THE STATE OF WEST BENGAL v. ANWAR ALI SARKAR

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 the Special Court varying terms of imprisonment by 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 High Court under article 226 of the Constitution for the issue of a writ of certiorari quashing the con- the Special viction and sentence on the ground that inasmuch as Court had no jurisdiction to section· 5 (1), under which it was sent that Court for trial, was unconstitutional and void under arti- the equal cle 13(2) as protection of laws enjoined by article 14. The High Court by a Full Bench consisting of the Chief Justice and four other Judges quashed the conviction trial of the respondent and the other :md directed accused persons according to law.

Hence the appeal. the respondent applied it denied to the respondent try the case to provide for that "it is expedient The Act is intituled "An Act speedier trial of certain offences", and the preamble declares speedier trial of certain offences". Section 3 empowers the State Government by notification the official gazette to constitute Special Courts, and section 4 pro- the appointment of special judges to preside vides for such courts, Section S, whose constitutionality is impugned, runs thus : to provide 1952 The State of West Bengal v. Anwar Ali Sarkar. Pataniali Sastri C. /. 290 SUPREME COURT REPORTS [1952] "5 ( 1) A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may by general or special order in writing, direct. tried at to 15 prescribe the commencement of (2) No direction shall be made under sub-section (1) for the trial of an offence for which an accused person was being this Act before any court but, save as aforesaid, such direction may be made in respect of an offence, whether such offence was committed before or after the commence- ment of this Act.

" Sections 6 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 Pro- cedure 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 restriction of the court's power in granting adjournments, special powers to deal with refractory accused and dispens- · ation of de novo trial on transfer of a case from one these depar- special court to another. While some of tures from in practice, the normal procedure might, 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 pro- cedure provided in the Act is, on its face, calculated to prejudice the fair trial of persons subjected it. is plainly calculated to The departure in each case shorten the declared objective of the statute. to attain assessors, Harries C. J. who delivered the judgment, in which Das and Banerjee JJ. concurred, applied test of what may be called "reasonable classification" and held that, although the need for a speedier than what is possible under the procedure prescribed leading ' • 1952 The State of West Bengal v. Anwar Ali Sarkar. Pataniali Sastri C. T. ... ' > - ; . - S.C.R. SUPREME COURT REPORTS 291 rejected to vest it purported by the Code of Criminal Proce<lu°re might form section 5(1) basis of a reasonable classification and 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 dis- criminatory and violative of article 14 of the Constitu- tion in so far as in the State Government an absolute and arbitrary power 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 the word "cases" in the sub-section should, in view of the !5'tle and preamble of the Act, be construed as meaning cases requiring speedier trial. " He found it "impossible to cut the word i!n the section". He realised that "the 'cases' as used powers under the sub-section could be so exercised as not to involve discriminati.on, but they also could, in my view, be exercised m a manner involving discri- mination. When an Act gives power which may and can offend against a provision, or provisions of the Con- stitution such an Act is ultra vires though it could be administered so as not to offend against. the Constitu- tion'', and he relied in support of this view on certain observations in the judgment of the majority m Crossroads case(1). the plain meaning of the argument Chakravartti and Das JJ. delivered separate judg- ments agreeing with the conclusion of the Chief Justice, Das Gupta J., however, going further and holding that section 5 ( 1) was unconstitutional in its entirety inas-, much as "the classification to be made on the expediency of speedier trial is not a well-defined classification.

It IS too indefinite and there can hardly be any definite objective test to determine it. " sought Before considering whether section 5(1) infringes, to the constitl!tional prohibition It any and what extent, under article 14 it IS necessary to ascertain scope and intendment of the impugned provision. 0) [lllSO] s.c.R. 594, 603 .. 1952 The State of West Bengal v. .4•war Ali Sarkar. Potaniali Stzstri C. f. 292 SUPREME COURT REPORTS [1952} speedier construction 'applicable here requiring the State Government purports to provide for the matters to be tried by a special court and does not .• in form, seek to define kind or class of offences or cases which the State Government is empowered under the Act to assign such a court for trial. In other words, the purpose of section 5 ( 1) is to define the jurisdiction of a special court appointed under the Act and not the scope of the power conferred on the State Government "to cases to such court.

As the very object of the Act was trials by to provide for speedier instituting a system of special courts with a simplified and shortened pro- cedure, it is reasonable to conclude that, so far as legislature was concerned, its intention was that courts constituted under the Act and applying such procedure should deal only with cases and that, accordingly, should refer to such courts only cases of that description. The principle of is perhaps nowhere better stated than by Lord Tenterden C.J. in Halton v. Cove(') : "It is very true, as was argued for the plaintiff, that the enacting words of an Act of Parlia- ment 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 con- fined to that which is the plain object and general in- tention of the legislature in passing the Act, and the preamble affords a good clue to discover what that object was".

The same view was expressed Holmes J. in an American case, Carroll v. Greenwich lnsc. Co.('). "The object of assume, until the lower Court shall decide otherwise, is single- to keep up competition-and the general language to be restricted by the specific provisions apd particular end. " The title and the preamble as well as the other specific provisions of the Act here in ques- tion show unmistakably that purpose of the legislation was to devise machinery "speedier trial of certain offences'', (which must mean trial of cases the commission of certain the whole object law, we involving (I) (1830) I B. & Ad.S38, SSS. (2) 199 U.S. 401. • - ' 1952 The State of West Be11g•l v. Anwar Ali Sarkar. Patanjali Sastri C. /. · ' • - ... - S.C.R. SUPREME COURT REPORTS 293 the general expressions used offences as there can, of course, be no trial of of Jence1 in the abstract) and providing for the power to set that machinery in opera- tion must be restricted to that end in accordance with the intention of the legislature ; for, a literal construc- tion of the general language would impute to the legis- lature an intention to confer an arbitrary power of reference which would be inconsistent not only with the declared object of the statute but also with the con- stitutional prohibition against . discrimination, which the legislature must be taken to have been aware of when it deliberately re-enacted old Ordinance.

The discretion vested the State Government in selecting cases for reference to a special court may not be subject to judicial review and may, in that sense, be absolute, but that is very different from saying that it was intended to be arbitrary. Its exercise must involve bona fide consideration of special features or circumstances which call for a compara- tively prompt disposal of the case or cases proposed to be referred. my opinion, be read as empowering the State Govern- ment to direct a special court to try such offences or classes of offences or cases or classes of cases a.5, in its judgment, require speedier trial. the provisions of In other words, section 5(1) must, The question next arises as to whether the pro- vision, thus understood, violates the prohibition under article 14 of the Constitution. The first ·part of the article, which appears to have been adopted from Irish Constitution, is a declarat!ion of equality of the civil rights of all persons within the territories thus enshrines what American Judges of India and the "basic principle of republicanism" [cf. regard as Ward v.

Flood (1)]. The second part which a corollary of the first and is based on the last clause of the first section of the Fourteenth Amendment of the American Constitution, that equal protection enjoins shall be secured to all such persons in the enjoyment of their rights and liberties without discrimination or favouritism, · or as an American Judge put it "it is a (I) 17 Am· Rep.405. 1952 The Stat< of West Bengal T, Anwar Ali Sarkar. Patanjali Sastri C. /. ' 294 SUPREME COURT REPORTS [1952] the article is directed against the protection of equal laws" [Yick Wo v. pledge of Hopkins('),] that is, laws that operate alike on .persons under like circumstances. And as the prohibi- the State, tion under which is defined in article 12 as including not only the country, legislatures but also the Governments article 14 secures all persons within the territories of India against arbitrary laws as well as arbitrary appli- cation of laws.

This is further made clear by defining "law" in article 13 (which renders void any law which takes away or abridges their rights conferred by Part III) as including, among other things, any "order" or "notification'', so that even executive orders or noti- fications must not infringe article 14. This trilogy of articles thus ensures non-discrimination in State action both in the legislative and the administrative spheres in the democratic republic of India. This, however, cannot mean that all laws must be general in character and universal in application. As pointed 'out in Chiraniit Lal's case( 2 ) and in numerous American decisions deal- . ing with the equal protection clause of the 14th Amend- its governmental ment, the State in the exercise of power must of necessity make laws operating different- ly on different groups or classes of persons within its territory its policies, and it must possess for that purpose large powers of distinguishing classifying persons or thing to be subjected to such laws.

But classification necessarily implies discrimination between persons classified and those who are not members of that class. "It is the essence of a classification" said Mr. Justice Brewer in Atchison, Topeka & v. Matthews("), "that upon the class are cast duties and burdens different from those resting upon the general Indeed the very idea of classification is that of public. inequality, so that it goes without saying that the mere fact of inequality in no manner determines this matter -of constitutionality". Commenting this observa- v. Union ·tion in his dissenting opinion in Connolly :Sewer Pipe Co.(') which later prevailed in Tigner v. to attain particular ends in giving effect Santa Fe R. Co. (I) 118 u.S. 356, 369. (2) [1950] S·ii·C 869. <3) 174 U.S. P6, 106. (4) 184 U.S. 540, 566, 567, 568. • - •. ' - ? / ... - S.C.R. SUPREME COURT REPORTS 295 Texas(1)] Mr. Justice McKenna posed a problem and to answer it: "It seems like a contradiction proceeded 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. in an infinite problems which come variety of relations. Classification 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 is not palpably arbitrary". It encounters and must deal with from persons that classification is (Italics mine.) justified if 1952 The State of West Bengal v. Anwar Ali Sarkar. Patanjali Sastri C. /, 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 per- sons in the governance of its subjects, with the result that the principle of equality of civil rights and of equal protection of the laws is only given effect to as It follows a safeguard against arbitrary State action. that in adjudging a given law as discriminatory unconstitutional two aspects have considered.

First, it has to be seen whether it observes equality between all the persons on whom it is to operate. An affirmative finding on the point may · not, however, If the impugned· legislation be decisive of the issue. is a special law applicable only to a certain class of persons, the court must further enquire whether classification is founded on a reasonable basis having regard to the object to be attained, or is arbitrary. Thus, the . reasonableness of classification comes question only in those cases where special legislation affecting a class of persons is challenged as discrimina- tory. 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 respect of such classification could fairly arise (1) 310 U.S. 141. ... ~· . 1952 The Stat<! of Wett Bengal v. Anwar Ali Sarkar. Patanjali Sastri C. /. 296 SUPREME COURT REPORTS [1952] enactments.

Nor, obviously, executive orders or notifications individual citizens are assailed as discriminatory. arise when against · directed farmers Classifications if done by It is interesting to find that the trend of recent decisions in· America has been to lean strongly toward sustaining State action both in the legislative and attacks based on the administrative spheres against hostile discrimination. .as condemned discriminatory have been subsequently upheld as being: In Tigner v .. within the powers of the legislature. Texas('), the majority in Connolly's case(') holding that an Illinois anti-trust law, which made certain forbidden acts criminal if done by merchants. to be civil and manufacturers but declared them stockmen, was. wrongs the equal protection of thc- "manifestly a denial of laws") was considered to be no-longer "controlling" •. While in Gulf, Colorado & SanAa Fe R. Co. v. Ellis(3 ) a Texas statute imposing an attorney's fee in addition to costs upon railway corporations which unsuccess-. fully defended ·actions for damages for stock killed or- injured by their train was struck down as discrimina- tory because such corporations could not recover such fee if their defence was successful, a similar pro- vision in a Kansas statute in respect of action against railroad companies for damages by fire caused' by operating the rail-road was upheld as not dis- criminatory in Atchison; Topeka & Santa Fe R. Co v.

Matthews(•), the earlier case being distinguished on· some ground which Harlon J. in his dissenting opinion to perceive" •. he was confessed latest decision in Kotch v. Pilot Comm'rs(") And marks, perhaps, the farthest swing of the pendulum .. A Louisiana pilotage law authorised the appointment· of State pilots only upon certification by a State Board' of river pilot commissioners who were themselves State Pilots. Among the prescribed qualifications was apprenticeship under a State pilot for a certai~ friends: period. By admitting only their relatives and not "astute enough Cl) 3IOU.S. l41.. (2) 184 U.S. 540. C3) 165 U.S. 666. (4) 174 U.S. 96 . . (5) 330 U.S. 552. . . - •. • - • . ., - S.C.R. SUPREME COURT REPORTS 297 the Court the board made to apprenticeship, the members of impossible, with occasional exceptions, for others to be appointed as State pilots. . Upholding the constitution- ality of the law as well as the manner in which it was administered, said : "The constitutional command for a State to afford equal protection of the law sets a goal not attainable by the invention and application of a precise formula.

