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 are similarly situated, are able to avail themselves of the same procedural rights
BENCH:
SASTRI, M. PATANJALI (CJ)
FAZAL ALI, SAIYID
MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
AIYAR, N. CHANDRASEKHARA
BOSE, VIVIAN
CITATION:
1952 AIR 75 1952 SCR 284
West Bengal Special Courts Act (X of 1950), ss. 3, 5 Constitution of India, Art. 14--Act constituting special courts and empowering State Government to refer "cases" or "offences" or "classes of cases" or "classes of offences" 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 classifica- tion--Intention of legislature how far material--Validity of notification under Act--Test of equality before law--Essen- tials of reasonable classification--Necessity for speedier trial, whether reasonable ground for discrimination.
HEADNOTE:
The West Bengal Special Courts Act (X of 1950) was entitled "An Act to provide for the speedier trial of cer- tain 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 con- stitute Special Courts, and sec. 5 provided 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 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 unconsti- tutional and void inasmuch as it contravened Art. 14 of the Constitution, which provides that "the State shall not deny to any person equality before the law or the equal protec- tion of the laws within the territory of India". 285
Held, per FAZL ALl, MAHAJAN, MUKHERJEA, CHANDRASEKHARA AIYAR and BOsE JJ. (PATANJALI SASTRI C.J., dissenting)--Section 5 (1) of the West Bengal Special Courts Act, 1950, contravenes Art. 14 of the Constitution and is void inasmuch as (per FAZL ALl, MAHAJAN, MUKHERJEA, and CHANDRASEKHARA AIYAR 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 which 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 J.--Section 5 Il) 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.J.--Section 5 (1) of the Act is not void or unconstitutional wholly or even in part.
Per FAZL ALl, MAHAJAN, MUKHERJEA and CHANDRASEKHARA AIYAR 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 are similarly situated, are able to avail themselves of the same procedural rights for rebel 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 incumbent upon him before he can claim relief on the basis of 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 ; 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 unambigu- ously vests the State Government with unrestricted discre- tion 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 286
(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 administrative 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 discrimination 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 definition 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 differen- tia 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 treatment. Nor can the constitutionality of a statute depend on the degree of the inequality brought about by the 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 ( 1 ) of the Act which relates to "offences' ', "Classes of offences" and "classes of cases", construed in the light of the pream- ble, 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) foes 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 cried by the Special Court lies beyond the ambit of the object aid down by the preamble and contem- plates and involves a purely arbitrary selection based on nothing more substantial
287
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 classifica- tion nor whether there is absolute equality in any academi- cal 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 impugned 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 impugned 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 circum- stances which call for comparatively prompt disposal of a case or cases proposed to be referred and sec. 5 (11 must be read as empowering the Government to direct the Special Court to 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 Constitution does not mean that all laws must be general in character and universal in application. The State must possess the power of distin- guishing and classifying persons or things to be subjected to particular laws and in making a classification the legis- lature 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 discre- tion to be exercised so as to carry out the purpose of the Act and the mere fact that the discretion might be exercised 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 indefi- nite to be the basis of classification. (6) The notifica- tion 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
288
to show that the Government was influenced by any discrimi- natory 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 dis- posal.
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 Slate of Bombay v.F.N. Balsara ([1951] S.C.R. 682), ex- plained.
Truax v. Corrigan (257 U.S. 312), Yick Wo v. Hopkins (118 U.S. 356) and other American cases on the right to equal protection of the laws considered.
JUDGMENT:
APPELLATE CIVIL JURISDICTION: 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.
Jitendra Nath Ghose (R. P. Bagchi, with him) for the respondent in Case No. 297.
A.A. Peerbhoy and J.B. Dadachanji for Habib Mohammad (Intervener).
V. Rajaram Iyer, Advocate-General of Hyderabad (R. Ganapathy Iyer, with him) for the State of Hyderabad. A.R. Sornanatha Iyer, Advocate-General of Mysore (K. Ramaseshayya Choudhry, 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 respond- ent in Case No. 298.
