In Supreme Court of India
Cases no 297 & 298 of 1951
AIR 1952 SC 75
AIR 2018 SC 357
State of West Bengal
Anwar Ali Sarkar
Date of Judgement
(CJI) Patanjali Shastri, Saiyid Fazal Ali, M.C. Mahajan, B.K. Mukherjee, S.R. Das, N. Chandrashekar Aiyar, Vivian Bose
The West Bengal Special Courts Ordinance, 1949 which was replaced in March 1950 by the West Bengal Special Courts Act, 1950 is instituted to provide for the speedier trial of certain offences and the preamble declares that it is expedient to provide for the speedier trial of certain offences. Section 3 empowers the State Government to constitute special Courts and Section 5, whose constitutionality is impugned allows these Special Courts to 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 main features of these special courts during the trial of the cases referred to it which mark a departure from the established procedure for criminal trials under the Code of Criminal Procedure are the elimination of the committal procedure in sessions cases and the substitution of the procedure laid down in the Code for trial of warrant cases by the Magistrate, trial without jury or assessors, restriction of the Court’s power in granting adjournments, special powers of deal with refractory accused and dispensation of denovo 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.
The respondent and 49 other persons were charged with various offences alleged under the act to have been committed by them in the course of their raid as an armed gang on a certain factory known as the Jessop factory at Dum Dum, and they were convicted and sentenced to varying terms of imprisonment by the Special Court to which the case was sent for trial by the Governor of West Bengal by a notification dated 26-1-1950 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 the Court for trial was unconstitutional and void under Article 13(2) as it denied to the respondent the equal protection of the laws enjoined by Art. 14.
The High Court by a Full Bench quashed the conviction and directed the trial of the respondent and the other accused persons according to law. The High Court applied the test of reasonable classification and held that, although the need for a speedier trial than what is possible under the procedure prescribed by the Code of Criminal Procedure might form the basis of a reasonable classification and Section 5(1) could not be regarded as discriminatory in so far as it authorises the State Government to direct that certain offences or classes of offences or classes of cases should be tried by a special Court, the provision was discriminatory and violative of Article 14 of the Constitution in so far as it purported to vest in the State Government an absolute and arbitrary power to refer to a special Court for trial “any case’’, which must include an individual case, “whether the duration of such a case is likely to be long or no’’. The court 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“. It found impossible, to cut down the plain meaning of the word cases as in the section. It realised that the powers under the sub-section could be so exercised as not to involve discrimination, but they also could, be exercised in a manner involving discrimination. When an Act gives power which may and can offend against a provision or provisions of the Constitution such an Act is ultra vires though it could be administered so as not to offend against the Constitution.
Further the High Court held that Section 5(1) was unconstitutional in the entirety inasmuch as the classification sought to be made on the expediency of speedier trial is not a well-defined classification. It is too indefinite and three can hardly be any definite objective test to determine it.
Aggrieved by this order of the High Court, The State of West Bengal preferred to file an appeal before the Apex Court.
This is an appeal by the State of West Bengal from a judgment of the High Court of Calcutta quashing the conviction of the respondent by the Special Court established under Section 3 of the West Bengal Special Courts Ordinance, 1949 which was replaced in March 1950 by the West Bengal Special Courts Act, 1950.
a) If the object of the legislation was a laudable one and had a public purpose in view, as in this case, which provided for the speedier trial of certain offences, the fact that discrimination resulted as a bye-product would not offend the provisions of Article 14 implying that if the inequality of treatment was not specifically intended to prejudice any particular person or group of persons but was in the general interests of administration, it could not be urged that there is a denial of equality before the law.
b) If the principle of classification has to be applied as a necessary test, there is a classification in the impugned Act as it says that it is intended to provide for the speedier trial of certain offences; and in the opinion of the legislature certain offences may require more expeditious trial than other offences and this was a good enough classification. The Act further empowers the State Government to direct the offences, which, in its view, require speedier trial. This State control which can effect such changes as it likes for securing due and efficient administration of justice is a mere regulation in the mode of trial and is thus not a discriminatory or hostile legislation. This construction of the section, is consonant with the object of the Act as recited in the preamble and does not offend against the inhibition of Article 14 of our Constitution.
