# [1952) THE STATE OF WEST BENGAL v. ANWAR ALI SARKAR HABIB MOHAMED

- **Citation:** [1952] 1 S.C.R. 284
- **Court:** Supreme Court of India
- **Decided:** 1952
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1952-the-state-of-west-bengal-v-anwar-ali-sarkar-habib-mohamed-9
- **Pages:** 84

## Headnote

'1952
/<1n. 11
284
SUPREME COURT REPORTS
. [1952)
THE STATE OF WEST BENGAL
v.
ANWAR ALI SARKAR
HABIB MOHAMED,
I
THE STATE OF HYDERABAD, and J·
THE STATE OF MYSORE
THE ST A TE OF WEST BENGAL
fl.
GAJAN MALI
lntervcners.
[PATANJALI
SAs'i'RI
C.J.,
FAZL Au, MEim
CHAND
MAHAJAN,
MuKHERJEA,
DAs,
CHANDRASEKHARA
A1Y AR and VIVIAN
BosE JJ.]
West Bengal Spetial Courts Act (X of 1950), ss. 3, 5-Constitulion of India, Art. 14-Act constituting special courts and empower~
ing State Government to refer "cases" or noffences,, or "classes of
cases" or "classes of offencel' to such Court-Constitutional validity
-Fundamental right to equality before the law and equal protection
of the laws-Construction of Act-Reference to preamble-Act not
classifying cases or laying down standard for classification-lnten·
tion of legislature hotu far material-Validity of notification under
Act-Test of equality before law-Essentials of reasonable classifica.
tion-N ecessity of speedier trial, whether reasonablt: ground
for
discrimination.
The West Bengal Special Courts Act (X of 1950) was entitled
uAn Act to provide
for the speedier trial of certain
offences~"
and the object of the Act, as declared in the preamble,
was
"to provide for the speedier trial of certain offences".
Section 3
of the Act empowered the State Government by notification
in
the official gazette to constitute Special Courts, and sec. 5 pro-.
vided 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.n
The
Act
laid down a procedure for trial before Special Courts which was
different in several respects from that laid down by the Criminal
Procedure Code for trial of offences generally.
The
respondent,
who was convicted by a Special Court which tried his case under
a notification issued by the Government under sec. 5, contended
·that the said section was unconstitutional and void inasmuch as
it contravened Art. 14 of the Constitutiorl,
which provides that
"the State shall not deny to any person equality before the law
or the equal protection of the laws
Within
the tertitory
of
India":
.
..
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-i-.
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, .
S.C.R.
SUPREME COURT REPORTS
285
Held, per FAZL Au, MAHAJAN, MuKHERJEA, ·CHANDRASEKHARA
AIYAR and BosE JJ. (PATANJALI
SAsTRI C. ]., dissenting)-Section 5 ( 1) of the West Bengal Special Courts Acti, 1950, contravenes Art. 14 of the Constitution and is void inasmuch as (per
FAZL
Au,
MAHAJAN,
MuKHERJEA,
and
CHANDRASEKHARA
A1YAR JJ.)
the procedure laid
down
by
the Act for
the
trial by the Special Courts varied substantially from that laid
down for the trial of offences generally by the Code of Criminal
Procedure and the Act did not classify, or lay down any basis for
classification, of the cases vthich may be directed to be tried by
the Special Court, but left it to the uncontrolled
discretion
of
the State Government to direct any case which it liked to be
tried by the Special Court.
DAs ].-Section 5 ( 1 )of the Act,
in so far as it empowered the State Government to direct
"offences" or "classes of offences" or "classes of cases" to be
tried by a Special Court, does not confer an uncontrolled and
unguided power on
the State Government but by
necessary
implication contemplates. a proper classification and is not void.
That part of the section which empowered
the
Government to
direct "cases" as distinct from "classes of cases" to be tried by a
Special Court is void.
PATANJALI SAsTRI C. ].-Section 5 (I) ot
the Act is not void or unconstitutional wholly or even in part.
Per FAZL Au, MAHAJAN,
MuKHERJEA
and
CHANDRASEKHAR.\
ArYAR JJ.-A rule of procedure laid down by law comes as much
within the purview of Art. 14 of the Constitution as any rule of
substantive law and it is necessary that all litigants, who arc
similarly situated, are able to avail themselves of the
same
procedural rights for relief and for defence with like protection
and without discrimination.