This Court has never attempted that impossible task;. A law which affects the activities of some groups differently from the way in which it affects the activities of other groups is not necessarily banned by the 14th Amendment. Other- wise, effective regulation in the public interest could not be provided, however essential regulation might be. " 1952 The State of West Bengal v. Anwar Ali Sark.ar. Pataniali Sastri C. /. These decisions seem, to my mind, to reveal a change for the of approach marked by an increasing respect State's regulatory power in dealing with equal protec- tion claims and underline the futility of wordy for- mulation of so solving problems "tests" presented by concrete cases. called Great reliance was placed on behalf of the respondent upon the decision in Truax v. Corrigan(1) and Yick. Wo v. Hopkjns(2). In the former case it was held by a remedy majority of 5 : 4 that a law which denied the of injunction in a dispute between the employer and his ex-employees was a denial of the equal protection of laws, as such a remedy was allowed in all other cases.

But it is to be noted that the minority, which included Holmes and Brandies JJ., expressed the opinion it was within the power of the State to make such differentiation the law was perfectly constitu- tional. The legislation was obviously applicable to a class of persons and the decision was an instance where is not the classification was held to be arbitrary and In the other of much assistance case a San Francisco Ordinance, which prohibited carrying on of a laundry business within the limits of the City without having first obtained the consent of to the respondent. (l) 257 U.S. 312. (2) 118 U.S. 356. 19~2 The St11te of West Bengal v. Anwar Ali Sark111-. Patanjali Sastri C. /. 298 SUPREME COURT REPORTS [1952] if it located it was and unconstitutional. in a ·the Board of Supervisors unless building constructed of brick or stone, was held dis- The undisputed criminatory facts disclosed in the record were that out of 320 laundries in San Francisco about 310 were constructed of wood, and about 240 of the 320 were owned and conducted by subjects of China.

The pet1t10ner, a Chinaman, and about 200 oB his countrymen applied to the Board of Supervisors to continue their dothcs- washing business in wooden buildings which they had been occupying for many years, but in all cases licence was refused, whereas not a single one of the petitions presented by 80 persons who were not subjects. of China had been refused. Dealing with these facts the court observed : "Though the law itself be fair on its face and impartial in appearance, yet is applied and administered by a public authority with an evil eye and an unequal hand so as to practically make unjust and similar cir- illegal discrimination between persons in cumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitu- It is to be noted that the law was tion" (Italics mine). "administered'', i.e., not merely applied in a few stray applied, mak- cases, but regularly and systematically ing a hostile discrimination against a particular Such colour. of persons on grounds of race in practice systematic discriminatory of the ordinance though impartial on · its face was, evidently, taken to give rise to the inference that it was designed to be so administered.

That is how the deci- sion has been explained in later cases. For instance, in Atchison Topeka & Santa Fe R. Co, v. Miatthews"(') (Yick Wo's case(')) it was that case a municipal ordinance of San Francisco designed laundry prevent the Chinese from carrying on business was looked void. adjudged beyond the mere letter of the ordinance to the condi- tion of things as saw under the guise of regulation an arbitrary classifi- cation was intended and accomplished". (Italics mine). This Court in San Francisco administration they existed "In (I) 174 U,S. 96, JOS. (2) 118U .S. 356. • - .. 1952 Tiie State ol West Bengd v. Anwar Ali Sarkar. Patafliali Sastri C. /, -' • .. S.C.R. SUPREME COURT REPORTS 2<)9 to say, legislative "colourable the ordinance was what That is the Privy expedient" Council called a which, under the "guise or pretence" of doing what is constitutionally permissible, "in substance and purpose to effect discrimination" : Morgan Proprietary Ltd. v.

Deputy Commissioner of Taxation for New South Wales(1). Thus explained, the Yick Wo case is no authority for the view that the vesting in a public authority of a discretion which is liable to abuse by a arbitrary exercise contrary sufficient ground for condemning statute as dis- criminatory and unconstitutional. intendment a vested powers the view a On the other hand, there is ample authority in the American decisions that the neces- legislature must sarily large include the power of entrusting to an administrative to be body a plenary but not arbitrary discretion exercised so as to carry out the purpose of an enact- In Engel v. O' Malley(2) a New York statute ment. individuals or partnerships to engage in the prohibiting a business of receiving deposits of money without licence from the controller "who may approve or dis- approve the application for a licence in his discretion" was sustained as constitutional. . In answer argument that the controller might refuse 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 remedy, if any, for a breach of duty on !iis part, we think it unnecessary to consider ; for the power of the state to make the pursuit of a calling dependent upon obtaining a licence is well established where safety seems to require it. " extent of a In New York ex rel. Lieberman v. Van De Carr( 8 ) a provision in the Sanitary Code of the City of New York vested discretion in Local Health Boards to grant or withhold licences for carrying · on milk business in the City. Upholding (1) [1940] A.C. 838, 858. (2) 219 U.S.128. the constitutionality of (3) 199 U.S. SS2. 1952 Th• State of West Bengal v. Anwar Ali Sark..ar. Patanjali Sastri C. /. 300 SUPREME COURT REPORTS [1952] provision, Day J. observed after prior decisions :- referring to certain "These cases leave m no doubt the proposition that the conferring of discretionary power upon admi- to grant or withhold permission to nistrative boards carry on a trade or business which is the proper sub- ject of regulation within the police power of the state 1s not violative of rights secured by the 14th Amend- ment.

There is no presumption that the power will be arbitrarily exercised, and when it 1s shown to be thus sanction of exercised against the state authority, this court has not hesitated to inter- fere for his protection, when the case has come before it in such manner as lP authorise the interfetence of a Federal Court. " individual, under And Holmes J. added it did not the Board appear from the statute of Health was intended to be subject to judicial revi- sion as to its reasonableness, he agreed that it Wai not hit at by the 14th Amendment. that, although that the action of In the light of the foregoing di'scussion, it seems to in whole or in me diflicult to hold that section' 5 (1) It does not, either in terms or part is discriminatory. by necessary between discriminate implication, 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.

Indeed, it does not by its own force make the special procedure provided in the Act applicable to the trial of any offence or classes offences or classes of cases ; for, it is the State Govern-, ment's notification under the section that attracl:i · the application of the procedure. Nor is that procedure, as I have endeavoured to show, calculated impair the chances of a fair trial of the cases to which it may be made applicable, and no discriminatory intent or design is discernible on its face, unless every departure from the normal procedure is to be regarded aa involv- already held, as ing a hostile discrimination. section 5 ( 1) vests a a matter of construction, discretion in the State Government to refer to a special court for trial such offences or classes of offences or I have ' - • - • • • 1952 The State of West Bengal v. Anwar Ali Sarkar. Pataniali Sastri C. /. S.C.R. SUPREME COURT REPORTS 301 intended reference an arbitrary manner without In the face of all these considerations, cases or classes of cases as may, in its opinion, require a speedier trial.

Such discretion the State Government is expected to exercise honestly and reasonably, and the mere fact that it is not made subject judicial to be exercised review cannot mean that it was declared object of the Act or, as Harries C.J. put it, "whether the duration of a case is likely to be long or not. " it seems to me difficult to condemn section 5(1) as violative of If the discretion given to the State Govern- article 14. improperly or arbitrarily, ment should be exercised dis- the administrative action may be challenged criminatory, but 'it cannot affect the constitutionality of the law. Whether a law conferring discretionary powers on an administrative authority constitu- tionally valid or not should not be determined on assumption that such authority will act in an arbitrary manner in exercising to it. in Dr. Khare's case(1). "It As observed by Kania C.J. to start with such an assumption and decide the legality of an Act on that basis.

Abuse of power given by law sometimes occurs ; but the validity of the law cannot be contested because of such an apprehension. " On the contrary, it is to be presumed that a public authority will act honestly and reasonably in the exercise of its statutory powers, and State Government in the present case will , before direct- tried by a Special Court, consider ing a case to be whether there are special features and circumstances which might unduly protract its trial under the ordi" nary procedure and mark it off for speedier trial under the Act. the discretion committed improper • But it was said that the possibility of the Act being applied in an unauthorised and arbitrary manner was sufficient to make it unconstitutional according to decisions of this Court in Ramesh Thapar v. The State of Madras( 2 ) and C[tintaman Rao v. The State of Madhya ). It will be recalled tha~ this was the main Pradesh( 8 (1) [1950] s.c.R. 519, S26.

(2) [19SO] S.C.R. S94. (3) [19SO] s.c.R. 7,9, .. 1952 The State of West Bengal v. Anwar Ali Sarkar. Pataniali Sastri C. /. 302 SUPREME COURT REPORTS [1952] , inconsistent with their decision. With respect, ground on which the learned Judges in the High Court rested those decisions have, I think, no application here. In Romesh Thapar's case the constitutionality of a provincial enactment purporting to authorise the Provincial Government to regulate the circulation of a news-sheet in the Province of Madras for the purpose of "securing the public safety or the maintenance of public order" was chal- lenged as the petitioner's fundamental right to freedom of speech and expression conferred by article 19 ( 1) (a) of_. the Constitl)tion. But the only relevant constitutional limitation on freedom of speech was that the State could make a law directed against the undermining of the security of the State pr the overthrow of it, and as the impugned enactment ' covered a wider ground by authorising curtailment of the public that freedom for this Court safety or the maintenance of public order, held it to be wholly unconstitutional and void, observ- ing:- the purpose of security limits constiutionally "Where a law purports to authorise the imposition language of restrictions on a fundamental right restrictions both within and wide enough to cover without permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable.

So long as the possibility of its being applied for· purposes not sanctioned by the Constitution cannot be ruled out it must be held to be wholly unconstitutional and In other words, clause (2) of article 19 having void. allowed the freedom in cases where danger of speech and expression only to the State is involved, an enactment, which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent. " the imposition of restrictions on ' • t .. This passage, which was relied on by lends no support Chief Justice the mere possibility of an Act the view being used learned in a though ~manner not contemplated by the legislature, 1952 The State ·ol, West Bengal v. Anwar Ali St1rkar. Patanjali Sastri C. /. • S.C.R. SUPREME COURT REPORTS 303 judicial such use may not be subject review on that ground, or, in other words, the mere possibility of its abuse in practice, would justify its condemnation as unconstitutional.

The important distinction is in Rome sh T hapar' s case, impugned enactment, having been passed before the commencement of the Constitution, did contemplate the use to which it was actually put, but such use was outside the permissible of speech, constitutional restrictions on to say, the Act was not condemned on the that is ground of the possibility of its being abused but on the ground that even the contemplated and authorised constitutionally permis.- use was outside the limits of the other sible restrictions. The same remarks apply decision relied on. The observations of Kania C.J. quoted above indicate the correct approach. the freedom to a canvassed Even from the point of view of reasonable classifica- tion, I can see no reason why the validity of the Act should not be already pointed out, sustained. As allowed wide latitude must be legislature in things to be brought under classifying persons and the operation of a special law, and such classification need not be based on an exact or scientific exclusion or inclusion.

I cannot share the view of Das Gupta J. that the expediency of speedier trial is "too vague and • indefinite" to be the basis of a "Well defined" classi- should fication. Legislative judgment in such matters not be applying doctrinaire "definite objective tests". The Court should not ms1st J. called "delusive in such cases on what Holmes exactness" (Truax v. Corrigan, supra)_. All court is expected to see, in dealing with equal protec- is whether the law impugned is "palpably tion claims, discriminatory", and, in considering such a question to be attached to the fact that a great weight ought the people majority of who made the law did not think so, though that is not, of course, conclusive. They alone know the local con- ditions and circumstances which demanded the enact- ment of such a law, and it must be remembered that "legislatures are ultimate guardians of the liberties and 5-4 s a India/71 representatives of the elected courts 1952 :The Staie of West Bengal v.

Anwar Ali Sarkar. Patanja/i ·Sastri C. /. 304 SUPREME COURT REPORTS [1952] territories welfare of the people in quite as great a degree as Courts" (per Holmes J. in Missouri K. & T. R. Co. v. May(')). After all, what the Legislature of West Bengal has sought to do by passing this Act is to trials within regulate criminal instituting a system o;f special courts with a shortened and simplified procedure, without requirements of a fair and impartial trial, which is to be made applicable to such cases or classes of cases as, in the opinion of the executive government, require that article 14 speedier disposal. denies to the State Legislature such regulative power. (cf. Missouri v. Lewis(')). To sustain a law as not being discriminatory is not, however, party affected by a discriminatory application of law without a remedy, for, as we have seen, state action on the administrative side can also be challenged as a denial of equal protection and unconstitutional.

I do not impairing That brings us to the consideration of the validity of In Snowden the notification issued in the present case. v. Hughes(2) it was laid down that "the unlawful ad- ministration by State officers of a state statute fair on its face resulting in its unequal application who were entitled to be treated alike is not a denial of there is shown to be present equal protection unless in it an element of intentional or purposeful discri- mination. This may appear on the face of tl1e action taken with respect to a particular class or person or it may only be shown by extrinsic evidence showing a a .discriminatory design to favour one class over another not to be inferred from the action itself. But a discriminatory purpose is not presumed ; :there must be a showing of and intentional ·discrimination". No attempt has been made present case to prove that the State Government was influenced by any discriminatory motive or design.