c) That the Article is a protection against the inequality of substantive law only and not against that of a procedural law.
d) The differences that have been made in the procedure for criminal trial under the West Bengal Special Courts Act, 1950 are of a minor character and there are no substantial grounds upon which discrimination could be alleged or founded.
a) The whole of Section 5 of the Act or, at any rate, that part of it which authorises the State Government to direct particular “cases“ to be tried by the Special Court offends against the guarantee of equality before the law secured by Article 14. If the provision of Section 5 of the Act is invalid even to the limited extent mentioned above, then also the whole proceedings before the Special Court which was directed by the State Government to try these particular “cases“ must necessarily have been without jurisdiction as has been held by the High Court Full Bench and these appeals would have to be dismissed.
b) There is no indication in the sub-section itself of any restriction or qualification on the power of classification conferred by it on the State Government and that the power thus given to the State Government cannot be controlled and cut down by calling in aid the Preamble of the Act, for the Preamble cannot abridge or enlarge the meaning of the plain language of the sub-section.
c) This uncontrolled and unguided power of classification given to the State under Section 5(1) can be exercised capriciously or “with an evil eye and an unequal hand“ so as to deliberately bring about invidious discrimination between man and man, although both of them are situated in exactly the same or similar circumstances.
Whether the whole, or any portion of the West Bengal Special Courts Act 1950, is invalid as being opposed to equality before the law and the equal protection of the laws guaranteed under Article 14 of the Constitution of India?
The Court first began by decoding Article 14 of the Indian Constitution. The preamble to the Constitution mentions one of the objects to be to secure to all its citizens equality of status and opportunity. Article 14 states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 14 of our Constitution, corresponds to the last portion of Section 1 of the Fourteenth Amendment to the American Constitution except that our Article 14 has also adopted the English doctrine of rule of law by the addition of the words “equality before the law.’’
The meaning, scope and effect along with the principles underlying the provisions of Article 14 of our Constitution have been discussed and laid down by this Court in the case of Chiranjit Lal V. The Union of India, 1950 and The State of Bombay v. F.N. Balsara. It is now well established that while Article 14 is designed to prevent a person or class of persons from being singled out from others similarly situated for the purpose of being specially subjected to discriminating and hostile legislation, it does not insist on an “abstract symmetry’’ in the sense that every piece of legislation must have universal application. All persons are not, by nature, attainment or circumstances, equal and the varying needs of different classes of persons often require separate treatment and, therefore, the protecting clause has been construed as a guarantee against discrimination amongst equals only and not as taking away from the State the power to classify persons for the purpose of legislation.
What then is Classification? Classification means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily. This classification may be on different bases. It may be geographical or according to objects or occupations or the like. Mere classification, however, is not enough to get over the inhibition of the Article. The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out put those qualities or characteristics must have a reasonable relation to the object of the legislation.
Thus the Legislatures may fix the age at which persons shall be deemed competent to contract between themselves but no one will claim that competency to contract can be made to depend upon the stature or colour of the hair. Such a classification for such a purpose would be arbitrary and a piece of legislative despotism.
In order to pass the test of reasonable classification , two conditions must be fulfilled:
(1) That the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and
(2) That differentia must have a rational relation to the object sought to be achieved by the Act.
The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while the Article forbids class legislation in the sense of making improper discrimination by conferring privileges or imposing liabilities upon persons arbitrary selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liability proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary. Article 14 thus secures all persons within the territories of India against arbitrary laws as well as arbitrary application of laws.
The Court relied on a passage from Willis on Constitutional Law wherein it was held that the guarantee of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subject to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed. The inhibition of the amendment was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation. It does not take from the states the power to classify either in the adoption of police laws, or tax laws or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis. Mathematical nicety and perfect equality are not required.
