The Judgment of DAS, C.J., and BHAGWATI, JAGANNADHADAS and
SINHA, JJ. was delivered by DAS, C. J.
DAS, C.J.---This is an application under article 32 of the
Constitution praying for an appropriate writ and order restraining the
Income-tax Officer, Special Circle, Ranchi, (respondent No. 3), from taking up
and proceeding with the assessment of the petitioner to income-tax and other
ancillary reliefs. The facts shortly are as follows :
The petitioner is a firm carrying on business as
manufacturer and seller of bidi. In 1948 it was registered as a firm under the
Indian Partnership Act. It has its head office in Calcutta, where its books of
account are said to be kept and maintained and where it is said to have its
banking account. It has its factories near Chakradharpur in the State of Bihar
but it has no banking account there. The members of the firm are citizens of
India.
It is said that since its inception the firm has all along
been assessed to income-tax by the Income-tax Officer, District III, Calcutta.
Thus assessments for the years 1948-49 and 1949-50 were made by the Income-tax
Officer, District III, Calcutta. Notices under section 22(2) of the Income-tax
Act were issued to the petitioner on different dates by the Income-tax Officer,
District III, Calcutta, calling upon the petitioner to submit returns for the
assessment years 1950-51, 1951-52, 1952-53, 1953-54 and 1954-55, the notice for
the last mentioned year being dated 23rd August, 1954. In compliance with these
notices the petitioner duly submitted its returns for those respective years to
the Income-tax Officer, District III, Calcutta. In the course of assessment
proceedings for the year 1950-51 a question was raised regarding the location of
the principal place of business of the petitioner. Eventually the Income-tax
authorities seem to have been satisfied that it was in Calcutta and on 18th
December, 1954, the Income-tax Officer, District III, Calcutta, made assessment
for the year 1950-51. On the 25th January, 1955, the petitioner received a
letter from the Income-tax Officer, District III, Calcutta, informing it
"that in pursuance to orders under section 5(7-A) of the Income-tax Act
your assessment records are transferred from this office to the Income-tax
Officer, Special Circle, Ranchi, with whom you may correspond in future
regarding your assessment proceedings." The order referred to in the above
communication was as follows :
No. 55(70) IT/54.
Central Board of Revenue.
New Delhi, dated the 13th December, 1954.
ORDER
No. 87. Under sub-section (7-A) of section 5 of the Indian
Income-tax Act, 1922 (XI of 1922), the Central Board of Revenue hereby transfers
the case of Biri Supply Company, 3/1, Madan Street, Calcutta, from the
Income-tax Officer, District III(1), Calcutta, to the Income-tax Officer,
Special Circle, Ranchi.
Sd. (K.B. Deb),
Under-Secretary,
Central Board of Revenue.
It is alleged and not denied by the respondent that the
petitioner had no previous notice of the intention of the Income-tax authorities
to transfer the assessment proceedings from Calcutta to Ranchi nor had it any
opportunity to make any representation against such decision. Thereafter on the
2nd May, 1955, the Income-tax Officer, Special Circle, Ranchi, called upon the
petitioner to submit its return for the assessment year 1955-56. It is then that
the present petition was filed under article 32 of the Constitution challenging
the validity of the order of transfer dated the 13th December, 1954, and the law
under which such order was purported to have been made. The contention is that
sub-section (7-A) of section 5 of the Indian Income-tax Act, 1922, and the said
order of transfer made thereunder are unconstitutional in that they infringe the
fundamental rights guaranteed to the petitioner by articles 14, 19(1)(g) and 31
of the Constitution.
