extent of the contravention ' can mean only to the extent of the contravention of the rights conferred. For instance, if a section in a statute takes away or abridges any of the rights conferred by Part III, it will be void because it is the law embodied in the section which takes away or abridges the fundamental right. And this is precisely what the sub-article has said in express terms by employing the expression 'any law ' both in the former and the latter part of it. It is difficult to see the reason why the Constitution-makers wanted to state that the other sections, which did not violate the fundamental right, would not be void, and any such categorical statement would have been wrong, as the other sections might be void if they are inseparably knitted to the void one. When we see that the latter part of the sub-article is concerned with the effect of the violation of the injunction contained in the former part, the words "to the extent of the contravention" can only refer to the rights conferred under Part III and denote only the compass of void-ness with respect to persons or entities resulting from the contravention of the rights conferred upon them.
Why is it that a law is void under Article 13(2)? It is only because the law takes away or abridges a fundamental right. There are many fundamental rights and they inhere in diverse types of persons, minorities or denominations. There is no conceivable reason why a law which takes away the fundamental right of one class of persons, or minorities or denominations should be void as against others who have no such fundamental rights as, ex hypothesi the law cannot contravene their rights.
It was submitted that this Court has rejected the distinction drawn by Venkatarama Aiyar,
J. in Sundararamaiers case [1958] S.C.R. 1422 between legislative incapacity arising from lack of power under the relevant legislative entry and that arising from a check upon legislative power on account of Constitutional provisions like fundamental rights and that if the law enacted by a legislature having no capacity in the former sense would be void in rem, there is no reason why a law passed by a legislature having no legislative capacity in the latter sense is void only qua persons whose fundamental rights are taken away or abridged.
It was also urged that the expression "the State shall not make any law" in Article 13(2) is a clear mandate of the fundamental law of the land and, therefore, it is a case of total incapacity and total want of power. But the question is: what is the mandate? The mandate is that the
State shall not make any law which takes away or abridges the rights conferred by Part III. If no rights are conferred under Part III upon a person, or, if rights are conferred, but they are not taken away or abridged by the law, where is the incapacity of the legislature? It may be

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noted that both in Deep Chand 's case (supra) and Mahendra Lal Jain 's case (supra), the decision in Sundararamaier 's case (supra) was not adverted to. If on a textual reading of
Article 13, the conclusion which we have reached is the only, reasonable one, we need not pause to consider whether that conclusion could be arrived at except on the basis of the distinction drawn by Venkatarama Aiyar, J, in Sundararamaie 's case (supra). However, we venture to think that there is nothing strange in the notion of a legislature having no inherent legislative capacity or power to take away or abridge by a law the fundamental rights conferred on citizens and yet having legislative power to pass the same law in respect of non-citizens who have no such fundamental rights to be taken away or abridged. In other words, the legislative incapacity subject-wise with reference to Articles 245 and 246 in this context would be the taking away or abridging by law the fundamental rights under Article 19 of citizens.
Mr. H.W.R. Wade has urged with considerable force that the terms 'void ' and 'voidable ' are inappropriate in the sphere of administrative law See "Unlawful Administrative Action",
83 Law Quarterly Rev. 499, at 518. According to him, there is no such thing as void-ness in an absolute sense, for, the whole question is: void as against whom? And he cites the decision of the Privy Council in Durayappah v. Fernando (1967) 3 W.L.R. 289 in his support.
In Jagannath v. Authorised Officer, Land Reforms, [1972] 1 SCR 1055 this Court has said that a post-Constitution Act which has been struck down for violating the fundamental rights conferred under Part III and was therefore still-born, has still an existence without reenactment, for being put in the Ninth Schedule. That only illustrates that any statement that a law which takes away or abridges fundamental rights conferred under Part III is still-born or null and void requires qualifications in certain situations. Although the general rule is that a statute declared unconstitutional is void at all times and that its invalidity must be recognized and acknowledged for all purposes and is no law and a nullity, this is neither universally nor absolutely true, and there are many exceptions to it. A realistic approach has been eroding the doctrine of absolute nullity in all cases and for all purposes See Warring v. Colpoys 122 F. 2d
642 and it has been held that such broad statements must be taken with some qualifications
See Chicot Country Drainage District v. Baxter State Bank, Ark. 308 U.S. 371, that even an unconstitutional statute is an operative fact and may have consequences which cannot be ignored. See Corpus Justice Secundum, Vol. 16, p. 469.
………

We do not think it necessary to pursue this aspect further in this case. For our purpose it is enough to say that if a law is otherwise good and does not contravene any of their fundamental rights, non-citizens cannot take advantage of the void-ness of the law for the reason that it contravenes the fundamental right of citizens and claim that there is no law at all. Nor would this proposition violate any principle of equality before the law because citizens and non-citizens are not similarity situated as the citizens have certain fundamental rights which non-citizens have not. Therefore, even assuming that under Article 226 of the
Constitution, the first respondent was entitled to move the High Court and seek a remedy for infringement of its ordinary right to property, the impugned provisions were not non-est but were valid laws enacted by a competent legislature as respects non-citizens and the first respondent cannot take the plea that its rights to property are being taken away or abridged without the authority of law.
… … … [Discussion on Article 14 has been omitted] …

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UNIT 3 – EQUALITY CLAUSE (ARTICLE 14)
DOCTRINE OF REASONABLE CLASSIFICATION
STATE OF WEST BENGAL V. ANWAR ALI SARKAR
AIR 1952 SC 75
Decided On: January 11, 1952
BENCH – CHIEF JUSTICE PATANJALI SASTRI, JUSTICES S. FAZL ALI, M. C. MAHAJAN, B. K.
MUKHERJEA, S. R. DAS, N. C. AIYAR & VIVIAN BOSE

CHIEF JUSTICE SASTRI (for himself)
This is an appeal by the State of West Bengal from a judgment of a Full Bench of the
High Court of Judicature at Calcutta quashing the conviction of the respondent by the Special
Court established under section 3 of the West Bengal Special Courts Ordinance, 1949,
(Ordinance No. 3 of 1949) which was replaced in March, 1950, by the West Bengal Special
Courts Act, 1950, (West Bengal Act X of 1950) (hereinafter referred to as "the Act").
The respondent and 49 other persons were charged with various offences alleged to have been committed by them in the course of their raid as an armed gang on a certain factory known as the Jessop Factory at Dum Dum, and they were convicted and sentenced to varying terms of imprisonment by the Special Court to which the case was sent for trial by the
Governor of West Bengal by a notification dated 26th January, 1950, in exercise of the powers conferred by section 5(1) of the Act. Thereupon the respondent applied to the High Court under article 226 of the Constitution for the issue of a writ of certiorari quashing the conviction and sentence on the ground that the Special Court had no jurisdiction to try the case inasmuch as section 5(1), under which it was sent to that Court for trial, was unconstitutional and void under article 13(2) as it denied to the respondent the equal protection of the laws enjoined by article 14. The High Court by a Full Bench consisting of the Chief Justice and four other
Judges quashed the conviction and directed the trial of the respondent and the other accused persons according to law. Hence the appeal.
The Act is instituted "An Act to provide for the speedier trial of certain offences", and the preamble declares that "it is expedient to provide for the speedier trial of certain offences".
Section 3 empowers the State Government by notification in the official gazette to constitute
Special Courts, and section 4 provides for the appointment of special judges to preside over such courts. Section 5, whose constitutionality is impugned, runs thus:
5 (1) A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may by general or special order in writing, direct.
(2) No direction shall be made under sub-section (1) for the trial of an offence for which an accused person was being tried at the commencement of this Act before any cot but save as aforesaid, such direction may be made in respect of an offence, whether such offence was committed before or after the commencement of this Act.

Sections 6 to 15 prescribe the special procedure which the court has to follow in the trial of cases referred to it. The main features of such procedure which mark a departure from the established procedure for criminal trials under the Code of Criminal Procedure are the elimination of the committal procedure in sessions cases and the substitution of the procedure laid down in the Code for trial of warrant cases by the Magistrate, trial without jury or assessors, restriction of the court 's power in granting adjournments, special powers to deal

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with refractory accused and dispensation of de novo trial on transfer off a case from one special court to another. While some of these departures from the normal procedure might, in practice, operate in some respects to the disadvantage of persons tried before the Special Court, it cannot be said that they derogate from the essential requirements of a fair and impartial trial, so as to give rise, from their very nature, to an inference of a discriminatory design. In other words, it cannot be said that the special procedure provided in the Act is, on its face, calculated to prejudice the fair trial of persons subjected to it. The departure in each case is plainly calculated to shorten the trial and thus to attain the declared objective of the statute.
Harries C.J. who delivered the leading judgment, in which Das and Banerjee JJ. concurred, applied the test of what may be called "reasonable classification" and held that, although the need for a speedier trial than what is possible under the procedure prescribed by the Code of Criminal Procedure might form the basis of a reasonable classification and section
5(1) could not be regarded as discriminatory in so far as it authorises the State Government to direct that certain offences or classes of offences or classes of cases should be tried by a special court, the provision was discriminatory and violative of article 14 of the Constitution in so far as it purported to vest in the State Government an absolute and arbitrary power to refer to a special court for trial "any cases", which must include an individual case, "whether the duration of such a case is likely to be long or not". The learned Chief Justice rejected the argument that the word "cases" in the sub-section should, in view of the title and preamble of the Act, be construed as meaning cases requiring speedier trial." He found it "impossible to cut down the plain meaning of the word 'cases ' as used in the section". He realised that
"the powers under the sub-section could be so exercised as not to involve discrimination, but they also could, in my view, be exercised in a manner involving discrimination. When an Act gives power which may and can offend against a provision or provisions of the Constitution such an Act is ultra vires though it could be administered so as not to offend against the Constitution"

and he relied in support of this view on certain observation in the judgment of the majority in the Crossroads case [1950] S.C.R. 594, 603.
Chakravartti and Das JJ. delivered separate judgments agreeing with the conclusion of the
Chief Justice. Das Gupta J., however, going further and holding that section 5(1) was unconstitutional in its entirety inasmuch as "the classification sought to be made on the expediency of speedier trial is not a well-defined classification. It is too indefinite and there can hardly be any definite objective test to determine it."
Before considering whether section 5(1) infringes, to any and what extent, the constitutional prohibition under article 14, it is necessary to ascertain the true scope and intendment of the impugned provision. It purports to provide for the matters to be tried by a special court and does not, in form seek to define the kind or class of offences or cases which the State Government is empowered under the Act to assign to such a court for trial. In other words, the purpose of section 5(1) is to define the jurisdiction of a special court appointed under the Act and not the scope of the power conferred on the State Government to refer cases to such court. As the very object of the Act was to provide for speedier trials by instituting a system of special courts with a simplified and shortened procedure, it is reasonable to conclude that, so far as the legislature was concerned, its intention was that courts constituted under the
Act and applying such procedure should deal only with cases requiring speedier trial and that, accordingly, the State Government should refer to such courts only cases of that description.
The principle of construction applicable here is perhaps nowhere better stated than by Lord
Tenterden C.J. in Halton v. Cove (1830) 1 B & Ad. 538, 558:
"It is very true, as was argued for the plaintiff, that the enacting words of an Act of Parliament are not always to be limited by the words of the preamble, but must

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in many cases go beyond it. Yet, on a sound construction of every Act of
Parliament, I take it the words of the enacting part must be confined to that which is the plain object and general intention of the legislature in passing the Act, and that the preamble affords a good clue to discover what that object was".

The same view was expressed by Holmes J. in an American case, Carroll v. Greenwich
Inc. 199 U.S. 401:
"The object of the law, we assume, until the lower Court shall decide otherwise, is single-to keep up competition and the general language is to be restricted by the specifies provisions and to the particular end."

The title and the preamble as well as the other specific provisions of the Act here in question show unmistakably that the whole object and purpose of the legislation was to devise machinery for "speedier trial of certain offences", (which must mean trial of cases involving the commission of certain offences as there can, of course, be no trial of offences in the abstract) and the general expressions used in providing for the power to set that machinery in operation must be restricted to that end in accordance with the intention of the legislature; for, a literal construction of the general language would impute to the legislature an intention to confer an arbitrary power of reference which would be inconsistent not only with the declared object of the statute but also with the constitutional prohibition against discrimination, which the legislature must be taken to have been aware of when it deliberately re-enacted the provisions of the old Ordinance. The discretion vested in the State Government in selecting cases for reference to a special court may not be subject to judicial review and may, in that sense, be absolute, but that is very different from saying that it was intended to be arbitrary.
Its exercise must involve bona fide consideration of special features or circumstances which call for a comparatively prompt disposal of the case or cases proposed to be referred. In other words, section 5(1) must, in my opinion, be read as empowering the State Government to direct a special court to try such offences or classes of offences or cases or classes of cases as, in its judgment, require speedier trial.
The question next arise as to whether the provision, thus understood, violates the prohibition under article 14 of the Constitution. The first part of the article, which appears to have been adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the territories of India and thus enshrines what American Judges regard as the "basic principle of republicanism" [cf. Ward v. Flood, 17 Am. Rep. 405]. The second part which is a corollary of the firsts and is based on the last clause of the first section of the
Fourteenth Amendment of the American Constitution, enjoins that equal protection shall be secured to all such person in the enjoyment of their rights and liberties without discrimination or favoritism, or as an American Judge put it "it is a pledge of the protection of equal laws"
[Yick Wo v. Hopkins, 118 U.S. 356, 369], that is, laws that operate alike on all persons under like circumstances. And as the prohibition under the article is directed against the State, which is defined in article 12 as including not only the legislatures but also the Governments in the country, article 14 secures all person within the territories of India against arbitrary laws as well as arbitrary application of laws. This is further made clear by defining "law" in article 13 (which renders void any law which takes away or abridges the rights conferred by
Part III) as including, among other things, any "order" or "notification", so that even executive orders or notifications must not infringe article 14. This trilogy of articles thus ensures nondiscrimination in State action both in the legislative and the administrative spheres in the democratic republic of India.
This, however, cannot mean that all law must be general in character and universal in application. As pointed out in Chiranjit Lal 's case, [1950] S.C.R. 869, and in numerous
American decisions dealing with the equal protection clause of the 14th Amendment, the State

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in the exercise of its governmental power must of necessity make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying person or things to be subjected to such laws. But classification necessarily implies discrimination between persons classified and those who are not members of that class. "It is the essence of a classification" said Mr. Justice Brewer in Atchison, Topeka & Santa Fe R.
Co. v. Matthews, 174 U.S. 96, 106, "that upon the class are caste duties and burdens different from those resting upon the general public. Indeed the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines this matter of constitutionality". Commenting on this observation in his dissenting opinion in Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 566, 567, 568, (which later prevailed in Tigner v. Texas, 310 U.S. 141, Mr. Justice McKenna posed a problem and proceeded to answer it: "It seems like a contradiction to say that a law having equality of operating may yet give equality of protection. Viewed rightly, however, the contradiction disappears… Government is not a simple thing. It encounters and must deal with the problems which come from persons in an infinite variety of relations. Classification is the recognition of those relations, and, in making it, a legislature must be allowed a wide latitude of discretion and judgment… Classification based on those relations need not be constituted by an exact or scientific exclusion or inclusion of person or things.” Therefore it has been repeatedly declared that classification is justified if it is not palpably arbitrary.
Thus, the general language of article 14, as of its American counterpart, has been greatly qualified by the recognition of the State 's regulative power to make laws operating differently on different classes of persons in the governance of its subjects, with the result that the principle of equality of civil rights and of equal protection of the laws is only given effect to as a safeguard against arbitrary State action. It follows that in adjudging a given laws as discriminatory and unconstitutional two aspects have to be considered. First, it has to be seen whether it observes equality between all the persons on whom it is to operate. An affirmative finding on the point may not, however, be decisive of the issue. If the impugned legislation is a special law applicable only to a certain class of persons, the court must further enquire whether the classification is founded on a reasonable basis having regard to the object to be attained, or is arbitrary. Thus, the reasonableness of classification comes into question only in those cases where special legislation affecting a class of person is challenged as discriminatory. But there are other types of legislation such as for instances, the Land
Acquisition Act, which do not rest on classification, and no question of reasonable classification could fairly arise in respect of such enactments. Nor, obviously, could it arise when executive orders or notifications directed against individual citizens are assailed as discriminatory. It is interesting to find that the trend of recent decisions in America has been to lean strongly toward sustaining State action both in the legislative and in the administrative spheres against attacks based on hostile discrimination. Classification condemned as discriminatory have been subsequently upheld as being within the powers of the legislature. In Tigner v.
Texas, 310 U.S. 141, the majority view in Connolly 's case, 184 U.S. 540, holding that an
Illinois anti-trust law, which made certain forbidden acts criminal if done by merchants and manufactures but declared them to be civil wrongs if done by farmers and stockmen, was
"manifestly a denial of the equal protection of the laws" was considered to be no longer
"controlling". While in Gulf, Colorado & Santa Fe R. Co. v. Ellis, 165 U.S. 666, a Texas statute imposing an attorney 's fee in addition to costs upon railway corporations which unsuccessfully defended actions for damages for stock killed or injured by their train was

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struck down as discriminatory because such corporations could not recover any such fee if their defence was successful, a similar provision in a Kansas statute in respect of an action against railroad companies for damages by fire caused by operating the rail- road was upheld as not discriminatory in Atchison, Topeka & Santa Fe R. Co v. Matthews, 174 U.S. 96, the earlier case being distinguished on some ground which Harlon, J. in his dissenting opinion confessed he was not "astute enough to perceive". And the latest decision in Kotch v. Pilot
Comm 'rs, 330 U.S. 552, marks, perhaps, the farthest swing of the pendulum. A Louisiana pilotage law authorised the appointment of State pilots only upon certification by a State Board of river pilot commissioners who were themselves State Pilots. Among the prescribed qualifications was apprenticeship under a State pilot for a certain period. By admitting only their relatives and friends to apprenticeship, the members of the board made it impossible, with occasional exceptions, for others to be appointed as State pilots. Upholding the constitutionality of the law as well as the manner in which it was administered, the Court said:
"The constitutional command for a State to afford equal protection of the law sets a goal not attainable by the invention and application of a precise formula. This Court has never attempted that impossible task. A law which affects the activities of some groups differently from the way in which it affects the activities of other groups is not necessarily banned by the
14th Amendment. Otherwise, effective regulation in the public interest could not be provided, however essential that regulation might be."
These decisions seem, to my mind, to reveal a change of approach marked by an increasing respect for the State 's regulatory power in dealing with equal protection claims and underline the futility of wordy formulation of so called "tests" in solving problems presented by concrete cases.
Great reliance was placed on behalf of the respondent upon the decision in Truax v.
Corrigan, 257 U.S. 312 and Yick Wo v. Hopkins, 118 U.S. 356. In the former case it was held by a majority of 5:4 that a law which denied the remedy of injunction in a dispute between employer and his ex-employees was a denial of the equal protection of laws, as such a remedy was allowed in all other cases. But it is to be noted that the minority, which included Holmes and Brandies JJ., expressed the opinion that it was within the power of the State to make such differentiation and the law was perfectly constitutional. The legislation was obviously applicable to a class of persons and the decision was an instance where the classification was held to be arbitrary and is not of much assistance to the respondent. In the other case a San
Francisco Ordinance, which prohibited the carrying on of a laundry business within the limits of the City without having first obtained the consent of the Board of Supervisors unless it was located in building constructed of brick or stone, was held discriminatory and unconstitutional.
The undisputed facts disclosed in the record were that out of 320 laundries in San Francisco about 310 were constructed of wood, and about 240 of the 320 were owned and conducted by subjects of China. The petitioner, a Chinaman, and about 200 of his countrymen applied to the Board of Supervisors to continue their clothes-washing business in wooden buildings which they had been occupying for many year, but in all cases licence was refused, whereas not a single one of the petitions presented by 80 persons who were not subjects of China had been refused. Dealing with these facts the court observed:
"Though the law itself be fair on its face and impartial in appearance, yet if it is applied and administered by public authority with an evil eye and an unequal hand so as to practically make unjust and illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution."

It is to be noted that the law was "administered". i.e., not merely applied in a few stray cases, but regularly and systematically applied, making a hostile discrimination against a particular class of persons on grounds of race and colour. Such systematic discriminatory

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administration in practice of the ordinance though impartial on its face was, evidently, taken to give rise to the inference that it was designed to be so administered. That is how the decision has been explained in later cases. For instance, in Alchison Topeka & Santa Fe R. Co v.
Matthews, 174 U.S. 96, 105, it was said:
"In that case (Yick Wo 's case, 118 U.S. 356), a municipal ordinance of San
Francisco designed to prevent the Chinese from carrying on the laundry business was adjudged void. This Court looked beyond the mere letter of the ordinance to the condition of things as they existed in San Francisco and saw under the guise of regulation an arbitrary classification was intended and accomplished".

That is to say, the ordinance was that the Privy Council called a "colourable legislative expedient" which, under the "guise or pretence" of doing what is constitutionally permissible,
"in substance and purpose seeks to effect discrimination": Morgan Proprietary Ltd. v. Deputy
Commissioner of Taxation for New South Wales, [1940] A.C. 838, 858. Thus explained, the
Yick Wo case is no authority for the view that the vesting in a public authority of a discretion which is liable to abuse by arbitrary exercise contrary to its intendment is a sufficient ground for condemning a statute as discriminatory and unconstitutional.
On the other hand, there is ample authority in the American decisions for the view that the necessarily large powers vested in a legislature must include the power of entrusting to an administrative body a plenary but no arbitrary discretion to be exercised so as to carry out the purpose of an enactment. In Engel v. O ' Malley, 219 U.S. 128, a New York statute prohibiting individuals or partnerships to engage in the business of receiving deposits of money without a licence from the controller "who may approve or disapprove the application for a licence in his discretion" was sustained as constitutional. In answer to the argument that the controller might refuse a licence on his arbitrary whim, Holmes J. said:
"We should suppose that in each case the controller was expected to act for cause.
But the nature and extent of the remedy, if any, for a breach of duty on his part, we think it unnecessary to consider; for the power of the state to make the pursuit of a calling dependent upon obtaining a licence is well established where safety seems to require it."

In New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, a provision in the Sanitary
Code of the City of New York vested discretion in Local Health Boards to grant or withhold licences for carrying on milk business in the City. Upholding the constitutionality of the provision, Day J, observed after referring to certain prior decisions:"These cases leave in no doubt the proposition that the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the police power ' of the state is not violative of rights secured by the 14th Amendment. There is no presumption that the power will be arbitrarily exercised, and when it is shown to be thus exercised against the individual, under sanction of state authority, this court has not hesitated to interfere for his protection, when the case has come before it in such manner as to authorise the interference of a Federal Court."

And Holmes J. added that, although it did not appear from the statute that the action of the Board of Health was intended to be subject to judicial revision as to its reasonableness, he agreed that it was not hit at by the 14th Amendment.
In the light of the foregoing discussion it seems to me difficult to hold that section 5(1) in whole or in part is discriminatory. It does not, either in terms or by necessary implication, discriminate as between persons or classes of persons; nor does it purport to deny to any one equality before the law or the equal protection of the laws. Indeed, it does not by its own force make the special procedure provided in the Act applicable to the trial of any offence or classes of offences or classes of cases; for, it is the State Government 's notification under the section

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that attracts the application of the procedure. Nor is that procedure, as I have endeavored to show, calculated to impair the chances of a fair trial of the cases to which it may be made applicable, and no discriminatory intent or design is discernible on its face, unless every departure from the normal procedure is to be regarded as involving a hostile discrimination. I have already held, as a matter of construction, that section 5(1) vests a discretion in the State
Government to refer to a special court for trial such offences or classes of offences or cases or classes of cases as may, in its opinion require a speedier trial. Such discretion the State
Government is expected to exercise honestly and reasonably, and the mere fact that it is not made subject to judicial review cannot mean that it was intended to be exercised in an arbitrary manner without reference to the declared object of the Act or, as Harries C.J. put it, “whether the duration of a case is likely to be long or not.”
In the face of all these considerations, it seems to me difficult to condemn section 5(1) as violative of article 14. If the discretion given to the State Government should be exercised improperly or arbitrarily, the administrative action may be challenged as discriminatory, but it cannot affect the constitutionality of the law. Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it. As observed by Kania C.J. in Dr. Khare 's case, [1950] S.C.R. 519 "It is improper to start with such an assumption and decide the legality of an Act on that basis.
Abuse of power given by law sometimes occurs; but the validity of the law cannot be contested because of such an apprehension." On the contrary, it is to be presumed that a public authority will act honestly and reasonably in the exercise of its statutory powers, and that the State
Government in the present case will, before directing a case to be tried by a Special Court, consider whether there are special features and circumstances which might unduly protract its trial under the ordinary procedure and mark it off for speedier that under the Act.
But it was said that the possibility of the Act being applied in an unauthorised and arbitrary manner was sufficient to make it unconstitutional according to the decisions of this Court in
Romesh Thapar v. State of Madras, [1950] S.C.R. 594 and Chintaman Rao v. State of Madhya
Pradesh, [1950] S.C.R. 759. It will be recalled that this was the main ground on which the learned Judges in the High Court rested their decision. With respect, those decisions have, I think, no application here. In Romesh Thapar 's case the constitutionality of a provincial enactment purporting to authorise the Provincial Government to regulate the circulation of a news-sheet in the Province of Madras for the purpose of "securing the public safety or the maintenance of public order" was challenged as being inconsistent with the petitioner 's fundamental right to freedom of speech and expression conferred by article 19(1)(a) of the
Constitution. But the only relevant constitutional limitation on freedom of speech was that the
State could make a law directed against the undermining of the security of the State or the overthrow of it, and as the impugned enactment covered a wider ground by authorising curtailment of that freedom for the purpose of securing the public safety or the maintenance of public order, this Court held it to be wholly unconstitutional and void, observing:"Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out it must be held to be wholly unconstitutional and void. In other words, clause (2) of article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment, which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent."

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This passage, which was relied on by the learned Chief Justice lends no support to the view that the more possibility of an Act being used in a manner not contemplated by the legislature, thought such use may not be subject to judicial review on that ground, or, in other words, the mere possibility of its abuse in practice, would justify its condemnation as unconstitutional. The important distinction is that in Romesh Thapar 's case, the impugned enactment, having been passed before the commencement of the Constitution, did contemplate the use to which it was actually put, but such use was outside the permissible constitutional restrictions on the freedom of speech, that is to say, the Act was not condemned on the ground of the possibility of its being abused but on the ground that even the contemplated and authorised use was outside the limits of constitutionally permissible restrictions. The same remarks apply to the other decision relied on. The observations of Kania C.J. quoted above indicate the correct approach.
Even from the point of view of reasonable classification, I can see no reason why the validity of the Act should not be sustained. As already pointed out, wide latitude must be allowed to a legislature in classifying persons and things to be brought under the operation of a special law, and such classification need not be based on an exact or scientific exclusion or inclusion. I cannot share the view of Das Gupta J. that the expediency of speedier trial is "too vague and indefinite" to be the basis of a "well defined" classification. Legislative judgment in such matters should not be canvassed by courts applying doctrinaire "definite objective tests". The Court should not insist in such cases on what Holmes J. called "delusive exactness".
(Truax v. Corrigan, supra). All that the court is expected to see, in dealing with equal protection claims, is whether the law impugned is "palpably discriminatory", and, in considering such a question great weight ought to be attached to the fact that a majority of the elected representative of the people who made the law did not think so, though that is not, of course, conclusive. They alone know the local conditions and circumstances which demanded the enactment of such a law, and it must be remembered that "legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the Courts"
(per Holmes J. in Missouri K. & T. R. Co. v. May). After all, what the Legislature of West
Bengal has sought to do by passing this Act is to regulate criminal trials within its territories by instituting a system of special courts with a shortened and simplified procedure, without impairing the requirements of a fair and impartial trial, which is to be made applicable to such cases or classes of cases as, in the opinion of the executive government, require speedier disposal. I do not think that article 14 denies to the State Legislature such regulative power.
(cf. Missouri v. Lewis, 101 U.S. 22). To sustain a law as not being discriminatory is not, however, to leave the party affected by a discriminatory application of the law without a remedy, for, as we have seen, state action on the administrative side can also be challenged as a denial of equal protection and unconstitutional.
That brings us to the consideration of the validity of the notification issued in the present case. In Snowden v. Hughes, 321 U.S. 1, it was laid down that "the unlawful administration by State officers of a State statute fair on its face resulting in its unequal application to those who were entitled to be treated alike is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person or it may only be shown by extrinsic evidence showing a discriminatory design to favour one individual or a class over another not to be inferred from the action itself. But a discriminatory purpose is not presumed; there must be a showing of clear and intentional discrimination". No attempt has been made in the present case to prove that the State Government was influenced by any discriminatory motive or deign. On the other hand, the facts appearing on the record would seem to justify the reference of the case to the special court for trial. A pointed put by Chakravartti, J:

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"The notification by which the case of Anwar Ali Sarkar (the respondent herein) was directed to be tried by the special court did not relate merely to that case but covered five more cases in each of which the accused were several in number. In
Anwar Ali 's case itself, there were 49 other accused. All these cases related to the armed raid on the premises of Jessop & Co. in the course of which crimes of the utmost brutality were committed on a large scale and to incidents following the raid. There can be no question at all that the cases were of a very exceptional character and although the offences committed were technically offences defined in the Indian Penal Code, the Indian Arms Act and the High Explosives Act, it would be futile to contend that the offenders in these cases were of the same class as ordinary criminals, committing the same offences or that the acts which constituted the offences were of the ordinary types..... All these cases again have arisen out of serious disturbances which, according to the prosecution, partook of the nature of an organised revolt."

In view of these facts it seems to me impossible to say the State Government has acted arbitrarily or with a discriminatory intention in referring these cases to the Special Court, for there are obviously special features which mark off this group of cases as requiring speedier disposal than would be possible under the ordinary procedure, and the charge of discriminatory treatment must fail. I would allow this appeal as also Appeal No. 298 of 1951
(State of West Bengal v. Gajen Mali) which raises the same questions.

JUSTICE FAZL ALI (for himself)
I have come to the conclusion that these appeals should be dismissed, and since that is also the conclusion which has been arrived at by several of my colleagues and they have written very full and elaborate judgments in support of it, I shall only supplement what they have said by stating briefly how I view some of the crucial points arising in the case.
There is no doubt that the West Bengal Special Courts Ordinance, 1949, which was later replaced by the impugned Act (West Bengal Special Courts Act X of 1950, to be hereinafter referred to as "the Act"), was a valid Ordinance when it was promulgated on the 17th August,
1949. The Act, which came into effect on the 15th March, 1950, is a verbatim reproduction of the earlier Ordinance, and what we have to decide is whether it is invalid because it offends against article 14 of the Constitution. In dealing with this question, the following facts have to be borne in mind:(1) The farmers of the Act have merely copied the provisions of the Ordinance of 1949 which was promulgated when there was no provision similar to article 14 of present
Constitution.
(2) The provision of the American Constitution which corresponds to article 14 has, ever since that Constitution has been in force, greatly exercised the minds of the American Judges, who, notwithstanding their efforts to restrict its application within reasonable limits, have had to declare a number of laws and executive acts to be unconstitutional. One is also amazed at the volume of case-law which has grown round this provisions, which shows the extent to which it 's wide language can be stretched and the large variety of situations in which it has been invoked.
(3) Article 14 is as widely worded as, if not more widely worded that, its counterpart in the American Constitution, and is bound to lead to some inconvenient results and seriously affect some pre-Constitution laws.
(4) The meaning and scope of article 14 has been elaborately explained in two earlier decisions of this Court, viz., Chiranjit Lal Chowdhury v. Union of India, [1950] S.C.R. 869 and State of Bombay v. F. N. Balsara, [1951] S.C.R. 682, and the principles laid down in those

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decisions have to be kept in view in deciding the present case. One of these principles is that article 14 is designed to protect all persons placed in similar circumstances against legislative discrimination, and if the legislature takes care to reasonably classify persons for legislative purposes and if it deals equally with all persons belonging to a well-defined class, it is not open to the charge of denial of equal protection on the ground that the law does not apply to other person.
(5) There is nothing sacred or sacrosanct about the test of reasonable classification, but it has undoubtedly proved to be a useful basis for meeting attacks on laws and official acts on the ground of infringement of the equality principle.
(6) It follows from the two foregoing paragraphs that one of the ways in which the impugned Act can be saved is to show that it is based on a reasonable classification of the persons to whom or the offences in respect of which the procedure laid down in it is to apply, and hence it is necessary to ascertain whether it is actually based on such a classification.
With these introductory remarks, I will proceed to deal with some of the more important aspects of the case. The first thing to be noticed is that the preamble of the Act mentions speedier trial of certain offences as its object. Now the framers of the Criminal Procedure
Code (which is hereinafter referred to as "the Code") also were alive to the desirability of having a speedy trial in certain classes of cases, and with this end in view they made four different sets of provisions for the trail of four classes of cases, these being provisions relating to summary trials, trial of summons cases, trial of warrant cases and trial of cases triable by a court of session. Broadly speaking, their classification of the offences for the purpose of applying these different sets of provisions was according to the gravity of the offences, though in classifying the offences fit for summary trial the experience and power of the trying
Magistrate was also taken into consideration. The net result of these provisions is that offences which are summarily triable can be more speedily tried than summons cases, summons cases can be more speedily tried than warrant cases, and warrant cases can be more speedily tried than sessions cases. The framers of the Code appear to have been generally of the view that the graver the offence the more elaborate should be the procedure for its trial, which was undoubtedly an understandable point of view, and no one has suggested that their classification of offences for the four different modes of trial to which reference has been made is unreasonable in any sense.
The impugned Act has completely ignored the principle of classification followed in the
Code and it proceeds to lay down a new procedure without making any attempt to particularize or classify the offences or cases to which it is to apply. Indeed section 5 of the Act, which is the most vital section, baldly states that the "Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may, be general or special order in writing direct." I agree with my learned brothers that to say that the reference to speedier trial in the preamble of the Act is the basis of classification is to read into the Act something which it does not contain and to ascribe to its authors what they never intended. As
I have already stated, the Act is a verbatim copy of the earlier Ordinance which was framed before the present Constitution came into force, and article 14 could not have been before the minds of those who framed it because that Article was not then in existence.
The second point to be noted is that in consequence of the Act, two procedures, one laid down in the Code and the other laid down in the Act, exist side by side in the area to which the Act applies, and hence the provisions of the Act are apt to give rise to certain anomalous results, some of which may be stated as follows:(1) A grave offence may be tried according to the procedure laid down in the Act, while a less grave offence may be tried according to the procedure laid down in the Code.

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(2) An accused person charged with a particular offence may be tried under the Act while another accused person charged with the same offence may be tried under the Code.
(3) Certain offences belonging to a particular group or category of offences may be tried under the Act whereas other offences belonging to the same group or category may be tried under the Code.
Some of my learned colleagues have examined the provisions of the Act and shown that of the two procedures – one laid down in the Act and the other in the Code - the latter affords greater facilities to the accused for the purpose of defending himself that the former; and once it is established that one procedure is less advantageous to the accused than the other, any person tried by a Special Court constituted under the Act, who but for the Act would have been entitled to be tried according to the more elaborate procedure of the Code, may legitimately enquire:- Why is this discrimination being made against me and why should I be tried according to a procedure which has not the same advantages as the normal procedure and which even carries with it the possibility of one 's being prejudiced in one 's defence?
It was suggested that the reply to this query is that the Act itself being general and applicable to all persons and to all offences, cannot be said to discriminate in favour of or against any particular case or classes of persons or cases, and if any charge of discrimination can be leveled at all, it can be leveled only against the act of the executive authority if the Act is misused. This kind of argument however does not appear to me to solve the difficulty. The result of accepting it would be that even where discrimination is quite evident one cannot challenge the Act simply because it is couched in general terms; and one cannot also challenge the act of the executive authority whose duty it is to administer the Act, because that authority will say – I am not to blame as I am acting under the Act. It is clear that if the argument were to be accepted, article 14 could be easily defeated. I think the fallacy of the argument lies in overlooking the fact that the "insidious discrimination complained of is incorporated in the
Act itself", it being so drafted that whenever any discrimination is made such discrimination would be ultimately traceable to it. The Act itself lays down a procedure which is less advantageous to the accused than the ordinary procedure, and this fact must in all cases be the root-cause of the discrimination which may result by the application of the Act.
In the course of the arguments, it was suggested that the Act is open to criticism on two different and distinct grounds, these being-.
(1) that it involves excessive delegation of legislative authority amounting to its abdication in so far as it gives unfettered discretion to the executive, without laying down any standard or rules of guidance, to make use of the procedure laid down by it; and
(2) that it infringes article 14 of the Constitution.
The first criticism which is by no means an unsubstantial one, may possibly be met by replying on the decision of this Court in Special Reference No. 1 of 1951, In re Delhi Laws
Act, [1951] S.C.R. 747, but the second criticism cannot be so easily met, since an Act which gives uncontrolled authority to discriminate cannot but be hit by article 14 and it will be no answer simply to say that the legislature having more or less the unlimited power to delegate has merely exercised that power. Curiously enough, what I regard as the weakest point of the
Act (viz, it being drafted in such general terms) is said to be its main strength and merit, but I really cannot see how the generality of language which gives unlimited authority to discriminate can save the Act.
In some American cases, there is a reference to "purposeful or intentional discrimination", and it was argued that unless we can discovered an evil intention or a deliberate design to mete out unequal treatment behind the Act, it cannot be impugned. It should be noted however that

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the words which I have put in inverted commas, have been used in few American cases with reference only to executive action, where certain Acts were found to be innocuous but they were administered by public authority with "an evil eye and an unequal hand." I suggest most respectfully that it will be extremely unsafe to lay down that unless there was evidence that discrimination was "purposeful or intentional" the equality clause would not be infringed.
In my opinion, the true position is as follows – As a general rule, if the Act is fair and good, the public authority who has to administer it will be protected. To this general rule, however, there is an exception, which comes into play when there is evidence of mala fides in the application of the Act. The basic question however still remains whether the Act itself is fair and good, which must be decided mainly with reference to the specific provisions of the Act. It should be noted that there is no reference to intention in article 14 and the gravamen of that Article is equality of treatment. In my opinion, it will be dangerous to introduce a subjective test when the Article itself lays down a clear and objective test.
I must confess that I have been trying hard to think how the Act can be saved, and the best argument that came to my mind in support of it was this – The Act should be held to be a good one, because it embodies all the essentials of a fair and proper trial, namely, (1) notice of the charge, (2) right to be heard and the right to test and rebut the prosecution evidence, (3) access to legal aid, and (4) trial by an impartial and experienced out. If these are the requisites, so I argued with myself, to which all accused persons are equally entitled, why should a particular procedure which ensures all those requisites not be substituted for another procedure, if such substitution in necessitated by administrative exigencies or is in public interest, even though the new procedure may be different from and less elaborate than the normal procedure. This seemed to me to be the best argument in favour of the Act but the more I thought of it the more it appeared to me that it was not a complete answer to the problem before us. In the first place, it brings in the "due process" idea of the American Constitution, which our Constitution has not chosen to adopt. Secondly, the Act itself does not state that public interest and administrative exigencies will provide the occasion for its application. Lastly, the discrimination involved in the application of the Act is too evident to be explained away.
The farmers of the Constitution have referred to equality in the Preamble, and have devoted as many as five articles, namely, articles 14, 15, 16, 17, and 18 in the Chapter on
Fundamental Rights, to ensure equality in all its aspects. Some of these Articles are confined to citizens only and some can be availed of by non-citizens also; but on reading these provisions as a whole, one can see the great importance attached to the principle of equality in the Constitution. That being so, it will be wrong to whittle down the meaning of article 14, and however well-intentioned the impugned Act may be and however reluctant one may feel to hold it invalid, it seems to me that section 5 of the Act, or at least that part of it with which alone we are concerned in this appeal, does offend against article 14 of the Constitution and is therefore unconstitutional and void. The Act is really modelled upon a pre-Constitution pattern and will have to be suitably redrafted in order to conform to the requirements of the
Constitution.

JUSTICE MAHAJAN (for himself, CONCURRING WITH JUSTICE MUKHERJEA)
I had the advantage of reading the judgment prepared by my brother Mukherjea and I am in respectful agreement with his opinion.
Section 5 of the West Bengal Special Courts Act is hit by article 14 of the Constitution inasmuch as it mentions on basis for the differential treatment prescribed in the Act for trial of criminals in certain cases and for certain offences. The learned Attorney-General argued that the Act had grouped cases requiring speedier trial as forming a class in themselves,

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differentiating that class from cases not needing expedition and that it was on this basis that the special procedure prescribed in the Act was applicable.
In order to appreciate this contention, it is necessary to state shortly the scope of article 14 of the Constitution. It is designed to prevent any person or class of persons for being singled out as a special subject for discriminatory and hostile legislation. Democracy implies respect for the elementary rights of man, however suspect or unworthy. Equality of right is a principle of republicanism and article 14 enunciates this equality principle in the administration of justice. In its application to legal proceedings the article assures to everyone the same rules of evidence and modes of procedure. In other words, the same rule must exist for all in similar circumstances. This principle, however, does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstance, in the same position.
By the process of classification the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well-defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other person. The classification permissible, however, must be based on some real and substantial distinction bearing a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily. Thus the legislature may fix the age at which persons shall be deemed competent to contract between themselves, but no one will claim that competency to contract can be made to depend upon the stature or colour of the hair. "Such as classification for such a purpose would be arbitrary and a piece of legislative despotism" (Vide Gulf Colorado & Santa
Fe Railway Co. v. W.H. Ellis, 166 U.S. 150).
Speedier trial of offences may be the reason and motive for the legislation but it does not amount either to a classification of offences or of cases. As pointed out by Chakravarti, J. the necessity of a speedy trial is too vague and uncertain a criterion to form the basis of a valid and reasonable classification. In the words of Das Gupta, J. it is too indefinite as there can hardly be any definite objective test to determine it. In my opinion, it is no classification at all in the real sense of the term as it is not based on any characteristics which are peculiar to persons or to cases which are to be subject to the special procedure prescribed by the Act. The mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of article 14. To get out of its reach it must appear that not only a classification has been made but also that it is one based upon a reasonable ground on some difference which bears a just and proper relation to the attempted classification and is not a mere arbitrary selection. Persons concerned in offences or cases needing so-called speedier trial are entitled to inquire "Why are they being made the subject of a law which has short-circuited the normal procedure of trial; why has it grouped them in that category and why has the law deprived them of the protection and safeguards which are allowed in the case of accused tried under the procedure mentioned in the Criminal Procedure Code; what makes the legislature or the executive to think that their cases need speedier trial than those of others like them?" The only answer, that so far as I am able to see, the Act gives to these inquiries is that they are being made the subject of this special treatment because they need it in the opinion of the provincial government; in other words, because such is the choice of their prosecutor. This answer neither so and rational nor reasonable.

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The only answer for withholding from such person the protection of article 14 that could reasonably be given to these inquiries would be that "Of all other accused persons they are a class by themselves and there is a reasonable difference between them and those other persons who may have committed similar offences." They could be told that the law regards persons guilty of offences against the security of the State as a class in themselves. The Code of
Criminal Procedure has by the process of classification prescribed different modes of procedure for trial of different offences. Minor offences can be summarily tried, while for grave and heinous offences an elaborate mode of procedure has been laid down. The present statute suggests no reasonable basis or classification, either in respect of offences or in respect of cases. It has laid down no yardstick or measure for the grouping either of persons or of cases or of offenses by which measure these groups could be distinguished from those who are outside the purview of the Special Act. The Act has left this matter entirely to the unregulated discretion of the provincial government. It has the power to pick out a case of a person similarly situate and hand it over to the special tribunal and leave the case of the other person in the same circumstance to be tried by the procedure laid down in the Criminal
Procedure Code. The State government it authorized, if it so chooses, to hand over an ordinary case of simple hurt to the special tribunal, leaving the case of dacoity with murder to be tried in the ordinary way. It is open under this Act for the provincial government to direct that a case of dacoity with firearms and accompanied by murder, where the persons killed are
Europeans, be tried by the Special Court, while exactly similar cases where the persons killed are Indians may be tried under the procedure of the Code.
That the Special Act lays down substantially different rules for trial of offences, and cases than laid down in the general law of the land, i.e., the Code of Criminal Procedure, cannot be seriously denied. It short-circuits that procedure in material particulars. It imposes heavier liabilities on the alleged culprits than are ordained by the Code. It deprives them of certain privileges which the Code affords them for their protection. Those singled out for treatment under the procedure of the Special Act are to a considerable extent prejudiced by the deprivation of the trial by the procedure prescribed under the Criminal Procedure Code. Not only does the special law deprive them of the safeguard of the committal procedure and of the trial with the help of jury or assessors, but it also deprives them of the right of a de novo trial in case of transfer and makes them liable for conviction and punishment for major offences other than those for which they may have been charged or tried. The right of the accused to call witnesses in defence has been curtailed and made dependent on the discretion of the special judge. To a certain extent the remedies of which an accused person is entitled for redress in the higher courts have been cut down. Even if it be said that the statute on the face of its not discriminatory, it is so in its effect and operation inasmuch as it vests in the executive government unregulated official discretion and therefore has to be adjudged unconstitutional.
It was suggested that good faith and knowledge of existing conditions on the part of a legislature has to be presumed. That is so; yet to carry that presumption to the extent of always holding that there must be some undisclosed intention or reason for subjecting certain individuals to a hostile and discriminatory legislation is to make the protection clause of article 14, in the words of an American decision, a mere rope of sand, in no manner restraining
State action. The protection afford by the article is not a mere eye-wash but it is a real one and unless a just cause for discrimination on the basis of a reasonable classification is put forth as a defence, the statute has to be declared unconstitutional. No just cause has been shown in the present instance. The result is that the appeals fail and are dismissed.

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JUSTICE MUKHERJEA (for himself, JUSTICE MAHAJAN CONCURRING)
… [Narration of facts has been omitted] …

In order to appreciate the points that have been canvassed before us, it would be convenient first of all to refer to the provision of article 14 of the Constitution with a view to determine the nature and scope of the guarantee that is implied in it. The article lays down that
"the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." It is, in substance, modelled upon the equal protection clause, occurring in the Fourteenth Amendment of the American Constitution with a further addition of the rule of "equality before the law", which is an established maxim of the English
Constitution. A number of American decisions have been cited before us on behalf of both parties in course of the arguments; and while a too rigid adherence to the views expressed by the Judges of the Supreme Court of America while dealing with the equal protection clause in their own Constitution may not be necessary or desirable for the purpose of determining the true meaning and scope of article 14 of the Indian Constitution, it cannot be denied that the general principles enunciated in many of these cases do afford considerable help and guidance in the matter.
It can be taken to be well settled that the principle underlying the guarantee in article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances (Chiranjit Lal Chowdhuri v. Union of India, [1950] S.C.R. 869). It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed (Old Dearborn Distributing Co. v. Seagram Distillers Corporation, 299
U.S. 183). Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same.
This brings in the question of classification. As there is no infringement of the equal protection rule, if the law deals alike with all of a certain class, the legislature has the undoubted right of classifying persons and placing those whose conditions are substantially similar under the same rule of law, while applying different rules to persons differently situated. It is said that the entire problem under the equal protection clause is one of classification or of drawing lines (Vide Dowling, Cases on Constitutional Law, 4th edn. 1139).
In making the classification the legislature cannot certainly be expected to provide "abstract symmetry." It can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even "degrees of evil" (Vide Skinner
v. Oklahoma, 316 U.S. 535 at 540), but the classification should never be arbitrary, artificial or evasive. It must rest always upon real and substantial distinction bearing a reasonable and just relation to the thing in respect to which the classification is made; and classification made without any reasonable basis should be regarded as invalid (Southern Railway Co. v.
Greene, 216 U.S. 400 at 412). These propositions have not been controverted before us and it is not disputed also on behalf of the respondents that the presumption is always in favour of the constitutionality of an enactment and the burden is upon him who attacks it, to show that there has been transgression of constitutional principles.
The learned Attorney-General, appearing in support of the appeal, has put forward his contentions under two different heads. His first line of argument is that quite apart from the question of classification there has been no infringement of article 14 of the Constitution in the present case. It is said that the State has full control over procedure in courts, both in civil and criminal cases, it can effect such changes as it likes for securing due and efficient administration of justice and a legislation of the character which we have got here and which

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merely regulates the mode of trial in certain cases cannot come within the description of discriminatory or hostile legislation. It is further argued that the differences that have been made in the procedure for criminal trial under the West Bengal Special Courts Act, 1950, are of a minor character and there are no substantial grounds upon which discrimination could be alleged or founded.
The second head of arguments advanced by the Attorney-General is that there is a classification and a justifiable classification on the basis of which differences in the procedure have been made by the West Bengal Act; and even if any unguided power has been conferred on the executive, the Act itself cannot be said to have violated the equality clause, though questions relating to proper exercise of such power or the limits of permissible delegation of authority might arise.
As regards the first point, it cannot be disputed that a competent legislature is entitled to alter the procedure in criminal trials in such way as it considers proper. Article 21 of the
Constitution only guarantees that "no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law." The word "law" in the Article means a State made law (Vide A.K. Gopalan v. State of Madras, [1950] S.C.R. 88), but it must be a valid and binding law having regard not merely to the competency of the legislature and the subject it relates to, but it must not also infringe any of the fundamental rights guaranteed under Part III of the Constitution. A rule of procedure laid down by law comes as much within the purview of article 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination (Weaver, Constitutional Law, page 407).
The two cases referred to by the learned Attorney-General in this connection do not really support his contention. In Hayes v. Missouri, 120 U.S. 68, the subject-matter of complaint was a provision of the revised statutes of Missouri which allowed the State, in capital cases, fifteen peremptory challenges in cities having a population of 100,000 inhabitants in place of eight in other parts of the State. This was held to be a valid exercise of legislative discretion not contravening the equality clause in the Fourteenth Amendment. It was said that the power of the Legislature to prescribe the number of challenges was limited by the necessity of having impartial jury. With a view to secure that end, the legislature could take into consideration the conditions of different communities and the strength of population in a particular city; and if all the persons within particular territorial limits are given equal rights in like cases, there could not be any question of discrimination. The other case relied upon by the learned
Attorney- General is the case of Brown v. New Jersey, 175 U.S. 171. In this case the question was whether the provision of the State Constitution relating to struck jury in murder cases was in conflict with the equal protection clause. The grievance made was that the procedure of struck jury denies the defendant the same number of peremptory challenges as he would have had in a trail before an ordinary jury. It was held by the Supreme Court that the equal protection clause was not violated by this provision. "It is true", thus observes Mr. Justice
Brewer, "that here there is no territorial distribution but in all cases in which a struck jury is ordered the same number of challenges is permitted and similarly in all cases in which the trail is by an ordinary jury either party, State or defendant, may apply for a struck jury and the matter is one which is determined by the court in the exercise of a sound discretion… That in a given case the discretion of the court in awarding a trial by a struck jury was improperly exercised may perhaps present a matter for consideration in appeal but it amounts to nothing more". Thus it was held that the procedure of struck jury did not involve any discrimination between one person and another. Each party was at liberty to apply for a struck jury if he so chose and the application could be granted by the court if it thought proper having regard to

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the circumstances of each individual case. The procedure would be identical in respect of all persons when it was allowed and all parties would have equal opportunities of availing themselves of this procedure if they so liked. That a judicial discretion has to be exercised on the basis of the facts of each case in the matter of granting the application for a struck jury does not really involve discrimination. These decisions, in my opinion, have no bearing on the present case.
I am not at all impressed by the argument of the learned Attorney-General that to enable the respondents to invoke the protection of article 14 of the Constitution it has got to be shown that the legislation complained of is a piece of "hostile" legislation. The expressions
"discriminatory" and "hostile" are found to be used by American Judges often simultaneously and almost as synonymous expressions in connection with discussions on the equal protection clause. If a legislation is discriminatory and discriminates one person or class of persons against others similarly situated and denies to the former the privileges that are enjoyed by the latter, it cannot but be regarded as "hostile" in the sense that it affects injuriously the interests of that person or class. Of course, if one 's interests are not at all affected by a particular piece of legislation, he may have no right to complain. But if it is established that the person complaining has been discriminated against as a result of legislation and denied equal privileges with others occupying the same position, I do not think that it is incumbent upon him, before he can claim relief on the basis of his fundamental rights, to assert and prove that in making the law, the legislature was actuated by a hostile or inimical intention against a particular person or class. For the same reason I cannot agree with the learned AttorneyGeneral that in cases like these, we should enquire as to what was the dominant intention of the legislature in enacting the law and that the operation of article 14 would be excluded if it is proved that the legislature has no intention to discriminate, though discrimination was the necessary consequence of the Act. When discrimination is alleged against officials in carrying out the law, a question of intention may be material in ascertaining whether the officer acted mala fide or not (Sunday Lake Iron Company v. Wakefield, 247 U.S. 350); but no question of intention can arise when discrimination follows or arises on the express terms of the law itself.
I agree with the Attorney-General that if the differences are not material, there may not be any discrimination in the proper sense of the word and minor deviations from the general standard might not amount to denial of equal rights. I find it difficult however, to hold that the difference in the procedure that has been introduced by the West Bengal Special Courts Act is of a minor or unsubstantial character which has not prejudiced the interests of the accused.
The first difference is that made in section 6 of the Act which lays down that the Special
Court may take cognizance of an offence without the accused being committed to it for trial, and that in trying the accused it has to follow the procedure for trial of warrant cases by
Magistrates. It is urged by the Attorney-General that the elimination of the committal proceedings is a matter of no importance and that the warrant procedure, which the Special
Court has got to follow, affords a scope for a preliminary examination of the evidence against the accused before a charge is framed. It cannot be denied that there is a difference between the two proceedings. In a warrant case the entire proceeding is before the same Magistrate and the same officer who frames the charge hears the case finally. In a sessions case, on the other hand, the trial is actually before another Judge, who was not connected with the earlier proceeding. It is also clear that after the committal and before the sessions judge actually hears the case, there is generally a large interval of time which gives the accused ample opportunity of preparing his defence, he being acquainted beforehand with the entire evidence that the prosecution wants to adduce against him. He cannot have the same advantage in a warrant case even if an adjournment is granted by the Magistrate after the charge is framed. Be that as

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it may, this is not the only matter upon which the normal procedure has been departed from in the Special Courts Act.
One of the most important departures is that the trial by the Special Court is without the aid of jury or assessors. The trial by jury is undoubtedly one of the most valuable rights which the accused can have. It is true that the trial by jury is not guaranteed by the Constitution and section 269 of the Criminal Procedure Code empowers the State Government to direct that the trial of all offences or any particular class of offences before any sessions court shall be by jury in any district; and it may revoke or alter such orders. There is nothing wrong therefore if the State discontinues trial by jury in any district with regard to all or any particular class of offences; but as has been pointed out by Mr. Justice Chakravarti of the Calcutta High Court, it cannot revoke jury trial in respect of a particular case or a particular accused while in respect of other cases involving the same offences the order still remains.
Amongst other important changes, reference may be made to the provision of section 13 of the Act which empowers the Special Court to convict an accused of any offence if the commission of such offence is proved during trial, although he was not charged with the same or could be charged with it in the manner contemplated by section 236 of the Criminal
Procedure Code, nor was it a minor offence within the meaning of section 238 of the Code.
Under section 350 of the Criminal Procedure Code, when a case after being heard in part goes for disposal before another Magistrate, the accused has the right to demand, before the second
Magistrate commences the proceedings, that the witnesses already examined should be reexamined and re-heard. This right has been taken away from the accused in case where a case is transferred from one Special Court to another under the provision of section 7 of the Special
Courts Act. Further the right of revision to the High Court does not exist at all under the new procedure, although the rights under the Constitution of India are retained. It has been pointed out and quite correctly be one of the learned Counsel for respondents that an application for bail cannot be made before the High Court on behalf of an accused after the Special Court has refused bail. These and other provisions of the Act make it clear that the rights of the accused have been curtailed in a substantial manner by the impugned legislation; and if the rights are curtailed only in certain cases and not in others, even though the circumstances in the latter cases are the same, a question of discrimination may certainly arise. The first line of argument adopted by the learned Attorney-General cannot, therefore, be accepted.
I now come to the other head of arguments put forward by him and the principal point for our consideration is whether the apparent discriminations that have been made in the Act can be justified on the basis of a reasonable classification. Section 5 of the West Bengal Special
Courts Act lays down that
"A Special court shall try such offences or classes of offences or cases or classes of cases as the State Government may, by general or special order in writing direct." The learned Attorney-General urges that the principle of classification upon which the differences have been made between cases and offences triable by the Special Court and those by ordinary courts is indicated in the preamble to the Act which runs as follows:
"Whereas it is expedient to provides for the speedier trial of certain offences.”