(ii) If it is e

## Text

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'1952
/<1n. 11
284
SUPREME COURT REPORTS
. [1952)
THE STATE OF WEST BENGAL
v.
ANWAR ALI SARKAR
HABIB MOHAMED,
I
THE STATE OF HYDERABAD, and J·
THE STATE OF MYSORE
THE ST A TE OF WEST BENGAL
fl.
GAJAN MALI
lntervcners.
[PATANJALI
SAs'i'RI
C.J.,
FAZL Au, MEim
CHAND
MAHAJAN,
MuKHERJEA,
DAs,
CHANDRASEKHARA
A1Y AR and VIVIAN
BosE JJ.]
West Bengal Spetial Courts Act (X of 1950), ss. 3, 5-Constitulion of India, Art. 14-Act constituting special courts and empower~
ing State Government to refer "cases" or noffences,, or "classes of
cases" or "classes of offencel' to such Court-Constitutional validity
-Fundamental right to equality before the law and equal protection
of the laws-Construction of Act-Reference to preamble-Act not
classifying cases or laying down standard for classification-lnten·
tion of legislature hotu far material-Validity of notification under
Act-Test of equality before law-Essentials of reasonable classifica.
tion-N ecessity of speedier trial, whether reasonablt: ground
for
discrimination.
The West Bengal Special Courts Act (X of 1950) was entitled
uAn Act to provide
for the speedier trial of certain
offences~"
and the object of the Act, as declared in the preamble,
was
"to provide for the speedier trial of certain offences".
Section 3
of the Act empowered the State Government by notification
in
the official gazette to constitute Special Courts, and sec. 5 pro-.
vided 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.n
The
Act
laid down a procedure for trial before Special Courts which was
different in several respects from that laid down by the Criminal
Procedure Code for trial of offences generally.
The
respondent,
who was convicted by a Special Court which tried his case under
a notification issued by the Government under sec. 5, contended
·that the said section was unconstitutional and void inasmuch as
it contravened Art. 14 of the Constitutiorl,
which provides that
"the State shall not deny to any person equality before the law
or the equal protection of the laws
Within
the tertitory
of
India":
.
..
·-""
--- .
-i-.
,. .
-
, .
S.C.R.
SUPREME COURT REPORTS
285
Held, per FAZL Au, MAHAJAN, MuKHERJEA, ·CHANDRASEKHARA
AIYAR and BosE JJ. (PATANJALI
SAsTRI C. ]., dissenting)-Section 5 ( 1) of the West Bengal Special Courts Acti, 1950, contravenes Art. 14 of the Constitution and is void inasmuch as (per
FAZL
Au,
MAHAJAN,
MuKHERJEA,
and
CHANDRASEKHARA
A1YAR JJ.)
the procedure laid
down
by
the Act for
the
trial by the Special Courts varied substantially from that laid
down for the trial of offences generally by the Code of Criminal
Procedure and the Act did not classify, or lay down any basis for
classification, of the cases vthich may be directed to be tried by
the Special Court, but left it to the uncontrolled
discretion
of
the State Government to direct any case which it liked to be
tried by the Special Court.
DAs ].-Section 5 ( 1 )of the Act,
in so far as it empowered the State Government to direct
"offences" or "classes of offences" or "classes of cases" to be
tried by a Special Court, does not confer an uncontrolled and
unguided power on
the State Government but by
necessary
implication contemplates. a proper classification and is not void.
That part of the section which empowered
the
Government to
direct "cases" as distinct from "classes of cases" to be tried by a
Special Court is void.
PATANJALI SAsTRI C. ].-Section 5 (I) ot
the Act is not void or unconstitutional wholly or even in part.
Per FAZL Au, MAHAJAN,
MuKHERJEA
and
CHANDRASEKHAR.\
ArYAR JJ.-A rule of procedure laid down by law comes as much
within the purview of Art. 14 of the Constitution as any rule of
substantive law and it is necessary that all litigants, who arc
similarly situated, are able to avail themselves of the
same
procedural rights for relief and for defence with like protection
and without discrimination.