On the other hand, the facts appearing on the record the case to the would seem to. justify the reference of special court for trial. As pointed out by Chakra- vartti J. individual or · (I) 101 u.s.22. (2) :1'21 U.S. I. • • 1952 T h1: Stat!! of West Bengal . v. Anwar Ali Sarkar. Patanjali Sastri C. /. , S.C.R. SUPREME COURT REPORTS 305 a large scale and "The notification by which the case of Anwar Ali Sirkar (the respondent herein) was directed to be tried by the special court did not relate merely to that case but covered five more cases in each of which the accus- In Anwar Ali's case itself, ed were several in number. there were 49 other accused. All these cases related to the armed raid on the premises of Jessop & Co. in the utmost brutality the course of which crimes of were committed on incidents following the raid. There can be no question at all that the cases were of a very exceptional character and al- technically though committed were offences defined in the Indian Penal Code, Indian it would be Arms Act and the High Explosives Act, futile to contend that the offenders in these cases were of the same class as ordinary criminals, committing the same offences or offences were of the ordinary types .... All these cases again have arisen out of serious disturbances which, according to the prosecution, partook of the nature of an organised revolt.

" that the acts which constituted the offences In view of these facts it seems to me impossible to say the State Government has acted arbitrarily or with a discriminatory the Special Court, special features which mark off this group 0£ cases as requir- ing speedier disposal than would be possible under the ordinary procedure, and the charge of discriminatory treatment must fail. intention in referring these cases there are obviously I would allow this appeal as also Appeal No. 298 of 1951 (The State of West Bengal v. Gajen Mali) which raises the same questions. J FAZL Au J.-I have come to the conclusion that these appeals should be dismissed, and since that is also the conclusion whiCh has been arrived at by several of my colleagues and they have written very full and elabo- judgments in support of it, I shall only supple- ment what they have said by stating briefly how I view some of the crucial points arising in the case.

1952 The State of West Bengal v. Anwar Ali Sarkar. Fazl Ali J. 306 SUPREME COURT REPORTS [1952] There is no doubt the West Bengal Special Courts Ordinance, 1949, which was replaced by the impugned Act (West Bengal Special Courts Act X of 1950, to be hereinafter referred to as "the Act"), it was promulgated on was a valid Ordinance when the 17th August, effect on the 15th March, 1950, is a verbatim repro- duction of the earlier Ordinance, and what we have to decide is whether it is invalid because it offends against article 14 of the Constitution. In dealing with this ques- tion, the following facts have to be borne in mind :- The Act, which came

1949. (1) The framers of the Act have merely copied the provisions of the Ordinance of 1949 which was pro- mulgated when article 14 of the present Constitution. there was no provision similar (2) The provision of the American Constitution which corresponds to article 14 has, ever since Constitution has been in force, greately exercised minds of the American Judges, who notwithstanding their efforts to restrict application within reason- able limits, have had to declare a number of laws and executive acts One is also to be unconstitutional. amazed at the volume of case-law which has grown round this provision, which shows the extent to which its wide language can be stretched and the large variety of situations in which it has been invoked. its counterpart in (3) Article 14 is as widely worded as, if not more widely worded than, the American Constitution, and is bound to lead to some inconvenient results and seriously affect some pre-Constitution laws.

( 4) The meaning and scope of article 14 have been elaborately explained in two earlier decisions of Court, viz., Chiranjit Lal Chowdhury v. The Union of India and Others(') and The State of Bombay and Another v. F. N. Balsara('), and the principles laid down in those decisions have in view to be kept in deciding the present case. One of these prin- ciples is that article 14 is designed to protect all per- legislative sons placed in similar circumstances against discrimination, and if takes care to (1) [1950] S.C.R. 869. (2) [1951] S.C.R. 682. legislature •. 1952 The State of West Benial v. Anwar Ali Sarkar. Fazl Ali /. S.C.R. SUPREME COURT REPORTS 307 classify persons purposes reasonably and if it deals equally with all persons belonging to a well-defined class, it is not· open to the charge of denial of equal protection on the ground that the law does not apply to other persons. legislative (5) There is nothing sacred or sacrosanct about the test of reasonable classification, but it has undoubtedly proved to be a useful basis for meeting attacks on laws and official acts on the ground of infringement of the equality principle. in which ( 6) It follows from the ways the two foregoing paragraphs impugned that one of Act can be saved it is based on a reasonable classification of the persons to whom or the offences in respect of which the procedure laid down in it is to apply, and hence it is necessary to ascertain whether it is actually based on such a classification. introductory remarks, I will proceed to show thut With these the more important aspects of the deal with some of case. - trials, to summary that the preamble The first thing to be noticed is the Act mentions speedier trial of certain offences as its object.

Now the framers of the Criminal Proce- dure Code (which is hereinafter referred to as "the Code") also were alive to the desirability of having a speedy trial in certain classes of cases, and with end in view they made four differenct sets of provisions for the trial of four classes of cases, these being pro- summons visions relating cases, trial of warrant cases and trial of cases triable by a court of session. Broadly speaking, their classifi- cation of the offences for the purpose of applying these different sets of provisions was according to the gravity of the offences, though in classifying the offences fit for summary trial the experience and power of into consideration. trying Magistrate was also The net result of that offences can be more speedily which are summarily triable tried than summons cases, summons cases can be more speedily tried than warrant cases, cases. The can be more speedily these provisions tried than sessions and warrant trial of 1952 The State of West Bengal v.

Anwar Ali Sarkar. Fazl Ali /. 308 SUPREME COURT REPORTS [1952] framers of the Code appear to have been generally of the view that the graver the offence the more elaborate should be the procedure for its trial, which was un- doubtedly an understandable point of view, and no that their classification of offences one has suggested for the four different modes of trial to which reference has been made is unreasonable in any sense. The impugned Act has completely ignored the prin- ciple of classification followed in the Code and it pro- ceeds to lay down a new procedure without making any attempt to particularize or classify the offences or Indeed section 5 of the cases to which it is to apply. Act, which is the most vital section, baldly states that the "Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Govern- ment may, by general or special order in writing direct".

I agree with my learned brothers that to say that the reference to speedier trial in the preamble of the Act is the basis of classification is to read in;o the Act some· thing which it does not contain and to ascribe to its authors what they never intended. As I have already stated, the Act is a verbatim copy of the earlier Ordin- ance which was framed before the present Constitution came into force, and article 14 could not have been before the minds of those who framed it because Article was not then in existence. The second point to be noted is that 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, and hence the pro- to certain visions of the Act are apt anomalous results ; some of which may be stated follows:- to give (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. • 1952 The State of West Bengal v. Anwar Ali Sarkar. Fazl Ali f. S.C.R. SUPREME COURT REPORTS 3()<) (3) Certain offences belonging group or category of offences may be tried under Act whereas other offences belonging group or category may be tried under the Code. a particular facilities shown that of Some of my learned colleagues have examined the two provisions of the Act and procedures-one laid down in the Act and the other in the Code-the later affords greater accused for the purpose of defending himself than the former ; and once it is established that one procedure is less advantageous to the accused than the other, any person tried by a Special Court constituted under Act, who but for the Act would have been entitled to be tried according to the more elaborate procedure of this dis- legitimately enquire :-Why Code, may crimination being made against me and why should to a procedure which has not I be tried according the normal procedure and the same advantages as which even carries with it the possibility of one's being prejudiced in one's defence ? 1s to solve case or the executive authority It was suggested that the reply to this query is the Act itself being general and applicable to all per- to discriminate sons and to all offences, cannot be said in favour of or against any particular classes of persons or cases, and if any charge of discrimination levelled only against can be levelled at all, it can be the act of the Act 1s misused.

This kind of argument however does not the difficulty. The result of to me appear discrimina- accepting it would be the Act terms ; and simply because the executive one cannot also challenge the Act, to administer authority whose dut:y because that authority will say :-I am not to blame I am acting under the Act. It is clear that if the to be accepted could be argument were I think the fallacy of the argument easily defeated. the "insidious discri- lies in overlooking the fact mination complained of the Act JS that whenever any so drafted itself", JS quite evident one cannot challenge JS couched incorporated m even where the act of in general article 14 it being it 1s - 310 SUPREME COURT REPORTS [1952] 1952 The State of West Bengal v. Anwar Ali Sarkar. FazJ Ali f. discrimination is made such discrimination would be lays down a ultimately traceable to it. The Act itself procedure which is to the accused than the ordinary procedure, and this fact must in all the root-cause of the discrimination which cases be may result by the application of the Act. less advantageous In the course of the arguments, it was suggested that the Act is open to criticism on two different and dis- tinct grounds, these being- ( 1) that it involves excessive delegation of legis- lative authority amounting to its abdication in so far as it gives unfettered discretion to the executive, with- out laying down any standards or rules of guidance, to make use of the procedure laid down by it ; and (2) that it infringes article 14 of the Constitution.

The first criticism which is by no means an unsub- stantial one, may possibly be met by relying on the decision of this Court in Special Reference No. 1 of 1951, In re Delhi Laws Act, 1912, etc. ('), but the second criticism cannot be so easily met, since an Act which to discriminate cannot gives uncontrolled but be hit by article 14 and it will be no answer simply to say the legislature having more or less the unlimited power to delegate has merely exer- cised that power. Curiously enough, what regard as the weakest point of the Act (viz., its being drafted in such general terms) is said to be its main strength and merit, but I really cannot see how the generality of language which gives unlimited authority to discri- minate can save the Act. authority I ' a In some American cases, reference to "purposeful or intentional discrimination", and it was argued that unless we can discover an evil intention or a deliberate design to mete out unequal '1:1!'eadment behind the Act, it cannot be impugned.

It should be noted however that the words which I have put inverted commas, have been used in a few American action, where cases with reference only to executive certain Acts were found to be innocuous but they were Ol [195IJ s.c.R. 747. 1952 The State of West Bengal v. Anwar Ali Sarkar. Faz/ Ali J. S.C.R. SUPREME COURT REPORTS 311 "an evil I suggest most administered by public authority with respectfully and an unequal hand. " that it will be extremely unsafe to lay down that un- less there was evidence that discrimination was "pur- poseful. or intentional" the equality clause would not In my opinion, the true position is as be infringed. follows :-As a general rule, if the Act is fair and good, it will be the public authority who has to administer protected. To this general rule, however, there is an exception, which comes into play when there is evidence of mala fides in the application of the Act.

The basic question however still remams whether the Act itself is fair and good, which must be decided mainly with reference to the specific provisions of the Act. It should be noted to intention 111 article 14 and the gravamen of that Article is equality of treatment. In my opinion, it will be dangerous to introduce a subjective test when the Article itself lays down a clear and objective test. thau there 1s no reference - If these and rebut I · argued with myself, equally I must confess that I have been trying hard to think how the Act can be saved, and the best argument that ·came to my mind in support of it was this :-The Act should be held to be a good one, because it embodies all the essentials of a fair and proper trial, namely, ( 1) notice of the charge, (2) right to be heard and the evidence, the prosecution right to impartial (3) access to legal aid, and ( 4) trial by an and experienced court. requisites, to which all accused should a parti- persons are requisites not cular procedure which ensures all those be substituted for another procedure, if such substi- tution 1s necessitated by administrative ex1genc1es or in public interest, even though the new procedure 1s may be different from normal procedure.

This seemed to me to be the best argument in favour of the Act but the more I thought of it the more it appeared to me that it was not a complete answer to the problem before us. In the first place, it brings our Constitution has American Constitution, which entitled, why "due process" elaborate idea of 1952 The State of West Bengal v. Anwar Ali Sarkar. Fazl Ali f. 312 SUPREME COURT REPORTS [1952J that public not chosen to adopt. Secondly, itself does. administrative exigencies will provide the occasion for its application. in the application Lastly, of the Act is too evident to be explained away. the discrimination interest and the Act involved The framers of the Constitution have referred to· equality in the Preamble, and have devoted as many· as five articles, namely, articles 14, 15, 16, 17 and 18 in the Chapter on Fundamental Rights, to ensure· equality in all its aspects. Some of these Articles are confined to citizens only and some can be availed of by non-citizens also ; but on reading these provisions- as a whole, one can see the great importance attached to the principle of equality in the Constitution .. · That being so, it will be wrong to whittle down the meaning of article 14, and however well-intentioned im- pugned Act may be and however reluct; mt one may feel to hold it invalid, it seems to me that section 5 of the Act, or at least that part of it with which alone we are concerned in this appeal, does offend against article 14 of the Constitution and is therefore uncon- is really modelled upon stitutional and void.