What is said is, that the preamble is to be read as a part of section 5 and the proper interpretation to be put upon the sub-section is that those cases and offences which in the opinion of the State Government would require speedier trial could be assigned by it to the
Special Court. In my opinion, this contention cannot be accepted for more reasons than one.
In the first place, I agree with the learned Chief Justice of the Calcutta High Court that the express provision of an enactment, if it is clear and unambiguous, cannot be curtailed or

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extended with the aid of the preamble to the Act. It is only when the object or meaning of the enactment is not clear that recourse can be had to the preamble to explain it (See Craies on
Statute Law, 4th edn., 184). In the case before us the language of section 5(1) is perfectly clear and free from any ambiguity. It vests an unrestricted discretion in the State Government to direct any cases or classes of cases to be tried by the Special Court in accordance with the procedure laid down in the Act. It is not stated that it is only when speedier trial is necessary that the discretion should be exercised. In the second place, assuming that the preamble throws any light upon the interpretation of the section, I am definitely of opinion that the necessity of a speedier trial is too vague, uncertain and elusive a criterion to from a rational basis for the discriminations made. The necessity for speedier trial may be the object which the legislature had in view or it may be the occasion for making the enactment. In a sense quick disposal is a thing which is desirable in all legal proceedings. The word used here is "speedier" which is a comparative term and as there may be degrees of speediness, the word undoubtedly introduces an uncertain and variable element. But the question is: how is this necessity of speedier trial to be determined? Not by reference to the nature of the offences or the circumstances under which or the area in which they are committed, nor even by reference to any peculiarities or antecedents of the offenders themselves, but the selection is left to the absolute and unfettered discretion of the executive government with nothing in the law to guide or control its action. This is not a reasonable classification at all but an arbitrary selection. A line is drawn artificially between two classes of cases. On one side of the line are grouped those cases which the State Government chooses to assign to the Special Court; on the other side stand the rest which the State Government does not think fit and proper to touch.
It has been observed in many cases by the Supreme Court of America that the fact that some sort of classification has been attempted at will not relieve a statute from the reach of the equality clause. "It must appear not only that a classification has been made but also that it is based upon some reasonable ground-some difference which bears a just and proper relation to the attempted classification" (Gulf Colorado etc. Co. v. Ellis, 165 U.S. 150). The question in each case would be whether the characteristics of the class are such as to provide a rational justification for the differences introduced? Judged by this test, the answer in the present case should be in the negative; for the difference in the treatment rests here solely on arbitrary selection by the State Government. It is true that the presumption should always be that the legislature understands and correctly appreciates the needs of its own people and that its discriminations are based on adequate grounds (Middleton v. Texas Power & Light Co., 249
U.S. 152; but as was said by Mr. Justice Brewer in Gulf Colorado etc. Co. v. Ellis, 165 U.S.
150, "to carry the presumption to the extent of holding that there must be some undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminatory legislation is to make the protection clauses of the Fourteenth Amendment a mere rope of sand."
A point was made by the Attorney-General in course of his arguments that the equality rule is not violated simply because a statute confers unregulated discretion on officers or on administrative agencies. In such cases it may be possible to attack the legislation on the ground of improper delegation of authority or the acts of the officers may be challenged on the ground of wrongful or mala fide exercise of powers; but no question of infringement of article 14 of the Constitution could possibly arise. We were referred to a number of authorities on this point but I do not think that the authorities really support the proposition of law in the way it is formulated. In the well-known case of Yick W O. v. Hopkins, 118 U.S. 356, the question was, whether the provision of a certain ordinance of the City and Country of San Francisco was invalid by reason of its being in conflict with the equal protection clause. The order in question laid down that it would be unlawful for any person to engage in laundry business within the corporate limits "without having first obtained the consent of the Board of Supervisors except

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the same to be located in a building constructed either of brick or stone." The question was answered in the affirmative. It was pointed out by Matthews, J., who delivered the opinion of the court, that the ordinance in question did not merely prescribe a rule and condition for the regulation of the laundry business. It allowed without restriction the use for such purposes of building of brick or stone, but as to wooden buildings constituting nearly all those in previous use, it divided the owners or occupiers into two classes, not having respect to their personal character and qualifications of the business, nor the situation and nature and adaptation of the buildings themselves, but merely by an arbitrary line, on one side of which were those who were permitted to pursue their industry by the mere will and consent of the supervisors and on the other those from whom that consent was withheld at their will and pleasure. This sort of committing to the unrestrained will of a public officer the power to deprive a citizen of his right to carry on lawful business was held to constitute an invasion of the Fourteenth
Amendment.
The learned Judge pointed out in course of his judgment that there are cases where discretion is lodged by law in public officers or bodies to grant or withhold licences to keep taverns or places for sale of spirituous liquor and the like. But all these cases stood on a different footing altogether. The same view was reiterated in Crowley v. Christensen, 137 U.S.
86, which related to an ordinance regulating the issue of licences to sell liquors. It appears to be an accepted doctrine of American courts that the purpose of the equal protection clause is to secure every person within the States against arbitrary discrimination, whether occasioned by the express terms of the statute or by their improper application through duly constituted agents. This was clearly laid down in Sunday Lake Iron Company v. Wakefield, 247 U.S. 350.
In this case the complaint was against a taxing officer, who was alleged to have assessed the plaintiff 's properties at their full value, while all other persons in the county were assessed at not more than one- third of the worth of their properties. It was held that the equal protection clause could be availed of against the taxing officer; but if he was found to have acted bona fide and the discrimination was the result of a mere error of judgment on his part, the action would fail. The position, therefore, is that when the statute is not itself discriminatory and the charge of violation of equal protection is only against the official, who is entrusted with the duty of carrying it into operation, the equal protection clause could be availed of in such cases; but the officer would have a good defence if he could prove bona fides. But when the statute itself makes a discrimination without any proper or reasonable basis, the statute would be invalidated for being in conflict with the equal protection clause, and the question as to how it is actually worked out may not necessarily be a material fact for consideration. As I have said already, in the present case the discrimination arises on the terms of the Act itself. The fact that it gives unrestrained power to the State Government to select in any way it likes the particular cases or offences which should go to a Special Tribunal and withdraw in such cases the protection which the accused normally enjoy under the criminal law of the country, is on the face of it discriminatory.
It may be noted in this connection that in the present case the High Court has held the provision of section 5 of the West Bengal Special Courts Act to be ultra vires the Constitution only so far as it allows the State Government to direct any case to be tried by the Special
Court. In the opinion of the learned Chief Justice, if the State Government had directed certain offences or classes of offences committed within the territory of West Bengal to be tried by the Special Court, the law or order could not have been impeached as discriminatory. It is to be noted that the Act itself does not mention in what classes of cases or offences such direction could be given; nor does it purpose to lay down the criterion or the basis upon which the classification is to be made. It is not strictly correct to say that if certain specified offences throughout the State were directed to be tried by the Special Court, there could not be any infringement of the equality rule. It may be that in making the selection the authorities would

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exclude from the list of offences other offences of a cognate character in respect to which no difference in treatment is justifiable. In such circumstances also the law or order would be offending against the equality provision in the Constitution. This is illustrated by the case of
Skinner v. Oklahoma, 316 U.S. 555. There a statute of Oklahoma provided for the sterilization of certain habitual criminals, who were convicted two or more times in any State, of felonies involving moral turpitude. The statute applied to persons guilty of larceny, which was regarded as a felony but not to embezzlement. It was held that the statute violated the equal protection clause. It is said that in cases where the law does not lay down a standard or form in accordance with which the classification is to be made, it would be the duty of the officers entrusted with the execution of the law, to make the classification in the way consonant with the principles of the Constitution (Vide Willis on Constitutional Law, Page 587). If that be the position, then an action might lie for annulling the acts of the officers if they are found not to be in conformity with the equality clause. Moreover, in the present case the notification by the
State Government could come within the definition of law as given in article 13 of the
Constitution and can be impeached apart from the Act if it violates article 14 of the
Constitution. I do not consider it necessary to pursue this matter any further, as in my opinion even on the limited ground upon which the High Court bases its decision, these appeals are bound to fail.

JUSTICE DAS (for himself)
I concur in dismissing these appeals but I am not persuaded that the whole of section 5 of the West Bengal Special Courts Act is invalid. As I find myself in substantial agreement with the interpretation put upon that section by the majority of the Full Bench of the Calcutta High
Court and most of the reasons adopted by Harries, C.J., in support thereof, I do not fell called upon to express myself in very great detail. I propose only to note the points urged before us and shortly state my conclusions thereon.
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Article 14 of our Constitution, it is well known, corresponds to the last portion of section
1 of the Fourteenth Amendment to the American Constitution except that our article 14 has also adopted the English doctrine of rule of law by the addition of the words "equality before the law." It has not however, been urged before us that the addition of these extra words has made any substantial difference in its practical application. The meaning, scope and effect of article 14 of our Constitution have been discussed and laid down by this Court in the case of
Chiranjit Lal Chowdhury v. Union of India, [1950] S.C.R. 869. Although Sastri J., as he then was, and myself differed from the actual decision of the majority of the Court, there was no disagreement between us and the majority as to the principles underlying the provisions of article 14. The difference of opinion in that case was not so much on the principles to be applied as to the effect of the application of such principles. Those principles were again considered and summarised by this Court in State of Bombay v. F. N. Balsara, [1951] S.C.R.
682. It is now well established that while article 14 is designed to prevent a person or class of persons from being singled out from others similarly situated for the purpose of being specially subjected to discriminating and hostile legislation, it does not insist on an "abstract symmetry" in the sense that every piece of legislation must have universal application. All persons are not, by nature, attainment or circumstances, equal and the varying needs of different classes of persons often require separate treatment and, therefore, the protecting clause has been construed as a guarantee against discrimination amongst equals only and not as taking away from the state the power to classify persons for the purpose of legislation. This

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classification may be on different bases. It may be geographical or according to objects or occupations or the like.
Mere classification, however, is not enough to get over the inhibition of the Article. The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and that that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while the Article forbids class legislation in the sense of making improper discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liability proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense I have just explained. The doctrine, as expounded by this Court in the two cases I have mentioned, leaves a considerable latitude to the Court in the matter of the application of article 14and consequently has the merit of flexibility.
The learned Attorney-General, appearing in support of these appeals, however, contends that while a reasonable classification of the kind mentioned above may be a test of the validity of a particular piece of legislation, it may not be the only test which will cover all cases and that there may be other tests also. In answer to the query of the Court he formulates an alternative test in the following words: If there is in fact inequality of treatment and such inequality is not made with a special intention of prejudicing any particular person or persons but is made in the general interest of administration, there is no infringement of article 14. It is at once obvious that, according to the test thus formulated, the validity of State action, legislative or executive, is made entirely dependent on the state of mind of the authority. This test will permit even flagrantly discriminatory State action on the specious plea of good faith and of the subjective view of the executive authority as to the existence of a supposed general interest of administration. This test, if accepted, will amount to adding at the end of article 14 the words "except in good faith and in the general interest of administration." This is clearly not permissible for the Court to do. Further, it is obvious that the addition of these words will, in the language of Brewer, J., in Gulf, Colorado and Santa Fe Railway Co. v. Ellis,
165 U.S. 150, make the protecting clause a mere rope of sand, in no manner restraining State action. I am not, therefore, prepared to accept the proposition propounded by the learned
Attorney-General, unsupported as it is by any judicial decision, as a sound test for determining the validity of State action.
The learned Attorney-General next contends, on the authority of a passage in Cooley 's
Constitutional Limitations, 8th Edition, Vol. 2, p. 816, that inequalities of minor importance do not render a law invalid and that the constitutional limitations must be treated as flexible enough to permit of practical application. The passage purports to be founded on the decision in Jeffrey Manufacturing Co. v. Blagg, 235 U.S. 571. A careful perusal of this decision will make it quite clear that the Court upheld the validity of the statute impugned in that case, not on the ground that the inequality was of minor importance but, on the ground that the classification of establishments according to the number of workmen employed therein was based on an intelligible distinction having a rational relation to the subject-matter of the legislation in question. That decision, therefore, does not support the proposition so widely stated in the passage apparently added by the editor to the original text of Judge Cooley. The

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difference brought about by a statute may be of such a trivial, unsubstantial and illusory nature that that circumstance alone may be regarded as cogent ground for holding that the statute has not discriminated at all and that no inequality has in fact been created. This aspect of the matter apart, if a statute brings about inequality in fact and in substance, it will be illogical and highly undesirable to make the constitutionality of such a statute depend on the degree of the inequality so brought about. The adoption of such a principle will run counter to the plain language of article 14.
At one stage of his arguments the learned Attorney-General just put forward an argument, which he did not press very strongly, that the Article is a protection against the inequality of substantive law only and not against that of a procedural law. I am quite definitely not prepared to countenance that argument. There is no logical basis for this distinction. A procedural law may easily inflict very great hardship on persons subjected to it, as, indeed, this very Act under consideration will presently be seen to have obviously done.
That the Act has prescribed a procedure of trial which is materially different from that laid down in the Code of Criminal Procedure cannot be disputed. The different sections of the Act have been analysed and the important difference have been clearly indicated by the learned
Chief Justice of West Bengal and need not be repeated in detail. The elimination of the committal proceedings and of trial by jury (section 6), the taking away of the right to a de novo trial on transfer (section 7), the vesting of discretion in the Special Court to refuse to summon a defence witness if it be satisfied that this evidence will not be material (section 8), the liability to be convicted of an offence higher than that for which the accused was sent up for trial under the Act (section 13), the exclusion of interference of other Courts by way of revision or transfer or under section 491 of the Code (section 16) are some of the glaring instances of inequality brought about by the impugned Act.
The learned Attorney-General has drawn our attention to various sections of the Code of
Criminal Procedure in an endeavor to establish that provisions somewhat similar to those enacted in this Act are also contained in the Code. A comparison between the language of those sections of the Code and that of the several sections of this Act mentioned above will clearly show that the Act has gone much beyond the provisions of the Code and the Act cannot by any means be said to be an innocuous substitute for the procedure prescribed by the Code.
The far-reaching effect of the elimination of the committal proceedings cannot possibly be ignored merely by stating that the warrant procedure under the Code in a way also involves a committal by the trial Magistrate, namely to himself, for the warrant procedure minimises the chances of the prosecution being thrown out at the preliminary stage, as may be done by the committing Magistrate, and deprives the accused person of the opportunity of knowing, well in advance of the actual trial before the Sessions Court, the case sought to be made against him and the evidence in support of it and, what is of the utmost importance, of the benefit of a trial before and the decision of a different and independent mind. The liability to be convicted of a higher offence has no parallel in the Code. It is true that the State can, under section 269 of the Code, do away with trial by jury but that section, as pointed out by
Chakravartti, J. does not clearly contemplate elimination of that procedure only in particular cases which is precisely what the Act authorises the government to do. On a fair reading of the Act there can be no escape from the fact that it quite definitely brings about a substantial inequality of treatment, in the matter of trial, between persons subjected to it and others who are left to be governed by the ordinary procedure laid down in the Code. The question is whether section 5 which really imposes this substantial inequality on particular persons can be saved from the operation of article 14 on the principle of rational classification of the kind permissible in law.
Section 5 of the Act runs as follows:-

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"A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may, be general or special order in writing, direct." It will be noticed that the sub-section refers to four distinct categories, namely, "offences",
"classes of offences", "cases" and "classes of cases" and empowers the State government to direct any one or more of these categories to be tried by the Special court constituted under the Act. I shall first deal with the section in so far as it authorises the State government to direct "offences", "classes of offences" and "classes of cases" to be tried by a Special Court.
These expressions clearly indicate, and obviously imply, a process of classification of offences or cases. Prima facie those words do not contemplate any particular offender or any particular accused in any particular case. The emphasis is on "offences", "classes of offences" or "classes of cases". The classification of "offences" by itself is not calculated to touch any individual as such, although it may, after the classification is made, affect all individuals who may commit the particular offence. In short, the classification implied in this part of the sub-section has no reference to, and is not directed towards the singling out of any particular person as an object of hostile State action but is concerned only with the grouping of "offences", "classes of offences" and "classes of cases" for the purpose of being tried by a Special Court. Such being the meaning and implication of this part of section 5, the question arises whether the process of classification thus contemplated by the Act conforms to the requirements of reasonable classification which does not offend against the Constitution.
Learned Attorney-General claims that the impugned Act satisfies even this test of rational classification. His contention is that offences may be grouped into two classes, namely, those that require speedier trial, that is speedier than what is provided for in the Code and those that do not require a speedier trial. The Act, according to him, purports to deal only with offences of the first class. He first draws our attention to the fact that the Act is instituted "An Act to provide for the speedier trial of certain offences" and then points out that the purpose of the
Act, as stated in its preamble, also is "to provide for the speedier trial of certain offences". He next refers us to the different sections of the Act and urges that all the procedural changes introduced by the Act are designed to accomplish the object of securing speedier trial. The
Act accordingly empowers the State government to direct the offences, which, in its view, require speedier trial, to be tried by a Special Court according to the special procedure provided by it for the speedier trial of those offences. This construction of the section, he maintains, is consonant with the object of the Act as recited in the preamble and does not offend against the inhibition of article 14 of our Constitution. Learned counsel for the respondents, on the other hand urge that there is no ambiguity whatever in the language used in the sub-section, that there is no indication in the sub-section itself of any restriction or qualification on the power of classification conferred by it on the State government and that the power thus given to the State government cannot be controlled and cut down by calling in aid the preamble of the Act, for the preamble cannot abridge or enlarge the meaning of the plain language of the sub-section. This argument was accepted by the High Court in its application to the other part of the section dealing with selection of "cases" but in judging whether this argument applies, with equal force, to that part of the section I am now considering, it must be borne in mind that, although the preamble of an Act cannot override the plain meaning of the language of its operative parts, it may, nevertheless, assist in ascertaining what the true meaning or implication of a particular section is, for the preamble is, as it were a key to the understanding of the Act. I therefore, proceed to examine this part of section 5(1) in the light of the preamble so as to ascertain the true meaning of it.
I have already stated that this part of the sub-section contemplates a process of classification of "offences", "classes of offences" and "classes of cases". This classification must, in order that it may not infringe the constitutional prohibition, fulfil the two conditions

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I have mentioned. The preamble of the Act under consideration recites the [importance] of providing for the speedier trial of certain offences. The provision for the speedier trial of certain offences is, therefore, the object of the Act. To achieve this object, offences or cases have to be classified upon the basis of some differentia which will distinguish those offences or cases from others and which will have a reasonable relation to the recited object of the Act.
The differentia and the object being, as I have said, different elements, it follows that the object by itself cannot be the basis of the classification of offences or the cases, for, in the absence of any special circumstances which may distinguish one offence or one class of offences or one class of cases from another offence, or class of offences or class of cases, speedier trial is desirable in the disposal of all offences or classes of offences or classes of cases. Offences or cases cannot be classified in two categories on the basis of the preamble alone as suggested by the learned Attorney-General.
Learned counsel for the respondents then contended that as the object of the Act recited in the preamble cannot be the basis of classification, then this part of sub-section 5(1) gives an uncontrolled and unguided power of classification which may well be exercised by the
State government capriciously or "with an evil eye and an unequal hand" so as to deliberately bring about invidious discrimination between man and man, although both of them are situated in exactly the same or similar circumstances. By way of illustration it is pointed out that in the
Indian Penal Code there are different chapters dealing with offences relating to different matters, e.g., Chapter XVII which deals with offences against property, that under this generic head are set forth different species of offences against property, e.g., theft (section 378), theft in a dwelling house (section 380), theft by a servant (section 381), to take only a few examples, and that according to the language of section 5(1) of the impugned Act it will be open to the
State government to direct all offences of theft in a dwelling house under section 380 to be tried by the Special Court according to the special procedure laid down in the Act leaving all offences of theft by a servant under section 381 to be dealt with in the ordinary Court in the usual way.
In other words, if a stranger is charged with theft in a dwelling house, he may be sent up for trial before the Special Court under section 380 whereas if a servant is accused of theft in a dwelling house he may be left to be tried under the Code for an offence under section 381.
The argument is that although there is no apparent reason why an offence of theft in a dwelling house by a stranger should require speedier trial any more than an offence of that in a dwelling house by a servant should do, the State government may nevertheless select the former offence for special and discriminatory treatment in the matter of its trial by bringing it under the Act.
A little reflection will show that this argument is not sound. The part of sub-section 5(1) which
I am now examining confers a power on the State government to make a classification of offences, classes of offences or classes of cases, which, as said by Chakravartti J., "means a proper classification." In order to be a proper classification so as not to offend against the
Constitution it must be based on some intelligible differentia which should have a reasonable relation to the object of the Act as recited in the preamble. In the illustration taken above the two offences are only two species of the same genus, the only difference being that in the first the alleged offender is a stranger and in the latter he is a servant of the owner whose property has been stolen. Even if this difference in the circumstances of the two alleged offenders can be made the basis of a classification, there is no nexus between this difference and the object of the Act, for, in the absence of any special circumstances, there is no apparent reason why the offence of theft in a dwelling house by a stranger should require a speedier trial any more than the offence of theft by a servant should do. Such classification will be wholly arbitrary and will be liable to be his by the principles on which the Supreme Court of the United States in Skinner v. Oklahoma, 216 U.S. 535, struck down the Oklahoma Habitual Criminal
Sterilisation Act which imposed sterilisation on a person convicted more than twice of larceny

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but not on one who was convicted of embezzlement on numerous occasions. That sort of classification will, therefore, not clearly be a proper classification such as the Act must be deemed to contemplate.
On the other hand, it is easy to visualise a situation when certain offences, e.g., theft in a dwelling house, by reason of the frequency of their perpetration or other attending circumstances, may legitimately call for a speedier trial and swift retribution by way of punishment to check the commission of such offences. Are we not familiar with gruesome crimes of murder, arson, loot and rape committed on a large scale during communal riots in particular localities and are they not really different from a case of a stray murder, arson, loot or rape in another district which may not be affected by any communal upheaval? Do not the existence of the communal riot and the concomitant crimes committed on a large scale call for prompt and speedier trial in the very interest and safety of the community? May not political murders or crimes against the State or a class of the community e.g., women, assume such proportions as would be sufficient to constitute them into a special class of offences requiring special treatment? Do not these special circumstances add a peculiar quality to these offences or classes of offences or classes of cases which distinguish them from stray cases of similar crimes and is it not reasonable and even necessary to arm the State with power to classify them into a separate group and deal with them promptly I have no doubt in my mind that the surrounding circumstances and the special features I have mentioned above will furnish a very cogent and reasonable basis of classification, for it is obvious that they do clearly distinguish these offences from similar or even same species of offences committed elsewhere and under ordinary circumstances. This differentia quite clearly has a reasonable relation to the object sought to be achieved by the Act, namely, the speedier trial of certain offences. Such a classification will not be repugnant to the equal protection clause of our
Constitution for there will be no discrimination, for whoever may commit the specified offence in the specified area in the specified circumstances will be treated alike and sent up before a special Court for trial under the special procedure. Persons thus sent up for trial by a
Special Court cannot point their fingers to the other persons who may be charged before an ordinary Court with similar or even same species of offences in a different place and in different circumstances and complain of unequal treatment, for those other persons are of a different category and are not their equals. Section 5(1), in so far as it empowers the State government to direct "offences " or "classes of offences" or "classes of cases" to be tried by a
Special Court, also, by necessary implication and intendment, empowers the State government to classify the "offences" or "classes of offences" or "classes of cases", that is to say, to make a proper classification in the sense I have explained.
In my judgment, this part of the section, property construed and understood, does not confer an uncontrolled and unguided power on the State government. On the contrary, this power is controlled by the necessity for making a proper classification which is guided by the preamble in the sense that the classification must have a rational relation to the object of the
Act as recited in the preamble. It is, therefore, not an arbitrary power. I, therefore agree with
Harries, C.J. that this part of section 5(1) is valid. If the State government classifies offences arbitrarily and not on any reasonable basis having a relation to the object of the Act, its action will be either an abuse of its power if it is purposeful or in excess of its powers even if it is done in good faith and in either case the resulting discrimination will encounter the challenge of the Constitution and the Court will strike down, not the law which is good, but the abuse or misuse or the unconstitutional administration of the law creating or resulting in unconstitutional discrimination.
In the present case, however, the State government has not purported to proceed under that part of section 5(1) which I have been discussing so far. It has, on the other hand, acted

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under that part of the section which authorises it to direct "cases" to be tried by the Special
Court, for by the notifications it has directed certain specific cases identified by their individual numbers in the records of the particular thanas to be tried by the Special Court.
There is ostensibly no attempt at, or pretence of, any classification on any basis whatever. The notifications simply direct certain "cases" to be tried by the Special Court and are obviously issued under that part of section 5(1) which authorises the State government to direct "cases" to be tried by the Special Court. The word "cases" has been used to signify a category distinct from "classes of cases". The idea of classification is, therefore, excluded. This means that this part of the sub-section empowers the State Government to pick out or select particular cases against particular persons for being sent up to the Special Court for trial. It is urged by the learned Attorney-General that this selection of cases must also be made in the light of the object of the Act as expressed in its preamble, that is to say, the State Government can only select those cases which, in their view, require speedier trial. Turning to the preamble, I find that the object of the Act is “to provide for the speedier trial of certain offences” and not of a particular case or cases. In other words, this part of section 5(1) lies beyond the ambit of the object laid down in the preamble and, therefore, the preamble can have no manner of application in the selection of "cases" as distinct from "offences", "classes of offences" or
"classes of cases". I agree with Harries C.J. that the preamble cannot control this part of the sub-section where the language is plain and unambiguous. Further, as I have already explained, the object of the Act cannot, by itself, be the basis of the selection which, I repeat, must be based on some differentia distinguishing the "case" from other "cases" and having relation to the object of the Act.
It is difficult, if not impossible, to conceive of an individual "case", as distinct from a
"class of cases", as a class by itself within the rule of permissible and legitimate classification.
An individual case of a crime committed with gruesome atrocity or committed upon an eminent person may shock our moral sense to a greater extent but, on ultimate analysis and in the absence of special circumstances such as I have mentioned, it is not basically different from another individual case of a similar crime although committed with less vehemence or on a less eminent person. In any case, there is no particular bond connecting the circumstances of the first mentioned case with the necessity for a speedier trial. In the absence of special circumstances of the kind I have described above, one individual case, say of murder, cannot require speedier trial any more than another individual case of murder may do. It is, therefore, clear, for the foregoing reasons, that the power to direct "cases" as distinct from "classes of cases" to be tried by a Special Court contemplates and involves a purely arbitrary selection based on nothing more substantial than the whim and pleasure of State Government and without any appreciable relation to the necessity for a speedier trial. Here the law lays an unequal hand on those who have committed intrinsically the same quality of offence. This power must inevitably result in discrimination and this discrimination is, in terms incorporated in this part of the section itself and, therefore, this part of the section itself must incur our condemnation. It is not a question of an unconstitutional administration of a statute otherwise valid on its face but here the unconstitutionality is writ large on the face of the statute itself. I, therefore, agree with the High court that section 5(1) of the Act in so far as it empowers the
State Government to direct "cases" to be tried by a Special Court offends against the provisions of Article 14 and therefore the Special Court had no jurisdiction to try these "cases" of the respondents. In my judgment, the High Court was right in quashing the conviction of the respondents in the one case and in prohibiting further proceedings in the other case and these appeals should be dismissed.

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JUSTICE AIYAR (for himself)
The short question that arises for consideration in these cases is whether the whole, or any portion of the West Bengal Special Courts Act, X of 1950, is invalid as being opposed to equality before the law and the equal protection of the laws guaranteed under article 14 of the
Constitution of India. The facts which have led up to the cases have been stated in the judgments of the High court at Calcutta and their recapitulation is unnecessary. I agree in the conclusion reached by my learned brothers that the appeals should be dismissed and I propose to indicate my views as shortly as possible on a few only of the points raised and discussed.
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There can be no doubt that as regards the cases to be sent before the Special Court or
Courts, the Act under scrutiny has deviated in many matters of importance from the procedure prescribed by the Criminal Procedure Code for the trial of offences and that this departure has been definitely adverse to the accused. Preliminary inquiry before committal to the sessions, trial by jury or with the aid of assessors, the right of a de novo trial on transfer of a case from one Court to another, have been taken away from the accused who are to be tried by a Special
Court; even graves is section 13, which provides that a person may be convicted of an offence disclosed by the evidence as having been committed by him, even though he was not charged with it and it happens to be a more serious offence. This power of the Special Court is much wider than the powers of ordinary courts. The points of prejudice against the accused which appear in the challenged Act have been pointed out in detail in the judgment of Trevor Harries
C.J. They cannot all be brushed aside as variations of minor and unsubstantial importance.
The argument that changes in procedural law are not material and cannot be said to deny equality before the law or the equal protection of the laws so long as the substantive law remains unchanged or that only the fundamental rights referred to in articles 20 to 22 should be safeguarded is, on the face of is, unsound. The right to equality postulated by article 14 is as much a fundamental right as any other fundamental right dealt with in part III of the
Constitution. Procedural law may and does confer very valuable rights on a person, and their protection must be as much the object of a court 's solicitude as those conferred under substantive law.
The learned Attorney-General contended that if the object of the legislation was a laudable one and had a public purpose in view, as in this case, which provided for the speedier trial of certain offences, the fact that discrimination resulted as a bye-product would not offend the provisions of article 14. His point was that if the inequality of treatment was not specifically intended to prejudice any particular person or group of persons but was in the general interests of administration, it could not be urged that there is a denial of equality before the law. To accept this position would be to neutralize, if not to abrogate altogether, article 14. Almost every piece of legislation has got a public purpose in view and is generally intended, or said to be intended, to promote the general progress of the country and the better administration of
Government. The intention behind the legislation may be unexceptionable and the object sought to be achieved may be praiseworthy but the question which falls to be considered under article 14 is whether the legislation is discriminatory in its nature, and this has to be determined not so much by its purpose or objects but by its effects. There is scarcely any authority for the position taken up by the Attorney-General.
It is well settled that equality before the law or the equal protection of laws does not mean identity or abstract symmetry of treatment. Distinctions have to be made for different classes and groups of persons and a rational or reasonable classification is permitted, as otherwise it would be almost impossible to carry on the work of Government of any State or country. To

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use the felicitous language of Mr. Justice Holmes in Bain Peanut Co. v. Pinson, 282 U.S. 499 at p. 501, "We must remember that the machinery of government could not work if it were not allowed a little play in its joints." The law on the subject has been well stated in a passage from Willis on Constitutional Law (1936 Edition, at page 579) and an extract from the pronouncement of this Court in what is known as the Prohibition Case (State of Bombay and
Another v. F. N. Balsara, [1951] S.C.R. 682), where my learned brother Fazl Ali, J. has distilled in the form of seven principles most of the useful observations of this Court in the
Sholapur Mills case, Chiranjit Lal Chowdhury v. Union of India, [1950] S.C.R. 869.
Willis says :"The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. "It merely requires that all persons subject to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed." "The inhibition of the amendment was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation." It does not take from the states the power to classify either in the adoption of police laws, or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis.
Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis."

The seven principles formulated by Fazl Ali, J. are as follows:"1. The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.
2. The presumption may be rebutted in certain cases by showing that on the face of the statute, there is to classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class.
3. The principle of equality does not mean that every law must have universal application for all persons who are not be nature, attainment or circumstances in the same position, and the varying needs of different classes of persons often require separate treatment.
4. The principle does not take away from the State the power of classifying persons for legitimate purposes.
5. Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough.
6. If a law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.
7. While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis."

After these citations, it is really unnecessary to refer to or discuss in detail most of the
American decisions cited at the Bar. Their number is legion and it is possible to alight on

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decisions in support of propositions, apparently even conflicting, if we divorce them from the context of the particular facts and circumstances and ignore the setting or the back-ground in which they were delivered. With great respect, I fail to see why we should allow ourselves to be unduly weighted-down or over-encumbered in this manner. To say this is not to shut out illumining light from any quarter; it is merely to utter a note of caution that we need not stray far into distant fields and try to clutch at something which may not after all be very helpful.
What we have to find out is whether the statute now in question before us offends to any extent the equal protection of the laws unguaranteed by our written Constitution. Whether the classification, if any, is reasonable or arbitrary, or is substantial or unreal, has to be adjudicated upon by the courts and the decision must turn more on one 's commonsense than on overrefined legal distinctions or subtleties.
The Attorney-General argued that if the principle of classification has to be applied as a necessary test, there is a classification in the impugned Act as it says that it is intended to provide for the speedier trial of certain offences; and in the opinion of the legislature certain offences may require more expeditious trial than other offences and this was a good enough classification. But as speedy administration of justice, especially in the field of the law of crimes, is a necessary characteristic of every civilised Government, there is not much point in stating that there is a class of offences that require such speedy trial. Of course, there may be certain offences whose trial requires priority over the rest and quick progress, owing to their frequent occurrence, grave danger to public peace or tranquillity, and other special features that may be prevalent at a particular time in a specified area. And when it is intended to provide that they should be tried more speedily than other offences, requiring in certain respects a departure from the procedure prescribed for the general class of offences, it is but reasonable to expect the legislature to indicate the basis for any such classification. If the Act does not state what exactly are the offences which in its opinion need a speedier trial and why it is so considered, a mere statement in general words of the object sought to be achieved, as we find in this case, is of no avail because the classification, if any, is illusive or evasive. The policy or idea behind the classification should at least be adumbrated, if not stated, so that the court which has to decide on the constitutionality might be seized of something on which it could base its view about the propriety of the enactment from the standpoint of discrimination or equal protection. Any arbitrary division or ridge will render the equal protection clause moribund or lifeless.
Apart from the absence of any reasonable or rational classification, we have in this case the additional feature of a carte blanche being given to the State Government to send any offences or cases for trial by a Special Court. Section 5, sub-clause, of the impugned Act is in these terms:"A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may, by general or special order in writing, direct." If the scope or the meaning of the Act is doubtful, the preamble can be referred to for ascertaining its extent and purpose. But where the operative parts of the Act are clear and there is no ambiguity, the preamble cannot be allowed to control the express provisions. On the terms of section 5, it would be perfectly open to the State Government to send before the
Special Court any case, whatever its nature, whether it has arisen out of a particular incident or relates to a crime of normal occurrence, whether the offence involved is grave or simple, whether it needs more expeditious trial or not. Thus, we have before us an enactment which does not make any reasonable classification and which confers on the executive an uncontrolled and unguided power of discrimination.

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The question whether there is any proper classification where no standard is set up by the enactment to control executive action has arisen for consideration before the American courts and has been differently answered. Willis says at page 586:"Is it proper classification to put in one class those who get the consent of a board or of an official and into another class those who do not, where no standard is set up to control the action of the board or official? Some cases answer this question in the affirmative, while other cases answer it in the negative. Perhaps the best view on this subject is that due process and equality are not violated by the mere conference of unguided power, but only by its arbitrary exercise by those upon whom it is conferred."

The case cited in support of this view, Plymouth Coal Co. v. Pennsylvania, 232 U.S. 532, is really no authority for any such position. In that case, the statute provided that it was
"obligatory on the owners of adjoining coal properties to leave, or cause to be left, a pillar of coal in each seam or vein of coal worked by them, along the line of adjoining property, of such width that, taken in connection with the pillar to be left by the adjoining property owner, will be a sufficient barrier for the safety of the employees of either mine in case the other should be abandoned and allowed to fill with water; such width of pillar to be determined by the engineers of the adjoining property owners together with the inspector of the district in which the mine is situated." When the Inspector of Mines wrote to the plaintiff company,
Plymouth Coal Co., asking their engineer to meet him so that they can meet the engineer of the neighboring coal company to decide about the thickness of the barrier pillar to be left unmined between the two adjoining coal properties, the plaintiff company declined to cooperate. Thereupon the Inspector filed a bill of complaint against the plaintiff company for a preliminary and a perpetual injunction from working its mines - without leaving a barrier pillar of the dimensions he thought necessary. The plaintiff company urged that the Act upon which the bill was based "was confiscator, unconstitutional, and void". The bill of complaint succeeded but it was provided in the final order that it was without prejudice to the Plymouth
Coal Co. 's right to get dissolution or modification of the injunction. The matter came up on appeal to the Supreme Court. The legislative Act was challenged by the Plymouth Coal Co. on the grounds that the method of fixing the width of the barrier pillar indicated in the Act was crude, uncertain and unjust, that there was uncertainty and want of uniformity in the membership of the statutory tribunal, that there was no provision of notice to the parties interested, that the procedure to be followed was not prescribed, and that there was no right of appeal. All these objections were negatived. The Court observed on the main contention that
"it was competent for the legislature to lay down a general rule, and then establish an administrative tribunal with authority to fix the precise width or thickness of pillar that will suit the necessities of the particular situation, and constitute a compliance with the general rule." This case is no authority for the position that the mere conferment of naked or uncontrolled power is no violation of the due process or equality clauses. It is true that the power to deal with a particular situation within the general rule prescribed by the enactment may be conferred on an administrative body or even on a single individual but this entrustment or delegation is subject to the condition that the statute must itself be a valid one, as not being opposed to the 5th or 14th Amendment of the American Constitution, corresponding to articles 14 and 22 of our Constitution.
85. Discrimination may not appear in the statute itself but may be evident in the administration of the law. If an uncontrolled or unguided power is conferred without any reasonable and proper standards or limits being laid down in the enactment, the statute itself may be challenged and not merely the particular administrative act. Citing the case of Sunday Lake
Iron Co. v. Wakefield, Rogers v. Alabama, and Concordia Fire Ins. Co. v. Illinois, Prof.

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Weaver says at page 404 of his compendious book on Constitutional Law under the heading of "DISCRIMINATION IN THE ADMINISTRATION OF THE LAWS ' :"Discrimination may exist in the administration of the laws and it is the purpose of the equal protection clause to secure all the inhabitants of the state from intentional and arbitrary discrimination arising in their improper or prejudiced execution, as well by the express terms of the law itself. The validity or invalidity of a statute often depends on how it is construed and applied. It may be valid when given a particular application and invalid when given another."

A difficulty was suggested and discussed in the course of the arguments in case article 14 was to receive a very wide interpretation. Under article 12 of the Constitution, even a local authority comes within the definition of "the State" and section 13 provides in subclause that " 'law ' includes any ordinance, order, bye- law, rule, regulation, notification…".
Therefore any ordinance or notification issued by a local authority acting under the powers conferred on it by a statute might be challenged as discriminatory and if this is permitted, the work of administration might be paralysed altogether. This no doubt, is a possible result but the difficulty envisaged is by no means insurmountable. If the statute or the enactment makes a reasonable or rational classification and if the power conferred by the statute on a local authority is exercised to the prejudice of a person vis a vis other persons similarly situated, two answers would be possible. One is that there was no discrimination at all in the exercise of the power. The second is that the power was exercised in good 'faith within the limitations imposed by the Act and for the achievement of the objects the enactment had in view and that the person who alleges that he has been discriminated against will have to establish mala fides in the sense that the step was taken intentionally for the purpose of injuring him; in other words, it was a hostile act directed against him. If the legislation itself is open to attack on the ground of discrimination, the question of any act done by a local or other authority under the power or powers vested in it will not arise, If the Act itself is invalid on the ground that it is ultra vires, the notification, ordinance, or rule falls to the ground with it, but if the Act remains, the validity of the notification or order etc., when impugned, may have to be considered independently. There may be cases where individual acts of state officials are questioned and not the legislation itself. As regards such cases, Willoughby states at page 1932 of his Volume III on the Constitution of the United States:"It is, however, to be observed in this connection, that the prohibitions apply to the acts of State officials even when they are done in pursuance of some State legislative direction, for, while no constitutional objection may be made to any law of the State, it has been held that its officials may exercise their public authority in such a discriminatory or arbitrary manner as to bring them within the scope of the prohibitions of the Fourteenth Amendment. This, it will be remembered, was one of the grounds upon which, in Yick Wo V. Hopkins, 118
U.S. 356 it was held that due process of law had been denied. In Tarrance v.
Florida, 188 U.S. 519 the administration of a State law and not the law itself was challenged and the court said: 'Such an actual discrimination is as potential in creating a denial of equality of rights as discrimination made by law. '"

There is only one other point that I would like to deal with. Trevor Harries, C.J. has taken the view that section 5 of the Act would have been unexceptionable had it only provided for the trial by a Special Court of certain offences or classes of offences or certain classes of cases and that in his opinion the discrimination arose by the provision for the trial of cases, as distinguished from classes of cases. It is rather difficult, however, to appreciate this distinction. If the statute makes no classification at all, or if the classification purported to be made is not reasonable or rational but is arbitrary and illusory, as in this case, Section 5 would be void as contravening article, 14. It is no doubt true that totally different considerations

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might arise if specified offences or groups of offences in a particular area or arising out of a particular event or incident were to be tried by a Special Court but this is not the case here. I am unable to see how if the Act merely provided that certain "classes of cases" as distinguished from "cases" should be tried by a Special Court, the attack against discrimination could be avoided, as even then the test of rationality or reasonableness would still remain to be satisfied.
If the Act does not enunciate any principle on the basis of which the State Government could select offences of classes of offences or cases or classes of cases and the State Government is left free to make any arbitrary selection according to their will and pleasure then the Act is void. On this point, I would invite special attention to the view taken by Mr. Justice Das Gupta in the following passage of his judgment:"The Act lays down no principle on which selection of "classes of offences" or
"classes of cases" should be made by the State Government. The State
Government may even arbitrarily determine the classes of cases to be tried by the
Special Court and if it does so its action will be well within its powers conferred by the Act. The Act indicates no basis whatsoever on which such classification should be made. I am of opinion that the whole Act is ultra vires the Constitution and deletion of the word "cases" from section 5 would not save the rest of the Act from being invalid."

JUSTICE BOSE (for himself)
We are concerned here with article 14 of the Constitution and in particular with the words
"equality before the law" and "equal protection of the law." Now I yield to none in my insistence that plain unambiguous words in a statute, or in the Constitution, must having regard to the context, be interpreted according to their ordinary meaning and be given full effect. But that predicates a position where the words are plain and unambiguous. I am clear that that is not the case here.
Take first the words "equality before the law". It is to be observed that equality in the abstract is not guaranteed but only equality before the law. That at once leads to the question, what is the law, and whether "the law" does not draw distinctions between man and man and make for inequalities in the sense of differentiation? One has only to look to the differing personal laws which are applied daily to see that it does; to trusts and foundations from which only one particular race or community may benefit, to places of worship from which all but members of particular faith are excluded, to cemeteries and towers of silence which none but the faithful may use to the laws of property, marriage and divorce. All that is part and parcel of the law of the land and equality before it in any literal sense is impossible unless these laws are swept away, but that is not what the Constitution says, for these very laws are preserved and along with equality before the law is also guaranteed the right to the practice of one 's faith.
Then, again, what does "equality" mean? All men are not alike. Some are rich and some are poor. Some by the mere accident of birth inherit riches, others are born to poverty. There are differences in social standing and economic status. High sounding phrases cannot alter such fundamental facts. It is therefore impossible to apply rules of abstract equality to conditions which predicate inequality form the start; and yet the words have meaning though in my judgment their true content is not to be gathered by simply taking the words in one hand and a dictionary in the other, for the provisions of the Constitution are not mathematical formulae which have their essence in mere form. They constitute a frame-work of government written for men of fundamentally differing opinions and written as much for the future as the present. They are not just pages from a text book but form the means of ordering the life of a progressive people. There is consequently grave danger in endeavoring to confine them in watertight compartments made up of ready-made generalisations like classification. I have no

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doubt those tests serve as a rough and ready guide in some cases but they are not the only tests, nor are they the true tests on a final analysis.
What, after all, is classification? It is merely a systematic arrangement of things into groups or classes, usually in accordance with some definite scheme. But the scheme can be anything and the laws which are laid down to govern the grouping must necessarily be arbitrarily selected; also granted the right to select, the classification can be as broad based as one pleases, or it can be broken down and down until finally just one solitary unit is divided off from the rest. Even those who propound this theory are driven to making qualifications.
Thus, it is not enough merely to classify but the classification must not be 'discriminatory ', it must not amount to 'hostile action ', there must be 'reasonable grounds for distinction ', it must be 'rational ' and there must be no 'substantial discrimination '. But what then becomes of the classification and who are to be the judges of the reasonableness and the substantiality or otherwise of the discrimination? And, much more important, whose standards of reasonableness are to be applied? - the judges? - the government 's? - or that of the mythical ordinary reasonable man of law which is no single man but a composite of many men whose reasonableness can be measured and gauged even though he can neither be seen nor heard nor felt? With the utmost respect I cannot see how these vague generalisations serve to clarify the position. To my mind they, do not carry us one whit beyond the original words and are no more satisfactory than saying-that all men are equal before the law and that all shall be equally treated and be given equal protection. The problem is not solved by substituting one generalisation for another.
To say that the law shall not be discriminatory carries us nowhere for unless the law is discriminatory the question cannot arise. The whole problem is to pick out from among the laws which make for differentiation the ones which do not offend article 14 and separate them from those which do. It is true the word can also be used in the sense of showing favouritism, but in so far as it means that, it suffers from the same defect as the 'hostile action ' test. We are then compelled to import into the question the clement of motive and delve into the minds of those who make the differentiation or pass the discriminatory law and thus at once substitute a subjective test for an objective analysis.
I would always be slow to impute want of good faith in these cases. I have no doubt that the motive, except in rare cases, is beyond reproach and were it not for the fact that the
Constitution demands equality of treatment these laws would, in my opinion, be valid. But that apart. What material have we for delving into the mind of a legislature? It is useless to say that a man shall be judged by his acts, for acts of this kind can spring from good motives as well as had, and in the absence of other material the presumption must be overwhelmingly in favour of the former.
I can conceive of cases, where there is the utmost good faith and where the classification is scientific and rational and yet which would offend this law. Let us take an imaginary cases in which a State legislature considers that all accused persons whose skull measurements are below a certain standard, or who cannot pass a given series of intelligence tests, shall be tried summarily whatever the offence on the ground that the less complicated the trial the fairer it is to their sub-standard of intelligence. Here is classification. It is scientific and systematic.
The intention and motive are good. There is no question of favouritism, and yet I can hardly believe that such a law would be allowed to stand. But what would be the true basis of the decision? Surely simply this that the judges would not consider that fair and proper. However much the real ground of decision may be hidden behind a screen of words like 'reasonable ', 'substantial ', 'rational ' and 'arbitrary ' the fact would remain that judges are substituting their own judgment of what is right and proper and reasonable and just for that of the legislature; and up to a point that, I think, is inevitable when a judge is called upon to crystallise a vague

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generality like article 14 into a concrete concept. Even in England, where Parliament is supreme, that is inevitable, for, as Dicey tells us in his Law of the Constitution:
"Parliament is the supreme legislator, but from, the moment Parliament has uttered its will as law-giver, that will becomes subject to the interpretation put upon it by the judges of the land, and the judges, who are influenced by the feelings of magistrates no less than by the general spirit of the common law, are disposed to construe statutory exceptions to common law principles in a mode which would not commend itself either to a body of officials, or the Houses of
Parliament, if the Houses were called upon to interpret their own enactments."

This, however, does not mean that judges are to determine what is for the good of the people and substitute their individual and personal opinions for that of the government of the day, or that they may usurp the functions of the legislature. That is not their province and though there must always be a narrow margin within which judges, who are human, will always be influenced by subjective factors, their training and their tradition makes the main body of their decisions speak with the same voice and reach impersonal results whatever their personal predilections or their individual backgrounds. It is the function of the legislature alone, headed by the government of the day, to determine what is, and what is not, good and proper for the people of the land and they must be given the widest latitude to exercise their functions within the ambit of their powers, else all progress is barred. But, because of the
Constitution, there are limits beyond which they cannot go and even though it falls to the lot of judges to determine where those limits, lie, the basis of their decision cannot be whether the Court thinks the law is for the benefit of the people of not. Cases of this type must be decided solely on the basis whether the Constitution forbids it.
I realise that this is a function which is incapable of exact definition but I do not view that with dismay. The common law of England grew up in that way. It was gradually added to as each concrete case arose and a decision, was given ad hoc on the facts of that particular case.
It is true the judges who thus contributed to its growth were not importing personal predilections into the result and merely stated what was the law applicable to that particular case. But though they did not purport to make the law and merely applied what according to them, had always been the law handed down by custom and tradition, they nevertheless had to draw for their material on a nebulous mass of undefined rules which though they existed in fact and left a vague awareness in man 's minds, nevertheless were neither clearly definable not even necessarily identificable, until crystalised into concrete existence by a judicial decision; not indeed is it necessary to travel as far afield. Much of the existing Hindu law has grown up in that way from instance to instance, the threads being gathered not from the rishis, now from custom, now from tradition. In the same way, the laws of liberty, of freedom and of protection under the Constitution will also slowly assume recognisable shape as decision is added to decision. They cannot, in my judgment, be enunciated in static from by hidebound rules and arbitrarily applied standards or tests.
I find it impossible to read these portions of the Constitution without regard to the background out of which they arose. I cannot blot out their history and omit from consideration the brooding spirit of the times. They are not just dull, lifeless words static and hide- bound as in some mummified manuscript, but, living flames intended to give life to a great nation and order its being, tongues of dynamic fire, potent to mould the future as well as guide the present. The Constitution must, in myy judgment, be left elastic enough to meet from time to time the altering conditions of a changing would with its shifting emphasis and differing needs. I feel therefore that in each case judges must look straight into the heart of things and regard the facts of each case concretely much as a jury would do; and yet, not quite as a jury, for we are considering here a matter of law and not just one of fact; Do these "laws" which have been called in question offend a still greater law before which even they must bow?

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Doing that, what is the history of these provisions? They arose out of the fight for freedom in this land and are but the endeavour to compress into a few pregnant phrases some of the main attributes of a sovereign democratic republic as seen through Indian eyes. There was present to the collective mind of the Constituent Assembly, reflecting the mood of the peoples of India, the memory of grim trials by hastily constituted tribunals with novel forms of procedure set forth in Ordinances promulgated in baste because of what was then felt to be the urgent necessities of the moment. Without casting the slightest reflection of the judges and the Courts so constituted, the fact remains that when these tribunals were declared invalid and the same persons were retired in the ordinary Courts, many were acquitted, many who had been sentenced to death were absolved. That was not the fault of the judges but of the imperfect tools with which they were compelled to work. The whole proceedings were repugnant to the peoples of this land, and to my mind, article 14 is but a reflex of this mood.
What I am concerned to see is not whether there is absolute equality in any academical sense of the term but whether the collective conscience of a sovereign democratic republic can regard the impugned law, contrasted with the ordinary law of the land, as the sort of substantially equal treatment which men of resolute minds and unbiased views can regard as right and proper in a democracy of the kind we have proclaimed ourselves to be. Such views must take into consideration the practical necessities of government, the right to alter the laws and many other facts, but in the forefront must remain the freedom of the individual from unjust and unequal treatment, unequal in the broad sense in which a democracy would view it. In my opinion, 'law ' as used in article 14 does not mean the "legal precepts which are actually recognised and applied in tribunals of a given time and place" but "the more general body of doctrine and tradition from which those precepts are chiefly drawn, and by which we criticise, them." (Dean Pound in 34 Harvard Law Review 449 at 452).
I grant that this means that the same things will be viewed differently at different times.
What is considered right and proper in a given set of circumstances will be considered improper in another age and vice versa. But that will not be because the law has changed but because the times have altered and it is no longer necessary for government to wield the powers which were essential in an earlier and more troubled world. That is what I mean by flexibility of interpretation.
This is no new or starting doctrine. It is just what happened in the cases of blasphemy and sedition in England. Lord Summer has explained this Bowman 's case, [1917] A.C. 406 at 454,
466 and 467 and the Federal Court in Niharendu Dutt Majumder 's case, [1942] F.C.R. 32 at
42 and so did Puranik J. and I in the Nagpur High Court in Bhagwati Charan Shukla 's case I.L.R. 1946 Nag. 865 at 878 and 879.
Coming now to the concrete cases with which we have to deal here. I am far from suggesting that the departures made from the procedure prescribed by the Criminal Procedure
Code are had or undesirable in themselves. Some may be good in the sense that they will better promote the ends of justice and would thus from welcome additions to the law of the land.
But I am not here to consider that. That is no part of a Judge 's province. What I have to determine is whether the differentiation made offends what I may call the social conscience of a sovereign democratic republic. That is not a question which can be answered in the abstract, but, viewed in the background of our history, I am of opinion that it does. It is not that these laws are necessarily had in themselves. It is the differentiation, which matters; the singling out of cases or groups of cases, or even of offences or classes of offences, of a kind fraught with the most serious consequences to the individuals concerned, for special, and what some would regard as peculiar, treatment.

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It may be that justice would be fully done by following the new procedure. It may even be that it would be more truly done. But it would not be satisfactorily done, satisfactory that is to say not from the point of view of the governments, who prosecute, but satisfactory in the view of the ordinary reasonable man, the man in the street. It is not enough that justice should be cone. Justice must also be seen to be done and a sense of satisfaction and confidence in it engendered. That cannot be when Ramchandra is tried by one procedure and Sakharam, similarly placed, facing equally serious charges, also answering for his life and liberty, by another which differs radically from the first.
The law of the Constitution is not only for those who govern or for the theorist, but also for the bulk of the people for the common man for whose benefit and pride and safeguard the
Constitution has also been written. Unless and until these fundamental provisions are altered by the constituent processes of Parliament they must be interpreted in a sense which the common man, not versed in the niceties of grammar and dialectical logic, can understand and appreciate so that he may have faith and confidence and unshaken trust in that which has been enacted for his benefit and protection.
Tested in the light of these considerations. I am of opinion that the whole of the West
Bengal Special Courts Act of 1950 offends the provisions of article 14 and is therefore bad.
When the forth and the foam of discussion is cleared away and learned dialectics placed on one side, we reach at last the human element which to my mind is the most important of all.
We find men accused of heinous crimes called upon answer for their lives and liberties. We find picked out from their fellows, and however the new procedure may give them a few crumb of advantage, in the bulk they are deprived of substantial and valuable privileges of defence which others, similarly charged, are able to claim. It matters not to me, nor indeed to them and their families and their friends, whether this be done in good faith, whether it be done for the convenience of government, whether the process can be scientifically classified and labelled, or whether it is an experiment in speedier trials made for the good of society at large. It matters not how lofty and laudable the motives are. The question with which I charge myself is, can fair-minded, reasonable unbiased and resolute men, who are not swayed by emotion or prejudice, regard this with equanimity and call it reasonable, just and fair, regard it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic, in the condition which obtain in India today? I have but one answer to that. On that short and simple ground I would decide this case and hold the Act bad.
Appeals dismissed.

DOCTRINE OF ARBITRARINESS
NATURAL RESOURCES ALLOCATION, IN RE SPECIAL REFERENCE NO. 1 OF 2012
(2012) 10 SCC 1
Decided On: September 27, 2012
BENCH – CHIEF JUSTICE S. H. KAPADIA, D. K. JAIN, J. S. KHEHAR, DIPAK MISRA & RANJAN
GOGOI

JUSTICE JAIN (for the Chief Justice, Justices Misra, Gogoi & himself, MAJORITY OPINION) [Justice
Khehar CONCURRING but wrote his separate opinion]
In exercise of powers conferred under Article 143(1) of the Constitution of India, the
President of India has on 12th April, 2012, made the present Reference. The full text of the
Reference (sans the annexures) is as follows:

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WHEREAS in 1994, the Department of Telecommunication, Government of
India ("GOI"), issued 8 Cellular Mobile Telephone Services Licenses ("CMTS
Licenses"), 2 in each of the four Metro cities of Delhi, Mumbai, Kolkata and
Chennai for a period of 10 years (the "1994 Licenses"). The 1994 licensees were selected based on rankings achieved by them on the technical and financial evaluation based on parameters set out by the GoI in the tender and were required to pay a fixed licence fee for initial three years and subsequently based on number of subscribers subject to minimum commitment mentioned in the tender document and licence agreement. The 1994 Licenses issued by GoI mentioned that a cumulative maximum of upto 4.5 MHz in the 900 MHz bands would be permitted based on appropriate justification. There was no separate upfront charge for the allocation of Spectrum to the licensees, who only paid annual Spectrum usage charges, which will be subject to revision from time to time and which under the terms of the license bore the nomenclature "licence fee and royalty". A copy of the 1994 Licenses, along with a table setting out the pre-determined
Licence Fee as prescribed by DoT in the Tender, is annexed hereto as Annexure
I (Colly).
WHEREAS in December 1995, 34 CMTS Licenses were granted based on auction for 18 telecommunication circles for a period of 10 years (the "1995
Licenses"). The 1995 Licenses mentioned that a cumulative maximum of up to
4.4 MHz in the 900 MHz bands shall be permitted to the licensees, based on appropriate justification. There was no separate upfront charge for allocation of spectrum to the licensees who were also required to pay annual spectrum usage charges, which under the terms of the license bore the nomenclature "licence fee and royalty" which will be subject to revision from time to time. A copy of the
1995 Licenses, along with a table setting out the fees payable by the highest bidder, is annexed hereto as Annexure II (Colly).
WHEREAS in 1995, bids were also invited for basic telephone service licenses
("BTS Licenses") with the license fee payable for a 15 year period. Under the terms of the BTS Licenses, a licensee could provide fixed line basic telephone services as well as wireless basic telephone services. Six licenses were granted in the year 1997-98 by way of auction through tender for providing basic telecom services (the "1997 BTS Licenses"). The license terms, inter-alia, provided that based on the availability of the equipment for Wireless in Local Loop (WLL), in the world market, the spectrum in bands specified therein would be considered for allocation subject to the conditions mentioned therein. There was no separate upfront charge for allocation of spectrum and the licensees offering the basic wireless telephone service were required to pay annual Spectrum usage charges, which under the terms of the license bore the nomenclature "licence fee and royalty". A sample copy of the 1997 BTS Licenses containing the table setting out the license fees paid by the highest bidder is annexed hereto as Annexure
III (Colly).
WHEREAS in 1997, the Telecom Regulatory Authority of India Act, 1997 was enacted and the Telecom Regulatory Authority of India (the "TRAI") was established. WHEREAS on 1st April, 1999, the New Telecom Policy 1999 ("NTP 1999") was brought into effect on the recommendation of a Group on Telecom ("GoT") which had been constituted by GoI. A copy of NTP 1999 is annexed hereto as Annexure
IV. NTP 1999 provided that Cellular Mobile Service Providers ("CMSP") would be granted a license for a period of 20 years on the payment of a one-time entry fee and licence fee in the form of revenue share. NTP 1999 also provided that
BTS (Fixed Service Provider or FSP) Licenses for providing both fixed and wireless (WLL) services would also be issued for a period of 20 years on payment of a one-time entry fee and licence fee in the form of revenue share and prescribed charges for spectrum usage, appropriate level of which was to be recommended by TRAI. The licensees both cellular and basic were also required to pay annual
Spectrum usage charges.

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WHEREAS based on NTP 1999, a migration package for migration from fixed license fee to one time entry fee and licence fee based on revenue share regime was offered to all the existing licenses on 22nd July, 1999. This came into effect on 1st August 1999. Under the migration package, the licence period for all the
CMTS and FSP licensees was extended to 20 years from the date of issuance of the Licenses.
WHEREAS in 1997 and 2000, CMTS Licenses were also granted in 2 and 21
Circles to Mahanagar Telephone Nigam Limited ("MTNL") and Bharat Sanchar
Nigam Limited ("BSNL") respectively (the "PSU Licenses"). However, no entry fee was charged for the PSU Licenses. The CMTS Licenses issued to BSNL and
MTNL mentioned that they would be granted GSM Spectrum of 4.4 + 4.4 MHz in the 900 MHz band. The PSU Licensees were also required to pay annual spectrum usage charges. A copy of the PSU Licenses is annexed hereto as Annexure V (Colly).
WHEREAS in January 2001, based on TRAI 's recommendation, DoT issued guidelines for issuing CMTS Licenses for the 4th Cellular Operator based on tendering process structured as "Multistage Informed Ascending Bidding
Process". Based on a tender, 17 new CMTS Licenses were issued for a period of
20 years in the 4 Metro cities and 13 Telecom Circles (the "2001 Cellular
Licenses"). The 2001 Licenses required that the licensees pay a one-time nonrefundable entry fee as determined through auction as above and also annual license fee and annual spectrum usage charges and there was no separate upfront charge for allocation of spectrum. In accordance with the terms of tender document, the license terms, inter-alia, provided that a cumulative maximum of upto 4.4 MHz + 4.4 MHz will be permitted and further based on usage, justification and availability, additional spectrum upto 1.8 MHz + 1.8 MHz making a total of 6.2 MHz + 6.2 MHz, may be considered for assignment, on case by case basis, on payment of additional Licence fee. The bandwidth upto maximum as indicated i.e. 4.4 MHz & 6.2 MHz as the case may be, will be allocated based on the Technology requirements (e.g. CDMA @ 1.25 MHz, GSM
@ 200 KHz etc.). The frequencies assigned may not be contiguous and may not be same in all cases, while efforts would be made to make available larger chunks to the extent feasible. A copy of the 2001 Cellular Licenses, along with a table setting out the fees payable by the highest bidder, is annexed hereto as Annexure
VI.
WHEREAS in 2001, BTS Licenses were also issued for providing both fixed line and wireless basic telephone services on a continual basis (2001 Basic Telephone
Licenses). Service area wise one time Entry Fee and annual license fee as a percentage of Adjusted Gross Revenue (AGR) was prescribed for grant of BTS
Licenses. The licence terms, inter-alia, provided that for Wireless Access System in local area, not more than 5 + 5 MHz in 824-844 MHz paired with 869-889 MHz band shall be allocated to any basic service operator including existing ones on
FCFS basis. A detailed procedure for allocation of spectrum on FCFS basis was given in Annexure-IX of the 2001 BTS license. There was no separate upfront charge for allocation of spectrum and the Licensees were required to pay revenue share of 2% of the AGR earned from wireless in local loop subscribers as spectrum charges in addition to the one time entry fee and annual license fee. A sample copy of the 2001 Basic Telephone License along with a table setting out the entry fees is annexed hereto as Annexure VII.
WHEREAS on 27th October, 2003, TRAI recommended a Unified Access
Services Licence ("UASL") Regime. A copy of TRAI 's recommendation is annexed hereto as Annexure VIII.
WHEREAS on 11.11.2003, Guidelines were issued, specifying procedure for migration of existing operators to the new UASL regime. As per the Guidelines, all applications for new Access Services License shall be in the category of
Unified Access Services Licence. Later, based on TRAI clarification dated
14.11.2003, the entry fee for new Unified Licensee was fixed same as the entry fee of the 4th cellular operator. Based on further recommendations of TRAI dated

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19.11.2003, spectrum to the new licensees was to be given as per the existing terms and conditions relating to spectrum in the respective license agreements. A copy of the Guidelines dated 11.11.2003 is annexed hereto as Annexure IX.
WHEREAS consequent to enhancement of FDI limit in telecom sector from 49% to 74%, revised Guidelines for grant of UAS Licenses were issued on 14.12.2005.
These Guidelines, inter-alia stipulate that Licenses shall be issued without any restriction on the number of entrants for provision of Unified Access Services in a Service Area and the applicant will be required to pay one time non-refundable
Entry, annual License fee as a percentage of Adjusted Gross Revenue (AGR) and spectrum charges on revenue share basis. No separate upfront charge for allocation of spectrum was prescribed. Initial Spectrum was allotted as per UAS
License conditions to the service providers in different frequency bands, subject to availability. Initially allocation of a cumulative maximum up to 4.4 MHz + 4.4
MHz for TDMA based systems or 2.5 MHz + 2.5 MHz for CDMA based systems subject to availability was to be made. Spectrum not more than 5 MHz + 5 MHz in respect of CDMA system or 6.2 MHz + 6.2 MHz in respect of TDMA based system was to be allocated to any new UAS licensee. A copy of the UASL
Guidelines dated 14.12.2005 is annexed hereto asAnnexure X.
WHEREAS after the introduction of the UASL in 2003 and until March 2007,
51 new UASL Licenses were issued based on policy of First Come-First Served, on payment of the same entry fee as was paid for the 2001 Cellular Licenses (the
"2003-2007 Licenses") and the spectrum was also allocated based on FCFS under a separate wireless operating license on case by case basis and subject to availability. Licensees had to pay annual spectrum usage charges as a percentage of AGR, there being a no upfront charge for allocation of spectrum. A copy of the
2003-2007 License, along with a table setting out the fees payable, is annexed hereto as Annexure XI (Colly).
WHEREAS on 28th August 2007, TRAI revisited the issue of new licenses, allocation of Spectrum, Spectrum charges, entry fees and issued its recommendations, a copy of which is annexed hereto as Annexure XII. TRAI made further recommendations dated 16.07.2008 which is annexed hereto as Annexure XIII.
WHEREAS in 2007 and 2008, GoI issued Dual Technology Licences, where under the terms of the existing licenses were amended to allow licensees to hold a license as well as Spectrum for providing services through both GSM and
CDMA network. First amendment was issued in December, 2007. All licensees who opted for Dual Technology Licences paid the same entry fee, which was an amount equal to the amount prescribed as entry fee for getting a new UAS licence in the same service area. The amendment to the license inter-alia mentioned that initially a cumulative maximum of upto 4.4 MHz + 4.4 MHz was to be allocated in the case of TDMA based systems (@ 200 KHz per carrier or 30 KHz per carrier) and a maximum of 2.5 MHz + 2.5 MHz was to be allocated in the case of
CDMA based systems (@ 1.25 MHz per carrier), on case by case basis subject to availability. It was also, inter-alia, mentioned that additional spectrum beyond the above stipulation may also be considered for allocation after ensuring optimal and efficient utilization of the already allocated spectrum taking into account all types of traffic and guidelines/criteria prescribed from time to time. However, spectrum not more than 5 + 5 MHz in respect of CDMS system and 6.2 + 6.2 MHz in respect of TDMA based system was to be allocated to the licensee. There was no separate upfront charge for allocation of Spectrum. However, Dual Technology licensees were required to pay Spectrum usage charges in addition to the license fee on revenue share basis as a percentage of AGR. Spectrum to these licensees was allocated 10.01.2008 onwards.
WHEREAS Subscriber based criteria for CMTS was prescribed in the year 2002 for allocation of additional spectrum of 1.8 + 1.8 MHz beyond 6.2 + 6.2 MHz with a levy of additional spectrum usage charge of 1% of AGR. The allocation criteria was revised from time to time. A copy of the DoT letter dated 01.02.2002 in this regard is annexed hereto as Annexure XIV.