Article 14 of the Constitution enjoins that the State
shall not deny to any person equality before the law or the equal protection of
the laws within the territories of India. The expression "the State"
used in Part III of the Constitution which deals with fundamental rights
includes, unless the context otherwise requires, the Government and Parliament
of India and the Government and the legislatures of each of the States and all
local or other authorities within the territory of India or under the control of
the Government of India. The scope and effect of article 14, in so far as it
protects all persons against discriminatory and hostile legislation, have been
discussed and explained by this Court in a series of cases beginning with
Chiranjit Lal Chowdhury v. The Union of India and ending with Budhan Chowdhry
and Others v. The State of Bihar. In the last mentioned case a Full Bench of
this Court summarised the result of the earlier decisions on this point in the
words following :
" It is now well-established that while article 14
forbids class legislation, it does not forbid reasonable classification for the
purposes of legislation. In order, however, to pass the test of permissible
classification two conditions must be fulfilled, namely, (1) that the
classification must be founded on an intelligible differentia which
distinguishes persons or things that are grouped together from others left out
of the group and (2) that that differentia must have a rational relation to the
object sought to be achieved by the statute in question. The classification may
be founded on different bases; namely, geographical, or according to objects or
occupations or the like. What is necessary is that there must be a nexus between
the basis of classification and the object of the Act under consideration. It is
also well-established by the decisions of this Court that article 14 condemns
discrimination not only by a substantive law but also by a law of procedure.
"
We have, therefore, to approach the problem posed before
us bearing in mind the above principles laid down by this Court in so far as
they may be applicable to the facts of the present case.
Turning now to the Indian Income-tax Act, 1922, we find
that section 64 makes provision for determining the place of assessment. By
sub-section (1), where an assessee carries on a business, profession or vocation
at any place, he shall be assessed by the Income-tax Officer of that area in
which that place is situate or where the business, profession, or vocation is
carried on at more than one place by the Income-tax Officer of the area in which
the principal place of business, profession or vocation is situate. In all other
cases, according to sub-section (2), an assessee shall be assessed by the
Income-tax Officer of the area in which he resides. If any question arises as to
the place of assessment such question shall be decided, after giving the
assessee an opportunity to represent his views by the Commissioner or
Commissioners concerned or in case of disagreement between them by the Board of
Revenue: [sub-section (3)]. It is quite clear from the aforesaid provisions of
section 64 that the Legislature considered the question of the place of
assessment to be of some importance to the assessee.
The provisions of section 64 of the Indian Income-tax Act,
1922, came up for discussion before the Bombay High Court in Dayaldas Kushiram
v. Commissioner of Income-tax, Central. At pages 146 to 147 Beaumont, C.J.,
observed as follows :
" In my opinion, section 64 was intended to ensure
that as far as practicable an assessee should be assessed locally, and the area
to which an Income-tax Officer is appointed must, so far as the exigencies of
tax collection allow, bear some reasonable relation to the place where the
assessee carried on business or resides. There is no evidence that there was any
difficulty in restricting the area to which the Income-tax Officer, Section II
(Central), was appointed to something much narrower than the Bombay Presidency,
Sind and Baluchistan. Therefore, in my opinion, the Income-tax Officer, Section
II (Central), is not the Income-tax Officer of the area in which the applicant's
place of business is situate, and as there is such an officer in existence,
namely, the Officer of Ward C, Section II, in my opinion, it is only the latter
officer who can assess the assessee. "
Kania, J. (as he then was), said at page 149 :
" A plain reading of the section shows that the same
is imperative in terms. It also gives to the assessee a valuable right. He is
entitled to tell the taxing authorities that he shall not be called upon to
attend at different places and thus upset his business. "
It will be noticed from the above passages that the
learned Judges treated the provisions of section 64 more as a question of right
than as a matter of convenience only. It was for the above decision that the
Indian Income-tax Act, 1922, was amended by the Indian Income-tax (Amendment)
Act, 1940 (XL of 1940), by adding to clause (b) of sub-section (5) of section 64
the words " in consequence of any transfer made under sub-section (7A) of
section 5 " and by adding sub-section (7A) to section 5. The relevant
portion of sub-section (5) of section 64 so amended reads as under :---
" (5) The provisions of sub-section (1) and
sub-section (2) shall not apply and shall be deemed never at any time to have
applied to any assessee---
(b) where by any direction given or any distribution or
allocation of work made by the Commissioner of Income-tax under sub-section (5)
of section 5, or in consequence of any transfer made under sub-section (7A) of
section 5, a particular Income-tax Officer has been charged with the function of
assessing that assessee, or... "
It is thus clear from this amendment that the benefit
conferred by the provisions of sub-section (1) and sub-section (2) is taken away
and is to be deemed not to have existed at any time as regards the assessee with
regard to whom a transfer order is made under sub-section (7A) of section 5. In
order, however, to deprive a particular assessee of the benefits of sub-sections
(1) and (2) of section 64, there must be a valid order under section 5(7A) and
he will lose the benefit only to the extent to which that right is taken away by
a valid order made under sub-section (7A) of section 5. This takes us to the new
sub-section (7A) of section 5.
