# N.K. BAJPAI v. UNION OF INDIA AND ANR

- **Citation:** [2012] 2 S.C.R. 433
- **Court:** Supreme Court of India
- **Decided:** 2012-03-15
- **Case number:** Civil Appeal No. 2850 of 2012
- **Bench:** A.K. Patnaik, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/n-k-bajpai-v-union-of-india-and-anr-28043
- **Pages:** 45

## Headnote

Customs Act, 1962 - s. 129 (6) - Restrictions under -
Constitutional validity of - Held: The restrictions imposed u/
A
B
s. 129(6) is not unreasonable or ultra vires the ConstitutionC
Every right is subject to reasonable restriction - Right to
practice, being a statutory right as well as fundamental right
under Article 19(1)(g) of the Constitution, can be subjected to
restriction relating to the professional and technical
qualifications necessary for carrying out that profession -The o
restriction u/s. 129(6) is limited and not absolute and is
intended to serve a larger public interest - Limited restrictions
are neither violative of the Fundamental Rights nor do they
tantamount to denying equality under Article 14 - The
restriction would be held valid except where the challenge is E
on the ground to legislative incompetence or when the
restrictions imposed are exfacie unreasonable, arbitrary and
violative of Fundamental Rights - The element of likelihood
of legal bias which was sought to be prevented by the
restrictions, was neither presumptuous nor without any basis F
or object - Constitution of India, 1950 - Articles 14 and
19(1)(g).
Judicial bias -·The element of bias itself may not always
necessarily vitiate an action - It depends on the facts of each
case.
Retroactive Operation:
Restrictions imposed on advocates to appear before a
G
433
H
434
SUPREME COURT REPORTS
[2012) 2 S.C.R.
A limited forum - Held: The enforcement of restriction
retroactively would not be impermissible - It is not for the
courts to interfere with implementation of a restriction which
is otherwise permissible in law.
8
· Law enforced retrospectively and law (n operation
retroactively - Distinction between - Retrospective Operation.
Words and Phrases:
'Reasonable' - Meaning of, in the context of Constitution
c of India.
'Bias' - Meaning and inference of - Discussed.
The common questions for consideration in the
instant appeals were (i) whether Section 129(6) of the
D Customs Act, 1962 (as introduced by Finance Act, 2003)
stipulating that on demitting office as Member of the
Customs Excise and Service Tax Appellate Tribunal
(CEST AT) a person shall not be entitled to appear before ·
the CESTAT, is ultra vires the Constitution of India and
E (ii) whether s. 129(6) was applicable to the appellants.
It was interalia contended on behalf of the appellants
that the entire restriction was based on an illogical
presumption of likelihood of bias and therefore the
F amendment is liable be declared ultra vires; that the
provisions of s. 129(6) of the Customs Act cannot be
given effect to retrospectively; and that the appellants
could continue to appear before the Tribunal as they
were permitted to do so in terms of s. 146A of the
Customs Act, 1962, despite the provisions of s. 129(6) of
G the Act.
Dismissing the appeals, the Court
HELD: 1.1 Part Ill of the Constitution is the soul of the
H Constitution of India. It is not only a charter of the rights-
N.K. BAJPAI v. UNION OF INDIA AND ANR.
435
that are avartable to Indian citizens, but is even completely
A
in consonance with the basic norms of human rights,
recognized and accepted all over the world. The
fundamental rights are basic rights, but they are neither
uncontrolled nor without restrictions. Exceptions apart,
normally the restriction or power to regulate the manner
B
of exercise of a right would not frustrate the right. It is
difficult to anticipate the right to any freedom or liberty
without any reasonable restriction. Besides this, the State
has to function openly and in public interest. The width
of the expression 'public interest' cannot be restricted to c
a particular concept. It may relate to variety of matters
including administration of justice. [Para 7] [449-G-H; 450A-F]
1.2 No person can be divested of his fundamental
rights. They are incapable of being taken away or D
abridged. All that the State can do, by exercise of its
legislative power, is to regulate these rights by imposition
of reasonab

## Text

_Characters 0–39,733 of 89,932. This is a partial read: ask again with offset=39733 for what follows._

[2012] 2 S.C.R. 433
N.K. BAJPAI
v.
UNION OF INDIA AND ANR.
(Civil Appeal No. 2850 of 2012)
MARCH 15, 2012
[A.K. PATNAIK AND SWATANTER KUMAR, JJ.)
Customs Act, 1962 - s. 129 (6) - Restrictions under -
Constitutional validity of - Held: The restrictions imposed u/
A
B
s. 129(6) is not unreasonable or ultra vires the ConstitutionC
Every right is subject to reasonable restriction - Right to
practice, being a statutory right as well as fundamental right
under Article 19(1)(g) of the Constitution, can be subjected to
restriction relating to the professional and technical
qualifications necessary for carrying out that profession -The o
restriction u/s. 129(6) is limited and not absolute and is
intended to serve a larger public interest - Limited restrictions
are neither violative of the Fundamental Rights nor do they
tantamount to denying equality under Article 14 - The
restriction would be held valid except where the challenge is E
on the ground to legislative incompetence or when the
restrictions imposed are exfacie unreasonable, arbitrary and
violative of Fundamental Rights - The element of likelihood
of legal bias which was sought to be prevented by the
restrictions, was neither presumptuous nor without any basis F
or object - Constitution of India, 1950 - Articles 14 and
19(1)(g).
