N.K.BAJPAI Vs UNION OF INDIA
Bench: A.K. PATNAIK,SWATANTER KUMAR
Case number: C.A. No.-002850-002850 / 2012
Diary number: 22669 / 2009
Advocates: SUDARSHAN SINGH RAWAT Vs
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REPORTABLE IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2850 OF 2012 (Arising out of SLP (C) No.8479 of 2010)
N.K. Bajpai …Appellant
Versus
Union of India & Anr. …Respondents
WITH
CIVIL APPEAL NOS. 2851 OF 2012 (Arising out of SLP (C) Nos.8482 of 2010)
AND CIVIL APPEAL NOS. 2852 OF 2012
(Arising out of SLP (C) Nos.8484 of 2010)
J U D G M E N T
Swatanter Kumar, J .
1. Leave granted.
2. This judgment shall dispose of all the above three appeals,
as common questions of law arise therefrom, on somewhat
similar -facts for consideration of this Court. In these appeals,
the following questions have been raised :
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“(i) Whether Section 129(6) of the Customs Act, 1962, which stipulates that on demitting office as Member of the Customs Excise and Service Tax Appellate Tribunal (hereinafter referred to as the “CESTAT”) a person shall not be entitled to appear before the CESTAT, is ultra vires the Constitution of India?
(ii) Whether the said provision applies to the petitioner, as it was introduced after the petitioner had not only joined as Member of the CESTAT but also demitted office as such Member?”
3. We may notice the basic factual premise from which the
above legal questions have arisen for consideration of this
Court. Primarily, we would be referring to the facts of SLP (C)
No.8482 of 2010 titled P.C. Jain v. Union of India & Ors.
4. The appellant joined the Indian Customs and Central
Excise Service, Class – I (later called Group ‘A’), in the year
1956, where he served for a number of years, in different
capacities. On 1st November, 1990, the appellant was selected
as a Member (Technical) in the Customs, Excise and Gold
(Control) Appellate -Tribunal (CEGAT). The appellant demitted
his office as Member (Technical) of CEGAT on 7th March, 1993.
As he was a law graduate, he was enrolled as an advocate with
the Bar Council of India on 18th March, 1993. The CEGAT was
replaced by the Central Excise and Service Tax Appellate
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Tribunal (for short, ‘the CESTAT/Tribunal’. Vide Finance Act,
2003, Section 129(6) was introduced to the Customs Act, 1962
(for short ‘Customs Act’) in terms of which, the members of the
Tribunal were debarred from appearing, acting or pleading
before it. Aggrieved by this amendment, the appellant along
with other appellants in other appeals claimed to have met the
Finance Minister and submitted a detailed representation
bringing out the inequities and arbitrariness claimed to be
resulting from the insertion of Section 129(6) of the Customs
Act. The Tribunal, on 9th July, 2007, passed an order holding
that the appellant or the persons similarly situated, were not
entitled to appear before it in view of the bar contained in
Section 129(6) of the Customs Act. In the meanwhile, the
Ministry also responded negatively to the representations
submitted by the appellants. Faced with these circumstances,
the appellants filed a writ petition before the High Court of
Delhi at New Delhi being Writ -Petition No.6712 of 2007, which
was heard by a Division Bench of the High Court and was
dismissed vide judgment dated 13th April, 2009, hence, giving
rise to the present appeals.
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5. The Tribunal took the view that the word ‘appellate
tribunal’ as referred to in Section 129(6), is defined under
Section 2(1B) of the Customs Act to mean the Customs, Excise
and Service Tax Appellate Tribunal constituted under Section
129 of the Customs Act and any person ceasing to hold office
as President, Vice-President or Member cannot appear before
the Tribunal or its Benches anywhere in India in view of the
bar in Section 129(6). One of the appellants, namely, N.K.
Bajpai, was relieved from the case. The appellants had
contended before the High Court that Section 129(6) of the
Customs Act is ultra vires Articles 14, 19(1)(g) and 21 of the
Constitution of India. It was further contended that, in any
event, Section 129(6) has no applicability to the appellants, in
view of the fact that the amendment was prospective, but
when the appellants were appointed to the Tribunal as well as
when they demitted office, the said provision was not a part of
the Customs Act. Thus, they prayed for consequential relief.
The High Court, -by a detailed judgment, rejected both these
contentions. It was of the view that the predominant rationale
for introduction of this provision was to strengthen the cause
of administration of justice and to remove what the
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Legislature, in its wisdom, felt was a perceived class bias. It
was further held that the restriction imposed could not be said
to be unreasonable and was held to withstand the test of
Article 19(6) of the Constitution. It also held that once the
right to appear, act or plead is taken away in respect of the
Tribunal, since the same forum hears and adjudicates upon
the matters concerning three streams of law, the persons
concerned are automatically debarred from acting, appearing
or pleading before such forum, i.e., the Tribunal in respect of
all matters. The High Court even referred to some of the
judgments of this Court, as well as to Article 220 of the
Constitution, which places a prohibition or limitation on the
right of a permanent Judge of the High Court to plead or act
before the Court of which he had been a permanent Judge
and/or before the Courts, Tribunals, Authorities over which the
said Court had exercised supervisory jurisdiction.
6. Before we dwell upon the merits of the contentions
raised or the correctness of the reasons given by the High
Court, it will be appropriate for us to reproduce the provisions
of Section 129 of the Customs Act, which read as follows :
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“129 – Appellate Tribunal—(1) The Central Government shall constitute an Appellate Tribunal to be called the Customs, Excise and Service Tax Appellate Tribunal consisting of as many judicial and technical members as it thinks fit to exercise the powers and discharge the functions conferred on the Appellate Tribunal by this Act.
(2) A judicial member shall be a person who has for at least ten years held a judicial office in the territory of India or who has been a member of the Indian Legal Service and has held a post in Grade I of that service or any equivalent or higher post for at least three years, or who has been an advocate for at least ten years.
Explanation.—For the purposes of this sub-section—
(i) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate or has held the office of a member of a Tribunal or any post, under the Union or a State, requiring special knowledge of law;
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(ii) in computing the period during which a person has been advocate, there shall be included any period during which the person has held a judicial office, or the office of a member of a Tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate.
(2A) A technical member shall be a person who has been a member of the Indian Customs and Central Excise Service, Group A, and has held the post of Commissioner of Customs or Central Excise or any equivalent or higher post for at least three years.