1952. January 11. The following judgments were deliv- ered.
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 sec- tion 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 imprison- ment 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 uncon- stitutional and void under article 13 (2)as it denied to the respondent the equal protection of the laws enjoined by article 14. The High Court by a Full Bench consisting of the Chief Justice and four other Judges quashed the conviction and directed the trial of the respondent and the other accused persons according to law. Hence the appeal. The Act is intituled "An Act to provide for the speedier trial of certain offences ", and the preamble declares that "it is expedient to provide for the speedier trial of cer- tain 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 spe- cial judges to preside over such courts. Section 5, whose constitutionality is impugned, runs thus:
290
"5(1) A Special Court shall try such offences or classes of cases, as the classes of offences or cases 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 re- spect 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 substitu- tion 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 dispensation 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, 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
291
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 dis- crimination. 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 in 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 inasmuch as "the clas- sification sought to be made on the expediency of speedier trial is not a well-defined classification. It is too indef- inite 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
(1) [1950] S C.R. 594. 603.
292
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 Gov- ernment 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(1): "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 Insc. Co. (2). "The object of the law, we assume, until the lower Court shall decide otherwise, is single-to keep up competition--and the general language is to be restricted by the specific provi- sions 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
(1) (1830) I B. & Ad. 538, 558. (2) 199 U.S. 401. 293
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 incon- sistent not only with the declared object of the statute but also with the constitutional prohibition against discrimina- tion, 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 abso- lute, 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 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 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 republi- canism" [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 Ameri- can 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
(1) 17 Am. Rep.405.
294
pledge of the protection of equal laws" [Yick Wo v. Hopkins (1)], that is, Jaws 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 the rights conferred by Part III) as including, among other things, any "order" or "notification", so that even executive orders or notifica- tions must not infringe article 14. This trilogy of arti- cles thus ensures non-discrimination in State action both in the legislative and the administrative spheres in the demo- cratic republic of India. This, however, cannot mean that all laws must be general in character and universal in application. As pointed out in Chiranjit Lal's case(2) and in numerous American decisions dealing with the equal pro- tection clause of the 14th Amendment, the State in the exercise of its governmental power must of necessity make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws. But classi- fication 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 (3), "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 observation in his dissenting opinion in Connoly v. Union Sewer Pipe Co. (4) (which later prevailed in Tigner v. (1).118 U.S. 356, 369. (3) 174 U.S. 96, 106. (2) [1950] S.C.R. 869. (4) 184 U.S. 540. 566, 567,
568.
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 princi- ple 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 ob- serves equality between all the persons on whom it is to operate. An affirmative finding on the point may not, howev- er, 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 classi- fication is founded on a reasonable basis having regard to the object to be attained, or is arbitrary. Thus, the rea- sonableness 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,
296
enactments. Nor, obviously, could it arise when executive orders or notifications directed against individual citi- zens are assailed as discriminatory.
It is interesting to find that the trend of recent decisions in America has been to lean strongly toward sus- taining 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 (1), the majority view in Connolly's case(2) holding that an Illinois anti-trust law, which made certain forbidden acts criminal if done by merchants and manufacturers but declared them to be civil wrongs if done by farmers and stockmen, was "manifestly a denial of the equal protection of the laws ") was consid- ered to be no-longer "controlling ". While in Gulf, Colorado & Santa Fe R. Co. v. Ellis (3) a Texas statute imposing an attorney's fee in addition to costs upon railway corpora- tions which unsuccessfully defended actions for damages for stock killed or injured 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 (4), 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(5) marks, perhaps, the farthest swing of the pendulum. A Louisiana pilotage law authorised the appoint- ment of State pilots only upon certification by a State Board of river pilot commissioners who were themselves State Pilots. Among the prescribed qualifications was apprentice- ship under a State pilot for a certain period. By admitting only their relatives and friends
(1) 310 U.S. 141. (4) 174 U.S. 96.