The Act a pre-Constitution pattern and, will have to be suitably redrafted in order to conform to the requirements of the Constitution. MAHAJAN J.-I had the advantage of judgment prepared by my brother Mukherjea I am in respectful agreement with his opinion. reading· the certain offences. 1s Section 5 of the West Bengal Special Courts Act hit by article 14 of the Constitution inasmuch as mentions no basis for the differential treatment pres- cribed in the Act for trial of criminals in certain cases learned Attorney- General argued that the Act had grouped cases requi- ring speedier themselves, trial as forming a class differentiating that class from cases not needing expedi- tion and that it was on this basis that the special pro- cedure prescribed in the Act was applicable. In order to appreciate this contention, it scope of article 14 of sary to state shortly is neces- The ·- i S.C.R. SUPREME COURT REPORTS 313 It is designed Constitution. to prevent any person or class of persons for being singled out as a special subject for discriminatory and hostile legislation.

Democracy implies respect for the elementary rights of man, how- ever suspect or unworthy. Equality of right a republicanism and article 14 enunciates principle of this equality principle in the administration of justice. In its application to legal proceedings the article assures to everyone the same rules of evidence and modes of procedure. In other words, the same rule must exist principle, however, does not mean that every law must have all persons who are not by universal application the same posi- nature, attainment or circumstance, tion. similar circumstances. This 1952 The State of West Bengal v. Anwar Ali Sarkar. Mahajan/. some degree it is not open the State has legislation and in relation By the process of classification power of determining who should be regarded as a class for purposes of to a law enacted on a particular subject. This power, no doubt, in likely to produce some inequality; but if a law deals with the liberties of a number of well-defined classes, charge of denial of equal protection on the ground that it has no application to other persons.

The classi- fication permissible, however, must be based on just and real and substantial distinction bearing a reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any sub- segregation stantial basis. Classification in classes which have a systematic relation, usually found in common properties and It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily. Thus the legislature 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 depotism" (1) : (1) Vi de Gulf Colorado & Santa Fe Railway Co. v. W. H. Ellis, 166 U.S.150. characteristics. thus means - • 1952 Tiu State of West Bengal v.

Anwar Ali Sarkar. 314 SUPREME COURT REPORTS [1952] reach of 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. As pointed out by Chakravarti J. the necessity of a speedy trial too vague and uncertain a criterion to form the basis In the words of a valid and reasonable classification. of Das Gupta J. there can too indefinite 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 character- istics which are peculiar to persons or to cases which the special procedure prescribed are to be subject to by the Act. The mere fact of classification sufficient to relieve a statute from equality clause of article 14. To get out of its reach it must appear that not only a classification has been made but also that it is one based upon a reasonable just and ground on some difference which bears a the attempted class'ification and proper relation not a mere arbitrary selection.

Persons concerned offences or cases needing so called speedier trial are entitled to subject of a law which has short-circuited the normal procedure of trial ; why has it grouped them in that category and why has the law deprived protection and safeguards which are case of accused tried under the procedure mentioned in the Criminal Procedure Code ; what makes the legis- lature or the executive to think that their cases need those of others like them ?" The speedier trial than only answer, that so far as I am able to see, the Act because provincial they need government; neither choice of answer sounds rational nor for withholding from such persons the protection of article 14 that could reasonably be given to these in- persons quiries would be they are a class by themselves and there is a reasonable the subject of in other words, inquire "Why are they being made that "Of all other accused because This this special treatment answer them of reasonable.

The prosecutor. inquiries allowed opinion • 1952 The State of West Bengal v. Anwar Ali Sarkar. Mahajan f. S.C.R. SUPREME COURT REPORTS 315 statute tried, while those other persons difference between similar offences. " They who may have committed could be told that the law regards persons guilty of offences against the security of the State as a class in themselves. The Code of Criminal Procedure has by the process of classification prescribed different modes of procedure for trial of different offences. Minor offen- ces can be summarily for grave and heinous offences an elaborate mode of procedure has suggests no been laid down. The present reasonable basis or classification, either respect of offences or in respect of cases. It has laid down no yardstick or measure for the grouping either or per- sons or of cases or of offences by which measure these groups could be distinguished from those who are out- side the purview of the Special Act.

The Act has the unregulated discretion of this matter entirely to It has the power to pick the provincial government. 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 Criminal Procedure the procedure laid down in it so Code. The State government is authorized, 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. is open under this Act for the provincial government to direct that a case of dacoity with firearms and accompanied by murder, where the persons, killed are Europeans be tried by the special Court, while exactly similar cases where the persons killed are under the procedure of the Code. Indians may be It That the Special Act lays down substantially differ- ent rules for trial of offences and cases than laid down in the general law of the land, i.e., tJhe Code of Criminal Procedure, cannot be seriously denied.

It short-circuits It imposes that procedure heavier than are culprits them of certain ordained by the Code. privileges which the Code affords them for their pro- treatment under the tection. Those singled out in material particulars. alleged It deprives liabilities on the .. - 1952 The State of West Bengal v. Anwar Ali Sarkar. ' Mahajan /. 316 SUPREME COURT REPORTS [1952] trial by law deprive them of procedure of the Special Act are to a considerable extent prejudiced by the deprivation of the pro- cedure prescribed under the Criminal Procedure Code. Not only does the special safeguard of the committal procedure and of the trial with the help of jury or assessors, but it also deprives them of the right of a de novo trial in case of transfer and makes them liable for conviction and punishment for major offences other than those for which they may have been charged or tried. The right of the accused to call witnesses in defence has been curtailed and made dependent on the discretion of the special judge.

To a certain extent the remedies to which an accused person is entitled for redress in the higher courts have been cut down. Even if it be said that the statute on the face of it is not discriminatory, it is effect and operation inasmuch as it vests in the execu- tive government unregulated official discretion and therefore has to be adjudged unconstitutional. to make the protection clause of It was suggested that good faith and knowledge of legislature has to existing conditions on the part of a be presumed. That is so ; yet to carry that presump- tion to the extent of always holding that there must be some undisclosed intention or reason for subjecting a hostile and discriminatory certain individuals legislation is article 14, in the words of an American decision, a mere rope of sand, in no manner restraining State action. The protection afforded by the article is not a mere eye- wash but it is a real one and unless a just cause for discrimination on the basis of a reasonable classifica- tion is put forth as a defence, the statute has to be de- clared unconstitutional.

No just cause has been shown in the present instance. The result the ap- peals fail and are dismissed. 1s J.-These MuKHERJEA two appeals are directed against the judgment of a Special Bench of the Calcutta High Court -dated the 28th of August, 1951, and they arise out of two petitions presented, respectively, by the respondent in the two appeals under article 226 of • .. 1952 The State of West Bengal v. Anwar Ali Sarkar. Mukherjea 7. S.C.R. SUPREME COURT REPORTS 317 The material praymg for writs of certiorari the Constitution two criminal proceedings, one of which has -ended in the trial court, resulting in conviction of the accused, while the other is still pending hearing. The questions requiring consideration in both the appeals are the same and the whole controversy centres round the point as to whether the provision of section 5(1) of the West Bengal Special Courts Act, 1950, as well as certain notifications issued under it are ultra vires Constitution by reason of their being in conflict with article 14 of the Constitution. facts, which are not controverted; may be shortly stated as follows.

On August 17, 1949, an Ordinance, known the \Vest Bengal Special Courts Ordinance, was promulgated by the Governor of West Bengal under section 88 of the Government of India Act, 1935. On 15th March, 1950, this Ordinance was superseded and replaced by the West Bengal Special Courts Act which contained provisions almost identical with those of the Ordinance. Section 3 of the Act empowers the State Government notification, Special Courts of criminal jurisdiction for such areas and to sit at such places as may be notified in the notification. Section 4 provides for appointment of a Special Judge to preside over a Special Court and qualifications which a Special Judge should possess. Section 5(1) then lays down that a Special Court shall try such offences or classes of offences or cases or the State Government may, classes by general or special direct. the procedure Sections 6 to 15 set out m details trial of which the Special Court has to follow in the to be cases referred to it.

Briefly stated, the trial is without any jury or assessors, and follow the procedure that is laid down for trial of war- rant cases by the Magistrate under the Criminal Proce~ <lure Code. The procedure in the sessions cases is omitted altogether ; the court's powers special -of granting adjournment are refractory accused provisions are made to deal with from one and also for cases which are order, m writing restricted and the court has it mentions transferred committal constitute, ... ... 318 SUPREME COURT REPORTS [1952] 1952 The State of West Bengal v. Anwar Ali Sark_ar. Mukherjea /. time of transpires from is expressly em- Special Court to another. The Court powered to convict a person of an offence with which he was not charged if it the evidence offence adduced at was committed by him, and immaterial that the offence is not a minor of revision to the High Court has been taken away entirely, though appeals have been allowed in all cases both at the instance of the accused as well as of the State and they lie both on questions of fact and law. offence.

The On October 28, 1949, when the Ordinance wa• still in force, the West Bengal Government appointed Shri S. N. Guha Roy, who was then the Sessions Judge of Alipore, a Special Judge, with powers try cases under the Ordinance. Anwar Ali Sarkar, who is the respondent in Appeal No. 297, along with 49 other in what is known as Dum persons, were the accused Dum ·Factory Raid case, where crimes of the utmost brutality were committed by an armed gang of men on the factory of Messers. Jessop and Company at Dum Dum. The raid took place on February 26, 1949. The accused or most of them were arrested some time after the Ordinance was promulgated. On 25th of Janu- ary, 1950, the State Government by a notification directed that the case of Anwar Ali and his 49 co-accused should be tried by Mr. S. N. Guha Roy in the Ordinance. accordanrn with the provisions of A formal complaint was lodged before the Special Judge in respect of these 50 persons on April 2, 1950, that is to say, after the Special Courts Act was passed, superseding the Ordinance.

The trial lasted for several months and by the 31st of March, 1951, the Special Judge convicted the accused under various sections of the Indian Penal Code, some of them being sentenced life, while others were sentenced to undergo various terms of imprisonment according offence. The State Government applied for enhance- ment of sentence with regard to some of the accused and a rule was actually issued by the High Court upon them to show cause why they should not be sentenced judgment dated to transportation the gravity of 1952 The State of West Bengal v. Anwar Ali Sark_ar. Muk_heriea f. S.C.R. SUPREME COURT REPORTS 319 appointed under show cause why sentence, passed by to death. On May l, 1951, Anwar Ali, the respondent in Appeal No. 297, presented an application before Mr. Justice Bose of the Calcutta High Court under article 226 of the Constitution and a rule was issued by the learned Judge upon that petition calling upon the State of West Bengal to proceedings, conviction and Special Court on the petitioner and his co-accused should not be quashed.

On 21st of May following, a similar application for quashing a pending criminal trial was filed by Gajen Mali, the respondent in the other appeal, who along with 5 other persons conspiracy being tried for offences of murder and to murder before Mr. M. Bhattacharya, another the West Bengal Special Judge, Special Courts Act. A rule was issued on this appli- cation also. Both the rules came up for hearing before Mr. Justice Bose, and as the karned Judge was of opinion involved questions of general con- that they stitutional importance, he referred them to the Chief larger Bench. Accord- Justice con- constituted, Special Bench was Judges sisting of the Chief Justice and four other who heard bgth It was conceded during the hearing of the State Government that although in the case of Anwar Ali the notification was issued a day before the coming into force of the Constitution, the provisions of Constitution of· India, which came into force on 26th of January, 1950, applied to his case also.

On the 28th of August, 1951, the Special Bench made rules absolute and held that section 5(1) of the West Bengal Special Courts Act was void to the e~tent that it empowers the State to direct any case to be tried by the Special Court. The notifications issued under that sub-section were also held to be invalid for the same reason. appeals have been taken to this court by the State of West Bengal. for decision by a a this decision is against cases. It In order to appreciate the points that have been canvassed before us, it would be convenient first of all 6-4 S.C. India/71 - - .. 1952 . The State of West Bengal v. Anwar Ali Sarkar, /Jukherjeo /. 320 SUPREME COURT REPORTS [1952] It is, equal protection to refer to the provision of article 14 of the Constitu- tion with a view to determine the nature and scope of the guarantee that is implied in it. The article lays down 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.

" in sub., clause, stance, modelled upon occurring Fourteenth Amendment of American Constitution with a further· addition of rule of "equality before the law", which is an estab- lished maxim of the English Constitution. A number of American decisions have been cited before us on behalf of both parties in course of the arguments; and while a too rigid adherence to the views expressed by the Judges of the Supreme Court of America while ~ealing with the equal protection clause in their own Constitution- may not be necessary or desirable for the purpose of determining the true meaning and scope of article 14 of the Indian Constitution, cannot be denied that the general principles enunciated in many of these cases do afford considerable help and guidance in the matter. available It can be taken to be well settled that the principle underlying· the guarantee in article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made irrespective of It only means that all differences of circumstances('). . persons similarly circumstanced shall be treated both in privileges conferred and liabilities imposed(').

