Professional Documents
Culture Documents
08 - Chapter 3 PDF
08 - Chapter 3 PDF
1
Advisory Committee, Fundamental Rights: Interim Report C1.21 Delhi, 1948.
2
A. V. Dicey, Law of the Constitution 202 (1964).
57
that the alike should be treated alike. Absolute Equality among human
beings is an impossibility.
The phrase ‘equal protection of the laws’ occurs in section I of the
Fourteenth Amendment to the U.S. Constitution. It reads:
“ No State shall deny to any person within its
jurisdiction the equal protection of the laws”.3
It means that there shall not be arbitrary discrimination made by
the laws themselves in their administration.
II. Article 14 and its Statutory Provision :
Article 14 reads as under:
The State shall not deny to any person Equality before the law or the
equal protection of laws within the territory of India.
If this term is closely looked then it appears that in essence both
terms mean ‘Equal Justice’. Everybody from the President downwards to
the poorest citizens or person in India, is subject to the Rule of Law which
is enshrined in our Constitution. The Right to Equality is conferred on
every person and not merely on citizens. It was held in State of W. Bengal
v. Anwar Ali Sarkar4 that ‘law’ in article 14 is not confined to the law
enacted by legislature but includes any order or notification. Such an
interpretation makes the protection provided in article 14 complete
available to every person.
Article 14 does not mean that all laws must be uniform and must
universally be applicable. It only prohibits improper and individual
distinctions created by conferring Rights or privileges upon a particular
group to the exclusion of other group without any valid reason. Thus
under this article, there cannot be unfair discrimination between one
15
Sociedade De Fomento Industrial Pvt. Ltd v. Mormugao Dock Labour Board.
62
appropriate that the learned Judge should rescue himself from the Bench
hearing that matter. This step is required to be taken by him not because
he is likely to be influenced in any manner in doing Justice in the case,
but because his hearing the matter is likely to give rise to a reasonable
apprehension in the mind of the litigant that his mind may be
subconsciously has been influenced by some extraneous factor in making
the decision, particularly if it happens to be in favour of the opposite
party. In a case of P K Ghosh16 it is held by Supreme Court that in
Credibility in the functioning of Justice delivery system and the
reasonable perception of the affected parties are the relevant
considerations to ensure the continuance of public confidence in the
creditability and impartially of the judiciary.
Judicial review of administrative action is an essential part of rule
of law and so is independence of judiciary. Non-arbitrariness is a
necessary component of the rule of law.
It has been held by the Supreme Court in case of Central Board of
Secondary Education17 that when the High Court itself became conscious
that the decision regarding admission of an ineligible student was wrong
and the precedent was not worth repeating, still it was repeated time and
again, it amounted to a mockery of “ Rule of Law” and promotes rather
the “Rule of Man”.
C. Relation of article 14 with other provisions of the Constitution
1. Article 14 is a general provision and has to be read subject to the other
provisions included within the Part on Fundamental Rights. Hence, any
law making special provision for women ( or children) under Art. 15(3)
cannot be challenged on the ground of contravention of Art. 14 as also held
by the Supreme Court in Yusuf Abdul Aziz’s case.18
16
P K Ghosh v. J G Rajput, AIR1996 SC 513.
17
Central Board of Secondary Education v. Nikhil Gulati, AIR1988 SC1205.
18
Yusuf Abdul Aziz v. State of Bombay AIR1954 SC321.
63
22
Common cause A Registered Society v. Union of India AIR1999 SC 2979.
23
Chabungam Ibohal Singh v. Union of India (1995) SCC (Supp2)83.
24
Sri Srinivasa Theatre v. Govt, of Tamil Nadu A.I.R1992 SC,at1004.
66
27
Wade & Phillip, Const & Adm. Law, 87(1977).
69
33
Union of India v. Paliwal Electrical (P)Ltd AIR1996 SC 3106.
72
England, Equality before the law could not beget equal protection of the
laws in the form of doctrine of classification although it could
comprehend other facets of equal protection. In American, although equal
protection clause could beget Equality before the law, in absence of a
specific guarantee of the latter, the doctrine of classification became
rudderless especially when it upheld the ‘separate but equal’ approach or
could not neutralize substantive due process approach. Thus, although
there is some overlap between the content or characteristics of these two
concepts, there is distinction between the two, and Art. 14 does not create
a tautology.
However, in State of West Bengal v Anwar Ali Sarkar,34 Das J. has
observed to the effect that Art. 14 resembled 14th Amendment of the US
Constitution and addition of the words ‘Equality before the law’ has
made no ‘substantial difference in the practical application.’ Prof. P.K.
Tripathi has supported this viewpoint with a reasoning that the
incorporation of the phrases was only to avoid doubts and distinctions
about these concepts and that any one of them alone would have been
sufficient.35
It is submitted, although the distinction between the two concepts
is often blurred by the common desiderata of reasonableness, Justice, and
control of power that underscore them, the distinction between the two
concepts is manifest and significant. The tradition of Equality before the
law in England, ruled out its application against legislative classification.
While Madras High Court was influenced by this approach in V.G. Row,36
such an approach is not valid in India because of the comprehensive
application of Arts. 13 and 14, and is Rightly rejected by the Supreme
(AIR)1952 SC 75.