Now Coming to the case in question:
The West Bengal Special Courts Ordinance, 1949, which was later replaced by the impugned Act (West Bengal Special Courts Act 1950) was a valid Ordinance when it was promulgated on 17-8-1949 as there was no provision similar to Article 14 of the present Constitution. The Act, which came into effect on 15-3-1950, is a verbatim reproduction of the earlier Ordinance.
The true scope and intent of the impugned provision is that it purports to provide for the matters to be tried by a special Court and does not 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. The purpose of Section 5(1) is to define the jurisdiction of a special Court appointed under the Act and not the scope of the power conferred on the State Government to refer cases to such Court. 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.
The Act under scrutiny has deviated in many matters of importance from the procedure prescribed by the Criminal Procedure Code for the trial of offences and that this departure has been definitely adverse to the accused. Preliminary inquiry before committal to the Sessions, trial by jury or with the aid of assessors, the right of a de novo trial on transfer of a case from one Court to another, have been taken away from the accused who are to be tried by a Special Court; even graver is S. 13, which provides that a person may be convicted of an offence disclosed by the evidence as having been committed by him, even though he was not charged with it and it happens to be a more serious offence. This power of the Special Court is much wider than the powers of ordinary Courts. A comparison between the language of those sections of the Code and that of the several sections of this Act mentioned above will clearly show that the Act has gone much beyond the provisions of the Code and the Act cannot by any means be said to be an innocuous substitute for the procedure prescribed by the Code. The act quite definitely brings about a substantial inequality of treatment, in the matter of trial between persons subjected to it and others who are left to be governed by the ordinary procedure laid down in the Code.
In consequence of the Act, two procedures, one laid down in the Code and the other laid down in the Act, exist side by side in the area to which the Act applies.
1. A grave offence may be tried according to the procedure laid down in the Act, while a less grave offence may be tried according to the procedure laid down in the Code.
2. An accused person charged with a particular offence may be tried under the Act while another accused person charged with the same offence may be tried under the Code.
3. Certain offences belonging to a particular group or category of offences may be tried under the Act whereas other offences belonging to the same group or category may be tried under the Code.
The latter affords greater facilities to the accused for the purpose of defending himself than the former.
The sub-section refers to four distinct categories, namely, “offence’’, “classes“ of offences’’ “cases’’ and “classes of cases’’ and empowers the State Government to direct any one or more of these categories to be tried by the Special Court constituted under the Act. Prima facie, those words do not contemplate any particular offender or any particular accused in any particular case. The classification implied in this part of the sub-section has no reference to, and is not directed towards the singling out of, any particular person as an object of hostile State action but is concerned only with the grouping of “offences“ “classes of offences“ and “classes of cases“ for the purpose of being tried by a Special Court. Such being the meaning and implication of this part of section 5(1), the question arises whether, the process of classification thus contemplated by the Act conforms to the requirements of reasonable classification which does not offend against the Constitution.
The Court citing the provisions of the Indian Penal Code held that there are different chapters dealing with offences relating to different matters, eg. chapter XVII which deals with offences against property, that under this generic head are set forth different species of offences against property, eg. theft (S. 378), theft in a dwelling house (S. 380), theft by a servant (S. 381), to take only a few examples, and that according to the language of Section 5 (1) of the impugned Act it will be open to the State Government to direct all offences of theft in a dwelling house under Section 380 to be tried by the Special Court according to the special procedure laid down in the Act leaving all offences of theft by a servant under S. 381 to be dealt with in the ordinary Court in the usual way. The argument is that although there is no apparent reason why an offence of theft in a dwelling house by a stranger should require speedier trial any more than an offence of theft in a dwelling house by a servant should do, the State Government may nevertheless select the former offence for special and discriminatory treatment in the matter of its trial by bringing it under the Act. A little reflection will show that this argument is not sound. In order to be a proper classification so as not to offend against the Constitution it must be based on some intelligible differentia which should have a reasonable relation to the object of the Act as recited in the Preamble. In the illustration taken above the two offences are only two species of the same genus, the only difference being that in the first the alleged offender is a stranger and in the latter he is a servant of the owner whose property has been stolen. Even if this difference in the circumstances of the two alleged offenders can be made the basis of a classification, there is no nexus between this difference and the object of the Act, for, in the absence of any special circumstances, there is no apparent reason why the offence of theft in a dwelling house by a stranger should require a speedier trial any more than the offence of theft by a servant should do. Such classification will be wholly arbitrary.