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WHEREAS for the spectrum allotted beyond 6.2 MHz, in the frequency allocation letters issued by DoT May 2008 onwards, it was mentioned inter-alia that allotment of spectrum is subject to pricing as determined in future by the GoI for spectrum beyond 6.2 MHz + 6.2 MHz and the outcome of Court orders.
However, annual spectrum usage charges were levied on the basis of AGR, as per the quantum of spectrum assigned. A sample copy of the frequency allocation letter is annexed hereto as Annexure XV.
WHEREAS Spectrum for the 3G Band (i.e. 2100 MHz band) was auctioned in
2010. The terms of the auction stipulated that, for successful new entrants, a fresh license agreement would be entered into and for existing licensees who were successful in the auction, the license agreement would be amended for use of
Spectrum in the 3G band. A copy of the Notice inviting Applications and
Clarifications thereto are annexed hereto and marked as Annexure XVI (Colly).
The terms of the amendment letter provided, inter alia, that the 3G spectrum would stand withdrawn if the license stood terminated for any reason. A copy of the standard form of the amendment letter is annexed hereto and marked as Annexure XVII.
WHEREAS letters of intent were issued for 122 Licenses for providing 2G services on or after 10 January 2008, against which licenses (the "2008 Licenses") were subsequently issued. However, pursuant to the judgment of this Hon 'ble
Court dated 2nd February, 2012 in Writ Petition (Civil) No. 423 of 2010 (the
"Judgment"), the 2008 Licenses have been quashed. A copy of the judgment is annexed hereto and marked Annexure XVIII.
WHEREAS the GoI has also filed an Interlocutory Application for clarification of the Judgment, wherein the GoI has placed on record the manner in which the auction is proposed to be held pursuant to the Judgment and sought appropriate clarificatory orders/directions from the Hon 'ble Court. A copy of the Interlocutory
Application is annexed hereto and marked as Annexure XIX.
WHEREAS while the GoI is implementing the directions set out in the Judgment at paragraph 81 and proceeding with a fresh grant of licences and allocation of spectrum by auction, the GoI is seeking a limited review of the Judgment to the extent it impacts generally the method for allocation of national resources by the
State. A copy of the Review Petition is annexed hereto and marked as Annexure
XX.
WHEREAS by the Judgment, this Hon 'ble Court directed TRAI to make fresh recommendations for grant of licenses and allocation of Spectrum in the 2G band by holding an auction, as was done for the allocation of Spectrum for the 3G licenses. WHEREAS, in terms of the directions of this Hon 'ble Court, GoI would now be allocating Spectrum in the relevant 2G bands at prices discovered through auction.
WHEREAS based on the recommendations of TRAI dated 11.05.2010 followed by further clarifications and recommendations, the GoI has prescribed in February
2012, the limit for spectrum assignment in the Metro Service Areas as
2x10MHz/2x6.25 MHz and in rest of the Service Areas as 2x8MHz/2x5 MHz for
GSM (900 MHz, 1800 MHz band)/CDMA(800 MHZ band), respectively subject to the condition that the Licensee can acquire additional spectrum beyond prescribed limit in the open market should there be an auction of spectrum subject to the further condition that total spectrum held by it does not exceed the limits prescribed for merger of licenses i.e. 25% of the total spectrum assigned in that
Service Area by way of auction or otherwise. This limit for CDMS spectrum is
10 MHz.
WHEREAS, in view of the fact that Spectrum may need to be allocated to individual entities from time to time in accordance with criteria laid down by the
GoI, such as subscriber base, availability of Spectrum in a particular circle, interse priority depending on whether the Spectrum comprises the initial allocation or

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additional allocation, etc., it may not always be possible to conduct an auction for the allocation of Spectrum.
AND WHEREAS in view of the aforesaid, the auctioning of Spectrum in the 2G bands may result in a situation where none of the Licensees, using the 2G bands of 800 MHz., 900 MHz and 1800 MHz would have paid any separate upfront fee for the allocation of Spectrum.
AND WHEREAS the Government of India has received various notices from companies based in other countries, invoking bilateral investment agreements and seeking damages against the Union of India by reason of the cancellation/threat of cancellation of the licenses.
AND WHEREAS in the circumstance certain questions of law of far reaching national and international implications have arisen, including in relation to the conduct of the auction and the regulation of the telecommunications industry in accordance with the Judgment and FDI into this country in the telecom industry and otherwise in other sectors.
Given that the issues which have arisen are of great public importance, and that questions of law have arisen of public importance and with such far reaching consequences for the development of the country that it is expedient to obtain the opinion of the Hon 'ble Supreme Court of India thereon.
NOW THEREFORE, in exercise of powers conferred upon me by clause (1) of
Article 143 of the Constitution of India, I, Pratibha Devisingh Patil, President of
India, hereby refer the following questions to the Supreme Court of India for consideration and report thereon, namely:
Q.1 Whether the only permissible method for disposal of all natural resources across all sectors and in all circumstances is by the conduct of auctions?
Q.2 Whether a broad proposition of law that only the route of auctions can be resorted to for disposal of natural resources does not run contrary to several judgments of the Supreme Court including those of Larger Benches?
Q.3 Whether the enunciation of a broad principle, even though expressed as a matter of constitutional law, does not really amount to formulation of a policy and has the effect of unsettling policy decisions formulated and approaches taken by various successive governments over the years for valid considerations, including lack of public resources and the need to resort to innovative and different approaches for the development of various sectors of the economy?
Q.4 What is the permissible scope for interference by courts with policy making by the Government including methods for disposal of natural resources?
Q.5 Whether, if the court holds, within the permissible scope of judicial review, that a policy is flawed, is the court not obliged to take into account investments made under the said policy including investments made by foreign investors under multilateral/bilateral agreements?
Q.6 If the answers to the aforesaid questions lead to an affirmation of the judgment dated 02.02.2012 then the following questions may arise, viz.
(i) whether the judgment is required to be given retrospective effect so as to unsettle all licences issued and 2G spectrum (800, 900, and 1800 MHz bands) allocated in and after 1994 and prior to 10.01.2008?
(ii) whether the allocation of 2G spectrum in all circumstances and in all specific cases for different policy considerations would nevertheless have to be undone?
And specifically
(iii) Whether the telecom licences granted in 1994 would be affected?
(iv) Whether the Telecom licences granted by way of basic licences in 2001 and licences granted between the period 2003-2007 would be affected?

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(v) Whether it is open to the Government of India to take any action to alter the terms of any licence to ensure a level playing field among all existing licensees?
(vi) Whether dual technology licences granted in 2007 and 2008 would be affected? (vii) Whether it is necessary or obligatory for the Government of India to withdraw the Spectrum allocated to all existing licensees or to charge for the same with retrospective effect and if so on what basis and from what date?
Q.7 Whether, while taking action for conduct of auction in accordance with the orders of the Supreme Court, it would remain permissible for the Government to:
(i) Make provision for allotment of Spectrum from time to time at the auction discovered price and in accordance with laid down criteria during the period of validity of the auction determined price?
(ii) Impose a ceiling on the acquisition of Spectrum with the aim of avoiding the emergence of dominance in the market by any licensee/applicant duly taking into consideration TRAI recommendations in this regard?
(iii) Make provision for allocation of Spectrum at auction related prices in accordance with laid down criteria in bands where there may be inadequate or no competition (for e.g. there is expected to be a low level of competition for CDMA in 800 MHz band and TRAI has recommended an equivalence ratio of 1.5 or
1.3X1.5 for 800 MHz and 900 MHz bands depending upon the quantum of spectrum held by the licensee that can be applied to auction price in 1800 MHz band in the absence of a specific price for these bands)?
Q.8 What is the effect of the judgment on 3G Spectrum acquired by entities by auction whose licences have been quashed by the said judgment?
NEW DELHI;
DATED: 12 April 2012
PRESIDENT OF INDIA

A bare reading of the Reference shows that it is occasioned by the decision of this Court, rendered by a bench of two learned Judges on 2nd February, 2012 in Centre for Public Interest
Litigation v. Union of India, (2012) 3 SCC 1 (for brevity "2G Case").
On receipt of the Reference, vide order dated 9th May, 2012, notice was issued to the
Attorney General for India. Upon hearing the learned Attorney General, it was directed vide order dated 11th May, 2012, that notice of the Reference shall be issued to all the States through their Standing Counsel; on Centre for Public Interest Litigation (CPIL) and Dr. Subramanian
Swamy (Petitioners in the 2G Case); as also on the Federation of Indian Chambers of
Commerce and Industry (FICCI) and Confederation of Indian Industry (CII), as representatives of the Indian industry. On the suggestion of the learned Attorney General, it was also directed (though not recorded in the order), that the reference shall be dealt with in two parts viz. in the first instance, only questions No. 1 to 5 would be taken up for consideration and the remaining questions shall be taken up later in the light of our answers to the first five questions.
… [Discussion on maintainability of the Presidential Reference is omitted] …

This leads us to the merits of the controversy disclosed in the questions framed in the
Reference for our advisory opinion.
As already pointed out, the judgment in the 2G Case triggered doubts about the validity of methods other than 'auction ' for disposal of natural resources which, ultimately led to the filing of the present Reference. Therefore, before we proceed to answer question No. 1, it is

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imperative to understand what has been precisely stated in the 2G Case and decipher the law declared in that case.
All the counsel agreed that paragraphs 94 to 96 in the said decision are the repository of the ratio vis-à-vis disposal of natural resources in the 2G Case. On the one hand it was argued that these paragraphs lay down, as a proposition of law, that all natural resources across all sectors, and in all circumstances are to be disposed of by way of public auction, and on the other, it was urged that the observations therein were made only qua spectrum. Before examining the strength of the rival stands, we may briefly recapitulate the principles that govern the determination of the 'law declared ' by a judgment and its true ratio.
Article 141 of the Constitution lays down that the 'law declared ' by the Supreme Court is binding upon all the courts within the territory of India. The 'law declared ' has to be construed as a principle of law that emanates from a judgment, or an interpretation of a law or judgment by the Supreme Court, upon which, the case is decided. [See: Fida Hussain v. Moradabad
Development Authority, (2011) 12 SCC 615]. Hence, it flows from the above that the 'law declared ' is the principle culled out on the reading of a judgment as a whole in light of the questions raised, upon which the case is decided. [Also see: Ambica Quarry Works v. State of
Gujarat, (1987) 1 SCC 213 and Commissioner of Income Tax v. Sun Engineering Works (P)
Limited, (1992) 4 SCC 363]. In other words, the 'law declared ' in a judgment, which is binding upon courts, is the ratio decidendi of the judgment. It is the essence of a decision and the principle upon which, the case is decided, which has to be ascertained in relation to the subjectmatter of the decision.
… [Rest of the discussion on Article 141 is omitted] …

In the 2G Case, the Bench framed five questions. Questions No. (ii) and (v) pertain to the factual matrix and are not relevant for settling the controversy at hand. The remaining three questions are reproduced below:
(i) Whether the Government has the right to alienate, transfer or distribute natural resources/national assets otherwise than by following a fair and transparent method consistent with the fundamentals of the equality clause enshrined in the
Constitution?
(iii) Whether the exercise undertaken by DoT from September 2007 to March
2008 for grant of UAS licences to the private Respondents in terms of the recommendations made by TRAI is vitiated due to arbitrariness and mala fides and is contrary to public interest?
(iv) Whether the policy of first-come-first-served followed by DoT for grant of licences is ultra vires the provisions of Article 14 of the Constitution and whether the said policy was arbitrarily changed by the Minister of Communications and
Information Technology (hereinafter referred to as "the Minister of
Communications and Information Technology"), without consulting TRAI, with a view to favour some of the applicants?

While dealing with question No.(i), the Court observed that the State is empowered to distribute natural resources as they constitute public property/national assets. Thereafter, the
Bench observed as follows:
75....while distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best subserve the common good, but no comprehensive

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legislation has been enacted to generally define natural resources and a framework for their protection...

The learned Judges adverted to the 'public trust doctrine ' as enunciated in The Illinois
Central Railroad Co. v. The People of the State of Illinois, 146 U.S. 387 (1892); M.C. Mehta
v. Kamal Nath, (1997) 1 SCC 388; Jamshed Hormusji Wadia v. Board of Trustees, Port of
Mumbai, (2004) 3 SCC 214; Intellectuals Forum, Tirupathi v. State of A.P.,(2006) 3 SCC
549; Fomento Resorts and Hotels Limited v. Minguel Martins, (2009) 3 SCC 571 and Reliance
Natural Resources Limited v. Reliance Industries Limited, (2010) 7 SCC 1 and held:
85. As natural resources are public goods, the doctrine of equality, which emerges from the concepts of justice and fairness, must guide the State in determining the actual mechanism for distribution of natural resources. In this regard, the doctrine of equality has two aspects: first, it regulates the rights and obligations of the State vis-à-vis its people and demands that the people be granted equitable access to natural resources and/or its products and that they are adequately compensated for the transfer of the resource to the private domain; and second, it regulates the rights and obligations of the State vis-à-vis private parties seeking to acquire/use the resource and demands that the procedure adopted for distribution is just, nonarbitrary and transparent and that it does not discriminate between similarly placed private parties.

Referring to the decisions of this Court in Akhil Bhartiya Upbhokta Congress v. State of
Madhya Pradesh, (2011) 5 SCC 29 and Sachidanand Pandey v. State of West Bengal, (1987)
2 SCC 295, the Bench ultimately concluded thus:
In conclusion, we hold that the State is the legal owner of the natural resources as a trustee of the people and although it is empowered to distribute the same, the process of distribution must be guided by the constitutional principles including the doctrine of equality and larger public good.

On a reading of the above paragraphs, it can be noticed that the doctrine of equality; larger public good, adoption of a transparent and fair method, opportunity of competition; and avoidance of any occasion to scuttle the claim of similarly situated applicants were emphasised upon. While dealing with alienation of natural resources like spectrum, it was stated that it is the duty of the State to ensure that a non-discriminatory method is adopted for distribution and alienation which would necessarily result in the protection of national/public interest. Paragraphs 85 and 89, while referring to the concept of 'public trust doctrine ', lay emphasis on the doctrine of equality, which has been segregated into two parts - one is the substantive part and the other is the regulatory part. In the regulatory facet, paragraph 85 states that the procedure adopted for distribution should be just and non-arbitrary and must be guided by constitutional principles including the doctrine of equality and larger public good. Similarly, in paragraph 89 stress has been laid on transparency and fair opportunity of competition. It is further reiterated that the burden of the State is to ensure that a non-discriminatory method is adopted for distribution and alienation which would necessarily result in the protection of national and public interest.
Dealing with Questions No.(iii) and (iv) in paragraphs 94 to 96 of the judgment, the Court opined as follows:
There is a fundamental flaw in the first-come-first-served policy inasmuch as it involves an element of pure chance or accident. In matters involving award of contracts or grant of licence or permission to use public property, the invocation of first-come-first-served policy has inherently dangerous implications. Any person who has access to the power corridor at the highest or the lowest level may be able to obtain information from the government files or the files of the agency/instrumentality of the State that a particular public property or asset is

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likely to be disposed of or a contract is likely to be awarded or a licence or permission is likely to be given, he would immediately make an application and would become entitled to stand first in the queue at the cost of all others who may have a better claim.

This Court has repeatedly held that wherever a contract is to be awarded or a licence is to be given, the public authority must adopt a transparent and fair method for making selections so that all eligible persons get a fair opportunity of competition. To put it differently, the State and its agencies/instrumentalities must always adopt a rational method for disposal of public property and no attempt should be made to scuttle the claim of worthy applicants. When it comes to alienation of scarce natural resources like spectrum, etc. it is the burden of the State to ensure that a non-discriminatory method is adopted for distribution and alienation, which would necessarily result in protection of national/public interest.
In our view, a duly publicised auction conducted fairly and impartially is perhaps the best method for discharging this burden and the methods like first-come-first-served when used for alienation of natural resources/public property are likely to be misused by unscrupulous people who are only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values. In other words, while transferring or alienating the natural resources, the State is duty-bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process.
Our reading of these paragraphs suggests that the Court was not considering the case of auction in general, but specifically evaluating the validity of those methods adopted in the distribution of spectrum from September 2007 to March 2008. It is also pertinent to note that reference to auction is made in the subsequent paragraph (96) with the rider 'perhaps '. It has been observed that "a duly publicized auction conducted fairly and impartially is perhaps the best method for discharging this burden." We are conscious that a judgment is not to be read as a statute, but at the same time, we cannot be oblivious to the fact that when it is argued with vehemence that the judgment lays down auction as a constitutional principle, the word
"perhaps" gains significance. This suggests that the recommendation of auction for alienation of natural resources was never intended to be taken as an absolute or blanket statement applicable across all natural resources, but simply a conclusion made at first blush over the attractiveness of a method like auction in disposal of natural resources. The choice of the word 'perhaps ' suggests that the learned Judges considered situations requiring a method other than auction as conceivable and desirable.
Further, the final conclusions summarized in paragraph 102 of the judgment (SCC) make no mention about auction being the only permissible and intra vires method for disposal of natural resources; the findings are limited to the case of spectrum. In case the Court had actually enunciated, as a proposition of law, that auction is the only permissible method or mode for alienation/allotment of natural resources, the same would have found a mention in the summary at the end of the judgment.
Moreover, if the judgment is to be read as holding auction as the only permissible means of disposal of all natural resources, it would lead to the quashing of a large number of laws that prescribe methods other than auction, e.g., the MMRD Act. While dealing with the merits of the Reference, at a later stage, we will discuss whether or not auction can be a constitutional mandate under Article 14 of the Constitution, but for the present, it would suffice to say that no court would ever implicitly, indirectly, or by inference, hold a range of laws as ultra vires the Constitution, without allowing every law to be tested on its merits. One of the most profound tenets of constitutionalism is the presumption of constitutionality assigned to each legislation enacted. We find that the 2G Case does not even consider a plethora of laws and judgments that prescribe methods, other than auction, for dispensation of natural resources;

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something that it would have done, in case, it intended to make an assertion as wide as applying auction to all natural resources. Therefore, we are convinced that the observations in
Paras 94 to 96 could not apply beyond the specific case of spectrum, which according to the law declared in the 2G Case, is to be alienated only by auction and no other method.
Thus, having come to the conclusion that the 2G Case does not deal with modes of allocation for natural resources, other than spectrum, we shall now proceed to answer the first question of the Reference pertaining to other natural resources, as the question subsumes the essence of the entire reference, particularly the set of first five questions.
The President seeks this Court 's opinion on the limited point of permissibility of methods other than auction for alienation of natural resources, other than spectrum. The question also harbours several concepts, which were argued before us through the hearing of the Reference, that require to be answered in order to derive a comprehensive answer to the parent question.
Are some methods ultra vires and others intra vires the Constitution of India, especially
Article 14? Can disposal through the method of auction be elevated to a Constitutional principle? Is this Court entitled to direct the executive to adopt a certain method because it is the 'best ' method? If not, to what extent can the executive deviate from such 'best ' method? An answer to these issues, in turn, will give an answer to the first question which, as noted above, will answer the Presidential Reference.
Before proceeding to answer these questions, we would like to dispose of a couple of minor objections. The first pertained to the classification of resources made in the 2G Case.
Learned Counsel appearing for CPIL argued that all that the judgment in the 2G Case has done is to carve out a special category of cases where public auction is the only legally sustainable method of alienation viz. natural resources that are scarce, valuable and are allotted to private entities for commercial exploitation. The learned Attorney General, however, contested this claim and argued that no such proposition was laid down in the 2G judgment.
He pointed out that the words "commercial exploitation" were not even used anywhere in the judgment except in an extract from another judgment in a different context. We agree that the judgment itself does not carve out any special case for scarce natural resources only meant for commercial exploitation. However, we feel, despite that, in this Reference, CPIL is not barred from making a submission drawing a distinction between natural resources meant for commercial exploitation and those meant for other purposes. This Court has the jurisdiction to classify the subject matter of a reference, if a genuine case for it exists.
Mr. Shanti Bhushan, learned Senior Counsel, in support of his stand that the first question of the Reference must be answered in a way so as to allow auction as the only mode for the disposal of natural resources, submitted that a combined reading of Article 14, which dictates non- arbitrariness in State action and equal opportunity to those similarly placed;
Article 39(b) which is a Directive Principle of State Policy dealing with distribution of natural resources for the common good of the people; and the "trusteeship" principle found in the
Preamble which mandates that the State holds all natural resources in the capacity of a trustee, on behalf of the people, would make auction a constitutional mandate under Article 14 of the
Constitution. It is imperative, therefore, that we evaluate each of these principles before coming to any conclusion on the constitutional verdict on auction.
In the 2G Case, two concepts namely, "public trust doctrine" and "trusteeship" have been adverted to, which were also relied upon by learned Counsel for CPIL, in defence of the argument that the State holds natural resources in a fiduciary relationship with the people. As far as "trusteeship" is concerned, there is no cavil that the State holds all natural resources as a trustee of the public and must deal with them in a manner that is consistent with the nature of such a trust. However, what was asserted on behalf of CPIL was that all natural resources

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fall within the domain of the "public trust doctrine", and therefore, there is an obligation on the Government to ensure that their transfer or alienation for commercial exploitation is in a fair and transparent manner and only in pursuit of public good. The learned Attorney General on the other hand, zealously urged that the subject matter of the doctrine and the nature of restrictions, it imposes, are of limited scope; that the applicability of the doctrine is restricted to certain common properties pertaining to the environment, like rivers, seashores, forest and air, meant for free and unimpeded use of the general public and the restrictions it imposes is in the term of a complete embargo on any alienation of such resources, for private ownership.
According to him, the extension of the public trust doctrine to all natural resources has led to a considerable confusion and needs to be clarified.
The doctrine of public trust enunciated more thoroughly by the United States Supreme
Court in Illinois (supra) was introduced to Indian environmental jurisprudence by this Court in M.C. Mehta (supra). Speaking for the majority, Kuldip Singh, J. observed as follows:
The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes.
According to Professor Sax the Public Trust Doctrine imposes the following restrictions on governmental authority:
Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third the property must be maintained for particular types of uses.

The learned Judge further observed:
Our legal system - based on English common law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources.
These resources meant for public use cannot be converted into private ownership.

The judgment in Kamal Nath 's case (supra) was explained in Intellectuals Forum (supra).
Reiterating that the State is the trustee of all natural resources which are by nature meant for public use and enjoyment, the Court observed thus:
The Supreme Court of California, in National Audubon Society v. Superior Court of Alpine Country also known as Mono Lake case summed up the substance of the doctrine. The Court said:
Thus the public trust is more than an affirmation of State power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people 's common heritage of streams, lakes, marshlands and tidelands, surrendering the right only in those rare cases when the abandonment of the right is consistent with the purposes of the trust.
This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a negatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the State holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of the
Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinise such actions of the Government,

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the courts must make a distinction between the Government 's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources…

It was thus, held that when the affirmative duties are set out from a nugatory angle, the doctrine does not exactly prohibit the alienation of property held as a public trust, but mandates a high degree of judicial scrutiny.
In Fomento (supra), the Court was concerned with the access of the public to a beach in
Goa. Holding that it was a public beach which could not be privatized or blocked denying traditional access, this Court reiterated the public trust doctrine as follows:
The matter deserves to be considered from another angle. The public trust doctrine which has been invoked by Ms Indira Jaising in support of her argument that the beach in question is a public beach and the Appellants cannot privatise the same by blocking/ obstructing traditional access available through Survey No. 803 (new
No. 246/2) is implicitly engrafted by the State Government in Clause 4(ix) of the agreement. That doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. These resources are gift of nature, therefore, they should be freely available to everyone irrespective of one 's status in life.

In Reliance Natural Resources (supra), it has been observed that even though the doctrine of pubic trust has been applied in cases dealing with environmental jurisprudence, "it has broader application". Referring to Kamal Nath (supra), the Court held that it is the duty of the
Government to provide complete protection to the natural resources as a trustee of the people at large.
The public trust doctrine is a specific doctrine with a particular domain and has to be applied carefully. It has been seriously debated before us as to whether the doctrine can be applied beyond the realm of environmental protection. Richard J. Lazarus in his article,
"Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the
Public Trust Doctrine", while expressing scepticism over the 'liberation ' of the doctrine, makes the following observations:
The strength of the public trust doctrine necessarily lies in its origins; navigable waters and submerged lands are the focus of the doctrine, and the basic trust interests in navigation, commerce, and fishing are the object of its guarantee of public access. Commentators and judges alike have made efforts to "liberate",
"expand", and "modify" the doctrine 's scope yet its basic focus remains relatively unchanged. Courts still repeatedly return to the doctrine 's historical function to determine its present role. When the doctrine is expanded, more often than not the expansions require tortured constructions of the present rather than repudiations of the doctrine 's past.

However, we feel that for the purpose of the present opinion, it is not necessary to delve deep into the issue as in Intellectuals Forum (supra), the main departure from the principle explained by Joseph. L. Sax in his Article "The Public Trust Doctrine in Natural Resource
Law: Effective Judicial Intervention" is that public trust mandates a high degree of judicial scrutiny, an issue that we will anyway elaborately discuss while enunciating the mandate of
Article 14 of the Constitution.
We would also like to briskly deal with a similar argument made by Mr. Shanti Bhushan.
The learned senior Counsel submitted that the repository of sovereignty in our framework is the people of this country since the opening words of the Constitution read "We The People of India… do hereby adopt, enact and give to ourselves this Constitution," and therefore the government, as the agent of the Sovereign, the people, while alienating natural resources, must heed to judicial care and due process. Firstly, this Court has held in Raja Ram Pal v. Speaker,

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Lok Sabha, (2007) 3 SCC 184; Para 21 that the "Constitution is the supreme lex in this country" and "all organs of the State derive their authority, jurisdiction and powers from the
Constitution and owe allegiance to it". Further, the notion that the Parliament is an agent of the people was squarely rebutted in In Re: Delhi Laws Act, 1912 (supra), where it was observed that "the legislature as a body cannot be seen to be an agency of the electorate as a whole" and "acts on its own authority or power which it derives from the Constitution".
In Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills,
Delhi, (1968) 3 SCR 251 this Court held that "the doctrine that it (the Parliament) is a delegate of the people coloured certain American decision does not arise here" and that in fact the
"Parliament which by a concentration of all the powers of legislation derived from all the three
Legislative Lists becomes the most competent and potent legislature it is possible to erect under our Constitution." We however, appreciate the concern of Mr. Shanti Bhushan that the lack of any such power in the hands of the people must not be a sanction for recklessness during disposal of natural resources. The legislature and the Executive are answerable to the
Constitution and it is there where the judiciary, the guardian of the Constitution, must find the contours to the powers of disposal of natural resources, especially Article 14 and Article 39(b).

MANDATE OF ARTICLE 14
… The underlying object of Article 14 is to secure to all persons, citizens or non-citizens, the equality of status and opportunity referred to in the preamble to our Constitution. The language of Article 14 is couched in negative terms and is in form, an admonition addressed to the State. It does not directly purport to confer any right on any person as some of the other
Articles, e.g., Article 19, do. The right to equality before law is secured from all legislative and executive tyranny by way of discrimination since the language of Article 14 uses the word
"State" which as per Article 12, includes the executive organ. [See: Basheshar Nath v.
Commissioner of Income Tax, Delhi and Rajasthan, 1959 Supp (1) SCR 528]. Besides,
Article 14 is expressed in absolute terms and its effect is not curtailed by restrictions like those imposed on Article 19(1) by Articles 19(2)-(6). However, notwithstanding the absence of such restrictions, certain tests have been devised through judicial decisions to test if Article 14 has been violated or not.
For the first couple of decades after the establishment of this Court, the 'classification ' test was adopted which allowed for a classification between entities as long as it was based on an intelligible differentia and displayed a rational nexus with the ultimate objective of the policy. Budhan Choudhry v. State of Bihar, AIR 1955 SC 191 referred to in Ram Krishna
Dalmiya v. Justice S.R. Tendolkar, (1959) 1 SCR 279 explained it in the following terms:
It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that
Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.

However, after the judgment of this Court in E.P. Royappa v. State of Tamil Nadu, (1974)
4 SCC 3 the 'arbitrariness ' doctrine was introduced which dropped a pedantic approach

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towards equality and held the mere existence of arbitrariness as violative of Article 14, however equal in its treatment. Justice Bhagwati (as his Lordship was then) articulated the dynamic nature of equality and borrowing from Shakespeare 's Macbeth, said that the concept must not be "cribbed, cabined and confined" within doctrinaire limits: Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose. J., "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits.

His Lordship went on to explain the length and breadth of Article 14 in the following lucid words: From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16.
Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16.
Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.

Building upon his opinion delivered in Royappa 's case (supra), Bhagwati, J., held in Maneka Gandhi v. Union of India,(1978) 1 SCC 248:
The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non- arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive.
………

Further, even though the 'classification ' doctrine was never overruled, it has found less favour with this Court as compared to the 'arbitrariness ' doctrine. In Om Kumar v. Union of
India, (2001) 2 SCC 386, this Court held thus:
But, in E. P. Royappa v. State of T. N. Bhagwati, J laid down another test for purposes of Article 14. It was stated that if the administrative action was
"arbitrary", it could be struck down under Article 14. This principle is now uniformly followed in all courts more rigorously than the one based on classification. Arbitrary action by the administrator is described as one that is irrational and not based on sound reason. It is also described as one that is unreasonable. However, this Court has also alerted against the arbitrary use of the 'arbitrariness ' doctrine.
Typically, laws are struck down for violating Part III of the Constitution of India, legislative incompetence or excessive delegation. However, since Royappa 's case (supra), the doctrine has been loosely applied. This Court in State of A.P. v. McDowell and Co., (1996) 3 SCC 709

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stressed on the need for an objective and scientific analysis of arbitrariness, especially while striking down legislations. Justice Jeevan Reddy observed:
The power of Parliament or for that matter, the State Legislatures is restricted in two ways. A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part
III of the Constitution or of any other constitutional provision. There is no third ground. We do not wish to enter into a discussion of the concepts of procedural unreasonableness and substantive unreasonableness - concepts inspired by the decisions of United States Supreme Court. Even in U.S.A., these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground (substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterised, the ground of invalidation must fall within the four corners of the two grounds mentioned above.
In other words, say, if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by clauses (a) to (g) of
Article 19(1), it can be struck down only if it is found not saved by any of the clauses (s) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds, viz., (i) unreasonableness, which can more appropriately be called irrationality, (ii) illegality and (iii) procedural impropriety (see Council of Civil Service Unions v.
Minister for Civil Service which decision has been accepted by this Court as well).

Therefore, ever since the Royappa era, the conception of 'arbitrariness ' has not undergone any significant change. Some decisions have commented on the doctrinal looseness of the arbitrariness test and tried keeping its folds within permissible boundaries. For instance, cases where legislation or rules have been struck down as being arbitrary in the sense of being unreasonable [See: Air India v. Nergesh Meerza, (1981) 4 SCC 335 (SCC at pp. 372-373)] only on the basis of "arbitrariness", as explained above, have been doubted in McDowell 's case (supra). But otherwise, the subject matter, content and tests for checking violation of
Article 14 have remained, more or less, unaltered.
From a scrutiny of the trend of decisions it is clearly perceivable that the action of the
State, whether it relates to distribution of largesse, grant of contracts or allotment of land, is to be tested on the touchstone of Article 14 of the Constitution. A law may not be struck down for being arbitrary without the pointing out of a constitutional infirmity as McDowell 's case
(supra) has said. Therefore, a State action has to be tested for constitutional infirmities qua
Article 14 of the Constitution. The action has to be fair, reasonable, non-discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and equitable treatment. It should conform to the norms which are rational, informed with reasons and guided by public interest, etc. All these principles are inherent in the fundamental conception of Article 14. This is the mandate of
Article 14 of the Constitution of India.

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WHETHER ' AUCTION ' A CONSTITUTIONAL MANDATE:
Such being the constitutional intent and effect of Article 14, the question arises - can auction as a method of disposal of natural resources be declared a constitutional mandate under
Article 14 of the Constitution of India? We would unhesitatingly answer it in the negative since any other answer would be completely contrary to the scheme of Article 14. Firstly,
Article 14 may imply positive and negative rights for an individual, but with respect to the
State, it is only couched in negative terms; like an admonition against the State which prohibits the State from taking up actions that may be arbitrary, unreasonable, capricious or discriminatory. Article 14, therefore, is an injunction to the State against taking certain type of actions rather than commanding it to take particular steps. Reading the mandate of auction into its scheme would thus, be completely contrary to the intent of the Article apparent from its plain language.
Secondly, a constitutional mandate is an absolute principle that has to be applied in all situations; it cannot be applied in some and not tested in others. The absolute principle is then applied on a case by case basis to see which actions fulfill the requirements of the constitutional principle and which do not.
………

Equality, therefore, cannot be limited to mean only auction, without testing it in every scenario. In State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284 at pp. 297, this Court, quoting from Kotch v. Pilot Comm 'rs, 330 U.S. 552, had held that "the constitutional command for a State to afford equal protection of the laws sets a goal not attainable by the invention and application of a precise formula. This Court has never attempted that impossible task". One cannot test the validity of a law with reference to the essential elements of ideal democracy, actually incorporated in the Constitution. (See: Indira Nehru Gandhi v. Raj Narain, 1975
(Supp) SCC 1). The Courts are not at liberty to declare a statute void, because in their opinion it is opposed to the spirit of the Constitution. Courts cannot declare a limitation or constitutional requirement under the notion of having discovered some ideal norm. Further, a constitutional principle must not be limited to a precise formula but ought to be an abstract principle applied to precise situations. The repercussion of holding auction as a constitutional mandate would be the voiding of every action that deviates from it, including social endeavours, welfare schemes and promotional policies, even though CPIL itself has argued against the same, and asked for making auction mandatory only in the alienation of scarce natural resources meant for private and commercial business ventures. It would be odd to derive auction as a constitutional principle only for a limited set of situations from the wide and generic declaration of Article 14. The strength of constitutional adjudication lies in case to case adjudication and therefore auction cannot be elevated to a constitutional mandate.
Finally, reading auction as a constitutional mandate would be impermissible because such an approach may distort another constitutional principle embodied in Article 39(b). The said article enumerating certain principles of policy, to be followed by the State, reads as follows:
The State shall, in particular, direct its policy towards securing (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

The disposal of natural resources is a facet of the use and distribution of such resources.
Article 39(b) mandates that the ownership and control of natural resources should be so distributed so as to best subserve the common good. Article 37 provides that the provisions of
Part IV shall not be enforceable by any Court, but the principles laid down therein are

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nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
Therefore, this Article, in a sense, is a restriction on 'distribution ' built into the
Constitution. But the restriction is imposed on the object and not the means. The overarching and underlying principle governing 'distribution ' is furtherance of common good. But for the achievement of that objective, the Constitution uses the generic word 'distribution '.
Distribution has broad contours and cannot be limited to meaning only one method i.e. auction. It envisages all such methods available for distribution/allocation of natural resources which ultimately subserve the "common good".
In State of Tamil Nadu v. L. Abu Kavur Bai, (1984) 1 SCC 515, this Court explained the broad-based concept of 'distribution ' as follows:
The word 'distribution ' used in Article 39(b) must be broadly construed so that a court may give full and comprehensive effect to the statutory intent contained in
Article 39 (b). A narrow construction of the word 'distribution ' might defeat or frustrate the very object which the Article seeks to subserve.

After noting definitions of 'distribution ' from different dictionaries, this Court held:
It is obvious, therefore, that in view of the vast range of transactions contemplated by the word 'distribution ' as mentioned in the dictionaries referred to above, it will not be correct to construe the word 'distribution ' in a purely literal sense so as to mean only division of a particular kind or to particular persons. The words, apportionment, allotment, allocation, classification, clearly fall within the broad sweep of the word 'distribution '. So construed, the word 'distribution ' as used in
Article 39(b) will include various facets, aspects, methods and terminology of a broad-based concept of distribution.

It can thus, be seen from the afore-quoted paragraphs that the term "distribute" undoubtedly, has wide amplitude and encompasses all manners and methods of distribution, which would include classes, industries, regions, private and public sections, etc. Having regard to the basic nature of Article 39(b), a narrower concept of equality under Article 14 than that discussed above, may frustrate the broader concept of distribution, as conceived in
Article 39(b). There cannot, therefore, be a cavil that "common good ' and "larger public interests" have to be regarded as constitutional reality deserving actualization.
Learned Counsel for CPIL argued that revenue maximization during the sale or alienation of a natural resource for commercial exploitation is the only way of achieving public good since the revenue collected can be channelized to welfare policies and controlling the burgeoning deficit. According to the learned Counsel, since the best way to maximize revenue is through the route of auction, it becomes a constitutional principle even under Article 39(b).
However, we are not persuaded to hold so. Auctions may be the best way of maximizing revenue but revenue maximization may not always be the best way to subserve public good.
"Common good" is the sole guiding factor under Article 39(b) for distribution of natural resources. It is the touchstone of testing whether any policy subserves the "common good" and if it does, irrespective of the means adopted, it is clearly in accordance with the principle enshrined in Article 39(b).
………

The norm of "common good" has to be understood and appreciated in a holistic manner.
It is obvious that the manner in which the common good is best subserved is not a matter that can be measured by any constitutional yardstick - it would depend on the economic and political philosophy of the government. Revenue maximization is not the only way in which the common good can be subserved. Where revenue maximization is the object of a policy,

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being considered qua that resource at that point of time to be the best way to subserve the common good, auction would be one of the preferable methods, though not the only method.
Where revenue maximization is not the object of a policy of distribution, the question of auction would not arise. Revenue considerations may assume secondary consideration to developmental considerations.
Therefore, in conclusion, the submission that the mandate of Article 14 is that any disposal of a natural resource for commercial use must be for revenue maximization, and thus by auction, is based neither on law nor on logic. There is no constitutional imperative in the matter of economic policies - Article 14 does not pre-define any economic policy as a constitutional mandate. Even the mandate of 39(b) imposes no restrictions on the means adopted to subserve the public good and uses the broad term 'distribution ', suggesting that the methodology of distribution is not fixed. Economic logic establishes that alienation/allocation of natural resources to the highest bidder may not necessarily be the only way to subserve the common good, and at times, may run counter to public good. Hence, it needs little emphasis that disposal of all natural resources through auctions is clearly not a constitutional mandate.

LEGITIMATE DEVIATIONS FROM AUCTION
As a result, this Court has, on a number of occasions, delivered judgments directing means for disposal of natural resources other than auction for different resources in different circumstances. It would be profitable to refer to a few cases and appreciate the reasons this
Court has adopted for deviating from the method of auction.
In Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir, (1980) 4 SCC 1, while comparing the efficacy of auction in promoting a domestic industry, P.N. Bhagwati, J. observed: If the State were giving tapping contract simpliciter there can be no doubt that the
State would have to auction or invite tenders for securing the highest price, subject, of course, to any other relevant overriding considerations of public weal or interest, but in a case like this where the State is allocating resources such as water, power, raw materials etc. for the purpose of encouraging setting up of industries within the State, we do not think the State is bound to advertise and tell the people that it wants a particular industry to be set up within the State and invite those interested to come up with proposals for the purpose. The State may choose to do so, if it thinks fit and in a given situation, it may even turn out to be advantageous for the State to do so, but if any private party comes before the State and offers to set up an industry, the State would not be committing breach of any constitutional or legal obligation if it negotiates with such party and agrees to provide resources and other facilities for the purpose of setting up the industry.
The State is not obliged to tell such party: "Please wait I will first advertise, wee whether any other offers are forthcoming and then after considering all offers, decide whether I should let you set up the industry"...The State must be free in such a case to negotiate with a private entrepreneur with a view to inducing him to set up an industry within the State and if the State enters into a contract with such entrepreneur for providing resources and other facilities for setting up an industry, the contract cannot be assailed as invalid so long as the State has acted bona fide, reasonably and in public interest. If the terms and conditions of the contract or the surrounding circumstances show that the State has acted mala fide or out of improper or corrupt motive or in order to promote the private interests of someone at the cost of the State, the court will undoubtedly interfere and strike down State action as arbitrary, unreasonable or contrary to public interest. But so long as the State action is bona fide and reasonable, the court will not interfere merely on the ground that no advertisement was given or publicity made or tenders invited.

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In Sachidanand Pandey (supra) after noticing Kasturi Lal 's case (supra), it was concluded as under:
On a consideration of the relevant cases cited at the Bar the following propositions may be taken as well established: State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration.
One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism. In Haji T.M. Hassan Rawther v. Kerala Financial Corporation, (1988) 1 SCC 166, after an exhaustive review of the law including the decisions in Kasturi Lal (supra) and
Sachidanand Pandey (supra), it was held that public disposal of State owned properties is not the only rule. It was, inter-alia, observed that:
The public property owned by the State or by any instrumentality of the State should be generally sold by public auction or by inviting tenders. This Court has been insisting upon that rule, not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities. They should undoubtedly act fairly. Their actions should be legitimate. Their dealings should be aboveboard. Their transactions should be without aversion or affection.
Nothing should be suggestive of discrimination. Nothing should be done by them which gives an impression of bias, favouritism or nepotism. Ordinarily these factors would be absent if the matter is brought to public auction or sale by tenders. That is why the court repeatedly stated and reiterated that the State-owned properties are required to be disposed of publicly. But that is not the only rule. As
O. Chinnappa Reddy, J. observed "that though that is the ordinary rule, it is not an invariable rule". There may be situations necessitating departure from the rule, but then such instances must be justified by compulsions and not by compromise.
It must be justified by compelling reasons and not by just convenience.

Here, the Court added to the previous decisions and said that a blithe deviation from public disposal of resources would not be tolerable; such a deviation must be justified by compelling reasons and not by just convenience.
In M.P. Oil Extraction v. State of M.P., (1997) 7 SCC 592, this Court held as follows:
Although to ensure fair play and transparency in State action, distribution of largesse by inviting open tenders or by public auction is desirable, it cannot be held that in no case distribution of such largesse by negotiation is permissible. In the instant case, as a policy decision protective measure by entering into agreements with selected industrial units for assured supply of sal seeds at concessional rate has been taken by the Government. The rate of royalty has also been fixed on some accepted principle of pricing formula as will be indicated hereafter. Hence, distribution or allotment of sal seeds at the determined royalty to the Respondents and other units covered by the agreements cannot be assailed.
It is to be appreciated that in this case, distribution by public auction or by open tender may not achieve the purpose of the policy of protective measure by way of supply of sal seeds at concessional rate of royalty to the industrial units covered by the agreements on being selected on valid and objective considerations.
… [Citations of and quotations from other cases making similar points have been omitted] …

Hence, it is manifest that there is no constitutional mandate in favour of auction under
Article 14. The Government has repeatedly deviated from the course of auction and this Court

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has repeatedly upheld such actions. The judiciary tests such deviations on the limited scope of arbitrariness and fairness under Article 14 and its role is limited to that extent. Essentially whenever the object of policy is anything but revenue maximization, the Executive is seen to adopt methods other than auction.
A fortiori, besides legal logic, mandatory auction may be contrary to economic logic as well. Different resources may require different treatment. Very often, exploration and exploitation contracts are bundled together due to the requirement of heavy capital in the discovery of natural resources. A concern would risk undertaking such exploration and incur heavy costs only if it was assured utilization of the resource discovered; a prudent business venture, would not like to incur the high costs involved in exploration activities and then compete for that resource in an open auction. The logic is similar to that applied in patents.
Firms are given incentives to invest in research and development with the promise of exclusive access to the market for the sale of that invention. Such an approach is economically and legally sound and sometimes necessary to spur research and development. Similarly, bundling exploration and exploitation contracts may be necessary to spur growth in a specific industry.
Similar deviation from auction cannot be ruled out when the object of a State policy is to promote domestic development of an industry, like in Kasturi Lal 's case, discussed above.
However, these examples are purely illustrative in order to demonstrate that auction cannot be the sole criteria for alienation of all natural resources.

POTENTIAL OF ABUSE
It was also argued that even if the method of auction is not a mandate under Article 14, it must be the only permissible method, due to the susceptibility of other methods to abuse. This argument, in our view, is contrary to an established position of law on the subject cemented through a catena of decisions.
………

Therefore, a potential for abuse cannot be the basis for striking down a method as ultra vires the Constitution. It is the actual abuse itself that must be brought before the Court for being tested on the anvil of constitutional provisions. In fact, it may be said that even auction has a potential of abuse, like any other method of allocation, but that cannot be the basis of declaring it as an unconstitutional methodology either. These drawbacks include cartelization,
"winners curse" (the phenomenon by which a bidder bids a higher, unrealistic and unexecutable price just to surpass the competition; or where a bidder, in case of multiple auctions, bids for all the resources and ends up winning licenses for exploitation of more resources than he can pragmatically execute), etc. However, all the same, auction cannot be called ultra vires for the said reasons and continues to be an attractive and preferred means of disposal of natural resources especially when revenue maximization is a priority. Therefore, neither auction, nor any other method of disposal can be held ultra vires the Constitution, merely because of a potential abuse.

JUDICIAL REVIEW OF POLICY DECISIONS
The learned Attorney General also argued that dictating a method of distribution for natural resources violates the age old established principle of noninterference by the judiciary in policy matters. Even though the contours of the power of judicial review of policy decisions has become a trite subject, as the Courts have repeatedly delivered opinions on it, we wish to

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reiterate some of the principles in brief, especially with regard to economic policy choices and pricing. ... In R.K. Garg (supra), this Court even observed that greater judicial deference must be shown towards a law relating to economic activities due to the complexity of economic problems and their fulfillment through a methodology of trial and error. As noted above, it was also clarified that the fact that an economic legislation may be troubled by crudities, inequities, uncertainties or the possibility of abuse cannot be the basis for striking it down. …
In Delhi Science Forum v. Union of India, (1996) 2 SCC 405 a Bench of three learned
Judges of this Court, while rejecting a claim against the opening up of the telecom sector reiterated that the forum for debate and discourse over the merits and demerits of a policy is the Parliament. It restated that the services of this Court are not sought till the legality of the policy is disputed, and further, that no direction can be given or be expected from the courts, unless while implementing such policies, there is violation or infringement of any of the constitutional or statutory provisions. It held thus:
What has been said in respect of legislations is applicable even in respect of policies which have been adopted by Parliament. They cannot be tested in Court of Law. The courts cannot express their opinion as to whether at a particular juncture or under a particular situation prevailing in the country any such national policy should have been adopted or not. There may be views and views, opinions and opinions which may be shared and believed by citizens of the country including the representatives of the people in Parliament. But that has to be sorted out in Parliament which has to approve such policies...
In BALCO Employees Union v. Union of India, (2002) 2 SCC 333, this Court further pointed out that the Court ought to stay away from judicial review of efficacy of policy matters, not only because the same is beyond its jurisdiction, but also because it lacks the necessary expertise required for such a task. Affirming the previous views of this Court, the
Court observed that while dealing with economic legislations, the Courts, while not jettisoning its jurisdiction to curb arbitrary action or unconstitutional legislation, should interfere only in those cases where the view reflected in the legislation is not possible to be taken at all. The
Court went on to emphasize that unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, that the courts would decline to interfere. …
… Mr. Subramanian Swamy also brought to our notice a Report on Allocation of Natural
Resources, prepared by a Committee, chaired by Mr. Ashok Chawla (hereinafter referred to as the "Chawla Committee Report"), which has produced a copious conceptual framework for the Government of India on the allocation and pricing of scarce natural resources viz. coal, minerals, petroleum, natural gas, spectrum, forests, land and water. He averred to observations of the report in favour of auction as a means of disposal. However, since the opinion rendered in the Chawla Committee Report is pending acceptance by the Government, it would be inappropriate for us to place judicial reliance on it. Besides, the Report conducts an economic, and not legal, analysis of the means of disposal of natural resources. The purpose of this
Reference would be best served if this Court gave a constitutional answer rather than economic one. To summarize in the context of the present Reference, it needs to be emphasized that this
Court cannot conduct a comparative study of the various methods of distribution of natural resources and suggest the most efficacious mode, if there is one universal efficacious method in the first place. It respects the mandate and wisdom of the executive for such matters. The methodology pertaining to disposal of natural resources is clearly an economic policy. It entails intricate economic choices and the Court lacks the necessary expertise to make them.

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As has been repeatedly said, it cannot, and shall not, be the endeavour of this Court to evaluate the efficacy of auction vis-à-vis other methods of disposal of natural resources. The Court cannot mandate one method to be followed in all facts and circumstances. Therefore, auction, an economic choice of disposal of natural resources, is not a constitutional mandate. We may, however, hasten to add that the Court can test the legality and constitutionality of these methods. When questioned, the Courts are entitled to analyse the legal validity of different means of distribution and give a constitutional answer as to which methods are ultra vires and intra vires the provisions of the Constitution. Nevertheless, it cannot and will not compare which policy is fairer than the other, but, if a policy or law is patently unfair to the extent that it falls foul of the fairness requirement of Article 14 of the Constitution, the Court would not hesitate in striking it down.
Finally, market price, in economics, is an index of the value that a market prescribes to a good. However, this valuation is a function of several dynamic variables; it is a science and not a law. Auction is just one of the several price discovery mechanisms. Since multiple variables are involved in such valuations, auction or any other form of competitive bidding, cannot constitute even an economic mandate, much less a constitutional mandate.
In our opinion, auction despite being a more preferable method of alienation/allotment of natural resources, cannot be held to be a constitutional requirement or limitation for alienation of all natural resources and therefore, every method other than auction cannot be struck down as ultra-vires the constitutional mandate.
Regard being had to the aforesaid precepts, we have opined that auction as a mode cannot be conferred the status of a constitutional principle. Alienation of natural resources is a policy decision, and the means adopted for the same are thus, executive prerogatives. However, when such a policy decision is not backed by a social or welfare purpose, and precious and scarce natural resources are alienated for commercial pursuits of profit maximizing private entrepreneurs, adoption of means other than those that are competitive and maximize revenue may be arbitrary and face the wrath of Article 14 of the Constitution. Hence, rather than prescribing or proscribing a method, we believe, a judicial scrutiny of methods of disposal of natural resources should depend on the facts and circumstances of each case, in consonance with the principles which we have culled out above. Failing which, the Court, in exercise of power of judicial review, shall term the executive action as arbitrary, unfair, unreasonable and capricious due to its antimony with Article 14 of the Constitution.
In conclusion, our answer to the first set of five questions is that auctions are not the only permissible method for disposal of all natural resources across all sectors and in all circumstances. As regards the remaining questions, we feel that answer to these questions would have a direct bearing on the mode of alienation of Spectrum and therefore, in light of the statement by the learned Attorney General that the Government is not questioning the correctness of judgment in the 2G Case, we respectfully decline to answer these questions. The Presidential
Reference is answered accordingly.
This opinion shall be transmitted to the President in accordance with the procedure prescribed in Part V of the Supreme Court Rules, 1966.

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UNIT 4 – AFFIRMATIVE ACTION (ARTICLES 15 AND 16)
RESERVATION IN EDUCATIONAL INSTITUTIONS
STATE OF MADRAS V. CHAMPAKAM DORAIRAJAN
AIR 1951 SC 226
Decided On: April 9, 1951
BENCH – CHIEF JUSTICE H. L. KANIA, JUSTICES FAZL ALI, PATANJALI SASTRI, M. C.
MAHAJAN, MUKHERJEA, S. R. DAS & VIVIAN BOSE

JUSTICE DAS (for the Court)
This judgment covers both Case No. 270 of 1951 (State of Madras v. Srimathi
Champakam Dorairajan) and Case No. 271 of 1951 (State of Madras v. C. R. Srinivasan) which are appeals from the judgment passed by the High Court of Judicature at Madras on
July 27, 1950, on two separate applications under article 226 of the Constitution complaining of breach of the petitioners ' fundamental right to get admission into educational institutions maintained by the State.
The State of Madras maintains four Medical Colleges and only 330 seats are available for students in those four Colleges. Out of these 330 seats, 17 seats are reserved for students coming from outside the State and 12 seats are reserved for discretionary allotment by the
State and the balance of the seats available are apportioned between four distinct groups of districts in the State.
Likewise, the State of Madras maintains four Engineering Colleges and the total number of seats available for students in those Colleges are only 395. Out of these, 21 seats are reserved for students coming from outside the State, 12 seats are reserved for discretionary allotment by the State and the balance of the seats available are apportioned between the same four distinct groups of districts.
For many years before the commencement of the Constitution, the seats in both the
Medical Colleges and the Engineering Colleges so apportioned between the four distinct groups of districts used to be filled up according to certain proportions set forth in what used to be called the Communal G.O. Thus, for every 14 seats to be filled by the selection committee, candidates used to be selected strictly on the following basis:Non-Brahmin (Hindus)

... 6

Backward Hindus

... 2

Brahmins

... 2

Harijans

... 2

Anglo-Indians and Indian Christians

... 1

Muslims

... 1

Subject to the aforesaid regional and what have been claimed to be protective provisions selection from among the applicants from a particular community from one of the groups of districts used to be made on certain principles based on academic qualifications and marks obtained by the candidates. In the case of the Medical Colleges, not less than 20 per cent of the total number of seats available for students of the State were filled by women candidates separately for each region, it being open to the selection committee to admit a larger number of woman candidates in any region if qualified candidates were available in

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that region and if they were eligible for selection on merits vis-à-vis the men candidates in accordance with the general principles governing such admissions as laid down in those rules.
It appears that the proportion fixed in the old Communal G.O. has been adhered to even after the commencement of the Constitution on January 26, 1950. Indeed, G.O. No. 2208, dated
June 16, 1950, laying down rules for the selection of candidates for admission into the Medical
Colleges substantially reproduces the communal proportion fixed in the old Communal G.O.
On June 7, 1950, Srimathi Champakam Dorairajan made an application to the High
Court of Judicature at Madras under article 226 of the Constitution for protection of her fundamental rights under article 15(1) and article 29(2) of the Constitution and prayed for the issue of a writ of mandamus or other suitable prerogative writ restraining the State of Madras and all officers and subordinates thereof from enforcing, observing, maintaining or following or requiring the enforcement, observance, maintenance or following by the authorities concerned of the notification or order generally referred to as the Communal G.O. in and by which admissions into the Madras Medical Colleges were sought or purported to be regulated in such manner as to infringe and involve the violation of her fundamental rights. From the affidavit filed in support of her petition, it does not appear that the petitioner had actually applied for admission in the Medical College. She states that on inquiry she came to know that she would not be admitted to the College as she belonged to the Brahmin community. No objection, however, was taken to the maintainability of her petition on the ground of absence of any actual application for admission made by her. On the contrary, we have been told that the State had agreed to reserve a seat for her, should her application before the High Court succeed. In the peculiar circumstances, we do not consider it necessary to pursue this matter any further. But we desire to guard ourselves against being understood as holding that we approve of a person who has not actually applied for admission into an educational institution coming to Court complaining of infringement of any fundamental right under article 29(2).
The High Court by its judgment delivered on July 27, 1950, allowed this application of
Srimathi Champakam Dorairajan. The State of Madras has now come up before us on appeal which has been numbered Case No. 270 of 1951.
Sri Srinivasan who had actually applied for admission into the Government
Engineering College at Guindy, filed a petition praying for a writ of mandamus or any other writ restraining the State of Madras and all officers thereof from enforcing, observing, maintaining or following the Communal G.O. in and by which admission into the Engineering
College was sought to be regulated in such manner as to infringe and involve the violation of the fundamental right of the petitioner under article 15(1) and article 29(2) of the Constitution.
In the affidavit filed in support of his petition, the petitioner has stated that he had passed the
Intermediate Examination held in March, 1950, in Group 1, passing the said examination in the first class and obtaining marks set out in paragraph 1 of his affidavit. It will appear that in the optionals which are taken into consideration in determining the academic test for admission in the Engineering College the petitioner Srinivasan secured 369 marks out of a maximum of 450 marks. The High Court has by the same judgment allowed this application also and the State has filed an appeal which has been numbered 271 of 1951. The learned counsel appearing for the State of Madras conceded that these two applicants would have been admitted to the educational institutions they intended to join and they would not have been denied admission if selections had been made on merits alone.
Article 29 which occurs in Part III of the Constitution under the head "Cultural and
Educational Rights" runs as follows:

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(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

It will be noticed that while clause (1) protects the language, script or culture of a section of the citizens, clause (2) guarantees the fundamental right of an individual citizen.
The right to get admission into any educational institution of the kind mentioned in clause (2) is a right which an individual citizen has as a citizen and not as a member of any community or class of citizens. This right is not to be denied to the citizen on grounds only of religion, race, caste, language or any of them. If a citizen who seeks admission into any such educational institution has not the requisite academic qualifications and is denied admission on that ground, he certainly cannot be heard to complain of an infraction of his fundamental right under this article. But, on the other hand, if he has the academic qualifications but is refused admission only on grounds of religion, race, caste, language or any of them, then there is a clear breach of his fundamental right.
The learned Advocate-General appearing for the State contends that the provisions of this article have to be read along with other articles in the Constitution. He urges that article
46 charges the State with promoting with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the
Scheduled Tribes, and with protecting them from social injustice and all forms of exploitation.
It is pointed out that although this article finds a place in Part IV of the Constitution which lays down certain directive principles of State policy and though the provisions contained in that Part are not enforceable by any Court, the principles therein laid down are nevertheless fundamental for the governance of the country and article 37 makes it obligatory on the part of the State to apply those principles in making laws. The argument is that having regard to the provisions of article 46, the State is entitled to maintain the Communal G.O. fixing proportionate seats for different communities and if because of that Order, which is thus contended to be valid in law and not in violation of the Constitution, the petitioners are unable to get admissions into the educational institutions, there is no infringement of their fundamental rights. Indeed, the learned Advocate-General of Madras even contends that the provisions of article 46 override the provisions of article 29(2). We reject the above noted contentions completely.
The directive principles of the State policy, which by article 37 are expressly made unenforceable by a Court, cannot override the provisions found in Part III which, notwithstanding other provisions, are expressly made enforceable by appropriate Writs,
Orders or directions under article 32. The chapter of Fundamental Rights is sacrosanct and not liable to be abridged by any Legislative or Executive Act or order, except to the extent provided in the appropriate article in Part III. The directive principles of State policy have to conform to and run as subsidiary to the Chapter of Fundamental Rights. In our opinion, that is the correct way in which the provisions found in Part III and IV have to be understood.
However, so long as there is no infringement of any Fundamental Right, to the extent conferred by the provisions in Part III, there can be no objection to the State acting in accordance with the directive principles set out in Part IV, but subject again to the Legislative and Executive powers and limitations conferred on the State under different provisions of the
Constitution.