(3) The Central Government shall appoint--
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(a) a person who is or has been a Judge of a High Court; or
(b) one of the members of the Appellate Tribunal,
to be the President thereof.
(4) The Central Government may appoint one or more members of the Appellate Tribunal to be the Vice-President, or, as the case may be, Vice- Presidents, thereof.
(5) A Vice-President shall exercise such of the powers and perform such of the functions of the President as may be delegated to him by the President by a general or special order in writing.
(6) On ceasing to hold office, the President, Vice- President or other Member shall not be entitled to appear, act or plead before the Appellate Tribunal.”
7. Part III of the Constitution is the soul of the Constitution. It
is not only a charter of the rights that are available to Indian
citizens, but is even completely in consonance with the basic
norms of human rights, recognized and accepted all over the
world. The fundamental rights are basic rights, but they are
neither uncontrolled nor without restrictions. In fact, the
framers of the Indian Constitution themselves spelt out the
nature of restriction on such rights. Exceptions apart, normally
the restriction or power to regulate the manner of exercise of a
right would not frustrate the right. Take, for example, the most
valuable right even from amongst the fundamental rights, i.e.,
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the right to freedom of speech and expression. This right is
conferred by Article 19(1)(a) but in turn, the Constitution itself
requires its regulation in the interest of the ‘public order’ under
Article 19(2). The State could impose reasonable restrictions on
the exercise of the rights conferred, in the interest of the
sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency or
morality or in relation to contempt of Court, defamation or
incitement of an offence. Such restrictions are within the scope
of -constitutionally permissible restriction. Exercise of legislative
power in this respect by the State can be subjected to judicial
review, of course, within a limited ambit. Firstly, the challenger
must show that the restriction imposed, at least prima facie, is
violative of the fundamental right. It is then that the burden lies
upon the State to show that the restriction applied is by due
process of law and is reasonable. If the restriction is not able to
satisfy these tests or either of them, it will vitiate the law so
enacted and the action taken in furtherance thereto is
unconstitutional. It is difficult to anticipate the right to any
freedom or liberty without any reasonable restriction. Besides
this, the State has to function openly and in public interest. The
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width of the expression ‘public interest’ cannot be restricted to a
particular concept. It may relate to variety of matters including
administration of justice.
8. Let us also examine the fundamental rights and their
restrictions as a constitutional concept. In the case of S.
Rangarajan v. P. Jagjivan Ram and Ors. [(1989) 2 SCC 574],
while dealing with the censorship of a film, this Court observed :
- ‘……There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a power keg’.’
9. Where the Court applies the test of ‘proximate and direct
nexus with the expression’, the Court also has to keep in mind
that the restriction should be founded on the principle of least
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invasiveness, i.e., the restriction should be imposed in a manner
and to the extent which is unavoidable in a given situation. The
Court would also take into consideration whether the
anticipated event would or would not be intrinsically dangerous
to public interest. -
10. Now, we have to examine the various tests that have been
applied over a period of time to examine the validity and/or
reasonability of the restrictions imposed upon the rights.
11. No person can be divested of his fundamental rights. They
are incapable of being taken away or abridged. All that the
State can do, by exercise of its legislative power, is to regulate
these rights by imposition of reasonable restrictions on them.
Upon an analysis of the law, the following tests emerge:-
a) The restriction can be imposed only by
or under the authority of law. It cannot
be imposed by exercise of executive
power without any law to back it up.
b) Each restriction must be reasonable.
c) A restriction must be related to the
purpose mentioned in Article 19(2).
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12. The questions before us, thus, are whether the restriction
imposed was reasonable and whether the purported purpose of
the same squarely fell within the relevant clauses discussed
above. The legislative determination of what restriction to
impose on a freedom -is final and conclusive, as it is not open
to judicial review. The judgments of this Court have been
consistent in taking the view that it is difficult to define or
explain the word “reasonable” with any precision. It will
always be dependent on the facts of a given case with
reference to the law which has been enacted to create a
restriction on the right. It is neither possible nor advisable to
state any abstract standard or general pattern of
reasonableness as applicable uniformly to all cases.
13. A common thread runs through Parts III, IV and IVA of the
Constitution of India. One Part enumerates the fundamental
rights, the second declares the fundamental principles of
governance and the third lays down the fundamental duties of
the citizens. While interpreting any of these provisions, it
shall always be advisable to examine the scope and impact of
such interpretation on all the three constitutional aspects
emerging from these Parts. It is necessary to be clear about
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the meaning of the word “fundamental” as used in the
expression “fundamental in the governance of the State” to
describe the directive principles which have not legally been
made enforceable. Thus, the word “fundamental” has been --
used in two different senses under our Constitution of India.
The essential character of the fundamental rights is secured by
limiting the legislative power and by providing that any
transgression of the limitation would render the offending law
pro tanto void. The word “fundamental” in Article 37 of the
Constitution also means basic or essential, but it is used in the
normative sense of setting, before the State, goals which it
should try to achieve. As already noticed, the significance of
the fundamental principles stated in the directive principles
have attained greater significance through judicial
pronouncements.
14. As difficult as it is to anticipate the right to any freedom
or liberty without any reasonable restriction, equally difficult is
it to imagine the existence of a right not coupled with a duty.
The duty may be a direct or indirect consequence of a fair
assertion of the right. Although Part III of the Constitution of
India confers rights, still the duties and restrictions are
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inherent thereunder. These rights are basic in nature and are
recognized and guaranteed as natural rights, inherent in the
status of a citizen of a free country, but are not absolute in
nature and uncontrolled in operation. Each -one of these
rights is to be controlled, curtailed and regulated, to a certain
extent, by laws made by the Parliament or the State
Legislature. In spite of there being a general presumption in
favour of the constitutionality of a legislation under challenge
in case of allegations of violation of the right to freedom
guaranteed by clause (1) of Article 19 of the Constitution, on a
prima facie case of such violation being made out, the onus
shifts upon the State to show that the legislation comes within
the permissible restrictions set out in clauses (2) to (6) of
Article 19 and that the particular restriction is reasonable. It is
for the State to place appropriate material justifying the
restriction and its reasonability on record.