Judicial bias -·The element of bias itself may not always
necessarily vitiate an action - It depends on the facts of each
case.
Retroactive Operation:
Restrictions imposed on advocates to appear before a
G
433
H
434
SUPREME COURT REPORTS
[2012) 2 S.C.R.
A limited forum - Held: The enforcement of restriction
retroactively would not be impermissible - It is not for the
courts to interfere with implementation of a restriction which
is otherwise permissible in law.
8
· Law enforced retrospectively and law (n operation
retroactively - Distinction between - Retrospective Operation.
Words and Phrases:
'Reasonable' - Meaning of, in the context of Constitution
c of India.
'Bias' - Meaning and inference of - Discussed.
The common questions for consideration in the
instant appeals were (i) whether Section 129(6) of the
D Customs Act, 1962 (as introduced by Finance Act, 2003)
stipulating that on demitting office as Member of the
Customs Excise and Service Tax Appellate Tribunal
(CEST AT) a person shall not be entitled to appear before ·
the CESTAT, is ultra vires the Constitution of India and
E (ii) whether s. 129(6) was applicable to the appellants.
It was interalia contended on behalf of the appellants
that the entire restriction was based on an illogical
presumption of likelihood of bias and therefore the
F amendment is liable be declared ultra vires; that the
provisions of s. 129(6) of the Customs Act cannot be
given effect to retrospectively; and that the appellants
could continue to appear before the Tribunal as they
were permitted to do so in terms of s. 146A of the
Customs Act, 1962, despite the provisions of s. 129(6) of
G the Act.
Dismissing the appeals, the Court
HELD: 1.1 Part Ill of the Constitution is the soul of the
H Constitution of India. It is not only a charter of the rights-
N.K. BAJPAI v. UNION OF INDIA AND ANR.
435
that are avartable to Indian citizens, but is even completely
A
in consonance with the basic norms of human rights,
recognized and accepted all over the world. The
fundamental rights are basic rights, but they are neither
uncontrolled nor without restrictions. Exceptions apart,
normally the restriction or power to regulate the manner
B
of exercise of a right would not frustrate the right. It is
difficult to anticipate the right to any freedom or liberty
without any reasonable restriction. Besides this, the State
has to function openly and in public interest. The width
of the expression 'public interest' cannot be restricted to c
a particular concept. It may relate to variety of matters
including administration of justice. [Para 7] [449-G-H; 450A-F]
1.2 No person can be divested of his fundamental
rights. They are incapable of being taken away or D
abridged. All that the State can do, by exercise of its
legislative power, is to regulate these rights by imposition
of reasonable restrictions on them. The restriction can be
imposed only by or under the authority of law. It cannot
be imposed by exercise of executive power without any
E
law to back it up. Each restriction must be reasonable. A
restriction must be related to the purpose mentioned in
Article 19(2). [Para 11] [451-F-H; 452-A]
1.3 The legislative determination of what restriction
F
to impose on a freedom is final and conclusive, as it is
not open to judicial review. It is difficult to define or
explain the word "reasonable" with any precision. It will
always be dependent on the facts of a given case with
reference to the law which has been enacted to create a
G
restriction on the right. It is neither possible nor advisable
to state any· abstract standard or general pattern of
reasonableness as applicable uniformly to all cases.
[Para 12] [452-B-D]
1.4 In spite o( there being a general presumption in
H
436
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A favour of the constitutionality of a legislation under
challenge in case of allegations of violation of the right
to freedom guaranteed by clause (1) of Article 19 of the
Constitution, on a prima facie case of such violation being
made out, the onus shifts upon the State to show that the
B legislation comes within the permissible restrictions set
out in clauses (2) to (6) of Article 19 and that the particular
restriction is reasonable. It is for the State to place
appropriate material justifying the restriction and its
reasonability on record. [Para 14] [453-D-E]
c
1.5 The right to practice, which is not only a statutory
right under the provisions of the Advocates Act but would
also be a fundamental right under Article 19(1)(g) of the
Constitution is subject to reasonable restrictions. The
legislature is entitled to make a law relating to the
D professional or technical qualifications necessary. for
carrying on that profession. [Para 16] [454-H; 455-B]
1.6 The restriction imposed u/s.129(6) of the Act is
not unreasonable or ultra vires. Firstly, it is not an
E absolute restriction. It is a partial restriction to the extent
that the persons who have held the office of the
President, Vice-President or other Members of the
Tribunal cannot appear, act or plead before that Tribunal.