P.KTripathi, Some Insights into Fundamental Rights(Bombay University Press).
V.G. Row v. State of Madras AIR(1951) Mad147.
73
in
Court. The most notable feature of Equality before the law is its
emphasis on equal recognition of all human beings as human beings
possessing common psycho-biological urges, needs, and equal individual
worth. The fraternal shade is explicit here. On the other hand, equal
protection of the laws concentrates on proportionality in the application of
power, in conferring benefits or in imposing burdens. Thus, the difference
lies in the objectives chosen in these concepts for an egalitarian treatment
and hence prevalence of one concept over another causes imbalance to
the value framework of Art. 14.
Durga Das Basu, by extending the principle of Constitutional
interpretation that all the phrases in the Constitution should be given
distinct meaning rather than allowing redundancy, puts forward a
proposition that the doctrine of classification is an exemption to the
in
Equality before the law, but not as an exception to the latter. The doctrine
of classification enables rational selection and application of legal
inequality upon factual inequality so that Justice or Equality will be the
ultimate result(Supra). What Subba Rao, J. emphasized was that the
nexus test should not be handled mechanically; but the goal of attaining
Equality, Justice or reasonableness should be properly heeded. Since the
nexus test lays adequate emphasis on rational criterion that rejects both
over-inclusion and under-inclusion, and takes into consideration the
relation between the criterion of classification, and the purpose of statute,
it is submitted, there is an in built orientation towards the result of
equality before the law. But what is.lacking in the nexus test is a fraternal
shade of man-to-man element of Equality or the glorious content of
humanism, which is asserted by Equality before the law. Thus, the
proposition of Subba Rao, J, would mean, without disturbing the doctrine
of classification, an additional inquiry namely, whether the statutory
classification is really promoting the egalitarian spirit and harmonise the
thrust of these two concepts. This would avoid the doctrine of
classification from becoming rudderless.
Further, the textual frame of Art. 14 does not support the approach
of treating Equality before the law as negative concept, and equal
protection of the laws as positive; but on the other hand, such an approach
confuses the issues. Prof. P.K. Tripathi has criticized this approach as
erroneous for these reasons.41 Basically, there is no inconsistency between
the two concepts, and treating the one as an exception to the later is not
sound. As P. Jagnmohan Reddy, J, points out, the Supreme Court, by
giving a wider content to Equality before the law than in England, has
applied the equal protection clause cumulatively.42 This analysis does not
41
P.K.Tripathi, Some Insights into Fundamental Rights(Bombay University Press).
42
P. Jagnmohan Reddy, Liberty, Equality, Property and the Constitution (Calcutta
University Press).
75
43
438 US 265(1978).
76
ibid).
!
77
Ibid.
46
443 US 193 (1979).
78
manner that is fair, just and equitable, after taking objectively all the
relevant options into consideration and in a manner that is reasonable,
relevant and germane to effectuate the purpose for public good and in
general public interest and it must not take any irrelevant or irrational
factors into consideration or appear arbitrary in the decision.
The Legislature is entitled to make reasonable classification for
purposes of legislation and treat all in one class on an equal footing. The
Supreme Court has underlined this principle in Western U. P. Electricity
Power and Supply Co Ltd’s case as ‘Western U. P. Electricity Power and
Supply Co Ltd v. State of U.P.55 :
“Art. 14 of the Constitution ensures Equality
among equals; its aim is to protect persons
similarly placed against discriminatory >
treatment. It does not however operate against .
rational classification. A person setting up a
grievance of denial of equal treatment by law
must establish that between persons similarly
circumstanced, some were treated to their
prejudice and the differential treatment had no
reasonable relation to the object sought to be
achieved by the law.”
In a case of Rooplal56 it has been held by the Supreme Court that
where the provision in the Executive instructions denying the benefit of
service rendered by a deputationist on an equivalent post in his parent
department was contradictory to the law declared by the Supreme Court,
the offending portion was declared unreasonable and was struqk down.
In another case in Malpe Vishwanath Acharya57 it has been held by the
55
AIR 1970 SC 21, 24
56
Sub-Inspector Rooplal v. Lt. Governer, (2000)1 SQC644.
57
Malpe Vishwanath Acharya v. State of Maharastra, AIR 1998 SC 602.
81
residents of Andaman and Nicobar Islands into settlers prior to 1942 and
settlers after 1942 was reasonable as the former had to suffer much and
the later were brought under rehabilitation schemes. In another case of P.
V. Sundara Rajan71 the Supreme Court held that the government servants
absorbed in public sector undertakings and commuting only one-third of
the pension forms a separate category.
B. Relation between classification and the reasonableness.
There is a view that much of the development of law under Art. 14
has taken place as an elaboration, explanation, and illustration of the
doctrine of classification and its different methods of application. The
unique sway of the doctrine of classification, after a quarter of a century,
was however, subject to some underplaying by a recourse to the doctrine
of reasonableness. In reality, the latter was supplemental to the former.