Equal laws would have to be applied to all in the same 'l<ituation, on there should be no discrimination bet- ween one person and another if as regards the subject- substantially matter of the legislation their position the same. This brings in the question of classification. As there is no infringement of the equal protection rule, if the law deals alike with all of a certain class, right of classifying the legislature has the undoubted •. • (1) Chiranjit Lal Chowdhuri v. The Union of India [1950] S.C.R. 869. (2) Old Dearborn Distributing Co. v. Seagram Distillers Corpor"1ion 299U.S. J83. · 1952 The State of West Bengal v. Anwar Ali Sarkar, Mukheriet1 /, S.C.R. SUPREME COURT REPORTS 321 expected certainly be In making the classification persons and placing those whose conditions are sub- stantially similar under the same rule of la}\', while applying different rules to persons differently situated.

It is said that the entire problem under the equal pro- tection clause is one of ·classification or of drawing legislature lines(1). cannot to provide "abstract symmetry. " It can make and set apart of the classes according to the needs and exigencies of the society It can recognise even and as suggested by experience. "degrees of evil" (2), but should never be arbitrary, artificial or evasive. It must rest always upon real and substantial distinction bearing a reasonable and just relation to the· thing in respect to which the classification is made; and classification made without any reasonable basis should be regarded as invalid(3). These propositions have not been con- is not disputed also on troverted before us and behalf of the respondents the presumption always in favour of the constitutionality of an enact- ment and the burden is upon him who attacks it, show that there has been transgression of constitutional principles. the classification The learned Attorney-General, appearing in support of the appeal, has put forward his contentions under two different heads.

His first line of argument is that quite apart from the question of classification there has been no infringement of article 14 of the Constitution in the present case. It is said that the State has full control over procedure in courts, both in civil criminal cases, it can effect such changes as it likes for securing due and efficient administration of justice and a legislation of the character which we have got here and which merely regulates the mode of trial in certain the description of discri- cases cannot come within minatory or hostile legislation. It is further argued that the differences that have been inade in the pro- the West Bengal trial under cedure for criminal (1) Vide O;:iwling: Cases on Constitutional Law, 4th edn. 1139. (2) Vide Skinner v, Oklahoma (316 UtS. 535 at 540). (3) So~tlzern Railway Co. v. Greene (216 U.S. 400 at 412). .. • • • 1952 The State of West Bengal v. Atuvar Ali Sarkar.

Mukherjea ]~ 322 SUPREME COURT REPORTS [1952] the Attorney-General Special Courts Act, 1950, are of a minor character and there are no substantial grounds upon which discri- mination could be alleged or founded. The second head of arguments advanced by that there is a classification and a justifiable classifica- tion on the basis of which differences in the procedure have been made by the West Bengal Act ; and even if any unguided power has been conferred on the execu- tive, the Act itself cannot be said to have violated the to proper equality clause, exercise of such power or the limits of permissible delegation of authority might arise. though questions relating the fundamental infringe any of As regards the first point, it cannot be disputed that a competent legislature •is entitled to alter the procedure trials in such way as it considers proper. in criminal Article 21 of the Constitution only guarantees life or personal "no person shall be deprived of his liberty except in accordance with the procedure e~t.ab­ lished by law.

" The word "law" in the Article means a State made law('), but it must be a valid and bind. ing law having regard not merely to the competency of the legislature and the subject it relates to, but it must not also rights guaranteed under Part III of the Constitution. A rule of procedure laid down by law comes as much within the purview of article 14 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 pr<>- cedural rights for relief and for defence with like protec- tion and without discrimination('). The two cases refer- red to by the learned Attorney-General in this connec- tion do not really support his contention. In Hayes v. Mzsrouri(') the subject-matter of complaint was a pr<>- vision of the revised statutes of Missouri which allowed the State, in capital cases, fifteen peremptory challenges in cities having a population of 100,000 inhabitants in place of eight in other parts of the State.

This was held to be a valid exercise of legislative discretion not_ (]) Vide A. K. Gopalan v. The State of Madras [1950] S.C.R. 88. (2) Weaver : Constitutional La\v, page 407. (3) 120 U.S. 68; 30 L. Ed. 578. · ' • • • 1952 The State af West Bengal v. Anwar Ali Sarkar. Mukherjea f, 1 S.C.R. SUPREME COURT REPORTS 323 clause number of consideration the necessity of the Fourteenth contravening the equality Amendment. It was said that the power of the Legis- challenges was lature to prescribe the limited by having impartial jury, With a view to secure that end, the legislature could conditions of different take into <:ommunities and the strength of population in a par- ticular city ; and if all the persons within particular territorial limits are given equal rights in like cases, there could not be any question of discrimination. The Qther case relied upon by the learned Attorney-General is the case of Brown v.

The Strate of New fersey(1). In this case the question was whether the provision of the State Constitution relating to struck jury in mur- der, cases was in conflict with the equal protection clause. The grievance made was that the procedure of struck jury denies the defendant the same number of peremptory challenges as he would have had in a before an ordinary jury. It was held by the Supreme Court that the equal protection clause was not violated by this provision. thus observes Mr. "It is Justice Brewer, "that here is no territorial dis- .jury ·tribution but in all cases in which a struck ordered the same number of challenges permitted and similarly in all cases in which the trial is by an ordinary jury either party, State or defendant, may apply for a struck jury and the matter is one which is determined bv the court in the exercise of a sound dis- cretion ........ That in a given case the discretion of the . court in awarding a trial by a struck jury was impro- perly exercised may perhaps present a matter for con- sideration in appeal but it amounts to nothing more". that the procedure of struck jury Thus it was held did not involve person and another.

Each liberty chose and to apply the application could be granted by thought proper having regard to the circumstances of each individual case. The procedure would be identi- <:al in respect of all persons when it was allowed and party was at jury if he discrimination true", the court if d struck between {I) 17SU.S.17J :44L.Ed.lJ9. 324 - SUPREME COURT REPORTS [1952] 1952 The State of West Bengal v. Anwar Ali Sarkar. Mukheriea /. have equal apportunities of availing ail parties would themselves of this procedure if i!hey so liked. That a judicial discretion has to be exercised on the basis of the facts of each case in the matter of granting application for a struck jury does not really involve in my opinion, have discrimination. These decisions, no bearing on the present case. on the to enable , the "discriminatory" synonymous expressions If a legislation is discriminatOfY I am not at all impressed by the argument of the learned Attorney-General respon- ·dents to invoke the protection of article 14 of the Con- stitution it has got to be shown that legislation complained of is a piece of "hostile" legislation.

The "hostile" expressions found to be used by American Judges often simul- taneously and almost as equal protection connection with discussions clause. and discri- minates one person or class of persons against other similarly situated and denies to the former the privi- leges that are enjoyed by the latter, it cannot but be regarded as "hostile" affects in the injuriously the interests of that person or cla_ss. Of course, if one's interests are not at all affected- by a particular piece of legislation, he may have no to complain. But if it is established that the person complaining has been discriminated against as a result of kgisfation and denied equal privileges with others occupying the same position, I do not think that it is relief on incumbent upon him, before he can the basis of his fundamental assert rights, prove that in making the legislature was actuated by a hostile or inimical intention against a particular person or class.

For the same reason I can- not agree with the learned Attorney-General to what was cases like these, we should enquire as the dominant intention of the legislature in enacting - the law and that the operation of article 14 would be excluded if it is proved that the legislature had no intention to discrimination though discriminate, the necessary consequence of the Act. When in carrymg discrimination is alleged against officials law, • , , S.C.R.· SPPREME COURT REPORTS 325 out the law, a . question of intention . may be material in ascertaining whether the officer acted mala fide or not(1); but no question of intention can arise when discrimination follows or arises on the express of the law itself. I agree with the Attorney-General that if the differ- ences are not material, there may not be any discrimi- nation in the proper sense of the word and minor de- viations from the general standard might not amount to denial of equal rights.

I find it difficult however, to hold that the difference in the procedure that has the West Bengal Special Courts Act is of a minor or unsubstantial character which has not prejudiced the interests of the accused. introduced by 1952 The State of West Bengal v. Anwar Ali Sarkar. Mukherjea f. to follow It is urged by The first difference is that made in section 6 of the Act which lays down that the Special Court may take cognizance of an offence without the accused committed to it for trial, and that in trying the accused trial of warrant it has the procedure for cases by Magistrates. the Attorney- the elimination of the committal proceed- General that ings a matter of no importance and that the warrant procedure, which the Special Court has got to follow, affords a scope ·for a preliminary examinat.i'on of the evidence against the accused before a charge is framed. It cannot be denied that there is a difference between the two proceedings. the entire proceeding is before the same Magistrate and the same the case finally. officer who frames the charge hears In a sessions case, on the other hand, the trial is ac- tually before another Judge, who was not connected It is also clear that after with the earlier proceeding. the committal and before the sessions actually the case,' !there is generally a large iilltlerval of time which gives ample opportunity of preparing his defence, he being acquainted beforehand with the entire evidence that the prosecution wants to adduce against him.

He the same advantage in a warrant case even if an adjournment the · charge is is granted by the Magistrate (1) Sunday Lake Iron Company v. Wake/ield(247 U.S. 350). In a warrant case the accused cannot 1952 The State of West Bengal v. Anwar Ali Sark._ar. Mukherjea /. '• 326 SUPREME COURT REPORTS [1~2] trial by trial of all offences or any particular is not the only matter framed. Be that as it may, this upon which the normal procedure has been departed the most from in the Special Courts Act. One of important departures Special Court is without the aid of jury or assessors. the most The trial by jury is undoubtedly one of valuable rights which the accused can have. It is true that the trial by jury is not guari'nteed by the .Consti- tution and section 269(1) of the Criminal Procedure Code empowers the State Government to direct that class of offences before any sessions court shall be by jury in any district ; and it may revoke or alter such orders.

There is nothing. wrong therefore if the State discon- tinues trial by jury in any district with regard to or any particular class of offences ; but as has been pointed out by Mr. Justice Chakravarti of. the Cal- cutta High Court, it cannot revoke jury trial in respect of a particular case of a particular accused while respect of other cases involving the same offences the order still remains. Amongst other important changes, reference may be made to the. provision of section 13 of the Act which empowers the Special Court to convict an accused of any offence if' the commission of such is proved during trial, although he was not offence charged with the same or could be charged with it in the manner contemplated by section 236 of the Cri- minal Procedure Code, nor was it a minor offence within the meaning of section 238 of the Code. Under section 350 of the Criminal Procedure Code, when a case after being heard in part goes for disposal before another Magistrate, demand, before the second Magistrate commences the examined the witnesses proceedings, should be re-examined and re-heard.

This right has been taken away from the accused cases where a case is transferred from one Special Court to another under the provision of section 7 of the Special Courts Act. Further the right of revision to the High Court does not exist at all under the new procedure, although the rights under the Constitution of India are retained. accused already - - S.C.R. SUPREME COURT REPORTS 327 k has been pointed out and quite correctly by one of the learned Counsel for respondents . that an application for bail cannot be made before the High Court on behalf of an accused after the Special Court has refused bail. These and other provisions of the Act make it dear that the rights of the ·accused have been curtailed in a substantial manner by the impugned legislation ; and if the rights are curtailed only in certain cases circumstances in and not in others, even though the the latter cases are the same a question of discrimi- nation may certainly arise.

The first line of argument adopted by cannot, therefore, be accepted. learned Attorney-General I now come to the other head of arguments put for- ward by him and the principal point for our considera- tion is whether the apparent discriminations that have been made in the Act can be justified on the basis of a reasonable classification. Section 5(1) of the West Bengal Special Courts Act lays down that "A Special Court shall try such offences of offences or cases or classes of cases as Government may, by general or special writing direct. " or classes the State order m The learned Attorney-General urges that the princi- the differences have ple of classification upon which been made between cases and offences triable by Special. Court and those by ordinary courts 1s indicat- ed in the preamble to the Act which runs as follows : "Whereas it to provide expedient 1s -speedier trial of certain offences".