Sub-section (7A) of section 5 runs as follows :
" (7A) The Commissioner of Income-tax may transfer
any case from one Income-tax Officer subordinate to him to another, and the
Central Board of Revenue may transfer any case from any one Income-tax Officer
to another. Such transfer may be made at any stage of the proceedings, and shall
not render necessary the reissue of any notice already issued by the Income-tax
Officer from whom the case is transferred. "
The sub-section in terms makes provisions for the transfer
of a "case." Under the Indian Income-tax Act, 1922, a case is started
when the Income-tax Officer issues a notice under section 22(2) of the Act
calling upon the assessee to file his return of his total income and total world
income during the previous year and then the assessee submits his return in the
prescribed form. It is quite clear from the section that the notice and the
return are to be confined to a particular assessment year and the sub-section
contemplates the transfer of such a "case", i.e., the assessment case
for a particular year. The provision that such a transfer may be made "at
any stage of the proceedings" obviously postulates proceedings actually
pending and "stage" refers to a point in between the commencement and
ending of those proceedings. Further the provision that such transfer shall not
render necessary the reissue of notice already issued by the Income-tax Officer
from whom the case is transferred quite clearly indicates that the transfer
contemplated by the sub-section is the transfer of a particular case actually
pending before an Income-tax Officer of one place to the Income-tax Officer of
another place. The fact that in this case the Income-tax Officer, Special
Circle, Ranchi, issued fresh notice under section 22(2) quite clearly shows that
he did not understand that any particular pending case of this assessee had been
transferred to him. Evidently he thought that the assessment of the petitioner's
income, generally and as a whole, had been transferred to him and that it was,
therefore, for him to initiate a case, i.e., assessment proceedings for a
particular year. In our judgment such an omnibus wholesale order of transfer is
not contemplated by the sub-section. It is implicit in the sub-section that the
Commissioner of Income-tax or the Central Board of Revenue, as the case may be,
should before making an order of transfer of any case apply his or its mind to
the necessity or desirability of the transfer of that particular case. The fact
that it is necessary or desirable to transfer a case of assessment of a
particular assessee for any particular year does not necessarily indicate that
it is equally necessary or desirable to transfer another assessment case of that
assessee for any other assessment year. We are accordingly of the opinion that
the impugned order of transfer, which was expressed in general terms without any
reference to any particular case and without any limitation as to time, was
beyond the competence of the Central Board of Revenue. We did not understand the
learned Attorney-General to contend that such was not the correct interpretation
of the sub-section.
We do not consider it necessary, for the purpose of this
case, to pause to consider whether the constitutionality of sub-section (7A) of
section 5 can be supported on the principle of any reasonable classification
laid down by this Court or whether the Act lays down any principle for guiding
or regulating the exercise of discretion by the Commissioner or Board of Revenue
or whether the sub-section confers an unguided and arbitrary power on those
authorities to pick and choose an individual assessee and place that assessee at
a disadvantage in comparison with other assessees. It is enough for the purpose
of this case to say that the omnibus order made in this case is not contemplated
or sanctioned by sub-section (7A) and that, therefore, the petitioner is still
entitled to the benefit of the provisions of sub-sections (1) and (2) of section
64. All assessees are entitled to the benefit of those provisions except where a
particular case or cases of a particular assessee for a particular year or years
is or are transferred under sub-section (7A) of section 5, assuming that section
to be valid and if a particular case or cases is or are transferred his right
under section 64 still remains as regards his other case or cases. As said by
Lord Atkin in Eshugbai Eleko's case, the executive can only act in pursuance of
the powers given to it by law and it cannot interfere with the liberty, property
and rights of the subject except on the condition that it can support the
legality of its action before the Court. Here there was no such order of
transfer as is contemplated or sanctioned by sub-section (7A) of section 5 and,
therefore, the present assessee still has the right, along with all other bidi
merchants carrying on business in Calcutta, to have his assessment proceedings
before the Income-tax Officer of the area in which his place of business is
situate. The Income-tax authorities have by an executive order, unsupported by
law, picked out this petitioner and transferred all his cases by an omnibus
order unlimited in point of time. This order is calculated to inflict
considerable inconvenience and harassment on the petitioner. Its books of
account will have to be produced before the Income-tax Officer, Special Circle,
Ranchi---a place hundreds of miles from Calcutta, which is its place of
business. Its partners or principal officers will have to be away from the head
office for a considerable period neglecting the main business of the firm. There
may be no suitable place where they can put up during that period. There will
certainly be extra expenditure to be incurred by it by way of railway fare,
freight and hotel expenses. Therefore the reality of the discrimination cannot
be gainsaid. In the circumstances this substantial discrimination has been
inflicted on the petitioner by an executive fiat which is not founded on any law
and no question of reasonable classification for purposes of legislation can
arise. Here "the State" which includes its Income-tax Department has
by an illegal order denied to the petitioner, as compared with other bidi
merchants who are similarly situate, equality before the law or the equal
protection of the laws and the petitioner can legitimately complain of an
infraction of his fundamental right under article 14 of the Constitution.