The doctrine of classification was evolved in India as a narrower
and specific method of inquiry rather than with a comprehensive setting
of adjudging reasonableness by examining the entire social and legal
milieu in which the differential treatment was devised. The wider test
propounded by Patanjali Shastri, CJ, namely
“ Whether the degree of disparity goes beyond what the reason for
its existence demands.”72
Was not received by the Supreme Court, although the Shastri
approach could additionally deal effectively, the problems of selective
application and unreasonable exercise of discretion. However, it was the
nexus test propounded by S. R. Das. J., which became “well established in
the beginning”. In Anwar Ali Sarkar, S.R.Das, J. observed,
“In order to pass the test, two conditions must be satisfied, namely
(1) that the classification must be founded on an intelligible differentia
which distinguishes those that are grouped together from others and
71
P. V. Sundara Rajan v. Union of India (2000)4 SCC 469.
72
State of West Bengal v Anwar Ali Sarkar, AIR1952 SC 75.
85
(2) the differentia must have rational relation to the object sought
to be achieved by the Act.”73
According to P.K. Tripathi, while the test concentrates on ‘Why’
and ‘Whom’ elements by ignoring the ‘What’ element, i.e. the type of
special treatment for the selected class, it gives rise to the possibilities of
confusion and wrong result.74 In Anwar Ali Sarkar, the ‘Why element was
not properly identified but it was confused for ‘What’ element. Such
errors occurred in other cases also.
Apart from the defect in the formulation or application of the nexus
test, P.K. Tripathi seriously doubts the suitability or relevancy of the test
in some significant areas. For example, in the circumstances of selective
application of things or persons for specialized treatments it is not
suitable. In Vajravelu Mudaliar case, when the Supreme Court applied
nexus test to quash selective acquisition of land for urban housing there
was an absurdity because devising a differentia in such circumstances
was not logical or practical. Testing of reasonableness of exercise of
power under the Act in the circumstances of the case was a suitable line of
inquiry, but the Court applied the nexus test as it if was anal-care formula.
In a number of cases relating to statutes, which conferred discretionary
power of selective application with adequate legislative guidelines, the
application of the nexus test was experience to be hardly rewarding, but
still it was applied as though there was no alternative.
As viewed by Prof. P.K. Tripathi about Kothi Ranning Rawat77 and
other cases,
“The only relevant inquiry from the point of
view of Art. 14 here also, is whether actual
73
Ibid.
74
P.KTripathi, Some Insights into Fundamental Rights(Bombay University Press),
75
ibid.
76
Vajravelu Mudalia v. Spl.Deputy Collector,Madras AIR1967 SC637.
77
Kothi Ranning Rawat v. State of Saurashtra AIR1952 SC123.
86
78
P.K.Tripathi, Some Insights into Fundamental Rights(Bombay University Press).
79
Ram Krishna Dalmia AIR1958 SC538.
80
Lachman Das v. State of Punjab AIR1963 SC222.
81
Ibid.
82
M.R. Balaji v. State ofMaysore AIR1963 SC649.
87
83
P.K.Tripathi, Some Insights into Fundamental Rights(Bombay University Press).
84
E.P.Royappa vs State of Tamil Nadu AIR1974 SC555.
85
R.D. Shetty v. LA.Authority AIR1979 SC1628.
88
subsequent case the Court applied nexus test shows that it is not overruled
by the doctrine of reasonableness but only supplemented by the latter.
Secondly, Mr. Seervai’s analysis that the principle of
reasonableness is not specifically anchored into the concept of Equality
before the law or equal protection of the laws appears to be superficial
because, basically, reasonableness means proportionality, and hence
reflects the philosophy underlying both the concepts. Its locus in the
thrust of equal treatment of equals is quite logical. The third point made
out by Seervai is, as M. P. Singh points out, not logically reject able
because all inequalities are not unreasonable.90 But such microscopic
exception does not upset the soundness of Bhagwathi approach. As M.P.
Singh points out,
“.....Bhagwathi’s argument is reasonable if on
the lines of Kant and Dworkin one argues that
Equality of human worth or equal respect for
every individual is the sine qua non of a just
order and that any system that disregards
Equality of human worth or respect is unjust or
unreasonable.”91
The doctrine of classification and the principle of reasonableness
are two alternatives, but mutually consistent and complementary
instruments of the same egalitarian philosophy. There is commonness in
their origin, doctrinal base, benign ethos and noble mission. The
difference is in their mode of operation sweep and the reach. But
prevalence of one at the cost of the other disturbs the egalitarian
framework.
90
M.P.Singh The Principle of Reasonabless.
91
Ibid.
90
there are other persons who are situated similarly as the petitioner is a
question of fact. And whether the petitioner is subjected to hostile
discrimination is also a question of fact. That is why the burden to
establish the existence of these facts rests on the petitioner. To cast the
burden of proof in such cases on the state is really to ask it to prove the
negative that no other persons are situated similarly as the petitioner and
that the treatment meted out to the petitioner is not hostile.”
Thus, in Nachane,98 when the employees of the Life Insurance
Corporation were exempted from the provisions of the Industrial Disputes
Act, (IDA) by a law of Parliament, and these employees challenged the
law as discriminatory, the Supreme Court stated that the burden of
establishing hostile discrimination was on the petitioner (L. I. C.
employees); it was for them to show that they and the employees of other
establishment to whom the provisions of the IDA applied were similarly
circumstanced to justify the contention that by excluding ,the LIC
employees from the purview of the IDA they had been discriminated
against. No materials had been produced before the Court for the purpose.
On the other hand, if discrimination is writ large on the face of the
legislation, the onus may shift to the state to sustain the validity of the
legislation in question.