(2) 184 U.S. 540. (5) 330 U.S. 552,
(3) 165 U.S. 666.
297
to apprenticeship, the members of the board made it impossi- ble, 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 laws sets a goal not attain- able 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. Hopkins(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 employer and his ex-employees was a denial of the equal protection of laws, aS such a remedy was al- lowed in all other cases. But it is to be noted that the minority, which included Holmes and Brandeis JJ., expressed the opinion that it was within the power of the State to make such differentiation and the law was perfectly consti- tutional. 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
(1) 257 U.S. 312. (2) 118 U.S. 356.
39
298
the Board of Supervisors unless it was located in a building constructed of brick or stone, was held discriminatory and unconstitutional. The undisputed facts disclosed in the record were that out of 320 laundries in San Francisco about 310 were constructed of wood, and about 240 of the 320 were owned and conducted by subjects of China. The petitioner, a chairman, and about 200 of his countrymen applied to the Board of Supervisors to continue their clotheswashing busi- ness 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 public authority with an evil eye and an unequal hand so as to practically make unjust and illegal discrimination between persons in similar circum- stances, 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 adminis- tered. That is how the decision has been explained in later cases. For instance, in Atchison Topeka & Santa Fe R. Co. v. Matthews"(1) it was said "In that case (Yick Wo's case (2)) 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 regula- tion an arbitrary classification was intended and accom- plished" (Italics raine).
(1) 174 U.S. 96, 105. (2) 118 U.S. 356. 299
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 per- missible, "in substance and purpose seeks to effect discrim- ination": 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 suffi- cient 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 with- out a licence from the controller "who may approve or disap- prove 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(3) a provi- sion 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. Uphold- ing the constitutionality of the
(1) [1940] A.C. 838, 858. (3) 199 U.S. 552. (2) 219 U.S. 128.
300
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 rea- sonableness, he agreed that it was not hit at by the 14th Amendment.
Supreme Court of India
The State Of West Bengal vs Anwar All Sarkarhabib ... on 11 January, 1952
Equivalent citations: 1952 AIR 75, 1952 SCR 284
BENCH:
SASTRI, M. PATANJALI (CJ)
FAZAL ALI, SAIYID
MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
AIYAR, N. CHANDRASEKHARA
BOSE, VIVIAN
CITATION:
1952 AIR 75 1952 SCR 284
West Bengal Special Courts Act (X of 1950), ss. 3, 5 Constitution of India, Art. 14--Act constituting special courts and empowering State Government to refer "cases" or "offences" or "classes of cases" or "classes of offences" 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 classifica- tion--Intention of legislature how far material--Validity of notification under Act--Test of equality before law--Essen- tials of reasonable classification--Necessity for speedier trial, whether reasonable ground for discrimination.
HEADNOTE:
The West Bengal Special Courts Act (X of 1950) was entitled "An Act to provide for the speedier trial of cer- tain 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 con- stitute Special Courts, and sec. 5 provided 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 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 unconsti- tutional and void inasmuch as it contravened Art. 14 of the Constitution, which provides that "the State shall not deny to any person equality before the law or the equal protec- tion of the laws within the territory of India". 285
Held, per FAZL ALl, MAHAJAN, MUKHERJEA, CHANDRASEKHARA AIYAR and BOsE JJ. (PATANJALI SASTRI C.J., dissenting)--Section 5 (1) of the West Bengal Special Courts Act, 1950, contravenes Art. 14 of the Constitution and is void inasmuch as (per FAZL ALl, MAHAJAN, MUKHERJEA, and CHANDRASEKHARA AIYAR 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 which 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 J.--Section 5 Il) 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.J.--Section 5 (1) of the Act is not void or unconstitutional wholly or even in part.