(ii) 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,
it is
not
inc um bent upon
him before he can claim relief on the basis of
fundamental rights to assert and prove that, in making the Jaw,
the legislature was actuated by
a hostile
or inimical intention
against a particular person or class ; nor would the operation of
Art. 14 be excluded merely because it is proved that the legislature had no intention to discriminate, though
discrimination
was the necessary consequence of the Act. The question of
intention may arise in ascertaining whether an officer acted mala
fide or not ; but it cannot arise
when
discrimination follows
or arises on the express terms of the law itself.
(iii) The language of sec. 5 (1) clearly and unambiguously vests
the State Government with unrestricted discretion to direct any
cases or class of cases to be tried by the Special Court, not a
discretion to refer cases only when it is of opinion that a speedier
trial is necessary.
1952
The State of
West Bengal
v.
Anwar Ali
Sarkar.
1952
The State of
West Bengal
v.
Anwar Ali
Sarkar.·
286
SUPREME COURT REPORTS
[1952]
(iv) Assuming that the preamble throws any light on the section, the necessity of speedier trial is too vague, uncertain and
elusive a criterion to form a rational basis for discrimination.
(v) It cannot be said that an Act does not contravene the
equality rule 'laid down by Art. 14 simply because it
confers
unregulated discretion on officers or adn1inistrative bodies.
The
true position is that if the statute itself is not discriminatory
the charge of violation of the article
may
be only against the
official who administers it, but if the statute itself makes a
dis~
crimination without any proper or reasonable basis,
it would
be
void for being in conflict with Art. 14.
(vi) The notification issued under the Act in the present case
would also come within the definiton
of law and could be
impeached apart from the Act if it violates Art. 14.
DAs J.--(1) Article 14 does not insist that every piece of legislation must have universal application and it does not take
away
from the State the power to classify persons for the purposes of
legislation, but the classification must be rational, and in order
to satisfy this test (i) the classification must be founded on an
intelligible differentia which distinguished those that are grouped
together from others, and (ii) 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.
But the· mere fact
that the inequality has not been made with the special intention
of prejudicing a particular person or persons but in the general
interest of administration will not validate a law if in fact it
results in inequality of treatlnent.
Nor can the constitutionality
of a statute depend on the degree of the inequality brought about
by ihe law.
·
(2) Although the preamble to an Act cannot override the plain
meaning of its operative parts,
it
may
nevertheless assist
in
ascertaining what the true meaning or implication of a particular
section is ; and the part
of sec. 5 (I) of the Act which relates to
"offences", "classes of offences" and
"classes of cases",
construed
in the light of the preamble, does not confer an
uncontrolled
and unguided power on the State Government, but by necessary
implication and intendment empowers the State to
classify the
offences or classes of offences or classes of cases, that is to say,
to make a proper classification having a relation to the object of
the Act as recited in the preamble;
and
this part of sec. 5(1)
does not therefore contravene Art. 14.
(3) That part of sec. 5(1) which empowers the State Government to direct "cases" as distinct from "classes of cases" to be
i;ried hy the Special Court lies beyond the ambit of the object
laid down by the preamble and contemplates and involves
a
purely arbitrary selection based
on
nothing more
substantial
•
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...
i.
S.C.R.
SUPREME COURT REPORTS
than the whim and pleasure of the State Government without
any appreciable relation to the necessity for a speedier trial and
therefore offends against the provisions of Art. 14 and is void.
BosE J .-The test under Art. 14 is neither classification nor
whether there is absolute equality in any academical sense
of
the term but whether the collective conscience of a sovereign
democratic republic as reflected in the views of fair-minded,
reasonable, unbiassed men, who are not swayed by emotion
or
prejudice, can consider the impunged laws as reasonable, just and
fair and regard them as that equal treatment and protection
in
the defence of liberties which is expected of a sovereign democratic
republic in the conditions which obtain in India to-day.