The right of such advocate to practice in the High Courts,
F District Courts and other Tribunals established by the
State or the Central Government other than the CESTAT
remains unaffected. Thus, the field of practice is wide
open, in which there is no prohibition upon the practice
by a person covered under the provisions of Section
G 129(6) of the Customs Act. Secondly, such a restriction
is intended to serve a larger public interest and to uplift
the professional values and standards of advocacy in the
country. It would add further to public confidence in the
administration of justice by the Tribunal, in discharge of
H its functions. Thus, it cannot be held that the restriction
has been introduced without any purpose or object.
N.K. BAJ PAI v. UNION OF INDIA AND ANR.
437
There is a clear nexus between the mischief sought to be
A
avoided and the object aimed to be achieved. [Para 20]
[456-F-H; 457-A-C]
1.7 Limited restrictions are neither violative of the
fundamental rights, nor do they tantamount to denying
8
the equality before law in terms of Article 14 of the
Constitution. [Para 24) [463-B-C]
1.8 Except where the challenge is on the grounds of
legislative incompetence or the restriction imposed was
ex facie unreasonable, arbitrary and violative of Part Ill of C
the Constitution of India, the restriction would be held to
be valid and enforceable. [Para 29) [466-C]
Municipal Corporation of the City of Ahmedabad and Ors.
v. Jan Mohammed Usmanbhai and Anr. (1986) 3 SCC 20:
D
1986 ( 2 ) SCR 700 ; Devata Prasad Singh Chaudhuri and
Ors. v. The Hon'ble the Chief Justice and Judges of the Patna
High Court AIR 1962 SC 201: 1962 SCR 305 - followed.
Sukumar Mukherjee v. State of West Bengal (1993) 3
SCC 723: 1993 (1) Suppl. SCR 339; S. Rangarajan v. P.
E
Jagjivan Ram and Ors. (1989) 2 SCC 574: 1989 ( 2 ) SCR
204 ; Paradip Port Trust, Paradip v. Their Workmen AIR 1977
SC 36: 1977 (1) SCR 537; Lingappa Pochamma Appelwar
v. State of Maharashtra and Anr. (1985) 1 SCC 479: 1985
(2) SCR 224 - relied on.
F
H. S. Srinivasa Raghavachar and Ors. v. State of
Karnataka (1987) 2 SCC 692: 1987 (2) SCR 1189 -
distinguished.
Indian Council of Legal Aid and Advice v. Bar Council
G
of India and Anr. (1995) 1 SCC 732: 1995 (1) SCR 304 -
referred to.
2.1 It is not correct to say that the presumption of
legal bias being without any basis and ill-founded, the
H
438
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A amendment itself is liable to be declared ultra vires. It is
not only the mischief of likelihood of bias which is sought
to be prevented by the amendment but the amendment,
has a definite purpose and object to achieve which is i11
the larger public interest. Such legis:ative attempt, not
B only to adhere to but to enhance the values and dignity
of the legal profession, would add to the confidence of
the common litigant in the administration of justice and
the performance of duties by .the Tribunal. [Para 30] [466D-F]
c
2.2 imposition of restrictions is a concept inbuilt into
the enjoyment of fundamental· rights, as no right can exist
without a corresponding reasonable restriction placed 011
it. When the restrictions are placed upon the carrying on
of a profession or to ensure that the intent, object or
D purpose achieved thereby would be enhancing the purity
of public life, such object would certainly be throttled if
there arose a situation of conflict between private interest
and public duty. The principle of private interest giving
way to public interest is a settled cannon, not only of
E administrative jurisprudence, but of statutory
interpretation as well. Having regard to the prevalent
values and conditions of the profession, most of the legal
practitioners would not stoop to unhealthy practices or
tactics but the Legislature, in its wisdom, has considered
F it desirable to eliminate any possibility of conflict between
the interest and duty and aimed at achieving this object
or purpose by prescribing the requisite restrictions. With
the development of law, the courts are expected to
consider, in contradistinction to private and public
G interest, the institutional interest and expectations of the
public at large from an institution. These are the
balancing tests which are applied by the courts even in
the process of interpretation or examining of the
constitutional validity of a provision. [Para 33] [467-D-H;
H 468-A]
N.K. BAJPAI v. UNION OF INDIA AND ANR.
439
2.3 Bias must be shown to bepresent. Probability of A
bias, possibility of bias and r~asonable suspicion that
bias might have affected the decision are terms of
different connotations. They broadly fall under two
categories, i.e., suspicion of bias and like'ihood of bias.