Per FAZL ALl, MAHAJAN, MUKHERJEA and CHANDRASEKHARA AIYAR 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 are similarly situated, are able to avail themselves of the same procedural rights for rebel 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 incumbent upon him before he can claim relief on the basis of 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 ; 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 unambigu- ously vests the State Government with unrestricted discre- tion 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 286
(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 administrative 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 discrimination 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 definition 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 differen- tia 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 treatment. Nor can the constitutionality of a statute depend on the degree of the inequality brought about by the 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 ( 1 ) of the Act which relates to "offences' ', "Classes of offences" and "classes of cases", construed in the light of the pream- ble, 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) foes 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 cried by the Special Court lies beyond the ambit of the object aid down by the preamble and contem- plates and involves a purely arbitrary selection based on nothing more substantial
287
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 classifica- tion nor whether there is absolute equality in any academi- cal 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 impugned 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 impugned 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 circum- stances which call for comparatively prompt disposal of a case or cases proposed to be referred and sec. 5 (11 must be read as empowering the Government to direct the Special Court to 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 Constitution does not mean that all laws must be general in character and universal in application. The State must possess the power of distin- guishing and classifying persons or things to be subjected to particular laws and in making a classification the legis- lature 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 discre- tion to be exercised so as to carry out the purpose of the Act and the mere fact that the discretion might be exercised 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 indefi- nite to be the basis of classification. (6) The notifica- tion 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
288
to show that the Government was influenced by any discrimi- natory 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 dis- posal.
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 Slate of Bombay v.F.N. Balsara ([1951] S.C.R. 682), ex- plained.
Truax v. Corrigan (257 U.S. 312), Yick Wo v. Hopkins (118 U.S. 356) and other American cases on the right to equal protection of the laws considered.
JUDGMENT:
APPELLATE CIVIL JURISDICTION: 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.
Jitendra Nath Ghose (R. P. Bagchi, with him) for the respondent in Case No. 297.
A.A. Peerbhoy and J.B. Dadachanji for Habib Mohammad (Intervener).
V. Rajaram Iyer, Advocate-General of Hyderabad (R. Ganapathy Iyer, with him) for the State of Hyderabad. A.R. Sornanatha Iyer, Advocate-General of Mysore (K. Ramaseshayya Choudhry, 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 respond- ent in Case No. 298.
1952. January 11. The following judgments were deliv- ered.
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 sec- tion 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 imprison- ment 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 uncon- stitutional and void under article 13 (2)as it denied to the respondent the equal protection of the laws enjoined by article 14. The High Court by a Full Bench consisting of the Chief Justice and four other Judges quashed the conviction and directed the trial of the respondent and the other accused persons according to law. Hence the appeal. The Act is intituled "An Act to provide for the speedier trial of certain offences ", and the preamble declares that "it is expedient to provide for the speedier trial of cer- tain 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 spe- cial judges to preside over such courts. Section 5, whose constitutionality is impugned, runs thus:
290
"5(1) A Special Court shall try such offences or classes of cases, as the classes of offences or cases 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 re- spect 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 substitu- tion 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 dispensation 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, 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
291
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 dis- crimination. 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 in 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 inasmuch as "the clas- sification sought to be made on the expediency of speedier trial is not a well-defined classification. It is too indef- inite 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
(1) [1950] S C.R. 594. 603.
292
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 Gov- ernment 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(1): "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 Insc. Co. (2). "The object of the law, we assume, until the lower Court shall decide otherwise, is single-to keep up competition--and the general language is to be restricted by the specific provi- sions 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
(1) (1830) I B. & Ad. 538, 558. (2) 199 U.S. 401. 293
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 incon- sistent not only with the declared object of the statute but also with the constitutional prohibition against discrimina- tion, 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 abso- lute, 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 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 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 republi- canism" [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 Ameri- can 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
(1) 17 Am. Rep.405.