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In the next place, it will be noticed that article 16 which guarantees the fundamental right of equality of opportunity in matters of public employment and provides that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State also includes a specific clause in the following terms:(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments of posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

If the arguments founded on article 46 were sound then clause (4) of article 16 would have been wholly unnecessary and redundant. Seeing, however, that clause (4) was inserted in article 16, the omission of such an express provision from article 29 cannot but be regarded as significant. It may well be that the intention of the Constitution was not to introduce at all communal considerations in matters of admission into any educational institution maintained by the State or receiving aid out of State funds. The protection of backward classes of citizens may require appointment of members of backward classes in State services and the reason why power has been given to the State to provide for reservation of such appointments for backward classes may under those circumstances be understood. That consideration, however, was not obviously considered necessary in the case of admission into an educational institution and that may well be the reason for the omission from article 29 of a clause similar to clause
(4) of article 16.
Take the case of the petitioner Srinivasan. It is not disputed that he secured a much larger number of marks than the marks secured by many of the Non-Brahmin candidates and yet the Non-Brahmin candidates who secured less number of marks will be admitted into six out of every 14 seats but the petitioner Srinivasan will not be admitted into any of them. What is the reason for this denial of admission except that he is a Brahmin and not a Non-Brahmin.
He may have secured higher marks than the Anglo-Indian and Indian Christians or Muslim candidates but, nevertheless, he cannot get any of the seats reserved for the last mentioned communities for no fault of his except that he is a Brahmin and not a member of the aforesaid communities. Such denial of admission cannot but be regarded as made on ground only of his caste. It is argued that the petitioners are not denied admission only because they are
Brahmins but for a variety of reasons, e.g., (a) they are Brahmins, (b) Brahmins have an allotment of only two seat out of 14 and (c) the two seats have already been filled up by more meritorious Brahmin candidates. This may be true so far as these two seats reserved for the
Brahmins are concerned but this line of argument can have no force when we come to consider the seats reserved for candidates of other communities, for, so far as those seats are concerned, the petitioners are denied admission into any of them not on any ground other than the sole ground of their being Brahmins and not being members of the community for whom those reservations have been made. The classification in the Communal G.O. proceeds on the basis of religion, race and caste. In our view, the classification made in the Communal G.O. is opposed to the Constitution and constitutes a clear violation of the fundamental rights guaranteed to the citizen under article 29(2). In this view of the matter, we do not find it necessary to consider the effect of articles 14 or 15 on the specific articles discussed above.
For the reasons stated above, we are of opinion that the Communal G.O. being inconsistent with the provisions of article 29(2) in Part III of the Constitution is void under article 13. The result, therefore, is that these appeals stand dismissed with costs. Appeals dismissed. Page 138 of 610

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RESERVATION IN GOVERNMENT EMPLOYMENT
STATE OF KERALA V. N. M. THOMAS
AIR 1976 SC 490, (1976) 2 SCC 310
Decided On: September 19, 1975
BENCH – CHIEF JUSTICE A. N. RAY, JUSTICES H. R. KHANNA, K. K. MATHEW, M. H. BEG,
V.R. KRISHNA IYER, A. C. GUPTA & S. M. FAZAL ALI

CHIEF JUSTICE RAY (for himself) [Justices Mathew, Beg, Krishna Iyer & Fazal Ali, CONCURRING but wrote their separate opinions]
This appeal is by certificate from the judgment dated 19 April, 1974 of the High Court of
Kerala. This appeal concerns the validity of Rule 13AA of the Kerala State and Subordinate
Services Rules, 1958 hereinafter called the Rules and two orders which are marked P-2 and P-6.
In order to appreciate Rule 13AA, it is necessary to refer to Rules 12, 13A, 13AA. These rules were framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution.
These rules came into existence on 17 December, 1958.
"Promotion" is defined in Rule 2(11) to mean the appointment of a member of any category or grade of a service or a class of service to a higher category or grade of such service or class.
Rule 12 states that where general educational qualifications, special qualifications or special tests are prescribed by the Special Rules of a service for any category, grade or post therein, or in a class thereof, which are not prescribed for a category or grade in such service or class carrying a lower rate of pay and no member in the category or grade carrying the lower rate of pay is eligible for promotion to such category, grade or post a member in such lower category or grade may be promoted to the category or grade carrying the higher rate of pay temporarily until a member of the former category or grade qualified under this rule is available for promotion. A member temporarily promoted under this rule shall not by reason only of such promotion, be regarded as a probationer in the category or grade to which he has been promoted, or be entitled to any preferential claim to future promotion.
Rule 13 speaks of special qualifications. Rule 13 does not concern this appeal.
The two rules which are of importance in this appeal are Rules 13A and 13AA. They are as follows:13A. Special and Departmental Tests- Temporary exemption for promotion.Notwithstanding anything contained in Rule 13, where a pass in a special or departmental test is newly prescribed by the Special Rules of a service for any category, grade or post therein or in any class thereof, a member of a service who has not passed the said test but is otherwise qualified and suitable for appointment to such class, category, grade or post may within 2 years of the introduction of the test be appointed thereto temporarily. If a member so appointed does not pass the test within two years from the date of introduction of the said test or when the said test also involves practical training within two years after the first chance to undergo such training he shall be reverted to the class, category or grade or post from which he was appointed and shall not again be eligible for appointment under this rule:
Provided that a person so reverted shall not by reason only of the appointment under this rule be entitled to any preferential claim to future appointment to the class, category, grade or post, as the case may be to which he had been appointed under this rule:

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Provided further that the period of temporary exemption shall be extended by two years in the case of a person belonging to any of the scheduled castes or scheduled tribes. Provided also that this rule shall not be applicable to tests prescribed or purposes of promotion of the executive staff below the rank of Sub-Inspectors belonging to the Police Department.
13AA. Notwithstanding anything contained in these rules, the Government may, by order, exempt for a specified period, any member or members, belonging to a
Scheduled Caste or a Scheduled Tribe, and already in service, from passing the tests referred to in Rule 13 or Rule 13A of the said Rules.
Provided that this rule shall not be applicable to tests prescribed for purposes of promotion of the executive staff below the rank of Sub-Inspectors belonging to the Police Department.

It is necessary to state here that the third proviso to Rule 13A and the proviso to Rule 13AA were introduced with effect from 12 October, 1973. Rule 13AA was introduced with effect from
13 January, 1972. Exhibit P-2 an order dated 13 January, 1972. The order is made by the Governor.
The order refers to a memorandum dated 19 June, 1971 from the President, Kerala Harijan
Samskarika Kshema Samithy, State Committee, Trivandrum and a letter dated 13 November, 1971 from the Secretary, Kerala Public Service Commission, The order is as follows :The President, Kerala Harijan Samskarika Kshema Samithy, Trivandrum has brought to the notice of Government that a large number of Harijan employees are facing immediate reversion from their posts for want of test qualifications and has therefore requested that all Scheduled Castes and Scheduled Tribes employees may be granted temporary exemption from passing the obligatory departmental tests for a period of two years with immediate effect.
(2) Government have examined the matter in consultation with the Kerala Public
Service Commission and are pleased to grant temporary exemption to members already in service belonging to any of the Scheduled Castes and Scheduled Tribes from passing all tests (unified and special or departmental tests) for a period of two years.
(3) The benefit of the above exemption will be available to those employees belonging to Scheduled Castes and Scheduled Tribes who are already enjoying the benefits of temporary exemption from passing newly prescribed tests under
General Rule 13A. In their case, the temporary exemption will expire only on the date of expiry of the temporary exemption mentioned in para (2) above or on the date of expiry of the existing temporary exemption, whichever is later.
(4) This order will take effect from the date of the order.

Exhibit P-6 is an order dated 11 January 1974. It is an order made by the Governor. The order is as follows:Government are pleased to order that the period of temporary exemption granted to Scheduled Castes and Scheduled Tribes in the G.O. read above from passing all tests (unified and special or departmental tests) be extended from 13-1-1974 to cover a period during which two tests are held by the Public Service
Commission and results thereof published so that each individual gets two chances to appear. Government also order that these categoriess of employees will not be given any further extension of time to acquire the test qualifications.

Purusuant to Rule 13AA which came into force on 13 January, 1972, the order Exhibit P-2 was passed on 13 January, 1972 granting temporary exemption to members already in service belonging to any of the Scheduled Castes and Scheduled Tribes from passing all tests (unified and special or departmental tests) for a period of two years. The exemption granted by Exhibit P-2 in almost all cases would have expired on 12 January, 1974.

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The other impugned order i.e., Exhibit P-6 which was passed on 11 January, 1974 gave further exemption to members of Scheduled Castes and Tribes from 13 January, 1974 from passing tests to cover a period during which two tests would be held by the Public Service Commission and results thereof published so that each individual would get two chances to appear within that period. The Government also ordered that these categories of employees would not be given any further extension of time to acquire the test qualifications.
On the basis of these exemption orders, several promotions have been effected. The respondent alleged in the writ, petition that 12 Lower Division Clerks who were members of Scheduled Castes and Scheduled Tribes were promoted without test qualification The further allegation is that by an order dated 15 June, 1972, 19 Lower Division Clerks belonging to Scheduled Castes and Tribes were promoted as Upper Division Clerks of which 5 were unqualified Scheduled Castes and
Scheduled Tribes members and 14 were qualified Scheduled Castes and Scheduled Tribes members. By order dated 19 September, 1972, another 8 promotions of members of Scheduled
Castes and Tribes were ordered of which only two were qualified and the remaining six were unqualified. By another order dated 31 October, 1972, 7 Scheduled Castes and Scheduled Tribes members were promoted without qualifying test and one was promoted with the qualifying test.
The grievance of the respondent-petitioner before the High Court was that out of 51 vacancies which arose in the category of Upper Division Clerks in the year 1972, 34 were filled up by
Scheduled Castes members who did not possess qualifications and only 17 were given to qualified persons. The respondent is a Lower Division Clerk working in the Registration Department. For promotion to Upper Division Clerk in that Department on the basis of seniority, the Lower
Division Clerks have to pass (1) Account Test (Lower), (2) Kerala Registration Test and (3) Test in the manual of office procedure. The respondent 's grievance is that in view of certain concessions given to members of Scheduled Castes and Scheduled Tribes, they were able to obtain promotions earlier than the respondent, though the members of the Scheduled Castes and Scheduled Tribes who were promoted had not passed the tests.
The respondent in the writ petition filed in the High Court asked for a declaration that Rule
13AA is unconstitutional and a mandamus for compelling the State to forbear from giving effect to order dated 13 January, 1972 marked Exhibit P-2. The respondent by an affidavit asked for a similar order that Exhibit P-6 dated 11 January 1974 be set aside.
The respondent 's contentions in the High Court were that Rule 13AA of the Service Rules and
Exhibits P-2, P-6 and Exhibit P-7 which was another order dated 31 October, 1972 and all orders of promotion made thereunder were violative of Articles 16(1) and 16(2). The High Court upheld the contentions of respondent No. 1.
The contention of the State is that the impugned rules and orders are not only legal and valid but also support a rational classification under Article 16(1).
The contentions on behalf of respondent No. 1 are these. First, Article 16 is a specific application of Article 14 in matters relating to employment or appointment to any service in the
State. Clauses (1) and (2) of Article 16 give effect to equality before law guaranteed by Article 14 and to prohibition against discrimination guaranteed by Article 15(1). In other words, Article 16(1) is absolute in terms guaranteeing equality of opportunity to every individual citizen seeking employment or appointment Emphasis is placed on similar opportunity and equal treatment for seeking employment or appointment. Second, matters relating to employment in Article 16(1) include all matters in relation to employment both prior and subsequent to the employment and form part of the terms and conditions of service. Equal opportunity is to be given for appointment, promotion, termination of employment and payment of pension and gratuity. Third, the

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abridgement of equality guaranteed by Article 16(1) is only to the extent curtailed by Article 16(4).
Apart from Article 16(4), the right guaranteed under Article 16(1) cannot be curtailed Article 16(4) is, in substance, an exception to rights guaranteed by Article 16(1) and (2). Fourth, Article 16(4) does not cover the entire field occupied by Article 16(1) and (2). Some of the matters relating to employment in respect of which equality of opportunity has been guaranteed by Article 16(1) and
(2) do not fall within the mischief of non obstante clause in Article 16(4). To illustrate, Clauses
(1) and (2) of Article 16 do not prohibit the prescription of reasonable rules for selection to any employment or appointment in office. Any provision as to the qualification for employment or appointment in office reasonably fixed and applicable to all citizens would be consistent with the doctrine of equality of opportunity in Article 16(1). Reasonable qualification of employment for the purpose of efficiency of service is justified. Fifth, Rule 13AA is violative of Article 16(1) and
(2). The impeached Exhibits fall within the same mischief. There is no scope for dealing with
Scheduled Castes and Scheduled Tribes different from other backward classes. Exemption from qualification necessary for promotion is not conducive to the maintenance of efficiency of administration and violates not only Article 335 of the Constitution but also Article 16(1).
Before the introduction of the Kerala State and Subordinate Services Rules, 1958 on 17
December, 1958 and also the formation of Kerala State on 1 Nov., 1956, the Travancore-Cochin
Government had issued orders on 14 June, 1956 directing that the standard of qualification should be lower for members of Scheduled Castes arid Scheduled Tribes than compared to others in the matter of examinations relating to various tests. By Government order dated 27 June, 1958, it was directed that the period of exemption for passing tests be extended by two years in the case of
Scheduled Castes and Scheduled Tribes. Again by Government order dated 2 January, 1961, the period of exemption to Scheduled Castes and Scheduled Tribes was further extended to 3 years.
By another Government order dated 14 January, 1963, a unified account test (lower) and a test in office procedure were introduced replacing the old tests and as this was treated as a new test, all persons who were formerly in Travancore-Cochin or Madras Service were given two years time to pass the test and members of the Scheduled Castes and Scheduled Tribes were given extra time in accordance with the orders earlier mentioned. A circular was issued on 9 February, 1968 granting 7 years ' time from 14 January, 1963 to members of the Scheduled Castes and Scheduled
Tribes to pass the unified tests. This period was to expire on 14 January, 1970. On 1 '3 January,
1970, an order was passed extending the time for another year upto 14 January, 1971. On 14
January, 1971 another Government order was issued extending the period by another year.
It was brought to the notice of the Government that large number of Government servants belonging to Scheduled Castes arid Scheduled Tribes were unable to get their promotion because of want of test qualifications. In order to give relief to the Scheduled Castes and Scheduled Tribes, the Government incorporated Rule 13AA which enabled the Government to grant exemption to members of Scheduled Castes and Scheduled Tribes for a specified period. On 13 January, 1972 exemption from passing the tests was granted to members of Scheduled Castes and Scheduled
Tribes for two years. On 11 January, 1974 order was made under Rule 13AA giving members of
Scheduled Castes and Scheduled Tribes exemption from passing the tests for the period of two tests to be conducted after the order dated 11 January, 1974.
The criterion for promotion of Lower Division Clerks to Upper Division Clerks is senioritycum-merit qualification. For want of test qualification a large number of Lower Division Clerks belonging to Scheduled Castes and Scheduled Tribes were passed over. It is because of the aforesaid Government order dated 1 '3 January, 1972 marked Exhibit P-2 that promotions were made according to seniority-cum-merit qualification. The larger share went to the members of the
Scheduled Castes and Scheduled Tribes because they were senior hands. After the issue of the order dated 13 January, .1972, 34 out of 51 Lower Division Clerks who were promoted belonged to the Scheduled Castes and Scheduled Tribes. These 34 persons were given temporary exemption

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from passing the departmental tests. It also appears that these 34 members of Scheduled Castes and Scheduled Tribes have become senior-most in the lower cadre.
Articles 14, 15 and 16 form part of a string of Constitutional guaranteed rights. These rights supplement each other. Article 16 which ensures to all citizens equality of opportunity in matters relating to employment is an incident of guarantee of equality contained in Article 14. Article 16(1) gives effect to Article 14. Both Articles 14 and 16(1) permit reasonable classification having a nexus to the objects to be achieved. Under Article 16 there can be a reasonable classification of the employees in matters relating to employment or appointment.
... The crux of the matter is whether Rule 13AA and the two orders Exhibits P-2 and P-6 are unconstitutional violating Article 16(1). Article 16(1) speaks of equality of opportunity in matters relating to employment or appointment under the State. The impeached Rule and orders relate to promotion from Lower Division Clerks to Upper Division Clerks. Promotion depends upon passing the test within two years in all cases and exemption is granted to members of Scheduled
Castes and Scheduled Tribes for a longer period namely, four years. If there is a rational classification consistent with the purpose for which such classification is made equality is not violated. The categories of classification for purposes of promotion can never be closed on the contention that they are all members of the same cadre in service. If classification is made on educational qualifications for purposes of promotion or if classification is made on the ground that the persons are not similarly circumstanced in regard to their entry into employment, such classification can be justified. Classification between direct recruits and promotees for purposes of promotion has been held to be reasonable in C. A. Rajendran v. Union of India, (1968) II LLJ
407 (SC).
The respondent contended that apart from Article 16(4) members of Scheduled Castes and
Scheduled Tribes were not entitled to any favoured treatment in regard to promotion. In T.
Devadasan v. Union of India, (1965) II LLJ 560 (SC) reservation was made for backward classes.
The number of reserved seats which were not filled up was carried forward to the subsequent year.
On the basis of “carry forward” principle it was found that such reserved seats might destroy equality. To illustrate, if 18 seats were reserved and for two successive years the reserved seats were not filled and in the third year there were 100 vacancies the result would be that 54 reserved seats would be occupied out of 100 vacancies. This would destroy equality. On that ground "carry forward" principle was not sustained in Devadasan. The same view was taken in the case of M. R.
Balaji v. State of Mysore, AIR 1963 SC 649. It was said that not more than 50 per cent should be reserved for backward classes. This ensures equality. Reservation is not a Constitutional compulsion but is discretionary according to the ruling of this Court in Raiendran 's case, (1968)
II LLJ 407 (SC).
There is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection (State of Mysore v. V. P. Narasinga Rao, (1968) II LLJ 120 (SC)).
This equality of opportunity need not be confused with absolute equality. Article 16(1) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. In regard to employment, like other terms and conditions associated with and incidental to it, the promotion to a selection post is also included in the matters relating to employment and even in regard to such a promotion to a selection post all that Article 16(1) guarantees is equality of opportunity to all citizens. Article 16(1) and (2) gives effect to equality before law guaranteed by Article 14 and to the prohibition of discrimination guaranteed by Article
15(1). Promotion to selection post is covered by Article 16(1) and (2).

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The power to make reservation, which is conferred on the State, under Article 16(4) can be exercised by the State in a proper case not only by providing for reservation of appointments but also by providing for reservation of selection posts. In providing for reservation of appointments or posts under Article 16(4) the State has to take into consideration the claims of the backward classes consistently with the maintenance of the efficiency of administration. It must not be forgotten that the efficiency of administration is of such paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration.
(General Manager, S. Rly. v. Rangachari, (1970) II LLJ 289 (SC)). The present case is not one of reservation of posts by promotion
Under Article 16(1) equality of opportunity of employment means equality as between members of the same class of employees and not equality between members of separate, independent class. The Road-side Station Masters and Guards are recruited separately, trained separately and have separate avenues of promotion. The Station Masters claimed equality of opportunity for promotion vis-à-vis the guards on the ground that they were entitled to equality of opportunity. It was said the concept of equality can have no existence except with reference to matters which are common as between individuals, between whom equality is predicated. The
Roadside Station Masters and Guards were recruited separately. Therefore, the two form distinct and separate classes and there is no scope for predicating equality or inequality of opportunity in matters of promotion. (See All India Station Masters and Asst. Station Masters ' Association v.
General Manager, Central Rlys, [1960] 2 SCR 311). The present case is not to create separate avenues of promotion for these persons.
The rule of parity is the equal treatment of equals in equal circumstances. The rule of differentiation is enacting laws differentiating between different persons or things in different circumstances. The circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different sets of circumstances. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons require special treatment. The legislature understands and appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds. The rule of classification is not a natural and logical corollary of the rule of equality, but the rule of differentiation is inherent in the concept of equality. Equality means parity of treatment under parity of conditions. Equality does not connote absolute equality. A classification in order to be
Constitutional must rest upon distinctions that are substantial and not merely illusory. The test is whether it has a reasonable basis free from artificiality and arbitrariness embracing all and omitting none naturally falling into that category.
…The rule of equality within Articles 14 and 16(1) will not be violated by a rule which will ensure equality of representation in the services for unrepresented classes after satisfying the basic needs of efficiency of administration. Article 16(2) rules out some basis of classification including race, caste, descent, place of birth etc. Article 16(4) clarifies and explains that classification on the basis of backwardness does not fall within Article 16(2) and is legitimate for the purposes of
Article 16(1). If preference shall be given to a particular under-represented community other than a backward class or under-represented state in an All India Service such a rule will contravene
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The principle of equality is applicable to employment at all stages and in all respects, namely, initial recruitment promotion, retirement, payment of pension and gratuity. With regard to promotion the normal principles are either merit-cum-seniority or seniority-cum-merit, Senioritycum-merit means that given the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority. This will not violate
Articles 14, 16(1) and 16(2). A rule which provides that given the necessary requisite merit, a member of the backward class shall get priority to ensure adequate representation will not similarly violate Article 14 or Article 16(1) and (2). The relevant touchstone of validity is to find out whether the rule of preference secures adequate representation for the unrepresented backward community or goes beyond it.
The classification of employees belonging to Scheduled Castes and Scheduled Tribes for allowing them an extended period of two years for passing the special tests for promotion is a just and reasonable classification having rational nexus to the object of providing equal opportunity for all citizens in matters relating to employment or appointment to public office. Granting of temporary exemptions from special tests to the personnel belonging to Scheduled Castes and
Scheduled Tribes by executive orders has been an integral feature of the service conditions in
Kerala from its very inception on 1 November, 1956. That was the pattern in Travancore-Cochin
State. The special treatment accorded to the Scheduled Castes and Scheduled Tribes in
Government service which had become part and parcel of the conditions of service over these long periods amply justify the classification of the members of the Scheduled Castes and Scheduled
Tribes as a whole by the impugned rule and orders challenged. What was achieved by the
Government orders is now given a statutory basis by Rule 13AA. The historical background of these rules justifies the classification of the personnel of the Scheduled Castes and Scheduled
Tribes in service for the purpose of granting them exemption from special tests with a view to ensuring them the equality of treatment and equal opportunity in matters of employment having regard to their backwardness and under representation in the employment of the State.
…The High Court was wrong in basing its conclusion that the result of application of the impeached Rule and the orders is excessive and exorbitant namely that out of 51 posts, 34 were given to the members of the Scheduled Castes and Scheduled Tribes. The promotions made in the services as a whole are nowhere near 50 per cent of the total number of posts. The Scheduled
Castes and Scheduled Tribes constitute 10 per cent of the State 's population. Their share in the gazetted services of the State is said to be 2 per cent namely 184 out of 8,780. Their share in the non-gazetted appointments is only 7 per cent namely 11,437 out of 1,62,784. It is, therefore, correct that Rule 13AA and the orders are meant to implement not only the direction under Article 335 but also the Directive Principle under Article 46.
Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste.
In Bhaiyalal v. Harikishan Singh, [1965] 2 SCR 877 this Court held that an enquiry whether the appellant there belonged to the Dohar caste which was not recognised as a Scheduled Caste and his declaration that he belonged to the Chamar caste which was a Scheduled Caste could not be permitted because of the provisions contained in Article 341. No Court can come to a finding that any caste or any tribe is a Scheduled Caste or Scheduled Tribe. Scheduled Caste is a caste as notified under Article 366(25). A notification is issued by the President under Article 341 as a result of an elaborate enquiry. The object of Article 341 is to provide protection to the members of Scheduled Castes having regard to the economic and educational backwardness from which they suffer.
Our Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. The claims of members of backward classes require adequate representation in legislative and executive bodies. If members of
Scheduled Castes and Tribes, who are said by this Court to be backward classes, can maintain

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minimum necessary requirement of administrative efficiency, not only representation but also preference may be given to them to enforce equality and to eliminate inequality. Articles 15(4) and 16(4) bring out the position of backward classes to merit equality. Special provisions are made for the advancement of backward classes and reservations of appointments and posts for them to secure adequate representation. These provisions will bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). The basic concept of equality is equality of opportunity for appointment. Preferential treatment for members of backward classes with due regard to administrative efficiency alone can mean equality of opportunity for all citizens. Equality under
Article 16 could not have a different content from equality under Article 14. Equality of opportunity for unequals can only mean aggravation of inequality. Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reasons means rational classification for differential treatment having nexus to the constitutionally permissible object. Preferential representation for the backward classes in services with due regard to administrative efficiency is permissible object and backward classes are a rational classification recognised by our Constitution. Therefore, differential treatment in standards of selection are within the concept of equality.
A rule in favour of an under-represented backward community specifying the basic needs of efficiency of administration will not contravene Articles 14, 16(1) and 16(2). The rule in the present case does not impair the test of efficiency in administration inasmuch as members of
Scheduled Castes and Tribes who are promoted have to acquire the qualification of passing the test. The only relaxation which is done in their case is that they are granted two years more time than others to acquire the qualification. Scheduled Castes and Tribes are descriptive of backwardness. It is the aim of our Constitution to bring them up from handicapped position to improvement. If classification is permissible under Article 14 it is equally permissible under
Article 16, because both the Articles lay down equality. The quality and concept of equality is that if persons are dissimilarly placed they cannot be made equal by having the same treatment.
Promotion of members of Scheduled Castes and Tribes under the impeached rules and orders is based on the classification with the object of securing representation to members of Scheduled
Castes and Tribes. Efficiency has been kept to view and not sacrificed.
All legitimate methods are available for equality of opportunity in services under Article 16(1).
Article 16(1) is affirmative whereas Article 14 is negative in language. Article 16(4) indicates one of the methods of achieving equality embodied in Article 16(1). Article 16(1) using the expression
"equality" makes it relatable to all matters of employment from appointment through promotion and termination to payment of pension and gratuity. Article 16(1) permits classification on the basis of object and purpose of law or State action except classification involving discrimination prohibited by Article 16(2). Equal protection of laws necessarily involves classification. The validity of the classification must be adjudged with reference to the purpose of law. The classification in the present case is justified because the purpose of classification is to enable members of Scheduled Castes and Tribes to find representation by promotion to a limited extent.
From the point of view of time a differential treatment is given to members of Scheduled Castes and Tribes for the purpose of giving them equality consistent with efficiency.
For the foregoing reasons, I uphold the validity of Rule 13AA and Exhibits P-2 and P-6. The appeal is accepted. The judgment of the High Court is set aside. Parties will pay and bear their own costs.

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JUSTICE KHANNA (for himself, DISSENTING) [Justice Gupta CONCURRING but wrote his separate opinion] Whether the State Government can grant exemption for specified period to employees belonging only to the scheduled castes or scheduled tribes from passing departmental test for the purpose of promotion under Clause (1) of Article 16 of the Constitution is the important question which arises for determination in this appeal filed on certificate by the State of Kerala and the Inspector General of Registration against the judgment of the Kerala High Court. The
High Court answered the question in the negative in a petition filed by N. M. Thomas, lower division clerk of the Registration Department of the Kerala State, respondent No. 1, under
Article 226 of the Constitution.
… Article 14 of the Constitution enshrines the principle of equality before the law. Article
15 prohibits discrimination against citizens on grounds only of religion, race, caste, sex, place of birth or any of them. Article 16 represents one facet of the guarantee of equality. According to this Article, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. No citizen, it is further provided, shall on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. Articles 14, 15 and 16 underline the importance which the framers of our Constitution attached to ensuring equality of treatment. Such equality has a special significance in the matter of public employment. It was with a view to prevent any discrimination in that field that an express provision was made to guarantee equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
At the same time the framers of the Constitution were conscious of the backwardness of large sections of the population. It was also plain that because of their backwardness those sections of the population would not be in a position to compete with advanced sections of the community who had all the advantages of affluence and better education. The fact that the doors of competition were open to them would have been a poor consolation to the members of the backward classes because the chances of their success in the competition were far too remote on account of the inherent handicap and disadvantage from which they suffered. The result would have been that, leaving aside some exceptional cases, the members of backward classes would have hardly got any representation in jobs requiring educational background. It would have thus resulted in virtually repressing those who were already repressed. The framers of the Constitution being conscious of the above disadvantage from which backward classes were suffering enjoined upon the State in Article 46 of the Constitution to promote with special care educational and economic interests of the weaker sections of the people, in particular of the scheduled castes and scheduled tribes, and also protect them from social injustice and all forms of exploitation.
To give effect to that objective in the field of public employment, a provision was made in
Clause (4) of Article 16 that nothing in that article would prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, was not adequately represented in the services under the State. Under the above clause, it is permissible for the State, in case it finds the representation of any backward class of citizens in the State services to be not adequate, to make provision for the reservation of appointments or posts in favour of that backward class of citizens. The reservation of seats for the members of the backward classes was not, however, to be at the cost of efficiency. This fact was brought out in Article 335, according to which the claims of the members of the scheduled castes and the scheduled tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.

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In view of that it is not permissible to waive the requirement of minimum educational qualification and other standards essential for the maintenance of efficiency of service.

It is further plain that the reservation of posts for a section of population has the effect of conferring a special benefit on that section of the population because it would enable members belonging to that section to get employment or office under the State which otherwise in the absence of reservation they could not have got. Such preferential treatment is plainly a negation of the equality of opportunity for all citizens in matters relating to employment or appointment to an office under the State. Clause (4) of Article 16 has therefore, been construed as a proviso or exception to Clause (1) of that article …
… The essential object of various rules dealing with appointment to posts under the State and promotion to higher posts is to ensure efficiency of service. Classification upheld under
Clause (1) of Article 16 subserved and in no case militated against the attainment of that object.
Exemption granted to a class of employees, even though for a limited period, from passing the departmental tests which have been prescribed for the purpose of promotion would obviously be subversive of the object to ensure efficiency of service. It cannot be disputed that departmental tests are prescribed with a view to appraise and ensure efficiency of different employees. To promote employees even though they have not passed such efficiency test can hardly be consistent with the desideratum of ensuring efficiency in administration exclusion of diploma holders was held to be not violative of Articles 14 and 16 of the Constitution. It would thus appear that in each of the above cases the Court was concerned with two categories of employees, each one of which category constituted a separate and distinct class. Differential treatment for those classes was upheld in the context of their educational and other qualifications and because of the fact that they constituted distinct and separate classes. Not much argument is needed to show that a rule requiring that an official must possess a degree in engineering before he can be promoted to the post of executive engineer is conceived in the interest of efficiency of service. A classification based upon that consideration is obviously valid. Likewise, classification based upon the consideration that one category of employees are direct recruits while others are promotees, is permissible classification because the two categories of employees constitute two separate and distinct classes. The same is true of roadside station masters and guards. Classification of employees in each of these cases was linked with the nature of their initial employment or educational qualifications and had nothing to do with the fact that they belonged to any particular section of the population. A classification based upon the first two factors was upheld because it was conceived in the interest of efficiency of service and because they constituted two different classes in view of the fact that they were initially appointed to posts of different categories. Such classification does not impinge upon the rule of equality of opportunity. As against that, a classification based upon the consideration that an employee belongs to a particular section of the population with a view to accord preferential treatment for promotion is clear violation of equality of opportunity enshrined in Clause (1) of Article 16. In no case has the Court ever accepted and upheld under
Article 16(1) classification and differential treatment for the purpose of promotion among employees who possessing the same educational qualifications were initially appointed as in the present case to the same category of
Much has been made of the fact that exemption from passing departmental tests granted to members of scheduled castes and scheduled tribes is not absolute but only for a limited period.
This fact, in our opinion, would not lend Constitutionality to the impugned rule and orders.
Exemption granted to a section of employees while being withheld from the remaining

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employees has obvious element of discrimination between those to whom it is granted and those from whom it is withheld. If the passing of departmental tests is an essential condition of promotion, it would plainly be invidious to insist upon compliance with that condition in the case of one set of employees and not to do so in the case of other. The basic question is whether exemption is constitutionally permissible. If the answer to that question be in the negative, the fact that exemption is for a limited period would not make any material difference. In either event the vice of discrimination from which exemption suffers would contaminate it and stamp it with unconstitutionally. Exemption for a limited period to be constitutionally valid cannot be granted to one set of employees and withhold from the other.
What Clause (1) of Article 16 ensures is equality of opportunity for all citizens as individuals in matters relating to employment or appointment to any office under the State. It applies to them all, the least deserving as well as the most virtuous. Preferential and favoured treatment for some citizens in the matter of employment or appointment to any office under the
State would be antithesis of the principle of equality of opportunity. Equality of opportunity in matters of employment guaranteed by Clause (1) of Article 16 is intended to be real and effective. It is not something abstract or illusory. It is a command to be obeyed, not one to be defied or circumvented. It cannot be reduced to shambles under some cloak. Immunity or exemption granted to a class, however limited, must necessarily have the effect of according favoured treatment to that class and of creating discrimination against others to whom such immunity or exemption is not granted. Equality of opportunity is one of the corner stones of our Constitution. It finds a prominent mention in the preamble to the Constitution and is one of the pillars which gives support and strength to the social, political and administrative edifice of the nation. Privileges, advantages, favours, exemptions, concessions specially ear-marked for sections of population run counter to the concept of equality of opportunity, they indeed eat into the very vitals of that concept. To countenance classification for the purpose of according preferential treatment to persons not sought to be recruited from different sources and in cases not covered by Clause (4) of Article 16 would have the effect of eroding, if not destroying altogether, the valued principle of equality of opportunity enshrined in Clause (1) of Article 16.
The proposition that to overdo classification is to undermine equality is specially true in the context of Article 16(1). To introduce fresh notions of classification in Article 16(1), as is sought to be done in the present case, would necessarily have the effect of vesting the State under the garb of classification with power of treating sections of population as favoured classes for public employment. The limitation imposed by Clause (2) of Article 16 may also not prove very effective because, as has been pointed out during the course of arguments, that clause prevents discrimination on grounds only of religion, race, castes, sex, descent, place of birth, residence or any of them. It may not be difficult to circumvent that clause by mentioning grounds other than those mentioned in Clause (2).
To expand the frontiers of classification beyond those which have so far been recognised under Clause (1) of Article 16 is bound to result in creation of classes for favoured and preferential treatment for public employment and thus erode the concept of equality of opportunity for all citizens in matters relating to employment under the State.
… The liberal approach that may sometimes have been adopted in upholding classification under Article 14 would in the very nature of filings be not apt in the context of Article 16 when we keep in view the object underlying Article 16. Article 14 covers a very wide and general field of equality before the law and the equal protection of the laws. It is, therefore, permissible to cover within its ambit manifold classifications as long as they are reasonable and have a rational connection with the object thereof. As against that, Article 16 operates in the limited area of equality of opportunity for all citizens in matters relating to employment or appointment to an office under the State. Carving out classes of citizens for favoured treatment in matters

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of public employment, except in cases for which there is an express provision contained in
Clause (4) of Article 16, would as already pointed out above in the very nature of things run counter to the concept underlying Clause (1) of Article 16.

The matter can also be looked at from another angle. If it was permissible to accord favoured treatment to members of backward classes under Clause (1) of Article 16, there would have been no necessity of inserting Clause (4) in Article 16. Clause (4) in Article 16 in such an event would have to be treated as wholly superfluous and redundant. The normal rule of interpretation is that no provision of the Constitution is to be treated as redundant and superfluous. The Court would, therefore, be reluctant to accept a view which would have the effect of rendering Clause (4) of Article 16 redundant and superfluous.
This Court in the case of State of Madras v. Champakam Dorairaian, [1951] 2 SCR 525 unequivocally repelled the argument the effect of which would have been to treat Clause (4) of
Article 16 to be wholly unnecessary and redundant. Question which arose for consideration in that case was whether a Communal G. G. fixing percentage of seats for different sections of population for admission in the engineering and medical colleges of the State of Madras contravened the fundamental rights. It was held that the Communal G. O. by which percentage of seats was apportioned contravened Article 29(2) of the Constitution. A seven Judge Bench of this Court in that case referred to Clause (4) of Article 16 of the Constitution and observed:
If the argument founded on Article 46 were sound then Clause (4) of Article 16 would have been wholly unnecessary and redundant. Seeing, however, that Clause
(4) was inserted in Article 16, the omission of such an express provision from
Article 29 cannot but be regarded as significant. It may well be that the intention of the Constitution was not to introduce at all communal considerations in matters of admission into any educational institution maintained by the State or receiving aid out of State funds. The protection of backward classes of citizens may require appointment of members of backward classes in State services and the reason why power has been given to the State to provide for reservation of such appointments for backward classes may under those circumstances be understood. That consideration, however, was not obviously considered necessary in the case of admission into an educational institution and that may well be the reason for the omission from Article 29 of a clause similar to Clause (4) of Article 16.

After the above decision of this Court, Clause (4) of Article 15 was added in the Constitution by the Constitution (First Amendment) Act, 1951 and the same reads as under:
Nothing in this article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes.

If the power of reservation of seats for backward classes was already contained in Clause
(1) of Article 15, the decision in the above-mentioned case would in the very nature of things have been different and there would have been no necessity for the introduction of Clause (4) in Article 15 by means of the Constitution (First Amendment) Act. …
… The matter can also be looked at from another angle. Departmental tests are prescribed to ensure standards of efficiency for the employees. To promote 34 out of 51 persons although they have not passed the departmental tests and at the same time not to promote those who have passed the departmental tests can hardly be conducive to efficiency-There does not, therefore, appear to be any infirmity in the finding of the High Court that the impugned promotions are also violative of Article 335 of the Constitution.

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I may state that there is no dispute so far as the question is concerned about the need to make every effort to ameliorate the lot of backward classes, including the members of the scheduled castes and the scheduled tribes. We are all agreed on that. The backwardness of those sections of population is a stigma on our social set up and has got to be erased as visualized in
Article 46 of the Constitution. It may also call for concrete acts to atone for the past neglect and exploitation of those classes with a view to bring them on a footing of equality, real and effective, with the advanced sections of the population. The question with which we are concerned, however, is whether the method which has been adopted by the appellants is constitutionally permissible under Clause (1) of Article 16. The answer to the above question, in my opinion, has to be in the negative. Apart from the fact that the acceptance of the appellants ' contention would result in undermining the principle of equality of opportunity enshrined in Clause (1) of Article 16, it would also in effect entail overruling of the view which has so far been held by this Court in the cases of Champakam [1951] 2 SCR 525; Rangachari
(1970) II LLJ 289 (SC) and Devadasan (1965) II LLJ 560 SC.
I find no sufficient ground to warrant such a course. The State, in my opinion, has ample power to make provision for safeguarding the interest of backward classes under Clause (4) of
Article 16 which deals with reservation of appointments or posts for backward classes not adequately represented in the services under the State. Inaction on the part of the State under
Clause (4) of Article 16 cannot, in my opinion, justify strained construction of Clause (1) of
Article 16. We have also to guard against allowing our supposed zeal to safeguard the interests of members of scheduled castes and scheduled tribes to so sway our mind and warp our judgment that we drain off the substance of the contents of Clause (1) of Article 16 and whittle down the principle of equality of opportunity in the matter of public employment enshrined in that clause in such a way as to make it a mere pious wish and teasing illusion. The ideals of supremacy of merit, the efficiency of services and the absence of discrimination in sphere of public employment would be the obvious casualties if we once countenance inroads to be made into that valued principle beyond those warranted by Clause (4) of Article 16.
The appeal is dismissed with costs.

INDRA SAWHNEY V. UNION OF INDIA
AIR 1993 SC 477, 1992 Supp. (3) SCC 217
Decided On: November 16, 1992
BENCH – CHIEF JUSTICE M. H. KANIA, JUSTICES M. N. VENKATACHALIAH, S. RATNAVEL
PANDIAN, DR. T. K. THOMMEN, A. M. AHMADI, KULDIP SINGH, P. B. SAWANT, R. M. SAHAI
& B.P. JEEVAN REDDY

JUSTICE JEEVAN REDDY (for the Chief Justice, Justices Venkatachaliah, Ahmadi and himself)
[Justices Pandian & Sawant CONCURRING but wrote their separate opinions]
… Equality has been and is the single greatest craving of all human beings at all points of time. It has inspired many a great thinker and philosopher. All religious and political schools of thought swear by it, including the Hindu religious thought, if one looks to it ignoring the later crudities and distortions. Liberty of thought, expression, belief, faith and worship has equally been an abiding faith with all human beings, and at all times in this country in particular.
Fraternity assuring the dignity of the individual has a special relevance in the Indian context, as this Judgment will illustrate in due course.
The doctrine of equality has many facets. It is a dynamic, and an evolving concept. Its main facets, relevant to Indian Society, have been referred to in the preamble and the articles under

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the sub-heading "Right to equality"- (Articles 14 to 18). In short, the goal is "equality of status and of opportunity". Articles 14 to 18 must be understood not merely with reference to what they say but also in the light of the several articles in Part IV (Directive Principles of State
Policy). "Justice, Social, Economic and Political", is the sum total of the aspirations incorporated in part IV.
Article 14 enjoins upon the state not to deny to any person "equality before the law" or "the equal protection of the laws" within the territory of India. Most constitutions speak of either
"equality before the law" or "the equal protection of the laws", but very few of both. Section 1 of the XIV. Amendment to the U.S. Constitution uses only the latter expression while the
Austrian Constitution (1920), the Irish Constitution (1937) and the West German Constitution
(1949) use the expression "equal before the law". (Article 7 of the Universal Declaration of
Human Rights, 1948, of course, declares that "all are equal before the law and are entitled without any discrimination to equal protection of the law".) The content and sweep of these two concepts is not the same though there may be much in common. The content of the expression "equality before the law" is illustrated not only by Articles 15 to 18 but also by the several articles in Part IV, in particular, Articles 38, 39, 39A, 41 and 46. Among others, the concept of equality before the law contemplates minimising the inequalities in income and eliminating the inequalities in status, facilities and opportunities not only amongst individuals but also amongst groups of people, securing adequate means of livelihood to its citizens and to promote with special care the educational and economic interests of the weaker sections of the people, including in particular the Scheduled Castes and Scheduled Tribes and to protect them from social injustice and all forms of exploitation. Indeed, in a society where equality of status and opportunity do not obtain and where there are glaring inequalities in incomes, there is no room for equality - either equality before law or equality in any other respect.
The significance attached by the founding fathers to the right to equality is evident not only from the fact that they employed both the expressions ‘equality before the law’ and ‘equal protection of the laws’ in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18. Through Article 15 they declared in positive terms that the state shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them. With a view to eradicate certain prevalent undesirable practices it was declared in Clause (2) of Article 15 that no citizen shall on the grounds only of religion, race, caste, sex, place of birth or any of them be subject to any disability, liability, restriction or condition with regard to shops, public restaurants, hotels and place of public entertainment or to the use of well, tanks, bathing ghats, roads and place of public resort maintained wholly or partly out of state funds or dedicated to the use of general public. At the same time, with a view to ameliorate the conditions of women and children a provision was made in Clause (3) that nothing in the said Article shall prevent the state from making any special provision for women and children.
In as much as public employment always gave a certain status and power - it has always been the repository of State power - besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1) expressly declares that in the matter of public employment or appointment to any office under the state, citizens of this country shall have equal opportunity while Clause (2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. At the same time, care was taken to declare in Clause (4) that nothing in the said Article shall prevent the state from making any provision for reservation of appointments or posts in favour of any backward class of citizen which in the opinion of the state is not adequately represented in the services under the state. Article 17 abolishes the untouchability while Article 18 prohibits conferring of any titles (not representing

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military or academic distinction). It also prohibits the citizens of this country from accepting any title from a foreign state.
Article 16 has remained unamended, except for a minor amendment in Clause (3) whereas
Article 15 had Clause (4) inserted in it by the First Amendment Act, 1951. … The other provisions of the Constitution having a bearing on Article 16 are Articles 38, 46 and the set of articles in Part XVI. Clause (1) of Article 38 obligates the State to “strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.”
Clause (2) of Article 38, added by the 44th Amendment Act says, “the State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.”
Article 46 contains a very significant directive to the State. … It is evident that "the weaker sections of the people" do include the "backward class of citizens" contemplated by Article
16(4).
Part XVI of the Constitution contains "special provisions relating to certain classes". The
"classes" for which special provisions are made are, Scheduled Castes, Scheduled Tribes and the Anglo-Indian Community. It also provides for appointment of a Commission to investigate the conditions of and the difficulties faced by the socially and educationally backward classes and to make appropriate recommendations. … Article 338, which has been extensively amended by the Sixty-fifth Amendment Act, provides for establishment of a Commission for the Scheduled Castes and Scheduled Tribes to be known as 'the National Commission for the
Scheduled Castes and Scheduled Tribes '. … Article 335 provides that "the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State." It is obvious that if the claims of even Scheduled Castes and Scheduled Tribes are to be taken into consideration consistently with the maintenance of efficiency of administration, the said admonition has to be respected equally while taking into consideration the claims of other backward classes and other weaker sections.

THE FIRST BACKWARD CLASSES COMMISSION (KALELKAR COMMISSION)
The proceedings of the Constituent Assembly on draft Article (10) disclose a persistent and strident demand from certain sections of the society for providing reservations in their favour in the matter of public employment. While speaking on the draft Article 10(3) [corresponding to Article 16(4)] Dr. Ambedkar had stated, "then we have quite a massive opinion which insists that although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration." It was this demand which was mainly responsible for the incorporation of Clause (4) in Article 16.
As matter of fact, in some of the southern States, reservations in favour of OBCs were in vogue since quite a number of years prior to the Constitution. There was a demand for similar reservations at the center. In response to this demand and also in realisation of its obligation to provide for such reservations in favour of backward sections of the society, the Central
Government appointed a Backward Class Commission under Article 340 of the Constitution on January 29, 1953. The Commission, popularly known as Kaka Kalelkar Commission, was required "to investigate the conditions of socially and educationally backward classes within

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the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove difficulties and to improve their conditions". The Commission submitted its report on March 30, 1955. According to it, the relevant factors to consider while classifying backward classes would be their traditional occupation and profession, the percentage of literacy or the general educational advancement made by them; the estimated population of the community and the distribution of the various communities throughout the state or their concentration in certain areas.
The Commission was also of the opinion that the social position which a community occupies in the caste hierarchy would also have to be considered as well as its representation in Government service or in the Industrial sphere. According to the Commission, the causes of educational backwardness amongst the educationally and backward communities were (i) traditional apathy for education on account of social and environmental conditions or occupational handicaps: (ii) poverty and lack of educational institutions in rural areas and (iii) living in inaccessible areas. The Chairman of the commission, Kaka Kalelkar, however, had second thoughts after signing the report. In the enclosing letter addressed to the President he virtually pleaded for the rejection of the report on the ground that the reservations and other remedies recommended on the basis of caste would not be in the interest of society and country.
He opined that the principle of caste should be eschewed altogether. Then alone, he said, would it be possible to help the extremely poor and deserving members of all the communities. At the same time, he added, preference ought to be given to those who come from traditionally neglected social classes.
The report made by the Commission was considered by the Central Government, which apparently was not satisfied with the approach adopted by the Commission in determining the criteria for identifying the backward classes under Article 15(4). The Memorandum of action appended to the Report of the Commission while placing it on the table of the Parliament [as required by Clause (3) of Article 340] on September 3, 1956, pointed out that the caste system is the greatest hindrance in the way of our progress to egalitarian society and that in such a situation recognition of certain specified castes as backward may serve to maintain and perpetuate the existing distinctions on the basis of caste. The Memorandum also found fault with certain tests adopted by the Commission for identifying the backward classes. It expressed the opinion that a more systematic and elaborate basis has to be evolved for identifying backward classes. Be that as it may, the Report was never discussed by the Parliament.
No meaningful action was taken after 1956 either for constituting another Commission or for evolving a better criteria. Ultimately, on August 14, 1961, the Central Government wrote to ail the State Governments stating inter alia that "while the State Governments have the discretion to choose their own criteria for defining backwardness, in the view of the
Government of India it would be better to apply economic tests than to go by caste." The letter stated further, rather inexplicably, that "even if the Central Government were to specify under
Article 338(3) certain groups of people as belonging to 'other backward classes ', it will still be open to every State Government to draw up its own lists for the purposes of Articles 15 and 16.
As, therefore, the State Governments may adhere to their own lists, any All-India list drawn up by the Central Government would have no practical utility." Various State Governments thereupon appointed Commissions for identifying backward classes and issued orders identifying the socially and educationally backward classes and reserving certain percentage of posts in their favour. So far as the Central services are concerned, no reservations were ever made in favour of other backward classes though made in favour of Scheduled Castes and
Scheduled Tribes.

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THE SECOND BACKWARD CLASSES COMMISSION (MANDAL COMMISSION)
By an Order made by the President of India, in the year 1979, under Article 340 of the
Constitution, a Backward Class Commission was appointed to investigate the conditions of socially and educationally backward classes within the territory of India, which Commission is popularly known as Mandal Commission. The terms of reference of the Commission were:
(i) to determine the criteria for defining the socially and educationally backward classes; (ii) to recommend steps to be taken for the advancement of the socially and educationally backward classes of citizens so identified;
(iii) to examine the desirability or otherwise of making provision for the reservation of appointments or posts in favour of such backward classes of citizens which are not adequately represented in public services and posts in connection with the affairs of the Union or of any State; and
(iv) present to the President a report setting out the facts as found by them and making such recommendations as they think proper.

The Commission was empowered to:(a) obtain such information as they may consider necessary or relevant for their purpose in such form and such manner as they may think appropriate, from the
Central Government, the State Government, the Union Territory Administrations and such other authorities, organisations or individuals as may in the opinion of the Commission, be of assistance to them: and
(b) hold their sittings or the sittings of such sub-committees as they may appoint from amongst their own members of such times and such places as may be determined by, or under the authority of the Chairman.

The report of the Commission was required to be submitted not later than 31st December,
1979, which date was later extended up to December 31st, 1980. It was so submitted.
Chapter-I of the Report deals with the Constitution of First Backward Classes Commission
(Kalelkar Commission), its report, the letter of Kaka Kalelkar to the President, the lack of follow-up action and the letter of the Central Government referred to hereinbefore to State
Governments to draw up their own lists. It also points out certain “internal contradictions” in the Report. Chapter-II deals with the “Status of other backward classes in some States”. It sets out the several provisions relating to reservation in favour of OBCs obtaining in several States and the history of such reservations. Chapter-III is entitled ‘methodology and data base’. It sets out the procedure followed by the Commission and the material gathered by them. Paras 3.1 and 3.2 read thus:
3.1. One important reason as to why the Central Government could not accept the recommendations of Kaka Kalelkar Commission was that it had not worked out objective tests and criteria for the proper classification of socially and educationally backward classes. In several petitions filed against reservation orders issued by some State Governments, the Supreme Court and various High
Courts have also emphasised the imperative need for an empirical approach to the defining of socially and educationally backwardness or identification of Other
Backward Classes.
3.2 The Commission has constantly kept the above requirements in view in planning the scope of its activities. It was to serve this very purpose that the
Commission made special efforts to associate the leading Sociologists, Research
Organisations and Specialised Agencies of the country with every important facet of its activity. Instead of relying on one or two established techniques of enquiry, we tried to caste our net far and wide so as to collect facts and get feed-back from as large an area as possible. A brief account of this activity is given below.

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It then refers to the Seminar held by Department of Anthropology of Delhi University in
March 1979, to the questionnaire issued to all departments of Central Government and to the
State Governments (the proforma are compiled in Vol. II of the Report) the country-wide touring undertaken by the Commission, the evidence recorded by it, the socio-educational field survey conducted by it and other studies and Reports involved in its work. In Chapter-IV the
Commission deals with the interrelationship between social backwardness and caste. It describes how the fourth caste, Shudras, were kept in a state of intellectual and physical subjugation and the historical injustices perpetrated on them. In para 4.5 the Commission states:
"The real triumph of the caste system lies not in upholding the supremacy of the
Brahmin, but in conditioning the consciousness of the lower castes in accepting their inferior status in the ritual hierarchy as a part of the natural order of things…
It was through an elaborate, complex and subtle scheme of scripture, mythology and ritual that Brahminism succeeded in investing the caste system with a moral authority that has been seldom effectively challenged even by the most ardent social reformers."

Chapter-V deals with ‘social dynamics of caste’. In this chapter, the Commission emphasises the fact that notwithstanding public declarations condemning the caste, it has remained a significant basis of action in politics and public life. Reference is made to several caste associations, which have come into being after the Constitution. The concluding part in this Chapter, para 5.17, reads:
The above account should serve as a warning against any hasty conclusion about the weakening of caste as the basis of social organisation of the Hindu society.
The pace of social mobility is no doubt increasing and some traditional features of the caste system have inevitably weakened. But what caste has lost on the ritual front, it has more than gained on the political front. This has also led to some adjustments in the power equation between the high and low castes and thereby accentuated social tensions. Whether these tensions rent the social fabric or the country is able to resolve them by internal adjustments will depend on how understandingly the ruling high castes handle the legitimate aspirations and demands of the historically suppressed and backward classes.

Chapter-VI deals with ‘Social Justice, Merit and Privilege’. It attempts to establish, that merit in an elitist society is not something inherent but is the consequence of environmental privileges enjoyed by the members of higher castes. This is sought to be illustrated by giving an example of two boys - Lallu and Mohan. Lallu is a village boy belonging to a backward class occupying a low social position in the village caste hierarchy. He comes from a poor illiterate family and studies at a village school, where the level of instruction is woeful. On the other hand, Mohan comes from a fairly well-off middle class and educated family, attends one of the good public schools in the city, has assistance at home besides the means of acquiring knowledge through television, radio, magazines and so on. Even though both Lallu and Mohan possess the same level of intelligence, Lallu can never compete with Mohan in any open competition because of the several environmental disadvantages suffered by him.
Chapter-VII deals with ‘Social justice, Constitution and the law’. It refers to the relevant provisions of the Constitution, to the decision in M. R. Balaji v. State of Mysore [1963] Suppl.
1 S.C.R. 439 and various subsequent decisions of this Court and discusses the principles flowing from the said decisions. It notes that the subsequent decisions of this Court in C. A.
Rajendran v. Union of India (1968) II LLJ 407 (SC); State of Andhra Pradesh v. P. Sugar
[1968] 3 SCR 595 and State of Andhra Pradesh v. U. S. V. Balram [1972] 3 SCR 247 etc. show a marked shift from the original position taken in Balaji on several important points. In particular, it refers to the observations in Rajendran to the effect that “caste is also a class of citizens and if the class as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it was socially and educationally backward

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class of citizens within the meaning of Article 15(4)”. It refers to the statement in A.
Peeriakaruppan v. State of Tamil Nadu [1971] 2 SCR 430, to the effect that “a caste has always been recognised as a class.” It also commends the dissenting view of Subba Rao, J. in T.
Devadasan v. Union of India (1965) II LLJ 560 (SC)…
Chapter-VIII deals with ‘North-South Comparison of other Backward Classes Welfare’. It is a case study of provisions in force in two Southern States namely Tamil Nadu and Karnataka and the two Northern States, Bihar and Uttar Pradesh. The conclusions drawn from the discussion are stated in para 8.45 in the following words:
In view of the foregoing account, the reasons for much stronger reaction in the
North than South to reservations, etc. for other Backward Classes may be summarised as below:(1) Tamil Nadu and Karnataka had a long history of Backward Classes movements and various measures for their welfare were taken in a phased manner.
In Uttar Pradesh and Bihar such measures did not mark the culmination of a mass movement. (2) In the South the forward communities have been divided either by the classification schemes or politically or both. In Bihar and U.P. the GOs have not divided the forward castes.
(3) In the South, clashes between Scheduled Castes and Backward peasant castes have been rather mild. In the North these cleavages have been much sharper, often resulting in acts of violence. This has further weakened the backward classes solidarity in the North.
(4) In the non-Sanskritic South, the basic Varna cleavage was between Brahmins and non-Brahmins and Brahmins constituted only about 3 per cent of the population. In the Sanskritic North, there was no sharp cleavage between the forward castes and together they constituted nearly 20 per cent of the population.
In view of this the higher castes in U.P. and Bihar were in a stronger position to mobilise opposition to backward class movement.
(5) Owing to the longer history and better organisation of Other Backward castes in the South, they were able to acquire considerable political clout. Despite the lead given by the Yadavas and other peasant castes, a unified and strong OBC movement has not emerged in the North so far.
(6) The traditions of semi-feudalism in Uttar Pradesh and Bihar have enabled the forward castes to keep tight control over smaller backward castes and prevent them from joining the mainstream of backward classes movement. This is not so in the south.
(7) The economies of Tamil Nadu and Karnataka have been expanding relatively faster. The private tertiary sector appears to be growing. It can shelter many forward caste youths. Also, they are prepared to migrate outside the State. The private tertiary sectors in Bihar and U.P. are stagnant. The forward caste youths in these two States have to depend heavily on Government jobs. Driven to desperation, they have reacted violently.