15. The Advocates Act, 1961 (hereinafter referred to as ‘the
Advocates Act’) itself was introduced to implement the
recommendations of the All India Bar Committee made in
1953. It aimed at establishment of an All India Bar Council, a
common roll for the advocates and integration of the Bar into
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a single class of practioners known as ‘advocates’. It was also
to create autonomous Bar Councils, one for the whole of India
and one for each State. The Advocates Act provides for
various aspects of the legal -profession. Under Section 29 of
the Advocates Act, only one class of persons is entitled to
practice the profession of law, namely, advocates. Section 30
of the Advocates Act provides that subject to the provisions of
the Act, every advocate whose name is entered in the State
rolls shall, as a matter of right, be entitled to practice
throughout the territories to which this Act applies, in all
courts including the Supreme Court of India. Such an
Advocate would also be entitled to practice before any tribunal
or person legally authorized to take evidence and before any
other authority or person before whom such an advocate is, by
or under any law for the time being in force, entitled to
practice. Section 33 of the Advocates Act further states that
except as otherwise provided in that Act or in any other law for
the time being in force, no person shall, on or after the
appointed day, be entitled to practice in any court or before
any authority or person unless he is enrolled as an advocate
under the Advocates Act. A bare reading of these three
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provisions clearly shows that this is a statutory right given to
an advocate to practice and an advocate alone is the person
who can practice before the courts, tribunals, authorities and
persons. But this right is statutorily regulated by two
conditions – one, that a -person’s name should be on the State
rolls and second, that he should be permitted by the law for
the time being in force, to practice before any authority or
person. Where the advocate has a right to appear before an
authority or a person, that right can be denied by a law that
may be framed by the competent Legislature. Thus, the right
to practice is not an absolute right which is free of restriction
and is without any limitation. There are persons like Mukhtiars
and others, who were earlier entitled to practice before the
Courts, but the Advocates Act itself took away the right to
practice which was available to them prior to its coming into
force. Thus, the Advocates Act placed a complete prohibition
upon the right to practice of those persons who were not
advocates enrolled with the State Bar Council.
16. Therefore, the right to practice, which is not only a
statutory right under the provisions of the Advocates Act but
would also be a fundamental right under Article 19(1)(g) of the
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Constitution is subject to reasonable restrictions. An argument
could be raised that a person who has obtained a degree of
law is entitled to practice anywhere in India, his right, as
enshrined in the -Constitution and under the Advocates Act
cannot be restricted or regulated and also that it is not
necessary for him to enroll himself on any of the State rolls.
This argument would be fallacious in face of the provisions of
the Advocates Act as well as the restrictions contemplated in
Article 19(6) of the Constitution. The Legislature is entitled to
make a law relating to the professional or technical
qualifications necessary for carrying on that profession.
17. We may also refer to a recent development of law in
relation to right of the advocates or former judicial officers, to
practice the profession of law. The Bar Council of India has
been vested with the general power to make rules under
Section 49 of the Advocates Act. In furtherance to this power
vested with it, the Bar Council of India has framed the Bar
Council of India Rules. Chapter III of these Rules deals with the
conditions for the right to practice. Rule 7 of Chapter III of the
said Rules is quite in pari materia with Section 129(6) of the Act
and it reads as under :
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“An officer after his retirement or otherwise ceasing to be in service for any reasons, if enrolled as an Advocate shall not practice in any of the Judicial, Administrative Courts/Tribunals/Authorities, which are -
presided over by an officer equivalent or lower to the post which such officer last held.”
18. Rules 7 and 7A of the Bar Council of India Rules, were
introduced by the Bar Council of India on 14th October, 2007.
19. This Rule clearly mandates that upon his retirement or
when otherwise ceasing to be in service for any reason, a
person will not be able to practice in the administrative
tribunal, other tribunals, authorities, courts etc. over which he
had presided and which were headed by an officer in a post
equivalent to or lower than the post which he had held. The
definition in the explanation of what an officer shall mean and
include further widened the scope of interpretation. Not only
this, requiring adherence to professional standard and values,
Rule 7A further makes it mandatory that a person who has
been dismissed, retrenched, compulsorily retired, removed or
otherwise retired from Government Service or service of the
High Court or Supreme Court on the charges of corruption,
dishonesty unbecoming of an employee, etc. would not even be
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enrolled as an advocate on the rolls of a State Bar Council.
These provisions clearly demonstrate the intention of the
Legislature to place restrictions for entry to the profession of
law. These restrictions have to be decided only on the
touchstone of reasonableness and legislative competency. The
restriction which withstands such a test would be enforceable
in accordance with law.
20. The contention raised on behalf of the appellants before us
is that Section 129(6) of the Customs Act imposes a complete
restriction upon the appellants and, therefore, is
unconstitutional. While examining the merit of this contention,
we must notice that there is no challenge to the legislative
competence of the Legislature which enacted and inserted
Section 129(6) of the Act. Once there is no challenge to the
legislative competence and the provision remains as a valid
piece of legislation on the statute book, then the only question
left for this Court to examine is whether this provision is so
unreasonable that it inflicts an absolute restriction upon
carrying on of the profession by the appellants. For two
different reasons, we are unable to hold that the restriction
imposed under Section 129(6) of the Act is unreasonable or
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ultra vires. Firstly, it is not an absolute restriction. It is a partial
restriction to the extent that the persons who have held the
office of the President, Vice--President or other Members of the
Tribunal cannot appear, act or plead before that Tribunal. In
modern times, there are so many courts and tribunals in the
country and in every State, so that this restriction would hardly
jeopardize the interests of any hardworking and upright
advocate. The right of such advocate to practice in the High
Courts, District Courts and other Tribunals established by the
State or the Central Government other than the CESTAT
remains unaffected. Thus, the field of practice is wide open, in
which there is no prohibition upon the practice by a person
covered under the provisions of Section 129(6) of the Customs
Act. Secondly, such a restriction is intended to serve a larger
public interest and to uplift the professional values and
standards of advocacy in the country. In fact, it would add
further to public confidence in the administration of justice by
the Tribunal, in discharge of its functions. Thus, it cannot be
held that the restriction has been introduced without any
purpose or object. In fact, one finds a clear nexus between the
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mischief sought to be avoided and the object aimed to be
achieved.