294
pledge of the protection of equal laws" [Yick Wo v. Hopkins (1)], that is, Jaws 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 the rights conferred by Part III) as including, among other things, any "order" or "notification", so that even executive orders or notifica- tions must not infringe article 14. This trilogy of arti- cles thus ensures non-discrimination in State action both in the legislative and the administrative spheres in the demo- cratic republic of India. This, however, cannot mean that all laws must be general in character and universal in application. As pointed out in Chiranjit Lal's case(2) and in numerous American decisions dealing with the equal pro- tection clause of the 14th Amendment, the State in the exercise of its governmental power must of necessity make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws. But classi- fication 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 (3), "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 observation in his dissenting opinion in Connoly v. Union Sewer Pipe Co. (4) (which later prevailed in Tigner v. (1).118 U.S. 356, 369. (3) 174 U.S. 96, 106. (2) [1950] S.C.R. 869. (4) 184 U.S. 540. 566, 567,
568.
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 princi- ple 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 ob- serves equality between all the persons on whom it is to operate. An affirmative finding on the point may not, howev- er, 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 classi- fication is founded on a reasonable basis having regard to the object to be attained, or is arbitrary. Thus, the rea- sonableness 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,
296
enactments. Nor, obviously, could it arise when executive orders or notifications directed against individual citi- zens are assailed as discriminatory.
It is interesting to find that the trend of recent decisions in America has been to lean strongly toward sus- taining 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 (1), the majority view in Connolly's case(2) holding that an Illinois anti-trust law, which made certain forbidden acts criminal if done by merchants and manufacturers but declared them to be civil wrongs if done by farmers and stockmen, was "manifestly a denial of the equal protection of the laws ") was consid- ered to be no-longer "controlling ". While in Gulf, Colorado & Santa Fe R. Co. v. Ellis (3) a Texas statute imposing an attorney's fee in addition to costs upon railway corpora- tions which unsuccessfully defended actions for damages for stock killed or injured 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 (4), 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(5) marks, perhaps, the farthest swing of the pendulum. A Louisiana pilotage law authorised the appoint- ment of State pilots only upon certification by a State Board of river pilot commissioners who were themselves State Pilots. Among the prescribed qualifications was apprentice- ship under a State pilot for a certain period. By admitting only their relatives and friends
(1) 310 U.S. 141. (4) 174 U.S. 96.
(2) 184 U.S. 540. (5) 330 U.S. 552,
(3) 165 U.S. 666.
297
to apprenticeship, the members of the board made it impossi- ble, 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 laws sets a goal not attain- able 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. Hopkins(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 employer and his ex-employees was a denial of the equal protection of laws, aS such a remedy was al- lowed in all other cases. But it is to be noted that the minority, which included Holmes and Brandeis JJ., expressed the opinion that it was within the power of the State to make such differentiation and the law was perfectly consti- tutional. 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
(1) 257 U.S. 312. (2) 118 U.S. 356.
39
298
the Board of Supervisors unless it was located in a building constructed of brick or stone, was held discriminatory and unconstitutional. The undisputed facts disclosed in the record were that out of 320 laundries in San Francisco about 310 were constructed of wood, and about 240 of the 320 were owned and conducted by subjects of China. The petitioner, a chairman, and about 200 of his countrymen applied to the Board of Supervisors to continue their clotheswashing busi- ness 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 public authority with an evil eye and an unequal hand so as to practically make unjust and illegal discrimination between persons in similar circum- stances, 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 adminis- tered. That is how the decision has been explained in later cases. For instance, in Atchison Topeka & Santa Fe R. Co. v. Matthews"(1) it was said "In that case (Yick Wo's case (2)) 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 regula- tion an arbitrary classification was intended and accom- plished" (Italics raine).
(1) 174 U.S. 96, 105. (2) 118 U.S. 356. 299
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 per- missible, "in substance and purpose seeks to effect discrim- ination": 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 suffi- cient 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 with- out a licence from the controller "who may approve or disap- prove 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(3) a provi- sion 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. Uphold- ing the constitutionality of the
(1) [1940] A.C. 838, 858. (3) 199 U.S. 552. (2) 219 U.S. 128.
300
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 rea- sonableness, he agreed that it was not hit at by the 14th Amendment.
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