Likelihood of bias would be the possibility of bias and
B
bias which can be shown to be present, while suspicion
of bias would be the probability or reasonable suspicion
of bias. The former lead to vitiation of action, while the
latter could hardly be the foundation for further
examination of action,· with reference to the facts and c
circumstances of a given case. The correct test would be
to examine whether there appears to be a real danger of
bias or whether there is only a probability or even a
preponderance of probability of such bias, in the
circumstance!' of a given case. If it falls in the prior 0
category, the decision would attract judicial chastise but
if it falls in the latter, it would hardly effect the decision,
much less adversely. [Para 35] [468-G-H; 469-A-B]
2.4 The element of bias by itself may not always
necessarily vitiate an action. The Court would have to
E
examine the facts of a given case. In the instant case,
despite their absence from the object and reasons for the
amendment of Section 129(6) of the Customs Act, it
cannot be held that the element of bias was
presumptuous or without any basis or object. It may be
F
one of the relevant factors which probably would have
weighed on the mind of the Legislature. When someone
has been a member of a Tribunal over a long period, and
other members have been his co-members whether
judicial or technical, it is difficult to hold that there would
G
be no possibility of bias or no real danger of bias. Even
if this possibility is ruled out still, it will always be better
advised and in the institutional interest that restrictions
· are enforced. Then alone will the mind of the litigant be
free from a lurking doubt of likelihood of bias and this
H
440
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A would enhance the image of the Tribunal. The restriction,
leaves the entire field of legal profession wide open for
the appellants and all persons situated alike except to
practice before CESTAT. [Para 37) [469-H; 470-A-D]
B
2.5 Besides the possibility of bias, there is a
legitimate expectation on the part of a litigant before the
Tribunal that there shall not be any possibility of justice
being denied or being not done fairly. [Para 38) [470-E]
2.6 The contention ofthe petitioners that there has
C to be empirical data to suggest that their practice before
the Tribunal resulted in instances of misdemeanor which
would have propelled the respondents to insert such a
provision in the enactment, has rightly been rejected by
the High Court. It may not even be proper to introduce
D such amendments with reference to any data. Suffice it
to note that these amendments are primarily based upon
public perception and normal behaviour of an ordinary
human being. It is difficult to define cases where element
of bias would affect the decision and where it would not,
E by a precise line of distinction. Even in a group, a person
possessing a special knowledge may be in a position to
influence the group and his bias may operate in a subtle
manner. [Para 38) [470-F-H; 471-A]
F
2.7 The general principles of bias are equally
applicable to administrative and civil jurisprudence.
Members of the Tribunals, called upon to try issues in
judicial or quasi-judicial proceedings should act judicially.
Reasonable apprehension is equitable to possible
apprehension and, therefore, the test is whether the
G litigant reasonably apprehends that bias is attributable to
a member of the Tribunal. [Para 39) [471-B-C]
H
2.8 The word 'bias' in popular English parlance
stands included within the attributes and broader
N.K. BAJPAI v. UNION OF INDIA AND ANR.
441
purview of the word 'malice', which in general
A
connotation, means and implies 'spite' or 'ill will'. The
element of 'bias' is to be inferred as per the standard and
comprehension of a reasonable man. Th'l bias may also
be malicious act having some element of int.ention
without just cause or excuse. In case of malice or ill will,
8
it may be an actual act conveying negativity but the
element of bias could be apparent or reasonably seen
without any negative result and could form part of a
general public perception. [Para 41] [472-E-F]
Dr. Haniraj L. Chu/ani v. Bar Council, State of C
Maharashtraand Goa 1996 (3) SCC 342: 1996 (1) Suppl.
SCR 51 - relied on.
Manak Lal v. Dr. Prem Chand AIR 1957 SC 425: 1957
SCR 575; Rasmiranjan Das v. Sarojkanta Behera and Ors. o
(2000) 10SCC 502; Kumaon Manda/ Vikas Nigam Ltd. v.
Girja Shankar Pant and Ors. (2001) 1 SCC 182: 2000 (4)
Suppl. SCR 248; S. Parthasarathi v. State of Andhra Pradesh
(1974) 3 SCC 459: 1974 (1) SCR 697; State of Punjab v. V.K.
Khanna (2001) 2 SCC 330 : (2000) 5 Suppl. SCR 200 -
E
referred to.
R. v. Sussex Justices Ex. P. McCarthy (1924) 1 KB 256
KBD 259; Porter v. Magill (2002) 2 AC 357 - referred to.
'Bias, Ma/function in Judicial Decision-making' by Sir
F
Louis Blom, Q.C., (2009) Public Law 199; De Smith's Judicial
Review (Sixth Edition) by Harry Woolf, Jeffey Jowell and
Andrew Le Sueur - referred to.
3.1 When the appellants were enrolled as advocates
G
as well as when they started practicing as advocates,
their right was subject to the limitations under any
applicable Act or under the constitutional limitations, as
the case may be. One must clearly understand a
distinction between a law being enforced retrospectively
H
442
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A and a law that operates retroactively. The restriction in the
present case is a clear example where the right to
practice before a limited forum is being taken away in
presenti while leaving all other forums open for practice
by the appellants. Though such a restriction may have
8 the effect of relating back to a date prior to the presenti.