PATANJALI
SAsTRI
C. J.
(dissenting).-Section 5 (1) of the
impunged Act is not void or unconstitutional wholly or even in
part because : ( 1) The words in the enacting part of a statute
must be confined to that which is the plain object and
general
intention of the legislature in passing the Act and the preamble
affords a good clue to discover what that object was. The title
and the preamble of the Act in the present case show unmistakably that the whole object and purpose of the Act was to devise
machinery for the speedier trial of certain offences.. The
discretion intended to . be exercised by the State Government must be
exercised bona fide on a consideration of the
special features
or
circumstances which call for comparatively prompt disposal of a
case or cases proposed to be referred and sec. 5 ( 1) must be read
as empowering the Government to direct the Special Court
ro
try such offences or classes of offences or cases or classes of cases
as in its judgment, require speedier trial.
(2) Article 14 of the
Constiution does not mean that all laws must be
general in
character and universal in application.
The State must
possess
the power of distinguishing and classifying persons or things ro
be subjected to particular laws and
in making a classification
the legislature must be allowed a wide latitude of discretion and'.
judgment.
The classification
is justified if it is not
palpably
arbitrary but is founded on a reasonable basis having regard
to
the object to be attained. (3) The powers of the legislature must
include the power of entrusting an administrative body
with
a
plenary but not arbitrary discretion to be exercised · so
as
to·
carry out the purpose of the Act and the mere fact that the
discretion might be exei;:cised arbitrarily by the administrative
body cannot make the law itself unconstitutional. ( 4) The impugned Act does not in terms or by implication discriminate 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. (5}
Even from the point of view of reasonable classification the expediency of speedier trial is not too vague or indefinite to be the·
basis of classification.
( 6) The notification of
the
Government
in the present case referring the case to the Special Court did not
contravene Art. 14 and is not void inasmuch as there is nothing
4-4 S. C.India/71
1952
The State of
West Bengal
v.
Anwar Ali
Sarkar.
1952
The St•le of
Wesl Bengal
v.
Anwll1' Ali
Sark"'·
288
SUPREME COURT REPORTS
[1952]
to show that the Government was influenced by any discriminatory motive or design or acted arbitrarily, but on the other
hand there are obviously special features which mark off the
group of cases referred as requiring speedier disposal.
Judgment of the Calcutta High Court affirmed.
Romesh Tappar v. The Stale of Madras ([1950] S.C.R. 594),
Chintaman Rao v. State of Madhya Pradesh ([1950] S.C.R. 759),
Dr. Khare's Case ([1950] S.C.R. 519), Chiranjit Lal v. Union of
India and Others ([1950] S.C.R. 869) and Stale of Bombay v. F. N.
Balsara ([1951] S.C.R. 682), explained.
Truax v. Corrigan (257 U.S. 312), Yick. Wo v. Hopk.int (ll8 U.S.
356) and other American cases on the right to equal
prot<:ction
of the laws considered.
APPELLATE
CIVIL
JuRJsmcTioN : Cases Nos. 297
and 298 of 1951.
Appeals under Art. 132 (1) of the Constitution from
the judgment and order dated 28th August, 1951, of
the High Court of Judicature at Calcutta (Harries C.J.,
Chakravarthi, Das, Banerjee and S. R. Das Gupta JJ.)
in Civil Revision Cases Nos. 942 and 1113 of
1951.
The facts of the case and the argument of Counsel
appear fully in the judgment.
M. C. Setalvad, Attorney-General for India (B. Sen,
with him) for the appellant in Case No. 297.
fitendra Nath Ghose (R. P. Bagchi, with h'im) for
the respondent in Case No. 297.
A. A. Peerbhoy and /. B. Dadachanji
for
Habib
Mohammad (Intervener).
V. Rajaram Iyer,
Advocate-General of Hydei-abad
(R.
Ganapathy
Iyer, with him) for
the State of
Hyderabad.
A. R. Somanatha Iyer, Advocate-General of Mysore
(K. Ramaseshayya Chaudhry, with him) for the State
of Mysore.
B. Sen, for the appellant in Case No. 298.
N. C. Chatterjee (S. K. Kapur, with him) for the
respondent in Case No. 298.
1952.
January 11.
The following judgments were
delivered.
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S.C.R.
SUPREME COURT REPORTS
289
PATANJALI SAsTRI C. J.-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
:md directed the trial of the respondent and the other
accused persons according to law. Hence the appeal.