In Deepak Sibal v. Punjab University.99 the Supreme Court has
pointed out that a classification need not be made with “mathematical
precision.” But, if there is little or no difference between the persons or
things which have been grouped together and those left out of the group,
then classification cannot be regarded as reasonable. The Court has also
pointed out that to consider reasonableness of classification it is necessary
to take into account the objective for such classification.
100
Ramparshad Narayan Sahi v. State of Bihar, A1R1953 SC 215.
101
Atlas Cycle Co v. Workmen, AIR1962 SC 945.
96
iv. On the other hand in the name of classifying individuals on the ground
of special features, the Legislature cannot assume the jurisdiction to
adjudicate disputes regarding private Rights and thus deprive named
individuals of their Right to go to the duly constituted courts a Right of
access to which for the determination of private legal Rights belongs to
every person. It has been held by the Supreme Court in Sikender’s case
that102 the principle is not, however, applicable where the individual who
complains against the ad hoc legislation had no legal Right enforceable in
a court, e.g., an interest in property held at the discretion of the owner.
E. Judiciary and the basis of reasonable classification
It is not possible to exhaust the circumstances or criteria which may
afford a reasonable basis for classification in all cases. It depends on the
objects of the legislation in view and whatever has a reasonable relation
to the object or purpose of the legislation is a reasonable basis for
classification of the object coming under the purview of the enactment.
Age may form a rational basis in relation to the objects of legislation.
Thus persons who have not attained majority may be incapacitated from
entering into contracts. The classification may be based on the
difference in the nature of the persons, trade, calling or occupation,
which is sought to be regulated by the legislation, e.g., admission to
degree of public harm.
The reasonableness of classification lightning Art.l4 and the
principle given by the courts in a large number of cases are given below:-
1. Matter relating to Army.
It is valid to exempt military and naval messes and canteens from
restrictions on use or consumption of liquor, as military has its own
traditions and mode of life and, therefore, there is an understandable basis
for classification.
102
Sikenderv. A.P State Govt., AIR 1952 SC 91.
97
2. Allotment of shops.
Stalls run by roadside stall-holders for more than three decades
were acquired for a public purpose of widening the road. The Govt,
decided to induce the said staff-holders to move out of the area by
reserving shops for them in a new marketing complex at a concessional
license fee and without trade zoning restrictions. Others were not to be
given this benefit. The Supreme Court held in Gurusharan Singhs case103
that the reservation and allotment to the staff-holders was made treating
them as a separate class on a reasonable and rational basis without any
partially or bias.
3. Accommodation
It has been held by the Supreme Court in State of West Bengal v.
Rabinder Nath Sen Gupta104 that the government employees provided with
government accommodation stand on different footing from the
employees not provided with such accommodation in respect of house
rent allowance.
4. Ban on cattle slaughter
In a legislation imposing a ban on the slaughter of animals for the
preservation and improvement of livestock, it is legitimate to classify
animals into different categories according to their usefulness to society
from different standpoints, e.g., usefulness for agriculture, yielding milk
and the like, as held by the Supreme Court in Hanif Quareshi’s case.105
Thus the Legislature may legitimately ban the slaughter of cows without
prohibiting the slaughter of goats and sheep, or differentiate between
cows and buffaloes. The butchers who slaughter the animals belonging to
these different categories may also be classified on the same basis.
5. Company
a. In view of the financial interest of a larger number of citizens
in the affairs of a company, it would be reasonable to classify the
problem of misappropriation by persons in chare of companies from
ordinary cases of misappropriation. It is not, therefore, unreasonable to
deny the protection, afforded to witnesses under s.132, Evidence Act, to
persons in charge of companies in an investigation under section 239 and
240 of the Companies Act, 1956 as held by the Supreme Court in
Narayanlal Bansi Lais Case.106
b. It has been held by the Supreme Court in Arora R.L’s case107
that in a law providing for compulsory acquisition of property, it would
not be unreasonable to differentiate between acquisition for the purposes
of a Government company and for other companies, or between
acquisition for companies and for individuals.
c. In another case of Shashikant Laxman Kale the Supreme
Court held that Private sector and public sector undertakings are treated
differently and are known to be different classes. Hence, granting
exemption to payment received by an employee of public sector
company at the time of his voluntary retirement is valid Exclusion of
private sector employees from the benefit is permissible.
6. Control of rent.
The Supreme Court held in Baburao Shantaram More case109 that
in a Rent Control Act, it would be reasonable to exempt buildings
belonging to Government, or a local authority who are not likely to be
actuated by any profit-making motive.
7. Co-operative Societies.
The Supreme Court held in Chitralekha. R case110 that in view of
the Directive in Art. 43 of the Constitution, co-operative societies have
been treated on a special footing as compared with other establishments or
corporations, for the purpose of exempting them from the operation of the
Employees ‘ Provident Fund Act, or a Rent Control Act, or from excise
duties on goods produced by them.
8. Court Martial.
The procedure for trial by a court martial is less beneficial to the
accused than a trial by a court of law. On this the Supreme Court in Ram
Sarup Case111 held that nevertheless, the discretion vested in the
appropriate military authorities whether a member of the armed forces
should be sent for trial to a court martial instead of an ordinary court is
not discriminatory because the Army Act indicates the policy according to
which that discretion is to be exercised.