In that sense, the law stricto sensu is not retrospective,
but would be retroactive. It is not for the court to interfere
with the implementation of a restriction, which is
otherwise valid in law, only on the ground that it has the
C effect of restricting the rights of the people who attain
that status prior to the introduction of the restriction. It is
certainly n~t a case of settled or vested rights, which are
incapable '6f being interfered with. It is a settled canon of
law that the rights are subject to restrictions and the
restrictions, if reasonable, are subject to judicial review
D of a very limited scope. In the facts and circumstances
of the present case it is not correct to say that
enforcement of the restriction retroactively would be
impermissible. [Paras 43 & 44] [473-C-H; 474-A]
E
3.2 The law is not at all retrospective even though the
retirement or date of ceasing to be a member of the
Tribunal may have been on a date anterior to the date of
passing of the law. The restriction is not punitive, in that
sense, but is merely a criterion for eligibility for continuing
F to practice law before the Tribunal. [Paras 46 & .47] [474E-F]
3.3 Earlier, the nature of law, as substantive or
procedural, was taken as one of the determinative facto.rs
for judging the retrospective operation of a statute.
G However, with the development of law, this distinction
has become finer and of less significance. The rule
against retrospectivity has also been stated, in recent
years, to avoid the classification of statutes into
substantive and procedural and the usage of words like
H 'existing' or 'vested'. [Para 48] [474-G-H; 475-B-C]
N.K. BAJ PAI v. UNION OF INDIA AND ANR.
443
3.4 In such matters, in judiciously examining the
A
question of retrospectivity or otherwise, the relevant
considerations include the circumstances in which
legislation was created and the test of fairness. The
principles of statutory interpretation have expanded. With
the development of law, it is desirable that the courts
B
should apply the latest tools of interpretation to arrive at
a more meaningful and definite conclusion. [Para 49)
[475-F-G]
3.5 In the instant case, the restriction would be
applied uniformly to all the practicing advocates as well
C
as to the advocates who would join the profession in
future and would achieve the object of the Customs Act
without leading to any absurd results. On the contrary,
its uniform application would achieve fair results without
really visiting any serious prejudice upon the class of the
D
advocates who were earlier the members of the Tribunal
as it remains open to them to practice in other tribunals,
forums and courts. If an exception was carved out in their
favour, it would lead to an anomaly as well as an absurd
situation frustrating the very purpose and object of E
Section 129(6) of the Act. [Para 50) [476-C-E]
Vijay v. State of Maharashtra and Ors. (2006) 6 SCC 289:
2006 (4) Suppl. SCR 81; Dilip v. Mohd: Azizul Haq and Anr.
(2000) 3 sec 607: 2000 (2) SCR 280 - relied on.
R. v. Inhabitants of St. Mary, Whitechapel (1881) 12 QB
149; Maxwell v. Murphy (1957) 96 CLR 261 - referred to.
Principles of Statutory Interpretation (12th Edition, 2010)
by Justice G.P. Singh - referred to.
4. The provisions of Section 129(6) of the Customs
F
G
Act and its operation cannot be faulted with. It is not
correct to say that the appellants can continue to appear
before the Tribunal as they are permitted to do so in
terms of .Section 146A of the Customs Act, despite the
H
444
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A provisions of Section 129(6) of the Customs Act. The
provisions of Section 129(6) of the Customs Act are
specific and both these provisions have to be construed
harmoniously. There is nothing contradictory in these
provisions. Section 146(2)(c) of the Customs Act refers
B to the appearance by a legal practitioner who is entitled
to practice as such in accordance with law. Section 129(6)
places a restriction which is reasonable and valid
· restriction. Thus, the provisions of Section 146A of the
Act would have to be read in conjunction with and
c harmoniously to Section 129(6) of the Customs Act and
the person who earns a disqualification under this
provision cannot derive any extra benefit contrary to
Section 129(6) of the Customs Act from the reading of
Section 146A of the Customs Act. [Para 52) [477-B-E]
D
Case Law Reference:
1989 (2) SCR 204
Relied on
Para 8
1993 (1) Suppl. SCR 339 Relied on
Para 21
E
1986 (2) SCR 700
Followed
Para 22
1962 SCR 305
Followed
Para 23
1987 (2) SCR 1189
Distinguished
Para 24
1977 (1) SCR 537
Relied on
Para 25
F
1985 (2) SCR 224
Relied on
Para 27
1995 (1) SCR 304
Referred to
Para 28
1996 (1) Suppl. SCR 51
Relied on
Para 31
G
(1924) 1 KB 256 KBD 259Referred to
Para 34
(2002) 2 AC 357
Referred to
Para 34
.
\
1957 SCR 575
Referr~d \o
Para 39
I
H
N.K. BAJPAI v. UNION OF INDIA AND ANR.
445
(2000)1 o sec 502
Referred to
Para 39
2000 (4) Suppl. SCR 248 Referred to
Para 40
1974 (1) SCR 697
Referred to
Para 40
(2001) 2 sec 330
Referred to
Para 40
(1881) 12 QB 149
Referred to
Para 45
(1957) 96 CLR 261
Referred to
Para 48
2006 (4) Suppl. SCR 81
Relied on
Para 49
2000 (2) SCR 280
Relied on
Para 51
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2850 of 2012.
From the Judgment & Order dated 13.04.2009 of the High
Court of Delhi in WP (C) No. 6712 of 2007.
WITH
Civil Appeal Nos. 2851 and 2852 of 2012.