The Act is intituled "An Act to provide for the
speedier trial of certain offences", and the
preamble
declares that "it is expedient
to
provide
for the
speedier trial of certain offences". Section 3 empowers
the State Government 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 S, whose constitutionality
is impugned, runs thus :
1952
The Stat1 of
West Bengal
v.
Anwar Ali
Sarkar.
Patanjali
Sastri C. /.
1952
The State of
West Bengal
v.
Anwar Ali
Sarkar.
Pataniali
Sastri C. /.
290
SUPREME COURT REPORTS
[1952]
"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 court 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 the 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 with refractory accused
and
dispens- ·
ation of de novo trial on transfer of 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
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S.C.R.
SUPREME COURT REPORTS
291
by the Code of Criminal Proce<lu°re 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 !5'tle
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 i!n the section".
He realised that "the
powers under the sub-section could be
so exercised
as
not to involve discriminati.on, but they also could, in
my view, be exercised m 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
observations in the judgment of the majority
m
the
Crossroads case(1).
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 inas-,
much 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 constitl!tional prohibition
under article 14 it IS necessary to ascertain the true
scope and intendment of the impugned provision.
It
0) [lllSO] s.c.R. 594, 603 ..
1952
The State of
West Bengal
v.
Anwar Ali
Sarkar.
Pataniali
Sastri C. T.
1952
The State of
West Bengal
v.
.4•war Ali
Sarkar.
Potaniali
Stzstri C. f.
292
SUPREME COURT REPORTS
[1952}
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(') : "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 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
lnsc. Co.('). "The object
of
the
law,
we
assume,
until the lower Court shall decide otherwise, is singleto keep up competition-and the general language is
to be restricted by the specific provisions
apd 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
(I) (1830) I B. & Ad.S38, SSS.
(2) 199 U.S. 401.
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S.C.R.
SUPREME COURT REPORTS
293
offences as there can, of course, be no trial of ofJence1
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 a.5, in its
judgment, require speedier trial.
The question next arises 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 declarat!ion 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 (1)]. The second
part
which
is
a
corollary of the first 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 persons in the enjoyment
of their rights and liberties without discrimination or
favouritism, · or as an American Judge put it "it is a
(I) 17 Am· Rep.405.
1952
The State of
West Be11g•l
v.
Anwar Ali
Sarkar.
Patanjali
Sastri C. /. · '
'
1952
The Stat< of
West Bengal
T,
Anwar Ali
Sarkar.
Patanjali
Sastri C. /.
294
SUPREME COURT REPORTS
[1952]
pledge of the protection of equal laws" [Yick Wo v.
Hopkins('),] 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 persons 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 their 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 non-discrimination in State action
both in the legislative and the administrative spheres in
the democratic republic of India. This, however, cannot
mean that all laws must be general in character and
universal in application.
As pointed 'out in Chiraniit
Lal's case( 2 ) and in numerous American decisions deal-
. ing with the equal protection clause of the 14th Amendment, the State in the exercise of
its
governmental
power must of necessity make laws operating differently on different groups or classes of persons within its
territory to attain particular ends in giving effect to
its policies, and it must possess for that purpose large
powers of distinguishing
and
classifying
persons
or
thing 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("), "that upon the class are cast duties and
burdens different from those resting upon the general
public.
Indeed the very idea of classification is that of
inequality, so that it goes without saying that the mere
fact of inequality in no manner determines this matter
-of constitutionality".
Commenting
on
this observa-
·tion in his dissenting opinion in Connolly
v.
Union
:Sewer Pipe Co.(') which later prevailed in Tigner v.
(I) 118 u.S. 356, 369.
<3) 174 U.S. P6, 106.
(2) [1950] S·ii·C 869.
(4) 184 U.S. 540, 566, 567, 568.
•
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•.
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-
?
...
/
-
... ~· .
S.C.R.
SUPREME COURT REPORTS
295
Texas(1)] Mr. Justice McKenna posed a problem and
proceeded to answer it: "It seems like a contradiction
to say that a law having equality of operation 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 persons or things.
Therefore it has been
repeatedly declared that classification is justified if
it
is not palpably arbitrary".
(Italics mine.)
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 law 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 persons is challenged as discriminatory. But there are other types of legislation such as,
for instance, the Land Acquisition Act, which do not
rest on classification, and no question of
reasonable
classification could fairly arise
in
respect
of such
(1) 310 U.S. 141.