It has further been urged that this order indirectly
affects the petitioner's fundamental right under article 19(1)(f) and article
31. There can be no gainsaying the fact that the order purports to deprive the
petitioner of its right under section 64 to which it would otherwise be
entitled. The order of transfer is certainly calculated to inflict considerable
inconvenience and harassment to the petitioner as hereinbefore mentioned. But in
the view we have taken on the construction of sub-section (7A) of section 5 and
the petitioner's rights under article 14, it is not necessary for us, on this
occasion, to express any opinion on the contention that the inconvenience and
harassment referred to above constitute an imposition of such an interference as
amounts to an unwarranted restriction on the petitioner's rights under article
19(1)(g) or a violation of his rights under article 31.
For the reasons stated above this petition must be
allowed. Accordingly the impugned order is set aside and an injunction is issued
in terms of prayer (c) of the petition. The petitioner is entitled to the costs
of this application.
BOSE, J.---I agree with my Lord the Chief Justice that
this petition should be allowed but for different reasons. In my opinion,
sections 5(7A) and 64(5)(b) of the Indian Income-tax Act are themselves ultra
vires article 14 of the Constitution and not merely the order of the Central
Board of Revenue.
The only question is whether these sections contravene
article 14. Despite the constant endeavour of Judges to define the limits of
this law, I am unable to deduce any clear cut principle from the oft-repeated
formula of classification. As I have said in another case, even the learned
Judges who propound that theory and endeavour to work it out are driven to
concede that classification in itself is not enough for the simple reason that
anything can be classified and every discriminatory action must of necessity
fall into some category of classification, for classification is nothing more
than dividing off one group of things from another; and unless some difference
or distinction is made in a given case no question under article 14 can arise.
It is just a question of framing a set of rules.
It is elementary that no two things are exactly alike and
it is equally obvious many things have features that are common. Once the lines
of demarcation are fixed, the resultant grouping is capable of objective
determination but the fixing of the lines is necessarily arbitrary and to say
that governments and legislatures may classify is to invest them with a naked
and arbitrary power to discriminate as they please. Faced with the inexorable
logic of this position, the learned Judges who apply this test are forced to
hedge it round with conditions which, to my mind, add nothing to the clarity of
the law. I will pass over the limitations with which the classification test is
now judicially surrounded, namely that it must be "reasonable", it
must not be "discriminatory" or "arbitrary", it must not be
"hostile"; there must be no "substantial, discrimination"
and so forth, and will proceed at once to a rule that is supposed to set the
matter at rest. The rule is taken from the American decisions and was stated
thus in The State of West Bengal v. Anwar Ali Sarkar:
" In order to pass the test, two conditions must be
fulfilled, namely, (1) that the classification must be founded on an
intelligible differentia which distinguishes those that are grouped together
from others and (2) that that differentia must have a rational relation to the
object sought to be achieved by the Act. "
Mukherjea, J. (as he then was), said at page 321 ibid that
" the classification 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. "
In another case, Ram Prasad Narayan Sahi and Another v.