Chapter-IX sets out the evidence tendered by Central and State Governments while
Chapter-X deals with the evidence tendered by the Public. Chapter-XI is quite important inasmuch as it deals with the “Socio-Educational Field Survey and Criteria of Backwardness”.
In this Chapter, the Commission says that it decided to tap a of number of sources for the collection of data, keeping in mind the criticism against the Kalelkar Commission as also the several Judgments of this Court. It says that Socio-Educational Field Survey was the most comprehensive inquiry made by the Commission in this behalf. Right from the beginning, this
Survey was designed with the help of top social scientists and specialists in the country. Experts from a number of disciplines were associated with different phases of its progress. It refers to the work of Research Planning Team of Sociologists and the work done by a panel of experts

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led by Prof. M.N. Srinivas. It refers to the fact that both of them concurred that “in the Indian context such collectivities can be castes or other hereditary groups traditionally associated with specific occupations which are considered to be low and impure and with which educational backwardness and low income are found to be associated.”
The Commission says further that with a view to providing continuous guidance at the operational level, a Technical Advisory Committee was set up under Dr. K.C. Seal, Director
General, Central Statistical Organisation with the Chief Executive, National Sample Survey
Organisation and representatives of Directors of State Bureau of Economics and Statistics as
Members. The Commission sets out the Methodology evolved by the Experts panel and states that survey operations were entrusted to the State Statistical Organisations of the concerned
States/Union Territories. It refers to the training imparted to the survey staff and to the fact that the entire data so collected was fed into a computer for electronic processing of such data. Out of the 406 districts in the country, the survey covered 405 districts. In every district, two villages and one urban block was selected and in each of these villages and urban blocks, every single household was surveyed. The entire data collected was tabulated with the aid and
National Informatics Center of Electronics Commission of India. The Technical Committee constituted a Sub-Committee of Experts to help the Commission prepare "Indicators of
Backwardness" for analysing the data contained in the computerised tables. In para 11.23 (page
52) the Commission sets out the eleven Indicators/Criteria evolved by it for determining social and educational backwardness. Paras 11.23, 11.24 and 11.25 are relevant and may be set out in full:11.23. As a result of the above exercise, the Commission evolved eleven 'Indicators ' or 'criteria ' for determining social and educational backwardness.
These 11 'Indicators ' were grouped under three broad heads, i.e., Social,
Educational and Economic. They are:A. Social:
(i) Castes/Classes considered as socially backward by others.
(ii) Castes/Classes which mainly depend on manual labour for their livelihood.
(iii) Castes/Classes where at least 25% females and 10% males above the state average get married at an age below 17 years in rural areas and at least 10% females and 5% males do so in urban areas.
(iv) Castes/Classes where participation of females in work is at least 25% above the State average.
B. Educational:
(v) Castes/Classes where the number of children in the age group of 5-15 years who never attended school is at least 25% above the State average.
(vi) Castes/Classes where the rate of student drop-out in the age group of 5-15 years is at least 25% above the State average.
(vii) Castes/Classes amongst whom the proportion of matriculates is at least 25% below the State average.
C. Economic:
(viii) Castes/Classes where the average value of family assets is at least 25% below the State average.
(ix) Castes/Classes where the number of families living in Kuccha houses is at least 25% above the State average.
(x) Castes/Classes where the source of drinking water is beyond half a kilometer for more than 50% of the households.

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(xi) Castes/Classes where the number of households having taken consumption loan is at least 25% above the State average.
11.24. As the above three groups are not of equal importance for our purpose, separate weightage was given to 'Indicators ' in each group. All the Social 'Indicators ' were given a weightage of 3 points each. Educational 'Indicators ' a weightage of 2 points each and Economic 'Indicators ' a weightage of one point each. Economic, in addition to Social and Educational Indicators, were considered important as they directly flowed from social and educational backwardness. This also helped to highlight the fact that socially and educationally backward classes are economically backward also.
11.25. It will be seen that from the values given to each Indicators, the total score adds upto 22. All these 11 Indicators were applied to all the castes covered by the survey for a particular State. As a result of this application, all castes which had a score of 50 percent (i.e., 11 points) or above were listed as socially and educationally backward and the rest were treated as 'advanced '. (It is a sheer coincidence that the number of indicators and minimum point score for backwardness, both happen to be eleven). Further, in case the number of households covered by the survey for any particular caste were below 20, it was left out of consideration, as the sample was considered too small for any dependable inference.

It will also be useful to set out the observations of the Commission in para 11.27:11.27. In the end it may be emphasised that this survey has no pretentions to being a piece of academic research. It has been conducted by the administrative machinery of the Government and used as a rough and ready tool for evolving a set of simple criteria for identifying social and educational backwardness.
Throughout this survey our approach has been conditioned by practical considerations, realities of field conditions, constraints of resources and trained manpower and paucity of time. All these factors obviously militate against the requirements of a technically sophisticated and academically satisfying operation.

Chapter-XII deals with ‘Identification of OBCs’. In the first instance, the Commission deals with OBCs among Hindu Communities. It says that it applied several tests for determining the SEBCs like stigmas of low-occupation, criminality, nomadism, beggary and untouchability besides inadequate representation in public services. The multiple approach adopted by the Commission is set out in para 12.7 which reads:
12.7. Thus, the Commission has adopted a multiple approach for the preparation of comprehensive lists of Other Backward Classes for all the States and Union
Territories. The main sources examined for the preparation of these lists are:(i) Socio-educational field survey;
(ii) Census Report of 1961 (particularly for the identification of primitive tribes, aboriginal tribes, hill tribes, forest tribes and indigenous tribes);
(iii) Personal knowledge gained through extensive touring of the country and receipt of voluminous public evidences as described in Chapter X of this Report; and (iv) Lists of OBCs notified by various State Governments.

The Commission next deals with OBCs among Non-Hindu Communities. In paragraphs
12.11 to 12.16 the Commission refers to the fact that even among Christian, Muslim and Sikh religions, which do not recognise caste, the caste system is prevailing though without religious sanction. After giving a good deal of thought to several difficulties in the way of identifying
OBCs among Non-Hindus, the Commission says, it has evolved a rough and ready criteria viz.,
(1) all untouchables converted to any Non-Hindu religion and (2) such occupational communities which are known by the name of their traditional hereditary occupation and whose
Hindu counter-parts have been included in the list of Hindu OBCs - ought to be treated as

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SEBCs. The Commission then sought to work out the estimated population of the OBCs in the country and arrived at the figure of 52 per cent. Paras 12.19, 12.22 may be set out in full in view of their relevancy:
12.19 Systematic caste-wise enumeration of population was introduced by the
Registrar General of India in 1881 and discontinued in 1931. In view of this, figures of castewise population beyond 1931 are not available. But assuming that the inter se rate of growth of population of various castes communities and religious groups over the last half a century has remained more or less the same, it is possible to work out the percentage that all these groups constitute of the total population of the country.
12.22. From the foregoing it will be seen that excluding Scheduled Castes and
Scheduled Tribes, Other Backward Classes constitute nearly 52% of the Indian population. Chapter-XIII contains various recommendations including reservations in services. In view of the decisions of the Supreme Court limiting the total reservation to 50 per cent, the
Commission recommended 27 per cent reservation in favour of OBCs (in addition to 22.5 per cent already existing in favour of SCs and STs). It recommended several measures for

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improving the condition of these backward classes. Chapter-XIV contains a summary of the report. Volumes 2 to 9 of the Report contain and set out the material and the data on the basis of which the Commission made its recommendations. Vol. II contains the State-wise lists of
Backward Classes, as identified by the Commission. (It may be remembered that both the
Scheduled Castes order and Scheduled Tribes order notified by the President contain Statewise lists of Scheduled Castes and Scheduled Tribes). Volume II inter alia contains the questionnaire issued to the State Governments/Union Territories, the questionnaire issued to the Central Government Ministries/Departments, the questionnaire issued to the general public, the list of M.Ps. and other experts who appeared and gave evidence before the Commission, the criteria furnished to Central Government offices for identifying OBC employees for both
Hindu and non-Hindu Communities, report of the Research Planning Team of the Sociologists and the proformas employed in conducting the Socio-Education Survey.
The Report of the Mandal Commission was laid before each House of Parliament and discussed on two occasions - once in 1982 and again in the year 1983. The proceedings of the
Lok Sabha placed before us contain the statement of Sri R. Venkataraman, the then Minister for Defence and Home Affairs. He expressed the view that “the debate has cut across party lines and a number of people on this side have supported the recommendations of the Mandal
Commission. A large number of people on the other side have also supported it. If one goes through the entire debate one will be impressed with a fairly unanimous desire on the part of all sections of the House to find a satisfactory solution to this social evil of backwardness of
Scheduled Castes/Scheduled Tribes etc. which is a festering sore in our body politic,” The
Hon 'ble Minister then proceeded to state, “the Members generally said that the recommendations should be accepted. Some Members said that it should be accepted in toto.
Some Members have said that it should be accepted with certain reservations. Some Members said, there should be other criteria than only social and educational backwardness. But all these are ideas which Government will take into account. The problem that confronts Government today is to arrive at a satisfactory definition of backward classes and bring about an acceptance of the same by all the state concerned.” The Hon 'ble Minister referred to certain difficulties the
Government was facing in implementing the recommendations of the Commission on account of the large number of castes identified and on account of the variance in the State lists and the
Mandal Commission lists and stated that consultation with various departments and State
Governments was in progress in this behalf. He stated that a meeting of the Chief Ministers would be convened shortly to take decisions in the matter.
The Report was again discussed in the year 1983. The then Hon 'ble Minister for Home Sri
P.C. Sethi, while replying to the debate stated: “While referring to the Commission whose report has been discussed today, I would like to remind the House that although this
Commission had been appointed by our predecessor Government, we now desire to continue with this Commission and implement its recommendations.”

THE OFFICE MEMORANDUM DATED 13TH AUGUST, 1990
No action was, however, taken on the basis of the Mandal Commission Report until the issuance of the Office Memorandum on 25th September, 1991. On that day, the then Prime
Minister Sri V.P. Singh made a statement in the Parliament in which he stated inter alia as follows: After all, if you take the strength of the whole of the Government employees as a proportion of the population, it will be 1% or 1-1/2. I do not know exactly, it may be less than 1%. We are under no illusion that this 1% of the population, or a

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fraction of it will resolve the economic problems of the whole section of 52%. No.
We consciously want to give them a position in the decision-making of the country, a share in the power structure. We talk about merit. What is the merit of the system itself? That the section which has 52% of the population gets 12.55% in Government employment. What is the merit of the system? That in Class I employees of the Government it gets only 4.69%, for 52% of the population in decision-making at the top echelons it is not even one-tenth of the population of the country; in the power structure it hardly 4.69. I want to challenge first the merit of the system itself before we come and question on the merit, whether on merit to reject this individual or that. And we want to change the structure basically, consiciously, with open eyes. And I know when changing the structures comes, there will be resistance…
What I want to convey is that treating unequals as equals is the greatest injustice.
And, correction of this injustice is very important and that is what I want to convey. Here, the National Front Government 's Commitment for not only change of Government, but also change of the social order, is something of great significance to all of us; it is a matter of great significance. Merely making programmes of economic benefit to various sections of the society will not do…
There is a very big force in the argument to involve the poorest in the power structure. For a lot of time we have acted on behalf of the poor. We represent the poor… Let us forget that the poor are begging for some crumbs. They have suffered it for thousands of years. Now they are fighting for their honour as a human being…
A point was made by Mahajan ji that if there are different lists in different States how will the Union List harmonise? It is so today in the case of the Scheduled
Castes and the Scheduled Tribes, That has not caused a problem. On the same pattern, this will be there and there will be no problem.

The Office Memorandum dated 13th August, 1990 reads as follows:
OFFICE MEMORANDUM
Subject: Recommendations of the Second backward Classes Commission
(Mandal Report) - Reservation for Socially and Educationally Backward Classes in services under the Government of India.
In a multiple undulating society like ours, early achievement of the objective of social justice as enshrined in the Constitution is a must. The Second Backward
Classes Commission called the Mandal Commission was established by the then
Government with this purpose in view, which submitted its report to the
Government of India on 31.12.1980.
2. Government have carefully considered the report and the recommendations of the Commission in the present context regarding the benefits to be extended to the socially and educationally backward classes as opined by the Commission and are of the clear view that at the outset certain weightage has to be provided to such classes in the services of the Union and their Public Undertakings. Accordingly orders are issued as follows:(i) 27% of the vacancies in civil posts and services under the Government of India shall be reserved for SEBC.
(ii) The aforesaid reservation shall apply to vacancies to be filled by direct recruitment. Detailed instructions relating to the procedures to be followed for enforcing reservation will be issued separately.
(iii) Candidates belonging to SEBC recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates shall not be adjusted against the reservation quota of 27%.

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(iv) The SEBC would comprise in the first phase the castes and communities which are common to both the list in the report of the Mandal Commission and the State Governments ' lists, a list of such castes/communities is being issued separately. (v) The aforesaid reservation shall take effect from 7.8.1990. However, this will not apply to vacancies where the recruitment process has already been initiated prior to the issue of these orders.
3. Similar instructions in respect of public sector undertakings and financial institutions including public sector banks will be issued by the Department of
Public Enterprises and Ministry of Finance respectively. sd/(Smt. Krishna Singh)
Joint Secretary to the Govt. of India

Soon after the issuance of the said Memorandum there was wide-spread protest in certain
Northern States against it. There occurred serious disturbance to law and order involving damage to private and public property. Some young people lost their lives by self-immolation.
Writ Petitions were filed in this Court questioning the said Memorandum along with applications for staying the operation of the Memorandum. It was stayed by this Court.

THE OFFICE MEMORANDUM DATED 25TH SEPTEMBER, 1991
After the change of the Government at the center following the general election held in the first half of 1991, another Office Memorandum was issued on 25th September, 1991 modifying the earlier Memorandum dated 13th August, 1990. The later Memorandum reads as follows:
OFFICE MEMORANDUM
Subject: Recommendations of the Second Backward Classes Commission
(Mandal Report) - Reservation for socially and Educationally Backward Classes in service under the Government of India.
The undersigned is directed to invite the attention to O.M. of even number dated the 13th August, 1990, on the above mentioned subject and to say that in order to enable the poorer sections of the SEBCs to receive the benefits of reservation on a preferential basis and to provide reservation for other economically backward sections of the people not covered by any of the existing schemes of reservation,
Government have decided to amend the said Memorandum with immediate effect as follows:(i) Within the 27% of the vacancies in civil posts and services under the
Government of India reserved for SEBCs, preference shall be given to candidates belonging to the poorer sections of the SEBCs. In case sufficient number of such candidates are not available, unfilled vacancies shall be filled by the other SEBC candidates. (ii) 10% of the vacancies in civil posts and services under the Government of India shall be reserved for other economically backward sections of the people who are not covered by any of the existing schemes of reservation.
(iii) The criteria for determining the poorer sections of the SEBCs or the other economically backward sections of the people who are not covered by any of the existing schemes of reservations are being issued separately.
The O.M. of even number dated the 13th August, 1990, shall be deemed to have been amended to the extent specified above. sd/- Page 163 of 610

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(A.K. Harit)
Dy. Secretary to the Government of India

Till now, the Central Government has not evolved the economic criteria as contemplated by the later Memorandum, though the hearing of these writ petitions was adjourned on more than one occasion for the purpose. Some of the writ petitions have meanwhile been amended challenging the later Memorandum as well. Let us notice at this stage what do the two memorandums say, read together.
The first provision made is: 27% of vacancies to be filled up by direct recruitment in civil posts and services under the Government of India are reserved for backward classes. Among the members of the backward classes preference has to be given to candidates belonging to the poorer sections. Only in case, sufficient number of such candidates are not available, will the unfilled vacancies be filled by other backward class candidates. The second provision made is: backward class candidates recruited on the basis of merit in open competition along with general candidates shall not be adjusted against the quota of 27% reserved for them. Thirdly, it is provided that backward classes shall mean those castes and communities which are common to the list in the report of the Mandal Commission and the respective State Government 's list.
It may be remembered that Mandal Commission has prepared the list of backward classes Statewise, Lastly, it is provided that 10% of the vacancies shall be reserved for other economically backward sections of the people who are not covered by any of the existing schemes of reservations. As stated above, the criteria for determining the poorer sections among the backward classes or for determining other economically backward sections among the nonreserved category has so far not been evolved. Though the first Memorandum stated that the orders made therein shall take effect from 7.8.1990, they were not in fact acted upon on account of the orders made by this Court.

ISSUES FOR CONSIDERATION
… [W]e have re-framed the questions. We shall proceed to answer them in the same order.
The reframed questions are:
1(a) Whether the 'provision ' contemplated by Article 16(4) must necessarily be made by the legislative wing of the State?
(b) If the answer to Clause (a) is in the negative, whether an executive order making such a provision is enforceable without incorporating it into a rule made under the proviso to Article 309?
2(a) Whether Clause (4) of Article 16 is an exception to Clause (1) of Article 16?
(b) Whether Clause (4) of Article 16 is exhaustive of the special provisions that can be made in favour of 'backward class of citizens '? Whether it is exhaustive of the special provisions that can be made in favour of all sections, classes or groups?
(c) Whether reservations can be made under Clause (1) of Article 16 or whether it permits only extending of preferences/concessions?
3(a) What does the expression 'backward class of citizens ' in Article 16(4) means?
(b) Whether backward classes can be identified on the basis and with reference to caste alone?
(c) Whether a class, to be designated as a backward class, should be situated similarly to the S.Cs./S.Ts.?

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(d) Whether the 'means ' test can be applied in the course of identification of backward classes? And if the answer is yes, whether providing such a test is obligatory? 4(a). Whether the backward classes can be identified only and exclusively with reference to economic criteria?
(b) Whether a criteria like occupation-cum-income without reference to caste altogether, can be evolved for identifying the backward classes?
5. Whether the backward classes can be further categorised into backward and more backward categories?
6. To what extent can the reservation be made?
(a) Whether the 50% rule enunciated in Balaji a binding rule or only a rule of caution or rule of prudence?
(b) Whether the 50% rule, if any, is confined to reservations made under Clause
(4) of Article 16 or whether it takes in all types of reservations that can be provided under Article 16?
(c) Further while applying 50% rule, if any, whether an year should be taken as a unit or whether the total strength of the cadre should be looked to?
(d) Whether Devadasan was correctly decided?
7. Whether Article 16 permits reservations being provided in the matter of promotions? 8. Whether reservations are anti-meritian? To what extent are Articles 335, 38(2) and 46 of the Constitution relevant in the matter of construing Article 16?
9. Whether the extent of judicial review is restricted with regard to the identification of Backward Classes and the percentage of reservations made for such classes to a demonstrably perverse identification or a demonstrably unreasonable percentage?
10. Whether the distinction made in the Memorandum between 'poorer sections ' of the backward classes and others permissible under Article 16?
11. Whether the reservation of 10% of the posts in favour of 'other economically backward sections of the people who are not covered by any of the existing schemes of the reservations ' made by the Office Memorandum dated 25.9.1991 permissible under Article 16?
… Before we proceed to answer the questions aforementioned, it would be helpful to notice
(a) the debates in the Constituent Assembly on Article 16 (draft Article 10); (b) the decisions of this Court on Articles 16 and 15; and (c) a few decisions of the U.S. Supreme Court considering the validity of race-conscious programmes.
… It was the Drafting Committee under the Chairmanship of Dr. B.R. Ambedkar that inserted the word "backward" in between the words "in favour of any" and 'class of citizens".
The discussion on draft Article 10 took place on November 30, 1948. Several members including Damodar Swarup Seth, Hirdya Nath Kunzru and R. M. Nalavade complained that the expressions ‘backward’ and ‘backward classes’ are quite vague and are likely to lead to complications in future. They suggested that appointments to public services should be made purely on the basis of merit. Some others suggested that such reservations should be available

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only for a period of first ten years of the Constitution. To this criticism the Vice-President of the Assembly (Dr. H. C. Mookherjee) replied in the following words:
Before we start the general discussion, I would like to place a particular matter before the Honourable Members. The clause which has so long been under discussion affects particularly certain sections of our population sections which have in the past been treated very cruelly and although we are today prepared to make reparation for the evil deeds of our ancestors, still the old story continues, at least here and there, and capital is made out of it outside India… I would therefore very much appreciate the permission of the House so that I might give full discussion on this particular matter to our brethren of the backward classes.
Do I have that permission?

In the ensuing discussion Sri Chandrika Ram (Bihar-General) supported draft Clause (3) with great passion. He pleaded for reservations in favour of Backward Classes both in services as well as in the legislature, just as in the case of Harijans.
Sri Chandrika Ram was supported by another Member P. Kakkan (Madras-General) and
T. Channiah (Mysore), Channiah, in particular, commented upon the Members coming from
Northern India being puzzled about the meaning of the expression 'backward class ' and proceeded to clarify the same in the following words:
The backward classes of people as understood in South India, are those classes of people who are educationally backward, it is those classes that require adequate representation in the services. There are other classes of people who are socially backward; they also require adequate representation in the service.

After the discussion proceeded for some more time, K. M. Munshi, who was a Member of the Drafting Committee rose to explain the content of the word 'backward '. He said:
What we want to secure by this clause are two things. In the fundamental right in the first clause we want to achieve the highest efficiency in the services of the
State-highest efficiency which would enable the services to function effectively and promptly. At the same time, in view of the conditions in our country prevailing in several provinces, we want to see that backward classes, classes who are really backward, should be given scope in the State services; for it is realised that State services give a status and an opportunity to serve the country, and this opportunity should be extended to every community, even among the backward people. That being so, we have to find out some generic term and the word
"backward class" was the best possible term.

Munshi proceeded to state:
I may point out that in the province of Bombay for several years now, there has been a definition of backward classes, which includes not only Scheduled Castes and Scheduled Tribes but also other backward classes who are economically, educationally and socially backward. We need not, therefore, define or restrict the scope of the word "backward" to a particular community. Whoever is backward will be covered by it and I think the apprehensions of the Hon’ble Members are not justified.

Ultimately Dr. B.R. Ambedkar, the Chairman of the Drafting Committee, got up to clarify the matter. His speech, which put an end to all discussion and led to adopting of draft Article 10(3), is worth quoting in extenso, since it throws light on several questions relevant herein:
… there are three points of view which it is necessary for us to reconcile if we are to produce a workable proposition which will be accepted by all. Of the three points of view, the first is that there shall be equality of opportunity for all citizens.
It is the desire of many Members of this House that every individual who is qualified for a particular post should be free to apply for that post, to sit for examinations and to have his qualifications tested so as to determine whether he is fit for the post or not and that there ought to be no limitations, there ought to be

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no hindrance in the operation of this principle of equality or opportunity. Another view mostly shared by a section of the House is that, if this principle is to be operative-and it ought to be operative in their judgment to its fullest extent-there ought to be no reservations of any sort for any class or community at all, that all citizens, if they are qualified, should be placed on the same footing of equality so far as the public services are concerned. That is the second point of view we have.
Then we have quite a massive opinion which insists that, although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration. As I said, the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a 'proper look-in ' so to say into the administration. If honourable Members will bear these facts in mind-the-three principles we had to reconcile,-they will see that no better formula could be produced than the one that is embodies in Sub-clause (3) of Article 10 of the Constitution. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now-for historical reasons-been controlled by one community or a few communists, that situation should disappear and that the others also must have an opportunity of getting into the public services.
Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public service to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of
30 per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with Sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation. If honourable Members understand this position that we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as "backward" the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain. That I think if I may say so, is the justification why the Drafting Committee undertook on its own shoulders the responsibility of introducing the word "backward" which, I admit, did not originally find a place in the fundamental right in the way in which it was passed by this Assembly…
Somebody asked me: "What is a backward community"? Well, I think anyone who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Government.

The above material makes it amply clear that the objective behind Clause (4) of Article 16 was the sharing of State power. The State power which was almost exclusively monopolised by the upper castes i.e., a few communities, was now sought to be made broad-based. The backward communities who were till then kept out of apparatus of power, were sought to be inducted there into and since that was not practicable in the normal course, a special provision was made to effectuate the said objective. In short, the objective behind Article 16(4) is empowerment of the deprived backward communities - to give them a share in the administrative apparatus and in the governance of the community.

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DECISIONS OF THIS COURT ON ARTICLES 16 AND 15
Soon after the enforcement of the Constitution two cases reached this Court from the State of Madras - one under Article 15 and the other under Article 16. Both the cases were decided on the same date and by the same Bench. The one arising under Article 15 is State of Madras
v. Champakam Dorairajan [1951] 2 SCR 525, and the other arising under Article 16 is
Venkataraman v. State of Madras AIR 1951 SC 229. By virtue of certain orders issued prior to coming into force of the Constitution,-popularly known as 'Communal G.O. ' - seats in the
Medical and Engineering Colleges in the State of Madras were apportioned in the following manner: Non-Brahmin (Hindus)-6, Backward Hindus-2, Brahmin-2, Harijan-2, Anglo Indians and Indian Christians-1, Muslims-1. Even after the advent of the Constitution, the G.O. was being acted upon which was challenged by Smt. Champakam as violative of the fundamental rights guaranteed to her by Articles 15(1) and 29(2) of the Constitution of India. A Full Bench of Madras High Court declared the said G.O. as void and un-enforceable with the advent of the
Constitution. The State of Madras brought the matter in appeal to this Court. A Special Bench of Seven Judges heard the matter and came to the unanimous conclusion that the allocation of seats in the manner aforesaid is violative of Articles 15(1) and 29(2) inasmuch as the refusal to admit the respondent (writ petitioner) notwithstanding her higher marks, was based only on the ground of caste. The State of Madras sought to sustain the G.O. with reference to Article 46 of the Constitution. Indeed the argument was that Article 46 over-rides Article 29(2). This argument was rejected. The Court pointed out that while in the case of employment under the
State, Clause (4) of Article 16 provides for reservations in favour of backward class of citizens, no such provision was made in Article 15.
In the matter of appointment to public services too, a similar communal G.O. was in force in the State of Madras since prior to the Constitution. In December, 1949, the Madras Public
Service Commission invited applications for 83 posts of District Munsifs, specifying at the same time that the selection of the candidates would be made from the various castes, religions and communities as specified in the communal G.C. The 83 vacancies were distributed in the following manner: Harijans-19, Muslims-5, Christians-6, Backward Hindus-10, Non-Brahmin
(Hindus)-32 and Brahmins-11. The petitioner Venkataraman (it was a petition under Article 32 of the Constitution) applied for and appeared at the interview and the admitted position was that if the provisions of the communal G.O. were to be disregarded, he would have been selected. Because of the G.O., he was not selected (he belonged to Brahmin community).
Whereupon he approached this Court. S.R. Das, J. speaking for the Special Bench referred to
Article 16 and in particular to Clause (4) thereof and observed: "Reservation of posts in favour of any backward class of citizens cannot, therefore, be regarded as unconstitutional". He proceeded to hold:
The Communal G.O. itself makes an express reservation of seats for Harijans &
Backward Hindus. The other categories, namely, Muslims, Christians, NonBrahmin Hindus & Brahmins must be taken to have been treated as other than
Harijans & Backward Hindus. Our attention was drawn to a schedule of Backward
Classes set out in Schedule III to Part I of the Madras Provincial & Subordinate
Service Rules. It was, therefore, argued that Backward Hindus would mean
Hindus of any of the communities mentioned in that Schedule. It is, in the circumstances, impossible to say that classes of people other than Harijans &
Backward Hindus can be called Backward Classes. As regards the posts reserved for Harijans & Backward Hindus it may be said that the petitioner who does not belong to those two classes is regarded as ineligible for those reserved posts not on the ground of religion, race, caste etc. but because of the necessity for making a provision for reservation of such posts in favour of a backward class of citizens, but the ineligibility of the petitioner for any of the posts reserved for communities

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other than Harijans and Backward Hindus cannot but be regarded as founded on the ground only of his being a Brahmin. For instance, the petitioner may be far better qualified than a Muslim or a Christian or a Non-Brahmin candidate & if all the posts reserved for those communities were open to him he would be eligible for appointment, as is conceded by the learned Advocate General of Madras, but, nevertheless, he cannot expect to get any of those posts reserved for those different categories only because he happens to be a Brahmin. His ineligibility for any of the posts reserved for the other communities, although he may have far better qualifications than those possessed by members falling within those categories, is brought about only because he is a Brahmin & does not belong to any of those categories. This ineligibility created by the Communal G.O. does not appear to us to be sanctioned by Clause (4) of Article 16 and it is an infringement of the fundamental right guaranteed to the petitioner as an individual citizen under
Article 16(1) & (2). The Communal G.O., in our opinion, is repugnant to the provisions of Article 16 & is as such void and illegal.

Ram Jethmalani, the learned Counsel appearing for the Respondent-State of Bihar placed strong reliance on the above passage. He placed before us an extract of the Schedule of the backward classes appended to the Madras Provincial and Subordinate Service Rules, 1942. He pointed out that Clause (3)(a) in Rule 2 defined the expression backward classes to mean "the communities mentioned in Schedule III to this part", and that Schedule III is exclusively based upon caste. The Schedule describes the communities mentioned therein under the heading 'Race, Tribe or Caste '. It is pointed out that when the said Schedule was substituted in 1947, the basis of classification still remained the caste, though the heading "Races, Tribes and
Castes" was removed. Mr. Jethmalani points out that the Special Bench took note of the fact that Schedule III was nothing but a collection of certain 'communities ', notified as backward classes and yet upheld the reservation in their favour. According to him, the decision in
Venkataraman clearly supports the identification of backward classes on the basis of caste. The
Communal G.O. was struck down, he submits, only in so far as it apportioned the remaining vacancies between sections other than Harijans and backward classes. It is rather curious, says the counsel, that the decision in Venkataraman has not attracted the importance it deserves all these years. All the subsequent decisions of this Court refer to Champakam. Hardly any decision refers to Venkataraman notwithstanding the fact that Venkataraman was a decision rendered with reference to Article 16.
Soon after the said two decisions were rendered the Parliament intervened and in exercise of its constituent power, amended Article 15 by inserting Clause (4)… It is worthy of notice that the Parliament, which enacted the First Amendment to the Constitution, was in fact the very same Constituent Assembly which had framed the Constitution. The speech of Dr.
Ambedkar on the occasion is again instructive. He said:
Then with regard to Article 16, Clause (4), my submission is this that it is really impossible to make any reservation which would not result in excluding somebody who has a caste. I think it has to be borne in mind and it is one of the fundamental principles which I believe is stated in Mulla 's edition on the very first page that there is no Hindu who has not a caste. Every Hindu has a caste-he is either a Brahmin or a Mahratta or a Kundby or a Kumbhar or a carpenter. There is no Hindu-that is the fundamental proposition-who has not a caste.
Consequently, if you make a reservation in favour of what are called backward classes which are nothing else but a collection of certain castes, those who are excluded are persons who belong to certain castes. Therefore, in the circumstances of this country, it is impossible to avoid reservation without excluding some people who have got a caste.

After the enactment of the First Amendment the first case that came up before this Court is Balaji v. State of Mysore. In the year 1961, this Court decided the General Manager,
Southern Railway v. Rangachari, but that related to reservations in favour of the Scheduled

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Castes and Scheduled Tribes in the matter of promotion in the Railways. Rangachari will be referred to at an appropriate stage later. In the State of Karnataka, reservations were in force since a few decades prior to the advent of the Constitution and were being continued even thereafter. On July 26, 1958 the State of Mysore issued an order under Article 15(4) of the
Constitution declaring all the communities except the Brahmin community as socially and educationally backward and reserving a total of 75 per cent seats in Educational Institutions in favour of SEBCs and SCs/STs. Such orders were being issued every year, with minor variation in the percentage of reservations. On 13th of July, 1972, a similar order was issued wherein 68 per cent of the seats in all Engineering and Medical Colleges and Technical Institutions in the
State were reserved in the favour of the SEBCs, SCs and STs. SEBCs were again divided into two categories-backward classes and more backward classes. The validity of this order was questioned under Article 32 of the Constitution. While striking down the said order this Court enunciated the following principles:(1) Clause (4) of Article 15 is a proviso or an exception to Clause (1) of Article
15 and to Clause (2) of Article 29;
(2) For the purpose of Article 15(4), backwardness must be both social and educational. Though caste in relation to Hindus may be a relevant factor to consider, in determining the social backwardness of a class of citizens, it cannot be made the sole and dominant test. Christians, Jains and Muslims do not believe in caste system; the test of caste cannot be applied to them. Inasmuch as identification of all backward classes under the impugned order has been made solely on the basis of caste, it is bad.
(3) The reservation made under Clause (4) of Article 15 should be reasonable. It should not be such as to defeat or nullify the main Rule of equality contained in
Clause (1). While it is not possible to predicate the exact permissible percentage of reservations, it can be stated in a general and broad way that they should be less than 50 per cent.
(4) A provision under Article 15(4) need not be in the form of legislation; it can be made by an executive order.
(5) The further categorisation of backward classes into backward and more backward is not warranted by Article 15(4).

It must be remembered that Balaji was a decision rendered under and with reference to
Article 15 though it contains certain observations with respect to Article 16 as well.
Soon after the decision in Balaji this Court was confronted with a case arising under Article
16 - Devadasan v. Union of India. This was also a petition under Article 32 of the Constitution.
It related to the validity of the ‘carry-forward’ rule obtaining in Central Secretariat Service.
The reservation in favour of Scheduled Castes was twelve and half per cent while the reservation in favour of Scheduled Tribes was five per cent. The ‘carry-forward’ rule considered in the said decision was in the following terms: “If a sufficient number of candidates considered suitable by the recruiting authorities, are not available from the communities for whom reservations are made in a particular year, the unfilled vacancies should be treated as unreserved and filled by the best available candidates. The number of reserved vacancies, thus, treated as unreserved will be added as an additional quota to the number that would be reserved in the following year in the normal course; and to the extent to which approved candidates are not available in that year against this additional quotas, a corresponding addition should be made to the number of reserved vacancies in the second following year.” Because sufficient number of SC/ST candidates were not available during the earlier years the unfilled vacancies meant for them were carried forward as contemplated by the said rule and filled up in the third year - that is in the year 1961. Out of 45 appointments made, 29 went to Scheduled Castes and
Scheduled Tribes. In other words, the extent of reservation in the third year came to 65 per

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cent. The rule was declared unconstitutional by the Constitution Bench, with Subba Rao, J. dissenting. The majority held that the carry forward rule which resulted in more than 50 per cent of the vacancies being reserved in a particular year, is bad. The principle enunciated in
Balaji regarding 50 percent was followed. Subba Rao, J. in his dissenting opinion, however, upheld the said rule. The learned Judge observed: “The expression, “nothing in this article” is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammeled by the other provisions of the
Article.” The learned Judge opined that once a class is a backward class, the question whether it is adequately represented or not is left to the subjective satisfaction of the State and is not a matter for this Court to prescribe.
We must, at this stage, clarify that a ‘carry-forward’ rule may be in a form different than the one considered in Devadasan. The Rule may provide that the vacancies reserved for
Scheduled Castes or Scheduled Tribes shall not be filled up by general (open competition) candidates in case of non-availability of SC/ST candidates and that such vacancies shall be carried forward.
In the year 1964 another case from Mysore arose, again under Article 15 - Chitralekha v.
State of Mysore. The Mysore Government had by an order defined backward classes on the basis of occupation and income, unrelated to caste. Thirty per cent of seats in professional and technical institutions were reserved for them in addition to eighteen per cent in favour of SCs and STs. One of the arguments urged was that the identification done without taking the caste into consideration is impermissible. The majority speaking through Subba Rao, J., held the identification or classification of backward classes on the basis of occupation-cum-income, without reference to caste, is not bad and does not offend Article 15(4).
During the years 1968 to 1971, this Court had to consider the validity of identification of backward classes made by Madras and Andhra Pradesh Governments. Minor P. Rajendran v.
State of Madras related to specification of socially and educationally backward classes with reference to castes. The question was whether such an identification infringes Article 15.
Wanchoo, C.J., speaking for the Constitution Bench dealt with the contention in the following words: The contention is that the list of socially and educationally backward classes for whom reservation is made under Rule 5 nothing but a list of certain castes.
Therefore, reservation in favour of certain castes based only on caste considerations violates Article 15(1), which prohibits discrimination on the ground of caste only. Now if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of Article 15(1). But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Article 15(4)… It is true that in the present cases the list of socially and educationally backward classes has been specified by caste. But that does not necessarily mean that caste was the sole consideration and that person belonging to these castes are also not a class of socially and educationally backward citizens… As it was found that members of these castes as a whole were educationally and socially backward, the list which had been coming on from as far back as 1906 was finally adopted for purposes of Article 15(4).
In view however of the explanation given by the State of Madras, which has not been controverted by and rejoinder, it must be accepted that though the list shows certain castes, the members of those castes are really classes of educationally and socially backward citizens. No attempt was made on behalf of the petitioners/appellant to show that any caste mentioned in this list was not

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educationally and socially backward. In this state of the pleadings, we must come to the conclusion that though the list is prepared caste-wise, the castes included therein are as a whole educationally and socially backward and therefore the list is not violative of Article 15. The challenge to Rule 5 must therefore fail.

The shift in approach and emphasis is obvious. The Court now held that a caste is a class of citizens and that if a caste as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Article 15(4). More over the burden of proving that the specification/identification was bad, was placed upon the petitioners. In case of failure to discharge that burden, the identification made by the State was upheld. The identification made on the basis of caste was upheld inasmuch as the petitioner failed to prove that any caste mentioned in the list was not socially and educationally backward….

DECISIONS OF U.S. SUPREME COURT
… [I]n Regents of the University of California v. Allan Bakke [1978] 57 L.Ed. 2nd 750.
The Medical School of the University of California at Davis had been following two admissions programmes, one in respect of the 84 seats (general) and the other, a special admissions programme under which only disadvantaged members of certain minority races were considered for the remaining 16 seats - the total seats available being 100 a year. For these 16 seats, none except the members of the minority races were considered and evaluated. The respondent, Bakke, a white, could not obtain admission for two consecutive years, in view of his evaluation scores, while admission was given to members of minority races who had obtained lesser scores than him. He questioned the validity of special admissions programme on the ground that it violated the equal protection clause in the Fourteenth Amendment to the
Constitution and also Title VI of the Civil Rights Act. 1964. The Trial Court upheld the plea on the ground that the programme excluded members of non-minority races from the 16 reserved seats only on the basis of race and thus operated as a racial quota. It, however, refused to direct the plaintiff to be admitted inasmuch as he failed to establish that he would have been admitted but for the existence of the special admissions programme. The matter was carried in direct appeal to Supreme Court of California, which not only affirmed the Trial Court 's
Judgment in so far as it held the special admission programme to be invalid but also granted admission to the plaintiff-respondent into the Medical School. It was of the view that the
University had failed to prove that in the absence of special admissions programme the respondent would not have been admitted. The matter was then carried to the United States
Supreme Court, where three distinct view-points emerged.
Brennan, White, Marshall and Blackmun, JJ. were of the opinion that the special admissions programme was a valid one and is not violative of the Federal or State Constitutions or of Title VI of the Civil Rights Act, 1964. They were of the opinion that the purpose of overcoming substantial, chronic minority under-representation in the medical profession is sufficiently important to justify the University 's remedial use of race. Since the Judgment of the Supreme Court of California prohibited the use of race as a factor in University admissions, they reversed that Judgment.
Chief Justice Warren Burger, Stevens, Stewart and Rehnquist, JJ. took the other view. They affirmed the judgment of the California Supreme Court. They based their judgment mainly on
Title VI of Civile Rights Act, 1964, which provided that "no person in the United States shall, on the ground of race, colour or national origin, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any programme or activity receiving
Federal Financial assistance." They opined that Bakke was the victim of, what may be called,

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reverse discrimination and that his exclusion from consideration in respect of the 16 seats being solely based on race, is impermissible.
Powell, J. took the third view in his separate opinion, partly agreeing and partly disagreeing with the other view-points. He based his decision on Fourteenth Amendment alone. He did not take into consideration the 1964 Act. The learned Judge held that though racial and ethnic classifications of any kind are inherently suspect and call for the most exacting judicial scrutiny, the goal of achieving a racially balanced student body is sufficiently compelling to justify consideration of race in admissions decisions under certain circumstances. He was of the opinion that while preference can be provided in favour of minority races in the matter of admission, setting up of quotas (which have the effect of foreclosing consideration of all others in respect thereof) is not necessary for achieving the said compelling goal. He was of the opinion that impugned programme is bad since it set apart a quota for minority races. He sustained the admission granted to Bakke on the ground that the University failed to establish that even without the quota, he would not have been admitted.
It would be useful to notice the three points of view in a little more detail. Brennan, J. (with whom Marshall, White and Blackmun, JJ. agreed) observed that though the U.S. Constitution was founded on the principle that "all men are created equal", the truth is that it is not so in fact. Racial discrimination still persists in the society. In such a situation the claim that the law must be "colour-blind" is more an aspiration rather than a description of reality. The context and the reasons for which Title VI of the Civil Rights Act, 1964 was enacted leads to the conclusion that the prohibition contained in Title VI was intended to be consistent with the commands of the Constitution and no more. Therefore, "any claim that the use of racial criteria is barred by the plain language of the statute must fail in light of the remedial purpose of Title
VI and its legislative history." On the contrary, said the learned Judge, prior decisions of the court strongly suggest that Title VI does not prohibit the remedial use of race where such action is constitutionally permissible.
… We have examined the decisions of U.S. Supreme Court at some length only with a view to notice how another democracy is grappling with a problem similiar in certain respects to the problem facing this country. The minorities (including blacks) in United States are just about 16 to 18% of the total population, whereas the backward classes (including the Scheduled
Castes and Scheduled Tribes) in this country - by whichever yardstick they are measured - do certainly constitute a majority of the population. The minorites there comprise 5 to 7 groups Blacks, Spanish-speaking people, Indians, Purto Ricano, Aleuts and so on - whereas the castes and communities comprising backward classes in this country run into thousands.
Untouchability - and ‘unapproachability’, as it was being practised in Kerala - is something which no other country in the world had the misfortune to have - nor the blessed caste system.
There have been equally old civilisations on earth like ours, if not older, but none had evolved these pernicious practices, much less did they stamp them with scriptural sanction. Now coming to Constitutional provisions, Section 1 of the Fourteenth Amendment (insofar as it guarantees equal protection of the laws) corresponds to Article 14 but they do not have provisions corresponding to Article 16(4) or 15(4). Title VI of the Civil Rights Act enacted in
1964 roughly corresponds to Clause (2) of Articles 15 and 16.
At this stage, we wish to clarify one particular aspect. Article 16(1) is a facet of Article 14.
Just as Article 14 permits reasonable classification, so does Article 16(1). A classification may involve reservation of seats or vacancies, as the case may be. In other words, under Clause (1) of Article 16, appointments and/or posts can be reserved in favour of a class. But an argument is now being advanced - evidently inspired by the opinion of Powell, J. in Bakke that Article
16(1) permits only preferences but not reservations. The reasoning in support of the said argument is the same as was put forward by Powell, J. This argument, in our opinion, disregards

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the fact that that is not the unanimous view of the court in Bakke. Four Judges including
Brennan, J. took the view that such a reservation was not barred by the Fourteenth Amendment while the other four (including Warren Burger, C.J.) took the view that the Fourteenth
Amendment and Title VI of the Civil Right Acts, 1964 bars all race-conscious progammes. At the same time, there are a series of decisions relating to school desegregation - from Brown to
Board of Education v. Swann 28 L.Ed. 2nd 586 - where the court has been consistently taking the view that if race be the basis of discrimination, race can equally form the basis of remedial action. The shift in approach indicated by Metro Broadcasting Inc. is equally significant. The
‘lingering effects’ (of past discrimination) theory as well as the standard of strictest scrutiny of race-conscious programmes have both been abandoned. Suffice it to note that no single uniform pattern of thought can be discerned from these decisions. Ideas appear to be still in the process of evolution.

QUESTIONS 1 AND 2
… We are not concerned with the aspect of what is ideal or desirable but with what is the proper meaning to be ascribed to the expression ‘provision’ in Article 16(4) having regard to the context. The use of the expression ‘provision’ in Clause (4) of Article 16 appears to us to be not without design. According to the definition of ‘State’ in Article 12, it includes not merely the government and Parliament of India and Government and Legislature of each of the
States but all local authorities and other authorities within the territory of India or under the control of the Government of India which means that such a measure of reservation can be provided not only in the matter of services under the Central and State Governments but also in the services of local and other authorities referred to in Article 12. The expression ‘Local
Authority’ is defined in Section 3(31) of the General Clauses Act. It takes in all municipalities, 'Panchayats and other similar bodies. The expression ‘other authorities’ has received extensive attention from the court. It includes all statutory authorities and other agencies and instrumentalities of the State Government/Central Government. Now, would it be reasonable, possible or practicable to say that the Parliament or the Legislature of the State should provide for reservation of posts/appointments in the services of all such bodies besides providing for in respect of services under the Central/State Government?
… The very use of the word “provision” in Article 16(4) is significant. Whereas Clauses
3) and (5) of Article 16 - and Clauses (2) to (6) of Article 19 - use the word “Law”, Article
16(4) uses the word “provision”. Regulation of service conditions by orders and Rules made by the Executive was a well-known feature at the time of the framing of the Constitution.
Probably for this reason, a deliberate departure has been made in the case of Clause (4).
Accordingly, we hold, agreeing with Balaji, that the “provision” contemplated by Article 16(4) can also be made by the executive wing of the Union or of the State, as the case may be, as has been done in the present case.
… With respect to the argument of abuse of power by the political executive, we may say that there is adequate safeguard against misuse by the political executive of the power under
Article 16(4) in the provision itself. Any determination of backwardness is not a subjective exercise nor a matter of subjective satisfaction. As held herein - as also by earlier judgments the exercise is an objective one. Certain objective social and other criteria has to be satisfied before any group or class of citizens could be treated as backward. If the executive includes, for collateral reasons, groups or classes not satisfying the relevant criteria, it would be a clear case of fraud on power.
… A question is raised whether an executive order made in terms of Article 16(4) is effective and enforceable by itself or whether it is necessary that the said “provision” is enacted

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into a law made by the appropriate Legislature under Article 309 or is incorporated into and issued as a Rule by the President/Governor under the proviso to Article 309 for it to become enforceable? Mr. Jethmalani submits that Article 16(4) is merely declaratory in nature, that it is an enabling provision and that it is not a source of power by itself. He submits that unless made into a law by the appropriate Legislature or issued as a rule in terms of the proviso to
Article 309, the “provision” so made by the Executive does not become enforceable. At the same time, he submits that the impugned Memorandums must be deemed to be and must be treated as Rules made and issued under the proviso to Article 309 of the Constitution. We find it difficult to agree with Sri Jethmalani. Once we hold that a provision under Article 16(4) can be made by the executive, it must necessarily follow that such a provision is effective the moment it is made. …
… [T]here is yet another reason, why we cannot agree that the impugned Memorandums are not effective and enforceable the moment they are issued. It is well settled by the decisions of this Court that the appropriate government is empowered to prescribe the conditions of service of its employees by an executive order in the absence of the rules made under the proviso to Article 309. It is further held by this Court that even where Rules under the proviso to Article 309 are made, the government can issue orders/instructions with respect to matters upon which the Rules are silent. … It would, therefore, follow that until a law is made or rules are issued under Article 309 with respect to reservation in favour of backward classes, it would always be open to the Executive (Government) to provide for reservation of appointments/posts in favour of Backward Classes by an executive order. We cannot also agree with Mr. Jethmalani that the impugned Memorandums should be treated as Rules made under the proviso to Article
309. There is nothing in them suggesting even distantly that they were issued under the proviso to Article 309. They were never intended to be so, nor is that the stand of the Union Government before us. They are executive orders issued under Article 73 of the Constitution read with
Clause (4) of Article 16. The mere omission of a recital “in the name and by order of the
President of India” does not affect the validity or enforceability of the orders, as held by this
Court repeatedly.
… In our respectful opinion, the view taken by the majority in Thomas is the correct one.
We too believe that Article 16(1) does permit reasonable classification for ensuring attainment of the equality of opportunity assured by it. For assuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons unequally. Not doing so, would perpetuate and accentuate inequality. Article 16(4) is an instance of such classification, put in to place the matter beyond controversy. The “backward class of citizens” are classified as a separate category deserving a special treatment in the nature of reservation of appointments/posts in the services of the State. Accordingly, we hold that Clause (4) of Article
16 is not exception to Clause (1) of Article 16. It is an instance of classification implicit in and permitted by Clause (1). The speech of Dr. Ambedkar during the debate on draft Article 10(3)
[corresponding to Article 16(4)] in the Constituent Assembly - referred to in para 28 - shows that a substantial number of members of the Constituent Assembly insisted upon a “provision
(being) made for the entry of certain communities which have so far been outside the administration”, and that draft Clause (3) was put in recognition and acceptance of the said demand. It is a provision which must be read along with and in harmony with Clause (1).
Indeed, even without Clause (4), it would have been permissible for the State to have evolved such a classification and made a provision for reservation of appointments/posts in their favour.
Clause (4) merely puts the matter beyond any doubt in specific terms.
… It had to be accepted that Clause (4) is an instance of classification inherent in Clause
(1). Now, just as Article 16(1) is a facet or an elaboration of the principle underlying Article
14, Clause (2) of Article 16 is also an elaboration of a facet of Clause (1). If Clause (4) is an

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exception to Clause (1) then it is equally an exception to Clause (2). Question then arises, in what respect is Clause (4) an exception to Clause (2), if ‘class’ does not means ‘caste’. Neither
Clause (1) nor Clause (2) speak of class. Does the contention mean that Clause (1) does not permit classification and therefore Clause (4) is an exception to it. Thus, from any point of view, the contention of the petitioners has no merit.
… The question than arises whether Clause (4) of Article 16 is exhaustive of the topic of reservations in favour of backward classes. Before we answer this question it is well to examine the meaning and content of the expression “reservation”. … In our opinion, reservation is the highest form of special provision, while preference, concession and exemption are lesser forms.
The Constitutional scheme and context of Article 16(4) induces us to take the view that larger concept of reservations takes within its sweep all supplemental and ancillary provisions as also lesser types of special provisions like exemptions, concessions and relaxations, consistent no doubt with the requirement of maintenance of efficiency of administration - the admonition of
Article 335. … In our opinion, therefore, where the State finds it necessary - for the purpose of giving full effect to the provision of reservation to provide certain exemptions, concessions or preferences to members of backward classes, it can extend the same under Clause (4) itself. In other words, all supplemental and ancillary provisions to ensure full availment of provisions for reservation can be provided as part of concept of reservation itself. Similarly, in a given situation, the State may think that in the case of a particular backward class it is not necessary to provide reservation of appointments/posts and that it would be sufficient if a certain preference or a concession is provided in their favour. This can be done under Clause (4) itself.
In this sense, Clause (4) of Article 16 is exhaustive of the special provisions that can be made in favour of "the backward class of citizens". Backward Classes having been classified by the
Constitution itself as a class deserving special treatment and the Constitution having itself specified the nature of special treatment, it should be presumed that no further classification or special treatment is permissible in their favour apart from or outside of Clause (4) of Article
16.
The aspect next to be considered is whether Clause (4) is exhaustive of the very concept of reservations? In other words, the question is whether any reservations can be provided outside
Clause (4) i.e., under Clause (1) of Article 16. There are two views on this aspect. On a fuller consideration of the matter, we are of the opinion that Clause (4) is not, and cannot be held to be, exhaustive of the concept of reservations; it is exhaustive of reservations in favour of backward classes alone. Merely because one form of classification is stated as a specific clause, it does not follow that the very concept and power of classification implicit in Clause (1) is exhausted thereby. To say so would not be correct in principle. But, at the same time, one thing is clear. It is in very exceptional situations, and not for all and sundry reasons - that any further reservations, of whatever kind, should be provided under Clause (1). In such cases, the State has to satisfy, if called upon, that making such a provision was necessary (in public interest) to redress a specific situation. The very presence of Clause (4) should act as a damper upon the propensity to create further classes deserving special treatment. The reason for saying so is very simply. If reservations are made both under Clause (4) as well as under Clause (1), the vacancies available for free competition as well as reserved categories would be correspondingly whittled down and that is not a reasonable thing to do.
For the reasons given in the preceding paragraphs we must reject the argument that Clause
(1) of Article 16 permits only extending of preferences, concessions and exemptions, but does not permit reservation of appointments/posts. … [T]he argument that no reservations can be made under Article 16(1) is really inspired by the opinion of Powell, J. in Bakke. But in the very same paragraph we had pointed out that it is not the unanimous opinion of the Court. In principle, we see no basis for acceding to the said contention. What kind of special provision

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should be made in favour of a particular class is a matter for the State to decide, having regard to the facts and circumstances of a given situation - subject, of course, to the observations in the preceding paragraph.

QUESTIONS 3, 4 AND 5
… What does the expression “Backward Class of Citizens” in Article 16(4) signify and how should they be identified? This has been the single most difficult question tormenting this nation. The expression is not defined in the Constitution. What does it mean then? The arguments before us mainly revolved round this question. Several shades of opinion have been presented to us ranging from one extreme to the other. Indeed, it may be difficult to set out in full the reasoning presented before us orally and in several written propositions submitted by various counsel. We can mention only the substance of and the broad features emerging from those submissions. At one end of the spectrum stands Mr. N.A. Palkhiwala (supported by several other counsel) whose submissions may briefly be summarised in the following words: a secular, unified and caste-less society is a basic feature of the Constitution. Caste is a prohibited ground of distinction under the Constitution. It ought to be erased altogether from the Indian Society. It can never be the basis for determining backward classes referred to in
Article 16(4). The Report of the Mandal Commission, which is the basis of the impugned
Memorandums, has treated the expression “backward classes” as synonymous with backward castes and has proceed to identify backward classes solely and exclusively on the basis of caste, ignoring all other considerations including poverty. It has indeed invented castes for NonHindus where none exists. The Report has divided the nation into two sections, backward and forward, placing 52% of the population in the former section. Acceptance of Report would spell disaster to the unity and integrity of the nation. If half of the posts are reserved for backward classes, it would seriously jeopardise the efficiency of the administration, educational system, and all other services resulting in backwardness of the entire nation. Merit will disappear by deifying backwardness. Article 16(4) is broader than Article 15(4). The expression “backward class of citizens” in Article 16(4) is not limited to “socially and educationally backward classes” in Article 15(4). The impugned Memorandums, based on the said report must necessarily fall to the ground along with the Report. In fact the main thrust of
Mr. Palkhiwala 's argument has been against the Mandal Commission Report.
… At the other end of the spectrum stands Mr. Ram Jethmalani, counsel appearing for the
State of Bihar supported by several other counsel. According to him, backward castes in Article
16(4) meant and means only the members of Shudra casts which is located between the three upper castes (Brahmins, Kshatriyas and Vaishyas) and the out-castes (Panchamas) referred to as Scheduled Castes. According to him, Article 16(4) was conceived only for these “middle castes” i.e., castes categorised as shudras in the caste system and for none else. These backward castes have suffered centuries of discrimination and disadvantage, leading to their backwardness. The expression “backward classes” does not refer to any current characteristic of a backward caste save and except paucity or inadequacies of representation in the apparatus of the Government. Poverty is not a necessary criterion of backwardness; in is in fact irrelevant.
The provision for reservation is really a programme of historical compensation. It is neither a measure of economic reform nor a poverty alleviation programme. The learned Counsel further submitted that it is for the State to determine who are the backward classes; it is not a matter for the court. The decision of the Government is not judicially reviewable. Even if reviewable, the scope of judicial review is extremely limited - to the only question whether the exercise of power is a fraud on the Constitution. The learned Counsel referred to certain American decisions to show that even in that country several programmes of affirmative action and compensatory discrimination have been evolved and upheld by courts.

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… What then is a caste? Though caste has been discussed by scholars and jurists, no precise definition of the expression has emerged. A caste is a horizontal segmental division of society spread over a district or a region or the whole State and also sometimes outside it. Homo
Hierarchicus is expected to be the central and substantive element of the caste/system which differentiate it from other social systems. The concept of purity and impurity conceptualises the caste system. There are four essential features of the caste system which maintained its homo hierarchicus character: (1) hierarchy (2) commensality: (3) restrictions on marriage; and
(4) hereditary occupation. Most of the caste are endogamous groups. Intermarriage between two groups is impermissible. But ‘Pratilom’ marriages are not wholly known.
… The above material makes it amply clear that a caste is nothing but a social class - a socially homogeneous class. It is also an occupational grouping, with this difference that its membership is hereditary. One is born into it. Its membership is involuntary. Even if one ceases to follow that occupation, still he remains and continues a member of that group. To repeat, it is a socially and occupationally homogenous class. Endogamy is its main charateristic. Its social status and standing depends upon the nature of the occupation followed by it. Lowlier the occupation, lowlier the social standing of the class in the graded hierarchy. In rural India, occupation-caste nexus is true even today. A few members may have gone to cities or even abroad but when they return - they do, barring a few exceptions they go into the same fold again. It doesn 't matter if he has earned money. He may not follow that particular occupation.
Still, the label remains. His identity is not changed. For the purposes of marriage, death and all other social functions, it is his social class - the caste - that is relevant. It is a matter of common knowledge that an overwhelming majority of doctors, engineers and other highly qualified people who go abroad for higher studies or employment, return to India and marry a girl from their own caste. Even those who are settled abroad come to India in search of brides and bridegrooms for their sons and daughters from among their own caste or community.
As observed by Dr. Ambedkar, a caste is an enclosed class and it was mainly these classes the Constituent Assembly had in mind though not exclusively - while enacting Article 16(4).
Urbanisation has to some extent broken this caste- occupation nexus but not wholly. If one sees around himself, even in towns and cities, a barber by caste continues to do the same job - may be, in a shop (hair dressing saloon). A washerman ordinarily carries on the same job though he may have a laundry of his own. May be some others too carry on the profession of barber or washerman but that does not detract from the fact that in the case of an over-whelming majority, the caste-occupation nexus subsists. In a rural context, of course, a member of barber caste carrying on the occupation of a washerman or vice versa would indeed be a rarity - it is simply not done. There, one is supposed to follow his caste occupation, ordained for him by his birth.
There may be exceptions here and there, but we are concerned with generality of the scene and not with exceptions or aberrations. Lowly occupation results not only in low social position but also in poverty; it generates poverty. ‘Caste-occupation-poverty’ cycle is thus an ever present reality. In rural India, it is strikingly apparent; in urban centers, there may be some dilution.
But since rural India and rural population is still the overwhelmingly predominant fact of life in india, the reality remains. All the decisions since Balaji speak of this 'caste-occupationpoverty ' nexus. The language and emphasis may very but the theme remains the same. This is the stark reality notwithstanding all our protestations and abhorrence and all attempts at weeding out this phenomenon. We are not saying it ought to be encouraged. It should not be.
It must be eradicated. That is the ideal - the goal. But any programme towards betterment of these sections-classes of society and any programme designed to eradicate this evil must recognise this ground reality and attune its programme accordingly. Merely burying our heads in the sand - Ostrich-like - wouldn 't help. One cannot fight his enemy without recognizing him.
The U.S. Supreme Court has said repeatedly, if race be the basis of discrimination - past and present - race must also form the basis of redressal programmes though in our constitutional

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scheme, it is not necessary to go that far. Without a doubt, an extensive restructuring of socioeconomic system is the answer. That is indeed the goal, as would be evident from the preamble and Part IV (Directive Principles). But we are concerned here with a limited aspect of equality emphasised in Article 16(4) - equality of opportunity in public employment and a special provision in favour of backward class of citizens to enable them to achieve it.
… Now, we may turn to the identification of "backward class of citizens". How do you go about it? …There is no set or recognised method. There is no law or other statutory instrument prescribing the methodology. …We must also say that there is no rule of law that a test to be applied for identifying backward classes should be only one and/or uniform. In a vast country like India, it is simply not practicable. If the real object is to discover and locate backwardness, and if such backwardness is found in a caste, it can be treated as backward; if it is found in any other group, section or class, they too can be treated as backward. … Reservation is not being made under Clause (4) in favour of a ‘caste’ but a ‘backward class’. Once a caste satisfies the criteria of backwardness, it becomes a backward class for the purposes of Article 16(4). Even that is not enough. It must be further found that that backward class is not adequately represented in the services of the State. In such a situation, the bar of Clause (2) of Article 16 has no application whatsoever. Similarly, the argument based upon secular nature of the
Constitution is too vague to be accepted. It has been repeatedly held by the U.S. Supreme Court in School desegregation cases that if race be the basis of discrimination, race can equally form the basis of redressal. In any event, in the present context, it is not necessary to go to that extent.
It is sufficient to say that the classification is not on the basis of the caste but on the ground that that caste is found to be a backward class not adequately represented in the services of the
State….
… The other aspect to be considered is whether the backwardness contemplated in Article
16(4) is social backwardness or educational backwardness or whether it is both social and educational backwardness. Since the decision in Balaji, it has been assumed that the backward class of citizens contemplated by Article 16(4) is the same as the socially and educationally backward classes, Scheduled Castes and Scheduled Tribes mentioned in Article 15(4). Though
Article 15(4) came into existence later in 1951 and Article 16(4) does not contain the qualifying words ‘socially and educationally’ preceding the words “backward class of citizens” the same meaning came to be attached to them.
… The S.E.B.Cs. referred to by the impugned Memorandums are undoubtedly 'backward class of citizens ' within the meaning of Article 16(4). 'Means test ' in this discussion signifies imposition of an income limit, for the purpose of excluding persons (from the backward class) whose income is above the said limit. This submission is very often referred to as “the creamy layer” argument. Petitioners submit that some members of the designated backward classes are highly advanced socially as well as economically and educationally. It is submitted that they constitute the forward section of that particular backward class - as forward as any other forward class member - and that they are lapping up all the benefits of reservations meant for that class, without allowing the benefits to reach the truly backward members of that class. These persons are by no means backward and with them a class cannot be treated as backward. … [W]e direct the Government of India to specify the basis of exclusion - whether on the basis of income, extent of holding or otherwise
- of ‘creamy layer’. This shall be done as early as possible, but not exceeding four months. On such specification persons falling within the net of exclusionary rule shall cease to be the members of the Other Backward Classes (covered by the expression 'backward class of citizens ') for the purpose of Article 16(4). The impugned Office Memorandums dated 13th
August, 1990 and 25th September, 1991 shall be implemented subject only to such specification and exclusion of socially advanced persons from the backward classes contemplated by the

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said O.M. In other words, after the expiry of four months from today, the implementation of the said O.M. shall be subject to the exclusion of the ‘creamy layer’ in accordance with the criteria to be specified by the Government of India and not otherwise. …

QUESTION NOS. 6, 7 AND 8
… We must, however, point out that Clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Articles 330 and
332 of the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok Sabha and the State Legislatures in favour of Scheduled Tribes and Scheduled
Castes proportionate to their population, but they are only temporary and special provisions. It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant. Just as every power must be exercised reasonably and fairly, the power conferred by
Clause (4) of Article 16 should also be exercised in a fair manner and within reasonably limits
- and what is more reasonable than to say that reservation under Clause (4) shall not exceed
50% of the appointments or posts, barring certain extra-ordinary situations as explained hereinafter. From this point of view, the 27% reservation provided by the impugned
Memorandums in favour of backward classes is well within the reasonable limits. Together with reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of
49.5%. In this connection, reference may be had to the Full Bench decision of the Andhra
Pradesh High Court in Narayan Rao v. State 1987 A.P. 53, striking down the enhancement of reservation from 25% to 44% for O.B.Cs. The said enhancement had the effect of taking the total reservation under Article 16(4) to 65%.
… From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in Clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.
… We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations ' and 'horizontal reservations '.
The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes
[under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under Clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations that is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article
16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain

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- the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.
It is, however, made clear that the rule of 50% shall be applicable only to reservations proper; they shall not be - indeed cannot be - applicable to exemptions, concessions or relaxations, if any provided to ‘Backward Class of Citizens’ under Article 16(4).
… While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In such situations. It may not be advisable to provide for reservations. For example, technical posts in research and development organisations/departments/institutions, in specialities and super-specialties in medicine, engineering and other such courses in physical sciences and mathematics, in defence services and in the establishments connected therewith. Similarly, in the case of posts at the higher echelons e.g., Professors (in Education), Pilots in Indian Airlines and Air India,
Scientists and Technicians in nuclear and space application, provision for reservation would not be advisable.