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21. Now, we may deal with some of the judgments, where
similar restrictions imposed by law were found to be valid and
unexceptionable. In Sukumar Mukherjee v. State of West
Bengal [(1993)3 SCC 723, the State of West Bengal had
prohibited private practice by medical practioners who were
also teaching in the medical institutions. This was provided
under Section 9 of the West Bengal State Health Service Act,
1990. The argument raised was that this provision was
repugnant to Section 27 of the Indian Medical Council Act, 1956
which, in turn, provides for the right of a registered medical
practitioner to practice, as well as an argument that it ultra
vires Articles 19(1)(g), 19(6) and 14 of the Constitution of India.
This Court repelled both these contentions and held that the
prohibition against the members of the West Bengal Medical
Education Service (WBMES) from practicing privately was not
unconstitutional or repugnant to the statutory provisions. It
only regulated a class of persons, i.e., the persons who were
members of that service and secondly, this was intended to
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maintain standards of the medical education which was the
very object of enacting the Indian Medical Council Act.
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22. Similarly, while dealing with the question as to whether
the closure of butcher houses on national holidays or on certain
particular days was unconstitutional and violative of the
fundamental right to carry on business in terms of Articles
19(1)(g), 19(6) and 14 of the Constitution, in the case of
Municipal Corporation of the City of Ahmedabad & Ors. v. Jan
Mohammed Usmanbhai & Anr. [(1986) 3 SCC 20], a
Constitution Bench of this Court, while rejecting the challenge,
held as under :
“17. Clause (6) of Article 19 protects a law which imposes in the interest of general public reasonable restrictions on the exercise of the right conferred by sub-clause (g) of clause (1) of Article 19. Obviously it is left to the court in case of a dispute to determine the reasonableness of the restrictions imposed by the law. In determining that question the court cannot proceed on a general notion of what is reasonable in the abstract or even on a consideration of what is reasonable from the point of view of the person or persons on whom the restrictions are imposed. The right conferred by sub-clause (g) is expressed in general language and if there had been no qualifying provision like clause (6) the right so conferred would have been an absolute one. To the persons who have this right
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any restriction will be irksome and may well be regarded by them as unreasonable. But the question cannot be decided on that basis. What the court has to do is to consider whether the -- restrictions imposed are reasonable in the interest of general public. In the State of Madras v. V.G. Row this Court laid down the test of reasonableness in the following terms:
“It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.”
19. The expression ‘in the interest of general public’ is of wide import comprehending public order, public health, public security, morals, economic welfare of the community and the objects mentioned in Part IV of the Constitution. Nobody can dispute a law providing for basic amenities; for the dignity of human labour like provision for canteen, rest rooms, facilities for drinking water, latrines and urinals etc. as a social welfare measure in the interest of general public. Likewise in respect of legislations and notifications concerning the wages, working conditions or the other amenities for the working class, the courts have adopted a liberal attitude and the interest of the workers has been protected notwithstanding the hardship that might be caused to the employers. It was, therefore, open to the legislature or the authority -- concerned, to ensure proper holidays for the municipal staff working in the municipal
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slaughterhouses and provide certain closed days in the year. Even according to the observations of the High Court nobody could have any objection to the standing orders issued by the Municipal Commissioner under Section 466(1)(D)(b) if municipal slaughterhouses were closed on certain days in order to ensure proper holidays for the municipal staff working in the municipal slaughterhouses. The only objection was that the standing orders direct closure of the slaughterhouses on Janmashtami, Jain Samvatsari, October 2 (Mahatma Gandhiji's birthday), February 12 (Shraddha day of Mahatma Gandhi), January 30 (Mahatma Gandhiji'sNirwan day), MahavirJayanti and Ram Navami. These days were declared as holidays under the standing orders for the Municipal Corporation slaughterhouses.
20. The tests of reasonableness have to be viewed in the context of the issues which faced the legislature. In the construction of such laws and in judging their validity, courts must approach the problem from the point of view of furthering the social interest which it is the purpose of the legislation to promote. They are not in these matters functioning in vacuo but as part of society which is trying, by the enacted law, to solve its problems and furthering the moral and material progress of the community as a whole. (See Jyoti Persh adv. Union Territory of Delhi) If the expression ‘in the interest of general public’ is of wide import comprising public order, public security and public morals, it cannot be said that the standing orders closing the slaughterhouses -
on seven days is not in the interest of general public.
21. In view of the aforesaid discussion we are not prepared to hold that the closure of the slaughter house on seven days specified in the two standing orders in any way put an unreasonable restriction on the fundamental right guaranteed to the
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petitioner-respondent under Article 19(1)(g) of the Constitution.
22. This leads us to the second contention raised on behalf of the respondent, which is based on Article 14 of the Constitution. The High Court had repelled this contention for a valid reason with which we fully agree.
23. It is now well established that while Article 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation and that in order to pass the test of permissible classification two conditions must be fulfilled, namely, (i) 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 (ii) such differentia must have rational relation to the object sought to be achieved by the statute in question. The classification, may be founded on different basis, namely, geographical, or according to objects or occupations or the like and what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. There is always a presumption in favour of constitutionality of an enactment and the burden is upon him who attacks it, to show that there has been a clear violation of the constitutional principles. The courts must -presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed against problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest, and finally that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common rapport, the history of the times
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and may assume every state of facts which can be conceived to be existing at the time of legislation.
24. The objects sought to be achieved by the impugned standing orders are the preservation, protection and improvement of livestock. Cows, bulls, bullocks and calves of cows are no doubt the most important cattle for the agricultural economy of this country. Female buffaloes yield a large quantity of milk and are, therefore, well looked after and do not need as much protection as cows yielding a small quantity of milk require. As draught cattle male buffaloes are not half as useful as bullocks. Sheep and goat give very little milk compared to the cows and the female buffaloes, and have practically no utility as draught animals. These different categories of animals being susceptible of classification into separate groups on the basis of their usefulness to society, the butchers who kill each category of animals may also be placed in distinct classes according to the effect produced on society by the carrying on of their respective occupations. The butchers who -- slaughter cattle formed the well defined class based on their occupation. That classification is based on intelligible differentia and distinguishes them from those who kill goats and sheep and this differentiation has a close connection with the object sought to be achieved by the impugned Act, namely the preservation, protection and the improvement of our livestock. The attainment of these objectives may well necessitate that the slaughterers of cattle should be dealt with differently than the slaughterers of say, goats and sheep. The standing orders, therefore, in our view, adopt a classification based on sound and intelligible basis and can quite clearly stand the test laid down above.”