9. Criminal proceedings.
a) On section 207A and 251 A, the Supreme Court in Hanumatha Rao
Macherla’s case112 held that section 207A and 251A of the Criminal
Procedure Code 1898 were based on a reasonable classification inasmuch
as they made a distinction between proceedings instituted on police report
and those instituted otherwise, because the object of the amendment being
to secure a speedy disposal of cases, the differential adopted for
classification is ineligible and relevant to that object, namely, whether or
not there has been a previous investigation by a responsible public servant
whose duty is to detect crime.
110
Chitralekha. R v. State of Mysore, A1R1963 SC 1623.
111
Ram Sarup v. Union of India, AIR1965 SC 247.
112
Hanumatha Rao Macherla v. State of A.P., AIR1957 SC 927.
100
b) S. 178A of the Sea Customs Act, 1887, provides that when certain
goods such as diamonds are seized under the Act “in the reasonable belief
that they are smuggled goods, the burden of proving that they are not
smuggled goods shall be on the persons from whose possession the goods
were seized. The contention that is provision discriminated between such
persons and other litigants by laying down an onerous rule of .evidence
contrary to that under the ordinary law, was rejected on the ground that
the object of the Act was the prevention of smuggling and the differential
on the basis of which the goods were classified and a different
presumption was applied had a rational relation to and directly furthered
that object as held by the Supreme Court in Hanumatha Rao Macherla’s
case.113
c) Though the mere object of securing a speedier trial may not be a
reasonable basis for providing a discriminatory procedure for certain
offences, the Supreme Court in Anwar Ali Sarkar’s case114 held that it
would be a valid basis for classification if the need for a speedier trial has
a reasonable relation to the object sought to be achieved by the
legislation.
d) The very nature of a new offence of a serious nature, not to be found in
the existing law of crimes, may require trial under a different or special
procedure. It was held in Rehman Shagoo’s case115 by the Supreme Court
that there would be no violation of equal protection because anybody who
committed such offence would be tried under the special procedure.
e) Where as convicted person is in jail and unable to engage a pleader, it
is not unreasonable to provide that his appeal shall be decided without
hearing, the Supreme Court in Partap Singh’s case116 held that where such
students have not yet been fully developed; while in the case of
appointment to public service the recruitment has to be made from persons
of mature experience and hence, greater weight must be given to the
personality test on interview .
Secondly, the weight age to be given to the personal test or
interview will differ amongst different services depending on various
factors, such as the requirements of the service in question, the minimum
qualification prescribed, the age group from which the selection is to be
made, the body to which the task of holding the viva voce test is proposed
to be entrusted.
In view of the foregoing facts involved over which the Court does
not possess any expertise, the Court would not interfere with the weight
age given to oral test in the case of selection for the public services,
unless exaggerated weight has been given with proven or obvious oblique
reasons.
Thirdly, the question of weightage to be given to viva voce would
not arise where no written test is held and the selection is made on the
basis of interview only as also held by the Supreme Court in Abid
Asghar’s case.130
13. Foreign exchange.
a) In a programme for the promotion of earning foreign exchange, it is
competent to the Government to select sugar produced by a particular
process only. It is for the Government to select those commodities which
have a demand abroad and are, accordingly, capable of earning foreign
exchange.
b) In view of the fact that exchange has peculiar features and problems of
its own, the provision for a special procedure for the investigation of
130
Abid Asghar v. State of Bihar AIR 1994 SC141.
105
the application of the Act. Held, the object of the legislation namely,
consolidation, was a boon to the tenure holders and if it was to be put
through, there must be a more expeditious procedure than under the
ordinary law. Hence, the classification had a rationale relatable to the
object of the legislation.
18. Market value.
On market value on lands the Supreme Court in Mangatu Ram’s
case140 held that lands abutting the National highway would necessary be
granted a higher market value than the lands situated in the interior.
19. Persons.
a. A law of prohibition may differentiate between civil and
military personnel or between citizens of India and foreigners who have
no intention of permanently residing in India.
b. S.197 of the Cr. P.C. which requires sanction of the Government
to prosecute public servants for acts done or purporting to be done in the
discharge of their official duties is not discriminatory because it is based
on a rational classification, viz , the public servants have to be protected
from harassment in the discharge of their official duties while ordinary
citizens not so engaged do not require this safeguard as also held in
Matajog Dobey case.141
c. In another case of Moti Das142 the Supreme Court held that in
view of the difference between the Hindus and the Jains in matters of
faith and religious practices, there is no contravention of Art. 14 if the
Legislature provides for the Constitution of Boards for the
superintendence of Hindu and Jain religious endowments differently.
d. In view of the financial interest of a large number of citizens
in the affairs in the affairs of a company, it would be reasonable to
140
Union of India v. Mangatu Ram (1997)6 SCC 59.
141
Matajog Dobey v. Bihar H.C. AIR1956 SC 44.
142
Moti Das Mahant v. Sahi S.P. A1R1959 SC 942.
108
148
Orient Weaving Mill Ltd v. Union of India AIR 1963 SC 98.
149
Sivrajan P.V. v. Union of India AIR1959 SC 556.
150
M.B.Cotton Association v. Union of India AIR1954 SC 634.