The State of Bihar and Others, the same learned Judge said at page 1139 :
" but such selection or differentiation must not be
arbitrary and should rest upon a rational basis, having regard to the object
which the legislature has in view. "
Ivor Jennings puts it another way :
" Among equals the law shall be equal and shall be
equally administered and that like shall be treated alike. "
With the utmost respect all this seems to me to break down
on a precise analysis, for even among equals a large discretion is left to
judges in the matter of punishment, and to the police and to the State whether
to prosecute or not and to a host of officials whether to grant or withhold a
permit or a licence. In the end, having talked learnedly round and around the
article we are no wiser than when we started and in the end come back to its
simple phrasing :
" The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of
India. "
The truth is that it is impossible to be precise, for we
are dealing with intangibles and though the results are clear it is impossible
to pin the thought down to any precise analysis. Article 14 sets out, to my
mind, an attitude of mind, a way of life, rather than a precise rule of law. It
embodies a general awareness in the consciousness of the people at large of
something that exists and which is very real but which cannot be pinned down to
any precise analysis of fact save to say in a given case that it falls this side
of the line or that, and because of that decisions on the same point will vary
as conditions vary, one conclusion in one part of the country and another
somewhere else; one decision today and another tomorrow when the basis of
society has altered and the structure of current social thinking is different.
It is not the law that alters but the changing conditions of the times and
article 14 narrows down to a question of fact which must be determined by the
highest Judges in the land as each case arises. [See on this point Lord Sumner's
line of reasoning in Bowman's case]. Always there is in these cases a clash of
conflicting claims and it is the core of the judicial process to arrive at an
accommodation between them. Anybody can decide a question if only a single
principle is in issue. The heart of the difficulty is that there is hardly any
question that comes before the Courts that does not entail more than one
so-called principle. As Judge Leonard Hand of the United States Court of Appeals
said of the American Constitution :
" The words a judge must construe are empty vessels
into which he can pour anything he will. "
These rules are useful guides in some cases but they do
not, in my opinion, go to the root of the matter; nor am I alone in so thinking
though my approach is more direct and fundamental than is usual. Patanjali
Sastri, C.J., said in The State of West Bengal v. Anwar Ali Sarkar that the
reported decisions
" underline the futility of wordy formulation of
so-called 'tests' in solving problems presented by concrete cases. "
I endeavoured to point out in my judgment in Anwar Ali
Sarkar's case that one can conceive of classifications that conform to all these
rules and yet which are bad: classifications made in the utmost good faith;
classifications that are scientific and rational, that will have direct and
reasonable relation to the object sought to be achieved and yet which are bad
because despite all that the object itself cannot be allowed on the ground that
it offends article 14. In such a case, the object itself must be struck down and
not the mere classification which, after all, is only a means of attaining the
end desired; and that, in my judgment, is precisely the point here. It is the
very point that Fazl Ali, J., made in Anwar Ali Sarkar's case at pages 309-310 :
" It was suggested that the reply to this query is
that the Act itself being general and applicable to all persons and to all
offences, cannot be said to discriminate in favour of or against any particular
case or classes of persons or cases, and if any charge of discrimination can be
levelled at all, it can be levelled only against the act of the executive
authority if the Act is misused. This kind of argument however does not appear
to me to solve the difficulty. The result of accepting it would be that even
where discrimination is quite evident one cannot challenge the Act simply
because it is couched in general terms; and one cannot also challenge the act of
the executive authority whose duty it is to administer the Act, because that
authority will say: I am not to blame as I am acting under the Act. It is clear
that if the argument were to be accepted, article 14 could be easily defeated. I
think the fallacy of the argument lies in overlooking the fact that the
'insidious discrimination complained of is incorporated in the Act itself', it
being so drafted that whenever any discrimination is made such discrimination
would be ultimately traceable to it."
Nor, in the past, has this Court hesitated to strike down
the Act or order itself when it confers unrestricted power as here, That was
what happened in the Coal Control case; the order itself was struck down and not
the executive action taken by virtue of the unrestricted powers conferred by
that law. See page 813 where it was said:
" The order commits to the unrestrained will of a
single individual the power to grant, withhold or cancel licences in any way he
chooses and there is nothing in the order which would ensure a proper execution
of the power or operate as a check upon injustice that might result from
improper execution of the same. "
So also in State of Madras v. V. G. Row. It is true that
these were cases under article 19 and not 14 of the Constitution but the
principle is the same. I need not multiply instances.