What is said is, that the preamble is to be read as a part of section 5(1) and the proper interpretation to cases and be put upon the sub-section is that offences which in the opinion of the State Government would require speedier trial could be assigned by it to the Special Court. this contention In the cannot be accepted for more reasons than one. first place, I agree with the learned Chief Justice of the Calcutta High Court that the express provision of an enactment, if it is clear and unambiguous, cannot be In my opinion, 1952 The State of West Bengal v. Anwar Ali Sarkar. Mukherjea /. • 1952 The State of West Bengal v. Anwar Ali Sarkar· Mukherjea /. • 328 SUPREME COURT REPORTS [1952J ), throws It vests assuming In the case before us curtailed or extended with the aid of the preamble to the Act. It is on\y when the object or- meaning of the enactment' is not clear that recourse can be had to the preamble to explain it( 1 language of section 5( 1) is perfectly clear and free from any ambiguity. an unrestricted discretion in the State Government to direct any cases or classes of cases to be tried bv the Special Court in accordance It is not with the procedure laid down in the Act. stated ·that it is only when speedier trial is necessary In the second that the discretion· should be exercised. place, preamble light upon the interpretation of these section, I am defi- nitely of opinion ~hat tl1e necessity of a speedier trial is too vague, uncertain and elusive a criterion to form a rational basis the discriminations made.

The necessity for speedier trial. may be the object which the Jegislatnre had in view or it may be the occasion In a sense quick disposal for making the enactment. is a thing which is desirable in all legal, proceedings. The word used here is "speedier" which is a compara- tive term and as there may be degrees of speediness, introduces an uncertain and the word undoubtedly variable element. But the question necessity of speedier trial to be determined ? Not by reference to the nature of the offences or the circm;n- stances under which or the area in which they are committed, nor even by reference to any peculiarities or antecedents of selection is left to the absolute and unfettered discre- tion of the executive government with nothing in the law to guide or control its action. This is not a reason- able classification at all but an arbitrary selection. A line is drawn artificially between two classes of cases.

On one side of the line are grouped those cases which the State Government chooses to assign to the Special Court ; on the other side stand the State Government does not think fit and proper touch. It has been observed in many cases that some Supreme Court of America that the tl1emselves, but the offenders is : how is rest which ( 1) See Craies on Statute La\v, 4th edn., 184. 1952 The State of West Bengal v. Anwar Ali Sarkar. Mukherjea /. S.C.R. SUPREME COURT REPORTS 329 be whether justification for appear not only sort of classification has been attempted at will not relieve a statute from the reach of 'the equality clause. "It must that a classification has been made but also that it is based upon some reason- able ground-some difference which bears a just and the attempted classification"(1). The proper relation to question in each case would characteristics of the class are such as to provide a differences introduced ? rational Judged by this test, the answer in the present case should be in the negative ; for the difference treatment rests here solely on arbitrary selection by the State Government.

It is true that the p!resump- tion should always be that the legislature understands and correctly appreciates the needs of its own people and that its discriminations are based on adequate grounds(2) ; but as was said by Mr. Justice Brewer in Gulf Colorado etc. Company v. Ellis(3), "to carry the presumption to the extent of holding that there must be some undisclosed and unknown reason for subject- ing certain individuals or corporations to hostile and the protection discriminatory legislation is clauses of the Fourteenth Amendment a mere rope of sand. " to make A point was made by the Attorney-General in course of his arguments that the equality rule is not violated confers unregulated discre- simply because a. statute In such tion on officers or on administrative agencies. cases it may be possible to attack legislation on the ground of improper delegation of authority ot the acts of the officers may be challenged on the ground of wrongful or mala fide exercise of powers ; but no question of infringement of article 14 of the Constitution could a number of possibly arise.

We were referred this point but I do not think that the authorities on authorities really support the proposition of In the well kinown case of Yick the way it is formulated. Wo v. Hopkins(4), the question was, whether the provi- sion of a certain ordinance of the City and Country of San (I) G11/fColorado etc. Co. v.Ellis (165 U.S.150). (2) Middleton v. Texas Power & Li11ht Co. (249 U.S.152). (3> 165 U.S. 150. (4) 118 U.S. 356. .. .. • ) 1952 The State af West Bengal v. Anwar Ali Sarkar. Mukherjea J. 330 SUPREME COURT REPORTS [1952] respect F~ancisco was invalid by reason of its being in conflict with the equal protection clause. The order in ques- tion laid down that it would be unlawful for any per- son to engage in laundry business within the corporate limits "without having first obtained the consent of the Board of Supervisors except the same to, be located in a building constructed either of brick or stone.

" The question was answered in the affirmative. It was pointed out by Matthews, J., who delivered the opinion of the court, that the ordinance in question did not merely prescribe a rule and condition for the regula- tion of the It allowed without laundry business. restriction the use for such purposes of building of brick or stone, but as to wooden buildings constituting nearly all those in previous use, it divided the owners or occupiers into two classes, not having their personal character and qualifications of the busi- ness, nor the situation and nature and adaptation of the buildings themselves, but merely by an arbitrary line, on one side of which were those who were permitted to pursue their industry by the mere will the other supervisors and consent of those from whom that consent was withheld at their will and pleasure. This sort of committing to the un- restrained will of a public officer the power to deprive a citizen of his, right to carry on lawful business was held to constitute an the Fourteenth Amendment.

The learned Judge pointed out in course of his judgment that there are cases where discretion is lodged by law in public officers or bodies to grant or withhold licences to keep taverns or places for sale of spirituous liquor and these cases stood on a different view was reiterated in Crowley v. Christensen(') which related to an ordinance regulating the issue of licences to sell It appears to he an accepted doctrine of American courts that the purpose of the equal pro- tection clause is to secure every person within arbitrary discrimination, whether occa- States against sioned by the express terms of the statute or by their altogether. The like. But all footing invasion of and on liquors. • - - • (I) 137 U.S. 86. . ... '. 1952 The State of West Bengal v. Anwar Ali Sarkar. Mukheriea f. .. • • S.C.R. SUPREME COURT REPORTS 331 alleged is only against the official, who improper application through duly constitued agents.

This was clearly laid down in Sunday Lake Iron Com In this case the complaint was pany v. W akefield(1 ). to have against a taxing officer, who was assessed value, the plaintiff's properties at their full while all other persons in the country were assessed at not more than one-third of the worth of their pro- perties. It was held that the equal protection clause could ~e availed of against the taxing officer ; but if to have acted bona fide and the discri- he was found mination was the result of a mere error of judgment the action would fail. The position, on his part, therefore, is that when the statute is not itself discri- equal pro- minatory and the charge of violation of tection entrusted with the duty of carrying it into 'operation, the equal protection clause could be availed of in such cases ; if he could but the officer would have a good defence prove bona fides. But when the statute itself makes a discrimination without_ any proper or reasonable invalidated for being in basis, conflict with the equal protection clause, actually worked out may question as not necessarily be a material consideration.

As I have said already, in the present case the. discri- mination arises on the terms of the Act itself. The the State that it gives unrestrained power Government to select in any way it likes the particular cases or offences which should go to a Special Tribunal and withdraw in such the protection which the accused normally enjoy under the criminal law of the country, is on the face of it discriminatory. the statute would be to how it It may be noted in this connection that in the pre- the provision of sent case the High Court has held section 5(1) of the West Bengal Special Courts Act to be ultra vires the Constitution only so far as it allows the State Government to direct any case to be tried by In the opinion of the learned Chief the Special Court. Justice, if the State Government had directed certain offences or classes of offences committed within ( 1) 247 U.S. 350. 1952 The State of West Bengal v.

Anwar Ali Sarkar. Mukherjea /. 332 SUPREME COURT REPORTS [1952] the selection It may be that in making tried by infringement of the Special territory of West Bengal to be tried by Court, the law or order could not have been impeached It is to be noted that the Act itself as discriminatory. does not mention in what classes of cases or offences such direction could be given ; nor does it purport lay down , the criterion or the basis upon which the classification is to be made. It is not strictly correct to say that if certain specified offences throughout the the Special Court, State were directed to be there could nou be any the equality rule. list of offences authorities would exclude from other offences of a cognate character in respect to which no difference in treatment is justifiable. In such cir- law or order would be offending cumstances also the against the equality provision the Constitution. the case of Skinder v.

Okla This is illustrated by homa('). There a statute of Oklahoma provided for the sterilization of certairi habitual criminals, who were convicted two or more times in any, State, of felonies involving moral turpitude. The statute applied to persons guilty of larceny, which was regarded as a felony but not to embezzlement. It the statute violated is said that in cases where the law does not lay down a standard or classification is to be made, it would be the duty of the officers entrusted with the law, to make the classification in the way consonant with If that be the the principles of the Constitution (2). position, then an action might lie for annulling the acts of the officers if they are found not to be in conformity with the equality clause. Moreover, in the present the State Government could come within the definition of law as given in article 13(3) of the Constitution and can be impeached apart from the Act if it violates article 14 of the Constitu- tion. matter any further, I do not consider it necessary to pursue in my opinion even on the equal protection clause. in - accordance with which the notification by the execution of It was held (I) 316 U.S. SSS. (2) Vi de Witlis on C~nstitutional Law, Page 587 S.C.R. SUPREME COURT REPORTS 333 \ limited ground upon which the High Court bases its decision, these appeals are bound tio fail.

DAs J.-1 concur in dismissing these appeals but I am not persuaded that the whole of ,section 5(1) of invalid. As the West Bengal Special Courts Act I find myself in substantial agreement with the inter- pretation put upon the majority of that section by the Full Bench of the Calcutta High Court and most in support of the reasons adopted by Harries, C. J., thereof, I do not feel called upon to q:press myself in the points very great detail. urged before us conclusions thereon . I propose only to note state my shortly rate, The contention of There is no dispute that the question of the validity of section 5 of the West Bengal Special Courts Act, 1950, has to be determined in the light of the provi- sions of the Constitution of India which came into force on January 26, 1950. respondents, who were petitioners before the High Court has been and is that the whole of section 5 of that part of it which autho- the Act or, at any rises the State government , to direct particular "cases" to be tried by the Special Court offends against law secured by arti- guarantee of equality before cle 14.

If the provision of section 5 of the Act is invalid then also even to the limited extent mentioned above, the Special Court which the whole proceedings before was directed by the State Government particular "cases" must necessarily have been without jurisdiction as has been held by the tJigh Court Full Bench and these appeals would have to be dismissed. to try 1952 The State of West Bengal v. Anw«r Ali Sarkar. Das/. / • • • Article 14 of our Constitution, it is well k:nown, cor- the Four- responds to the last portion of section 1 of teenth Amendment to the American Constitution except the English that our article doctrine of rule of law by the addition of the words It' has not, however, been "equality before the law. " urged before us that the addition of these extra words has made substantial difference prac- tical application. The meaning, scope. and effect of 14 has also adopted 1952 The State of West Bengal v.

Anwar Ali Sark_ar. Das J. 334 SUPREME COURT REPORTS [1952) it does insist on is designed article 14 of our Constitution have been discusseed and laid ·down by this Court in the case of C hiranjit Lal Chowdhury v. The Union of India and Others('). Although Sastri J., as he then was, and myself differed from the actual decision of the majority of the Court, there was no disagreement between us and the majority as to the principles underlying the provisions of arti- cle 14. The difference of opinion in that case was not so much on the principles to be applied as to the effect of the application of such principles. Those principles were again considered and summarised by this Court ). It is now in The State of Bombay v. F. N. Balsara(2 well established that while article 14 prevent a person or class of persons from being singled the purpose of out from others similarly situated for being specially subjected to discriminating and h:>Stile legislation, "abstract symmetry" in the sense that every piece of legislation must have universal application.

All persons are not, by nature, attaipment or circumstances, equal and the classes of persons often varying needs of different require the pro- and, separate treatment a guarantee construed tecting clause has been against discrimination amongst equals only and not as to classify taking away from persons for the purpose of legislation. This classifica- It may be geographi- tion may be on different bases. cal 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 charac- teristics which are in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to legislation. In order to pass the test, two conditions must be ftil- the classification must be filled, namely, dis- founded on an intelligible diffcrentia which tinguishes those that are gr011pc<l together from others therefore, the object of the power the State (1) that to be (1) [1950] S.C.R. 869.

(2) [1951] S.C.R. 682. • 1952 The State of West Bengal v. Anwar Ali Sarkar. Das/. .. S.C.R. SUPREME COURT REPORTS 335 them. that differentia must have a rational and (2) that be achieved by the relation to the object sough~ to Act. The differentia which is the basis of the classi- fication and the object of the Act are distinct things and what is necessary is that there must be a nexus forbids In short, while the Arllicle between class legislation in the sense of making improper dis- imposing crimination by conferring privileges a liabilities upon persons arbitrarily large number of other persons relation to the privileges sought to be conferrecl or the forbid liability proposed classification for the purpose of legislation, provided such classification is not arbitrary in the sense I have just explained. The doctrine, as expounded by a Court in the two cases I have mentioned, considerable latitude to the Court in the matter of of article 14 and consequently has application merit of flexibility. selected out of situated to be imposed, it does similarly leaves contends The learned Attorney-General, appearing m support of these appeals, however, that while a reasonable classification of the kind mentioned above may be a 'test of the validity of a particular piece of legislation, it may not be the only test which will cover all cases and that there may be other tests· also.