QUESTIONS 9, 10 & 11 AND OTHER MISCELLANEOUS QUESTIONS
It is enough to say on this question that there is no particular or special standard of judicial scrutiny in matters arising under Article 16(4) or for that matter, under Article 15(4). The extent and scope of judicial scrutiny depends upon the nature of the subject matter, the nature of the right affected, the character of the legal and constitutional provisions applicable and so on. The acts and orders of the State made under Article 16(4) do not enjoy any particular kind of immunity. At the same time, we must say that court would normally extend due deference to the judgment and discretion of the Executive - a co-equal wing - in these matters. The political executive, drawn as it is from the people and represent as it does the majority will of the people, is presumed to know the conditions and the needs of the people and hence its judgment in matters within its judgment and discretion will be entitled to due weight. More than this, it is neither possible nor desirable to say. It is not necessary to answer the question as framed.
… The object of the clause is to provide a preference in favour of more backward among the “socially and educationally backward classes”. In other words, the expression 'poorer sections ' was meant to refer to those who are socially and economically more backward. The use of the word 'poorer ', in the context, is meant only as a measure of social backwardness. (Of course, the Government is yet to notify which classes among the designated backward classes are more socially backward, i.e., 'poorer sections '). Understood in this sense, the said classification is not and cannot be termed as invalid either constitutionally speaking or in law.
The next question that arises is: what is the meaning and context of the expression 'preference '?
Having regard to the fact the backward classes are sought to be divided into two sub-categories, viz., backward and more backward, the expression 'preference ' must be read down to mean an equitable apportionment of the vacancies reserved (for backward classes) among them. The object evidently could not have been to deprive the 'backward ' altogether from benefit of reservation, which could be the result if word 'preference ' is read literally - if the 'more backward ' take away all the available vacancies/posts reserved for O.B.Cs., none would remain for 'backward ' among the O.B.Cs. It is for this reason that we are inclined to read down the expression to mean an equitable apportionment. This, in our opinion, is the proper and reasonable way of understanding the expression preference in the context in which it occurs.
By giving the above interpretation, we would be effectuating the underlying purpose and the true insertion behind the clause.

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It shall be open to the Government to notify which classes among the several designated other backward classes are more backward for the purposes of this clause and the apportionment of reserved vacancies/posts among 'backward ' and "more backward". On such notification the clause will become operational.

SHOULD THE MATTER GO BACK TO CONSTITUTION BENCH TO GO INTO THE
DEFECTS OF THE MANDAL COMMISSION REPORT
…The first and foremost criticism levelled against the approach and the procedure adopted by Mandal Commission in that the Mandal Commission has adopted caste and caste alone as the basis of its approach throughout. On this count alone, it is argued, the entire report of the
Commission is vitiated. It is pointed out that in its very first letter dated 25th April, 1979
(Appendix VII at page 91-Vol. 2) addressed to all the Ministries and Departments of the Central
Government, the Commission has prescribed the following test for determining the socially and educationally backward classes:
(a) In respect of employees belonging to the Hindu communities
(i) an employee will be deemed to be socially backward if he does not belong to any of the three twice-born (Dvij) 'Varnas ' i.e., he is neither a Brahmin, nor a
Kshatriya/nor a Vaishya; and
(ii) he will be deemed to be educationally backward if neither his father nor his grant father has studied beyond the primary level.
(b) Regarding the non-Hindu Communities
(i) an employee will be deemed to be socially backward if either
(1) he is a convert from those Hindu communities which have been defined as socially backward as per para 4(a)(i) above, or
(2) in case he is not such a convert, his parental income is below the prevalent poverty line, i.e., Rs. 71 per head per month.
(ii) he will be deemed to be educationally backward if neither his father nor his grand father had studied beyond the primary level.

Serious objection is taken to the above criteria. Treating all the Hindus not belonging to three upper castes as socially and educationally backward classes, it is submitted, is faulty to the core. In the case of non-Hindus, the prescription of income limit is said to be arbitrary. The criteria for identifying backward classes must be uniform for the entire population; it cannot vary from religion to religion. This shows, says the counsel, the impropriety and impermissibility of adopting the caste as the basis of identification, since castes exist only in the Hindu religion and not in others. On the basis of the statements made in Chapters IV and
V, it is submitted that the Commission was obsessed by caste and was blind to all other determinants. It is also pointed out that the Survey done by the Commission is cursory, totally inadequate and faulty. According to the petitioners, the survey must be an exhaustive one like the one done by Venkataswamy Commission in Karnataka, which also forms the basis of
Justice Chinnappa Reddy Commission Report. Carrying out the Survey to cover merely two villages and one urban block in each District is not likely to disclose a true picture since it does not represent survey of even one percent of the population. Objection is also taken to use of personal knowledge and also to reliance upon lists of backward classes prepared by State
Governments. It is repeatedly urged that the survey done by the Commission cannot be called a scientific one, which has led to discovery of as many as 3,743 castes and their identification as socially and educationally backward classes. This is a steep increase over Kalelkar
Commission, according to which, the number of S.E.B.Cs. was only 2,733. It is pointed out further that certain castes which obtained less than 11 points on being tested against the criteria

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evolved by the Commission are included among the backward classes. Conversely, certain castes which obtained 11 or more points are yet excluded from the list of backward classes. It is urged that the caste based approach adopted by the Commission has practically divided the nation into a forward section and a backward section. If Scheduled Castes and Scheduled Tribes are also added to the Other Backward Classes, more than 81 per cent of the population gets designated as backward. But for the decision in Balaji, it is submitted, the Commission would certainly have recommended reservation of 52 per cent of the appointments/posts in favour of the backward classes. The Commission was actuated by malice towards upper castes and has submitted an unbalanced, unjust and unconstitutional report, it is argued.
Respondent 's counsel, on the other hand, have refuted each and every contention of the petitioners. According to them, the criteria evolved, the methodology adopted, identification made and lists prepared are all perfectly valid and legal. The Union of India, while justifying the Report, has taken the stand that even if there are any errors or inadequacies in the work and report of the Commission, it is no ground for throwing out the report altogether, more particularly when the Government of India has taken care by 'marrying ' the Mandal lists with the State lists. If any errors are brought to the notice of the Government, Sri Parasaran says, the
Government will certainly look into them and rectify them, if satisfied about the error.
… [I]dentifying the impugned Office Memorandums with the Mandal Commission report is basically erroneous. Such an identification is bound to lead one into confusion. He would be missing the wood for the trees. Instead of concentrating on the real issues, he would deviate into irrelevance and imbalance. Mandal Commission report may have led to the passing of the impugned Office Memorandum dated 13th August, 1990; it may have acted as the catalytic agent in bringing into existence the reservation in favour of O.B.Cs. (loosely referred to as
SEBCs. in the O.M.) but the Office Memorandum dated 13th August, 1990 doesn 't incorporate the Mandal lists of O.B.Cs. as such. It incorporates, in truth and effect, the State lists as explained hereinabove. In a social measure like the impugned one, the court must give due regard to the judgment of the Executive, a co-equal wing of the State and approach the measure in the spirit in which it is conceived. …
… We may summarise our answers to the various questions dealt with and answered hereinabove: (1)(a) It is not necessary that the 'provision ' under Article 16(4) should necessarily be made by the Parliament/Legislature. Such a provision can be made by the Executive also. Local bodies, Statutory Corporations and other instrumentalities of the State falling under Article 12 of the Constitution are themselves competent to make such a provision, if so advised….
(b) An executive order making a provision under Article 16(4) is enforceable the moment it is made and issued. …

(2)(a) Clause (4) of Article 16 is not an exception to Clause (1). It is an instance and an illustration of the classification inherent in Clause (1). …
(b) Article 16(4) is exhaustive of the subject of reservation in favour of backward class of citizens, as explained in this judgment. …
(c) Reservations can also be provided under Clause (1) of Article 16. It is not confined to extending of preferences, concessions or exemptions alone. These reservations, if any, made under Clause (1) have to be so adjusted and implemented as not to exceed the level of representation prescribed for 'backward class of citizens ' - as explained in this Judgment. …

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(3)(a) A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons, are socially backward. They too represent backward social collectives for the purposes of Article 16(4). …
(b) Neither the Constitution nor the law prescribes the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. It can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can certainly be done with reference to castes among, and along with, other occupational groups, classes and sections of people. One can start the process either with the occupational groups or with castes or with some other groups. Thus one can start the process with the castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfies the criteria. If it does - what emerges is a “backward class of citizens” within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming majority of the country 's population, one can well begin with it and then go to other groups, sections and classes. …
(c) It is not necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Castes/Scheduled Tribes. …
(d) 'Creamy layer ' can be, and must be excluded. …
(e) It is not correct to say that the backward class of citizens contemplated in Article 16(4) is the same as the socially and educationally backward classes referred to in Article 15(4). It is much wider. The accent in Article 16(4) is on social backwardness. Of course, social, educational and economic backwardness are closely inter-twined in the Indian context. …
(f) The adequacy of representation of a particular class in the services under the State is a matter within the subjective satisfaction of the appropriate Government. The judicial scrutiny in that behalf is the same as in other matters within the subjective satisfaction of an authority.

(4)(a) A backward class of citizens cannot be identified only and exclusively with reference to economic criteria. …
(b) It is, of course, permissible for the Government or other authority to identify a backward class of citizens on the basis of occupation-cum-income, without reference to caste, if it is so advised. …
(5) There is no constitutional bar to classify the backward classes of citizens into backward and more backward categories. …
(6)(a)&(b) The reservations contemplated in Clause (4) of Article 16 should not exceed
50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main-stream of national life and in view of the conditions peculiar to and characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out. …

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(c) The rule of 50% should be applied to each year. It cannot be related to the total strength of the class, category, service or cadre, as the case may be. …
(d) Devadasan was wrongly decided and is accordingly over-ruled to the extent it is inconsistent with this judgment. …
(7) Article 16(4) does not permit provision for reservations in the matter of promotion. This rule shall, however, have only prospective operation and shall not affect the promotions already made, whether made on regular basis or on any other basis. We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. If is further directed that wherever reservations are already provided in the matter of promotion - be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of 'State ' in Article 12 - such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of backward class of citizens in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it do so. … It would not be impermissible for the State to extent concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration. …
(8) While the rule of reservation cannot be called anti-meritarion, there are certain services and posts to which it may not be advisable to apply the rule of reservation. …
(9) The distinction made in the impugned Office Memorandum dated 25th September, 1991 between ‘poorer sections’ and others among the backward classes is not invalid, if the classification is understood and operated as based upon relative backwardness among the several classes identified as other Backward classes, as explained in … this Judgment … The reservation of 10% of the posts in favour of’ ‘other economically backward sections of the people who are not covered by any of the existing schemes of the reservation’ made in the impugned office memorandum dated 25.9.1991 is constitutionally invalid and is accordingly struck down. …
(12) There is no particular or special standard of judicial scrutiny applicable to matters arising under Article 16(4). …
(13) The Government of India and the State Governments have the power to, and ought to, create a permanent mechanism - in the nature of a Commission - for examining requests of inclusion and complaints of over-inclusion or non-inclusion in the list of O.B.Cs. and to advise the Government, which advice shall ordinarily be binding upon the Government. Where, however, the Government does not accept the advice, it must record its reasons therefor.

JUSTICE THOMMEN (for himself, DISSENTING) [Justices Singh & Sahai CONCURRING but wrote their separate opinions]
… The 'indicators ' or 'criteria ' adopted in the Mandal Report are broadly grouped as social, educational and economic on the basis of castes/classes. The Commission has identified classes with castes and backwardness with particular castes. Castes which are socially, educationally and economically backward are characterised as backward classes entitled to the benefit of reservation. Persons are grouped on the basis of caste either because they are members of it by reason of their being Hindus or because they were members of it in the past prior to their conversion to other religions. Identification of backwardness is thus made with reference to the present or past caste affiliations of the people. … The Report has thus treated all persons who

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belong, or who had once belonged, to what had been regarded as untouchable or other traditionally backward caste or communities or who belong to certain low occupations as socially, educationally and economically backward.
… The fundamental question is, what is the raison d 'etre of reservation and what are its limits. The Constitution permits the State to adopt such affirmative action as it deems necessary to uplift the backward classes of citizens to levels of equality with the rest of our countrymen.
The backward classes of citizens have been in the past denied access to Government services on account of their inability to compete effectively in open selections on the basis of merits. It is, therefore, open to the Government to reserve a certain number of seats in places of learning and public services in favour of the Scheduled Castes and Scheduled Tribes and other backward classes to the exclusion of all others, irrespective of merits. The impugned Government orders, have made reservation by setting aside quotas in Government services exclusively for backward classes of candidates.
… Referring to the concept of equality of opportunity in public employment, as embodied in Article 10 of the Draft Constitution, which finally emerged as Article 16 of the Constitution, and the conflicting claims of various communities for representation in public administration,
Dr. Ambedkar emphatically declared that reservation should be confined to ‘a minority of seats’, lest the very concept of equality should be destroyed…
… What the Constitution permits is the adoption of suitable and appropriate measures to correct the continuing evil effects of prior discrimination. Over-inclusiveness in such measures by unduly widening the net of reservation to unjustifiably protect the ill-deserved at the expense of the others would result in invidious discrimination offending the Constitutional objective.
Benign classification for affirmative action by reservation must stay strictly within the narrow bounds of remedial actions. Any such programme must be consistent with the fundamental objective of equality. Classes of people saddled with disabilities rooted in history of purposeful unequal treatment and consequently relegated to social, educational, economic and political powerlessness particularly qualify to demand the extraordinary and special protection of reservation. Reservation is meant to remedy the handicap of prior discrimination impeding the access of classes of people to public administration. It is for the State to determine whether the evil effects of inequities stemming from prior discrimination against classes of people have resulted in their being reduced to positions of backwardness and consequent under representation in public administration. Reservation is a remedy or a cure for the ill effects of historical discrimination. … Reservation is not an end in itself. It is a means to achieve equality. The policy of reservation adopted to achieve that end must, therefore, be consistent with the objective in view. Reservation must not outlast its constitutional object, and must not allow a vested interest to develop and perpetuate itself. There will be no need for reservation or preferential treatment once equality is achieved. Achievement and preservation of equality for all classes of people, irrespective of their birth, creed, faith or language is one on the noble ends to which the
Constitution is dedicated. Every reservation founded on benign discrimination, and justifiably adopted to achieve the constitutional mandate of equality, must necessarily be a transient passage to that end. It is temporary in concept, limited in duration, conditional in application and specific in object. Reservation must contain within itself the seeds of its termination. Any attempt to perpetuate reservation and upset the constitutional mandate of equality is destructive of liberty and fraternity and all the basic values enshrined in the Constitution. A balance has to be maintained between the competing values and the rival claims and interests so as to achieve equality and freedom for all.

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The makers of the Constitution were fully conscious of the unfortunate position of the
Scheduled Castes and Scheduled Tribes. To them equality, liberty and fraternity are but a dream; an ideal guaranteed by the law, but far too distant to reach; far too illusory to touch.
These backward people and others in like positions of helplessness are the favoured children of the Constitution. It is for them that ameliorative and remedial measures are adopted to achieve the end of equality. To permit those who are not intended to be so specially protected to compete for reservation is to dilute the protection and defeat the very constitutional aim.
The victims of prior injustice are the special favourites of the laws. Their plight is a shameful scar on the national conscience. It is a constitutional command that prompt measures are adopted by the State for the promotion of these unfortunate classes of people specially to positions of comparative enlightement, culture, knowledge, influence, affluence and prestige so as to place them on levels of equality with the more fortunate of our countrymen.
Reservation must one day become unnecessary and a relic of an unfortunate past. Every such action must be a transient self-liquidating programme. That is the hope and dream cherished by the Constitution Makers and that is the end to which the State has to address itself in making special provisions for the chosen classes of people for special constitutional protection, so that "persons will be regarded as persons, and discrimination of the type we address today will be an ugly feature of history that is instructive but that is behind us"; Per
Justice T. Marshall, Regents of the University of California v. Allan Bakke 438 US 265, 57 L
Ed. 2d 750. …
… Historically, backwardness has been the curse of people must of whom are characterised as the Scheduled Castes and the Scheduled Tribes. These are not castes as such, but classes of people composed of castes, races or tribes or tribal communities or parts or groups thereof and classified as such by means of presidential notifications owing to their extreme backwardness and other disadvantages (see Articles 341 and 342).
… Any identification made for the purpose of Article 15 or Article 16 solely with reference to caste or religion, and without regard to the real issue of backwardness, will be an impermissible classification resulting in invidious reverse discrimination. The fact that identification of backwardness may involve a reference to religion, race, caste, occupation, place of residence or the like in respect of classes of people does not mean that any one of these factors is the sole or the dominant or the indispensable criterion. Backwardness may be the result of a combination of two or more of these factors. Persons of a particular place or occupation may have been enslaved as bonded labourers, or otherwise held in serfdom and exploited and discriminated against, and may have over a period of time degenerated to such social and educational backwardness as to qualify for the special protection of the Constitution.
No matter to what caste or community or religion they belonged or from what place they came, their present plight stemming from prior inequities and continuing over a period of time and thus placing them in a state of total helplessness qualifies them for the special protection of reservation. Historically, backwardness, as stated above, has been most acute at the lowest levels of our society and it has been invariably identified with low castes and demeaning occupations. But if, as a matter of fact, classes of citizens of higher castes have suffered continuously by reason of discrimination or exploitation by persons having authority and power over them and have consequently been reduced to poverty, ignorance and isolation resulting in social and educational backwardness, whatever be the caste of the exploiters or of the victims, the constitutional protection has to be extended to such classes of victims. They must be helped out of their present plight resulting from prior or continuing discrimination or exploitation.

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Proof of their backwardness is not in their caste or religion, but in their poverty, ignorance and consequential disabilities.
… To contend that caste, and caste alone, is the criterion identification of backwardness is to disregard the innumerable reasons for backwardness. At the same time, to ignore caste as a factor in identifying backwardness for the purpose of reservation is to shut one 's eyes to the realities and ignore the cause of injustice from which large sections of people in this country have for generations suffered and still suffer, namely, naked exploitation and discrimination by those in positions of power and affluence. The realities of life in India militate against total exclusion of consideration based on caste or total concentration on caste in identifying backwardness caused by past inequities.
The Constitution is neither caste-blind nor caste-prejudiced nor caste-overcharged, but fully alive to caste as one of the relevant criteria to be reckoned in the process of identification of backward classes of citizens. India is not a nation of castes but of people with roots in divergent castes. What the Constitution seeks to identify is not the backward caste, but the backward class of citizens who may in many cases be partly or in some cases predominantly or even solely identified with particular caste.
The question is not whether the Constitution is caste-blind or caste prejudiced; the question really is who are the backward classes of citizens intended to be protected by reservation under
Article 15 or Article 16. If reservation is limited solely to the Scheduled Castes and the
Scheduled Tribes and other comparably backward classes of citizens, as it must be under the
Constitution, then the Harijans, the Girijans, the Adivasis, the Dalits, and other like backward classes of citizens, once known as the "untouchables" or the "outcastes" or the "depressed classes" by reason of their "low" birth and "demeaning" occupation, or any other class of citizens afflicted by like degree of degeneration deprivation caused by prior and continuing discrimination, exploitation, neglect, poverty, disease, isolation, bondage and humiliation, whatever be their caste, religion or place of origin, will alone qualify for reservation. Call them a class or a caste or a race or a tribe or whatever nomenclature is appropriate, they are the only legitimately intended beneficiaries of reservation. Their roots of origin in the lowest of the low segments of society; their affiliation with what is traditionally regarded as demeaning occupations; their humiliating and inescapable segregation and chronic isolation from the rest of the population; their social and educational deprivation and helplessness; their abysmal poverty and degenerating backwardness; all this and more most humiliatingly branded them in the past as "outcastes" or "untouchables" or "depressed classes" or whatever other nomenclature one might ascribe to describe them. It is their present plight of continuing poverty and backwardness stemming from identified historical discrimination, whatever be the religion or faith they presently profess, that the Constitution entitles them to the special protection of reservation. The fact that the search to identify backwardness for the purpose of reservation will invariably lead one to these so called outcastes or the lowest of the low castes or untouchables does not vitiate identification so long as what is sought to be identified is not caste but backwardness.
Poverty by itself is not the test of backwardness, for if it were so, most people in this country would be in a position to claim reservation… Reservation for all would be reservation for none, and that would be an ideal condition if affluence, and not poverty, was its basis. But unfortunately the vast majority of our people are not blessed by affluence but afflicted by poverty. Poverty is a disgrace to any nation and the resultant backwardness is a shame. But the
Constitution envisages reservation for those persons who are backward because of identified prior victimisation and the consequential poverty. Poverty invariably results in social and educational backwardness. In all such cases the question to be asked, for the purpose of reservation, is whether such poverty is the result of identified historical or continuing

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discrimination. No matter what caused the discrimination and exploitation; the question is, did such inequity and injustice result in poverty and backwardness.
… Any affirmative action must be supported by a valid classification and must have a rational nexus with the object of redressing backwardness. It is much more so where such programmes totally exclude from consideration persons outside the chosen classes without regard to merits because of the set aside quotas. It does not matter whether Clause (4) of Article
16, like Clause (4) of Article 15, is seen as a proviso or an exception or, in the words of Mathew,
J., a legislative device to emphasise the 'extent to which equality of opportunity could be carried, viz., even up to the point of making reservation '. State of Kerala v. N.M. Thomas. N.M.
Thomas apart, this Court has generally treated Clause (4) as an exception or a proviso to the general rule of equality enshrined in Article 16(1). … Call it what one will - an exception or proviso or what - and semantics apart, reservation by reason of its exclusion of the generality of candidates competing solely on merits must be narrowly tailored and strictly construed so as to be consistent with the fundamental constitutional objectives. Clause (4), seen in whatever colour, is a very powerful and potent weapon which causes lasting ill effects and damage unless justly and appropriately used. It is not a remedy for all kinds of disadvantages and disabilities and for all classes of people. It is a special and powerful weapon to wield which with less than the very special care and caution and otherwise than in the most exceptional situations, peculiar to extreme cases of backwardness, that the Constitution envisages is to give rise to invidious reverse discrimination exceeding the strict bounds of Article 16(4) and to create hateful casteprejudices and divisions between classes of people.
… Dr. Ambedkar was unequivocal when he declared that reservation must be confined to a minority of the available posts, lest it should destory the very concept of equality and thus undermine democracy. Any excessive reservation or any unnecessarily prolonged reservation will result in invidious discrimination. What exactly is the total percentage of reservation at a given time is a matter for the State to decide, dependent on the need of the time. But in no case shall reservation overstep the strict boundaries of minority of seats or posts or outlast the reason for it. It must remain well below 50% of available seats or posts. Every reservation must be made with a view to its early termination on the successful accomplishment of its object.
… It is wrong and unwise to see affirmative action merely as a penance or an atonement for the sins of past discrimination. It is not retributive justice on wrong doers. It is corrective and remedial justice to compensate the victims of prior injustice. It is not merely focused on reparation for past inequities. It is a forward looking balancing act of reformative social engineering; an architecture of a better future of harmonious relationship amongst all classes of citizens; an equitable redistribution of community resources with a view to the greatest happiness of the greatest number of people.
… Any attempt to view affirmative action as merely retributes or to unduly over-emphasis its compensatory aspect and widen the scope of reservation beyond minority of posts or seats is to practice excessive and invidious reverse discrimination. To project particular castes as legitimate claimants for such compensatory discrimination, without due regard to the nature and degree of their backwardness, is to invite the public wrath of stigmatising prejudice against them, thereby promoting caste hatred and separatism. Any such stereotyped and stigmatised approach to this soul searching sociological problem is to distort the fairness of the political and constitutional process of adjustment and readjustment amongst classes of people in our country. Page 189 of 610

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UNIT 5 – FUNDAMENTAL FREEDOMS (ARTICLE 19)
POLITICAL SPEECH
ROMESH THAPAR V. STATE OF MADRAS
AIR 1950 SC 124
Decided On: May 26, 1950
BENCH – CHIEF JUSTICE H. L. KANIA, S. FAZL ALI, PATANJALI SASTRI, M. C. MAHAJAN,
MUKHERJEA & DAS

CHIEF JUSTICE KANIA (for himself; Justices Sastri, Mahajan, Mukherjea & Das CONCURRING)
The petitioner is the printer, publisher and editor of a recently started weekly journal in
English called Cross Roads printed and published in Bombay. The Government of Madras, the respondents herein, in exercise of their powers under section 9(1-A) of the Madras
Maintenance of Public Order Act, 1949 (hereinafter referred to as the impugned Act) purported to issue an order No. MS. 1333 dated 1st March, 1950, whereby they imposed a ban upon the entry and circulation of the journal in that State. The order was published in the Fort
St. George Gazette and the notification ran as follows:"In exercise of the powers conferred by section 9(1-A) of the Madras Maintenance of Public Order, Act, 1949 (Madras Act XXIII of 1949). His Excellency the
Governor of Madras, being satisfied that for the purpose of securing the public safety and the maintenance of public order, it is necessary so to do, hereby prohibits, with effect on and from the date of publication of this order in the Fort
St. George Gazette the entry into or the circulation, sale or distribution in the State of Madras or any part thereof of the newspaper entitled Cross Roads an English weekly published at Bombay."

The petitioner claims that the said order contravenes the fundamental right of the petitioner to freedom of speech and expression conferred on him by article 19(1)(a) of the Constitution and he challenges the validity of section 9(1-A) of the impugned Act as being void under article 13(1) of the Constitution by reason of its being inconsistent with his fundamental right aforesaid. The Advocate-General of Madras appearing on behalf of the respondents raised a preliminary objection, not indeed to the jurisdiction of this Court to entertain the application under article 32, but to the petitioner resorting to this Court directly for such relief in the first instance. He contended that, as a matter of orderly procedure, the petitioner should first resort to the High Court at Madras which under article 226 of the Constitution has concurrent jurisdiction to deal with the matter. He cited criminal revision petitions under section 435 of the Criminal Procedure Code, applications for bail and applications for transfer under section 24 of the civil Procedure Code as instances where, concurrent jurisdiction having been given in certain matters to the High Court and the Court of a lower grade, a rule of practice has been established that a party should proceed first to the latter Court for relief before resorting to the High Court. … We are of opinion that neither the instances mentioned by the learned Advocate-General nor the American decisions referred to by him are really analogous to the remedy afforded by article 32 of the Indian Constitution. That article does not merely confer power on this Court, as article 226 does on the High Court, to issue certain writs for the enforcement of the rights conferred by Part III or for any other purpose, as part of its general jurisdiction. In that case it would have been more appropriately placed among articles 131 to 139 which define that jurisdiction. Article 32 provides a "guaranteed" remedy

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for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part III. This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights. No similar provision is to be found in the Constitution of the United States and we do not consider that the American decisions are in point.
Turning now to the merits, there can be no doubt that freedom of speech and expression includes freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation. "Liberty of circulation is as essential to that freedom as the liberty of publication.
Indeed, without circulation the publication would be of little value". Ex parte Jackson 96 U.S.
727. See also Lovell v. City of Griffin 303 U.S. 444. It is therefore perfectly clear that the order of the Government of Madras would be a violation of the petitioner 's fundamental right under article 19(1)(a), unless section 9(1-A) of the impugned Act under which it was made is saved by the reservations mentioned in clause (2) of article 19 which (omitting immaterial words regarding laws relating to libel, slander, etc., with which we are not concerned in this case) saves the operation of any "existing law in so far as it relates to any matter which undermines the security of, or tends to overthrow, the State." The question accordingly arises whether the impugned Act, in so far as it purports by section 9(1-A) of to authorise the Provincial
Government
"for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry into or the circulation, sale or distribution in the
Province of Madras or any part thereof of any document or class of documents" is a "law relating to any matter which undermines the security of or tends to overthrow the State."

The impugned Act was passed by the Provincial Legislature in exercise of the power conferred upon it by section 100 of the Government of India Act, 1935, read with Entry 1 of
List II of the Seventh Schedule to that Act, which comprises among other matters, "public order." Now "public order" is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regulations enforced by the government which they have established. Although section 9(1A) refers to "securing the public safety" and "the maintenance of public order" as distinct purposes, it must be taken that "public safety" is used as a part of the wider concept of public order, for, if public safety were intended to signify any matter distinct from and outside the content of the expression "public order," it would not have been competent for the Madras
Legislature to enact the provision so far as it relates to public safety. This indeed was not disputed on behalf of the respondents. But it was urged that the expression "public safety" in the impugned Act, which is a statute relating to law and order, means the security of the
Province, and, therefore, "the security of the State" within the meaning of article 19(2) as "the
State" has been defined in article 12 as including, among other things, the Government and the Legislature of each of the erstwhile Provinces. Much reliance was placed in support of this view on Rex v. Wormwood Scrubbs Prison L.R. [1920] 2 K.B. 305, where it was held that the phrase "for securing the public safety and the defence of the realm" in section 1 of the Defence of the Realm (Consolidation) Act, 1914, was not limited to securing the country against a foreign foe but included also protection against internal disorder such as a rebellion. The decision is not of much assistance to the respondents as the context in which the words "public safety" occurred in that Act showed unmistakably that the security of the State was the aim in view. Our attention has not been drawn to any definition of the expression "public safety," nor does it appear that the words have acquired any technical signification as words of art.
"Public safety" ordinarily means security of the public or their freedom from danger. In that sense, anything which tends to prevent dangers to public health may also be regarded as

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securing public safety. The meaning of the expression must, however, vary according to the context. In the classification of offence in the Indian Penal Code, for instance, Chapter XIV enumerates the "offences affecting the public health, safety, convenience, decency, and, morals" and it includes rash driving or riding on a public way (section 279) and rash navigation of a vessel (section 280), among others, as offences against public safety, while Chapter VI lists waging war against the Queen (section 121) sedition (section 124-A) etc. as "offences against the State", because they are calculated to undermine or the security of the State, and
Chapter VIII defines "offences against the public tranquillity" which include unlawful assembly (section 141) rioting (section 146), promoting enmity between classes (section 153A), affray (section 159) etc. Although in the context of a statute relating to law and order
"securing public safety" may not include the securing of public health, it may well mean securing the public against rash driving on a public way and the like, and not necessarily the security of the State. It was said that an enactment which provided for drastic remedies like preventive detention and ban on newspapers must be taken to relate to matters affecting the security of the State rather than trivial offences lime rash driving or an affray. But whatever ends the impugned Act may have been intended to subserve, and whatever aims its framers may have had in view, its application and scope cannot, in the absence of limiting words in the statute itself, be restricted to those aggravated forms of prejudicial activity which are calculated to endanger the security of the State. Nor is there any guarantee that those authorised to exercise the powers under the Act will in using them discriminate between those who act prejudicial to the security of the State and those who do not.
The Government of India Act, 1935, nowhere used the expression "security of the State" though it made provision under section 57 for dealing with crimes of violence intended to overthrow the Government. While the administration of law and order including the maintenance of public order was placed in charge of a Minister elected by the people, the
Governor was entrusted with the responsibility of combating the operations of persons who
"endangered the peace or tranquillity of the Province" by committing or attempting to commit
"crimes of violence intended to overthrow the Government." Similarly, article 352 of the
Constitution empowers the President to make a Proclamation of Emergency when he is satisfied that the "security of India or any part of the territory thereof is threatened by war or by external aggression or by internal disturbance." These provisions recognise that disturbance of public peace or tranquillity may assume such grave proportions as to threaten the security of the State.
As Stephen in his Criminal Law of England [Vol. II, p. 242], observes:
"Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other and are not capable of being marked off by perfectly defined boundaries. All of them have in common one feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it."

Though all these offences thus involve disturbances of public tranquillity and are in theory offences against public order, the difference between them being only a difference of degree, yet for the purpose of grading the punishment to be inflicted in respect of them they may be classified into different minor categories as has been done by the Indian Penal Code. Similarly, the Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in article 19(1), has placed in a distinct category those offences against public order which aim at undermining the security of the
State or overthrowing it, and made their prevention the sole justification for legislative abridgement of freedom of speech and expression, that is to say, nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression, while the right of peaceable assembly "sub-clause (b)"

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and the right of association "sub-clause (c)" may be restricted under clauses (3) and (4) of article 19 in the interests of "public order", which in those clauses includes the security of the
State. The differentiation is also noticeable in Entry 3 of List III (Concurrent List) of the
Seventh Schedule, which refers to the "security of a State" and "maintenance of public order" as distinct subjects of legislation. The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differences in kind.
It is also worthy of note that the word "sedition" which occurred in article 13(2) of the
Draft Constitution prepared by the Drafting Committee was deleted before the article was finally passed as article 19(2). In this connection it may be recalled that the Federal Court had, in defining sedition in Niharendu Dutt Majumdar v. King Emperor [1942] F.C.R. 38, held that
"the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that is their intention or tendency", but the Privy Council overruled that decision and emphatically reaffirmed the view expressed in Tilak 's case 22 Bom. 112, to the effect that "the offence consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small" - King Emperor v. Sadashiv
Narayan Bhalerao L.R. 74 I.A. 89.
Deletion of the word "sedition" from the draft article 13(2), therefore, shows that criticism of Government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State. It is also significant that the corresponding Irish formula of "undermining the public order or the authority of the State"
[article 40(6)(i) of the Constitution of Eire, 1937] did not apparently find favour with the framers of the Indian Constitution. Thus, very narrow and stringent limits have been set to permissible legislative abridgment of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible. A freedom of such amplitude might involve risk of abuse. But the framers of the Constitution may well have reflected, with Madison who was "the leading spirit in the preparation of the
First Amendment of the Federal Constitution," that "it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits”: [Quoted in Near v. Minnesotta 282 U.S. 607, 717-8.
We are therefore of opinion that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. It follows that section 9(1-A) which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause (2), and is therefore void and unconstitutional.
It was, however, argued that section 9(1-A) could not be considered wholly void, as, under article 13(1), an existing law inconsistent with a fundamental right is void only to the extent of the inconsistency and no more. In so far as the securing of the public safety or the maintenance of public order would include the security of the State, the impugned provision, as applied to the latter purpose, was covered by clause (2) of article 19 and must, it was said, be held to be valid. We are unable to accede to this contention. Where a law purports to

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authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as if may be applied within the constitutional limits, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void. In other words, clause (2) of article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment, which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent.
The application is therefore allowed and the order of the respondents prohibiting the entry and circulation of the petitioner 's journal in the State of Madras is hereby quashed.

BRIJ BHUSHAN V. STATE OF DELHI
AIR 1950 SC 129
Decided On: May 26, 1950
BENCH – CHIEF JUSTICE H. L. KANIA, S. FAZL ALI, PATANJALI SASTRI, M. C. MAHAJAN,
MUKHERJEA & DAS

JUSTICE SASTRI (for himself; Chief Justice Kania, Justices, Mahajan, Mukherjea & Das
CONCURRING)
This is an application under article 32 of the Constitution praying for the issue of writs of certiorari and prohibition to the respondent, the Chief Commissioner of Delhi, with a view to examine the legality of and quash the order made by him in regard to an English weekly of
Delhi called the Organizer of which the first applicant is the printer and publisher, and the second is the editor. On 2nd March, 1950, the respondent, in exercise of powers conferred on him by section 7(1)(c) of the East Punjab Public Safety Act, 1949, which has been extended to the Delhi Province and is hereinafter referred to as the impugned Act, issued the following order :
"Whereas the Chief Commissioner, Delhi, is satisfied that Organizer, an English weekly of Delhi, has been publishing highly objectionable matter constituting a threat of public law and order and that action as is hereinafter mentioned is necessary for the purpose of preventing or combating activities prejudicial to the public safety or the maintenance of public order.
Now therefore in exercise of the powers conferred by section 7(1)(c) of the East
Punjab Public Safety Act, 1949, as extended to the Delhi Province, I, Shankar
Prasad, Chief Commissioner, Delhi, do by this order require you Shri Brij
Bhushan, Printer and Publisher and Shri K. R. Halkani, Editor of the aforesaid paper to submit for scrutiny, in duplicate, before publication, till further orders, all communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by the news agencies, viz., Press Trust of India, United Press of India and United Press of America to the Provincial Press Officer, or in his absence, to Superintendent of
Press Branch at his office at 5, Alipur Road, Civil Lines, Delhi, between the hours
10 a.m. and 5 p.m. on working days."

The only point argued before us relates to the constitutional validity of section 7(1)(c) of the impugned Act which, as appears from its preamble, was passed "to provide special measures to ensure public safety and maintenance of public order." Section 7(1)(c) under which the aforesaid order purports to have been made reads (so far as material here) as follows :-

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"The Provincial Government or any authority authorised by it in this behalf if satisfied that such action is necessary for the purpose of preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a printer, publisher or editor require that any matter relating to a particular subject or class of subjects shall before publication be submitted for scrutiny."

The petitioners claim that this provision infringes the fundamental right to the freedom of speech and expression conferred upon them by article 19(1)(a) of the Constitution inasmuch as it authorises the imposition of a restriction on the publication of the journal which is not justified under clause (2) of that article.
There can be little doubt that the imposition of pre-censorship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19(1)(a). As pointed out by Blackstone in his Commentaries
"the liberty of the press consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press [Blackstone 's
Commentaries, Vol. IV, pp. 151, 152].

The only question therefore is whether section 7(1)(c) which authorises the imposition of such a restriction falls within the reservation of clause (2) of article 19.
As this question turns on considerations which are essentially the same as those on which our decision in Petition No. XVI of 1950 [Romesh Thappar v. The State of Madras] was based, our judgment in that case concludes the present case also. Accordingly, for the reasons indicated in that judgment, we allow this petition and hereby quash the impugned order of the
Chief Commissioner, Delhi, dated the 2nd March, 1950.

FREEDOM OF THE PRESS
BENNETT COLEMAN & CO. V. UNION OF INDIA
AIR 1973 SC 106, (1972) 2 SCC 788
Decided On: May 26, 1950
BENCH – CHIEF JUSTICE SIKRI, JUSTICES A. N. RAY, P. JAGANMOHAN REDDY, K. K. MATHEW
& M. H. BEG

JUSTICE RAY (for the Chief Justice, Justice Reddy & himself; MAJORITY OPINION)
These petitions challenge the Import Policy for Newsprint for the year April 1972 to March
1973. The Newsprint Policy is impeached as an infringement of fundamental rights to freedom of speech and expression in Article 19(1)(a) and right to equality in Article 14 of the
Constitution. Some provisions of the Newsprint Control Order 1962 are challenged as violative of Article 19(1)(a) and Article 14 of the Constitution.
The import of newsprint is dealt with by Import Control Order, 1955 (referred to as the
1955 Import Order). The 1955 Import Order is made in exercise of powers conferred by
Sections 3 and 4A of the Imports and Exports Control Act, 1947 (referred to as the 1947 Act).
Section 3 of the 1947 Act, speaks of powers of the Central Government to prohibit, restrict or otherwise control imports and exports. Section 4A of the 1947 Act contemplates issue or renewal of licences under the 1947 Act for imports and exports. Item 44 in Part V of Schedule
I of the 1955 Import Order relates to newsprint. Newsprint is described as white printing paper

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(including water lined newsprint which contained mechanical wood pulp amounting to not less than 70% of the fibre content). The import of newsprint is restricted under the 1955 Import
Order. This restriction of newsprint import is also challenged because it infringes Article
19(1)(a). It is said that the restriction of import is not a reasonable restriction within the ambit of Article 19(2).
The Newsprint Control Order 1962 (referred to as the 1962 Newsprint Order) is made in exercise of powers conferred by Section 3 of the Essential Commodities Act 1955 (referred to as the 1955 Act). Section 3 of the 1955 Act enacts that if the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supply of essential commodities or for securing their equitable distribution and availability at fair prices, it may, by order, provide for regulating or prohibiting production, supply and distribution and trade and commerce therein. Section 2 of the 1955 Act defines "essential commodity". Paper including newsprint, paper board and straw board is defined in Section 2(a)(vii) of the 1955
Act to be an essential commodity.
The 1962 Newsprint Order in Clause 3 mentions restrictions on acquisition, sale and consumption of newsprint. Sub-clause 3 of Clause 3 of the 1962 Newsprint Order states that no consumer of newsprint shall, in any licensing period, consume or use newsprint in excess of the quantity authorised by the Controller from time to time. Sub-clause 3A of Clause 3 of the 1962 Newsprint Order states that no consumer of newsprint, other than a publisher of text books or books of general interest, shall use any kind of paper other than newsprint except with the permission, in writing, of the Controller. Sub-clause 5 of Clause 3 of the 1962 Newsprint
Order states that in issuing an authorisation under this clause, the Controller shall have regard to the principles laid down in the Import Control Policy with respect of newsprint announced by the Central Government from time to time. Sub-clauses 3 and 3A of Clause 3 of the 1962
Newsprint Order are challenged in these petitions on the ground that these clauses affect the volume of circulation, the size and growth of a newspaper and thereby directly infringe Article
19(1)(a) of the Constitution. The restrictions mentioned in these sub-clauses of Clause 3 of the
1962 Newsprint Order are also said to be not reasonable restrictions within the ambit of Article
19(2) of the Constitution.
… The Newsprint Policy of 1972-73 referred to as the Newsprint Policy deals with white printing paper (including water lined newsprint which contained mechanical wood pulp amounting to not less than 70 per cent of the fibre content). Licences are issued for newsprint.
The validity of licences is for 12 months. The Newsprint Policy defines "common ownership unit" to mean newspaper establishment or concern owning two or more news interest newspapers including at least one daily irrespective of the center of publication and language of such newspapers. Four features of the Newsprint Policy are called in question. These restrictions imposed by the Newsprint Policy are said to infringe rights of freedom of speech and expression guaranteed in Article 19(1)(a) of the Constitution. First, no new paper or new edition can be started by a common ownership Unit even within the authorised quota of newsprint. Secondly, there is a limitation on the maximum number of pages to 10. No adjustment is permitted between circulation and the pages so as to increase the pages. Thirdly, no inter-changeability is permitted between different papers of common ownership unit or different editions of the same paper. Fourthly, allowance of 20 per cent increase in page level up to a maximum of 10 has been given to newspapers with less than 10 pages. It is said that the objectionable and irrational feature of the Newsprint Policy is that a big daily newspaper is prohibited and prevented from increasing the number of pages, page area and periodicity by reducing circulation to meet its requirement even within its admissible quota. In the Newsprint
Policy for the year 1971-72 and the earlier periods the newspapers and periodicals were permitted to increase the number of pages, page area and periodicity by reducing circulation.

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The current policy prohibits the same. The restrictions are, therefore, said to be irrational, arbitrary and unreasonable. Big daily newspapers having large circulation contend that this discrimination is bound to have adverse effects on the big daily newspapers.
… The Additional Solicitor General raised two pleas in demurrer. First, it was said that the petitioners were companies and therefore, they could not invoke fundamental rights. Secondly, it was said that Article 358 of the Constitution is a bar to any challenge by the petitioners of violation of fundamental rights.
This Court in State Trading Corporation of India Ltd. v. Commercial Tax Officer,
Visakhapatnam, [1964] 4 SCR 99 and Tata Engineering & Locomotive Co. v. State of Bihar,
[1964] 6 SCR 885 expressed the view that a corporation was not a citizen within the meaning of Article 19, and, therefore, could not invoke that Article. The majority held that nationality and citizenship were distinct and separate concepts. The view of this Court was that the word
"citizen" in Part II and in Article 19 of the Constitution meant the same thing. The result was that an incorporated company could not be a citizen so as to invoke fundamental rights. In State
Trading Corporation the Court was not invited to "tear the corporate veil". In the Tata
Engineering & Locomotive Co this Court said that a company was a distinct and separate entity from shareholders. The corporate veil it was said could be lifted in cases where the company is charged with trading with the enemy or perpetrating fraud on the Revenue authorities.
Mukherjea J., in Chiranjit Lal Choudhuri v. Union of India, [1950]1SCR869 expressed the minority view that an incorporated company can come up to this Court for enforcement of fundamental rights.
There are however decisions of this Court where relief has been granted to the petitioners claiming fundamental rights as shareholders or editors of newspaper companies. These are
Express New papers (Private) Ltd. v. Union of India, (1961) I LLJ 339 SC and Sakal Papers
(P) Ltd. v. Union of India, [1962] 3 SCR 842.
In Express Newspapers the Express Newspapers (Private) Ltd. was the petitioner in a writ petition under Article 32. The Press Trust of India Limited was another petitioner in a similar writ petition. The Indian National Press (Bombay) Private Ltd. otherwise known as the "Free
Press Group" was a petitioner in the third writ petition. The Saurashtra Trust was petitioner for a chain of newspapers in another writ petition. The Hindustan Times Limited was another petitioner. These petitions in the Express Newspapers challenged the vires of the Working
Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955. The petitioners contended that the provisions of the Act violated Articles 19(1)(a), 19(1)(g) and 14 of the
Constitution.
In Sakal Papers the petitioners were a Private limited company carrying on business of publishing daily and weekly newspapers in Marathi and two shareholders in the company.
There were two other petitions by readers of Sakal newspaper. The reader petitioners also challenged the Constitutionality of the Act. The petitioners there challenged the Daily
Newspapers (Price and Page) Order, 1960 as contravening Article 19(1)(a) of the Constitution.
Neither in the Express Newspapers nor in Sakal Papers there appears to be any plea raised about the maintainability of the writ petition on the ground that one of the petitioners happened to be a company.
In the Express Newspapers this Court held that freedom of speech and expression includes within its scope the freedom of the Press. This Court referred to the earlier decisions in Romesh
Thappar v. State of Madras, 1950 Cri. L.J. 1514 and Brij Bhushan v. State of Delhi, 1950 Cri.
L.J. 1525. Romesh Thappar related to a ban on the entry and circulation of Thapper 's journal in the State of Madras under the provisions of the Madras Maintenance of Public Order Act
1949. Patanjali Sastri, J. speaking for the Court said in Romesh Thappar that "there can be no

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doubt that the freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation. Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation publication would be of little value". In Brij Bhushan Patanjali Sastri, J. speaking for the majority judgment again said that "every free man has undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press". Bhagwati, J. in the Express Newspapers speaking for the Court said that the freedom of speech and expression includes freedom of propagation of ideas which freedom is ensured by the freedom of circulation and that the liberty of the press is an essential part of the right to freedom of speech and expression and that the liberty of the press consists in allowing no previous restraint upon publication.
Describing the impugned Act in Express Newspapers as a measure which could be legitimately characterised to affect the press this Court said that if the intention or the proximate effect and operation of the Act was such as to bring it within the mischief of Article 19(1)(a) it would certainly be liable to be struck down. But the Court found in Express Newspapers that the impugned measures were enacted for the benefit of the working journalists and it was, therefore, neither the intention nor the effect and operation of the impugned Act to take away or abridge the right of freedom of speech and expression enjoyed by the petitioners. There are ample observations of this Court in Express Newspapers to support the right of the petitioner companies there to invoke fundamental right in aid of freedom of speech and expression enshrined in the freedom of the press. This Court said that if the impugned measure in that case fell within the vice of Article 19(1)(a) it would be struck down. This observation is an illustration of the manner in which the truth and spirit of the freedom of press is preserved and protected. In Sakal Papers this Court struck down Section 3(1) of the Newspaper (Price and Page)
Act, 1956 and allowed the petitioner company relief on that basis. In Sakal Papers relief was granted to the share-holders and the company. The Court thought it unnecessary to express any opinion on the right of the readers to complain of infraction of fundamental rights in Article
19(1)(a) by reason of impact of law abridging or taking way the freedom of speech and expression. In the present case, the petitioners in each case are in addition to the company the shareholders the editors and the publishers. In the Bennett Coleman group of cases one shareholder, a reader of the publication and three editors of the three dailies published by the
Bennett Coleman Group are the petitioners. In the Hindustan Times case a shareholder who happened to be a Deputy Director, a shareholder, a Deputy Editor of one of the publications, the printer and the publisher of the publications and a reader are the petitioners. In the Express
Newspapers case the company and the Chief Editor of the dailies are the petitioners. In the
Hindu case a shareholder, the Managing Editor, the publisher of the company are the petitioners. One of the important questions in these petitions is whether the shareholder, the editor, the printer, the Deputy Director who are all citizens and have the right to freedom under
Article 19(1) can invoke those rights for freedom of speech and expression, claimed by them for freedom of the press in their daily publication. The petitioners contend that as a result of the Newsprint Control Policy of 1972-73 their freedom of speech and expression exercised through their editorial staff and through the medium of publications is infringed. The petitioners also challenge the fixation of 10 page ceiling and the restriction on circulation and growth on their publications to be not only violative of but also to abridge and take away the freedom of speech and expression of the shareholders and the editors. The shareholders, individually and in association with one another represent the medium of newspapers through which they disseminate and circulate their views and news. The newsprint policy express them to heavy

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financial loss and impairs their right to carry on the business of printing and publishing of the dailies through the medium of the companies.
In R. C. Cooper v. Union of India, [1970] 3 SCR 530 which is referred to as the Bank
Nationalisation case Shah, J. speaking for the majority dealt with the contention raised about the maintainability of the petition. The petitioner there was a shareholder, a Director and holder of deposit of current accounts in the Bank. The locus standi of the petitioner was challenged on the ground that no fundamental right of the petitioner there was directly impaired by the enactment of the Ordinance and the Act or any action taken thereunder. The petitioner in the
Bank Nationalisation case claimed that the rights guaranteed to him under Articles 14, 19 and
31 of the Constitution were impaired. The petitioner 's grievances were these. The Act and the
Ordinance were without legislative competence. The Act and the Ordinance interfered with the guarantee of freedom of trade. They were not made in public interest. The President had no power to promulgate the Ordinance. In consequence of hostile discrimination practised by the
State the value of the petitioner 's investment in the shares is reduced. His right to receive dividends ceased. He suffered financial loss. He was deprived of the right as a shareholder to carry on business through the agency of the company.
The ruling of this Court in Bank Nationalisation case was this:
A measure executive or legislative may impair the rights of the company alone, and not of its shareholders; it may impair the rights of the shareholders not of the
Company; it may impair the rights of the shareholders as well as of the company.
Jurisdiction of the Court to grant relief cannot be denied, when by State action the rights of the individual shareholder are impaired if that action impairs the rights of the Company as well. The test in determining whether the shareholder 's right is impaired is not formal; it is essentially qualitative; if the State action impairs the right of the shareholders as well as of the Company, the Court will not, concentrating merely upon the technical operation of the action, deny itself jurisdiction to grant relief.

In the Bank Nationalisation case this Court held the statute to be void for infringing the rights under Articles 19(1)(f) and 19(1)(g) of the Constitution. In the Bank Nationalisation case the petitioner was a shareholder and a director of the company which was acquired under the statute. As a result of the Bank Nationalisation case it follows that the Court finds out whether the legislative measure directly touches the company of which the petitioner is a shareholder.
A shareholder is entitled to protection of Article 19. That individual right is not lost by reason of the fact that he is a shareholder of the company. The Bank Nationalisation case has established the view that the fundamental rights of shareholders as citizens are not lost when they associate to from a company. When their fundamental rights as shareholders are impaired by State action their rights as shareholders are protected. The reason is that the shareholders ' rights are equally and necessarily affected if the rights of the company are affected. The rights of shareholders with regard to Article 19(1)(a) are projected and manifested by the newspapers owned and controlled by the shareholders through the medium of the corporation. In the present case, the individual rights of freedom of speech and expression of editors, Directors and shareholders are all exercised through their newspapers through which they speak. The press reaches the public through the Newspapers. The shareholders speak through their editors. The fact that the companies are the petitioners does not prevent this Court from giving relief to the shareholders, editors, printers who have asked for protection of their fundamental rights by reason of the effect of the law and of the action upon their rights. The locus standi of the shareholder petitioners is beyond challenge after the ruling of this Court in the Bank
Nationalisation case. The presence of the company is on the same ruling not a bar to the grant of relief. The rulings in Sakal Papers and Express Newspapers also support the competence of the petitioners to maintain the proceedings.