Ill
156
S. Ramesha v. State of Karnataka A1R1996 SC 718.
157
Mohamedali v. Union of India AIR1964 SC 980.
158
Ramji Lai v. I.T.O. AIR1951 SC 97.
113
reasonable basis for the classification, the law will be struck down and it
is not necessary, to establish that the tax has been imposed with a
deliberate intention of differentiating between individual and individual.
b. But if the taxation, generally speaking, imposes a similar burden on
every one be with reference to that particular kind and extent of property,
on the same basis of taxation, the Supreme Court in Kunnathat’s case 159
held that the law shall not be open to attack on the ground that the result
of the taxation is to impose unequal burdens on different persons.
In a law imposing a sales tax
i. The Supreme Court held in United Motor’s case160 that the State may
not consider it administratively worthwhile to tax sales by small traders
who have no organizational facilities for collecting the tax from their
buyers and turn it over to the Government. Each State must, in imposing a
tax of this nature, fix its own limits below which it does not consider it
administratively feasible or worthwhile to impose the tax.
ii. The Supreme Court held in Syed Mohammed’s case161 that if a
particular commodity has peculiar features in a State (e.g., the business of
untanned hides and skins), the Legislature may impose the tax on the
purchasers of that commodity, while in the case of sales of all other
commodities, the tax is levied upon the sellers.
c. In the matter of taxation laws, the Court permits a greater latitude to
the discretion of the Legislature in the mater of classification. It has been
held by the Supreme Court in Khyerbari’s case that in tax matters, “the
State is allowed to pick and choose districts, objects, persons, methods
and even rates for taxation if it does so reasonably”. State has wide
discretion in respect of classification of objects, persons and things for the
proposes of taxation. The legislature can devise classes for the purpose of
163
Vrindavan Lai Pittie v. Union of India AIR 1986 SC 1168.
164
Epari Chinna Krishna Moorthy v. State of Orrisa (1964)15 STC 461.
115
165
Gopal Narain v. State of U.P. AIR 1964 SC 370.
166
Gouse D.G and Co v. State of Kerala AIR 1980 SC 271.
167
Kulkarni Raja v. State of Bombay AIR 1954 SC 73.
116
The Supreme Court in Commr. S. T. ease179 held that in such a case, the
law is not invalid but the exercise of the discretion may be struck down
where it has not been properly exercised.
(vi) There is no discrimination in providing for appeal from only some of
the decisions of an administrative authority, unless the absence of appeal
from the other decisions makes the whole procedure oppressive and
arbitrary as held by the Supreme Court in Prakash Amichand Shah’s
case.180
Such discrimination may be removed by the Legislature by
retrospectively repealing one of the two procedural laws.
B. Fair and just procedure and Equality:
The decision making process should be transparent, fair and open.
Assigning lower marks in viva voce to the candidates who had
obtained higher marks in the written test by the Interview Committee
cannot be said to be not proper and justified. Where the normal method of
auction or inviting tenders to acquire advanced technology by a Govt,
medical company from foreign companies was not feasible after
negotiation a Memorandum of Understanding was signed by the M.D. with
a leading foreign company at much less than the stipulated minimum
rental for the leasing of the plant but no mala fides or extraneous
considerations on the part of the M.D. were made out and the Board of
Directors as also acting fairly and independently, the action of the
authorities or the Govt, was held to be fair and not violative of Art. 14
tni
which has been held by the Supreme Court in G.D.Zalani’s case. The
procedure, presumption and burden of proof placed on the accused under
Ss 57A and 57 B of (Kerala) Abkari Act, 1077 are not unjust, unfair or
unreasonable offending Arts. 14, 20(3) or 21 as an accused under these
179
Commr.S.T. v. Radha Krishan AIR1979 SC 1588.
180
Prakash Amichand Shah v. State of Gujarat AIR1986 SC 468.
181
G.D.Zalaniv. Union of India AIR1995 SC 1178.