In answer to the query of the Court he formulates an alternative test in the following words : If there is in fact inequality of treatment ana such inequality is not made with a special intention of prejudicing any par- ticular person or persons but is made in the general infringement of interest of administration, there It is at once obvious that, according to the article 14. test thus the validity of State action, formulated, legislative or executive, is made entirely dependent on test will the state of mind of the authority. This permit even flagrantly discriminatory State action on the specious plea of good faith and of the subjective view of the executive authority as to the existence of a supposed general interest of administration. This test, if accepted, will amount to adding at the end of article 14 the words "except in good faith and in the 7-4 S. C. India/71 is no / 1952 Th< Stat< of W<st B.ngal v.

Anwar Ali Sarkar. Das{. 336 SUPREME COURT REPORTS [1952] general interest of administration. " This is clearly not permissible for the Court to do. Further, it is obvious that the addition of these words will, in the language of Brewer, J., in Gulf Colorado >and Santa Fe Railway .Co. v. W. H. Ellis('), make the protecting clause a mere rope of sand, in no manner restraining State action I am not, therefore, prepared to accept the proposition propounded by the learned Attorney-General, unsup- ported as it is by any judicial decision, as a sound test for determining t:he validity of State action. passage the ground- v. Blagg("). A The learned Attorney-General next contends, on the authority of -a Cooley's Constitutional Limitatioru, 8th Edition, Vol. 2, p. 816, that inequali- ties of minor importance do not render a law invalid and that the constitutional limitations must be treated as flexible enough to permit of practical application.

The passage purports to be founded on the decision in Jeffrey Manufacturing Co. careful permal of this decision will make it quite clear the Court upheld the validity of the statute impugned in that case, not on the ground that the inequality was ·of minor importance but, on classification of establishments according to the num- 'ber of workmen employed therein was based on an having intelligible distinction question. the subject-matter the pro- That decision, therefore, does not passage appar- pos1t10n so widely stated original ently adged by of Judge Cooley. 'by a statute may be of such trival, unsubstantial ·and illusory nature that that circumstance alone may- that the be regarded as cognent ground for holding that no statute has not discriminated inequality has in fact. been created. This the matter apart, if a statute brings about ineq)lality in fact and in substance, it will be illogical and highly such a -undesirable to make the constitutionality of inequality so oStatute depend on The difference brought a a rational legislation m support the degree of to the the editor relation aspect (1) 165 U.S.150.

(2) 235 U.S. 571; 59 L. Ed. 364. ,t • • S.C.R. SUPREME COURT REPORTS 337 brought about. The adoption of such a principle will run counter to the plain language of article 14. that of a procedural At one stage of his arguments the learned Attorney- General just put forward an argument, which he did not press very strongly, that the Article is a protec- tion against the inequality of substantive law only and not against law. I am quite definitely not prepared to countenance that argument. There is no logical basis for this distinction. A pro- cedural law may easily inflict very great hardship on persons subjected this very Act under consideration will presently be seen obviously done . indeed, it, as, 1952 The State of West Beng11l v. Anwar A/1 Sarkar. D11s /. clearly That the Act has prescribed a procedure of which is materially different from that laid down in the Code of Criminal Procedure cannot be disputed.

The different sections of the Act have been analysed the important differences have been indicated by the learned Chief Justice of West Bengal and need not be repeated in detail. The elimination of the com- (sec. 6), the mittal proceedings and of trial by jury taking away of the right to a de novo trial on transfer (sec. 7), the vesting of discretion in the Special Court to refuse to summon a defence witness if it be satisfied that his evidence will not be material (sec. 8), liability to be convicted of an offence higher than that for which the accused was sent up for trial under Act (sec. 13), the exclusion of interference of other Courts by way of revi, sion or transfer or under sec- tion 491 of the Code (sec. 16) are some of the glaring instances of inequality brought about by the impugned Act. The learned Attorney-General has drawn our attention to various sections of the Code of Criminal Procedure in an endeavour to establish that provisions somewhat similar to those enacted in this Act are also contained in the Code.

A comparison between language of those sections of the Code and that of the several sections of this Act mentioned above will clear- ly show that tl1e Act has gone much beyond the pro- visions of the Code and the Act cannot by any .means • .. 1952 The Stole of Wesi Bro1•I v. An.war Ali Sarkar. Das J, 338 SUPREME COURT REPORTS [1952] the Code the chances the case sought the warrant procedure minimises be said to be an innocuous substitute for the procedure prescribed by the Code. The far-reaching effect of the committal proceedings cannot pos- elimination of the sibly be ignored merely by stating that the warrant in a way also involves a procedure under committal by the trial Magistrate, namely to himself, tl1rown out at the preliminary the prosecution being stage, as may be done by the committing Magistrate, and deprives the accused person of the opportu111ty of knowing, well in adavnce of the actual trial before the Sessions Court, to be made against him and the evidence in support of it and, what is of the utmost importance, of the benefit of a trial beiore and the decision of a different and mdependent mind.

The Jiabiiity to be c011 vie led of a higher o!Icnce has It is true that the State can, no parallel in the Code. under section 269 (1) of the Code, do away with by jury but that section, as pointed out by Chakra- vartti J. does not clearly contemplate elimination of is pre- in particular cases which that proceture only to do. cisely what the Act authorises the Government On a fair there can be ·no reading of the Act it quite definitely brings escape from the afxmt a substantial ~nequality of treatment, in it and matter of trial, between persons subjected to the ordinary others who are left to be governed by procedure laid down in the Code. The question whether section 5 ( 1) which really sub- stantial inequality on particular persons can be saved from the operation of article 14 on the principle of rational classification of the kind permissikle in law. imposes Section 5 ( 1) of the Act runs as follows :- "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 writ- ing, direct".

It will be noticed that the sub-section refers to four "classes of of- empowers distinct categories, namely, "offences", . fences", "cases" a11d "classes of cases" and • ' f • .. • 1952 The State of Wert Bengal Y. Anwar Ali Sarka1·. Das f. S.C.R. SUPREME COURT REPORTS 339 I shall first deal with the State government to direct any one or more of these categories to be tried by the Special Court con- stituted under the Act. it authorises the State government section in so far as to direct "offences", "classes of offences" "classes of cases" to be tried by a Special Court. These expres- sions clearly indicate, and obviously imply, a process of classification of offences or cases. Prima f acie those words do not contemplate any particular offender or any particular accused in any particular case. The emphasis is on "offences", "classes of offences" "classes of cases". The classification of "offences" by itself is not calculated to touch any individual as such, although it may, after the classification is made, affect all individuals who may commit the particular offence.

In short, the classification implied in this part of the , sub-section has no reference to, and is not directed to- wards the singling out of 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 by a Special Court. Such being the meaning and im- the question plication of this part or section 5 ( 1), arises whether the process of classification con- templated by the Act conforms to the requiremen~ of against reasonable classification which does not offend the Constitution. any particular person require speedier namely, than what that offences may be grouped Learned Attorney-General claims that the impugn- ed Act satisfies even this test of rational classification. His contention speedier two classes, is provided trial, that not require a in the Code and him, pur- trial. The Act, according speedier ports to deal only with offences of first class.

He first draws our attention to the fact that the Act is trial of intituled "An Act to provide for then points out that the purpose certain offences" afld of the Act, as stated in its preamble, also is "to pro- vide for the speedier trial of certain offences". He· next l'ders us to the different sections of the Act and urges the speedier 1952 The State of West Bengal v. Aaivar Ali Sarkar. Das/. 340 SUPREME COURT REPORTS [19521 empowers that all the procedural changes introduced by the Act are designed to accomplish the object of securing speed- ier t'rial The Act accordingly the State government to direct the offences, which, in its view, require speedier trial, to be tried by a Special Court according to the special procedure provided by .it for the speedier trial of those offences. This constmction of the section, he maintains, is consonant with the object of the Act as recited in the preamble and does not offend ag~inst the inhibition of article 14 of our Con- stitution.

Learned counsel for respondents, on rhe other hand, urge that there is no ambiguity what- ever in the language used in the sub-section, that there is no indication ·in the sub-section itself of any restric- tion or qualification on the power of classification con- ferred 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. This argument was accepted by the other part of the section dealing with selection of' "cases" but in judging whether this argument applies, with equal force, to that part of the ~ection I am now considering, it must be borne in mind that, although the plain the preamble of an Act cannot override meaning of the language of its operative parts, may, nevertheless, assist in ascertaining what the meaning or implication of a particular section is, for the preamble is, as it were a key to the understanding I therefore, proceed to examine this part of the Act. of section 5(1) in the light of the preamble so ascertain the true meaning of it. in its application the High Court stated part of I have already a process sub-section contemplates classification of ":'offences", "classes of offences" and "classes of cases".

This classification must, constitutional prohibition, infringe fulfil the two conditions I have mentioned. The pre- amble of the Act under consideration recites ex- pediency of providing for the speedier trial of certain in order · that • .. .. . .It S.C.R. SUPREME COURT REPORTS 341 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 from others and which will have a reasonable relation to the recited object of the Act. The <lifferentia and the object being, as I have said, 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 special circums- tances which may distinguish one offence or one class of offences or one class of cases from another offence, or class of offences or class of cases, 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. speedier ·1952 The State of West Beng1d v. Anwar Ali ~"rkar. Das T. • Learned counsel for the respondents then contended that as thG object of the Act as recited in the preamble cannot be the basis of classification, then this part of sub-section 5 (1) gives an uncontrolled· and unguided power of classification which may well be exercised by the State government capriciously or "with an f'Vil eye and an unequal hand" so as to deliberntely .bring about invidious discrimination between man and man, al- though both of .them are situated in exactly the same or similar circumstances. By way of illustration it pointed out that in the Indian Penal Code there are different chapters dealing with offences different matters, e.g., Chapter XVII which. deals with offences against property, that under this generic head are set forth different species of offences against pro- perty, e.g., theft (section 378), theft in a dwelling house (section 380), theft by a servant (section 381), 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 the special procedure laid Special Court according down in the Act leaving all offences of theft by a ser- vant under to be dealt with in section 381 relating 1952 The State of West Bengal v.

Anwar Ali Sarkar. Das f. • • ,. 342 ' SOPREMF COURT REPORTS [1952] In other words, if a ordinary Court in the usual way. stranger is charged with theft in a dwelling house, he may be sent up for the Special Court trial before under section 380 whereas if a servant is accused of theft in a dwelling house he may be left to be tried under the Code for an offence under secti.on 381. The argument is that although there is no apparent reason a why an offence of theft in a dwelling house by stranger should require speedier trial any more 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 A little reflection will show that this under . the Act. argument is not sound. The part of sub-section 5 ( 1) which I am now examining confers a power on the State Government to make a classification of offences, as said classes of offences or classes of cases, which, J., · "means a proper classification.

" by Chakravartti In order to be a proper classification so as not to offend against the Constitution it must be based on SOJ!le intelligible differentia which should have a reasonable relation to the object of tl1e Act as recited in the pre" amble. In the illustration taken above the two offences are only two species of the only difference being that in tl1e first the alleged offender is a stranger and in tl1e latter he is a servant of owner whose property has been stolen. Even .difference in the circumstances of 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 circum- is no apparent reason why the offence stances, there of ilieft 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 and will be liable to be hit . by the the Supreme Court of the United principles on which States in fack Skinner v.

Oklahoma(') struck down Oklahoma Habitual Criminal Sterilisation Act which the same genus, any special (1) 216 U.S. 535, 86 L. Ed. 1655. 1952 The State of West Bengal v. Anwar Ali Sarkar. Da; /. S.C.R. SUPREME COURT REPORTS 343 imposed sterilisation on a person convicted more twice of larceny but not on one who was convicted of embezzlement on numerous occasions. That sort of classification will, therefore, not clearly be a proper dassification such as the Act must be deemed to con- template. legitimately call localities and are On the other hand, it is easy to visualise a situation when certain offences, e.g., theft in a dwelling house, by reason on the frequency of their perpetration or other a attending circumstances, may speedier trial and swift retribution by way of punish- ment to check the commission of such offences. Are we not familiar with gruesome crimes of murder, arson, loot and rape committed on a large scale during com- munal riots in particular they not really different from a case of a stray murder, arson, loot or rape in another district which may not be affect- ed by any communal upheaval?

Do not the existence -of the communal riot and and the concomitant crimes com- mitted on a large scale call for prompt and speedier trial in the very interest and safety of the community ? May not political murders or crimes against the State or a class of the community, e.g., women, assume such proportions as would be sufficient to constitute them into a special class of offences requiring special treat- ment? Do not these special circumstances add a pecu- liar quality to these offences or classes of offences or dasses of cases which distinguish them from stray cases of similar crimes and it not reasonable and even necessary to arm the State with power to classify them into a separate group and deal with them promptly ? 1 hi; ive no doubt in my mind that the surrounding cir- cumstances and the special features I have mentioned above will furnish a very cogent and reasonable basis 'Of classification, for it is obvious that clearly ·distinguish these offences from similar or even species of offences committed and under clearly ordinary circumstances.