In the present case, there is ostensibly no attempt at, or pretence of, any classification on any basis whatever. To say that the reference to speedier trial in the preamble of the Act is the basis of classification is to read into the Act something which it does not contain and to its authors what they never intended. The notifications simply direct certain “cases“ to be tried by the Special Court and are obviously issued under that part of S. 5(1) which authorises the State Government to direct “cases“ to be tried by the Special Court. The word “cases“ has been used to signify a category distinct from “classes of cases.“ The idea of classification is, therefore, excluded. This means that this part of the sub-section empowers the State Government to pack out or select particular cases against particular persons for being sent up to the Special Court for trial. The present statute suggests no reasonable basis or classification, either in respect of offences or in respect of cases. It has laid down no yardstick or measure for the grouping either of persons or of cases or of offences by which measure these groups could be distinguished from those who are outside the purview of the Special Act. The Act has left this matter entirely to the unregulated discretion of the provincial government. It has the power to pick out a case of a person similarly situate and hand it over to the special tribunal and leave the case of the other person in the same circumstance to be tried by the procedure laid down’ in the Criminal Procedure Code. The State Government is authorized, if it so chooses, to hand over an ordinary case of simple hurt to the special tribunal, leaving the case of dacoity with murder to be tried in the ordinary way.
Speedier trial of offences may be the reason and motive for the legislation but it does not amount either to a classification of offences or of cases. The necessity of a speedy trial is too vague and uncertain a criterion to form the basis of a valid and reasonable classification. It is too indefinite as there can hardly be any definite objective test to determine it. In my opinion, it is no classification at all in the real sense of the term as it is not based on any characteristics which are particular to persons or to cases which are to be subject to the special procedure prescribed by the Act. Speedy administration of justice, especially in the field of the law of crimes, is a necessary characteristic of every civilised Government, there is not much point in stating that there is a class of offences that require such speedy trial. Of course, there may be certain offences whose trial requires priority over the rest and quick progress, owing to their frequent occurrence, grave danger to public peace or tranquillity, and any other special features that may be prevalent at a particular time in a specified area. And when it is intended to provide that they should be tried more speedily than other offences, requiring in certain respects a departure from the procedure prescribed for the general class of offences, it is but reasonable to expect the legislature to indicate the basis for any such classification. If the Act does not state what exactly are the offences which in its opinion need a speedier trial and why it is so considered, a mere statement in general words of the object sought to be achieved, as we find in this case, is of no avail because the classification, if any, is illusive or evasive. The policy or idea behind the classification should at least be adumbrated, if not stated, so that the Court which has to decide on the constitutionality might be seized of something on which it could base its view about the propriety of the enactment from the standpoint of discrimination of equal protection. Any arbitrary division or ridge will render the equal protection clause moribund or lifeless.
Further even though the Preamble of an Act cannot override the plain meaning of the language of its operative parts, it may, nevertheless, assist in ascertaining what the true meaning or implication of a particular section is, for the Preamble is, as it were, a key to the understanding of the Act. The Preamble of the Act under consideration recites the expediency of providing for the speedier trial of certain offences. The provision for the speedier trial of certain offences is, therefore, the object of the Act. To achieve this object, offences or cases have to be classified upon the basis of some differentia which will distinguish those offences or cases form others and which will have a reasonable relation to the recited object of the Act. The differentia and the object being different elements, it follows that the object by itself cannot be the basis of the classification of offences or the cases, for, in the absence of any special circumstances which may distinguished one offence or one class of offences or one class of cases from another offence, or class of offences or class of cases the speedier trial is desirable in the disposal of all offences or classes of offences or classes of cases. Offences or cases cannot be classified in two categories on the basis of the Preamble alone as suggested by the learned Attorney-General.