Hari Shankar, Sudarshan Singh Rawat, Jay Kumar for the
Appellant.
B. Bhattacharya, ASG Sunil Roy, Judy James, Ajay Singh,
A.K. Sharma, B. Krishna Prasad for the Respondents.
'
.
''
Th~ Judgment d,f the Court was delivered by
I
I
I
I
SWATANTER KUMAR, J. 1. Leave granted.
A
B
c
D
E
F
2. This judgment shall dispose of all the above three
appeals, as common questions of law arise therefrom, on
G
somewhat similar facts for consideration of this Court. In these
appeals, the following questions have been raised :
"(i) Whether Section 129(6) of the Customs Act, 1962,
which stipulates that on demitting office as Member of the
Customs Excise and Service Tax Appellate Tribunal
H
A
B
446
SUPREME COURT REPORTS
[2012] 2 S.C.R.
(hereinafter referred to as the "CESTA T") a person shall
not be entitled to appear before the CESTAT, is ultra vires
the Constitution of India?
(ii) Whether the said provision applies to the petitioner, as
it was introduced after the petitioner had not only joined
as Member of the CESTAT but also demitted office as
such·Member?"
3. We may notice the basic factual premise from which the
above legal questions have arisen for consideration of this
c Court. Primarily, we would be referring to the facts of SLP (C)
No.8482 of 2010 titled P.C. Jain v. Union of India & Ors.
4. The appellant joined the Indian Customs and Central
Excise Service, Class - I (later called Group 'A'), in the year
1956, where he served for a number of years, in different
D capacities. On 1st November, 1990, the appellant was selected
as a Member (Technical) in the Customs, Excise and Gold
(Control) Appellate Tribunal (CEGAT). The appellant demitted
his office as Member (Technical) of CEGAT on 7th March, 1993.
As he was a law graduate, he was enrolled as an advocate with
E the Bar Council of India on 18th March, 1993. The CEGAT was
replaced by the Central Excise and Service Tax Appellate
Tribunal (for short, 'the CESTAT/Tribunal'. Vide Finance Act,
2003, Section 129(6) vias introduced to the Customs Act, 1962
(for short 'Customs Act') in terms of which, the members of the
F Tribunal were debarred from appearing, acting or pleading
before it. Aggrieved by this amendment, the appellant along with
other appellants in other appeals claimed to have met the
Finance Minister and submitted a detailed representation
bringing out the inequities and arbitrariness claimed to be
G resulting from the insertion of Section 129(6) of the Customs
Act. The Tribunal, on 9th July, 2007, passed an order holding
that the appellant or the persons similarly situated, were not
entitled to appear before it in view of the bar contained in
Section 129(6) of the Customs Act. In the meanwhile, the
H Ministry also responded negatively to the representations
N.K. BAJPAI v. UNION OF INDIA AND ANR.
447
[SWATANTER KUMAR, J.]
submitted by the appellants. Faced with these circumstances,
A
the appellants filed a writ petition before the High Court of Delhi
at New Delhi being Writ Petition No.6712 of 2007, which was
heard by a Division Bench of the High Court and was
dismissed vide judgment dated 13th April, 2009, hence, giving
rise to the present appeals.
B
5. The Tribunal took the view that the word 'appellate
tribunal' as referred to in Section 129(6), is defined under
Section 2(1 B) of the Customs Act to mean the Customs, Excise
and Service Tax Appellate Tribunal constituted under Section
C
129 of the Customs Act and any person ceasing to hold office
as President, Vice-President or Member cannot appear before
the Tribunal or its Benches anywhere in India in view of the bar
in Section 129(6). One of the appellants, namely, N.K. Bajpai,
was relieved from the case. The appellants had contended
before the High Court that Section 129(6) of the Customs Act
D
is ultra vires Articles 14, 19(1)(g) and 21 of the Constitution of
India. It was further contended that, in any event, Section 129(6)
has no applicability to the appellants, in view of the fact that the
amendment was prospective, but when the appellants were
appointed to the Tribunal as well as when they demitted office,
E
the said provision was not a part of the Customs Act. Thus, they
prayed for consequential relief. The High Court, by a detailed
judgment, rejected both- these contentions. It was of the view
that the predominant rationale for introduction of this provision
was to strengthen the cause of administration of justice and to
F
remove what the Legislature, in its wisdom, felt was a perceived
class bias. It was further held that the restriction imposed could
not be said to be unreasonable and was held to withstand the
test of Article 19(6) of the Constitution. It also held that once
the right to appear, act or plead is taken away in respect of G
the Tribunal, since the same forum hears and adjudicates upon
the matters concerning three streams of law, the persons
concerned are automatically debarred from acting, appearing
or pleading before such forum, i.e., the Tribunal in respect of
all matters. The High Court even referred to some of the
H
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SUPREME COURT REPORTS
[2012] 2 S.C.R.
A judgments of this Court, as well as to Article 220 of the
Constitution, which places a prohibition or limitation on the right
of a permanent Judge of the High Court to plead or act before
the Court of which he had been a permanent Judge and/or
before the Courts, Tribunals, Authorities over which the said
B Court had exercised supervisory jurisdiction.