This differentia quite sought to be .has a reasonable relation to the object trial of "'chieved by the Act, namely, the certain offences. Such classification will not they do elsewhere speedier a • .. • 1952 The State ·of West Bengal v. Anwar Ali Sarkar . . Das/. 344 SUPREME COURT REPORTS [19521 procedure. Persons a Special Court offenc~s" or "classes the specified circumstances will sent up before special similar or a different place it empowers the State government of. repugnant to the equal •protection clause of our Con- stitution for there will be no discrimination, for who- ever may commit the specified offence in the specified area in treated alike and trial under the sent up for trial by a Special Court cannot point their charged lingers the other persons who may be before an ordinary Court with same species of offences in different circumstances and complain of unequal treatment, for those other persons are of a different category and are not their equals.

Section 5(1), in se> to direct far as "offences" or "classes cases" to be tried by a Special Court, also, by neces- sary implication and intendment, empowers the State "classes government to dassify "offences" cases'', that is of offences" or "classes of te> in the sense I have ex- make a proper classification In my section, plained. not confer properly construed and understood, does an uncontrolled and unguided power on the State government. On the contrary, this power is controlled a . proper classification which is guided by the preamble in the sense that the classification mmt have a rational relation to the object of the Act as recited in the preamble. It is, therefore, not an arbitrary power. I therefore, agree with Harries, C. J. that this part of section 5(1) State government offences not on any reasonable basis having a relation to tbe object of the Act, its action will be either an abuse of its power if it is purposeful or in excess of its powers. even if it is done in good faith and in either case the resulting discrimination will encounter challenge strike down,. of the Constitution and the Court will not the law which is good, but the abuse or misuse or the unconstitutional administration of the law creating or resulting in unconstitutional disrcrimination. judgment, this part of" the the necessity for making If abritrarily to say, is valid. classifies • ,_ • 1952 The State of West Bengal v.

Anwar Ali Sarkar. Das/. -. .. S.C.R. SUPREME COURT REPORTS 345 .by to be certain This means specific cases be _ tried by the records of the sub-section empowers "cases" ' Court and are obviously issued under to direct "cases" the notifications identified In the present case, however, the State government has not purported to proceed under that part of sec- It has, tion 5(1) which I have been discussing so far. on the other hand, acted under that part of the section which authorises it tried by it has the Special Court, directed individual numbers particular thanas to be the Special Court. There is ostensibly no attempt at, or pretence of, any classifica- tion on any basis whatever. The notifications simply direct certain the Special that part of the State government section 5(1) which authorises to direct "cases" to be tried by the Special Court. The word "cases" has been used to signify a category dis- tinct from "classes of casses".

The idea of classifica- tion is, therefore, excluded. part of the State Govern- select particular cases against ment to pick out or particular persons for being sent up to the Special Court for trial. It is urged by the learned Attorney- General that this selection of cases must also be made in the light of the object of the Act as expressed in its preamble, tlf'at is to say, the State government can only select those cases which, in their view, require speedier trial. Turning to the preamble, I find that the object of the Act is "to provide for the speedier trial • of . certain offences" and not of· a particular case or cases. In other words, . this part of section 5 ( 1) beyond the ambit of the object laid down in the pre- amble and, therefore, the preamble can have no manner of application in the selection of "cases" as distinct "classes of from "offences", "classes of offences" or the preamble cases". cannot control this part of the sub-section where language is plain and unambiguous.

Further, I have already explained, the object of the Act cannot, by itself, be the basis of the selection which, I repeat, must be based on some differentia distinguishing th~ "case" from other "cases" and having a relation to the I agree with Harries C.J. that 1952 The Slate of West Bengal v. Anwar Ali Sarkar. Das f. 346 SUPREME COURT REPORTS [1952] above, require speedier described legitimate individual the necessity for a individual "case", as distinct from In any case, the circumstances of individual It is, therefore, clear for It is difficult, if not impossible, to obiect ot the Act. a conceive of an rule of "class of cases", as a class by itself within classification. An m- permissible di vi dual case of a crime committed with gruesome atrocity or committed upon an eminent person may shock our moral sense to a greater extent but, on ultimate analysis and in the absence of special circum- stances such as I haxe meutioned, it is not basically different from another individual case of similar a crime although committed with less vehemence or on a less eminent person. there is no parti- the first cular bond connecting mentioned case with speedier trial. the kind In the absence of special circumstances of I case, say of murder, cannot more than another case of murder may do. reasons, the foregoing that the power as distinct a Special Court "classes of cases" to be selection contemplates and based on nothing more substantial than the whim and pleasure of State Government and without any appreci-, able relation to the necessity for a speedier trial.

Here the law lays an unequal hand on those who have com- This mitted intrinsically the same quality of offence. • power must inevitably result in discrimination and this discrimination is, in terms incorporated i12 this pan of the section itself and, therefore, this part of the sectiqn It is not a ques- itself must incur our condemnation. tion of an unconstitutional administration of a statute otherwise valid on its face but here the unconstitu- tionality is writ large on the face of ,the statute itself. I, therefore, agree with that sec- tion 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 article 14. and therefore the Special Court had no jurisdiction to try these "cases" of the respondents. judgment, the High Court was right in quashing the conviction to direct "cases" tried by involves a purely arbitrary the High Court In my .• 1952 The State o} West Bengal v.

Anwar Ali Sarkar Chandrasekhara Aiyar /. S.C.R. SUPREME COURT REPORTS 347 in prohibiting of the respondents in the. one case and further proceedings in the other case and these appeals should be dismissed. AIY AR J .-The CHANDRASEKHARA s_hort question that arises for consideration in these cases is whether the whole, or any ·portion of the West Bengal Special Court Act, X of 1950, is invalid as being opposed to equality before the law and the equal protection of the laws guaranteed under article 14 of the Constitu- tion of India. The facts whicli have led up to the cases ha,c heen stated in the judgments of the High Court at Calcutta is unnecessary. I agree in the conclusion learned brothers that the appeals should be dismissed and I propo5e to indicate my views as shortly as possible on a few only of, the points raised and discussed. their recapitulation reached by my The preamble to the Constitution mentions one of its citizens equality the objects to be to secure to all of status and opportunity.

Article 14 provides : "The State shall not deny to any person equality before the · law or the equal protection of within the territory of India. " • Then follow articles 15 and 16, the former prohibiting discrimination on grounds of religion, race, caste, sex, place of birth, or any of them and the latter providing for equality of opportunity in matters of public em- ployment. Leaving aside articles 17 irrele- vant for present purposes, we proceed to articles 20, 21 and 22, which deal with prosecutions and convictions for offences and cases of preventive . detention and pres- cribe, in rough and general outline, certain matters of procedure. Article 21 group or bunch and it is in these terms:- is, so to say, the key of to 19 "No person shall be deprived of his life or per- sonal liberty except according to procedure est~blished by law. " There can be no doubt that as regards the cases to be sent before the Special Court or Courts, the Act 1952 The State of I¥ est Bengal v.

Antvar Ali Sarkar. ,{.handrasekhara Aiyar f. • 348 . SUPREME COURT REPORTS [1952] im- under scrutiny has deviated in • many matters of the Criminal portance from the procedure prescribed by Procedure Code for the trial of offences and departure has been definitely adverse the accused. Preliminary inquiry before committal to the sessions, trial by jury or with the aid of asse~sors, the right of a . de novo trial on transfer of a case from one Court to the accused who another, have been taken away from are to be tried by a Special Court ; even graver section 13, which provides that a person may be wn- victed 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 off- ence. This power · of the Special Court is much wider than the powers of ordinary courts. The points of prejudice ~gainst the accused which appear challenged Act have been pointed out in detail judgment of Trevor Harries C.J. They cannot all be brushed aside as variations of minor and unsubstantial importance. that only referred to The argument that changes in procedural law are not material and cannot be said to deny equality beforn the law or the equal protection of the laws so long as the substantive law remains unchanged fundamental· rights to 22 should be safeguarded is, on the face of it, unsound.

The right to equality postulated by article 14 much a fundamental right as any fundamental right dealt with in Part III of the Constitution. Pro- rights cedural law may and does confer very valuable on a person, and their protection must be as milch the object of a court's solicitude as those conferred under substantive law. articles 20 The learned Attorney-General contended that 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 fac~ that discrimination resulted as a bye-product would offend the provisions of article 14. His point was that if the inequality of treatment was not specifically intended to prejudice any particular person or group 1952 Thi: Stati: of Wi:st Bengal v. Anwar Ali · Sarkar. _, Chandrasi:khara Aiya1· /. S.C.lt SUPREME COURT REPORTS 349 ,of persons but was in the gerieral interests of admini- stration, it could not be urged that there is a denial of ·equality before the law.

To accept this position would to abrogate altogether, article be to neutralize, if not 14. 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 coun- try and of Government. The intention behind the legislatiqn may be unexcep-· tionable and the object sought to be ac11ieved may be to be con- praiseworthy but the question which falls sidered under rarticle 14 discriminatory in its nature, and this has to be deter- mined not so muCh by its purpose or objects but by its effects. There is scarcely any authority- position taken up by the Attorney-General. the better administration is whether legislation It is well settled that equality before the law or the not mean identity or equal protection of laws abstract symmetry of treatment. Distinctions have to be made for different classes and groups of persons and a rational or reasonable classification is permitted, as otherwise it would be almost impossible the work of Government of anv State or country.

To use the felicitous language of Mr. Justice Holmes in Bain Peanut Co. v. Pinson(1) "We must remember that the machinery of government could nor work it were not allowed a little play in its joints. " The law on the subject has been well stated in a passage (1936 Edition, from Willis on Constitutional Law at page 579) and an extract from the pronouncement of this Court in what is known as the Prohibition Case, The State of Bombay and Another v. F. N. BalsaraC), where my learned brother Faz! Ali J. has distilled in the form of seven principles most of the useful obser- vations of this Court in the Sholapur Mills case, Chiran jit Lal Chowdhury v. The Union of India and Otlters(3) . • Willis says:- "The guaranty of the equal protection laws means the protection of equal (1) 282 U.S. 499 at p. 501. (2) [1951] S.C.R. 682. forbids It laws. m [1950] S.C.R.869. 1952 The Sl4te of Wut Beng.U v. Anwar Ali Sari(ar.

Chimdr.,ci(hara ' Aiyar f. • 350 SUPREME COURT REPORTS [1952} "The legislation, which legislation, but does not like circumstances forbid classification which rests upon reasonable grounds of distinction. It does not prohibit limited either in the objects to which it is directed or by the territory within which to operate. "It merely legislation requires that all persons subject to shall be treated alike under conditions both in the privileges conferred and in the liabilities imposed. " inhibition of the amend- ment was designed to prevent any person or dass of persons from being singled out as a special subject for It does not discriminating and hostile legislation. " take from the states tax l&ws, or er'1inent the adoption of police laws, or domain laws, but permits to them the exercise of a wide scope of discretion, and ,nullifies what they <lo only when it is without any reasonable basis.

Mathe- matical nicety and perfect equality are not required. Similarity; not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must One who assails a classification must be assumed. carry the burden of showing that it does not rest upon any reasonable basis. " the power to classify either The seven principles formulated by Faz! Ali J. as follows :- "

The pn;~umption is always in favour of it must be as- constitutionality of an enactment, since sumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds. 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 parti- cular individual or class.

The presumption may be rebutted

The principle of equality does not mean every law must have universal application S.C.R. SUPREME COURT REPORTS 351 persons who are not by nature, attainment or circum- stances in the same position, and the varying needs of different classes of persons often separate treatment. require

The principle does not take away from the State legitimate pur- the power of clas~ifying persons poses.

Every classification inequality, and mere production of m- in some degree likely produce some equality is not enough. 1952 The State of West Bengal v. Anwar Ali Sarkar. Chandrasekhara Aiyar /.

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.

While permissible, reasonable classification such classification must be based upon some real and reasonable and substantial distinction bearing a relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis. " • apparently conflicting, After these citations, it is really unnecessary to refer to or discuss in detail most of the American decisions cited at the Bar. Tbeir number is legion and in support of proposi- possible to alight on Jecisions if we divorce tions, them from the context of the particular circumstances and ignore the back- the setting or ground in which they were delivered. With great respect, I fail to see why we should allow ourselves to be unduly w-:ighted-down over-encumbered in this manner. To say this is not shut out illumining light from any quarter ; it is merely to utter a note of caution that we need not stray far into dis- tant fields and try to clutch at something which may not after all be very helpful.