23. Another Constitution Bench of this Court, while dealing
with the provisions of the Legal Practitioners Act, 1879, a pre-
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constitution law, considered the correctness or effect of
restrictions on the rights of a Mukhtiar to act or plead before
the Civil Court, under Rule 2 of the Rules, framed under the
provisions of that Act by the High Court and held that Sections
9 and 11 of that Act would have to be read together. It would
be wrong to treat the mere right to practice conferred by
Section 9 of the Legal Practioners Act as disassociated from
the functions, powers and duties of Mukhtiar referred to in
Section 11 of that Act. The right to appear before a court
is controlled by these provisions. Primarily holding that --
Rule 2 as enacted by the High Court was not in excess of the
rule-making power under Section 11 of that Act, this Court
also held that the Mukhtiars cannot complain of any violation
of their fundamental right to practice the profession, to which
they have been enrolled under the provisions of that Act. In
other words, the challenge on the ground of inequality and
unreasonableness, both, were repelled by this Court. {Ref.
Devata Prasad Singh Chaudhuri & Ors. v. The Hon’ble the
Chief Justice and Judges of the Patna High Court [AIR 1962 SC
201]}.
24. There are certain legislations which restrict appearance of
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advocates before specialized or specific tribunals. These
kinds of restrictions upon the right of the lawyers to appear
before those tribunals have been challenged in the courts from
time to time. The courts have consistently taken the view
that limited restrictions are neither violative of the
fundamental rights, nor do they tantamount to denying the
equality before law in terms of Article 14 of the Constitution.
In the case of H.S. Srinivasa Raghavachar & Ors. v. State of
Karnataka [(1987) 2 SCC 692], this Court was primarily
concerned with the validity of Section 44(1) of the -Karnataka
Land Reforms Amendment Act, 1974 which was challenged on
the ground that it was ultra vires Articles 39(b) and 39(c) of
the Constitution and was destructive of the basic structure of
the Constitution. An ancillary question that fell for the
consideration of this Court was where sub-section (8) of
Section 48 of that Act, which prohibited legal practitioners
from appearing in such proceedings before the Tribunals, was
repugnant to Section 30 of the Advocates Act, and Section 14
of the Bar Council of India Act. The challenge was primarily
accepted by this Court on the ground that it was a case of lack
of legislative competence, inasmuch as the State Legislature
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was not competent to make a law repugnant to the laws made
by the Parliament pursuant to Entries 77 and 78 of List I of the
Seventh Schedule to the Constitution. This Court directed
that Section 48(8) of that Act would not be enforced against
the advocates to prevent them from appearing before the
Tribunal. This case, relied upon by the learned counsel for the
appellant, is completely different on facts and in law. In the
case in hand, the consistent position is that there is no
challenge to the legislative competence in amending Section
129(6) of the Customs Act. The challenge is limited to the
ground of its being ultra vires Articles -19(1)(g), 19(6) and 14
of the Constitution. Therefore, the counsel cannot draw any
advantage from that case.
25. In the case of Paradip Port Trust, Paradip v. Their Workmen
[AIR 1977 SC 36], this Court dealt with the right of the legal
practitioners to represent employers before the Industrial
Tribunal that too only with the consent of the opposite party and
leave of the Tribunal. The restriction was limited in its scope
and impact and this Court held that it was not violative of the
right of the legal practitioners as they will have to conform to
the conditions laid down in Section 36(4) of the Industrial
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Disputes Act, 1947.
26. Refuting contentions that this provision would be
repugnant to Section 30 of the Advocates Act, this Court held
that the Industrial Disputes Act was a special piece of legislation
with the aim of labour welfare and representation before the
adjudicative authorities therein has been specifically provided
for with a clear object in view.
27. In the case of Lingappa Pochamma Appelwar v. State of
Maharashtra & Anr. [(1985) 1 SCC 479], in somewhat similar
circumstances relating to the provisions of the Maharashtra --
Restoration of Lands to Scheduled Tribes Act, 1974, this Court
clearly rejected the contention that an advocate enrolled under
the Advocates Act, has an absolute right to appear before any of
the courts and tribunals in the country. Though at that time
Section 30 of the Advocates Act had not come into force, but
still the Court felt that the right of an advocate to practice after
being brought on the roll of the State Bar Council is, just what is
conferred upon him under the Bar Councils Act, 1926 and
therefore, Section 9(a) of the Maharashtra Restoration of Lands
to Scheduled Tribes Act which placed that restriction was not
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unconstitutional or impinging on the rights of the advocates to
practice. The Court also observed that it was well settled that
apart from under the provisions of Article 22 of the Constitution,
no litigant has a fundamental right to be represented by a
lawyer in any Court.
28. In the case of Indian Council of Legal Aid and Advice v. Bar
Council of India & Anr. [(1995) 1 SCC 732], this Court while
holding that a prohibition against a person, more than 45 years
of age being enrolled as an advocate was violative of Article 14
of the Constitution as being discriminatory and arbitrary, made
some observations with regard to duties and functions of the
advocates -and Bar Councils, for the dignity and purity of the
profession, which are worthy of being noticed and are
accordingly reproduced :
“3. It will be seen from the above provisions that unless a person is enrolled as an advocate by a State Bar Council, he shall have no right to practise in a court of law or before any other Tribunal or authority. Once a person fulfils the requirements of Section 24 for enrolment, he becomes entitled to be enrolled as an advocate and on such enrolment he acquires a right to practise as stated above. Having thus acquired a right to practise he incurs certain obligations in regard to his conduct as a member of the noble profession. The Bar Councils are enjoined with the duty to act as sentinels of professional conduct and must ensure that the dignity and purity of the profession are in no way undermined. Its job is
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to uphold the standards of professional conduct and etiquette. Thus every State Bar Council and the Bar Council of India has a public duty to perform, namely, to ensure that the monopoly of practice granted under the Act is not misused or abused by a person who is enrolled as an advocate. The Bar Councils have been created at the State level as well as the Central level not only to protect the rights, interests and privileges of its members but also to protect the litigating public by ensuring that high and noble traditions are maintained so that the purity and dignity of the profession are not jeopardized. It is generally believed that members of the legal profession have certain social obligations, e.g., to render “pro bono publico” service to the poor and the underprivileged. Since the duty of a lawyer is to assist the court in the administration of justice, the practice of law has a public utility flavour -and, therefore, he must strictly and scrupulously abide by the Code of Conduct behaving the noble profession and must not indulge in any activity which may tend to lower the image of the profession in society. That is why the functions of the Bar Council include the laying down of standards of professional conduct and etiquette which advocates must follow to maintain the dignity and purity of the profession.”