What is the position here? Here is an Act that fixes a
certain venue for assessment in section 64. That is the normal law of the land
for these purposes. The language in sub-sections (1) and (2) is mandatory:
"he shall be assessed." If there is doubt or dispute about the correct
venue, it can only be decided after hearing the party concerned. Then come the
provisions for transfer.
Now it is, I think, necessary that there should be powers
of transfer and the mere conferral of such powers would not offend article 14.
But, put at its lowest, it is anomalous that when similar powers are conferred
on the High Courts and even on this Court under, for example, the Code of
Criminal Procedure, they should be hedged round with limitations, whereas, when
it comes to a Commissioner of Income-tax or the Central Board of Revenue, no
limitations whatever are placed upon them. Section 526 of the Criminal Procedure
Code confers only limited powers of transfer on the High Court and article 136
empowers this Court to intervene should those powers be exceeded by the High
Court and should this Court in its discretion feel that that has led, or is
likely to lead, to hardship and injustice or to a miscarriage of justice; and in
the case of this Court a right to transfer is conferred under section 527 only
when that is "expedient in the interests of justice." Section 24 of
the Civil Procedure Code is wider but that was a law made before the
Constitution and, in any case, such an order would be open to review by this
Court and in a suitable case, should the High Court act arbitrarily or along
non-judicial lines, such as directing a transfer without recording reasons and
without hearing the parties concerned when it is possible to afford them a
hearing, the matter would be set right here. There is a big difference between
investing a judicial authority with such powers and other non-judicial bodies
because judges must act in accordance with a recognised procedure and obey the
laws of natural justice unless there is express indication to the contrary in
the statute.
What is the position here? There is no hearing, no reasons
are recorded: just peremptory orders transferring the case from one place to
another without any warning; and the power given by the Act is to transfer from
one end of India to the other; nor, is that power unused. We have before us in
this Court a case pending in which a transfer has been ordered from Calcutta in
West Bengal to Ambala in the Punjab.
After all, for whose benefit was the Constitution enacted?
What was the point of making all this bother about fundamental rights? I am
clear that the Constitution is not for the exclusive benefit of governments and
States; it is not only for lawyers and politicians and officials and those
highly placed. It also exists for the common man, for the poor and the humble,
for those who have businesses at stake, for the butcher, the baker and the
candlestick maker. It lays down for this land "a rule of law" as
understood in the free democracies of the world. It constitutes India into a
Sovereign Democratic Republic and guarantees in every page rights and freedom to
the individual side by side and consistent with the overriding power of the
State to act for the common good of all.
I make no apology for turning to older democracies and
drawing inspiration from them, for though our law is an amalgam drawn from many
sources, its firmest foundations are rooted in the freedoms of other lands where
men are free in the democratic sense of the term. England has no fundamental
rights as such and its Parliament is supreme but the liberty of the subject is
guarded there as jealously as the supremacy of Parliament.
The heart and core of a democracy lies in the judicial
process, and that means independent and fearless judges free from executive
control brought up in judicial traditions and trained to judicial ways of
working and thinking. The main bulwarks of liberty and freedom lie there and it
is clear to me that uncontrolled powers of discrimination in matters that
seriously affect the lives and properties of people cannot be left to executive
or quasi executive bodies even if they exercise quasi judicial functions because
they are then invested with an authority that even Parliament does not possess.
Under the Constitution, Acts of Parliament are subject to judicial review
particularly when they are said to infringe fundamental rights, therefore, if
under the Constitution Parliament itself has not uncontrolled freedom of action,
it is evident that it cannot invest lesser authorities with that power. If the
legislature itself had done here what the Central Board of Revenue has done and
had passed an Act in the bald terms of the order made here transferring the case
of this petitioner, picked out from others in a like situation, from one State
to another, or from one end of India to the other, without specifying any object
and without giving any reason, it would, in my judgment, have been bad. I am
unable to see how the position is bettered because the Central Board of Revenue
has done this and not Parliament.