1952
The State of
West Bengal
v.
Anwar Ali
Sarkar.
Patanjali
Sastri C. /,
1952
The Stat<! of
Wett Bengal
v.
Anwar Ali
Sarkar.
Patanjali
Sastri C. /.
296
SUPREME COURT REPORTS
[1952]
enactments. Nor, obviously,
could
it
arise
when
executive orders
or
notifications
directed
against
individual citizens are assailed as discriminatory.
·
It is interesting to find that the trend of recent
decisions in· America has been to lean strongly toward
sustaining State action both in the legislative and
in
the administrative spheres against
attacks
based
on
hostile discrimination.
Classifications
condemned .as
discriminatory have been subsequently upheld as being:
within the powers of the legislature. In Tigner
v ..
Texas('), the majority
view
in
Connolly's case(')
holding that an Illinois anti-trust law,
which made
certain forbidden acts criminal if done by
merchants.
and
manufacturers
but
declared them
to
be
civil
wrongs if done by
farmers
and
stockmen,
was.
"manifestly a denial of
the equal protection of thclaws") was considered to be no-longer "controlling" •.
While in Gulf, Colorado & SanAa Fe R. Co. v. Ellis(3 )
a Texas statute imposing an attorney's fee in addition
to costs upon railway
corporations
which unsuccess-.
fully defended ·actions for damages for stock killed orinjured by their train was 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(•), 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(")
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
certai~
period. By admitting only their relatives and friends:
Cl) 3IOU.S. l41..
(4) 174 U.S. 96 ..
(2) 184 U.S. 540.
(5) 330 U.S. 552.
C3) 165 U.S. 666.
. .
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•.
•
-
•
.
.,
-
S.C.R.
SUPREME COURT REPORTS
297
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(1) and Yick.
Wo v. Hopkjns(2). 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 the 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
(l) 257 U.S. 312.
(2) 118 U.S. 356.
1952
The State of
West Bengal
v.
Anwar Ali
Sark.ar.
Pataniali
Sastri C. /.
19~2
The St11te of
West Bengal
v.
Anwar Ali
Sark111-.
Patanjali
Sastri C. /.
298
SUPREME COURT REPORTS
[1952]
·the Board of Supervisors unless it was located in a
building constructed of brick or stone, was held discriminatory
and
unconstitutional.
The
undisputed
facts disclosed in the record were that out
of
320
laundries in San Francisco about 310 were constructed
of wood, and about 240 of the 320 were owned and
conducted by subjects of
China.
The
pet1t10ner, a
Chinaman, and about 200 oB his countrymen applied
to the Board of Supervisors to continue their dothcswashing business in wooden buildings which they had
been occupying for many years, but in all cases licence
was refused, whereas not a single one of the petitions
presented by 80 persons who were not subjects. of China
had been 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 a 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" (Italics mine). 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
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 Atchison Topeka & Santa Fe R. Co, v. Miatthews"(')
it
was
said
"In that case
(Yick
Wo's case('))
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".
(Italics mine).
(I) 174 U,S. 96, JOS.
(2) 118U .S. 356.
•
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..
-'
•
..
S.C.R.
SUPREME COURT REPORTS
2<)9
That is to say, the ordinance was what 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(1).
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
not
arbitrary discretion
to
be
exercised so as to carry out the purpose of an enactment. In Engel v. O' Malley(2)
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 !iis 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(8 ) 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
(1) [1940] A.C. 838, 858.
(3) 199 U.S. SS2.
(2) 219 U.S.128.
1952
Tiie State ol
West Bengd
v.
Anwar Ali
Sarkar.
Patafliali
Sastri C. /,
1952
Th• State of
West Bengal
v.
Anwar Ali
Sark..ar.
Patanjali
Sastri C. /.
300
SUPREME COURT REPORTS
[1952]
provision, Day J. observed after
referring
to
certain
prior decisions :-
"These cases leave m 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
1s not violative of rights secured by the 14th Amendment. There is no presumption that the power will be
arbitrarily exercised, and when it 1s 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 lP authorise the interfetence 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 Wai not
hit at by the 14th Amendment.
In the light of the foregoing di'scussion, it seems to
me diflicult 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.