29. An objective analysis of the above principles makes it clear
that except where the challenge is on the grounds of legislative
incompetence or the restriction imposed was ex facie
unreasonable, arbitrary and violative of Part III of the Constitution
of India, the restriction would be held to be valid and enforceable.
30. The next contention raised on behalf of the appellants before
us is that the entire restriction is based on an illogical presumption
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of likelihood of bias. The presumption of legal bias being without
any basis and ill-founded, the amendment itself is liable to be
declared ultra vires. This contention, again, does not carry any
weight. This argument is misconceived on facts and law, both. It
is not only the mischief of likelihood of bias which is sought to be
prevented by the amendment but the amendment, has a definite
-purpose and object to achieve which is in the larger public
interest. Such legislative attempt, not only to adhere to but to
enhance the values and dignity of the legal profession, would add
to the confidence of the common litigant in the administration of
justice and the performance of duties by the Tribunal.
31. For example, a person who is otherwise qualified to be
admitted as an advocate, but is either in full or part time service or
employment, or is engaged in any trade, business or profession,
shall not be admitted as an advocate, was a restriction imposed by
the Bar Council of State of Maharasthra and Goa. Upon challenge,
this Court had taken the view that under Article 19(1)(g), all
citizens have a right to practice any profession or carry on any
occupation, trade or business. The term ‘any profession’ may
include even plurality of professions. However, this is not an
absolute right and is subject to reasonable restrictions under
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Article 19(6). It cannot be gainsaid that litigants are also members
of general public and if in their interest, any rule imposes a
restriction on the entry to the legal profession and if such
restriction is founded to be reasonable, Article 19(1)(g) would not
get stultified {Dr. Haniraj L. Chulani v. Bar Council, State of
Maharashtra & Goa [(1996) 3 SCC 342]}.
-
32. In this very case, the Court also observed that these well-
established connotations and contours of the requirements of the
legal profession itself supply the necessary guidelines to the
concerned Bar Councils or Legislatures to frame Rules for
regulating the entry of the persons to the profession.
33. This judgment is relatable to the legal profession and we
have already noticed the judgments of this Court relating to other
professions. Imposition of restrictions is a concept inbuilt into the
enjoyment of fundamental rights, as no right can exist without a
corresponding reasonable restriction placed on it. When the
restrictions are placed upon the carrying on of a profession or to
ensure that the intent, object or purpose achieved thereby would
be enhancing the purity of public life, such object would certainly
be throttled if there arose a situation of conflict between private
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interest and public duty. The principle of private interest giving
way to public interest is a settled cannon, not only of
administrative jurisprudence, but of statutory interpretation as
well. Having regard to the prevalent values and conditions of the
profession, most of the legal practitioners would not stoop to
unhealthy practices or tactics but the Legislature, in its wisdom,
has considered it desirable to -eliminate any possibility of conflict
between the interest and duty and aimed at achieving this object
or purpose by prescribing the requisite restrictions. With the
development of law, the courts are expected to consider, in
contradistinction to private and public interest, the institutional
interest and expectations of the public at large from an institution.
These are the balancing tests which are applied by the courts even
in the process of interpretation or examining of the constitutional
validity of a provision.
34. Under the English Law, the genesis of bias has been
described as the perception that the court is free from bias, that it
is objectively impartial stems from the overworked aphorism of
Lord Hewart C.J. in R. v. Sussex Justices Ex. P. McCarthy [(1924) 1
KB 256 KBD at 259] wherein he said, “It is not merely of some
importance but is of fundamental importance that justice should
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35
not only be done but should manifestly and undoubtedly be seen
to be done.” However, later the courts there felt that too heavy a
reliance upon the Hewart aphorism in instances of alleged bias
produces the danger that the appearance of bias or injustice
becomes more important than the absence of actual bias, the
doing of justice itself. It is, therefore, of importance that perceived
bias is not too readily inferred, such as to negate the doing of
justice. In Porter v. Magill [(2002) 2 AC 357], the House of Lords
finally decided the proper test for finding perceived or apparent
bias, after judicial debate for over two decades, which displayed
the welcome interplay of judicial pronouncements within the
jurisdictions of the English common law, Scotland and Strasbourg
jurisprudence. The test is now whether the fair-minded observer,
having considered the facts, would consider that there was a
reasonable possibility that the tribunal was biased. [See Sir Louis
Blom, Q.C., ‘Bias, Malfunction in Judicial Decision-making’, (2009)
Public Law 199].
35. Bias must be shown to be present. Probability of bias,
possibility of bias and reasonable suspicion that bias might have
affected the decision are terms of different connotations. They
broadly fall under two categories, i.e., suspicion of bias and
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36
likelihood of bias. Likelihood of bias would be the possibility of bias
and bias which can be shown to be present, while suspicion of bias
would be the probability or reasonable suspicion of bias. The
former lead to vitiation of action, while the latter could hardly be
the foundation for further examination of action, with reference to
-the facts and circumstances of a given case. The correct test
would be to examine whether there appears to be a real danger of
bias or whether there is only a probability or even a preponderance
of probability of such bias, in the circumstances of a given case. If
it falls in the prior category, the decision would attract judicial
chastise but if it falls in the latter, it would hardly effect the
decision, much less adversely.
36. Harry Woolf, Jeffey Jowell and Andrew Le Sueur, in their
recent book De Smith’s Judicial Review (Sixth Edition) have
referred to the concept of ‘automatic disqualification’, that is,
where the element of bias is present and would lead to
disqualification on its own. This rule was invoked to invalidate the
composition of a disciplinary tribunal of the Council of the Inns of
Court, since one of the members of the tribunal had been a
member of the Professional Conduct and Complaints Committee of
the Bar Council (PCCC) which was the body responsible for the
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decision to prosecute a member of the Bar before that Tribunal. It
was held by the Visitors to the Inns of Court that each member of
the PCCC had a common interest in the prosecution and,
therefore, was acting as a judge in his or her own cause. The rule
was not free of -exceptions. It could even be applied with certain
flexibility. On the subject of judicial bias, a greater degree of
flexibility has to be applied in cases of automatic disqualification.