I quote Mukherjea, J. (as he then was), in a case which is
not in point here but in a passage whose language seems apt to the present
position. The quotation is from Ram Prasad Narayan Sahi v. The State of Bihar :
" It is impossible to conceive of a worse form of
discrimination than the one which differentiates a particular individual from
all his fellow subjects and visits him with a disability which is not imposed
upon anybody else and against which even the right of complaint is taken away.
"
And again,
" It is true that the presumption is in favour of the
constitutionality of a legislative enactment and it has to be presumed that a
Legislature understands and correctly appreciates the needs of its own people.
But when on the face of a statute there is no classification at all, and no
attempt has been made to select any individual or group with reference to any
differentiating attribute peculiar to that individual or group and not possessed
by others, this presumption is of little or no assistance. "
In the case of Liversidge v. Sir John Anderson the learned
Law Lords were at great pains to see whether the British Parliament had in fact
left the matter under consideration there to the subjective satisfaction of a
Secretary of State. There was no doubt that the British Parliament could do so
because it is supreme and its action is not fettered by a written Constitution,
but the encroachment on the liberty of the subject was so great that the House
of Lords was reluctant to reach the conclusion which it ultimately did by a
majority, that that had in fact been done; and one of the learned Law Lords,
Lord Atkin, read a powerful dissenting opinion. One of his criticisms at page
226 was that the order of detention was made, "by an executive minister and
not by any kind of judicial officer; it is not made after any inquiry as to
facts to which the subject is party, it cannot be reversed on any appeal ......
It is an absolute power which, so far as I know, has never been given before to
the executive. "
In my opinion, that is the very point here. In England the
power can be conferred but, because it so vitally affects the liberty of the
subject, the judges there fight against any interpretation that would lead to
that conclusion and in the end reach it only when compelled to do so for
overwhelming reasons. In India the fundamental freedoms conferred by the
Constitution are guarded with equally jealous care and it seems to me that the
whole point of having this Chapter on Fundamental Rights is to ensure that the
very things that the English judges fight against in their Courts will not
happen here.
In England the task of the judges is to see whether their
Parliament has conferred those wide powers; in India our task is to see whether
the Constitution has done so. In England the conferral of those powers is never
conceded unless Parliament uses clear, express and unambiguous words. In our
Constitution I find an absence of any such clarity; on the contrary, the whole
trend of the Constitution points the other way.
If an executive authority or a quasi judicial body, or
even Parliament itself, were to be given the right to determine these matters to
their subjective satisfaction, there would be no point in these fundamental
rights, for the Courts would then be powerless to interfere and determine
whether those rights have been infringed. The whole point of the chapter is to
place a limitation on the powers of all these bodies, including Parliament, save
in its constituent capacity. Therefore, no power resting on the subjective
satisfaction of any of these bodies can ever be conferred; the satisfaction must
always be objective in the sense in which Lord Atkin explained so that its
exercise is open to judicial review
In my opinion, the power of transfer can only be conferred
if it is hedged round with reasonable restrictions, the absence or existence of
which can in the last instance be determined by the Courts ; and the exercise of
the power must be in conformity with the rules of natural justice, that is to
say, the parties affected must be heard when that is reasonably possible, and
the reasons for the order must be reduced, however briefly, to writing so that
men may know that the powers conferred on these quasi judicial bodies are being
justly and properly exercised.
In a democracy functioning under the rule of law it is not
enough to do justice or to do the right thing; justice must be seen to be done
and a satisfaction and sense of security engendered in the minds of the people
at large in place of a vague uneasiness that Star Chambers are arising in this
land. We have received a rich heritage from a very variegated past. But it is a
treasure which can only be kept at the cost of ceaseless and watchful guarding.
There is no room for complacency, for in the absence of constant vigilance we
run the risk of losing it. " It can happen here. "
I would hold for these reasons, and in particular for the
reason given by Fazl Ali, J., in the passage from one of his judgments quoted
above, that section 5(7A) is ultra vires article 14 of the Constitution and so
is section 64(5)(b) in so far as it makes an order under section 5(7A) as it now
exists, inviolate.
I would allow the petition.
Petition allowed.
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