121
sections is treated as a class which has been held by the Supreme Court in
P.N.Krishna Lai’s case.182 To treat equally the regularly recruited
employees in India and those who are sought be absorbed by the bilateral
agreement between the Govt, of India and that of Nepal is to treat
unequals as equals. Hence, in Mahendra Raj Marg Karamchari union's
case, held that treating the discharged Nepal-based employees
appointed for execution of work there as fresh appointees from the date
of their absorption for the purpose of seniority is just and fair. Employing
daily wagers to do manual work at the rates under Minimum Wages Act
and regularizing them as Class IV employees on the basis of length of
service and performance as and when post is created or falls vacant, is a
fair procedure as held by the Supreme Court in Madhyamic Shiksha
Parishad Shramik Sangh’s case.184
For selection of candidates separate marks were awarded for
ACR, experience and ability test Non-recommendation for consideration
all those who secured highest in aggregate of the three heads and
excluding those securing 33% or less marks in ability test only was
unjust and unfair criterion violative of Art. 14 and 16. The practice of
imposing ban on recruitment and making massive ad hoc appointments de
bars the rules, giving a go by to make recruitment in accordance with the
rules and then resort to regularisaiton of such appointments exercising
power under the Art. 320(2) proviso or Art. 16(2) is violative of the
mandates of Arts. 14 and 16. The Supreme Court in Raj Kumar’s case185
held that restricting the selection only to the candidates sponsored by the
employment exchange and not advertising the post in the newspapers
having wide circulation and display on the office notice boards or
announcement on radio, television and employment news bulletins, would
182 P.N.Krishna Lais/. GovtofKerla (1995) Supp2 SCC 187.
183 Mahendra Raj Marg Karamchari union v. Union of India (1995) Supp3 SCC 511.
184 State of U.P v. Madhyamic Shiksha Parishad Shramik Sangh AIR1996 SC 708.
185 Raj Kumars/. Shakti Raj AIR1997 SC 2110.
122
not be consistent with the principles of fair play, Justice arid equal
opportunity. Delay in initiating disciplinary proceeding is not unfair in a
case involving possession of disproportionate assets or pecuniary
resources as the Govt, may have to do a lot to collect necessary material
in this regard. Fairness/unfairness would depend upon facts of each case.
Denial of Right to be impleaded in proceedings to a person interested is
in negation of fair and just procedure offending Art. 14.
C. Special Court or tribunal and Equality
This para has been dealt with by the Supreme Court in a number of
cases, and the position resulting there from may now be stated as follows:
a. A law which authorizes the trial of any cases by Special Courts
or by a procedure which differs substantially from the ordinary procedure
to the prejudice of the accused, offends against Art. 14.
(i) Such legislation is discriminatory if it leaves it to the
uncontrolled discretion of the Executive to select particular cases under
the discriminatory procedure, the Supreme Court held in M.K.Gopalan’s
case186 that it is not so, if the Legislature itself lays down the policy and
the standards according to which the selection is to be made by the
administrative authority.
(ii) The policy may be gathered from the Preamble or even from
the general tenor of the enactment.
b. But there is no infringement of the Article if certain offences or
classes of offences are prescribed by the Legislature to be triable by a
Special Court or under such special procedure, according to a reasonable
basis of classification.
c. There is no discrimination unless the procedure prescribed by
the impugned legislation is substantially different from the normal
procedure. It has been held by the Supreme Court in Anwar Ali Sarkar’s
186
M.K.Gopalan v. State of M.P. AIR1954 SC 362.
i
123
case 87 that minor deviations from the general standard would not
r
constitute discrimination.
d. Whether an enactment providing for special procedure for the
trial of certain offences is or is not discriminatory and violative of art. 14
of the Constitution must be determined in each case as it arises, for, no
general rule applicable to all cases of offences set out in the Schedule to
the Act to a Special Judge but is vested with a discretion in the matter, it
cannot be said that the provision offends against Art. 14 of the
Constitution. If the impugned legislation indicates the policy which
inspired it and the object which it seeks to attain, the mere fact that the
legislation does not itself make a complete and precise classification of
the persons or things to which it is to be applied, but leaves the selective
application of the law to be made by the executive authority in
accordance with the standard indicated or the underlying policy and object
disclose, is not a sufficient ground for condemning it as arbitrary and
therefore obnoxious to Art. 14.
e. As to the basis upon which offences may be classified
reasonably for trial by a Special Court or by a procedure substantially
different from the ordinary procedure, it has been held that:
(i) The necessity for a ‘speedier trial’ is too vague, uncertain and elusive
a criterion to form a rational basis for classification, particularly when the
Legislature itself does not indicate what are the offences which, in its
opinion , require a speedier trial as held by the Supreme Court in Anwar
Ali Sarkar’s case.188
(ii) The same may be said against ‘more convenient disposal’ of certain
unspecified cases.
187
State ofW.B v. Anwar Ali Sarkar AIR1952 SC 75.
188
Ibid.
124
(iii) The mere fact that the evidence in a particular case would be
voluminous and would take a long time, would not justify a special
treatment.
But speedier trial of specified offences shall be on a rational basis
for classification if the speedy trial has an intimate rational relation to the
object of the legislation, such as ‘public safety’ or ‘maintenance of
public order’ in a dangerously disturbed area, or the effective suppression
of the widely prevalent offence of corruption and illegal gratification in
the public services during the post war period as also held by the Supreme
Court in Kangshari Haidar’s case.189
On the other hand:-
(i) Provision for ‘public safety’ or ‘maintenance of public order’ is a
rational basis for special treatment.
The Supreme Court in Gopi Chand’s case190 held that for ensuring
‘public safety and maintenance of public order’ in a ‘dangerously
disturbed area’, it is competent for the Legislature to provide that
specified offences which were ordinarily triable under the warrant
procedure should in such area be tried according to the summons
procedure.
(ii) Emergent conditions, such as the condition of Hyderabad just after the
‘police action’ in Hyderabad, may offer a reasonable basis for trial of
particular offences or classes of offences under a special procedure.