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… The Additional Solicitor General contended that the right to import and utilise newsprint was not a common law right. It was said to be a special right covered by several statutes. The
Imports and Exports Act 1947, the Imports Control Order, 1955, the Essential Commodities
Act 1955 and the Newsprint Control Order 1962 were referred to in support of the proposition that if the petitioners asked for a quota of newsprint they had to abide the conditions prescribed.
It was also said that the Press would have no special fundamental right under Article 19(1)(a).
The legislative measures were, therefore, said by the Government to be regulation of newspaper business even though there might be the incidental result of curtailing circulation. Reliance was placed on the decisions in Express Newspapers and Hamdard Dawakhana v. Union of India,
[1960] S.C.R. 67 in support of the contention that there would able no abridgement of fundamental right of the press if as a result of regulation of newspaper business there was the incidental effect of curtailing circulation. The Newsprint Policy was defended by the
Government to be in aid of allowing small newspapers to grow and to prevent a monopolistic combination of big newspapers.
The power of the Government to import newsprint cannot be denied. The power of the
Government to control the distribution of newsprint cannot equally be denied. It has, of course, to be borne in mind that the distribution must be fair and equitable. The interests of the big the medium and the small newspapers are all to be taken into consideration at the time of allotment of quotas. In the present case, there was some dispute raised as to whether there should be more import of newsprint. That is a matter of Government policy. This Court cannot adjudicate on such policy measures unless the policy is alleged to be malafide. Equally, there was a dispute as to the quantity of indigenous newsprint available for newspapers. This Court cannot go into such disputes.
The petitioners raised a question as to whether the Newsprint Control Policy is a newsprint control or a newspaper control. Mr. Palkhivala characterised the measure to be newspaper control with degrees of subtlety and sophistication. Rationing of newsprint is newsprint control.
That is where quota is fixed. Newspaper control can be said to be post-quota restrictions. The post-quota restrictions are described by Mr. Palkhivala to be newspaper control. The newspaper control, according to the petitioners, is achieved by measures adopted in relation to common ownership units owning two or more newspapers. These common ownership units are not allowed to bring out new papers of new editions of their dailies. These are not to have interchangeability of quota within their unit. In addition large papers are not allowed to have more than 10 pages. It was said that in the past several years Newsprint Control Policy worked remarkably without any challenge.
Article 19(1)(a) provides that all citizens shall have the right to freedom of speech and expression. Article 19(2) states that nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said Sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence.
Although Article 19(1)(a) does not mention the freedom of the Press, it is the settled view of this Court that freedom of speech and expression includes freedom of the Press and circulation.
In Express Newspapers it is said that there can be no doubt that liberty of the Press is an essential part of the freedom of speech and expression guaranteed by Article 19(1)(a). The
Press has the right of free propagation and free circulation without any previous restraint on publication. If a law were to single out the Press for laying down prohibitive burdens on it that would restrict the circulation, penalise its freedom of choice as to personnel, prevent

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newspapers from being started and compel the press to Government aid. This would violate
Article 19(1)(a) and would fall outside the protection afforded by Article 19(2).
In Sakal Papers it is said that the freedom of speech and expression guaranteed by Article
19(1) gives a citizen the right to propagate and publish his ideas to disseminate them, to circulate them either by words of mouth or by writing. This right extends not merely to the matter it is entitled to circulate but also to the volume of circulation. In Sakal Papers the
Newspaper (Price and Page) Act 1956 empowered the Government to regulate the prices of newspapers in relation to their pages and sizes and to regulate the allocation of space for advertisement matter. The Government fixed the maximum number of pages that might be published by a newspaper according to the price charged. The Government prescribed the number of supplements that would be issued. This Court held that the Act and the Order placed restraints on the freedom of the press to circulate. This Court also held that the freedom of speech could not be restricted for the purpose of regulating the commercial aspects of activities of the newspapers.
Publication means dissemination and circulation. The press has to carry on its activity by keeping in view the class of readers, the conditions of labour, price of material, availability of advertisements, size of paper and the different kinds of news comments and views and advertisements which are to be published and circulated. The law which lays excessive and prohibitive burden which-would restrict the circulation of a newspaper will not be saved by
Article 19(2). If the area of advertisement is restricted, price of paper goes up. If the price goes up circulation will go down. This was held in Sakal Papers to be the direct consequence of curtailment of advertisement. The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons has been held by this Court to be an integral part of the freedom of speech and expression. This freedom is violated by placing restraints upon it or by placing restraints upon something which is an essential part of that freedom. A restraint on the number of pages, a restraint on circulation and a restraint on advertisements would affect the fundamental rights under Article 19(1)(a) on the aspects of propagation, publication and circulation. … The Additional Solicitor General contended that the newsprint policy did not violate
Article 19(1)(a). The reasons advanced were these. The newsprint policy does not directly and immediately deal with the right mentioned in Article 19(1)(a). The test of violation is the subject matter and not the effect or result of the legislation. If the direct object of the impugned law or action is other than freedom of speech and expression Article 19(1)(a) is not attracted though the right to freedom of speech and expression may be consequentially or incidentally abridged. The rulings of this Court in Express Newspapers and Hamdard Dawakhana were referred to. In Express Newspapers the Act was said to be a beneficent legislation intended to regulate the conditions of service of the working journalists. It was held that the direct and inevitable result of the Act could not be said to be taking away or abridging the freedom of speech and expression of the petitioners. In Hamdard Dawakhana the scope and object of the
Act and its true nature and character were found to be not interference with the right of freedom of speech but to deal with trade or business. The subject matter of the import policy in the present case was rationing of imported commodity and equitable distribution of newsprint. The restrictions in fixing the page level and circulation were permissible as directions, which were considered necessary in order to see that the imported newsprint was properly utilised for the purpose for which the import was considered necessary. Article 369 of the Constitution shows that rationing of and distribution of quota of newsprint and regulation of supply is not a direct infringement of Article 19(1)(a). The scarcity of newspapers justifies the regulation and the direction in the manner of use. The American decision in Red Lion Broadcasting Co. v. Federal
Communications Com. [1969] 393 US 367 was relied on to show that neither regulation nor

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direction with regard to medium of expression encroaches on the First Amendment right of the
American Constitution. Regulatory statutes which do not control the content of speech but incidentally limit the unfettered exercise ate not regarded as a type of law which the First
Amendment to the American Constitution forbade the Congress of the United States to pass.
The decision in United States v. O 'Brien [1968] 391 US 367 was relied on as an authority for such regulation and control of the content of speech. Any incidental limitation or incidental restriction on the freedom of speech is permissible if the same is essential to the furtherance of important governmental interest in regulating speech and freedom.
The Additional Solicitor General further put emphasis on the pith and substance of the
Import Control Act to control imports and exports for these reasons. One method of controlling import is to regulate the use and disposition of the goods after they are bought. The decision in
Abdul Aziz Amiudin v. State of Maharashtra, 1963 Cri. L.J. 403 was referred to indicate that the scope of control of import extended to every stage at which the Government felt it necessary to see that the goods were properly utilised. Therefore, the Government submission is that regulations regarding utilisation of goods by importers after import is not a regulation with regard to production, supply and distribution of goods so as to attract Entry 29 List II of the
Government of India Act, 1935 corresponding to Entry 27 of List II in the Constitution. It was said that even if there was any trenching on Entry 29 List II of the 1935 Act corresponding to
Entry 27 List II of the Constitution it would be an incidental encroachment not affecting the validity of the Act. The directions in the control policy are, therefore, justified by the
Government under Clause 5 of the 1955 Import Control Order read with Section 3(1) of the
1947 Import and Export Act and they are also justified under the provisions of Clause 3 of the
Newsprint Control Order 1962.
The Newsprint Control Order 1962 was said to give sufficient guidance with regard to exercise of powers. Clause 3(5) of the Control Order of 1962 indicated that the Controller was to have regard to the principles. The Import policy was upheld by the Government to have administrative character for guidance in the matter of grant of licences. It was said that the impeached newsprint policy was given to the public as information regarding principles governing issue of import licences. The import policy was evolved to facilitate mechanism of the Act. The Import policy was said to have necessary flexibility for six years prior to April
1961. The Newsprint Policy operated successfully. The Controller has not abused his power.
Mr. Palkhivala said that the tests of pith and substance of the subject matter and of direct and of incidental effect of the legislation are relevant to questions of legislative competence but they are irrelevant to the question of infringement of fundamental rights. In our view this is a sound and correct approach to interpretation of legislative measures and State action in relation to fundamental rights. The true test is whether the effect of the impugned action is to take away or abridge fundamental rights. If it be assumed that the direct object of the law or action has to be direct abridgment of the right of free speech by the impugned law or action it is to be related to the directness of effect and not to the directness of the subject matter of the impeached law or action. The action may have a direct effect on a fundamental right although its direct subject matter may be different. A law dealing directly with the Defence of India or defamation may yet have a direct effect on the freedom of speech. Article 19(2) could not have such law if the restriction is unreasonable even if it is related to matters mentioned therein.
Therefore, the word "direct" would go to the quality or character of the effect and not to the subject matter. The object of the law or executive action is irrelevant when it establishes the petitioner 's contention about fundamental right. In the present case, the object, of the newspaper restrictions has nothing to do with the availability of newsprint or foreign exchange because these restrictions come into operation after the grant of quota. Therefore the restrictions are to control the number of pages or circulation of dailies or newspapers. These restrictions are

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clearly outside the ambit of Article 19(2) of the Constitution. It, therefore, confirms that the right of freedom of speech and expression is abridged by these restrictions.
The question neatly raised by the petitioners was whether the impugned Newsprint Policy is in substance a newspaper control. A newspaper control policy is ultra vires the Import
Control Act and the Import Control Order. Entry 19 of List I of the 1935 Act could empower
Parliament to control imports. Both the State Jegislalure and Parliament have power to legislate upon newspapers falling under Entry 17 of List III. The two fields of legislation are different.
The Import Control Act may include control of import of newsprint but it does not allow control of newspapers. The machinery of the Import Control cannot be utilised to curb or control circulation of growth or freedom of newspapers in India. The pith and substance doctrine is used in ascertaining whether the Act falls under one Entry while incidentally encroaching upon another Entry. Such a question does not arise here. The Newsprint Control Policy is found to be newspaper control order in the guise of framing an Import Control Policy for newsprint.
This Court in the Bank Nationalisation case laid down two tests. First it is not the object of the authority making the law impairing the right of the citizen nor the form of action that determines the invasion of the right. Secondly, it is the effect of the law and the action upon the right which attracts the jurisdiction of the court to grant relief. The direct operation of the
Act upon the rights forms the real test.
… The various provisions of the newsprint import policy have been examined to indicate as to how the petitioners ' fundamental rights have been infringed by the restrictions on page limit, prohibition against new newspapers and new editions. The effect and consequence of the impugned policy upon the newspapers is directly controlling the growth and circulation of newspapers. The direct effect is the restriction upon circulation of newspapers. The direct effect is upon growth of newspapers through pages. The direct effect is that newspapers are deprived of their area of advertisement. The direct effect is that they are exposed to financial loss. The direct effect is that freedom of speech and expression is infringed.
The Additional Solicitor General contended that a law which merely regulates even directly the freedom of the press is permissible so long as there is no abridgment or taking away of the fundamental rights of citizens. He leaned heavily on American decisions in support of the submission that the right of the press of free expression is of all citizens speaking, publishing and printing in all languages and the grave concern for freedom of expression which permitted the inclusion of Article 19(1)(a) is not to be read as a command that the Government of
Parliament is without power to protect that freedom. The Constitutional guarantees of freedom of speech and expression are said by the Additional Solicitor General to be not so much for the benefit of the press as for the benefit of all people. In freedom of speech, according to the
Additional Solicitor General, is included the right of the people to read and the freedom of the press assures maintenance of an open society. What was emphasised on behalf of the
Government was that the freedom of the press did not countenance the monopolies of the market. It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express.
Article 13 of our Constitution states that the State is prohibited from making any law which abridges or takes away any fundamental rights. Again, Article 19(2) speaks of reasonable restrictions on the exercise of fundamental rights to freedom of speech and expression. Our
Constitution does not speak of laws regulating fundamental rights. But there is no bar on legislating on the subject of newspapers as long as legislation does not impose unreasonable restrictions within the meaning of Article 19(2). It is also important to notice as was done in

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earlier decisions of this Court that our Article 19(1)(a) and the First Amendment of the
American Constitution are different. The First Amendment of the American Constitution enacts that the Congress shall make no law abridging the freedom of speech or of the press. The
American First Amendment contains no exceptions like our Article 19(2) of the Constitution.
Therefore, American decisions have evolved their own, exceptions. Our Article 19(2) speaks of reasonable restrictions. Our Article 13 states that the State shall not make laws which abridge or take away fundamental rights in Part III of the Constitution.
The concept of regulation of fundamental rights was borrowed and extracted by the
Additional Solicitor General from American decisions. In Citizen Publishing Co. v. United
States [1969] 394 U.S. 131 the power of the Government to regulate the newspaper industry through the provisions of the Sherman Act was recognised. In that case the Court affirmed a decree requiring the separation of two potentially competing newspapers. The two newspapers entered into an agreement to end business or commercial competition between them. Three types of control were imposed by the agreement. One was with regard to price fixation. The second was profit pooling. The third was market control. The Government complained that the agreement was an unreasonable restraint on trade or commerce in violation of Sherman Act.
Citizen Publishing Co. held that the First Amendment in the American Constitution far from providing an argument against the application of the Sherman Act under the facts of the case provided strong reasons to the contrary. The American decision rested upon the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public. The Sherman Act was invoked in that case to prevent non-governmental combinations which tended to impose restraints upon Constitutional guarantee of freedom. The regulation of business is one thing. The American case is an instance of the power of the Government to regulate newspaper industry.
… These American decisions establish that a government regulation is justified in America as an important or essential government interest which is unrelated to the suppression of free expression. This Court has established freedom of the press to speak and express. That freedom cannot be abridged and taken away by the manner the impugned policy has done.
At this stage it is necessary to appreciate the petitioners contentions that the newsprint policy of 1972-73 violates Articles 19(1)(a) and 14 of the Constitution. The first grievance is about Remark V in the newsprint policy. Remark V deals with dailies which are not above 10 pages and dailies over 10 pages. With regard to dailies which are not above 10 pages the policy is that the computation of entitlement to newsprint is on the basis of the actual newsprint consumption in 1970-71 or 1971-72 whichever is less. The average circulation, the average number of pages and the average page area actually published are all taken into consideration.
The petitioners and in particular the Bennett Coleman Group illustrated the vice of this feature in Remark V by referring to their publications Maharashtra Times, Nav Bharat Times and
Economic Times. The average circulation of these three publications in 1971-72 was higher than the average circulation in 1970-71. It is, therefore, said that Remark V which shows the basis of consumption to be the lesser of the two years will affect their quota. The Government version is that the figure of consumption in 1971-72 did not represent a. realistic picture because of three principal events during that year. These were the Bangladesh Crisis the IndoPak War in 1971 and the Elections. The petitioners say that the quota for 1971-72 was determined in April 1971 which was prior to the occurrence of all the three events. Again in the past when there was the Sino Indian Conflict in 1962 and the Indo-Pak War in 1965 the performance of the newspapers during the years preceding those events was not ignored as was done in the impugned policy for 1972-73. With regard to elections the petitioners say that a separate additional quota has been given. In the policies prior to 1971-72 the growth achieved in circulation as a result of the grant of the additional quota for elections was taken into

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consideration in determining the quota for the following year. The Petitioners, therefore, contend that the policy in Remark V instead of increasing circulation will result in the reduction of circulation. The petitioners are, in our judgment, right in their submission that this policy negatives the claim of the Government that this policy is based on circulation.
With regard to dailies over 10 pages Remark V proceeds on the calculation of the basic entitlement to be on an average of 10 pages and either the average circulation in 1970-71 or the admissible circulation in terms of 1971-72 Newsprint Policy plus increases admissible in terms of Remark VII whichever is more. The Bennett Coleman Group contends that the Times of
India Bombay, the Times of India Delhi and the Times of India Ahmedabad had 13.13, 13.99 and 17.83 as the average number of pages in 1971-72. The average number of pages in 197273 under Remark V of the Policy is fixed at 10. Therefore, the percentage of cut in pages is
23.8, 28.4 and 43.8 per cent respectively with regard to these three papers.
The dominant direction in the newsprint policy particularly in Remarks V and VIII is that the page limit of newspapers is fixed at 10. The petitioners who had been operating on a page level of over 10 challenge this feature as an infringement of the freedom of speech and expression. Remark V is therefore impeached first on the ground of fixation of 10 page ceiling and secondly on the basis of allotment of quota.
Prior to 1972-73 newspapers which had started before 1961-62 were allowed to increase pages by reducing circulation. On the other hand newspapers which started after 1961-62 did not have sufficient quantity of newsprint for increasing circulation and could not increase pages. To remedy this situation the Government case is that the impeached newsprint policy of
1972-73 provided in Remark V for newspapers operating on a page level of 10 or less quota on an average page number and actual circulation of 1970-71 or 1971-72 whichever is less and
20% increase for increasing page number subject to ceiling of 10 pages. The other provision in
Remark V for quota relating to newspapers operating above 10 page level is an average circulation of 1970-71 and admissible circulation in 1971-72 plus increases admissible whichever is more. Thus in the case of newspapers operating on 10 or less than 10 page level additional quota has been given to increase their pages to 10. But the imposition of 10 page ceiling on newspapers operating on a page level above 10 is said to violate Articles 19(1)(a) and 14.
The Government advances these six reasons in support of their policy. First, there is shortage of newsprint. Second, the average page number of big dailies is 10.3. Out of 45 big dailies 23 operate on a page level] of less than 10 and 22 operate on a page level of more than
10. Therefore, the Government says that the average of all dailies is 5.8. Thirdly, the
Government says that the 45 big dailies with a circulation of 46.74 lakhs get about 1,16.700 metric tonnes. This is about 59.9 per cent of the total allocation. The 346 medium and small dailies with a circulation of 41.60 lakhs get about 74,300 metric tonnes which represent as 40.1 per cent of the total allocation. Fourthly it is said that the feature is to remedy the situation arising out of historical reasons. Fifthly, the Government says that the reduction in allotment is marginal. By way of illustration it is said that the Bennett Coleman group gets 828.79 metric tonnes less. Sixthly, it is said that 500 dailies applied for quota. Newsprint has to be equitably rationed. Allowing some dailies more than 10 pages will adversely effect those dailies with less than 10 pages.
In our view shortage of newsprint can stop with allotment. If the Government rests content with granting consumers of newsprint a quantity equitably and fairly, the consumers will not quarrel with the policy. The consumers of newsprint are gravely concerned with the other features. Page 205 of 610

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… The maximum number of pages at 10 will, according to the petitioners, not only adversely affect their profits but also deprive them of expressing and publishing the quality of writings and fulfilment of the role to be played by the newspaper in regard to their freedom of speech and expression. While it must be admitted that the language dailies should be allowed to grow, the English dailies should not be forced to languish under a policy of regimentation.
It is therefore correct that the compulsory reduction to 10 pages offends Article 19(1)(a) and infringes the rights of freedom of speech and expression.
… The restriction on the petitioners that they can use their quota to increase circulation but not the page number violates Articles 19(1)(a) as also Article 14. Big dailies are treated to be equal with newspapers who are not equal to them. Again, the policy of 1972-73 permits dailies with large circulation to increase their circulation. Dailies operating below 10 page level are allowed ' increase in pages. This page increase quota cannot be used for circulation increase.
Previously, the big dailies were allowed quota for circulation growth. The present policy has decreased the quantity for circulation growth. In our view counsel for the petitioners rightly said that the Government could not determine thus which newspapers should grow in page and circulation and which newspapers should grow only in circulation and not in pages. Freedom of press entitles newspapers to achieve any volume of circulation. Though requirements of newspapers as to page, circulation are both taken into consideration for fixing their quota but the newspapers should be thereafter left free to adjust their page number and circulation as they wish in accordance with the dictates of Article 19(1)(a) of the Constitution.
… In the present case, it cannot be said that the newsprint policy is a reasonable restriction within the ambit of Article 19(2). The newsprint policy abridges the fundamental rights of the petitioners in regard to freedom of speech and expression. The newspapers are not allowed their right of circulation. The newspapers are not allowed right of page growth. The common ownership units of newspapers cannot bring out newspapers or new editions. The newspapers operating above 10 page level and newspapers operating below 10 page level have been treated equally for assessing the needs and requirements of newspapers with newspapers which are not then equal, Once the quota is fixed and direction to use the quota in accordance with the newsprint policy is made applicable the big newspapers are prevented any increase in page number. Both page numbers and circulation are relevant for calculating the basic quota and allowance for increases. In the garb of distribution of newsprint the Government has tended to control the growth and circulation of newspapers. Freedom of the press is both qualitative and quantitative. Freedom lies both in circulation and in content. The newsprint policy which permits newspapers to increase circulation by reducing the number of pages, page area and periodicity, prohibits them to increase the number of pages, page area and periodicity by reducing circulation. These restrictions constrict the newspapers in adjusting their page number and circulation.
… For the foregoing reasons the newsprint policy for 1972-73 violates Articles 19(1)(a) and 14 of the Constitution. The restrictions by fixing 10 page limit in Remarks V and VIII of the policy infringe Articles 19(1)(a) and 14 of the Constitution and are, therefore, declared unconstitutional and struck down. The policy of basic entitlement to quota in Remark V is violative of Articles 19(1)(a) and 14 of the Constitution and is therefore struck down. The measure in Remark VII(a) is violative of Articles 14 and 19(1)(a) of the Constitution and is struck down.
The measures in Remark VII(c) read with Remark VIII are violative of Articles 19(1)(a) and 14 of the Constitution and are struck down. The prohibition in Remark X against common ownership unit from starting a new newspaper/periodical or a new edition is declared unconstitutional and struck down as violative of Article 19(1)(a) of the Constitution. …

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REASONABLE RESTRICTIONS ON FREEDOM OF SPEECH
K. A. ABBAS V. UNION OF INDIA
AIR 1971 SC 481, (1970) 2 SCC 780
Decided On: Sep. 24, 1970
BENCH – CHIEF JUSTICE M. HIDAYATULLAH, JUSTICES J. SHELAT, G. K. MITTER, C. A.
VAIDIALINGAM & A. N. RAY

CHIEF JUSTICE HIDAYATULLAH (for the Court)
This petition seeks a declaration against the Union of India and the Chairman Central Board of Film Censors, that the provisions of Part II of the Cinematograph Act 1952 together with the rules prescribed by the Central Government, February 6, 1960, in the purported exercise of its powers under Section 5B of the Act are unconstitutional and void. As a consequence the petitioner asks for a writ of mandamus or any other appropriate writ, direction or order quashing the direction contained in a letter (Annexure X) dated July 3, 1969 for deletion of certain shots from a documentary film entitled ‘A Tale of Four Cities’, produced by him for unrestricted public exhibition.
The petitioner is a journalist, playwright and writer of short stories. He is also a producer and director of cinematograph films. He was a member of the Enquiry Committee on Film
Censorship (1968) and is a member of the Children 's Film Committee. He has produced and/or directed many films some of which have been well-received here and abroad and even won awards and prizes.
The petitioner produced in 1968 a documentary film in 2 reels (running time 16 minutes) called a ‘Tale of Four Cities’. In this film he purported to contrast the luxurious life of the rich in the four cities of Calcutta, Bombay, Madras and Delhi, with the squalor and poverty of the poor, particularly those whose hands and labour help to build beautiful cities, factories and other industrial complexes. The film is in black and white and is silent except for a song which the labourers sing while doing work and some background music and sounds for stage effect.
The film, in motion sequences or still shots, shows contrasting scenes of palatial buildings, hotels and factories-evidence of the prosperity of a few, and shanties, huts and slums-evidence of poverty of the masses. These scenes alternate and in between are other scenes showing sweating labourers working to build the former and those showing the squalid private life of these labourers. Some shots mix people riding in lush motor cars with rickshaw and handcart pullers of Calcutta and Madras. In one scene a fat and prosperous customer is shown riding a rickshaw which a decrepit man pulls, sweating and panting hard. In a contrasting scene the same rickshaw puller is shown sitting in the rickshaw, pulled by his former customer. This scene is the epitomisation of the theme of the film and on view are the statutes of the leaders of Indian Freedom Movement looking impotently from their high pedestal 's in front of palatial buildings, on the poverty of the masses. On the boulevards the rich drive past in limousines while the poor pull rickshaws or handcarts or stumble along.
There is included also a scanning shot of a very short duration, much blurred by the movement of the photographer 's camera, in which the red light district of Bombay is shown with the inmates of the brothels waiting at the doors or windows. Some of them wear abbreviated skirts showing bare legs up to the knees and sometimes a short way above them.
This scene was perhaps shot from a moving car because the picture is unsteady on the screen

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and under exposed. Sometimes the inmates, becoming aware of the photographer, quickly withdraw themselves. The whole scene barely lasts a minute. Then we see one of the inmates shutting a window and afterwards we see the hands of a woman holding some currency notes and a male hand plucking away most of them leaving only a very few in the hands of the female.
The two actors are not shown. The suggestion in the first scene is that a customer is being entertained behind closed shutters and in the next sequence that the amount received is being shared between the pimp and the prostitute, the former taking almost the whole of the money.
The sequence continues and for the first time the woman who shut the window is again seen.
She sits at the dressing table, combs her hair, glances at two love-birds in a cage and looks around the room as if it were a cage. Then she goes behind a screen and emerges in other clothes and prepares for bed. She sleeps and dreams of her life before she took the present path.
The film then passes on to its previous theme of contrasts mentioned above, often repeating the earlier shots in juxtaposition as stills. There is nothing else in the film to be noticed either by us or by the public for which it is intended.
The petitioner applied to the Board of Film Censors for a 'U ' certificate for unrestricted exhibition of the film. He received a letter (December 30, 1969) by which the Regional Officer informed him that the Examining Committee and the Board had provisionally come to the conclusion that the film was not suitable for unrestricted public exhibition but was suitable for exhibition restricted to adults. He was given a chance to make representations against the tentative decision within 14 days. Later he was informed that the Revising Committee had reached the same conclusion. He represented by letter (February 18, 1969) explaining the purpose of the films as exposing the exploitation of man (or woman) by man and the contrast between the very rich few and the very poor masses. He claimed that there was no obscenity in the film. He was informed by a letter (February 26, 1969) that the Board did not see any reason to alter its decision and the petitioner could appeal within 30 days to the Central Government.
The petitioner appealed the very next day. On July 3, 1969, the Central Government decided to give a 'U ' certificate provided the following cuts were made in the film:
"Shorten the scene of woman in the red light district, deleting specially the shot showing the closing of the window by the lady, the suggestive shots of bare knees and the passing of the currency notes." Dir. IC(iii)(b)(c); IV".

The mystery of the code numbers at the end was explained by a letter on July 23, 1969 to mean this:
I. It is not desirable that a film shall be certified as suitable for public exhibition, either unrestricted or restricted to adults which
C(iii)(b) deals with the relations between the sexes in such a manner as to depict immoral traffic in women and soliciting, prostitution or procuration.
IV. It is undesirable that a certificate for unrestricted public exhibition shall be granted in respect of a film depicting a story, or containing incidents unsuitable for young persons.

The petitioner then filed this petition claiming that his fundamental right of free speech and expression was denied by the order of the Central Government. He claimed a 'U ' certificate for the film as of right.
Before the hearing commenced the film was specially screened, for us. The lawyers of both sides (including the Attorney General) and the petitioner were also present. The case was then set down for hearing. The Solicitor General (who had not viewed the film) appeared at the hearing. We found it difficult to question him about the film and at our suggestion the Attorney
General appeared but stated that Government had decided to grant a 'U ' certificate to the film without the cuts previously ordered.

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The petitioner then asked to be allowed to amend the petition so as to be able to challenge pre-censorship itself as offensive to freedom of speech and expression and alternatively the provisions of the Act and the rules, orders and directions under the Act, as vague, arbitrary and indefinite. We allowed the application for amendment, for the petitioner was right in contending that a person who invests his capital in promoting or producing film must have clear guidance in advance in the matter of censorship of films even if the law of pre-censorship be not violative of the fundamental right.
When the matter came up for hearing the petitioner raised four points : (a) that precensorship itself cannot be tolerated under the freedom of speech and expression, (b) that even if it were a legitimate restraint on the freedom, it must be exercised on very definite principles which leave no room for arbitrary action, (c) that there must be a reasonable time-limit fixed for the decision of the authorities censoring the film, and (d) that the appeal should lie to a court or to an independent tribunal and not the Central Government.
The Solicitor-General conceded (c) and (d) and stated that Government would set on foot legislation to effectuate them at the earliest possible opportunity. Since the petitioner felt satisfied with-this assurance we did not go into the matter. But we must place on record that the respondents exhibited charts showing the time taken in the censorship of films during the last one year or so and we were satisfied that except in very rare cases the time taken could not be said to be unreasonable. We express our satisfaction that the Central Government will cease to perform curial functions through one of its Secretaries in this sensitive field involving the fundamental right of speech and expression. Experts sitting as a Tribunal and deciding matters quasi-judicially inspire more confidence than a Secretary and therefore it is better that the appeal should lie to a court or tribunal.
This brings us to the remaining two questions. We take up first for consideration: whether pre-censorship by itself offends the freedom of speech and expression. Article 19(1)(a) and (2) of the Constitution contain the guarantee of the right and the restraints that may be put upon that right by a law to be made by Parliament. …
The argument is that the freedom is absolute and pre-censorship is not permissible under the Constitution. It is submitted that pre censorship is inconsistent with the right guaranteed.
Now it is clear that some restraint is contemplated by the second clause and in the matter of censorship only two ways are open to Parliament to impose restrictions. One is to lay down in advance the standards for the observance of film producers and then to test each film produced against those standards by a preview of the film. The other is to let the producer observe those standards and make the infraction an offence and punish a producer who does not keep within the standards. The petitioner claims that the former offends the guaranteed freedom but reluctantly concedes the latter and relies upon the minority view expressed in the United States
Supreme Court from time to time. The petitioner reinforces this argument by contending that there are other forms of speech and expression besides the films and none of them is subject to any prior restraint in the form of pre-censorship and claims equality of treatment with such other forms. He claims that there is no justification for a differential treatment. He contends next that even the standards laid down are unconstitutional for many reasons which we shall state in proper place.
This is the first case in which the censorship of films in general and pre-censorship in particular have been challenged in this Court and before we say anything about the arguments, it is necessary to set down a few facts relating to censorship of films and how it works in India.
The Government of India appointed a Committee on March 28, 1968 to enquire into the working of the existing procedures for certification of cinematograph films for public exhibition in India and allied matters, under the Chairmanship of Mr. G.D. Khosla, former

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Chief Justice of the Punjab High Court. The report of the Committee has since been published and contains a valuable summary of the law of censorship not only in India but also in foreign countries. It is hardly helpful to the determination of this case to go into this history but it may be mentioned here that it is the opinion of experts on the subject that Indian film censorship since our independence has become one of strictest in the world… In 1966 Mr. Raj Bahadur
(who succeeded Mrs. Indira Gandhi as Minister for Information and Broadcasting) said that
Government would 'continue a liberal censorship ' and was considering certain expert opinion on the subject. He also suggested to the film industry that it should formulate a code which would be the best from all standards so that Government may be guided by it in formulating directives to the censors… This suggestion came to nothing for obvious reasons. Film industry in India is not even oligopolistic in character and it is useless to expect it to classify films according to their suitability, as is done in the United States by the Motion Picture Association of America (MPAA) founded in October 1968. There the film industry is controlled by eight major producers and private control of film-making is possible with the assistance of the
National Association of Theatre Owners and Film Importers and Distributors of America.
Having no such organisation for private censorship or even a private body like the British Board of Film Censors in England the task must be done by Government if censorship is at all to be imposed. Films began to be exhibited in India at the turn of the last century and film censorship took birth in 1918 when the Cinematograph Act, 1918 (2 of 1918) was passed. Two matters alone were then dealt with: (a) the licensing of cinema houses, and (b) the certifying of films for public exhibition. The censors had a wide discretion and no standards for their action were indicated. Boards of Film Censors came into existence in the three Presidency towns and
Rangoon. The Bombay Board drew up some institutions for Inspectors of Films and it copied the 43 rules formulated by T. P. O 'Connor in England. These are more or less continued even today. We do not wish to trace here the history of the development of film censorship in India.
That task has been admirably performed by the Khosla Committee. Legislation in the shape of amendments of the Act of 1918 and a Production Code were the highlights of the progress. In
1952 a fresh consolidating Act was passed and it is Act 37 of 1952 (amended in 1959 by Act 3 of 1959) and that is the present statutory provision on the subject. It established a Board of
Film Censors and provided for Advisory Panels at Regional centers. Every person desiring to exhibit any film has to apply for a certificate and the Board after examining the film or having the film examined deals with it by:
(a) sanctioning the film for unrestricted public exhibition;
(b) sanctioning the film for public exhibition restricted to adults;
(c) directing such excisions and modifications as it thinks fit, before sanctioning the film for unrestricted public exhibition or for public exhibition restricted to adults, as the case may be; or
(d) refusing to sanction the film for public exhibition.

The film producer is allowed to represent his views before action under (b) (c) and (d) is taken. The sanction under (a) is by granting a 'U ' certificate and under (b) by an 'A ' certificate and the certificates are valid for ten years.
The Act then lays down the principles for guidance and for appeals in Sections 5B and 5C respectively. These sections may be read here:
5B. Principles for guidance in certifying films.
(1) A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of the security of the State, friendly relations with foreign States, public

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order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence.
(2) Subject to the provisions contained in Sub-section (1), the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition.
5C. Appeals.
Any person applying for a certificate in respect of a film who is aggrieved by any order of the Board(a) refusing to grant a certificate; or
(b) granting only an "A" certificate; or
(c) directing the applicant to carry out any excisions or modifications; may, within thirty days from the date of such order, appeal to the Central
Government, and the Central Government may, after such inquiry into the matter as it considers necessary and after giving the appellant an opportunity for representing his views in the matter, make such order in relation thereto as it thinks fit.

By Section 6, the Central Government has reserved a general revising power which may be exercised during the pendency of a film before the Board and even after it is certified. Under the latter part of this power the Central Government may cancel a certificate already granted or change the 'U ' certificate into an 'A ' certificate or may suspend for 2 months the exhibition of any film.
The above is the general scheme of the legislation on the subject omitting allied matters in which we are not interested in this case. It will be noticed that Section 5B(1) really reproduces
Clause (2) of Article 19 as it was before its amendment by the First Amendment. This fact has led to an argument which we shall notice presently. The second sub-section of Section 5B enables the Central Government to state the principles to guide the censoring authority, by issuing directions. In furtherance of this power the Central Government has given directions to the Board of Film Censors. They are divided into General Principles three in number, followed by directions for their application in what are called 'ruled '. The part dealing with the application of the principles is divided into four sections and each section contains matters which may not be the subject of portrayal in films. We may quote the General Principles here:
1. No picture shall be certified for public exhibition which will lower the moral standards of those who see it. Hence, the sympathy of the audience shall not be thrown on the side of crime, wrong-doing, evil or sin.
2. Standards of life, having regard to the standards of the country and the people to which the story relates, shall not be so portrayed as to deprave the morality of the audience.
3. The prevailing laws shall not be so ridiculed as to create sympathy for violation of such laws.

The application of the General Principles is indicated in the four sections of the rules that follow so that a uniform standard may be applied by the different regional panels and Boards.
The first section deals with films which are considered unsuitable for public exhibition. This section is divided into Clauses A to F. Clause A deals with the delineation of crime, B with that of vice or immorality, C with that of relations between sexes, D with the exhibition of human form, E with the bringing into contempt of armed forces, or the public authorities entrusted with the administration of law and order and F with the protection of the susceptibilities of foreign nations and religious communities, with fomenting social unrest or discontent to such

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an extent as to incite people to crime and promoting disorder, violence, a breach of the law or disaffection or resistance to Government.
Clauses E and F are further explained by stating what is unsuitable and what is objectionable in relation to the topics under those clauses.
Section II then enumerates subjects which may be objectionable in a context in which either they amount to indecency, immorality, illegality or incitement to commit a breach of the law.
Section III then provides:
It is not proposed that certification of a film should be refused altogether, or that it should be certified as suitable for adult audiences only, where the deletion of a part or parts, will render it suitable for unrestricted public exhibition or for exhibition restricted to adults, and such deletion is made, unless the film is such as to deprave the majority of the audience and even excisions will not cure the defects. Section IV deals with the protection of young persons and enjoins refusal of a certificate for unrestricted public exhibition in respect of a film depicting a story or containing incidents unsuitable for young persons. Emphasis in this connection is laid in particular upon(i) anything which may strike terror in a young person, e.g., scenes depicting ghosts, brutality, mutilations, torture, cruelty, etc.;
(ii) anything tending to disrupt domestic harmony or the confidence of a child in its parents, e.g. scenes depicting parents quarrelling violently, or one of them striking the other, or one or both of them behaving immorally;
(iii) anything tending to make a person of tender years insensitive to cruelty to others or to animals.

In dealing with crime under Section I Clause A, the glorification or extenuation of crime, depicting the modus operandi of criminals, enlisting admiration or sympathy for criminals, holding up to contempt the forces of law against crime etc. are indicated as making the film unsuitable for exhibition. In Clause B similar directions are given with regard to vice and immoral acts and vicious and immoral persons. In Clause C the unsuitability arises from lowering the sacredness of the institution of marriage and depicting rape, seduction and criminal assaults on women, immoral traffic in women, soliciting prostitution or procuration, illicit sexual relations, excessively passionate love scenes, indelicate sexual situations and scenes suggestive of immorality. In Clause D the exhibition of human form in nakedness or indecorously or suggestively dressed and indecorous and sensuous postures are condemned. In
Section II are mentioned confinements, details of surgical operations, venereal diseases and loathsome diseases like leprosy and sores, suicide or genocide, female under clothing, indecorous dancing, importunation of women, cruelty to children, torture of adults, brutal fighting, gruesome murders or scenes of strangulation, executions, mutilations and bleeding, cruelty to animals, drunkenness or drinking not essential to the theme of the story, traffic and use of drugs, class hatred, horrors of war, horror as a predominant element, scenes likely to afford information to the enemy in time of war, exploitation of tragic incidents of war, blackmail associated with immorality, intimate biological studies, crippled limbs or malformations, gross travesties of administration of justice and defamation of any living person. We have covered almost the entire range of instructions. It will be noticed that the control is both thematic and episodic. If the theme offends the rules and either with or without excision of the offending parts, the film remains still offensive, the certificate is refused. If the excisions can remove its offensiveness, the film is granted a certificate. Certifiable films are classified

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according to their suitability for adults or young people. This is the essential working of
Censorship of motion pictures in our country.
The first question is whether the films need censorship at all? Pre-censorship is but an aspect of censorship and bears the same relationship in quality to the material as censorship after the motion picture has had a run. The only difference is one of the stage at which the State interposes its regulations between the individual and his freedom. Beyond this there is no vital difference. That censorship is prevalent all the world over in some form or other and precensorship also plays a part where motion pictures are involved, shows the desirability of censorship in this field. The Khosla Committee has given a description generally of the regulations for censorship (including pre-censorship) obtaining in other countries and
Running 's book deals with these topics in detail separately for each country. The method changes, the rules are different and censorship is more strict in some places than in others, but censorship is universal. Indeed the petitioner himself pronounced strongly in favour of it in a paper entitled Creative Expression written by him. This is what he said:
But even if we believe that a novelist or a painter or a musician should be free to write, paint and compose music without the interference of the State machinery, I doubt if anyone will advocate the same freedom to be extended to the commercial exploitation of a powerful medium of expression and entertainment like the cinema. One can imagine the results if an unbridled commercial cinema is allowed to cater to the lowest common denominator of popular taste, specially in a country which, after two centuries of political and cultural domination, is still suffering from a confusion and debasement of cultural values.

Freedom of expression cannot, and should not, be interpreted as a licence for the cinemagnates to make money by pandering to, and thereby propagating, shoddy and vulgar taste.
Further it has been almost universally recognised that the treatment of motion pictures must be different from that of other forms of art and expression. This arises from the instant appeal of the motion picture, its versatility, realism (often surrealism), and its coordination of the visual and aural senses. The art of the cameraman, with trick photography, vistavision and three dimensional representation thrown in, has made the cinema picture more true to life than even the theatre or indeed any other form of representative article. The motion picture is able to stir up emotions more deeply than any other product of article. Its effect particularly on children and adolescents is very great since their immaturity makes them more willingly suspend their disbelief than mature men and women. They also remember the action in the picture and try to emulate or imitate what they have seen. Therefore, classification of films into two categories of 'U ' films and 'A ' films is a reasonable classification. It is also for this reason that motion picture must be regarded differently from other forms of speech and expression. A person reading a book or other writing or hearing a speech or viewing a painting or sculpture is not so deeply stirred as by seeing a motion picture. Therefore the treatment of the latter on a different footing is also a valid classification.
The petitioner pressed for acceptance of the minority views expressed from time to time in the Supreme Court of the United States and it is, therefore, necessary to say a few words about censorship of motion pictures in America and the impact of the First Amendment guaranteeing freedom of speech and expression in that country. The leading cases in the United States are really very few but they are followed in a very large number of per curiam decisions in which, while concurring with the earlier opinion of the Court, there is sometimes a restatement with a difference. As early as 1914 in Mutual Film Corporation. v. Industrial Commission of Ohio
(1915) 236 U.S. 230. Mr. Justice Mc Kenna, speaking for the full Court, said that legislative power is not delegated unlawfully when a board of censors is set up to examine and censor, as a condition precedent to exhibition, motion picture films, to be publicly exhibited and displayed, with a view to passing and approving only such of them as are in the judgment of

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the board, moral, educational or amusing and forbidding those that are not. Speaking of the criteria stated in general words, it was said that general terms get "precision from the sense and experience of men and become certain and useful guides in reasoning and conduct". The first notice of change came in 1925 in Gitlow v. New York (1925) 268 U.S. 652, when it was said that censorship had to pass the scrutiny of the First Amendment through the Fourteenth
Amendment before speech and expression could be Abridged by State laws. To this, was added in 1919 the test of 'clear and present danger ' propounded by Justice Holmes as the only basis for curtailing the freedom of speech and expression, see Shenck v. U.S. (1919) 249 U.S. 47. and Justice Brandeis in Whitney v. California (1927) 274 U.S. 357 laid down three components of the test :
(a) There must be a clear and present danger that speech would produce a substantial evil that the State has power to prevent. This is not to say that it is enough if there is 'fear ', there must be reasonable grounds to fear that serious evil would result from the exercise of speech and expression.
(b) There must be a 'present ' or 'imminent ' danger and for this there must be reasonable grounds to hold this opinion and that no reasonable opportunity was available to avert the consequences; and
(c) The substantive evil to be prevented must be 'serious ' before there can be a prohibition on freedom of speech and expression for the police power of the State could not be exercised to take away the guarantee to avert a relatively trivial harm to society.

In 1931 in Near v. Minnesota (1931) 283 U.S. 697 immunity of press from pre-censorship was denied but pre-censorship (as it is termed previous restraint) was not to be unlimited. A major purpose of the First Amendment was to prevent prior restraint. The protection was not unlimited but put on the state the burden of showing that the limitation challenged in the case was exceptional.
In 1941 the Court handed down in Chaplinsky v. New Hampshire (1941) 315 U.S. 567 the opinion that free speech was not absolute at all times and in all circumstances, that there existed certain "well-defined and narrowly limited classes of speech, the prevention and punishment of which had never been thought to raise any Constitutional problem".
This state of affairs continued also in respect of motion pictures and the regulation of their public exhibition. Real attention was focused on censorship after 1951. The effect of World
War II on American society was the real cause because people’s notions of right and wrong from a social point of view drastically altered. Added to this were the inroads made by Justices
Douglas and Black in Dennis v. U.S. (1951) 341 U.S. 494 in the previously accepted propositions which according to them made the First Amendment no more than an admonition to Congress. In Beauharnais v. Illinois (1952) 343 U.S. 250 Justice Douglas claimed for the freedom of speech, a preferred position because the provision was in absolute terms, an opinion which has since not been shared by the majority of the Court.
In 1951 there came the leading decision Burstyn v. Wilson (1951) 343 U.S. 495. This case firmly established that motion pictures were within the protection of the First Amendment through the Fourteenth. While recognising that there was no absolute freedom to exhibit every motion picture of every kind at all times and places, and that Constitutional protection even against a prior restraint was not absolutely unlimited, limitation was said to be only in exceptional cases. It however laid down that censorship on free speech and expression was ordinarily to be condemned but the precise rules governing other methods of expression were not necessarily applicable.
The application of the 14th Amendment has now enabled the Court to interfere in all cases of state restrictions where censorship fails to follow due process. The result has led to a serious

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conflict in the accepted legal opinion. The Supreme Court has had to deal with numerous cases in which censorship was questioned.
The divergence of opinion in recent years has been very deep. Censorship of press, art and literature is on the verge of extinction except in the ever shrinking area of obscenity. In the field of censorship of the motion picture there has been a tendency to apply the 'void for vagueness ' doctrine evolved under the due process clause. Thus regulations containing such words as 'obscene ', 'indecent ', 'immoral ', 'prejudicial to the best interests of people ', 'tending to corrupt morals ', 'harmful ' were considered vague criteria. In Kingsley International Pictures
Corporation. v. Regents (1959) 360 U.S. 684 where the film Lady Chatterley 's Lover was in question, certain opinions were expressed. These opinions formed the basis of the arguments on behalf of the petitioner. Justice Black considered that the court was the worst of Board
Censors because they possessed no special expertise. Justice Frankfurter was of the opinion that 'legislation must not be so vague, the language so loose, as to leave to those who have to apply it too wide a discretion for sweeping within its condemnation what was permissible expression as well as what society might permissibly prohibit, always remembering that the widest scope for freedom was to be given to the adventurous and imaginative exercise of human spirit…". Justice Douglas considered prior restraint as unconstiutional. According to him if a movie violated a valid law, the exhibitor could be prosecuted.
The only test that seemed to prevail was that of obscenity as propounded in Roth v. United
States (1957) 354 U.S. 476. In that three tests were laid down:
(a) that the dominant theme taken as a whole appeals to prurient interests according to the contemporary standards of the average man;
(b) that the motion picture is not saved by any re deeming social value; and
(c) that it is patently offensive because it is opposed to contemporary standards.

The Hicklin test in Regina v. Hicklin [1868] 3 Q.B. 360 was not accepted.
Side by side procedural safeguards were also considered. The leading case is Freedmen v.
Maryland (1965) 380 U.S. 51 where the court listed the following requirements for a valid film statute: 1. The burden of proving that the film is obscene rests on the censor.
2. Final restraint (denial of licence) may only occur after judicial determination of the obscenity of the material.
3. The censor will either issue the license or go into court himself for a restraining order. 4. There must be only a 'brief period ' between the censor 's first consideration of film and final judicial determination. …

These were further strengthened recently in Teitel Film Corporation v. Cusak (1968) 390
U.S. 139 (a per curiam decision) by saying that a non-criminal process which required the prior submission of a film to a censor avoided Constitutional infirmity only if censorship took place under procedural safeguards. The censorship system should, therefore, have a time-limit. The censor must either pass the film or go to court to restrain the showing of the film and the court also must give a prompt decision. A delay of 50-57 days was considered too much. The statute in question there had meticulously laid down the time for each stage of examination but had not fixed any time limit for prompt judicial determination and this proved fatal.
The fight against censorship was finally lost in the Times Film Corporation v. Chicago
(1961) 365 U.S. 43 but only by the slender majority of one. Chief Justice Warren and Justices
Black, Douglas and Brennan dissented. The views of these Judges were pressed upon us. Chief
Justice Warren thought that there ought to be first an exhibition of an allegedly 'obscene film '

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because Government could not forbid the exhibition of a film in advance. Thus prior restraint was said to be impermissible. Justice Douglas went further and said that censorship of movies was unconstitutional. Justice Clark on the other hand, speaking for the majority, said:

It has never been held that liberty of speech is absolute. Nor has it been suggested that all previous restraints on speech are invalid.
It is not for this Court to limit the State in its selection of the remedy it deems most effective to cope with such a problem, absent, of course, a showing of unreasonable strictures on individual liberty resulting from its application in particular circumstances.

The argument that exhibition of moving pictures ought in the first instance to be free and only a criminal prosecution should be the mode of restraint when found offensive was rejected.
The pre censorship involved was held to be no ground for striking down a law of censorship.
The minority was of the opinion that a person producing a film must know what he was to do or not to do. For, if he were not sure he might avoid even the permissible.
In Interstate Circuit Inc. v. Dallas (1968) 390 U.S. 676 certain expression were considered vague including ‘crime delinquency’ ‘sexual promiscuity’ ‘not suitable for young persons’.
According to the court the statute must state narrowly drawn, reasonably definite, standards for the Board to follow. Justice Harlan, however, observed that the courts had not found any more precise expressions and more could not be demanded from the legislature than could be said by the Court. However precision of regulation was to be the touchstone of censorship and while admitting that censorship was admissible, it was said that too wide a discretion should not be left to the censors.
Meanwhile in Jacobellis v. Ohio (1964) 378 U.S. 184 it was held that laws could legitimately aim specifically at preventing distribution of objectionable material to children and thus it approved of the system of age-classification. Interstate Circuit Inc. v. Dallas (1968)
390 U.S. 676 and Ginsberg v. New York (1968) 390 U.S. 629 set the seal on validity of age classification as constitutionally valid.
There are two cases which seem to lie outside the main-stream. Recently in Stanley v.
Georgia (1969) 394 U.S. 557 the Court seems to have gone back on the Roth case and held that the right to receive information and ideas, regardless of their social worth, is also fundamental to society. Another exception can only be understood on the basis of the recognition of the needs of a permissive society. Thus Mishkin v. New York (1966) 383 U.S.
502 removes the test of the average person by saying that if the material is designed for a deviant sexual group, the material can only be censored if taken as a whole, it appeals to the prurient interest in sex of the members of that group. This is known as the selective-audience obscenity test and even children are a special class. See Ginsberg v. New York (1968) 390 U.S.
629. On the whole, however, there is in this last case a return to the Hicklin test in that obscenity is considered even from isolated passages.
To summarize. The attitude of the Supreme Court of the United States is not as uniform as one could wish. It may be taken as settled that motion picture is considered a form of expression and entitled to protection of First Amendment. The view that it is only commercial and business and, therefore, not entitled to the protection as was said in Mutual Film Corpn. (1915) 236 U.S.
230 is not now accepted. It is also settled that freedom of speech and expression admits of extremely narrow restraints in cases of clear and present danger, but included in the restraints are prior as well as subsequent restraints. The censorship should be based on precise statement of what may not be subject matter of film-making and this should allow full liberty to the growth of art and literature. Age-classification is permissible and suitability for special

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audiences is not to depend on whether the average man would have considered the film suitable.
Procedural safeguards as laid down in the Freedman case (1965) 380 U.S. 51 must also be observed. The film can only be censored if it offends in the manner set out in Roth 's case.

The petitioner put before us all these dicta for our acceptance and added to them the rejection of censorship, particularly prior censorship by Chief Justice Warren and Justices
Black and Douglas. He pointed out that in England too the censorship of the theatre has been abolished by the Theatres Act 1968 (1968 C. 54) and submitted that this is the trend in advanced countries. He also brought to our notice the provisions of the Obscene Publications Act, 1959
7 & 8 Eliz. 2 C. 66, where the test of obscenity is stated thus:
1. Test of obscenity.
(1) For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained of embodied in it.

and the defence of public good is stated thus :
4. Defence of public good.
(1) A person shall not be convicted of an offence against section two of this Act, and an order for forfeiture shall not be made under the foregoing section, if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.
(2) It is hereby declared that the opinion of experts as to the literary, artistic, scientific or other merits of an article may be admitted in any proceedings under this Act either to establish or to negative the said ground.

He contended that we must follow the above provisions.
We may now consider the English practice. In England there was little freedom of speech to start with. The Common Law made no provision for it. The two Constitutional documents the Petition of Right (1628) and the Bill of Rights (1689) - do not mention it. By the time of
Queen Elizabeth I presses were controlled through licences and although they were granted, no book could be issued without the sanction of Government. The Star Chamber tried several cases of censorship and it even continued in the days of Cromwell. Milton was the first to attack censorship in his Areopagitica and that had profound effect on the freedom of speech. We find quotations from his writings in the opinions of Chief Justice Warren and Justice Dougles.
Freedom of speech came to be recognised by slow stages and it was Blackstone who wrote in his Commentaries (Book IV p. 1517)The liberty of the Press is indeed essential to the nature of a free State, but this consists in laying no previous restraints upon publications.

But censorship of theatres continued and no theatre could be licensed or a play performed without the sanction of the Lord Chamberlain. By the Theatres Act 1843 the Lord Chamberlain was given statutory control over the theatres. He could forbid the production of a play for the preservation of good manners, decorum or the public peace. There was ordinarily no censorship of the press in England. When cinematograph came into being the Cinematograph Act 1909 was passed to control cinemas. It has now been amended by the Cinematograph Act of 1952.
Restrictions were placed on the exhibition of films to children (Section 4) and on the admission of children to certain types of film. Today censorship of films is through the British Board of
Film Censors which is an independent body not subject to control by the State. An elaborate

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inquiry is already on foot to consider whether state control is needed or not. Censorship of films is run on the lines set by T.P. O 'Connor in 1918. These directions, as we said earlier, have had a great influence upon our laws and our directions issued by the Central Government, follow closely the 43 points of T.P. O 'Connor. It is wrong to imagine that there is no censorship in
England. The Khosla Committee (p. 32) has given examples of the cuts ordered and also a list of films which were found unsuitable. The Board has never worked to a Code although the directions are followed. By 1950 three general principles were evolved. They are:
1. Was the story, incident or dialogue likely to impair the moral standards of the public by extenuating vice or crime or depreciating moral standards?
2. Was it likely to give offence to reasonably minded cinema audiences?
3. What effect would it have on the minds of children?

We have digressed into the practice of the United States and the United Kingdom because analogies from these two countries were mainly relied upon by the petitioner and they serve as a very appropriate back-ground from which to begin discussion on the question of censorship and the extent to which it may be carried.
To begin with our fundamental law allows freedom of speech and expression to be restricted as Clause (2) itself shows. It was observed in Ranjit D. Udeshi v. State of
Maharashtra, 1965 Cri. L.J.8.
Speaking in terms of the Constitution it can hardly be claimed that obscenity which is offensive to modesty or decency is within the Constitutional protection given to free speech or expression, because the article dealing with the right itself excludes it. That cherished right on which our democracy rests is meant for the expression of free opinions to change political or social conditions or for the advancement of human knowledge. This freedom is subject to reasonable restrictions which may be thought necessary in the interest of the general public and one such is the interest of public decency and morality. Section 292, Indian
Penal Code, manifestly embodies such a restriction because the law against obscenity, of course, correctly understood and applied, seeks no more than to promote public decency and morality.

We adhere to this statement and indeed it is applicable to the other spheres where control is tolerated under our fundamental law. The argument that Section 5B of the Cinematograph
Act does not reproduce the full effect of the second clause of Article 19 need not detain us. It appears that the draftsman used a copy of the Constitution as it was before the First Amendment and fell into the error of copying the obsolete clause. That, however, does not make any difference. The Constitution has to be read first and the section next. The latter can neither take away nor add to what the Constitution has said on the subject. The word 'reasonable ' is not to be found in Section 5B but it cannot mean that the restrictions can be unreasonable. Not only the sense of the matter but the existence of the Constitutional provision in pari materia must have due share and reading the previsions of the Constitution we can approach the problem without having to adopt a too liberal construction of Section 5B.
It, therefore, follows that the American and the British precedents cannot be decisive and certainly not the minority view expressed by some of the Judges of the Supreme Court of the former. The American Constitution stated the guarantee in absolute terms without any qualification. The Judges try to give full effect to the guarantee by every argument they can validly use. But the strongest proponent of the freedom (Justice Douglas) himself recognised in the Kingsley case that there must be a vital difference in approach. This is what he said:
If we had a provision in our Constitution for 'reasonable ' regulation of the press such as India has included in hers, there would be room for argument that censorship in the interests of morality would be permissible.

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In spite of the absence of such a provision Judges in America have tried to read the words 'reasonable restrictions ' into the First Amendment and thus to make the rights it grants subject to reasonable regulation. The American cases in their majority opinions, therefore, clearly support a case of censorship.

It would appear from this that censorship of films, their classification according to age groups and their suitability for unrestricted exhibition with or without excisions is regarded as a valid exercise of power in the interests of public morality, decency etc. This is not to be construed as necessarily offending the freedom of speech and expression. This has, however, happened in the United States and therefore decisions, as Justice Douglas said in his Tagore
Law Lectures (1939), have the flavour of due process rather than what was conceived as the purpose of the First Amendment. This is because social interest of the people override individual freedom. Whether we regard the state as the paren patriae or as guardian and promoter of general welfare, we have to concede, that these restraints on liberty may be justified by their absolute necessity and clear purpose. Social interests take in not only the interests of the community but also individual interests which cannot be ignored. A balance has therefore to be struck between the rival claims by reconciling them. The larger interests of the community require the formulation of policies and regulations to combat dishonesty, corruption, gambling, vice and other things of immoral tendency and things which affect the security of the State and the preservation of public order and tranquillity. As Ahrens said the question calls for a good philosophical compass and strict logical methods.
With this preliminary discussion we say that censorship in India (and pre-censorships is not different in quality) has full justification in the field of the exhibition of cinema films. We need not generalize about other forms of speech and expression here for each such fundamental right has a different content and importance. The censorship imposed on the making and exhibition of films is in the interests of society. If the regulations venture into something which goes beyond this legitimate opening to restrictions, they can be questioned on the ground that a legitimate power is being abused. We hold, therefore, that censorship of films including prior restraint is justified under our Constitution.
This brings us to the next question: How far can these restrictions go? And how are they to be imposed? This leads to an examination of the provisions contained in Section 5B(2). That provision authorises the Central government to issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under the Act in sanctioning films for public exhibition.
The first question raised before us is that the legislature has not indicated any guidance to the Central Government. We do not think that this is a fair reading of the section as a whole.
The first sub-section states the principles and read with the second clause of the nineteenth article it is quite clearly indicated that the topics of films or their content should not offend certain matters there set down. The Central Government in dealing with the problem of censorship will have to bear in mind those principles and they will be the philosophical compass and the logical methods of Ahrens. Of course, Parliament can adopt the directions and put them in schedule to the Act (and that may still be done), it cannot be said that there is any delegation of legislative function. If Parliament made a law giving power to close certain roads for certain vehicular traffic at stated times to be determined by the Executive authorities and they made regulations in the exercise of that power, it cannot for a moment be argued that this is insufficient to take away the right of locomotion. Of course, everything may be done by legislation but it is not necessary to do so if the policy underlying regulations is clearly indicated. The Central Government 's regulations are there for consideration in the light of the

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guaranteed freedom and if they offend substantially against that freedom, they may be struck down. But as they stand they cannot be challenged on the ground that any recondite theory of law making or a critical approach to the separation of powers is infringed. We are accordingly of the opinion that Section 5B(2) cannot be challenged on this ground.

This brings us to the manner of the exercise of control and restriction by the directions.
Here the argument is that most of the regulations are vague and further that they leave no scope for the exercise of creative genius in the field of Article This poses the first question before us whether the 'void for vagueness ' doctrine is applicable. Reliance in this connection is placed on
Municipal Committee Amritsar v. State of Rajasthan A.I.R. 1960 S.C. 1100. In that case a
Division Bench of this Court lays down that an Indian Act cannot be declared invalid on the ground that it violates the due process clause or that it is vague. Shah J, speaking for the
Division Bench, observes:
…the rule that an Act of a competent legislature may be 'struck down ' by the courts on the ground of vagueness is alien to our Constitutional system. The
Legislature of the State of Punjab was competent to enact legislation in respect of 'fairs ', vide Entry 28 of List II of the 7th Schedule to the Constitution. A law may be declared invalid by the superior courts in India if the legislature has no power to enact the law or that the law violates any of the fundamental rights guaranteed in Part III of the Constitution or is inconsistent with any Constitutional provision, but not on the ground that it is vague.

The learned Judge refers to the practice of the Supreme Court of the United State in Claude
C. Caually v. General Construction Company (1926) 70 L. Ed. 332 where it was observed :
A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.

The learned Judge observes in relation to this as follows:
But the rule enunciated by the American Courts has no application under our
Constitutional set up. This rule is regarded as an essential of the 'due process clause ' incorporated in the American Constitution by the 5th and 14th
Amendments. The courts in India have no authority to declare a statute invalid on the ground that it violates 'the due process of law '. Under our Constitution, the test of due process of law cannot be applied to the statutes enacted by the Parliament or the State Legislature.

… These observations which are clearly obiter are apt to be too generally applied and need to be explained. While it is true that the principles evolved by the Supreme Court of the United
States of America in the application of the Fourteenth Amendment were eschewed in our
Constitution and instead the limits of restrictions on each fundamental right were indicated in the clauses that follow the first clause of the nineteenth article, it cannot be said as an absolute principle that no law will be considered bad for sheer vagueness. There is ample authority for the proposition that a law affecting fundamental rights may be so considered. A very pertinent example is to be found in State of Madhya Pradesh v. Baldeo Prasad [1961] 1 SCR 970 where the Central Provinces and Berar Goondas Act 1946 was declared void for uncertainty. The condition for the application of Sections 4 and 4A was that the person sought to be proceeded against must be a goonda but the definition of goonda in the Act indicated no tests for deciding which person fell within the definition. The provisions were therefore held to be uncertain and vague. The real rule is that if a law is vague or appears to be so, the court must try to construe it, as far as may be, and language permitting, the construction sought to be placed on it, must be in accordance with the intention of the legislature. Thus if the law is open to diverse

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construction, that construction which accords best with the intention of the legislature and advances the purpose of legislation, is to be preferred. Where however the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution as was done in the case of the Goonda Act. This is not application of the doctrine of due process.
The invalidity arises from the probability of the misuse of the law to the detriment of the individual. If possible, the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases. Judging the directions from this angle, we find that there are general principles regarding the films as a whole and specific instances of what may be considered as offending the public interest as disclosed in the clause that follows the enunication of the freedoms in Article
19(1)(a). The general principles which are stated in the directions seek to do no more than restate the permissible restrictions as stated in Clause (2) of Article 19 and Section 5B(1) of the Act. They cannot be said to be vague at all. Similarly, the principles in Section IV of the directions in relation to children and young persons are quite specific and also salutary and no exception can be taken. It is only the instances which are given in Section I Clauses A to D which need to be considered. Read individually they give ample direction as to what may not be included. It is argued on the basis of some American cases already noticed by us that these expressions are vague. We do not agree. The words used are within the common understanding of the average man. For example the word 'rape ' indicate what the word is, ordinarily, understood to mean. It is hardly to be expected or necessary that the definition of rape in the
Penal Code must be set down to further expose the meaning. The same may be said about almost all the terms used in the directions and discussed before us. We do not propose to deal with each topic for that is really a profitless venture. Fundamental rights are to be judged in a broad way. It is not a question of semantics but of the substance of the matter. It is significant that Justice Douglas who is in favour of a very liberal and absolute application of the First
Amendment in America is of the view that 'sexual promiscuity ' was not vague, while those in favour of prior restraints thought that it was. We have referred earlier to the case. We are quite clear that expressions like 'seduction ', 'immoral traffic in women ', 'soliciting, prostitution or procuration ', 'indelicate sexual situation ' and 'scenes suggestive of immorality ', 'traffic and use of drugs ', 'class hatred ', blackmail associated with immorality ' are within the understanding of the average men and more so of persons who are likely to be the panel for purposes of censorship. Any more definiteness is not only not expected but is not possible. Indeed if we were required to draw up a list we would also follow the same general pattern.
But what appears to us to be the real flaw in the scheme of the directions is a total absence of any direction which would tend to preserve art and promote it. The artistic appeal or presentation of an episode robs it of its vulgarity and harm and this appears to be completely forgotten. Artistic as well as inartistic presentations are treated alike and also what may be socially good and useful and what may not. In Ranjit D. Udeshi 's case this court laid down certain principles on which the obscenity of a book was to be considered with a view to deciding whether the book should be allowed to circulate or withdrawn. Those principles apply mutatis mutandis to films and also other areas besides obscenity. The Khosla Committee also adopted them and recommended them for the guidance of the film censors. We may reproduce them here as summarized by the Khosla Committee:
The Supreme Court laid down the following principles which must be carefully studied and applied by our censors when they have to deal with a film said to be objectionable on the ground of indecency or immorality :(1) Treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more.

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(2) Comparison of one book with another to find the extent of permissible action is not necessary.
(3) The delicate task deciding what is artistic and what is obscene has to be performed by courts and in the last resort, by the Supreme Court and so, oral evidence of men of literature or others on the question of obscenity is not relevant.