For example, where the public became aware that a senior
member of a firm was acting against one of the parties to the
litigation, but, on another matter, it was held that automatic
disqualification would not be necessary, as the connection
between the firm’s success in the case and its profits was
“tenuous” and the party had effectively waived the right to
challenge an adverse decision in the former litigation.
37. The element of bias by itself may not always necessarily
vitiate an action. The Court would have to examine the facts of a
given case. Reverting to the facts of the present case, despite
their absence from the object and reasons for the amendment of
Section 129(6) of the Customs Act it cannot be held that the
element of bias was presumptuous or without any basis or object.
It may be one of the relevant factors which probably would have
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weighed on the mind of the Legislature. When you have been a
member of a Tribunal over a long period, and other members have
been your co-members whether judicial or technical, it is difficult
to hold that there would be no possibility of bias or no real danger
of bias. Even -if we rule out this possibility, still, it will always be
better advised and in the institutional interest that restrictions are
enforced. Then alone will the mind of the litigant be free from a
lurking doubt of likelihood of bias and this would enhance the
image of the Tribunal. The restriction, as already discussed, leaves
the entire field of legal profession wide open for the appellants and
all persons situated alike except to practice before CESTAT.
38. Besides the possibility of bias, there is a legitimate
expectation on the part of a litigant before the Tribunal that there
shall not be any possibility of justice being denied or being not
done fairly. These are the concepts which are very difficult to be
defined and demarcated with precision. Some element of
uncertainty would be prevalent. There can be removal of doubts
to the facts of a given case that would help in determining matters
with somewhat greater uncertainty. The contention of the
petitioners that there has to be empirical data to suggest their
practice before the Tribunal resulted in instances of misdemeanor
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39
which would have propelled the respondents to insert such a
provision in the enactment, has rightly been rejected by the High
Court. It may not even be proper to introduce such amendments
with reference to any data. Suffice it -to note that these
amendments are primarily based upon public perception and
normal behaviour of an ordinary human being. It is difficult to
define cases where element of bias would affect the decision and
where it would not, by a precise line of distinction. Even in a
group, a person possessing a special knowledge may be in a
position to influence the group and his bias may operate in a
subtle manner.
39. The general principles of bias are equally applicable to our
administrative and civil jurisprudence. Members of the Tribunals,
called upon to try issues in judicial or quasi-judicial proceedings
should act judicially. Reasonable apprehension is equitable to
possible apprehension and, therefore, the test is whether the
litigant reasonably apprehends that bias is attributable to a
member of the Tribunal. Repelling the apprehension of bias in
administrative action, the Courts have taken the view that in the
case where a remote relationship existed, separated by six
degrees, which was the foundation of challenge of selection to a
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post of clerk in the Gram Panchayat High School, the challenge was
not sustainable. It is difficult to rule out the possibility of a
reasonable apprehension in the minds of the litigants who
approach the -Tribunal for justice, if the reasonable restriction
introduced in Section 129(6) of the Customs Act is not enforced.
Reference can be made to the judgments of this Court in the case
of Manak Lal v. Dr. Prem Chand [AIR 1957 SC 425] and
Rasmiranjan Das v. Sarojkanta Behera & Ors.[(2000) 10 SCC 502].
40. This Court in the case of Kumaon Mandal Vikas Nigam Ltd. v.
Girja Shankar Pant and Ors. [(2001) 1 SCC 182], having regard to
the changing structure of the society, stated that modernization of
the society with the passage of time had its due impact on the
concept of bias as well. The courts have applied the tests of real
likelihood and reasonable suspicion. These doctrines were
discussed in the case of S. Parthasarathi v. State of Andhra
Pradesh [(1974) 3 SCC 459]. The Court found that ‘real likelihood’
and ‘reasonable suspicion’ were terms really inconsistent with
each other and the Court must make a determination, on the basis
of the whole evidence before it, whether a reasonable man would,
in the circumstance, infer that there is real likelihood of bias or not.
The Court has to examine the matter from the view point of the
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41
people. The term ‘bias’ is used to denote a departure from the
standing of even handed justice. After discussing this law,
another Bench of -this Court in the case of State of Punjab v. V.K.
Khanna [(2001) 2 SCC 330], finally held as under:-
“8. The test, therefore, is as to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom. In the event, however, the conclusion is otherwise that there is existing a real danger of bias administrative action cannot be sustained. If on the other hand allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefor, would not arise.”
41. The word ‘bias’ in popular English parlance stands included
within the attributes and broader purview of the word ‘malice’,
which in general connotation, means and implies ‘spite’ or ‘ill will’.
It is also now a well settled proposition that existence of the
element of ‘bias’ is to be inferred as per the standard and
comprehension of a reasonable man. The bias may also be
malicious act having some element of intention without just cause
or excuse. In case of malice or ill will, it may be an actual act
conveying negativity but the element of bias could be apparent or
reasonably seen without -any negative result and could form part
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42
of a general public perception.
42. Now, we shall proceed to examine the merits of the
contention raised that the provisions of Section 129(6) of the
Customs Act cannot be given effect to retrospectively. The
argument advanced is that the appellants were enrolled as
advocates when the provisions of Section 129(6) were not on the
statute book. After ceasing to be members of the Tribunal and
starting their practice as advocates, such a bar was not operative.
Now, after the lapse of so many years, their right to practice
before such Tribunals cannot be taken away and to that extent, in
any case, the provisions of Section 129(6) cannot be made
retrospective.
43. As already noticed by us above, the right to practice law is a
statutory right. The statutory right itself is restricted one. It is
controlled by the provisions of the Advocates Act, 1961 as well as
the rules framed by the Bar Council in that Act. A statutory right
cannot be placed at a higher pedestal to a fundamental right.
Even a fundamental right is subject to restriction and control. At
the cost of repetition, we may notice that it is not possible to
imagine a -right without restriction and controls in the present
society. When the appellants were enrolled as advocates as well
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as when they started practicing as advocates, their right was
subject to the limitations under any applicable Act or under the
constitutional limitations, as the case may be. One must clearly
understand a distinction between a law being enforced
retrospectively and a law that operates retroactively. The
restriction in the present case is a clear example where the right
to practice before a limited forum is being taken away in presenti
while leaving all other forums open for practice by the appellants.