6. Before we dwell upon the merits of the contentions
raised or the correctness of the reasons given by the High Court,
it will be appropriate for us to reproduce the provisions of
C Section 129 of the Customs Act, which read as follows :
D .
-E
F
G
H
"129 - Appellate Tribunal-(1) The Central Government
shall constitute an Appellate Tribunal to be called the
Customs, Excise and Service Tax Appellate Tribunal
consisting of as many judicial and technical members as
it thinks fit to exercise the powers and discharge the
functions conferred on the Appellate Tribunal by this Act.
(2) A judicial member shall be a person who has for at
least ten years held a judicial office in the territory of India
or who has been a member of the Indian Legal Service
and has held a post in Grade I of that service or any
equivalent or higher post for at least three years, or who
has been an advocate for at least ten years.
· Explanation.-For the purposes of this sub-section-:-
(i)
in computing th·e period during which a person has
held judicial office in the territory of India, there shall
be included any, P,eri9d .• after he has held any
judicial office, during which the person has been an
advocate or has held the office of a member of a
Tribunal or any post, under the Union or a State,
requiring special knowledge of law; ·
(ii)
in computing the period during which a person has
been advocate, there shall be included any period
N.K. BAJPAI v. UNION OF INDIA AND ANR.
449
[SWATANTER KUMAR, J.]
during which the person has held a judicial office,
A
or the office of a member of a Tribunal or any post,
under the Union or a State, requiring special
knowledge of law after he became an advocate.
(2A) A technical member shall be a person who has been
8
a member of the Indian Customs and Central Excise
Service, Group A, and has held the post of Commissioner
of Customs or Central Excise or any equivalent or higher
post for at least three years.
(3) The Central Government shall appoint--
(a)
a person who is or has been a Judge of a High
Court; or
c
(b)
one of the members of the Appellate Tribunal, to be
0
the President thereof.
(4) The Central Government may appoint one or more
members of the Appellate Tribunal to be the VicePresident, or, as the case may be, Vice-Presidents,
thereof.
(5) A Vice-President shall exercise such of the powers and
perform such of the functions of the President as may be
delegated to him by the President by a general or special
order in writing.
(6) On ceasing to hold office, the President, VicePresident or other Mel'Jlber shall not be entitled to appear,
act or plead before the Appellate Tribunal."
E
F
7. Part Ill, of the Constitution is the soul of the Constitution.
G
It is not only a charter of the rights that are available to Indian
citizens, but is even completely in consonance with the basic
norms of human rights, recognized and accepted all over the
world. The fundamental rights are basic rights, but they are
neither uncontrolled nor without restrictions. In fact, the framers
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[2012] 2 S.C.R.
A of the Indian Constitution themselves spelt out the nature of
restriction on such rights. Exceptions apart, normally the
restriction or power to regulate the manner of exercise of a right
would not frustrate the right. Take, for example, the most valuable
right even from amongst the fundamental rights, i.e., the right
B to freedom of speech and expression. This right is conferred
by Article 19(1 )(a) but in turn, the Constitution itself requires its
regulation in the interest of the 'public order' under Article 19(2).
The State could impose reasonable restrictions on the exercise
. of the rights conferred, in the interest of the sovereignty and
c integrity of India, 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 of an offence.
Such restrictions are within the scope of constitutionally
permissible restriction. Exercise of legislative power in this
0 respect by the State can be subjected to judicial review, of
course, within a limited ambit. Firstly, the challenger must show
that the restriction imposed, at least prima facie, is violative of
the fundamental right. It is then that the burden lies upon the
State to show that the restriction applied is by due process of
law and is reasonable. If the restriction is not able to satisfy
E these tests or either of them, it will vitiate the law so enacted
and the action taken in furtherance thereto is unconstitutional.
It is difficult to anticipate the right to any freedom or liberty
without any reasonable restriction. Besides this, the State has
to function openly and in public interest. The width of the
F expression 'public interest' cannot be restricted to a particular
concept. It may relate to variety of matters including
administration of justice.
8. Let us also examine the fundamental rights and their
G restrictions as a constitutional concept. In the case of S.
H
Rangarajan v. P. Jagjivan Ram and Ors. [(1989) 2 SCC 574],
while dealing with the censorship of a film, this Court observed
'. ..... There does indeed have to be a compromise
N.K. BAJPAI v. UNION OF INDIA AND ANR.
451
[SWATANTER KUMAR, J.]
between the interest of freedom of expression and special
A
interests. But we cannot simply balance the two interests
as if they are of equal weight. Our commitment of freedom
of expression demands that it cannot be suppressed
unless the situations created by allowing the freedom are
pressing and the community interest is endangered. The
B
anticipated danger should not be remote, conjectural or
far-fetched. It should have proximate and direct nexus with
the expression. The expression of thought should be
intrinsically dangerous to the public interest. In other words,
the expression should be inseparably locked up with the c
action contemplated like the equivalent of a 'spark in a
power keg'.'