(4) An overall view of the obscene matter in the setting of the whole work would of course be necessary but the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity is so decided that it is likely to deprave or corrupt those whose minds are open to influence of this sort and into whose hands the book is likely to fall.
(5) The interests of contemporary society and particularly the influence of the book etc., on it must not be overlooked.
(6) Where obscenity and art are mixed, art must be so preponderating as to throw obscenity into shadow or render the obscenity so trivial and insignificant that it can have no effect and can be overlooked.
(7) Treating with sex in a manner offensive to public decency or morality which are the words of our Fundamental Law judged by our national standards and considered likely to pender to lascivious, prurient or sexually precocious minds must determine the result.
(8) When there is propagation of ideas, opinions and informations or public interests or profits, the interests of society may tilt the scales in favour of free speech and expression. Thus books on medical science with intimate illustrations and photographs though in a sense immodest, are not to be considered obscene, but the same illustrations and photographs collected in a book from without the medical text would certainly be considered to be obscene.
(9) Obscenity without a preponderating social purpose or profit cannot have the
Constitutional protection of free speech or expression. Obscenity is treating with sex in a manner appealing to the carnal side of human nature or having that tendency. Such a treating with sex is offensive to modesty and decency.
(10) Knowledge is not a part of the guilty act. The offender 's knowledge of the obscenity of the book is not required under the law and it is a case of strict liability.

Application of these principles does not seek to whittle down the fundamental right of free speech and expression beyond the limits permissible under our Constitution for however high or cherished that right it does not go to pervert or harm society and the line has to be drawn somewhere. …
We may now illustrate our meaning how even the items mentioned in the directions may figure in films subject either to their artistic merit or their social value over-weighing their offending character. The task of the censor is extremely delicate and his duties cannot be the subject of an exhaustive set of commands established by prior ratiocination. But direction is necessary to him so that he does not sweep within the terms of the directions vast areas of thought, speech and expression of artistic quality and social purpose and interest. Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read.
The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good, We must not look upon such human relationships as banned in toto and forever from human thought and must give scope for talent to put them before society. The requirements of art and literature include within themselves a comprehensive view of social life and not only in its ideal form and the line is to be drawn where the average man moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the

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redeeming touch of art or genius or social value. If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a
Frenchman sees a woman 's legs in everything, it cannot be helped.
In our scheme of things ideas having redeeming social or artistic value must also have importance and protection for their growth. Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral. It should be our concern, however, to prevent the use of sex designed to play a commercial role by making its own appeal. This draws in the censors scissors. Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Latius who committed patricide and incest with his mother. When the seer Tiresias exposed him, his sister Jocasta committed suicide by hanging herself and Oedipus put out his own eyes. No one after viewing these episodes would think that patricide or incest with one 's own mother is permissible or suicide in such circumstances or tearing out one 's own eyes is a natural consequence. And yet if one goes by the letter of the directions the film cannot be shown. Similarly, scenes depicting leprosy as a theme in a story or in a documentary are not necessarily outside the protection. If that were so
Verrier Elwyn 's Phulmat of the Hills or the same episode in Henryson 's Testament of Cresseid
(from where Verrier Elwyn borrowed the idea) would never see the light of the day. Again carnage and bloodshed may have historical value and the depiction of such scenes as the Sack of Delhi by Nadirshah may be permissible, if handled delicately and as part of an artistic portrayal of the confrontation with Mohammad Shah Rangila. If Nadir Shah made golgothas of skulls, must we leave them out of the story because people must be made to view a historical theme without true history? Rape in all its nakedness may be objectionable but Voltaire 's
Candide would be meaningless without Cunegonde 's episode with the soldier and the story of
Lucrece could never be depicted on the screen.
Therefore it is not the elements of rape, leprosy, sexual immorality which should attract the censor 's scissors but how the theme is handled by the producer. It must, however, be remembered that the cinematograph is a powerful medium and its appeal is different. The horrors of war as depicted in the famous etchings of Goya do not horrify one so much as the same scenes rendered in colour and with sound and movement, would do. We may view a documentary on the erotic tableaux from our ancient temples with equanimity or read the
Kamasutra but a documentary from them as a practical sexual guide would be abhorrent.
We have said all this to show that the items mentioned in the directions are not by themselves defective. We have adhered to the 43 points of T. P. O 'Connor framed in 1918 and have made a comprehensive list of what may not be shown. Parliament has left this task to the
Central Government and, in our opinion, this could be done. But Parliament has not legislated enough, nor has the Central Government filled in the gap. Neither has separated the artistic and the sociably valuable from that which is deliberately indecent, obscene, horrifying or corrupting. They have not indicated the need of society and the freedom of the individual. They have thought more of the depraved and less of the ordinary moral man. In their desire to keep films from the abnormal, they have excluded the moral. They have attempted to bring down the public motion picture to the level of home movies.
It was for this purpose that this Court was at pains to point out in Ranjit D. Udeshi 's case certain considerations for the guidance of censorship of books. We think that those guides work as well here. Although we are not inclined to hold that the directions are defective in so far as they go, we are of opinion that directions to emphasize the importance of art to a value judgment by the censors need to be included. Whether this is done by Parliament s or by the
Central Government it hardly matters. The whole of the law and the regulations under it will have always to be considered and if the further tests laid down here are followed, the system

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of censorship with the procedural safeguards accepted by the Solicitor General will make censorship accord with our fundamental law.
We allow this petition as its purpose is more than served by the assurance of the Solicitor
General and what we have said, but in the circumstances we make no order about costs.

AJAY GOSWAMI V. UNION OF INDIA
AIR 2007 SC 493, (2007) 1 SCC 143
Decided On: December 12, 2006
BENCH – JUSTICES DR. AR. LAKSHMANAN & TARUN CHATTERJEE

JUSTICE LAKSHMANAN (for the Court)
The Petitioner is a lawyer by profession. Respondent No. 1 is Union of India, respondent
No. 2 is a statutory body, respondent Nos. 3 & 4 are the leading national daily newspapers and respondent No. 5 & 6 are news agencies.
The present petition involves a substantial question of law and public importance on the fundamental right of the citizens, regarding the freedom of speech and expression as enshrined under Article 19(1)(a) of the Constitution of India. The petitioner 's grievance is that the freedom of speech and expression enjoyed by the newspaper industry is not keeping balance with the protection of children from harmful and disturbing materials. Article 19(1)(a) guarantees freedom of speech and expression of individual as well as press. It acknowledges that the press is free to express its ideas but on the same hand, individual also has right to their own space and right not to be exposed against their will to other 's expressions of ideas and actions. By way of this petition, the petitioner requested the Court to direct the authorities to strike a reasonable balance between the fundamental right of freedom of speech and expression enjoyed by the press and the duty of the Government, being signatory of United Nations
Convention on the Rights of the Child, 1989 and Universal Declaration of Human Rights, to protect the vulnerable minors from abuse, exploitation and harmful effects of such expression.
The petitioner requested the Court to direct the concerned authorities to provide for classification or introduction of a regulatory system for facilitating climate of reciprocal tolerance which may include:
(a) an acceptance of other people 's rights to express and receive certain ideas and actions; and
(b) accepting that other people have the right not to be exposed against their will to one 's expression of ideas and actions.

The reciprocal tolerance is further necessary considering the growing tendency among youngsters and minors in indulging in X-rated jokes, SMS and MMS.
We heard Mr. Ajay Goswami, petitioner-in-person and Mr. Harish Chandra, learned senior counsel, Mr. P.H. Parekh, Mr. Sanjay Kumar, Mr. A.K. Seth, Mr. Gopal Jain, Mr. Vimal
Chandra, Mr. S. Dave, learned Counsel appearing for the respondents and the entire documents placed before us.
The Lawyer Petitioner who appeared in person submitted that he filed this petition to seek protection from this Court to ensure that minors are not exposed to sexually exploitative materials, whether or not the same is obscene or is within the law. The real objective is that the

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nature and extent of the material having sexual contents should not be exposed to the minors indiscriminately and without regard to the age of minor. The discretion in this regard should vest with parents, guardians, teachers or experts on sex education.
The petitioner is not in any way seeking restrain on the freedom of press or any censorship prior to the publication of article or other material. The petitioner is only seeking for the regulation at the receiving end and not at the source. Whatever is obscene is not protected by any law and there are numerous avenues for the redressal of grievance for the publication of any obscene material. However, all sex oriented material are not always obscene or even indecent or immoral. The effect of words or written material should always judged from the standards of reasonable strong minded, firm and courageous man i.e. an average adult human being. No attempt has been made till date to define any yardstick for the minors whose tender minds are open for being polluted and are like plain state on which any painting can be drawn.

Is the material in newspaper really harmful for the minors?
These articles etc. may not be obscene within the four corners of law but certainly have tendencies to deprave and corrupt the minds of young and adolescent who by reasons of their physical and mental immaturity needs special safeguards and care. He invited our attention to some of the clippings annexed along with the petition. These clipping are only examples and such examples not only confine to newspapers mentioned herein but is of general nature. The double meaning jokes cannot in any way leave healthy impact on the tender minds of the teenagers. The photographs certainly are part of news from around the world and India.
However, the tone and tenor of the article as a whole and the way some of the photographs are published and described may not be in the interest of the minors. The photographs annexed at page 24 of the paper book and the caption below them such as “the center of attention”, “double jeopardy” “butt of course” leave much for the thoughts of minors. If the minor is of an age where he/she cannot understand the meaning, he/she would like to know from others and if the minor has come to an age where he/she is able to understand this would certainly energize his grey cells in the brain and would titillate him/her. What kind of culture and message the article titled “moan for more” or “get that zing bag into your sex life” convey. Is it really necessary for a child to read at a very early stage the concept of masturbation, ejaculation, penetration etc. as is normally discussed by so called sex experts in columns of newspapers. At what age should we start telling our children where to have sex and how to break their monotony. News item on MMS clipping is certainly not obscene but do we really need to show the nude photographs with only small black stripes on the private parts to our children without even bothering of its effect. In Times of India dated 1.8.2005 an article titled "Porn In Potter VI" was published, copy of which is annexed with the petition. The author has tried to read and suggest sexual messages in these lines. Children who were reading the book might not have any such inclination. However, after reading newspaper their mind would certainly wander to an area which the author might not have even conceived.
No doubt, we are not living an era of Gandhari but certainly we have culture and respect for elders and some decorum and decency towards children. Undoubtedly, such kind of stuff is available freely on internet, movies, televisions etc. but are the families and the community environment really ready to accept it in toto or are they passive receiver of the same without any control or check. Are these articles really making our children morally healthy? Moral values should not be allowed to be sacrificed in the guise of social change or cultural assimilation. Page 225 of 610

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Whether the minors have got any independent right enforceable under Article 32 of the
Constitution?
The right of the minor flows from Article 19(1)(a), Article 21 read with Article 39(f) of the
Constitution of India and United Nation Convention on the Rights of the Child. In a recent judgment delivered by this Court in the matter of Director General, Directorate General of
Doordarshan v. Anand Patwardhan (2006) 8 SCC 433 , to which one of us was a member, Dr.
Justice AR. Lakshmanan, observed as under:
One of the most controversial issue is balancing the need to protect society against the potential harm that may flow from obscene material, and the need to ensure respect for freedom of expression and to preserve a free flow of information and idea. It was further observed by this Court:
The Indian Penal Code on obscenity grew out of the English Law, which made court the guardian of public morals. It is important that where bodies exercise discretion, which may interfere in the enjoyment of constitutional rights, that discretion must be subject to adequate law.
The judge should thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have in the minds of the readers.

… In Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, this Court observed as follows: The fundamental rights and the directive principles constitute the 'conscience ' of our Constitution… To ignore Part IV is to ignore the sustenance provided for in the Constitution, the hopes held out to the Nation and the very ideals on which our Constitution is built here is no anti-thesis between the fundamental rights and the directive principles. One supplements the other.
… Both Parts III and IV… have to be balanced and harmonized - then alone the dignity of the individual can be achieved… They [fundamental rights and directive principles] were meant to supplement each other.

Mathew, J. while adopting the same approach remarked: (SCC pp. 875-76, para 1700)
The object of the people in establishing the Constitution was to promote justice, social and economic, liberty and equality. The modus operandi to achieve these objectives is set out in Part III and IV of the Constitution. Both parts III and IV enumerate certain moral rights. Each of these parts represent in the main the statements in one sense of certain aspirations whose fulfillment was regarded as essential to the kind of society which the Constitution- makers wanted to build.
Many of the articles, whether in Part III or IV, represents moral rights which they have recognized as inherent in every human being in this country. The tasks of protecting and realizing these rights is imposed upon all organs of the state, namely, legislative, executive and judicial. What then is the importance to be attached to the fact that the provisions of Part III are enforceable in a court and the provisions in Part IV are not? Is it that the rights reflected in the provisions of
Part III are somehow superior to the moral claims and aspirations reflected in the provisions of Part IV or not? I think not. Free and compulsory education under
Article 25, Freedom from starvation is as important as right to life. Nor are the provisions in Part III absolute in the sense that the rights represented by them can always be given full implementation…
………

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Maintainability of Petition
In view of the above facts and circumstances and legal proposition, Mr. Ajay Goswami, the petitioner-in-person submitted that:
i) Newspapers are publishing sex oriented material which may not be obscene otherwise but still caters to prurient interest of the minor. ii) Minors have got fundamental right under Article 19(1)(a), Article 21 read with
Article 39(f) of the Constitution and United Nation Convention on the Rights of the Child. As freedom of speech and expression also includes the expressions of the minors which need care as the minor due to their tender age and mental immaturity are not capable of deciding themselves as to what is in the interest of their growth morally & culturally, so that they can assume their responsibility within the community. iii) The right also flows from Article 21 as the right to live shall also includes right to education as pronounced in the judgments of this Court. By necessary corollary, it shall also mean right to proper education which may be decided by the parents, teachers and other experts and newspapers cannot be allowed to disturb that by their indeterminately access of the offending article to the minors regardless of their age. iv) The State which has the duty to protect the minors by appropriate legislation or executive orders has failed in its duty. The Press Council of India which was constituted for preserving the freedom of press and maintaining and improving the standards of newspapers and news agency is a powerless body. No guidelines have been framed for the minors and adolescents in particular, which can be enforced in Court of law. The Council itself feel the necessity of some strong and effective measure to correct it.
v) The citizens of this country can only pray to this Court to prevent injustice being done to them. This Court under Article 32 read with Article 142 can issue guidelines to ensure the growth of the children in a healthy and moral atmosphere which is exploited by the newspapers.

… Concluding his arguments, Mr. Ajay Goswamy, petitioner-in-person made the following proposals:
i) Guidelines in detail may be issued to all the newspapers regarding the matter which may not be suitable for the reading of minors or which may require parents or teachers discretion. ii) Newspapers should have self regulatory system to access the publication in view of those guidelines. iii) In case the newspapers publishes any material which is categorized in the guidelines the newspaper be packed in some different form and should convey in bold in front of newspapers of the existence of such material. iv) This would give discretion to the parents to instruct the news vendor whether to deliver such newspaper or not.

… In the alternative, he suggested a Committee be appointed to suggest ways and means for regulating the access of minors to adult oriented sexual, titillating or prurient material.
Mr. Harish Chandra, learned senior counsel appearing for Union of India - respondent No.
1 in reply to the arguments of the petitioner submitted that publishing as well as circulating of obscene and nude/semi-nude photographs of women already constitutes a penal offence under the provisions of the Indecent Representation of Women (Prohibition) Act, 1986, administered by the Department of Women & Child Development, Ministry of Human Resources
Development. Relevant Sections 3 & 4 of the Indecent Representation of Women (Prohibition)
Act, 1986 are reproduced hereunder for ready reference:

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3. Prohibition of advertisements containing indecent representation of woman:No person shall publish, or cause to be published or arrange or take part in the publication or exhibition or, any advertisement which contains indecent representation of women in any form.
4. Prohibition of publication or sending by post of books, pamphlets etc. containing indecent representation of women - No person shall produce or cause to be produced, sell, let to hire, distribute or circulate or send by post any book, pamphlet, paper, slide, film, writing drawing, painting, photographs, representation or figure of women in any form, provided that nothing in this section shall apply to:
(a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure:
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure is in the interest of science, literature, art or learning or other object of general concern; or
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented on or in (i) any ancient monument within the meaning of the Ancient Monument and
Archaeological Sites and Remains Act, 1958 (24 of 1958)
(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purposes;
(c) any film in respect of which the provisions of Part II of the Cinematograph
Act, 1952 (37 of 1952), will be applicable.

Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986 provides the penalty for committing such offences in contravention of Sections 3 & 4 of the said Act. Section
6 reads as follows:
6. Penalty- Any person who contravenes the provisions of Sections 3 & 4 shall be punishable on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and in the event of a second or subsequent conviction with imprisonment for a term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lac rupees. It was further submitted that sale, letting, hiring, distributing, exhibiting, circulating of obscene books and objects of young persons under the age of twenty years also constitutes a penal offence under Sections 292 and 293 of the Indian Penal Code and is punishable on first conviction with imprisonment of either description for a term which may extend to two thousand rupees and in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to seven years, and also with fine which may extend to five thousand rupees.
Concluding his submissions, he submitted that there are laws in existence which prohibit publishing, circulating and selling obscene books and objects to young persons and it is the responsibility of the "Press" to adhere to and comply with these laws and not to abuse the freedom of speech and expression (freedom of press) guaranteed under Article 19(1)(a) of the
Constitution of India.
… Learned Counsel appearing for respondent No. 3 (Times of India) contented that legislations, rules and regulations already exists within the Indian legal framework to check publication of obscene materials and articles. Section 292 of the Indian Penal Code prohibits

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and punishes selling, hiring, exhibition, circulation, possession, importation, exportation of obscene material. Sections 3 and 4 of the Indecent Representation of Women Act also imposes a prohibition on the publication or sending by post of books, pamphlets etc, selling, hiring, distributing and circulating any material that contains indecent representation of women in any form. Section 6 of the said Act, also provides for punishment in the case of non- compliance to
Sections 3 and 4 of the Act.
Further he submitted that the Press Council of India is constituted duly under the
Constitution of India for regulating the functions and activities of the Press. Sections 13(2)(c),
14(1) and 14(2) of the Press Council of India Act empowers the Press Council to impose serious checks on the Newspaper, News Agency, an editor or a journalist who flouts the norms as formulated by the Press Council and is against societal norms of decency.
Learned Counsel also submitted that the Indian Constitution under Article 19(1)(a) guarantees every citizen the right to freedom of speech and expression and respondent being a leading Newspaper has the right to express its views and various news of National and
International relevance in its edition and any kind of unreasonable restriction on this right will amount to the violation of the right guaranteed by the Indian Constitution. Learned Counsel referred to a recent judgment of this Court, Director General of Doordarshan v. Anand
Patwardhan, it was observed that the basic test for obscenity would be:
(a) whether the average person applying contemporary community standards would find that the work, taken as a whole appeal to the prurient interest
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically, defined by the applicable state law,
(c) whether the work taken as a whole, lacks serious literary, artistic, political or scientific value.

… Mr. Gopal Jain, learned Counsel appearing for Hindustan Times respondent No. 4, practically adopted the arguments put forth by respondent No. 3. In addition, respondent No. 4 drew our attention to the Guidelines under the "Norms of Journalistic Conduct" which lays down guidelines for newspapers /journalists to maintain standards with regard to obscenity and vulgarity. Norm 17 reads as follows:
Obscenity and vulgarity to be eschewed
i) Newspapers/journalists shall not publish anything which is obscene, vulgar or offensive to public good taste. ii) Newspapers shall not display advertisements which are vulgar or which, through depiction of a woman in nude or lewd posture, provoke lecherous attention of males as if she herself was a commercial commodity for sale. iii) Whether a picture is obscene or not, is to be judged in relation to three tests: namely a) Is it vulgar and indecent?
b) Is it a piece of mere pornography?
c) Is its publication meant merely to make money by titillating the sex feelings of adolescents and among whom it is intended to circulate? In other words, does it constitute an unwholesome exploitation for commercial gain?
Other relevant considerations are whether the picture is relevant to the subject matter of the magazine. That is to say, whether its publication serves any preponderating social or public purpose, in relation to art, painting, medicine, research or reform of sex

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iv) The globalization and liberalization does not give licence to the media to misuse freedom of the Press and to lower the values of the society. The media performs a distinct role and public purpose which require it to rise above commercial consideration guiding other industries and businesses. So far as that role is concerned, one of the duties of the media is to preserve and promote our cultural heritage and social values.
v) Columns such as 'Very Personal ' in a newspaper replying to personal queries of the readers must not become grossly offensive presentations, which either outrage public decency or corrupt public moral.

Learned Counsel contented that, the test of judging should be that of an ordinary man of common sense and prudence and not an "out of the ordinary hypersensitive man". In the case of K.A. Abbas (1970) 2 SCC 780, Hidayatullah, C.J. opined: "If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman 's legs in everything, it cannot be helped."
Learned Counsel further explained the procedure followed by Hindustan Times before the publication of any advertisement, "Advertisements are scrutinized by the advertising department and in the event the advertising department is in doubt, the assistance of the legal department is resorted to. The departments are manned by qualified persons who are well acquainted with the Norms and Guidelines issued by the Press Council."
………

Test of obscenity
This Court has time and again dealt with the issue of obscenity and laid down law after considering the right of freedom and expression enshrined in Article 19(1)(a) of the
Constitution of India, its purport and intent, and laid down the broad principles to determine/judge obscenity.
In a recent Anand Patwardhan … [T]his Court has referred to the Hicklin test laid down in R. Hicklin (1868) LR 3 QB 360 and observed:
(a) whether the average person applying contemporary community standards would find that the work, taken as a whole appeal to the prurient interest.
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically, defined by the applicable state law,
(c) whether the work taken as a whole, lacks serious literary, artistic, political or scientific value.

In Chandrakant Kalyandas Kakodkar v. State of Maharashtra (1969) 2 SCC 687 this Court has held:
In early English writings authors wrote only with unmarried girls in view but society has changed since then to allow litterateurs and artists to give expression to their ideas, emotions and objectives with full freedom except that is should not fall within the definition of 'obscene ' having regard to the standards of contemporary society in which it is read. The standards of contemporary society in India are also fast changing. The adults and adolescents have available to them a large number of classics, novels, stories and pieces of literature which have a content of sex, love and romance. As observed in Udeshi case if a reference to sex by itself is considered obscene, no books can be sold except those which are purely religious. In the field of art and cinema also the adolescent is shown situations which even a quarter of a century ago would be considered derogatory to public morality, but having regard to changed conditions are more taken for granted without in anyway tending to debase or debauch the mind. What we have to see is that whether a class, not an isolated case, into whose hands the book,

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article or story falls suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thought aroused in their minds. The charge of obscenity must, therefore, be judged from this aspect.
………

The American Courts, from time to time, have dealt with the issues of obscenity and laid down parameters to test obscenity. It was further submitted that while determining whether a picture is obscene or not it is essential to first determine as to quality and nature of material published and the category of readers.
… In Butler v. Michigan 352 US 380 (1957) U.S. Supreme Court held as under:
The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely, this is to burn the house to roast the pig.

… In Reno v. American Civil Liberties Union 521 US 844 (1997) it has been held that:
The Federal Government 's interest in protecting children from harmful materials does not justify an unnecessarily broad suppression of speech addressed to adults, in violation of the Federal Constitution 's First Amendment; the Government may not reduce the adult population to only what is fit for children, and thus the mere fact that a statutory regulation of speech was enacted for the important purpose of protecting children from exposure to sexually explicit material does not foreclose inquiry into the statute 's validity under the First Amendment, such inquiry embodies an overarching commitment to make sure that Congress has designed its statute to accomplish its purpose without imposing an unnecessarily great restriction on speech.

In United States v. Playboy Entertainment Group, Inc. 529 US 803 (2000) it has been held that: In order for the State to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.What the Constitution says is that these judgments are for the individual to make, not for the government of decree, even with the mandate or approval of a majority. Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.
………

Where art and obscenity are mixed, what must be seen is whether the artistic, literary or social merit of the work in question outweighs its "obscene" content. This view was accepted by this Court in Ranjit Udeshi v. State of Maharashtra, AIR 1965 SC 881:
Where there is propagation of ideas, opinions and information of public interest or profit the approach to the problem may become different because then the interest of society may tilt the scales in favour of free speech and expression. It is thus that books on medical science with intimate illustrations and photographs, though in a sense immodest, are not considered to be obscene but the same illustrations and photographs collected in book form without the medical text would certainly be considered to be obscene….
Where art and obscenity are mixed, the element of art must be so preponderant as to overshadow the obscenity or make it so trivial/inconsequential that it can be ignored; Obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech.

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………

In judging as to whether a particular work is obscene, regard must be had to contemporary mores and national standards. While the Supreme Court in India held Lady Chatterley 's Lover to be obscene, in England the jury acquitted the publishers finding that the publication did not fall foul of the obscenity test. This was heralded as a turning point in the fight for literary freedom in UK. Perhaps “community mores and standards” played a part in the Indian Supreme
Court taking a different view from the English jury. The test has become somewhat outdated in the context of the internet age which has broken down traditional barriers and made publications from across the globe available with the click of a mouse.
………

… It is necessary that publication must be judged as a whole and the impugned should also separately be examined so as to judge whether the impugned passages are so grossly obscene and are likely to deprave and corrupt.
… In Ranjit Udeshi (Supra) this Court held that the delicate task of deciding what is artistic and what is obscene has to be performed by courts and as a last resort by the Supreme Court and therefore, the evidence of men of literature or others on the question of obscenity is not relevant. However, in Samresh Bose v. Amal Mitra (1985) 4 SCC 289 this Court observed:
In appropriate cases, the court, for eliminating any subjective element or personal preference which may remain hidden in the subconscious mind and may unconsciously affect a proper objective assessment, may draw upon the evidence on record and also consider the views expressed by reputed or recognized authors of literature on such questions as if there by any of his own consideration and satisfaction to enable the court to discharge the duty of making a proper assessment. … In S. Ragarajan v. P. Jagjivam Ram, while interpreting Article 19(2), this Court borrowed from the American test of clear and present danger and observed:
[The] commitment to freedom demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have a proximate and direct nexus with the expression.
The expression of thought should be intrinsically dangerous to the public interest.
In other words, the expression should be inseparably like the equivalent of a 'spark in a power keg '.

… The test for judging a work should be that of an ordinary man of common sense and prudence and not an “out of the ordinary or hypersensitive man.” As Hidayatullah, C.J. remarked in K.A. Abbas:
If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman 's legs in everything, it cannot be helped.

An additional affidavit was filed on behalf of the Press Council of India on 7.8.2006.
Inviting our attention to the said affidavit, Mr. P.H. Parekh submitted that Section 14 of the
Press Council Act, 1978 empowers the Press Council only to warn, admonish or censure newspapers or news agencies and that it has no jurisdiction over the electronic media and that the Press Council enjoys only the authority of declaratory adjudication with its power limited to giving directions to the answering respondents arraigned before it to publish particulars

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relating to its enquiry and adjudication. It, however, has no further authority to ensure that its directions are complied with and its observations implemented by the erring parties. Lack of punitive powers with the Press Council of India has tied its hands in exercising control over the erring publications.
Mr. P.H. Parekh further submitted that prompted by the continued flouting of its observation/directions by some of the Press of the country, the Press Council has recommended to the Government between 1999-2003 to amend the provisions of Section 14(1) of the Press
Council Act, 1978 to arm the Council with the authority to recommend to the Government derecognition of newspapers for Government advertisement or withdrawal of the accreditation granted to a journalist which facilitates performance of his function and also entitles him to claim concession in railways etc. or to recommend de- recognition of a newspaper for the period deemed appropriate for the proposals made. The Press Council of India is yet to receive any response from the Government. The counsel has also filed the copies of the letters written by Justice K.Jayachandra Reddy dated 17.12.2002 and 06.12.2003 issued by the Press Council to the Government of India for extending punitive powers and the amendments proposed by the Council have been annexed to the main writ petition.
In our opinion, the present scenario provides for a regulatory framework under which punishment is prescribed for flouting the standards set by the Press Council of India by newspapers/print media. Further, respondent Nos. 3 & 4 have a self-regulatory mechanism in place and they have to strictly adhere to the standards set by the Press Council Act, 1978.
According to them, the advertisement, news articles and photographs are scrutinized by the advertising department and in the event the advertising department is in doubt, the assistance of the legal department is resorted to. It is also their case that the said departments are manned by qualified persons who are well acquainted with the Norms and Guidelines issued by the press Council. It was also submitted that respondent No. 4, as among others, consistently rejected the publication of liquor and sexually exploitative advertisements, which may offend the sensibilities of families and in contravention it was further submitted that respondent No.
4, keeping in mind, special educational needs of school going children publishes a supplement called "HT Next School Times" every Monday and the respondent does not send any supplement to schools other than "HT Next School Times" along with the main paper. Further, the respondent publishes "HT Next" which is a newspaper positioned mainly for the youth.
This paper too keeps in mind the special needs of the youth of today. The market segment that the respondent 's paper wishes to cater and caters to sections of society interested in business and is keen on gathering information on all fronts of life. It was further submitted that the newspaper intends to give a holistic perspective of the world to an individual. It was submitted that the respondent 's paper has consistently over the last few decades had a large circulation and consistent increase in its circulation each year has not been due to publishing of its supplement "HT City".
In view of the foregoing legal propositions the pictures in dispute had been published by the respondents with the intent to inform readers of the current entertainment news from around the world and India. The respondent 's newspaper seeks to provide a wholesome reading experience offering current affairs, sports, politics as well as entertainment news to keep its readers abreast of all the latest happenings in the world. The pictures that have been published should not be viewed in isolation rather they have to be read with the news reports next to them.
In the event, that a particular news items or picture offends any person they may avail of the remedies available to them under the present legal framework. Any steps to impose a blanket ban on publishing of such photographs, in our opinion, would amount to prejudging the matter as has been held in the matter of Fraser v. Evans 1969 (1) QB 349.

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The definition of obscenity differs from culture to culture, between communities within a single culture, and also between individuals within those communities. Many cultures have produced laws to define what is considered to be obscene, and censorship is often used to try to suppress or control materials that are obscene under these definitions. The term obscenity is most often used in a legal context to describe expressions (words, images, actions) that offend the prevalent sexual morality. On the other hand the Constitution of India guarantees the right of freedom to speech and expression to every citizen. This right will encompass an individual’s take on any issue. However, this right is not absolute, if such speech and expression is immensely gross and will badly violate the standards of morality of a society. Therefore, any expression is subject to reasonable restriction. Freedom of expression has contributed much to the development and well-being of our free society. This right conferred by the Constitution has triggered various issues. One of the most controversial issues is balancing the need to protect society against the potential harm that may flow from obscene material, and the need to ensure respect for freedom of expression and to preserve a free flow of information and idea.
Be that as it may, the respondents are leading newspapers in India they have to respect the freedom of speech and expression as is guaranteed by our constitution and in fact reaches out to its readers any responsible and decent manner. In our view, any steps to ban publishing of certain news pieces or pictures would fetter the independence of free press which is one of the hallmarks of our democratic setup. In our opinion, the submissions and the propositions of law made by the respective counsel for the respondents clearly established that the present petition is liable to be dismissed as the petitioner has failed to establish the need and requirement to curtail the freedom of speech and expression. The Times of India and Hindustan Times are leading newspapers in Delhi having substantial subscribers from all sections. It has been made clear by learned Counsel appearing for the leading newspapers that it is not their intention to publish photographs which cater to the prurient interest. As already stated, they have an internal regulatory system to ensure no objectionable photographs or matters gets published. We are able to see that respondent Nos. 3 & 4 are conscious of their responsibility towards children but at the same time it would be inappropriate to deprive the adult population of the entertainment which is well within the acceptable levels of decency on the ground that it may not be appropriate for the children. An imposition of a blanket ban on the publication of certain photographs and news items etc. will lead to a situation where the newspaper will be publishing material which caters only to children and adolescents and the adults will be deprived of reading their share of their entertainment which can be permissible under the normal norms of decency in any society.
We are also of the view that a culture of 'responsible reading ' should be inculcated among the readers of any news article. No news item should be viewed or read in isolation. It is necessary that publication must be judged as a whole and news items, advertisements or passages should not be read without the accompanying message that is purported to be conveyed to the public. Also the members of the public and readers should not look for meanings in a picture or written article, which is not conceived to be conveyed through the picture or the news item.
We observe that, as decided by the American Supreme Court in United States v. Playboy
Entertainment Group that, “in order for the State to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Therefore, in our view, in the present matter, the petitioner has failed to establish his case clearly. The petitioner only states that the pictures and the news items that are published by the respondents 3 and 4 “leave much for the thoughts of minors”.

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Therefore, we believe that fertile imagination of anybody especially of minors should not be a matter that should be agitated in the court of law. In addition we also hold that news is not limited to Times of India and Hindustan Times. Any hypersensitive person can subscribe to many other Newspaper of their choice, which might not be against the standards of morality of the concerned person.
We, therefore, dismiss the writ petition but however observed that the request made by the
Press Council of India to amend the Section should be seriously looked into by the Government of India and appropriate amendments be made in public interest. No costs.

FREEDOM OF OCCUPATION
CHINTAMAN RAO V. STATE OF MADHYA PRADESH
AIR 1951 SC 118
Decided On: November 08, 1950
BENCH – CHIEF JUSTICE H. L. KANIA, JUSTICES M. C. MAHAJAN, MUKHERJEA, DAS & C.
AIYAR

JUSTICE MAHAJAN (for the Court)
These two applications for enforcement of the fundamental right guaranteed under article
19(1)(g) of the Constitution of India have been made by a proprietor and an employee respectively of a bidi manufacturing concern of District Sagar (State of Madhya Pradesh). It is contended that the law in force in the State authorizing it to prohibit the manufacture of bidis in certain villages including the one wherein the applicants reside is inconsistent with the provisions of Part III of the
Constitution and is consequently void.
The Central Provinces and Berar Regulation of Manufacture of Bidis (Agricultural Purposes)
Act, LXIV of 1948, was passed on 19th October 1948 and was the law in force in the State at the commencement of the Constitution. Sections 3 and 4 of the Act are in these terms:
3. The Deputy Commissioner may by notification fix a period to be an agricultural season with respect to such villages as may be specified therein.
4. (1) The Deputy Commissioner may, by general order which shall extend to such villages as he may specify, prohibit the manufacture of bidis during the agricultural season.
(2) No person residing in a village specified in such order shall during the agricultural season engage himself in the manufacture of bidis, and no manufacturer shall during the said season employ any person for the manufacture of bidis.

On the 13th June 1950 an order was issued by the Deputy Commissioner of Sagar under the provisions of the Act forbidding all persons residing in certain villages from engaging in the manufacture of bidis. On the 19th June 1950 these two petitions were presented to this Court under article 32 of the Constitution challenging the validity of the order as it prejudicially affected the petitioners ' right of freedom of occupation and business. During the pendency of the petitions the season mentioned in the order of the 13th June ran out. A fresh order for the ensuing agricultural season - 8th October to 18th November 1950 - was issued on 29th September 1950 in the same terms.
This order was also challenged in a supplementary petition.
… The point for consideration in these applications is whether the Central Provinces and Berar
Act LXIV of 1948 comes within the ambit of this saving clause or is in excess of its provisions.
The learned counsel for the petitioners contends that the impugned Act does not impose reasonable

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restrictions on the exercise of the fundamental right in the interests of the general public but totally negatives it. In order to judge the validity of this contention it is necessary to examine the impugned
Act and some of its provisions. In the preamble to the Act, it is stated that it has been enacted to provide measures for the supply of adequate labour for agricultural purposes in bidi manufacturing areas. Sections 3 and 4 cited above empower the Deputy Commissioner to prohibit the manufacture of bidis during the agricultural season. The contravention of any of these provisions is made punishable by section 7 of the Act, the penalty being imprisonment for a term which may extend to six months or with fine or with both. It was enacted to help in the grow more food campaign and for the purpose of bringing under the plough considerable areas of fallow land.
The question for decision is whether the statute under the guise of protecting public interests arbitrarily interferes with private business and imposes unreasonable and unnecessarily restrictive regulations upon lawful occupation; in other words, whether the total prohibition of carrying on the business of manufacture of bidis within the agricultural season amounts to a reasonable restriction on the fundamental rights mentioned in article 19(1)(g) of the Constitution. Unless it is shown that there is a reasonable relation of the provisions of the Act to the purpose in view, the right of freedom of occupation and business cannot be curtailed by it.
The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word "reasonable" implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19(1)(g) and the social control permitted by clause (6) of article 19, it must be held to be wanting in that quality.
Clause (6) in the concluding paragraph particularizes certain instances of the nature of the restrictions that were in the mind of the constitution-makers and which have the quality of reasonableness. They afford a guide to the interpretation of the clause and illustrate the extent and nature of the restrictions which according to the statute could be imposed on the freedom guaranteed in clause (g). The statute in sub-stance and affect suspends altogether the right mentioned in article 19(1)(g) during the agricultural seasons and such suspension may lead to such dislocation of the industry as to prove its ultimate ruin. The object of the statute is to provide measures for the supply of the adequate labour for agricultural purposes in bidi manufacturing areas of the Province and it could well be achieved by legislation restraining the employment of agricultural labour in the manufacture of bidis during the agricultural season. Even in point of time a restriction may well have been reasonable if it amounted to a regulation of the hours of work in the business. Such legislation though it would limit the field for recruiting persons for the manufacture of bidis and regulate the hours of the working of the industry, would not have amounted to a complete stoppage of the business of manufacture and might well have been within the ambit of clause (6).
The effect of the provisions of the Act, however, has no reasonable relation to the object in view but is so drastic in scope that it goes much in excess of that object. Not only are the provisions of the statute in excess of the requirements of the case but the language employed prohibits a manufacturer of bidis from employing any person in his business, no matter wherever that person may be residing. In other words, a manufacturer of bidis residing in this area cannot import labour from neighbouring places in the district or province or from outside the province. Such a prohibition on the face of it is of an arbitrary nature inasmuch as it has no relation whatsoever to the object which the legislation seeks to achieve and as such cannot be said to be a reasonable restriction on the exercise of the right. Further the statute seeks to prohibit all persons residing in the notified villages during the agricultural season from engaging themselves in the manufacture of bidis. It cannot be denied that there would be a number of infirm and disabled persons, a number

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of children, old women and petty shop keepers residing in these villages who are incapable of being used for agricultural labour. All such persons are prohibited by law from engaging themselves in the manufacture of bidis; and are thus being deprived of earning their livelihood. It is a matter of common knowledge that there are certain classes of persons residing in every village who do not engage in agricultural operations. They and their womenfolk and children in their leisure hours supplement their income by engaging themselves in bidi business. There seems no reason for prohibiting them from carrying on this occupation. The statute as it stands, not only compels those who can be engaged in agricultural work from not taking to other avocations, but it also prohibits persons who have no connection or relation to agricultural operations from engaging in the business of bidi making and thus earning their livelihood. These provisions of the statute, in our opinion, cannot be said to amount to reasonable restrictions on the right of the applicants and that being so, the statute is not in conformity with the provisions of Part III of the Constitution.
The law even to the extent that it could be said to authorize the imposition of restrictions in regard to agricultural labour cannot be held valid because the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative acting affecting the right. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.
Mr. Sikkri for the Government of Madhya Pradesh contends that the legislature of Madhya
Pradesh was the proper judge of the reasonableness of the restrictions imposed by the statute, that that legislature alone knew the conditions prevailing in the State and it alone could say what kind of legislation could effectively achieve the end in view and would help in the grow more food campaign and would help for bringing in fallow land under the plough and that this Court sitting at this great distance could not judge by its own yardstick of reason whether the restrictions imposed in the circumstances of the case were reasonable or not. This argument runs counter to the clear provisions of the Constitution. The determination by the legislature of what constitutes a reasonable restriction is not final or conclusive; it is subject to the supervision by this Court. In the matter of fundamental rights, the Supreme Court watches and guards the rights guaranteed by the
Constitution and in exercising its functions it has the power to set aside an Act of the Legislature of it is in violation of the freedoms guaranteed by the Constitution. We are therefore of opinion that the impugned statute does not stand the test of reasonableness and is therefore void.
The result therefore is that the orders issued by the Deputy Commissioner on 13th June 1950 and 26th September 1950 are void, inoperative and ineffective. We therefore direct the respondents not to enforce the provisions contained in section 4 of the Act against the petitioners in any manner whatsoever. The petitioners will have their costs of these proceedings in the two petitions.
Petitions allowed.

TMA PAI V. STATE OF KARNATAKA
AIR 2003 SC 355, (2002) 8 SCC 481
Decided On: November 25, 2002
BENCH – CHIEF JUSTICE B. N. KIRPAL, JUSTICES G. B. PATTANAIK, V. N. KHARE, S.
RAJENDRA BABU, SYED SHAH MOHAMMED QUADRI, RUMA PAL, S. N. VARIAVA, K. G.
BALAKRISHNAN, P. VENKATARAMA REDDI, ASHOK BHAN & ARIJIT PASAYAT

CHIEF JUSTICE KIRPAL (for himself, Justices Pattanaik, Babu, Balakrishnan, Reddi & Pasayat,
MAJORITY OPINION) [Justice Khare CONCURRING but wrote his separate opinion]
India is a land of diversity – of different castes, peoples, communities, languages, religions and culture. Although these people enjoy complete political freedom, a vast part of the multitude

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is illiterate and lives below the poverty line. The single most powerful tool for the upliftment and progress of such diverse communities is education. The state, with its limited resources and slowmoving machinery, is unable to fully develop the genius of the Indian people very often the impersonal education that is imparted by the state, devoid of adequate material content that will make the students self-reliant only succeeds in producing potential pen-pushers, as a result of which sufficient jobs are not available.
It is in this scenario where there is a lack of quality education and adequate number of schools and colleges that private educational institutions have been established by educationists, philanthropists and religious and linguistic minorities. Their grievance is that the necessary and unproductive load on their back in the form of governmental control, by way of rules and regulations, has thwarted the progress of quality education. It is their contention that the government must get off their back, and that they should be allowed to provide quality education uninterrupted by unnecessary rules and regulations, laid down by the bureaucracy for its own selfimportance. The private educational institutions, both aided and unaided, established by minorities and non-minorities, in their desire to break free of the unnecessary shackles put on their functioning as modern educational institutions and seeking to impart quality education for the benefit of the community for whom they were established, and others, have filed the present writ petitions and appeals asserting their right to establish and administer educational institutions of their choice unhampered by rules and regulations that unnecessarily impinge upon their autonomy.
… On behalf of all these institutions, the learned counsel have submitted that the Constitution provides a fundamental right to establish and administer educational institutions. With regard to non-minorities, the right was stated to be contained in Article 19(1)(g) and/or Article 26, while in the case of linguistic and religious minorities, the submission was that this right was enshrined and protected by Article 30. It was further their case that private educational institutions should have full autonomy in their administration. While it is necessary for an educational institution to secure recognition or affiliation, and for which purpose rules and regulations or conditions could be prescribed pertaining to the requirement of the quality of education to be provided, e.g., qualifications of teachers, curriculum to be taught and the minimum facilities which should be available for the students, it was submitted that the state should not have a right to interfere or lay down conditions with regard to the administration of those institutions. In particular, objection was taken to the nominations by the state on the governing bodies of the private institutions, as well as to provisions with regard to the manner of admitting students, the fixing of the fee structure and recruitment of teachers through state channels.
… On behalf of the private non-minority unaided educational institutions, it was contended that since secularism and equality were part of the basic structure of the
Constitution the provisions of the Constitution should be interpreted so that the right of the private non-minority unaided institutions were the same as that of the minority institutions. It was submitted that while reasonable restrictions could be imposed under Article 19(6), such private institutions should have the same freedom of administration of an unaided institution as was sought by the minority unaided institutions. …

IS THERE A FUNDAMENTAL RIGHT TO SET UP EDUCATIONAL INSTITUTION
AND IF SO, UNDER WHICH PROVISION?
… With regard to the establishment of educational institutions, three Articles of the
Constitution come into play. Article 19(1)(g) gives the right to all the citizens to practice any profession or to carry on any occupation, trade or business; this right is subject to restrictions that may be placed under Article 19(6). Article 26 gives the right to every religious denomination to establish and maintain an institution for religious purposes, which would

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include an educational institution. Article 19(1)(g) and Article 26, therefore, confer rights on all citizens and religious denominations to establish and maintain educational institutions.
There was no serious dispute that the majority community as well as linguistic and religious minorities would have a right under Article 19(1)(g) and 26 to establish educational institutions. In addition, Article 30(1), in no uncertain terms, gives the right to the religious and linguistic minorities to establish and administer educational institutions of their choice.
We will first consider the right to establish and administer an educational institution under
Article 19(1)(g) of the Constitution and deal with the right to establish educational institutions under Article 26 and 30 in the next part of the judgment while considering the rights of the minorities. Article 19(1)(g) employs four expressions, viz., profession, occupation, trade and business. Their fields may overlap, but each of them does have a content of its own. Education is per se regarded as an activity that is charitable in nature [State of Bombay v. R.M.D.
Chamarbaugwala AIR 1957 SC 699]. Education has so far not been regarded as a trade or business where profit is the motive. Even if there is any doubt about whether education is a profession or not, it does appear that education will fall within the meaning of the expression
"occupation". Article 19(1)(g) uses the four expressions so as to cover all activities of a citizen in respect of which income or profit is generated, and which can consequently be regulated under Article 19(6). In Webster 's Third New International Dictionary at page 1650,
"occupation" is, inter alia, defined as "an activity in which one engages" or "a craft, trade, profession or other means of earning a living".
In Corpus Juris Secundum, Volume LXVII, the word "occupation" is defined as under:The word "occupation" also is employed as referring to that which occupies time and attention; a calling; or a trade; and it is only as employed in this sense that the word is discussed in the following paragraphs.
There is nothing ambiguous about the word "occupation" as it is used in the sense of employing one 's time. It is a relative term, in common use with a wellunderstand meaning, and very broad in its scope and significance. It is described as a generic and very comprehensive term, which includes every species of the genus, and compasses the incidental, as well as the main, requirements of one 's vocation, calling, or business. The word "occupation" is variously defined as meaning the principal business of one 's life; the principal or usual business in which a man engages; that which principally takes up one 's time, thought, and energies; that which occupies or engages the time and attention; that particular business, profession, trade, or calling which engages the time and efforts of an individual; the employment in which one engages, or the vocation of one 's life; the state of being occupied or employed in any way; that activity in which a person, natural or artificial, is engaged with the element of a degree of permanency attached.

A Five Judge Bench in Sodan Singh v. New Delhi Municipal Committee [1989] 3 SCR
1038 at page 174, para 28, observed as follows:
The word occupation has a wide meaning such as any regular work, profession, job, principal activity, employment, business or a calling in which an individual is engaged. … The object of using four analogous and overlapping words in
Article 19(1)(g) is to make the guaranteed right as comprehensive as possible to include all the avenues and modes through which a man may earn his livelihood.
In a nutshell the guarantee takes into its fold any activity carried on by a citizen of India to earn his living.

In Unni Krishnan … while referring to education, it was observed as follows:

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"It may perhaps fall under the category of occupation provided no recognition is sought from the State or affiliation from the University is asked on the basis that it is a fundamental right."

While the conclusion that "occupation" comprehends the establishment of educational institutions is correct, the proviso in the aforesaid observation to the effect that this is so provided no recognition is sought from the state or affiliation from the concerned university is, with the utmost respect, erroneous. The fundamental right to establish an educational institution cannot be confused with the right to ask for recognition of affiliation. The exercise of a fundamental right may be controlled in a variety of ways. For example, the right to carry on a business does not entail the right to carry on a business at a particular place. The right to carry on a business may be subject to licensing laws so that a denial of the licence presents a person from carrying on that particular business. The question of whether there is a fundamental right or not cannot be dependent upon whether it can be made the subject matter of controls.
The establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff, and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is no element of profit generation. It is difficult to comprehended that education, per se, will not fall under any of the four expressions in Article 19(1)(g).
"Occupation" would be an activity of a person undertaken as a means of livelihood or a mission in life. The above quoted observations in Sodan Singh correctly interpret the expression "occupation" in Article 19(1)(g). …

IN CASE OF PRIVATE INSTITUTIONS, CAN THERE BE GOVERNMENT
REGULATIONS AND, IF SO, TO WHAT EXTENT?

Private Unaided Non-Minority Educational Institutions
Private education is one of the most dynamic and fastest growing segments of postsecondary education at the turn of the twenty-first century. A combination of unprecedented demand for access to higher education and the inability or unwillingness of government to provide the necessary support has brought private higher education to the forefront. Private institutions, with a long history in many countries, are expanding in scope and number, and are becoming increasingly important in parts of the world that relied almost entirely on the public sector.
Not only has demand overwhelmed the ability of the governments to provide education, there has also been a significant change in the way that higher education is perceived. The idea of an academic degree as a "private good" that benefits the individual rather than a "public good" for society is now widely accepted. The logic of today 's economics and an ideology of privatization have contributed to the resurgence of private higher education, and the establishing of private institutions where none or very few existed before.
The right to establish and administer broadly comprises of the following rights:a)
b)
c)
d)
e)

to admit students: to set up a reasonable fee structure: to constitute a governing body; to appoint staff (teaching and non-teaching); and to take action if there is dereliction of duty on the part of any employees.

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A University Education Commission was appointed on 4th November, 1948, having Dr.
S. Radhakrishnan as its Chairman and nine other renowned educationists as its members. The terms of reference, inter alia, included matters relating to means and objects of university education and research in India and maintenance of higher standards of teaching and examining in universities and colleges under their control. In the report submitted by this
Commission, in paras 29 and 31, it referred to autonomy in education which reads as follows:University Autonomy. -- Freedom of individual development is the basis of democracy. Exclusive control of education by the State has been an important factor in facilitating the maintenance of totalitarian tyrannies. In such States institutions of higher learning controlled and managed by governmental agencies act like mercenaries, promote the political purposes of the State, make them acceptable to an increasing number of their populations and supply then with the weapons they need. We must resist, in the interests of our own democracy, the trend towards the governmental domination of the educational process.
Higher educational is, undoubtedly, an obligation of the State but State aid is not to be confused with State control over academic policies and practices.
Intellectual progress demands the maintenance of the spirit of free inquiry. The pursuit and practice of truth regardless of consequences has been the ambition of universities. Their prayer is that of the dying Goethe: "More light," or that Ajax in the mist "Light, though I perish in the light. xxx xxx xxx
The respect in which the universities of Great Britain are held is due to the freedom from governmental interference which they enjoy constitutionally and actually. Our universities should be released from the control of politics.
Liberal Education. -- All education is expected to be liberal. It should free us from the shackles of ignorance, prejudice and unfounded belief. If we are incapable of achieving the good life, it is due to faults in our inward being, to the darkness in us. The process of education is the slow conquering of this darkness.
To lead us from darkness to light, to free us from every kind of domination except that of reason, is the aim of education.

There cannot be a better exposition than what has been observed by these renowned educationists with regard to autonomy in education. The aforesaid passage clearly shows that the governmental domination of the educational process must be resisted. Another pithy observation of the Commission was that state aid was not to be confused with state control over academic policies and practices. The observations referred to hereinabove clearly contemplate educational institutions soaring to great heights in pursuit of intellectual excellence and being free from unnecessary governmental controls.
With regard to the core components of the rights under Article 19 and 26(a), it must be held that while the state has the right to prescribe qualifications necessary for admission, private unaided colleges have the right to admit students of their choice, subject to an objective and rational procedure of selection and the compliance of conditions, if any, requiring admission of a small percentage of students belonging to weaker sections of the society by granting them freeships or scholarships, if not granted by the Government. Furthermore, in setting up a reasonable fee structure, the element of profiteering is not as yet accepted in Indian conditions. The fee structure must take into consideration the need to generate funds to be utilized for the betterment and growth of the educational institution, the betterment of education in that institution and to provide facilities necessary for the benefit of the students.
In any event, a private institution will have the right to constitute its own governing body, for which qualifications may be prescribed by the state or the concerned university. It will, however, be objectionable if the state retains the power to nominate specific individuals on governing bodies. Nomination by the state, which could be on a political basis, will be an

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inhibiting factor for private enterprise to embark upon the occupation of establishing and administering educational institutions. For the same reasons, nomination of teachers either directly by the department or through a service commission will be an unreasonable inroad and an unreasonable restrictions on the attorney of the private unaided educational institution.
The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a government body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions. The Constitution recognizes the right of the individual or religious denomination, or a religious or linguistic minority to establish an educational institution. If aid or financial assistance is not sought, then such institution will be a private unaided institution. Although, in Unni Krishnan 's case, the Court emphasized the important role played by private unaided institutions and the need for private funding, in the scheme that was framed, restrictions were placed on some of the important ingredients relating to the functioning of an educational institution. There can be no doubt that in seeking affiliation or recognition, the Board or the university or the affiliating or recognizing authority can lay down conditions consistent with the requirement to ensure the excellence of education. It can, for instance, indicate the quality of the teachers by prescribing the minimum qualifications that they must possess, and the courses of study and curricula. It can, for the same reasons, also stipulate the existence of infrastructure sufficient for its growth, as a pre-requisite. But the essence of a private educational institution is the autonomy that the institution must have in its management and administration. There, necessarily, has to be a difference in the administration of private unaided institutions and the government-aided institutions. Whereas in the latter case, the
Government will have greater say in the administration, including admissions and fixing of fees, in the case of private unaided institutions, maximum autonomy in the day-to-day administration has to be with the private unaided institutions. Bureaucratic or governmental interference in the administration of such an institution will undermine its independence.
While an educational institution is not a business, in order to examine the degree of independence that can be given to a recognized educational institution, like any private entity that does not seek aid or assistance from the Government, and that exists by virtue of the funds generated by it, including its loans or borrowings, it is important to note that the essential ingredients of the management of the private institution include the recruiting students and staff, and the quantum of fee that is to be charged.
An educational institution is established for the purpose of imparting education of the type made available by the institution. Different courses of study are usually taught by teachers who have to be recruited as per qualifications that may be prescribed. It is no secret that better working conditions will attract better teachers. More amenities will ensure that better students seek admission to that institution. One cannot lose sight of the fact that providing good amenities to the students in the form of competent teaching faculty and other infrastructure costs money. It has, therefore, to be left to the institution, if it chooses not to seek any aid from the government, to determine the scale of fee that it can charge from the students. One also cannot lose sight of the fact that we live in a competitive world today, where professional education is in demand. We have been given to understand that a large number of professional and other institutions have been started by private parties who do not seek any governmental aid. In a sense a prospective students has various options open to him/her where, therefore, normally economic forces have a role to play. The decision on the fee to be charged must

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necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the government.
We, however, wish to emphasize one point, and that is that inasmuch as the occupation of education is, in a sense, regarded as charitable, the government can provide regulations that will ensure excellence in education, while forbidding the charging of capitation fee and profiteering by the institution. Since the object of setting up an educational institution is by definition "charitable", it is clear that an educational institution cannot charge such a fee as is not required for the purpose of fulfilling that object. To put it differently, in the establishment of an educational institution, the object should not be to make a profit, inasmuch as education is essentially charitable in nature. There can, however, be a reasonable revenue surplus, which may be generated by the educational institution for the purpose of development of education and expansion of the institution.
For admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants.
Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies.
Education is taught at different levels from primary to professional. It is, therefore, obvious that government regulations for all levels or types of educational institutions cannot be identical; so also, the extent of control or regulation could be greater vis-à-vis aided institutions. In the case of unaided private schools, maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged. At the school level, it is not possible to grant admission on the basis of merit. It is no secret that the examination results at all levels of unaided private schools, notwithstanding the stringent regulations of the governmental authorities, are far superior to the results of the government-maintained schools. There is no compulsion on students to attend private schools. The rush for admission is occasioned by the standards maintained in such schools, and recognition of the fact that state-run schools do not provide the same standards of education. The State says that it has no funds to establish institutions at the same level of excellence as private schools. But by curtaining the income of such private schools, it disables those schools from affording the best facilities because of a lack of funds. If this lowering of standards from excellence to a level of mediocrity is to be avoided, the state has to provide the difference which, therefore, brings us back in a vicious circle to the original problem, viz., the lack of state funds. The solution would appear to lie in the States not using their scanty resources to prop up institutions that are able to otherwise maintain themselves out of the fees charged, but in improving the facilities and infrastructure of state-run schools and in subsidizing the fees payable by the students there. It is in the interest of the general public that more good quality schools are established; autonomy and nonregulation of the school administration in the right of appointment, admission of the students

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and the fee to be charged will ensure that more such institutions are established. The fear that if a private school is allowed to charge fees commensurate with the fees affordable, the degrees would be "purchasable" is an unfounded one since the standards of education can be and are controllable through the regulations relating to recognition, affiliation and common final examinations. There is a need for private enterprise in non-professional college education as well. At present, insufficient number of undergraduate colleges are being and have been established, one of the inhibiting factors being that there is a lack of autonomy due to government regulations. It will not be wrong to presume that the numbers of professional colleges are growing at a faster rate than the number of undergraduate and non-professional colleges.
While it is desirable that there should be a sufficient number of professional colleges, it should also be possible for private unaided undergraduate colleges that are non-technical in nature to have maximum autonomy similar to a school.
It was submitted that for maintaining the excellence of education, it was important that the teaching faculty and the members of the staff of any educational institution performed their duties in the manner in which it is required to be done, according to the rules or instructions. There have been cases of misconduct having been committed by the teachers and other members of the staff. The grievance of the institution is that whenever disciplinary action is sought to be taken in relation to such misconduct, the rules that are normally framed by the government or the university are clearly loaded against the Management. It was submitted that in some cases, the rules require the prior permission of the governmental authorities before the intimation of the disciplinary proceeding, while in other cases, subsequent permission is required before the imposition of penalties in the case of proven misconduct. While emphasizing the need for an independent authority to adjudicate upon the grievance of the employee or the Management in the event of some punishment being imposed, it was submitted that there should be no role for the government or the university to play in relation to the imposition of any penalty on the employee.
An educational institution is established only for the purpose of imparting education to the students. In such an institution, it is necessary for all to maintain discipline and abide by the rules and regulations that have been lawfully framed. The teachers are like foster-parents who are required to look after, cultivate and guide the students in their pursuit of education.
The teachers and the institution exist for the students and not vice versa. Once this principle is kept in mind, it must follow that it becomes imperative for the teaching and other staff of an educational institution to perform their duties properly, and for the benefit of the students.
Where allegations of misconduct are made, it is imperative that a disciplinary enquiry is conducted, and that a decision is taken. In the case of a private institution, the relationship between the Management and the employees is contractual in nature. A teacher, if the contract so provides, can be proceeded against, and appropriate disciplinary action can be taken if the misconduct of the teacher is proved. Considering the nature of the duties and keeping the principle of natural justice in mind for the purposes of establishing misconduct and taking action thereon, it is imperative that a fair domestic enquiry is conducted. It is only on the basis of the result of the disciplinary enquiry that the management will be entitled to take appropriate action. We see no reason why the Management of a private unaided educational should seek the consent or approval of any governmental authority before taking any such action. In the ordinary relationship of master and servant, governed by the terms of a contract of employment, anyone who is guilty of breach of the terms can be proceeded against and appropriately relief can be sought. Normally, the aggrieved party would approach a court of law and seek redress. In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking

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redress is not in the interest of general education. Disputes between the management and the staff of educational institutions must be decided speedily, and without the excessive incurring of costs. It would, therefore, be appropriate that an educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an educational tribunal in a State -- the object being that the teacher should not suffer through the substantial costs that arise because of the location of the tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings in different districts to achieve this objective. Till a specialized tribunal is set up, the right of filing the appeal would lie before the District Judge or Additional District Judge as notified by the government. It will not be necessary for the institution to get prior permission or ex post facto approval of a governmental authority while taking disciplinary action against a teacher or any other employee. The State
Government shall determine, in consultation with the High Court, the judicial forum in which an aggrieved teacher can file an appeal against the decision of the management concerning disciplinary action or termination of service.
The reputation of an educational institution is established by the quality of its faculty and students, and the educational and other facilities that the co