Though such a restriction may have the effect of relating back to a
date prior to the presenti. In that sense, the law stricto sensu is
not retrospective, but would be retroactive. It is not for the Court
to interfere with the implementation of a restriction, which is
otherwise valid in law, only on the ground that it has the effect of
restricting the rights of the people who attain that status prior to
the introduction of the restriction. It is certainly not a case of
settled or vested rights, which are incapable of being interfered
with. It is a settled canon of law that the rights are subject to
restrictions and the restrictions, if reasonable, are subject to
judicial review of a very limited scope.
-
44. We do not find any reason to accept the submission that
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44
enforcement of the restriction retroactively would be
impermissible, particularly in the facts and circumstances of the
present case.
45. We may refer to the case of R. v. Inhabitants of St. Mary,
Whitechapel [(1881) 12 QB 149] whereby under Section 2 of the
Poor Removal Act, 1846, ‘No woman residing in any parish with her
husband at the time of his death shall be removed… from such
parish, for twelve calendar months after his death, if she so long
continue a widow.’ In this case, a widow was sought to be removed
within such period of 12 months, on the grounds that her husband
had died before the coming into force of that Act. The question
was whether that provision applied retrospectively. Lord Denman,
C.J, held that ‘the statute is, in its direct operation, prospective, as
it relates to future removals only and that it is not properly called
a retrospective statute because a part of the requisites for its
action is drawn from its time antecedent to its passing’. Thus, the
provision was held not to be retrospective.
46. Examined the case of the appellants from this angle, it would
mean that the law is not at all retrospective even though the --
retirement or date of ceasing to be a member of the Tribunal may
have been on a date anterior to the date of passing of the law.
Page 45
45
47. We may also notice that the restriction is not punitive, in that
sense, but is merely a criterion for eligibility for continuing to
practice law before the Tribunal.
48. Earlier, the nature of law, as substantive or procedural, was
taken as one of the determinative factors for judging the
retrospective operation of a statute. However, with the
development of law, this distinction has become finer and of less
significance. Justice G.P. Singh, in his Principles of Statutory
Interpretation (12th Edition, 2010) has stated that the classification
of a statute, as either a substantive or procedural law, does not
necessarily determine whether it may have retrospective
operation. For example, a statute of limitation is generally
regarded as procedural, but its application to a past cause of
action has the effect of reviving or extinguishing a right to sue.
Such an operation cannot be said to be procedural. It has also
been noted that the rule of retrospective construction is not
applicable merely because a part of the requisites for its action is
drawn from a time antecedent to the -passing of the relevant law.
For these reasons, the rule against retrospectivity has also been
stated, in recent years, to avoid the classification of statutes into
substantive and procedural and the usage of words like ‘existing’
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or ‘vested’. Referring to a judgment of the Australian High Court
in the case of Maxwell v. Murphy [(1957) 96 CLR 261], it is
recorded as follows :
“One such formulation by Dixon C.J. is as follows : ‘The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But given rights and liabilities fixed by reference to the past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption’.”
49. In such matters, in judiciously examining the question of
retrospectivity or otherwise, the relevant considerations include
the circumstances in which legislation was created and the test of
fairness. The principles of statutory interpretation have
expanded. With the development of law, it is desirable that the
Courts should -apply the latest tools of interpretation to arrive at a
more meaningful and definite conclusion. The doctrine of fairness
has also been applied by this Court in the case of Vijay v. State of
Maharashtra & Ors.[(2006) 6 SCC 289]. A restriction was
introduced providing that a person shall not be a member of a
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47
Panchayat or continue as such, if he has been elected as
Councilor of Zila Parishad or as a member of the Panchayat
Samiti. This restriction was held to be retrospective and
applicable to the existing members of the Panchayat also.
Applying the rule of literal construction, this Court held that when
a literal reading of the provision giving retrospective effect does
not produce absurdity or anomaly, the same would not be
construed only prospective. This was further strengthened by the
application of the rule of fairness.
50. In the present case, the restriction would be applied
uniformly to all the practicing advocates as well as to the
advocates who would join the profession in future and would
achieve the object of the Customs Act without leading to any
absurd results. On the contrary, its uniform application would
achieve fair results without really visiting any serious prejudice
upon the class of the advocates -who were earlier the members
of the Tribunal as it remains open to them to practice in other
tribunals, forums and courts. If an exception was carved out in
their favour, it would lead to an anomaly as well as an absurd
situation frustrating the very purpose and object of Section
129(6) of the Act.
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48
51. Still in another case titled Dilip v. Mohd. Azizul Haq & Anr.
[(2000) 3 SCC 607], this Court, while dealing with the question
whether the amendment in the Rent Control Order, which had
earlier only covered ‘houses’, and was amended to encompass
‘premises’ could be allowed to agreements entered into, prior in
time, clearly held that the provision came into force when the
appeal was still pending and, though the provision is prospective
in force, it has retroactive effect. This provision merely provides
for a limitation to be imposed for the future, which in no way
affects anything done by a party in the past and the statutes
providing for new remedies or new manners for enforcement of
the existing rights will apply to future as well as past causes of
action. This Court also held that the presumption against
retrospective legislation does not necessarily apply to an
enactment merely because a part of the -requisites for its action
are drawn from a time antecedent to its passing.
52. In light of these principles, the provisions of Section 129(6)
of the Customs Act and its operation cannot be faulted with.
Another half-hearted attempt was made to raise a contention that
the appellants can continue to appear before the Tribunal as they
are permitted to do so in terms of Section 146A of the Customs
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49
Act, despite the provisions of Section 129(6) of the Customs Act.
We are unable to find any merit in this contention as well. The
provisions of Section 129(6) of the Customs Act are specific and
both these provisions have to be construed harmoniously. We
find nothing contradictory in these three provisions. Section
146(2)(c) of the Customs Act refers to the appearance by a legal
practitioner who is entitled to practice as such in accordance with
law. Section 129(6) places a restriction, which is reasonable and
valid restriction, as held by us above. Thus, the provisions of
Section 146A of the Act would have to be read in conjunction with
and harmoniously to Section 129(6) of the Customs Act and the
person who earns a disqualification under this provision cannot
derive any extra benefit -contrary to Section 129(6) of the
Customs Act from the reading of Section 146A of the Customs
Act. Thus, we have no hesitation in rejecting this contention as
well.
53. For the reasons afore-recorded, we dismiss all the aforesaid
appeals, however, without any order as to costs.
…………………………….,J. [A.K. Patnaik]
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…………………………….,J. [Swatanter Kumar]
New Delhi; March 15, 2012