(iii) On the other hand, if there is no substantial difference in the
procedure to be followed by a Special Magistrate or Court as compared
with the normal procedure, there is no violation of Art. 14 merely
because the law empowers the Government to appoint a person as a
2.a. If, however, a law indicates the policy which inspired it, the mere
fact that it does not itself make a complete and precise classification of
the subject-matter, but leaves the selective application of the laws or the
extension of its provisions to new objects according to local conditions or
‘having regard to the circumstances of the case to be made by the
executive authority in accordance with the policy indicated, there is no
contravention of Art. 14 by the law itself, unless, of course, the policy
itself is discriminatory or capable of being used arbitrarily to favour one
party.
i) The validity of a law which provided that: “A Special Judge shall try
such offences or classes of offences or such cases or classes of cases as
the Government....may , by general or special order in writing direct”
was upheld on the ground that the law had laid down a definite legislative
policy, viz, “to provide for public safety, maintenance of public order
and preservation of peace and tranquility”, and the Executive had to
exercise its power in conformity with this legislative policy, if it failed,
the act of the Executive would be liable to be challenged, but the Act
itself could not be challenged as discriminatory.
ii) Similarly, it has been held that the Industrial Disputes Act cannot be
invalidated on the ground of contravention of Art. 14, for having
authorized the Government to refer a dispute either to a Board of
Conciliation or to a Court of Enquiry or to a Tribunal, at its discretion,
inasmuch as the policy of the Act was expressed to be for the purpose of
“investigation and ‘settlement of industrial disputes” and the Government
was to decide what step would be conducive to this end, having regard to
the exigencies of such particular case as held by the Supreme Court in
Bhikusa Yamasa Kahatriya’s case.195
f
I
129
200
Irani P.J v. State of Madras AIR1961 SC 1731.
201
Kunnathat Thathunni Moopil Nairv. State ofKerla A1R1961 SC 552.
202
Kathi Ranning Rawatv. State of Saurashtra AIR1952 SC123.
130
203
Ram Bachan Lai v. State of Bihar AIR1967 SC 1404.
204
State of W.B v. Anwar Ali AIR 1952 SC 75.
131
205
Ram Krishna Dalmia, Shri v. Tendolkar Justice AIR 1958 SC 538.
206
Bidi Supply Co v. Union of India AIR 1956 SC 479.
207
State Bank of Bikaner and Jaipur v. Jagmohan Lai Al R1989 SC 75.
132
enters into a trade like any other trader. Thus, the Government, carrying
on the business of banking, may be given by law special facility for the
recovery of its dues,— which are, in fact, the dues of the entire people as
held by the Supreme Court in MannaLal’s case.212
In some cases, however, the reasonableness of classifying the State,
separately, from individual, has been justified on the merits, having regard
to the object of the legislation, e.g., a larger period of limitation in favour
of the State as a litigant, under Art. 149 of the Limitation Act, 1908,
special provisions or the summary recovery of money due to the
Government, including stringent action against the debtor as also held by
the Supreme Court in Erimmal Ebrahim Hajee’s case.213
On the other hand, the majority of the Court in State of W.B.v.
Corporation of Calcutta,214 has, again, held that the common law doctrine
of construction that a statute is not binding on the State would offend
against the principle of Equality, though the State can make an Act,
exempting itself from its operation.
When the Government carries on a business which private individuals
could have, its action towards individuals retains the stamp of State action
so that even when granting privileges or licenses to such individuals, it
must not practice discrimination as between such individuals, and must
observe the same standard as professed.
C. Complainant: In the violation of Right to Equality
1. Only a person who is aggrieved by the alleged discrimination, can
challenge the validity of a law on the ground of violation of Art. 14. The
payment of higher compensation to his neighboring land owner makes an
applicant an aggrieved person entitling him to claim re-determination of
compensation payable to him for his land. Thus, the person aggrieved
212
MannaLa v. Collector of Jhalawar AIR1961 SC 828.
213
Collector of Malabar v. Erimmal Ebrahim Hajee AIR1957 SC 688.
214
AIR 1967 SC 997.
135
would mean a person who had suffered legal injury or one who has been
unjustly deprived or denied of something, which he would be interested
to obtain in the usual course or similar benefits or advantages or results in
wrongful affectation of his title to compensation as held by the Supreme
Court in Babu Ram’s case.215
Thus, Person who has never applied for license under a statute
cannot complain that the statute is discriminatory and a license would
have been refused to him if he had applied . But a person who did not
apply for license or make a tender at an auction may still contend that he
was precluded from applying by some discriminatory condition imposed
by the State for entering into the competition, and may, accordingly,
challenge the Constitutionality of such discriminatory condition imposed
on his Right to apply or to make a tender for federation as held by the
Supreme Court in Ramana Dayaram Shetty’s case.216
a. The petitioner cannot complain unless he belongs to the class of
persons who are alleged to have been discriminated against. The Supreme
17
Court held in Hans Mullar’s case.
Where the contention was that s. 3(2)(c) of the Foreigners Act,
1916, read with s. 2(a) discriminated between different classes of British
subjects inter se, it was held that a foreigner who was not a British subject
was not entitled to challenge the validity of the Act on this ground.
2. The foregoing orthodox view as to locus standi has, however, been
modified and the class of persons entitled to enforce Fundamental Rights
has been widened by the advent of the doctrine of public interest
litigation’, according to which
215
Babu Ram v. State ofU.P. (1995) 2SCC 689.
216
Ramana Dayaram Shettyv. I.A.A.I AIR1979 SC 1628.
217
Hans Mullarv. Suptt.Presidency Jail Calcutta AIR 1955 SC 367.
136
218
Ramkrishna Daimia v. Tendulkar, Justice S.R. AIR1958 SC 538.
137
222
Ram Krishna Dalmia, Shri v. Tendoikar Justice AIR1958 SC538.
139