9. Where the Court applies the test of 'proximate and direct
nexus with the expression', the Court also has to keep in mind
that the restriction should be founded on the principle of least
D
invasiveness, i.e., the restriction should be imposed in a manner
and to the extent which is unavoidable in a given situation. The
Court would also take into consideration whether the
anticipated event would or would not be intrinsically dangerous
to public interest.
E
'
10. Now, we have to examine the various tests that have
been applied over a period of time to examine the validity and/
or reasonability of the restrictions imposed upon the rights.
11. No person can be divested of his fundamental rights.
They are Incapable of being taken away or abridged. All that
the State can do, by exercise of its legislative power, is to
regulate these rights by imposition of reasonable restrictions
on them. Upon an analysis of the law, the following tests
emerge:-
(a)
The restriction can be imposed only by or under the
authority of law. It cannot be imposed by exercise
of executive power withou.t any law to back it up.
F
G
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SUPREME COURT REPORTS
[2012) 2 S.C.R.
A
(b)
Each restriction must be reasonable.
(c)
A restriction must be related to the purpose
mentioned in Article 19(2).
12. The questions before us, thus, are whether the
B restriction imposed was reasonable and whether the purported
purpose of the same squarely fell within the relevant clauses
discussed above. The legislative determination of what
restriction to impose on a freedom is final and conclusive, as
it is not open to judicial review. The judgments of this Court
C have been consistent in taking the view that it is difficult to define
or explain the word "reasonable" with any precision. It will
always be dependent on the facts of a given case with
reference to the law which has been enacted to create a
restriction on the right. It is neither possible nor advisable to
D state any abstract standard or general pattern of
reasonableness as applicable uniformly to all cases.
13. A common thread runs through Parts Ill, IV and IVA of
the Constitution of India. One Part enumerates the fundamental
E rights, the second declares the fundamental principles of
governance and the third lays down the fundamental duties of
the citizens. While interpreting any of these provisions, it shall
always be advisable to examine the scope and impact of such
interpretation on all the three constitutional aspects emerging
F from these Parts. It is necessary to be clear about the meaning
of the word "fundamental" as used in the expression
"fundamental in the governance of the State" to. describe the
directive principles which have not legally been made
enforceable. Thus, the word "fundamental" has been used in
two different senses under our Constitution of India. The
G essential character of the fundamental rights is secured by
limitiQg the legislative power and by providing that any
transgression of the limitation would render the offending law
protanto void. The word "fundamental" in Article 37 of the
Constitution also means basic or essential, but it is used in the
H normative sense of setting, before the State, goals which it
N.K. BAJPAI v. UNION OF INDIA AND ANR.
453
[SWATANTER KUMAR, J.]
should try to achieve. As already noticed, the significance of
A
the fundamental principles stated in the directive principles have
attained greater significance through judicial pronouncements.
14. As difficult as it is to anticipate the right to any freedom
or liberty without any reasonable restriction, equally difficult is
8
it to imagine the existence of a right not coupled with a duty.
The duty may be a direct or indirect consequence of a fair
assertion of the right. Although Part Ill of the Constitution of India
confers rights, still the duties and restrictions are inherent
thereunder. These rights are basic in nature and are recognized
and guaranteed as natural rights, inherent in the status of a
C
citizen of a free country, but are not absolute in nature and
uncontrolled in operation. Each one of these rights is to be
controlled, curtailed and regulated, to a certain extent, by laws
made by the Parliament or the State Legislature. In spite of
there being a general presumption in favour of the
D
constitutionality of a legislation under challenge in case of
allegations of violation of the right to freedom guaranteed by
clause (1) of Article 19 of the Constitution, on a prima facie
case of such violation being made out, the onus shifts upon the
State to show that the legislation comes within the permissible
E
restrictions set out in clauses (2) to (6) of Article 19 and that
the particular restriction is reasonable. It is for the State to place
appropriate material justifying the restriction and its
reasonability on record.
F
15. The Advocates Act, 1961 (hereinafter referred to as
'the Advocates Act') itself was introduced to implement the
recommendations of the All India Bar Committee IT)ade in
1953. It aimed at establishment of an All India Bar Council, a
common roll for the advocates and integration of the Bar into
G
a single class of practioners known as 'advocates'. It was also
to create autonomous Bar Councils, one for the whole of India
and one for each State. The Advocates Act provides for various
aspects of the legal profession. Under Section 29 of the
Advocates Act, only one class of persons is entitled to practice
H
the profession of law, namely, advocates. Section 30 of the
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SUPREME COURT REPORTS
(2012] 2 S.C.R.
A Advocates Act provides that subject to the provisions of the Act,
every advocate whose name is entered in the State rolls shall,
as a matter of right, be entitled to practice throughout the
territories to which this Act applies, in all courts including the ·
SuprP-me Court of India. Such an Advocate would also be
B entitled to practice before any tribunal or person legally
authorized to take evidence and before any other authority or
person before whom such an advocate is, by or under any law
for the time being in force, entitled to practice.