The argument that changes in procedural law are not material and cannot be said to deny equality before the law or the equal protection of the law so long as the substantive law remains unchanged or that only the fundamental rights referred to in Arts 20 to 22 should be safeguarded is, on the face of it, unsound. The right to equality postulated by Art. 14 is as much a fundamental right as any other fundamental right dealt with in Part III of the Constitution Procedural law may and does confer very valuable rights on a person, and their protection must be as much the object of a Court’s solicitude as those conferred under substantive law. A procedural law may easily inflict very great hardship on persons subjected to is, as, indeed, this very Act under consideration will presently be seen to have obviously done.
Almost every piece of legislation has got a public purpose in view and is generally intended, or said to be intended, to promote the general progress of the country and the better administration of Government. The intention behind the legislation may be unexceptionable and the object sought to be achieved may be praiseworthy but the question which falls to be considered under Art. 14 is whether the legislation is discriminatory in its nature, and this has to be determined not so much by its purpose or objects but by its effects. There is scarcely any authority for the position taken up by the Attorney-General.
It is, therefore, clear, for the foregoing reasons, that the power to direct “cases“ as distinct from “classes of cases“ to be tried by a Special Court contemplates and involves a purely arbitrary selection based on nothing more substantial than the whim and pleasure of the State Government and without any appreciable relation to the necessity for a speedier trial. Here the law lays an unequal hand on those who have committed intrinsically the same quality of offence. This power must inevitably result in discrimination and this discrimination is, in terms incorporated in this part of the section itself. It is not a question of an unconstitutional administration of a statute otherwise valid on its face but here the unconstitutionality is writ large on the face of the statute itself.
It may be that justice would be fully done by following the new procedure. It may even be that it would be more truly done. But it would not be satisfactorily done, satisfactory that is to say, not from the point of view of the governments who prosecute, but satisfactory in the view of the ordinary reasonable man, the man in the street. It is not enough that justice should be done. Justice must also be seen to be done and a sense of satisfaction and confidence in it engendered. That cannot be when Ramchandra is tried by one procedure and Sakharam, similarly placed, facing equally serious charges, also answering for his life and liberty, by an other which differs radically from the first. The law of the Constitution is not only for those who govern or for the theorist, but also for the bulk of the people for the common man for whose benefit and pride and safeguard the Constitution has also been written. Unless and until these fundamental provisions are altered by the constituent processes of Parliament they must be interpreted in a sense which the common man, not versed in the niceties of grammar and dialectical logic, can understand and appreciate so that he may have faith and confidence and unshaken trust in that which has been enacted for his benefit and protection.
Finally this court laid down seven principles as follows :
a) The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of his own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.
b) The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class.
c) The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position, and the varying needs of different classes of persons often require separate treatment.
d) The principle does not take away from the State the power of classifying persons for legitimate purposes.
e) Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough.
f) If a law deals equally with members of a well defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.
g) While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis.
The Court held that the whole of the West Bengal Special Courts Act of 1950 offends the provisions of Article 14 and is therefore bad. We find men accused of heinous crimes called upon to answer for their lives and liberties. We find them picked out from their fellows, and however much the new procedure may give them a few crumbs of advantage, in the bulk they are deprived of substantial and valuable privileges of defence which others, similarly charged, are able to claim.
The Court therefore agreed with the High Court that S. 5 (1) of the Act in so far as it empowers the State Government to direct “cases“ to be tried by a Special Court offends against the provisions of Art. 14 and, therefore, the Special Court had no jurisdiction to try these “cases“ of the respondents. The High Court was right in quashing the conviction of the respondents in the one case and in prohibiting further proceedings in other cases and finally this Court dismissed these appeals
The case was decided by the apex court in favour of the respondent and held the West Bengal special courts act void on the grounds that the act was violating Article 14 of the Constitution as it gave arbitrary, uncontrolled and unguided power to the State Government which could be used unreasonably and biasedly and also restricted equal protection of laws. It failed to provide a reasonable classification between ‘cases’, ‘classes of cases’, ‘offences’, and ‘classes of offences’.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje