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PETITIONER: THE STATE OF WEST BENGAL

       Vs.

RESPONDENT: ANWAR ALl SARKARHABIB MOHAMED,THE STATE OF HYDERABAD, and  I

DATE OF JUDGMENT: 11/01/1952

BENCH: SASTRI, M. PATANJALI (CJ) BENCH: SASTRI, M. PATANJALI (CJ) FAZAL ALI, SAIYID MAHAJAN, MEHR CHAND MUKHERJEA, B.K. DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA BOSE, VIVIAN

CITATION:  1952 AIR   75            1952 SCR  284  CITATOR INFO :  D          1952 SC 123  (1,2,6)  R          1952 SC 235  (4,5,6)  F          1952 SC 324  (15)  R          1953 SC  10  (22)  D          1953 SC 156  (15)  D          1953 SC 404  (11)  R          1954 SC 362  (3)  R          1955 SC 191  (5)  RF         1955 SC 424  (11,19)  F          1956 SC 479  (14,17,18)  RF         1957 SC 397  (16,18,24,26,31,32)  F          1957 SC 503  (16,18)  R          1957 SC 877  (16)  D          1957 SC 927  (9)  F          1958 SC 232  (14)  R          1958 SC 538  (11,12)  RF         1958 SC 578  (211)  R          1959 SC 459  (49)  F          1960 SC 457  (3,14)  R          1961 SC1602  (12)  D          1962 SC1764  (7)  R          1963 SC 222  (51)  R          1963 SC 864  (13)  RF         1964 SC 370  (6)  R          1967 SC1581  (11)  RF         1967 SC1643  (14)  R          1968 SC   1  (7,11)  RF         1970 SC 494  (8)  RF         1973 SC 564  (78)  RF         1973 SC1461  (313,616)  R          1974 SC 894  (11)  RF         1974 SC1389  (251,266,271)  R          1974 SC2009  (4,7,8,9,11,13,15,26,28,29,29,  F          1974 SC2044  (3)  R          1975 SC 583  (39)  R          1975 SC2299  (344,485,681)  D          1977 SC1772  (15)  R          1978 SC 215  (68)  R          1978 SC 597  (55)  F          1978 SC 771  (42,45)

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E          1979 SC 478  (64,65,66,67,69,70)  R          1980 SC 161  (10)  RF         1980 SC1382  (114,116,121)  RF         1980 SC1789  (36)  R          1981 SC1001  (8)  RF         1981 SC1829  (84,114)  RF         1981 SC2138  (24,26)  RF         1987 SC1140  (3)  D          1988 SC1531  (163)  F          1989 SC1335  (53)  R          1990 SC  40  (8)

ACT:     West  Bengal  Special Courts Act (X of 1950), ss.  3,  5 Constitution  of  India, Art. 14--Act  constituting  special courts  and empowering State Government to refer "cases"  or "offences" or "classes of cases" or "classes of offences" to such  Court--Constitutional validity--Fundamental  right  to equality  before  the  law  and  equal  protection  of   the laws--Construction  of Act--Reference to  preamble--Act  not classifying  cases or laying down standard  for  classifica- tion--Intention of legislature how far material--Validity of notification under Act--Test of equality before  law--Essen- tials  of reasonable classification--Necessity for  speedier trial, whether reasonable ground for discrimination.

HEADNOTE:     The  West  Bengal  Special Courts Act (X  of  1950)  was entitled  "An Act to provide for the speedier trial of  cer- tain  offences," and  the object of the Act. as declared  in the  preamble,  was "to provide for the  speedier  trial  of certain offences". Section 3 of the Act empowered the  State Government  by notification in the official gazette to  con- stitute Special Courts, and sec. 5 provided that "A  Special Court  shall  try such offences or classes  of  offences  or cases  or classes of cases, as the State Government  may  by general or special order in writing, direct."  The Act  laid down  a procedure for trial before Special Courts which  was different  in  several respects from that laid down  by  the Criminal  Procedure  Code for trial of  offences  generally. The  respondent, who was convicted by a Special Court  which tried his case under a notification issued by the Government under sec. 5, contended that the said section was  unconsti- tutional and void inasmuch as it contravened Art. 14 of  the Constitution, which provides that "the State shall not  deny to  any person equality before the law or the equal  protec- tion of the laws within the territory of India". 285     Held,  per FAZL ALl, MAHAJAN, MUKHERJEA,  CHANDRASEKHARA AIYAR    and    BOsE    JJ.    (PATANJALI    SASTRI    C.J., dissenting)--Section 5 (1) of the West Bengal Special Courts Act,  1950, contravenes Art. 14 of the Constitution  and  is void  inasmuch as (per FAZL ALl,  MAHAJAN,  MUKHERJEA,   and CHANDRASEKHARA AIYAR JJ.) the procedure laid down by the Act for  the  trial by the Special Courts  varied  substantially from  that laid down for the trial of offences generally  by the Code of Criminal Procedure and the Act did not classify, or lay down any basis for classification, of the cases which may  be directed to be tried by the Special Court, but  left it to the uncontrolled discretion of the State Government to direct  any case which it liked to be tried by  the  Special Court.   DAs J.--Section 5 Il) of the Act, in so far  as  it

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empowered  the  State  Government to  direct  "offences"  or "classes of offences" or "classes of cases" to be tried by a Special Court, does not confer an uncontrolled and  unguided power on the  State Government  but by necessary implication contemplates  a proper classification and is not void.  That part of the section which empowered the Government to direct "cases" as distinct from "classes of cases" to be tried by a Special Court is void.  PATANJALI SASTRI C.J.--Section 5 (1) of the Act is not void or unconstitutional wholly or even in part.     Per  FAZL  ALl, MAHAJAN,  MUKHERJEA  and  CHANDRASEKHARA AIYAR  JJ.--A  rule of procedure laid down by law  comes  as much  within the purview of Art. 14 of the  Constitution  as any  rule  of substantive law and it is necessary  that  all litigants,  who are similarly situated,  are able  to  avail themselves  of the same procedural rights for rebel and  for defence with like protection and without discrimination.     (ii)  If it is established that the  person  complaining has  been discriminated against as a result  of  legislation and denied equal privileges with others  occupying the  same position,  it is not incumbent upon him before he can  claim relief  on  the basis of fundamental rights  to  assert  and prove that, in making the law, the legislature  was actuated by  a  hostile or inimical intention  against  a  particular person  or  class ; nor would the operation of  Art.  14  be excluded  merely because it is proved that  the  legislature had no intention to discriminate, though discrimination  was the  necessary  consequence  of the Act.   The  question  of intention may arise in ascertaining whether an officer acted mala  fide or not; but it cannot arise  when  discrimination follows or arises on the express terms of the law itself.     (iii)  The language of sec. 5 (1) clearly and  unambigu- ously  vests the State Government with unrestricted  discre- tion  to direct any cases or class of cases to be  tried  by the Special Court, not a discretion to refer cases only when it is of opinion that a speedier trial is necessary 286      (iv) Assuming that the preamble throws any light on the section,  the  necessity  of speedier trial  is  too  vague, uncertain  and elusive a criterion to form a rational  basis for discrimination.       (v) It cannot be said that an Act does not  contravene the  equality  rule laid down by Art. 14 simply  because  it confers unregulated discretion on officers or administrative bodies.  The true position is that if the statute itself  is not  discriminatory the charge of Violation of  the  article may be only against the official who administers it, but  if the statute itself makes a discrimination without any proper or reasonable basis, it would be void for being in  conflict with Art. 14.      (vi)  The  notification  issued under the  Act  in  the present  case would also  come  within  the   definition  of law and could be impeached apart from the Act if it violates Art. 14.     DAS J.--(1) Article 14 does not insist that every  piece of  legislation must have universal application and it  does not  take away from the State the power to classify  persons for the purposes of legislation, but the classification must be  rational,  and  in order to satisfy this  test  (i)  the classification must be founded on an intelligible  differen- tia which distinguished those that are grouped together from others,   and  (ii) that  differentia must have  a  rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is  necessary

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is  that there must be a nexus between them.  But  the  mere fact that the inequality has not been made with the  special intention of prejudicing a particular person or persons  but in the general interest of administration will not  validate a law if in fact it results in inequality of treatment.  Nor can the constitutionality of a statute depend on the  degree of the inequality brought about by the law.     (2) Although the preamble to an Act cannot override  the plain  meaning of its operative parts, it  may  nevertheless assist in ascertaining what the true meaning or  implication of a particular section is; and the part of sec. 5 ( 1 )  of the Act which relates to "offences’ ’, "Classes of offences" and "classes of cases", construed in the light of the pream- ble,  does not confer an uncontrolled and unguided power  on the  State  Government,  but by  necessary  implication  and intendment  empowers the State to classify the  offences  or classes of offences or classes of cases, that is to say,  to make a proper classification having a relation to the object of the Act as recited in the preamble; and this part of sec. 5 (1) foes not therefore contravene Art. 14.     (3)  That  part of sec. 5(1) which  empowers  the  State Government  to direct "cases" as distinct from  "classes  of cases"  to  be cried by the Special Court  lies  beyond  the ambit  of the object aid down  by the preamble  and  contem- plates  and involves a purely arbitrary selection  based  on nothing more substantial 287 than  the whim and pleasure of the State Government  without any  appreciable  relation to the necessity for  a  speedier trial  and therefore offends against the provisions of  Art. 14 and is void.     Bose  J.--The test under Art. 14 is neither  classifica- tion nor whether there is absolute equality in any  academi- cal sense of the term but whether the collective  conscience of a sovereign democratic republic as reflected in the views of  fair-minded,  reasonable,  unbiassed men,  who  are  not swayed  by emotion or prejudice, can consider  the  impugned laws  as reasonable, just and fair and regard them  as  that equal  treatment and protection in the defence of  liberties which is expected of a sovereign democratic republic in  the conditions which obtain in India to-day.     PATANJALI   SASTRI C.J. (dissenting).--Section 5 (1)  of the  impugned Act is not void or unconstitutional wholly  or even in part because: (1)The words in the enacting part of a statute  must be confined to that which is the plain  object and general intention of the legislature in passing the  Act and  the preamble affords a good clue to discover what  that object  was.  The title and the preamble of the Act  in  the present  case  show unmistakably that the whole  object  and purpose of the Act was to devise machinery for the  speedier trial  of certain offences.  The discretion intended  to  be exercised  by  the State Government must be  exercised  bona fide  on a consideration of the special features or  circum- stances  which call for comparatively prompt disposal  of  a case or cases proposed to be referred and sec. 5 (11 must be read  as  empowering the Government to  direct  the  Special Court  to try such offences or classes of offences or  cases or  classes  of cases as in its judgment,  require  speedier trial.   (2)  Article 14 of the Constitution does  not  mean that all laws must be general in character and universal  in application.   The State must possess the power  of  distin- guishing  and classifying persons or things to be  subjected to particular laws and in making a classification the legis- lature  must  be allowed a wide latitude of  discretion  and judgment.   The  classification is justified if  it  is  not

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palpably  arbitrary  but is founded on  a  reasonable  basis having regard to the object to be attained. (3). The  powers of  the legislature must include the power of entrusting  an administrative body With a plenary but not arbitrary discre- tion  to be exercised so as to carry out the purpose of  the Act and the mere fact that the discretion might be exercised arbitrarily  by the administrative body cannot make the  law itself  unconstitutional.  (4)The impugned Act does  not  in terms  or  by implication discriminate  between  persons  or classes  of persons nor does it purport to deny to  any  one equality before the law or the equal protection of the laws. (5) Even from the point of view of reasonable classification the expediency of speedier trial is not too vague or indefi- nite  to be the basis of classification.  (6) The  notifica- tion  of  the Government in the present case  referring  the case to the Special Court did not contravene Art. 14 and  is not void inasmuch as there is nothing 288 to show that the Government was influenced by any  discrimi- natory  motive or design or acted arbitrarily,  but  on  the other hand there are obviously special  features which  mark off  the group of cases referred as requiring speedier  dis- posal.     Judgment of the Calcutta High Court affirmed.     Romesh  Tappar  v. The Stale of  Madras  ([1950]  S.C.R. 594),  Chintaman  Rao  v. State of  Madhya  Pradesh  ([1950] S.C.R. 759), Dr. Khare’s Case ([1950] S.C.R. 519), Chiranjit Lal  v.  Union of India and Others ([1950] S.C R.  869)  and Slate  of  Bombay v.F.N. Balsara ([1951]  S.C.R.  682),  ex- plained.     Truax  v.  Corrigan (257 U.S. 312), Yick Wo  v.  Hopkins (118  U.S.  356) and other American cases on  the  right  to equal protection of the laws considered.

JUDGMENT:     APPELLATE CIVIL JURISDICTION:  Cases Nos. 297 and 298 of 1951.     Appeals under Art. 132 (1) of the Constitution from  the judgment  and  order dated 28th August, 1951,  of  the  High Court of Judicature at Calcutta (Harries C.J., Chakravarthi, Das,  Banerjee  and S.R. Das Gupta JJ.)  in  Civil  Revision Cases  Nos. 942 and 1113 of 1951. The facts of the case  and the argument of Counsel appear fully in the judgment.     M.C. Setalvad, Attorney-General for India (B. Sen,  with him) for the appellant in Case No. 297.     Jitendra  Nath  Ghose (R. P. Bagchi, with him)  for  the respondent in Case No. 297.     A.A.  Peerbhoy  and J.B. Dadachanji for  Habib  Mohammad (Intervener).     V.  Rajaram  Iyer,  Advocate-General  of  Hyderabad  (R. Ganapathy Iyer,  with him)  for the State of Hyderabad.     A.R.  Sornanatha  Iyer, Advocate-General of  Mysore  (K. Ramaseshayya Choudhry, with him) for the State of Mysore. B. Sen, for the appellant in Case No. 298.     N.C. Chatterjee (S. K. Kapur, with him) for the respond- ent in Case No. 298.     1952.  January 11. The following judgments  were  deliv- ered. 289     PATANJALI SASTRI C.J.--This is an appeal by the State of West  Bengal  from a judgment of a Full Bench  of  the  High Court  of Judicature at Calcutta quashing the conviction  of the  respondent by the Special Court established under  sec-

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tion  3 of the West Bengal Special Courts  Ordinance,  1949, (Ordinance No. 3 of 1949) which was replaced in March, 1950, by  the West Bengal Special Courts Act, 1950,  (West  Bengal Act X of 1950) (hereinafter referred to as "the Act").     The  respondent and 49 other persons were  charged  with various  offences alleged to have been committed by them  in the  course  of  their raid as an armed gang  on  a  certain factory  known  as the Jessop Factory at Dum Dum,  and  they were  convicted and sentenced to varying terms of  imprison- ment  by  the Special Court to which the case was  sent  for trial by the Governor of West Bengal by a notification dated 26th  January, 1950, in exercise of the powers conferred  by section 5 (1) of the Act.  Thereupon the respondent  applied to the High Court under article 226 of the Constitution  for the  issue of a writ of certiorari quashing  the  conviction and  sentence  on the ground that the Special Court  had  no jurisdiction  to  try the case inasmuch as  section  5  (1), under which it was sent to that Court for trial, was  uncon- stitutional and void under article 13 (2)as it denied to the respondent  the  equal protection of the  laws  enjoined  by article 14. The High Court by a Full Bench consisting of the Chief  Justice and four other Judges quashed the  conviction and  directed  the  trial of the respondent  and  the  other accused persons according to law.  Hence the appeal.     The Act is intituled "An Act to provide for the speedier trial of certain offences ", and the preamble declares  that "it  is expedient to provide for the speedier trial of  cer- tain offences ". Section 3 empowers the State Government  by notification  in the official gazette to constitute  Special Courts,  and section 4 provides for the appointment of  spe- cial  judges to preside over such courts. Section  5,  whose constitutionality is impugned, runs thus: 290    "5(1)   A  Special  Court  shall  try  such  offences  or classes of cases, as the classes of offences or cases  State Government  may  by  general or special  order  in  writing, direct.   (2)  No.direction shall be made under sub-section (1)  for the  trial  of an offence for which an accused  person   was being tried at the commencement of this Act before any court but,  save as aforesaid, such direction may be made  in  re- spect  of  an offence, whether such’ offence  was  committed before or after the commencement of this Act."   Sections  6 to 15 prescribe the special   procedure  which the  court has to follow in the trial of the cases  referred to  it.  The main features of such procedure  which  mark  a departure from the established procedure for criminal trials under the Code of Criminal Procedure are the elimination  of the committal procedure in sessions cases and the  substitu- tion  of  the procedure laid down in the Code for  trial  of warrant  cases  by  the Magistrate, trial  without  jury  or assessors,  restriction  of the court’s  power  in  granting adjournments, special powers to deal with refractory accused and dispensation of de novo trial on transfer of a case from one special court to another. While some of these departures from  the  normal procedure might, in practice,  operate  in some respects to the disadvantage of persons   tried  before the  Special Court, it cannot be said that    they  derogate from  the essential requirements of a fair    and  impartial trial,  so as to give rise, from their very   nature, to  an inference  of a discriminatory design. In   other words,  it cannot  be said that the special procedure provided  in  the Act  is,  on its face, calculated   to  prejudice  the  fair trial  of persons subjected to it.   The departure  in  each case  is plainly calculated to   shorten the trial and  thus

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to attain the declared   objective of the statute.      Harries  C.J.  who  delivered  the  leading   judgment, which Das and Banerjee JJ. concurred, applied the   test  of what  may be called "reasonable classification"    and  held that, although the need for a speedier trial   than what  is possible under the procedure prescribed 291 by the Code of Criminal Procedure might form the basis of  a reasonable  classification  and section 5 (1) could  not  be regarded  as discriminatory in so far as it  authorises  the State Government to direct that certain offences or  classes of offences or classes of cases should be tried by a special court,  the  provision was discriminatory and  violative  of article 14 of the Constitution in so far as it purported  to vest  in  the State  Government an  absolute  and  arbitrary power  to refer to a special court for trial "any  cases  ", which must include an individual case, "whether the duration of  such a case is likely to be long or not ".  The  learned Chief Justice rejected the argument that the word "cases" in the sub-section should, in view of the title and preamble of the  Act. be construed as meaning cases  requiring  speedier trial."  He  found it" impossible to cut  down   the   plain meaning  of  the  word ’cases’ as used in the section".   He realised that "the powers under the sub-section could be  so exercised  as not to involve discrimination, but  they  also could,  in my view, be exercised in a manner involving  dis- crimination.  When  an  Act gives power which  may  and  can offend against a provision or provisions of the Constitution such  an Act is ultra vires though it could be  administered so as not to offend against the Constitution", and he relied in  support  of  this view on certain  observations  in  the judgment of the majority in the Crossroads case(1).     Chakravartti  and Das JJ. delivered  separate  judgments agreeing with the conclusion of the Chief Justice, Das Gupta J,,  however, going further and holding that section  5  (1) was unconstitutional in its entirety inasmuch as "the  clas- sification  sought to be made on the expediency of  speedier trial is not a well-defined classification. It is too indef- inite and there can hardly be any definite objective test to determine it."     Before  considering whether section 5(1)  infringes,  to any  and what extent, the constitutional  prohibition  under article 14, it is necessary to ascertain the true scope  and intendment of the impugned provision.  It (1) [1950] S C.R. 594. 603. 292 purports to provide for the matters to be tried by a special court  and  does not, in form, seek to define  the  kind  or class  of  offences or cases which the State  Government  is empowered under the Act to assign to such a court for trial. In  other words, the purpose of section 5 (1) is  to  define the jurisdiction of a special court appointed under the  Act and  not the scope of the power conferred on the State  Gov- ernment to refer cases to such court. As the very object  of the Act was to provide for speedier trials by instituting  a system  of  special courts with a simplified  and  shortened procedure, it is reasonable to conclude that, so far as  the legislature  was  concerned, its intention was  that  courts constituted under the Act and applying such procedure should deal  only  with cases requiring speedier  trial  and  that, accordingly,  the  State  Government should  refer  to  such courts  only  cases of that description.  The  principle  of construction  applicable  here  is  perhaps  nowhere  better stated than by Lord Tenterden C.J. in Halton v. Cove(1): "It is  very  true, as was argued for the  plaintiff,  that  the

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enacting words of an Act of Parliament are not always to  be limited by the words of the preamble, but must in many cases go  beyond it. Yet, on a sound construction of every Act  of Parliament, I take it the words of the enacting part must be confined  to  that  which is the plain  object  and  general intention  of the legislature in passing the Act,  and  that the  preamble  affords  a good clue to  discover  what  that object was".  The  same view was  expressed by Holmes J.  in an  American case, Carroll v. Greenwich Insc. Co. (2).  "The object  of the law, we assume, until the lower  Court  shall decide otherwise, is single-to keep up competition--and  the general language is to be restricted by the specific  provi- sions and to the particular end." The title and the preamble as well as the other specific provisions of the Act here  in question show unmistakably that the whole object and purpose of  the  legislation was to devise machinery  for  "speedier trial of certain offences", (which must mean trial of  cases involving the commission of certain (1) (1830) I B. & Ad. 538, 558.      (2) 199 U.S. 401. 293 offences as there can, of course, be no trial of offences in the abstract) and the general expressions used in  providing for  the  power to set that machinery in operation  must  be restricted  to that end in accordance with the intention  of the legislature; for, a literal construction of the  general language  would  impute to the legislature an  intention  to confer an arbitrary power of reference which would be incon- sistent not only with the declared object of the statute but also with the constitutional prohibition against discrimina- tion, which the legislature must be taken to have been aware of when it deliberately re-enacted the provisions of the old Ordinance.  The discretion vested in the State Government in selecting cases for reference to a special court may not  be subject to judicial review and may, in that sense, be  abso- lute,  but  that is very different from saying that  it  was intended  to be arbitrary.  Its exercise must  involve  bona fide  consideration  of special  features  or  circumstances which  call for a comparatively prompt disposal of the  case or cases proposed to be referred.  In other words, section 5 (1)  must,  in my opinion, be read as empowering  the  State Government to direct a special court to try such offences or classes of offences or cases or classes of cases as, in  its judgment, require speedier trial.     The  question next arises as to whether  the  provision, thus  understood, violates the prohibition under article  14 of  the Constitution.  The first part of the article,  which appears to have been adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within  the  territories of India and  thus  enshrines  what American  Judges regard as the "basic principle of  republi- canism" [cf. Ward v. Flood (1)].  The second part which   is a corollary of the first and is based on the last clause  of the first section of the Fourteenth Amendment of the  Ameri- can  Constitution,  enjoins that equal protection  shall  be secured to all such persons in the enjoyment of their rights and  liberties without discrimination or favouritism, or  as an American Judge put it "it is a (1) 17 Am. Rep.405. 294 pledge of the protection of equal laws" [Yick Wo v.  Hopkins (1)], that is, Jaws that operate alike on all persons  under like circumstances. And as the prohibition under the article is  directed against the State, which is defined in  article 12  as  including  not only the legislatures  but  also  the Governments  in the country, article 14 secures all  persons

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within  the territories of India against arbitrary  laws  as well as arbitrary application of laws. This is further  made clear  by defining "law" in article 13 (which  renders  void any law which takes away or abridges the rights conferred by Part  III) as including, among other things, any "order"  or "notification",  so that even executive orders or  notifica- tions  must not infringe article 14.  This trilogy of  arti- cles thus ensures non-discrimination in State action both in the legislative and the administrative spheres in the  demo- cratic  republic of India. This, however, cannot  mean  that all  laws  must  be general in character  and  universal  in application.  As pointed out in Chiranjit Lal’s case(2)  and in  numerous American decisions dealing with the equal  pro- tection  clause  of  the 14th Amendment, the  State  in  the exercise  of its governmental power must of  necessity  make laws operating differently on different groups or classes of persons  within its territory to attain particular  ends  in giving effect to its policies, and it must possess for  that purpose  large  powers  of  distinguishing  and  classifying persons or things to be subjected to such laws. But  classi- fication necessarily implies discrimination between  persons classified and those who are not members of that class.  "It is the essence of a classification" said Mr. Justice  Brewer in Atchison, Topeka & Santa Fe R. Co. v. Matthews (3), "that upon  the class are cast duties and burdens  different  from those resting upon the general public. Indeed the very  idea of  classification  is that of inequality, so that  it  goes without saying that the mere fact of inequality in no manner determines this matter of constitutionality".  Commenting on this  observation  in his dissenting opinion in  Connoly  v. Union Sewer Pipe Co. (4) (which later prevailed in Tigner v.  (1).118 U.S. 356, 369.            (3) 174 U.S. 96, 106.  (2) [1950] S.C.R. 869.          (4) 184 U.S. 540. 566, 567, 568. 295 Texas(1)) Mr. Justice McKenna posed a problem and  proceeded to  answer it. "It seems like a contradiction to say that  a law  having equality of operation may yet give  equality  of protection.  Viewed  rightly,  however,  the   contradiction disappears......   Government  is not a  simple  thing.   It encounters  and must deal with the problems which come  from persons in an infinite variety of relations.  Classification is the recognition of those relations, and, in making it,  a legislature  must be allowed a wide latitude  of  discretion and judgment......  Classification based on those  relations need not be constituted by an exact or scientific  exclusion or  inclusion of persons or things.  Therefore it  has  been repeatedly  declared that classification is justified if  it is not palpably arbitrary".  (italics mine.)     Thus,  the  general language of article 14,  as  of  its American  counterpart,  has been greatly  qualified  by  the recognition  of  the State’s regulative power to  make  laws operating differently on different classes of persons in the governance of its subjects, with the result that the princi- ple  of equality of civil rights and of equal protection  of the  laws  is only given effect to as  a  safeguard  against arbitrary State action. It follows that in adjudging a given law as discriminatory and unconstitutional two aspects  have to  be considered. First, it has to be seen whether  it  ob- serves  equality  between all the persons on whom it  is  to operate. An affirmative finding on the point may not, howev- er,  be decisive of the issue.  If the impugned  legislation is  a  special  law applicable only to a  certain  class  of persons, the court must further enquire whether the  classi- fication  is founded on a reasonable basis having regard  to

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the  object to be attained, or is arbitrary. Thus, the  rea- sonableness  of classification comes into question  only  in those  cases where special legislation affecting a class  of persons  is  challenged as discriminatory.   But  there  are other  types of legislation such as, for instance, the  Land Acquisition Act, which do not rest on classification, and no question of reasonable classification could fairly arise  in respect of such (1) 310 U.S. 141, 296 enactments.  Nor, obviously, could it  arise  when executive orders  or notifications  directed against individual  citi- zens are assailed as discriminatory.     It  is  interesting  to find that the  trend  of  recent decisions  in America has been to lean strongly toward  sus- taining  State  action both in the legislative  and  in  the administrative  spheres  against attacks  based  on  hostile discrimination.  Classifications condemned as discriminatory have been subsequently upheld as being within the powers  of the legislature.  In Tigner v. Texas (1), the  majority view in  Connolly’s case(2) holding that an  Illinois  anti-trust law,  which made certain forbidden acts criminal if done  by merchants  and manufacturers  but declared them to be  civil wrongs  if  done by  farmers and  stockmen, was  "manifestly a denial of the equal protection of the laws ") was  consid- ered to be no-longer "controlling ". While in Gulf, Colorado &  Santa Fe R. Co. v. Ellis (3) a Texas statute imposing  an attorney’s  fee in addition to costs upon  railway  corpora- tions which unsuccessfully defended actions for damages  for stock  killed or injured by their train was struck  down  as discriminatory  because such corporations could not  recover any  such  fee if their defence was  successful,  a  similar provision  in  a  Kansas statute in  respect  of  an  action against  railroad  companies for damages by fire  caused  by operating the rail-road was upheld as not discriminatory  in Atchison,  Topeka  &  Santa Fe R. Co v.  Matthews  (4),  the earlier case being distinguished on some ground which Harlon J.  in his dissenting opinion confessed he was  not  "astute enough  to  perceive". And the latest decision in  Kotch  v. Pilot  Comm’rs(5) marks, perhaps, the farthest swing of  the pendulum.  A Louisiana pilotage law authorised the  appoint- ment     of State pilots only upon certification by a  State Board of river pilot commissioners who were themselves State Pilots.  Among the prescribed qualifications was apprentice- ship under a State pilot for a certain period.  By admitting only their relatives and friends  (1) 310 U.S. 141.              (4) 174 U.S. 96.  (2) 184 U.S. 540.              (5) 330 U.S. 552,  (3) 165 U.S. 666. 297 to apprenticeship, the members of the board made it impossi- ble, with occasional exceptions, for others to be  appointed as State pilots. Upholding the constitutionality of the  law as  well  as the manner in which it  was  administered,  the Court  said:   "The constitutional command for  a  State  to afford equal protection of the laws sets a goal not  attain- able by the invention and application of a precise  formula. This  Court has never attempted that impossible task. A  law which affects the activities of some groups differently from the  way in which it affects the activities of other  groups is not necessarily banned by the 14th Amendment.  Otherwise, effective  regulation  in the public interest could  not  be provided, however essential that regulation might be."     These decisions seem, to my mind, to reveal a change  of approach  marked  by an increasing respect for  the  State’s

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regulatory power in dealing with equal protection claims and underline  the  futility of wordy formulation of  so  called "tests" in solving problems presented by concrete cases.     Great  reliance was placed on behalf of  the  respondent upon  the  decision in Truax v. Corrigan(1) and Yick  Wo  v. Hopkins(2). In the former case it was held by a majority  of 5:4  that a law which denied the remedy of injunction  in  a dispute  between employer and his ex-employees was a  denial of  the equal protection of laws, aS such a remedy  was  al- lowed  in  all other cases. But it is to be noted  that  the minority, which included Holmes and Brandeis JJ.,  expressed the  opinion  that it was within the power of the  State  to make such differentiation and the law was perfectly  consti- tutional.  The  legislation was obviously  applicable  to  a class of persons and the decision was an instance where  the classification  was held to be arbitrary and is not of  much assistance  to  the  respondent.  In the other  case  a  San Francisco  Ordinance, which prohibited the carrying on of a laundry  business  within  the limits of  the  City  without having first obtained the consent of   (1) 257 U.S. 312.                 (2) 118 U.S. 356.   39 298 the Board of Supervisors unless it was located in a building constructed  of brick or stone, was held discriminatory  and unconstitutional.   The  undisputed facts disclosed  in  the record were that out of 320 laundries in San Francisco about 310 were constructed of wood, and about 240 of the 320  were owned and conducted by subjects of China.  The petitioner, a chairman,  and  about 200 of his countrymen applied  to  the Board of Supervisors to continue their clotheswashing  busi- ness  in wooden buildings which they had been occupying  for many  years, but in all cases licence was  refused,  whereas not  a single one of the petitions presented by  80  persons who  were not subjects of China had been  refused.   Dealing with these facts the court observed: "Though the law  itself be  fair on its face and impartial in appearance, yet if  it is applied and administered by public authority with an evil eye and an unequal hand so as to practically make unjust and illegal  discrimination between persons in  similar  circum- stances,  material  to  their rights, the  denial  of  equal justice   is   still   within   the   prohibition   of   the Constitution."  (Italics mine).  It is to be noted that  the law  was "administered", i.e., not merely applied in  a  few stray  cases,  but  regularly  and  systematically  applied, making  a hostile discrimination against a particular  class of  persons on grounds of race and colour.  Such  systematic discriminatory  administration in practice of the  ordinance though impartial on its face, was, evidently, taken to  give rise to the inference that it was designed to be so adminis- tered. That is how the decision has been explained in  later cases.   For instance, in Atchison Topeka & Santa Fe R.  Co. v. Matthews"(1) it  was said "In that  case (Yick Wo’s  case (2))  a  municipal ordinance of San  Francisco  designed  to prevent  the Chinese from carrying on the  laundry  business was  adjudged  void.  This  Court  looked  beyond  the  mere letter  of the ordinance to the condition of things as  they existed in San Francisco and saw under the guise of  regula- tion  an  arbitrary classification was intended  and  accom- plished" (Italics raine). (1) 174 U.S. 96, 105.               (2) 118 U.S. 356. 299 That  is  to say, the ordinance was what the  Privy  Council called a "colourable legislative expedient" which, under the "guise  or pretence" of doing what is constitutionally  per-

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missible, "in substance and purpose seeks to effect discrim- ination": Morgan Proprietary Ltd. v. Deputy Commissioner  of Taxation for New South Wales (1).  Thus explained, the  Yick Wo  case is no authority for the view that the vesting in  a public authority of a discretion which is liable to abuse by arbitrary  exercise contrary to its intendment is  a  suffi- cient ground for condemning a statute as discriminatory  and unconstitutional.     On  the  other  hand, there is ample  authority  in  the American  decisions for the view that the necessarily  large powers   vested in a legislature must include the  power  of entrusting  to  an  administrative body a  plenary  but  not arbitrary discretion to be exercised so as to carry out  the purpose  of  an enactment. In Engel v. O’ Malley (2)  a  New York  statute  prohibiting individuals  or  partnerships  to engage in the business of receiving deposits of money  with- out a licence from the controller "who may approve or disap- prove  the application for a licence in his discretion"  was sustained as constitutional.  In answer to the argument that the controller might refuse a licence on his arbitrary whim, Holmes  J.  said: "We should suppose that in each  case  the controller  was expected to act for cause.  But  the  nature and  extent of the remedy, if any, for a breach of  duty  on his part, we think it unnecessary to consider; for the power of the state to make the pursuit of a calling dependent upon obtaining  a licence is well established where safety  seems to require it."     In New York ex rel. Lieberman v. Van De Carr(3) a provi- sion  in  the Sanitary Code of the City of New  York  vested discretion  in  Local  Health Boards to  grant  or  withhold licences for carrying on milk business in the City.  Uphold- ing the constitutionality of the  (1) [1940] A.C. 838, 858.            (3) 199 U.S. 552.  (2) 219 U.S. 128. 300 provision, Day J. observed after referring to certain  prior decisions :--     "These cases leave in no doubt the proposition that  the conferring of discretionary power upon administrative boards to  grant  or  withhold permission to carry on  a  trade  or business  which is the proper subject of  regulation  within the  police  power of the state is not violative  of  rights secured by the 14th Amendment. There is no presumption  that the  power  will be arbitrarily exercised, and  when  it  is shown  to  be thus exercised against the  individual,  under sanction of state authority, this court has not hesitated to interfere for his protection, when the case has come  before it  in  such manner as to authorise the  interference  of  a Federal Court."     And  Holmes  J. added that, although it did  not  appear from the statute that the action of the Board of Health  was intended  to be subject to judicial revision as to its  rea- sonableness,  he agreed that it was not hit at by  the  14th Amendment.     In the light of the foregoing discussion, it seems to me difficult to hold that section 5 (1) in whole or in part  is discriminatory. It does not, either in terms or by necessary implication,  discriminate as between persons or classes  of persons;  nor  does it purport to deny to any  one  equality before the law or the equal protection of the laws.  Indeed, it  does  not by its own force make  the  special  procedure provided  in the Act applicable to the trial of any  offence or  classes of offences or classes of cases; for, it is  the State  Government’s  notification  under  the  section  that attracts  the  application of the procedure.   Nor  is  that

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procedure,  as  I have endeavoured to  show,  calculated  to impair the chances of a fair trial of the cases to which  it may  be  made applicable, and no  discriminatory  intent  or design  is discernible on its face, unless  every  departure from  the normal procedure is to be regarded as involving  a hostile discrimination. I have already held, as a matter  of construction,  that section 5 (1)vests a discretion  in  the State Government to refer to a special court for trial  such offences or classes of offences or 301 cases or classes of cases as may, in its opinion, require  a speedier  trial.  Such discretion the  State  Government  is expected  to exercise honestly and reasonably, and the  mere fact  that it is not made subject to judicial review  cannot mean  that it was intended to be exercised in  an  arbitrary manner  without reference to the declared object of the  Act or, as Harries C.J. put it, "whether the duration of a  case is  likely  to be long or not."  In the face  of  all  these considerations, it seems to me difficult to condemn  section 5 (1) as violative of article 14. If the discretion given to the  State  Government  should be  exercised  improperly  or arbitrarily, the administrative action may be challenged  as discriminatory,  but it cannot affect the  constitutionality of  the law.  Whether a law conferring discretionary  powers on an administrative authority is constitutionally valid  or not  should  not be determined on the assumption  that  such authority will act in an arbitrary manner in exercising  the discretion committed to it. As observed by Kania C.J. in Dr. Khare’s  case(1),  "It  is improper to start  with  such  an assumption and decide the legality of an Act on that  basis. Abuse of power given by law sometimes occurs; but the valid- ity of the law cannot be contested because of such an appre- hension."  On  the  contrary, it is to be  presumed  that  a public  authority  will act honestly and reasonably  in  the exercise of its statutory-powers, and that the State Govern- ment in the present case will, before directing a case to be tried by a Special Court, consider whether there are special features  and circumstances which might unduly protract  its trial  under  the  ordinary procedure and mark  it  off  for speedier trial-under the Act.     But  it was said that the possibility of the  Act  being applied  in an unauthorised and arbitrary manner was  suffi- cient to make it unconstitutional according to the decisions of this Court in Romesh Thapar v. The State of Madras(2) and Chintaman Rao v. The State of Madhya Pradesh (3). It will be recalled that this was the main   (1) [1950] S.C.R. 519, 526.      (3) [1950] S.C.R. 759.   (2) [1950] S.C.R. 594. 302 ground on which the learned Judges in the High Court  rested their decision. With respect, those decisions have, I think, no  application here. In Romesh Thapar’s case the  constitu- tionality of a provincial enactment purporting to  authorise the  Provincial Government to regulate the circulation of  a news-sheet  in  the Province of Madras for  the  purpose  of "securing  the  public safety or the maintenance  of  public order" was challenged as being inconsistent with the   peti- tioner’s fundamental right to freedom of speech and  expres- sion conferred by article 19(1)(a) of the Constitution.  But the  only relevant constitutional limitation on  freedom  of speech was that the State could make a law directed  against the  undermining of the security of the State or  the  over- throw of it, and  as the impugned enactment covered a  wider ground  by authorising curtailment of that freedom  for  the purpose of securing the public safety or the maintenance  of

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public  order, this Court held it to be  wholly  unconstitu- tional and void, observing :-     "Where  a  law purports to authorise the  imposition  of restrictions on a fundamental right in language wide  enough to cover restrictions both within and without  the limits of constitutionally   permissible legislative action  affecting such  right, it is not possible to uphold it even so far  as it may be applied within the constitutional limits, as it is not  severable.  So  long as the possibility  of  its  being applied  for  purposes not sanctioned  by  the  Constitution cannot be ruled out, it must be held to be wholly  unconsti- tutional and void.  In other words, clause (2) of article 19 having allowed the imposition of restrictions on the freedom of  speech and expression only in cases where danger to  the State is involved, an enactment, which  is capable of  being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent."     This  passage, which was relied on by the learned  Chief Justice,  lends  no  support to the  view   that  the   mere possibility   of an Act being used in a manner  not  contem- plated by the legislature, though 303 such  use  may not be subject to judicial   review  on  that ground,  or,  in other words, the mere  possibility  of  its abuse in practice  would justify its condemnation as  uncon- stitutional.   The important distinction is that  in  Romesh Thapar’s  case, the impugned enactment, having  been  passed before the commencement of the Constitution, did contemplate the  use  to  which it was actually put, but  such  use  was outside  the permissible constitutional restrictions on  the freedom of speech, that is to say, the Act was not condemned on the ground of the possibility of its being abused but  on the ground that even the contemplated and authorised use was outside the limits of constitutionally permissible  restric- tions.  The same remarks apply to the other decision  relied on.   The observations of Kania C.J. quoted  above  indicate the correct approach.     Even  from the point of view of  reasonable  classifica- tion, I can see no reason why the validity of the Act should not  be  sustained.  As already pointed out,  wide  latitude must be allowed to a legislature in classifying persons  and things  to be brought under the operation of a special  law, and  such  classification need not be based on an  exact  or scientific exclusion or inclusion.  I cannot share the  view of  Das  Gupta J. that the expediency of speedier  trial  is "too  vague and indefinite" to be the basis of a  "well  de- fined" classification. Legislative judgment in such  matters should  not  be canvassed by  courts   applying  doctrinaire "definite objective tests".  The Court should not insist  in such  cases  on what Holmes J. called  "delusive  exactness" (Truax v. Corrigan, supra).  All that the court is  expected to see, in dealing with equal protection claims, is  whether the  law  impugned  is "palpably  discriminatory",  and,  in considering  such  a question great weight ought to  be  at- tached to the fact that a majority of the elected  represen- tatives  of  the people who made the law did not  think  so, though  that is not, of course, conclusive. They alone  know the  local conditions and circumstances which  demanded  the enactment  of  such a law  and it must  be  remembered  that "legislatures are ultimate guardians of the liberties and 304 welfare  of  the people in quite as great a  degree  as  the Courts" (per Holmes J. in Missouri K. & T.R. Co. v.  Mary(1) ).   After  all,  what the Legislature of  West  Bengal  has sought  to  do by passing this Act is to  regulate  criminal

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trials within  its  territories  by instituting a system  of special  courts with a shortened and  simplified  procedure, without  impairing the requirements of a fair and  impartial trial,  which  is  to be made applicable to  such  cases  or classes of cases as, in the opinion of the executive govern- ment,  require  speedier  disposal.   I do  not  think  that article  14 denies to the State Legislature such  regulative power. (of. Missouri v. Lewis (1)).  To sustain a law as not being  discriminatory  is not, however, to leave  the  party affected by a discriminatory application of the law  without a remedy, for, as we have seen, state action on the adminis- trative  side  can also be challenged as a denial  of  equal protection  and  unconstitutional.    That  brings us to the consideration of the  validity  of the  notification issued in the present case. In Snowden  v. Hughes (2) it was laid down that’ ’the unlawful  administra- tion  by State officers of a State statute fair on its  face resulting  in  its  unequal application to  those  who  were entitled  to be treated alike is not a denial of equal  pro- tection unless there is shown to be present in it an element of  intentional  or  purposeful  discrimination.   This  may appear  on  the face of the action taken with respect  to  a particular  class or person or it may only be shown  by  ex- trinsic evidence  showing a discriminatory design to  favour one  individual or a class over another not to  be  inferred from the action itself. But a discriminatory purpose is  not presumed;  there must be a showing of clear and  intentional discrimination’’.   No attempt has been made in the  present case  to prove that the State Government was  influenced  by any discriminatory motive or design. On the other hand,  the facts  appearing  on the record would seem  to  justify  the reference  of the case to the special court for trial.    As pointed out by Chakravartti J.   (1) 101 U.S. 22.         (2) 321 U.S. I. 305     "The notification by which the case of Anwar Ali  Sirkar (the  respondent  herein) was directed to be  tried  by  the special court did not relate merely to that case but covered five more cases in each of which the accused were several in number.  In  Anwar Ali’s case itself, there  were  49  other accused.  All these cases related to the armed raid  on  the premises  of Jessop & Co. in the course of which  crimes  of the utmost brutality were committed on a large scale and  to incidents  following the raid. There can be no  question  at all that the cases were of a very exceptional character  and although the offences  committed were  technically  offences defined  in the Indian Penal Code, the Indian Arms  Act  and the High Explosives Act, it would be futile to contend  that the  offenders  in  these cases were of the  same  class  as ordinary criminals, committing the same offences or that the acts  which  constituted the offences were of  the  ordinary types.....  All these cases again have arisen out of serious disturbances which, according to the prosecution, partook of the nature of an organised revolt."     In view of these facts it seems to me impossible to  say the  State Government has acted arbitrarily or with  a  dis- criminatory  intention in referring these cases to the  Spe- cial  Court, for there are obviously special features  which mark  of this group of cases as requiring speedier  disposal than would be possible under the ordinary procedure, and the charge of discriminatory treatment must fail.     I would allow this appeal as also Appeal No. 298 of 1951 (The  State of West Bengal v. Gajen Mali) which  raises  the same questions.      FAZL  ALl J.--I have come to the conclusion that  these

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appeals  should  be dismissed, and since that  is  also  the conclusion  which has been arrived at by several of my  col- leagues and they have written very full and elaborate  judg- ments  in support of it, I shall only supplement  what  they have said by stating briefly how I view some of the  crucial points arising in the case. 40 306     There  is no doubt that the West Bengal  Special  Courts Ordinance,  1949,  which was later replaced by the  impugned Act (West Bengal Special Courts Act X of 1950, to be herein- after referred to as "the Act"), was a valid Ordinance  when it was promulgated on the 17th August, 1949.  The Act, which came  into  effect on the 15th March, 1950,  is  a  verbatim reproduction  of the earlier Ordinance, and what we have  to decide  is whether it is invalid because it offends  against article  14 of the Constitution. In dealing with this  ques- tion, the following facts have to be borne in mind:--     (1) The framers of the Act have merely copied the provi- sions  of the Ordinance of 1949 which was  promulgated  when there was no provision similar to article 14 of the  present Constitution.     (2)  The  provision of the American  Constitution  which corresponds to article 14 has, ever since that  Constitution has been in force, greatly exercised the minds of the Ameri- can  Judges, who, notwithstanding their efforts to  restrict its  application within reasonable limits, have had  to  de- clare a number of laws and executive acts to be  unconstitu- tional.  One is also amazed at the volume of case-law  which has  grown round this provision, which shows the  extent  to which  its  wide  language can be stretched  and  the  large variety of situations in which it has been invoked.     (3)  Article  14  is as widely worded as,  if  not  more widely worded than, its counterpart in the American  Consti- tution,  and is bound to lead to some  inconvenient  results and seriously affect some pre-Constitution laws.     (4)  The  meaning  and scope of article  14  have  been elaborately  explained  in  two earlier  decisions  of  this Court,  viz., Chiranjit Lal Chowdhury v. The Union of  India and  Others (1) and The State of Bombay and  Another  v.F.N. Balsara C), and the principles laid down in those  decisions have  to be kept in view in deciding the present case.   One of  these principles is that article 14 is designed to  pro- tect  all  persons placed in similar  circumstances  against legislative  discrimination,  and if the  legislature  takes care to (1) [1950] S.C.R. 869.           (2) [1951] S.C.R. 682. 307 reasonably classify persons for legislative purposes and  if it  deals equally with all persons belonging to  a  well-de- fined class, it is not open to the charge of denial of equal protection  on  the ground that the law does  not  apply  to other persons.     (5) There is nothing sacred or sacrosanct about the test of reasonable classification, but it has undoubtedly  proved to  be a useful basis for meeting attacks on laws and  offi- cial  acts  on the ground of infringement  of  the  equality principle.     (6)  It follows from the two foregoing  paragraphs  that one  of the  ways in which  the impugned Act can be saved is to  show that it is based on a reasonable classification  of the persons to whom or the offences in respect of which  the procedure  laid  down  in it is to apply, and  hence  it  is necessary to ascertain whether it is actually based on  such a classification.

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   With these introductory remarks, I will proceed to  deal with some of the more important aspects of the case.     The  first thing to be noticed is that the  preamble  of the  Act mentions speedier trial of certain offences as  its object.   Now  the framers of the  Criminal  Procedure  Code (which  is hereinafter referred to as "the Code") also  were alive  to the desirability of having a speedy trial in  cer- tain  classes of cases, and with this end in view they  made four  different  sets of provisions for the  trial  of  four classes of cases, these being provisions relating to summary trials,  trial of summons cases, trial of warrant cases  and trial of cases triable by a court of session. Broadly speak- ing, their classification of the offences for the purpose of applying these different sets of provisions was according to the  gravity  of  the offences, though  in  classifying  the offences  fit for summary trial the experience and power  of the trying Magistrate was also taken into consideration. The net  result of these provisions is that offences  which  are summarily  triable can be more speedily tried  than  summons cases, summons cases can be more speedily tried than warrant cases,  and  warrant cases can be more speedily  tried  than sessions cases.  The 308 framers  of  the Code appear to have been generally  of  the view  that the graver the offence the more elaborate  should be  the  procedure for its trial, which was  undoubtedly  an understandable point of view, and no one has suggested  that their  classification  of offences for  the  four  different modes of trial to which reference has been made is unreason- able in any sense.        The impugned Act has completely ignored the principle of  classification followed in the Code and it  proceeds  to lay  down  a  new procedure without making  any  attempt  to particularize or classify the offences or cases to which  it is to apply.  Indeed section 5 of the Act, which is the most vital  section, baldly states that the "Special Court  shall try such offences or classes of offences or cases or classes of cases, as the State Government may,by general or  special order  in writing direct". I agree with my learned  brothers that  to  say that the reference to speedier  trial  in  the preamble  of  the Act is the basis of classification  is  to read into the Act something which it does not contain and to ascribe to its authors what they never intended.  As I  have already  stated, the Act is a verbatim copy of  the  earlier Ordinance  which was framed before the present  Constitution came  into force, and article 14 could not have been  before the  minds of those who framed it because that  Article  was not then in existence.       The second point to be noted is that in consequence of the  Act, two procedures, one laid down in the Code and  the other  laid down in the Act, exist side by side in the  area to  which the Act applies, and hence the provisions  of  the Act are apt to give rise to certain anomalous results;  some of which may be stated as follows :--       (1)  A  grave offence may be tried  according  to  the procedure  laid down in the Act, while a less grave  offence may  be  tried according to the procedure laid down  in  the Code.       (2)  An accused person charged with a  particular  of- fence  may  be  tried under the Act  while  another  accused person charged with the same offence may be tried under  the Code. 309     (3) Certain offences  belonging to a particular group or category  of  offences may be tried under  the  Act  whereas

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other  offences belonging to the same group or category  may be tried under the Code.     Some  of my learned colleagues have examined the  provi- sions  of the Act and shown that of the two  procedures  one laid  down in the Act and the other in the Code--the  latter affords greater facilities to the accused for the purpose of defending  himself  than the former; and once it  is  estab- lished  that one procedure is less advantageous to  the  ac- cused  than the other, any person tried by a  Special  Court constituted  under the Act, who but for the Act  would  have been  entitled to be tried according to the  more  elaborate procedure  of  the Code, may legitimately  enquire:--Why  is this  discrimination being made against me and why should  I be  tried  according to a procedure which has not  the  same advantages  as the normal procedure and which  even  carries with  it the possibility of one’s being prejudiced in  one’s defence ?     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  diffi- culty.  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 author- ity  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  "insid- ious discrimination complained of is incorporated in the Act itself", it being so  drafted that whenever  any 310 discrimination  is made such discrimination would  be  ulti- mately  traceable to it.  The Act itself lays down a  proce- dure  which  is less advantageous to the  accused  than  the ordinary  procedure, and this fact must in all cases be  the root-cause  of  the discrimination which may result  by  the application of the Act.     In  the course of the arguments, it was  suggested  that the  Act is open to criticism on two different and  distinct grounds, these being--,     (1) that it involves excessive delegation of legislative authority amounting to its abdication in so far as it  gives unfettered discretion to the executive, without laying  down any  standards  or  rules of guidance, to make  use  of  the procedure laid down by it; and     (2)  that it infringes article 14 of  the  Constitution. The  first criticism which is by no means  an  unsubstantial one, may possibly be met by relying on the decision of  this Court  in Special Reference No. 1 of 1951, In re Delhi  Laws Act,  1912, etc.(1), but the second criticism cannot  be  so easily met, since an Act which gives uncontrolled  authority to discriminate cannot but be hit by article 14 and it  will be no answer simply to say that the legislature having  more or less the unlimited power to delegate has merely exercised that power.  Curiously enough, what I regard as the  weakest point  of the Act (viz., its being drafted in  such  general terms)  is  said to be its main strength and  merit,  but  I really cannot see how the generality of language which gives unlimited authority to discriminate can save the Act.

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   In  some American cases, there is a reference  to  "pur- poseful  or intentional discrimination", and it  was  argued that unless we can discover an evil intention or a  deliber- ate design to mete out unequal treatment behind the Act,  it cannot  be  impugned.  It should be noted however  that  the words which I have put in inverted commas, have been used in a  few American cases with reference only to  executive  ac- tion, where certain Acts were found to be innocuous but they were (1) [1951] S.C.R. 747. 311 administered  by public authority with "an evil eye  and  an unequal hand."  I suggest most respectfully that it will  be extremely unsafe to lay down that unless there was  evidence that  discrimination  was "purposeful  or  intentional"  the equality clause would not be infringed.  In my opinion,  the true position is as follows :--As a general rule, if the Act is fair and good, the public authority who has to administer it will be protected.  To this general rule, however,  there is  an exception, which comes into play when there  is  evi- dence  of  mala fides in the application of  the  Act.   The basic question however still remains whether the Act  itself is  fair and good, which must be decided mainly with  refer- ence  to  the specific provisions of the Act. It  should  be noted that there is no reference to intention in article  14 and  the gravamen of that Article is equality of  treatment. In  my opinion, it will be dangerous to introduce a  subjec- tive  test  when the Article itself lays down  a  clear  and objective test.     I must confess that I have been trying hard to think how the Act can be saved, and the best argument that came to  my mind in support of it was this :--The Act should be held  to be  a good one, because it embodies all the essentials of  a fair and proper trial, namely, (1) notice of the charge, (2) right to be heard and the right to test and rebut the prose- cution evidence, (3) access to legal aid, and (4)trial by an impartial  and experienced court.  If these are  the  requi- sites,  so   I  argued with myself, to  which  all   accused persons  are  equally  entitled,  why  should  a  particular procedure which ensures all those requisites not be  substi- tuted for another procedure, if such substitution is  neces- sitated by administrative exigencies or is in public  inter- est, even though the new procedure may be different from and less elaborate than the normal procedure.  This seemed to me to be the best argument in favour of the Act but the more  I thought  of it the more it appeared to me that it was not  a complete  answer  to  the problem before us.  In  the  first place,  it brings in the "due process" idea of the  American Constitution, which our Constitution has 312 not  chosen  to adopt.  Secondly, the Act  itself  does  not state  that public  interest and  administrative  exigencies will  provide the occasion for its application. Lastly,  the discrimination involved in the application of the Act is too evident to be explained away.     The framers of the Constitution have referred to equali- ty  in the Preamble, and have devoted as many as five  arti- cles, namely, articles 14, 15, 16.17, and 18 in the  Chapter on  Fundamental  Rights, to ensure equality in all  its  as- pects.  Some of these Articles are confined to citizens only and  some  can be availed of by non-citizens  also;  but  on reading  these provisions as a whole, one can see the  great importance  attached  to the principle of  equality  in  the Constitution.   That being so, it will be wrong  to  whittle down the meaning of article 14, and however well-intentioned

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the  impugned Act may be and however reluctant one may  feel to  hold  it invalid, it seems to me that section 5  of  the Act,  or  at least that part of it with which alone  we  are concerned in this appeal, does offend against article 14  of the Constitution and is therefore unconstitutional and void. The  Act is really modelled upon a pre-Constitution  pattern and  will have to be suitably redrafted in order to  conform to the requirements of the Constitution. MAHAJAN  J.--I  had the advantage of  reading  the  judgment prepared  by  my brother Mukherjea and I  am  in  respectful agreement with his opinion.     Section  5 of the West Bengal Special Courts Act is  hit by article 14 of the Constitution inasmuch as it mentions no basis  for the differential treatment prescribed in the  Act for  trial  of criminals in certain cases  and  for  certain offences.  The  learned  AttorneyGeneral argued that the Act had  grouped  cases requiring speedier trial  as  forming  a class  in themselves, differentiating that class from  cases not  needing expedition and that it was on this  basis  that the special procedure prescribed in the Act was applicable.     In order to appreciate this contention, it is  necessary to state shortly the scope of article 14 of the 313 Constitution.   It  is  designed to prevent  any  person  or class of persons for being singled out as a special  subject for  discriminatory and hostile legislation.  Democracy  im- plies  respect  for the elementary rights  of  man,  however suspect  or unworthy.  Equality of right is a  principle  of republicanism and article 14 enunciates this equality  prin- ciple  in the administration of justice. In its  application to  legal  proceedings the article assures to  everyone  the same  rules  of evidence and modes of  procedure.  In  other words, the same rule must exist for all in similar   circum- stances.  This  principle, however, does not mean that every law must have universal application for all persons who  are not  by  nature,  attainment or circumstance,  in  the  same position.     By the process of classification the State has the power of  determining who should be regarded as a class  for  pur- poses  of legislation and in relation to a law enacted on  a particular subject.  This power, no doubt, in some degree is likely  to produce some inequality; but if a law deals  with the liberties of a number of well-defined classes, it is not open  to  the charge of denial of equal  protection  on  the ground  that  it has no application to  other  persons.  The classification  permissible, however, must be based on  some real and substantial distinction bearing a just and reasona- ble relation to the objects sought to be attained and cannot be  made  arbitrarily  and without  any  substantial  basis. Classification thus means segregation in classes which  have a  systematic relation, usually found in  common  properties and  characteristics.   It postulates a rational  basis  and does not mean herding together of certain persons and class- es  arbitrarily.  Thus the legislature may fix  the  age  at which persons shall be deemed competent to contract  between themselves,  but no one will claim that competency  to  con- tract  can be made to depend upon the stature or  colour  of the  hair.  "Such a classification for such a purpose  would be arbitrary and a piece of legislative despotism"(1):     (1)  Vide Gulf Colorado & Santa Fe Railway Co.  v.  W.H. Ellis, 166 U.S. 150. 41 314     Speedier trial of offences may be the reason and  motive for  the  legislation but it does not amount  either   to  a

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classification  of offences or of cases.  As pointed out  by Chakravarti J. the necessity of a speedy trial is too  vague and  uncertain a criterion to form the basis of a valid  and reasonable classification.  In the words of Das Gupta J.  it is too indefinite as there can hardly be any definite objec- tive test to determine it. In my opinion, it is no classifi- cation  at  all in the real sense of the term as it  is  not based  on any characteristics which are peculiar to  persons or to cases which are to be subject to the special procedure prescribed  by the Act.  The mere fact of classification  is not  sufficient to relieve a statute from the reach  of  the equality  clause of article 14.  To get out of its reach  it must appear that not only a classification has been made but also  that it is one based upon a reasonable ground on  some difference  which  bears a just and proper relation  to  the attempted classification and is not a mere arbitrary  selec- tion.   Persons concerned in offences or cases  needing  so- called speedier trial are entitled to inquire "Why are  they being  made the subject of a law which  has  short-circuited the  normal procedure of trial; why has it grouped  them  in that  category  and  why has the law deprived  them  of  the protection  and safeguards which are allowed in the case  of accused tried under the procedure mentioned in the  Criminal Procedure Code; what makes the legislature or the  executive to think that their cases need speedier trial than those  of others  like  them?"  The only answer, that so far as  I  am able to see, the Act gives to these inquiries is that   they are being made the subject of this special treatment because they need it in the opinion  of  the  provincial government; in other words, because such is the choice of their prosecu- tor.  This answer  neither sounds rational nor   reasonable. The  only answer for withholding from such persons the  pro- tection  of  article 14 that could reasonably  be  given  to these inquiries would be that "Of all other accused  persons they are a class by themselves and there is a reasonable 315 difference between them and those other persons who may have committed  similar offences."  They could be told  that  the law regards persons guilty of offences against the  security of the State as a class in themselves.  The Code of Criminal Procedure  has by the process of  classification  prescribed different  modes  of procedure for trial  of  different  of- fences.  Minor  offences can be summarily tried,  while  for grave  and heinous offences an elaborate mode  of  procedure has  been laid down.  The present statute suggests no.  rea- sonable  basis or classification, either in respect  of  of- fences  or in respect of cases.  It has laid down  no  yard- stick  or measure for the grouping either of persons  or  of cases or of offences by which measure these groups could  be distinguished from those who are outside the purview of  the Special  Act. The Act has left this matter entirely  to  the unregulated discretion of the provincial government.  It has the  power to pick out a case of a person similarly  situate and hand it over to the special tribunal and leave the  case of the other person in the same circumstance to be tried  by the procedure laid down in the Criminal Procedure Code.  The State  government is authorized, if it so chooses,  to  hand over  an ordinary case of simple hurt to the special  tribu- nal, leaving the case of dacoity with murder to be tried  in the ordinary way.  It is open under this Act for the provin- cial  grovernment  to  direct that a case  of  dacoity  with firearms and accompanied by murder, where the persons killed are Europeans, be tried by the Special Court, while  exactly similar  cases where the persons killed are Indians  may  be tried under the procedure of the Code.

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   That  the Special Act lays down substantially  different rules for trial of offences and cases than laid down in  the general  law of the land, i.e., the Code of Criminal  Proce- dure,  cannot  be seriously denied. It  short-circuits  that procedure  in  material  particulars.   It  imposes  heavier liabilities on the alleged culprits than are ordained by the Code.  It deprives them of certain privileges which the Code affords  them  for their protection. Those singled  out  for treatment under the 316 procedure  of the Special Act are to a  considerable  extent prejudiced by the deprivation of the trial by the  procedure prescribed under the Criminal Procedure Code. Not only  does the special law deprive them of the safeguard of the commit- tal  procedure  and of the trial with the help  of  jury  or assessors,  but it also deprives them of the right of  a  de novo  trial  in case of transfer and makes them  liable  for conviction  and  punishment for major  offences  other  than those  for which they may have been charged or  tried.   The right  of the accused to call witnesses in defence has  been curtailed  and made dependent on the discretion of the  spe- cial  judge.  To a certain extent the remedies to  which  an accused person is entitled for redress in the higher  courts have been cut down.  Even if it be said that the statute  on the face of it is not discriminatory, it is so in its effect and operation inasmuch as it vests in the executive  govern- ment unregulated official discretion and therefore has to be adjudged unconstitutional.     It was suggested that good faith and knowledge of exist- ing  conditions on the part of a legislature has to be  pre- sumed.   That  is so; yet to carry that presumption  to  the extent of always holding that there must be some undisclosed intention or reason for subjecting certain individuals to  a hostile  and discriminatory legislation is to make the  pro- tection  clause of article 14, in the words of  an  American decision,  a  mere rope of sand, in  no  manner  restraining State action.  The protection afforded by the article is not a mere eyewash but it is a real one and unless a just  cause for discrimination on the basis of a reasonable  classifica- tion  is put forth as a defence, the statute has to  be  de- clared unconstitutional. No just cause has been shown in the present  instance.  The result is that the appeals fail  and are dismissed. MUKHERJEA  J.--These  two appeals are directed  against  the judgment of a Special Bench of the Calcutta High Court dated the  28th of August, 1951, and they arise out of  two  peti- tions presented, respectively, by the respondent in the  two appeals under article 226 of 317 the  Constitution praying for writs of certiorari  to  quash two  criminal  proceedings, one of which has  ended  in  the trial  court, resulting in conviction of the accused,  while the other is still pending hearing.  The questions requiring consideration in both the appeals are the same and the whole controversy centres round the point as to whether the provi- sion of section 5(1) of the West Bengal Special Courts  Act, 1950,  as well as certain notifications issued under it  are ultra  vires  the Constitution by reason of their  being  in conflict with article 14 of the Constitution.  The  material facts, which are not controverted, may be shortly stated  as follows.   On  August 17, 1949, an Ordinance, known  as  the West Bengal Special Courts Ordinance, was promulgated by the Governor  of West Bengal under section 88 of the  Government of India Act, 1935.  On 15th March, 1950, this Ordinance was superseded  and replaced by the West Bengal  Special  Courts

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Act  which contained provisions almost identical with  those of  the Ordinance.  Section 3 of the Act empowers the  State Government  to constitute, by  notification, Special  Courts of  criminal jurisdiction for such areas and to sit at  such places  as  may be notified in the notification.  Section  4 provides for appointment of a Special Judge to preside  over a  Special Court and it mentions the qualifications which  a Special  Judge should possess. Section 5 (1) then lays  down that  a Special Court shall try such offences or classes  of offences  or cases or classes  of  cases  as the State  Gov- ernment  may, by general  or  special  order,   in   writing direct.  Sections 6 to 15 set out in details  the  procedure which the Special Court has to follow in the trial of  cases referred  to it. Briefly stated, the trial is to be  without any  jury  or  assessors, and the court has  to  follow  the procedure  that is laid down for trial of warrant  cases  by the  Magistrate  under  the Criminal  Procedure  Code.   The procedure  for  committal in the sessions cases  is  omitted altogether;  the court’s powers of granting adjournment  are restricted  and  special provisions are made  to  deal  with refractory accused and also for cases which are  transferred from one 318 Special Court to another.  The Court is expressly  empowered to  convict  a person of an offence with which  he  was  not charged  if it transpires from the evidence adduced  at  the time of trial that such offence was committed by him, and it is immaterial that the offence is not a minor offence.   The right  of  revision to the High Court has  been  taken  away entirely, though appeals have been allowed in all cases both at  the instance of the accused as well as of the State  and they lie both on questions of fact and law.     On  October  28, 1949, when the Ordinance was  still  in force,  the West Bengal Government appointed Shri S.N.  Guha Roy,  who was then the Sessions Judge of Alipore, a  Special Judge, with powers to try cases under the Ordinance.   Anwar Ali  Sarkar, who is the respondent in Appeal No. 297,  along with 49 other persons, were the accused in what is known  as Dum  Dum Factory Raid case, where crimes of the utmost  bru- tality were committed by an armed gang of men on the factory of  Messrs.  Jessop and Company at Dum Dum.  The  raid  took place on February 26, 1949. The accused or most of them were arrested some time after the Ordinance was promulgated.   On 25th  of January, 1950, the State Government by a  notifica- tion  directed  that the case of Anwar Ali and  his  49  co- accused  should be tried by Mr. S.N. Guha Roy in  accordance with the provisions"    of the Ordinance. A formal complaint was  lodged before the Special Judge in respect of these  50 persons on April 2, 1950, that is to say, after the  Special Courts Act was passed, superseding the Ordinance. The  trial lasted for several months and by his judgment dated the 31st of  March,  1951, the Special Judge  convicted  the  accused under  various  sections of the Indian Penal Code,  some  of them  being  sentenced  to transportation  for  life,  while others were sentenced to undergo various terms of  imprison- ment  according to the gravity of their offence.  The  State Government  applied for enhancement of sentence with  regard to some of the accused and a rule was actually issued by the High  Court upon them tO show cause why they should  not  be sentenced 319 to  death.  On  May 1, 1951, Anwar Ali,  the  respondent  in Appeal No. 297, presented an application before Mr.  Justice Bose  of  the Calcutta High Court under article 226  of  the Constitution and a rule was issued by the learned Judge upon

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that petition calling upon the State of West Bengal to  show cause  why the proceedings, conviction and sentence,  passed by  the Special Court on the petitioner and  his  co-accused should not be quashed.  On 21st of May following, a  similar application for quashing a pending criminal trial was  filed by  Gajen  Mali, the respondent in the other   appeal,   who along  with 5 other persons is being tried for  offences  of murder and conspiracy to murder before  Mr. M. Bhattacharya, another  Special  Judge,  appointed under  the  West  Bengal Special  Courts Act.  A rule was issued on this  application also. Both the rules came up for hearing before Mr.  Justice Bose,  and  as the learned Judge was of  opinion  that  they involved questions of general constitutional importance,  he referred them to the Chief Justice for decision by a  larger Bench.   Accordingly a  Special  Bench   was    constituted, consisting  of the Chief Justice and four other  Judges  who heard  both   these  cases.   It was   conceded  during  the hearing  of  these  rules by the State Government  that  al- though in the case of Anwar Ali the notification was  issued a day before the coming into force of the Constitution,  the provisions  of  the Constitution of India, which  came  into force  on  the 26th of January, 1950, applied  to  his  case also.  On the 28th of August, 1951. the Special  Bench  made the  rules absolute and held that section 5 (1) of the  West Bengal  Special  Courts Act was void to the extent  that  it empowers  the  State to direct any case to be tried  by  the Special  Court.  The notifications issued  under  that  sub- section  were also held to be invalid for the  same  reason. It is against this decision that these two appeals have been taken to this court by the State of West Bengal.     In  order to appreciate the points that have  been  can- vassed before us, it would be convenient first of all 320 to refer to the provision of article 14 of the  Constitution with a view to determine the nature and scope of the guaran- tee that is implied in it.  The article lays down that  "the State  shall not deny to any person equality before the  law or the equal protection of the laws within the territory  of India."   It is, in substance, modelled upon the equal  pro- tection clause, occurring  in  the  Fourteenth  Amendment of the  American  Constitution with a further addition  of  the rule  of "equality before the law", which is an  established maxim  of  the English Constitution.  A number  of  American decisions  have been cited before us on behalf of both  par- ties  in  course  of the arguments; and while  a  too  rigid adherence  to the views expressed by the Judges of  the  Su- preme Court of America while dealing with the equal  protec- tion  clause in their own Constitution may not be  necessary or desirable for the purpose of determining the true meaning and  scope  of  article 14 of the  Indian  Constitution,  it cannot  be denied that the general principles enunciated  in many of these cases do afford considerable help and guidance in the matter.     It  can be taken to be well settled that  the  principle underlying the guarantee in article 14 is not that the  same rules of law should be applicable to all persons within  the Indian  territory or that the same remedies should  be  made available  to  them irrespective of differences  of  circum- stances(1). It only means that all persons similarly circum- stanced shall be treated alike both in privileges  conferred and  liabilities  imposed(2). Equal laws would  have  to  be applied to all in the same situation, and there should be no discrimination between one person and another if as  regards the  subjectmatter  of  the legislation  their  position  is substantially the same. This brings in the question of clas-

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sification. As there is no infringement of the equal protec- tion  rule,  if the law deals alike with all  of  a  certain class, the legislature has the undoubted right of  classify- ing   (1)  Chiranjit Lal Chowdhuri v. The Union of India  [1950] S.C.R. 869.    (2)Old  Dearborn Distributing Co. v. Seagram   Distillers Corporation 299 U.S. 183. 321 persons and placing those whose conditions are ’substantial- ly  similar under the same rule of law, while applying  dif- ferent  rules  to persons differently situated. It  is  said that the entire problem under the equal protection clause is one of classification or of drawing lines(1).  In making the classification the legislature cannot certainly be  expected to  provide "abstract symmetry."  It can make and set  apart the  classes  according to the needs and exigencies  of  the society  and  as suggested by experience. It  can  recognise even  "degrees of evil "(2), but 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(3).  These propositions have not  been  controverted before  us  and it is not disputed also on  behalf  of   the respondents that the presumption is always in  favour of the constitutionality of an enactment and the burden is upon him who attacks it, to show that there has been transgression of constitutional principles.     The  learned Attorney- General, appearing in support  of the  appeal, has put forward his contentions under two  dif- ferent  heads.   His first line of argument  is  that  quite apart from the question of classification there has been  no infringement  of  article  14 of  the  Constitution  in  the present  case.  It is said that the State has  full  control over procedure in courts, both in civil and criminal  cases, it can effect such changes as it likes for securing due  and efficient administration of justice and a legislation of the character which we have got here and which merely  regulates the  mode of trial in certain cases cannot come  within  the description of discriminatory or hostile legislation.  It is further  argued that the differences that have been made  in the procedure for criminal trial under the West  Bengal    (1)  Vide Dowling: Cases on Constitutional Law, 4th  edn. 1139.   (2) Vide Skinner v. Oklahoma (316 U.S. 535 at 540).   (3) Southern Railway Co. v. Greene (216 U.S, 400 at 412). 42 322 Special Courts Act, 1950, are of a minor character and there are  no substantial grounds upon which discrimination  could be  alleged or founded. The second head   of  arguments  ad- vanced by the Attorney-General is that there is a  classifi- cation  and  a justifiable classification on  the  basis  of which  differences  in the procedure have been made  by  the West  Bengal  Act; and even if any unguided power  has  been conferred on the executive, the Act itself cannot be said to have violated the equality clause, though questions relating to proper exercise of such power or the limits of  permissi- ble delegation of authority might arise.      As regards the first point, it cannot be disputed  that a  competent legislature is entitled to alter the  procedure in  criminal  trials  in such way as  it  considers  proper. Article  21  of the Constitution only  guarantees  that  "no

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person  shall  be deprived of his life or  personal  liberty except in accordance with the procedure established by law." The word "law" in the Article means a State made law(1), but it must be a valid and binding law having regard not  merely to  the  competency of the legislature and  the  subject  it relates to, but it must not also infringe any of the  funda- mental   rights guaranteed under Part III of  the  Constitu- tion.  A  rule of procedure laid down by law comes  as  much within the purview of article 14 as any rule of  substantive law and it is necessary that all litigants, who are similar- ly situated, are able to avail themselves of the same proce- dural rights for relief and for defence with like protection and without discrimination(2). The two cases referred to  by the  learned  Attorney-General  in this  connection  do  not really  support his contention. In Hayes v. Missouri(a)  the subject-matter  of complaint was a provision of the  revised statutes  of  Missouri which allowed the State,  in  capital cases,  fifteen  peremptory challenges in  cities  having  a population of 100,000 inhabitants in place of eight in other parts of the State. This was held to be a valid exercise  of legislative discretion not     (1)  Vide  A.K. Gopalan v. The State  of  Madras  [1950] S.C.R. 88.     (2) Weaver: Constitutional Law, page 407.     (3) 120 U.S. 68; 30 L. Ed. 578. 323 contravening  the equality clause in the  Fourteenth  Amend- ment.  It  was  said that the power of  the  Legislature  to prescribe  the   number  of challenges was  limited  by  the necessity  of having impartial jury. With a view  to  secure that end, the legislature could take into consideration  the conditions  of  different communities and  the  strength  of population  in  a particular city; and if  all  the  persons within particular territorial limits are given equal  rights in like cases, there could not be any question of  discrimi- nation. The other case relied upon by the learned  Attorney- General is the case of Brown v. The State of New  Jersey(1). In  this case the question was whether the provision of  the State  Constitution relating to struck jury in murder  cases was in conflict with the equal protection clause. The griev- ance  made was that the procedure of struck jury denies  the defendant  the  same number of peremptory challenges  as  he would  have had in a trial before an ordinary jury.  It  was held  by the Supreme Court that the equal protection  clause was  not  violated  by this provision. "It  is  true",  thus observes Mr. Justice Brewer, "that here there is no territo- rial distribution but in all cases in which a struck jury is ordered  the  same  number of challenges  is  permitted  and similarly in all cases in which the trial is by an  ordinary jury  either  party,  State or defendant, may  apply  for  a struck jury and the matter is one which is determined by the court in the exercise of a sound discretion......  That in a given  case the discretion of the court in awarding a  trial by  a  struck  jury was  improperly  exercised  may  perhaps present a matter for consideration in appeal but it  amounts to  nothing  more". Thus it was held that the  procedure  of struck jury did not involve  any  discrimination between one person  and another.  Each  party was  at liberty  to  apply for  a  struck jury if he so chose and the application could be  granted by the court if it thought proper having  regard to the circumstances of each individual case. The  procedure would  be  identical in respect of all persons when  it  was allowed and (1) 175 U.S. 171: 44 L. Ed. 119. 324

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all  parties  would  have equal  opportunities  of  availing themselves  of  this  procedure if they so  liked.   That  a judicial discretion has to be exercised on the basis of  the facts of each case in the matter of granting the application for  a struck jury does not really  involve  discrimination. These  decisions,  in my opinion, have   no bearing  on  the present case.        I  am  not at all impressed by the  argument  of  the learned  Attorney-General that to enable the respondents  to invoke  the protection of article 14 of the Constitution  it has got to be shown that the legislation complained of is  a piece of "hostile" legislation. The expressions   "discrimi- natory"   and   "hostile" are found to be used  by  American Judges often simultaneously and almost as synonymous expres- sions in connection with discussions on the equal protection clause.   If a legislation is discriminatory  and  discrimi- nates one person or class of persons against others similar- ly situated and denies to the former the privileges that are enjoyed  by the latter, it cannot but be regarded  as  "hos- tile" in the sense that it affects injuriously the interests of that person or class.  Of course, if one’s interests  are not at all affected by a particular piece of legislation, he may  have  no right to complain.  But if it  is  established that  the person complaining has been discriminated  against as a result of legislation and denied equal privileges  with others  occupying the same position, I do not think that  it is  incumbent  upon him, before he can claim relief  on  the basis of his fundamental rights, to assert and prove that in making the law, the legislature was actuated by a hostile or inimical intention against a particular person or class. For the  same reason I cannot agree with the  learned  Attorney- General  that in cases like these, we should enquire  as  to what was the dominant intention of the legislature in enact- ing  the law and that the operation of article 14  would  be excluded if it is proved that the legislature had no  inten- tion  to   discriminate,   though   discrimination  was  the necessary  consequence of the Act.  When. discrimination  is alleged against officials in carrying 325 out  the  law, a question of intention may  be  material  in ascertaining whether the officer acted mala fide or  not(1); but  no question of intention can arise when  discrimination follows or arises on the express terms of the law itself.         I  agree with the Attorney-General that if the  dif- ferences are not material, there may not be any  discrimina- tion  in the proper sense of the word and  minor  deviations from  the  general standard might not amount  to  denial  of equal rights.  I find it difficult however, to hold that the difference in the procedure that has been introduced by  the West  Bengal Special Courts Act is of a minor or  unsubstan- tial character which has not prejudiced the interests of the accused.         The  first difference is that made in section  6  of the  Act  which lays down that the Special  Court  may  take cognizance of an offence without the accused being committed to  it for trial, and that in trying the accused it  has  to follow   the procedure for trial of warrant cases by  Magis- trates.  It is urged by the Attorney-General that the elimi- nation of the committal proceedings is a matter of no impor- tance  and  that the warrant procedure,  which  the  Special Court  has got to follow, affords a scope for a  preliminary examination  of  the evidence against the accused  before  a charge  is  framed.’  It cannot be denied that  there  is  a difference  between the two proceedings.  In a warrant  case the entire proceeding is before the same Magistrate and  the

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same  officer who frames the charge hears the case  finally. In a sessions case, on the other hand, the trial is actually before another Judge, who was not connected with the earlier proceeding.   It is also clear that after the committal  and before the sessions judge actually hears the case, there  is generally  a large interval of time which gives the  accused ample  opportunity  of preparing his defence, he  being  ac- quainted beforehand with the entire evidence that the prose- cution  wants  to adduce against him. He cannot   have   the same  advantage in a warrant case even ii an adjournment  is granted  by the Magistrate after  the charge is   (1) sunday  Lake Iron Company v. wakefield (247 U.S. 350.) 326 framed. Be that as it may, this is not the only matter  upon which  the  normal procedure has been departed from  in  the Special Courts Act. One of the most important  departures is that  the  trial by  the Special Court is without the aid of jury  or assessors. The trial by jury is undoubtedly one  of the  most valuable rights which the accused can have. It  is true    that  the  trial by jury is not  guaranteed  by  the Constitution  and section 269(1) of the  Criminal  Procedure Code empowers the State Government to direct that the  trial of  all offences or any particular class of offences  before any sessions court shall be by jury in any district; and  it may  revoke  or alter such orders. There  is  nothing  wrong therefore  if  the State discontinues trial by jury  in  any district  with  regard  to all or any  particular  class  of offences; but as has been pointed out by Mr. Justice Chakra- varti  of  the Calcutta High Court, it  cannot  revoke  jury trial  in respect of a particular case or a  particular  ac- cused  while  in respect of other cases involving  the  same offences  the order still remains. Amongst  other  important changes,  reference may be made to the provision of  section 13 of the Act which empowers the Special Court to convict an accused of any offence if the commission of such offence  is proved  during trial, although he was not charged  with  the same or could be charged with it in the manner  contemplated by section 236 of the Criminal Procedure Code, nor was it  a minor offence within the meaning of section 238 of the Code. Under  section  a50 of the Criminal Procedure Code,  when  a case  after  being heard in part goes  for  disposal  before another  Magistrate,  the accused has the right  to  demand, before the second Magistrate commences the proceedings, that the  witnesses already  examined should be  re-examined  and re-heard.   This right has been taken away from the  accused in cases where a case is transferred from one Special  Court to  another under the provision of section 7 of the  Special Courts Act.  Further the right of revision to the High Court does not exist at all under the new procedure, although  the rights under the Constitution of India are retained. 327 It  has been pointed out and quite correctly by one  of  the learned Counsel for respondents that an application for bail cannot be made before the High Court on behalf of an accused after  the Special Court has refused bail.  These and  other provisions  of the Act make it clear that the rights of  the accused  have been curtailed in a substantial manner by  the impugned  legislation; and if the rights are curtailed  only in certain cases and not in others, even though the  circum- stances  in  the latter cases are the same,  a  question  of discrimination may certainly arise. The first line of  argu- ment adopted by the learned Attorney-General  cannot, there- fore, be accepted.     I now come to the other head of arguments put forward by him and the principal point for our consideration is whether

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the apparent discriminations that have been made in the  Act can  be justified on the basis of a  reasonable  classifica- tion.   Section 5(1) of the West Bengal Special  Courts  Act lays down that     "A  Special  Court shall try such  offences  or  classes offences  or cases or classes of cases as the State  Govern- ment may, by general or special order  in writing direct."     The learned Attorney-General urges that the principle of classification  upon  which the differences have  been  made between cases and offences triable by the Special Court  and those by ordinary courts is indicated in the preamble to the Act which runs as follows:     "Whereas   it is expedient to provide for  the  speedier trial of certain offences".     What  is said is, that the preamble is to be read  as  a part of section 5(1) and the proper interpretation to be put upon the sub-section is that those cases and offences  which in the opinion of the State Government would require speedi- er  trial could be assigned by it to the Special Court.   In my  opinion,  this contention cannot be  accepted  for  more reasons  than  one.  In the first place, I  agree  with  the learned  Chief Justice of the Calcutta High Court  that  the express provision of an enactment, if it is clear and  unam- biguous, cannot be 328 curtailed  or extended with the aid of the preamble  to  the Act.  It is only when the object or meaning of the enactment is  not  clear that recourse can be had to the  preamble  to explain  it  (1).   In the case before us  the  language  of section 5(1) is perfectly clear and free from any ambiguity. It vests an unrestricted discretion in the State  Government to  direct any cases or classes of cases to be tried by  the Special Court in accordance with the procedure laid down  in the  Act.   It is not stated that it is only  when  speedier trial is necessary that the discretion should be  exercised. In the second place, assuming that  the preamble  throws any light upon the interpretation of the section, I am definite- ly of opinion that the necessity of a speedier trial is  too vague, uncertain and elusive a criterion to form a  rational basis  for  the  discriminations made.   The  necessity  for speedier  trial may be the object which the legislature  had in view or it may be the occasion for making the  enactment. In  a sense quick disposal is a thing which is desirable  in all  legal  proceedings. The word used  here  is  "speedier" which  is a comparative term and as there may be degrees  of speediness, the word undoubtedly introduces an uncertain and variable element.  But the question is: how is this necessi- ty of speedier trial to be determined ? Not by reference  to the nature of the offences or the circumstances under  which or the area in which they are committed, nor even by  refer- ence  to any peculiarities or antecedents of  the  offenders themselves,  but the selection is left to the  absolute  and unfettered  discretion  of  the  executive  government  with nothing  in the law to guide or control its action. This  is not  a  reasonable classification at all  but  an  arbitrary selection.  A line is drawn artificially between two classes of  cases. On one side of the line are grouped  those  cases which the State Government chooses to assign to the  Special Court;  on  the other side stand the rest  which  the  State Government  does not think fit and proper to touch.  It  has been observed in many cases by the Supreme Court of  America that the fact that some (1) See Craies on Statute Law, 4th edn., 184. 329 sort  of classification has been attempted at will  not  re-

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lieve  a statute from the reach of the equality clause.  "It must appear not only that a classification has been made but also  that  it is based upon  some  reasonable  ground--some difference  which  bears a just and proper relation  to  the attempted  classification"(1). The question  in   each  case would   be   whether  the characteristics of the  class  are such as to provide a rational justification for the  differ- ences  introduced ? Judged by this test, the answer  in  the present  case should be in the negative; for the  difference in the treatment rests here solely on arbitrary selection by the  State  Government.   It is true  that  the  presumption should  always be that the legislature understands and  cor- rectly appreciates the needs of its own people and that  its discriminations  are based on adequate grounds (2);  but  as was said by Mr. Justice Brewer in Gulf Colorado etc. Company v.  Ellis  (3), "to carry the presumption to the  extent  of holding  that  there must be some  undisclosed  and  unknown reason for subjecting certain individuals or corporations to hostile  and discriminatory legislation is to make the  pro- tection  clauses of the Fourteenth Amendment a mere rope  of sand."     A  point was made by the Attorney-General in  course  of his arguments that the equality rule is not violated  simply because a statute confers unregulated discretion on officers or  on  administrative  agencies. In such cases  it  may  be possible to attack the legislation on the ground of improper delegation  of authority or the acts of the officers may  be challenged  on the ground of wrongful or mala fide  exercise of powers; but no question of infringement of article 14  of the Constitution could possibly arise.  We were referred  to a  number  of authorities on this point but I do  not  think that  the authorities really support the proposition of  law in the way it is formulated. In the well known case of  Yick Wo  v. Hopkins (4), the question was, whether the  provision of a certain ordinance of the City and County of San   (1) Gulf Colorado etc. Go. v. Ellis (165 U.S. 150).   (2) Middleton v. Texas Power & Light Co. (249 U.S. 152).   (3) 165 U.S. 150.           (4) 118 U.S. 356. 43 330 Francisco  was  invalid by reason of its being  in  conflict with  the  equal protection clause.  The order  in  question laid down that it would be unlawful for any person to engage in  laundry  business within the corporate  limits  "without having  first obtained the consent of the Board of  Supervi- sors except the same to be located in a building constructed either of brick or stone." The question was answered in  the affirmative.  It was pointed out by Matthews, J., who deliv- ered  the opinion of the court, that the ordinance in  ques- tion  did not merely prescribe a rule and condition for  the regulation  of  the laundry business.   It  allowed  without restriction  the use for such purposes of building of  brick or stone, but as to wooden buildings constituting nearly all those  in previous use, it divided the owners  or  occupiers into  two  classes,  not having respect  to  their  personal character and qualifications of the business, nor the situa- tion and nature and adaptation of the buildings  themselves, but  merely by an arbitrary line, on one side of which  were those  who  were permitted to pursue their industry  by  the mere  will and consent of the supervisors and on  the  other those from whom that consent was withheld at their will  and pleasure.  This sort of committing to the unrestrained  will of  a public officer the power to deprive a citizen  of  his right to carry on lawful business was’ held to constitute an invasion  of  the  Fourteenth Amendment. The  learned  Judge

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pointed  out in course of his judgment that there are  cases where  discretion  is lodged by law in  public  officers  or bodies  to  grant or withhold licences to  keep  taverns  or places for sale of spirituous liquor and the like.  But  all these  cases stood on a different footing  altogether.   The same view was reiterated in Crowley v. Christensen(1)  which related to an ordinance regulating the issue of licences  to sell  liquors.   It appears to be an  accepted  doctrine  of American  courts  that the purpose of the  equal  protection clause  is to secure every person within the States  against arbitrary discrimination, whether occasioned by the  express terms of the statute or by their (1) 137 U.S. 86. 331 improper  application through duly constituted agents.  This was  clearly  laid  down in Sunday Lake  Iron  Cornparty  v. Wakefield  (1).  In this case the complaint was  against  a. taxing officer, who was alleged to have assessed the  plain- tiff’s  properties  at  their full value,  while  all  other persons  in the county were assessed at not more  than  one- third  of the worth of their properties.  It was  held  that the equal protection clause could be availed of against  the taxing officer; but if he was found to have acted bona  fide and  the  discrimination was the result of a mere  error  of judgment on his part, the action would fail.  The  position, therefore, is that when the statute is not itself  discrimi- natory  and the charge of violation of equal  protection  is only against the official, who is entrusted with the duty of carrying  it  into operation, the  equal  protection  clause could  be  availed of in such cases; but the  officer  would have a good defence if he could prove bona fides.  But  when the statute itself makes a discrimination without any proper or  reasonable basis, the statute would be  invalidated  for being in conflict with the equal protection clause, and  the question as to how it is actually worked out may not  neces- sarily be a material fact for consideration. As I have  said already,  in the present case the discrimination  arises  on the  terms of the Act itself.  The fact that it gives  unre- strained power to the State Government to select in any  way it likes the particular cases or offences which should go to a  Special Tribunal and  withdraw in such cases the  protec- tion which the accused normally enjoy under the criminal law of  the country, is on the face of it discriminatory.     It  may be noted in this connection that in the  present case the High Court has’ held the provision of section 5 (1) of the West Bengal Special Courts Act to be ultra vires  the Constitution  only so far as it allows the State  Government to direct any case to be tried by the Special Court. In  the opinion  of the learned Chief Justice, if the State  Govern- ment  had directed certain offences or classes  of  offences committed within the (1) 247 U.S. 350. 332 territory  of West Bengal to be tried by the Special  Court, the law or order could not have been impeached as  discrimi- natory.  It  is  to be noted that the Act  itself  does  not mention in what classes of cases or offences such  direction could  be given; nor does it purport to lay down the  crite- rion  or  the basis upon which the classification is  to  be made.  It  is not strictly correct to say  that  if  certain specified offences throughout the State were directed to  be tried by the Special Court, there could not be any infringe- ment  of  the equality rule. It may be that  in  making  the selection  the  authorities would exclude from the  list  of offences other offences of a cognate character in respect to

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which  no  difference in treatment is justifiable.  In  such circumstances  also  the  law or order  would  be  offending against the equality provision in the Constitution. This  is illustrated by the case of Skinner v. Oklahorna(1). There  a statute  of Oklahoma provided for the sterilization of  cer- tain  habitual  criminals, who were convicted  two  or  more times in any State, of felonies involving moral turpitudell. The statute applied to persons guilty of larceny, which  was regarded  as a felony but not to embezzlement.  It was  held that  the statute violated the equal protection clause.   It is  said  that in cases where the law does not  lay  down  a standard or form in accordance with which the classification is to be made, it would be the duty of the officers entrust- ed with the execution of the law, to make the classification in the way consonant with the principles of the Constitution (2).  If that be the position, then an action might lie  for annulling the acts of the officers if they are found not  to be in conformity with the equality clause.  Moreover, in the present case the notification by the State Government  could come within the definition of law as given in article  13(3) of the Constitution and can be impeached apart from the  Act if  it  violates article 14 of the Constitution.  I  do  not consider it necessary to pursue this matter any further,  as in my opinion even on the (1) 316 U.S. 555. (2) Vide Willis on Constitutional Law, Page 587. 333 limited ground upon which the High Court bases its decision, these appeals are bound to fail.     DAS  J.--I concur in dismissing these appeals but  I  am not  persuaded  that the whole of section 5(1) of  the  West Bengal  Special Courts Act is invalid.  As I find myself  in substantial agreement with the interpretation put upon  that section  by the majority of the Full Bench of  the  Calcutta High Court and most of the reasons adopted by Harries,  C.J. in  support  thereof, I do not feel called upon  to  express myself  in  very great detail. I propose only  to  note  the points  urged  before us and shortly  state  my  conclusions thereon.     There is no dispute that the question of the validity of section  5 of the West Bengal Special Courts Act, 1950,  has to  be  determined  in the light of the  provisions  of  the Constitution  of India which came into force on January  26, 1950.  The contention of the respondents, who were petition- ers before the High Court, has been and is that the whole of section 5 of the Act or, at any rate, that part of it  which authorises the State government to direct particular "cases" to be tried by the Special Court offends against the guaran- tee of equality before the law secured by article 14. If the provision  of  section 5 of the Act is invalid even  to  the limited extent mentioned above. then also the whole proceed- ings  before  the Special Court which was  directed  by  the State government to try these particular "cases" must neces- sarily  have been without jurisdiction as has been  held  by the High Court Full Bench and these appeals would have to be dismissed.     Article 14 of our Constitution, it is well known, corre- sponds  to the last portion of section 1 of  the  Fourteenth Amendment  to  the  American Constitution  except  that  our article 14 has also adopted the English doctrine of rule  of law  by  the addition of the words    "equality  before  the law."  It  has not, however, been urged before us  that  the addition  of  these extra words has   made  any  substantial difference in its practical application.  The meaning, scope and effect of

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334 article 14 of our Constitution have been discussed and  laid down by this Court in the case of Chiranjit Lal    Chowdhury v. The  Union of India and Others (1).   Although Sastri J., as he then was, and myself differed   from the actual  deci- sion of the majority of the Court,   there was no  disagree- ment  between  us and the majority   as  to  the  principles underlying the provisions of article 14.  The difference  of opinion in that case was not   so much on the principles  to be  applied  as to the effect   of the application  of  such principles.   Those principles   were again  considered  and summarised  by  this Court   in The State of  Bombay  v.F.N. Balsara (2).  It is now   well established that while  arti- cle 14 is designed to   prevent a person or class of persons from being singled   out from others similarly situated  for the purpose of   being specially subjected to discriminating and  hostile    legislation,  it  does  not  insist   on  an "abstract    symmetry"  in  the sense that  every  piece  of legislation   must have universal application.  All  persons are not,   by nature, attainment or circumstances, equal and the    varying needs of different classes of  persons  often require  separate treatment and, therefore,  the  protecting clause has been construed as a guarantee   against discrimi- nation amongst equals only and not as   taking away from the State  the  power to classify   persons for the  purpose  of legislation.  This classification may be on different bases. It  may be geographical or according to objects  or  occupa- tions  or the like.   Mere classification, however,  is  not enough  to get over   the inhibition of the  Article.   ’The classification must   not be arbitrary but must be rational, that  is to say,   it must not only be based on some  quali- ties  or  characteristics which are to be found in  all  the persons    grouped together and not in others who  are  left out    but  those qualities or characteristics must  have  a reasonable  relation to the object of the legislation.    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 (1) [1950] S.C.R. 869.              (2) [1951] S.C.R. 682. 335 and (2)  that that differentia must have a rational relation to the object sought to be achieved by the Act. The  differ- entia  which  is  the basis of the  classification  and  the object of the Act are distinct things and what is  necessary is that there must be a nexus between them.  In short, while the Article forbids class legislation in the sense of making improper discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number  of other persons similarly situated in  relation  to the  privileges  sought  to be conferred  or  the  liability proposed  to be imposed, it does not  forbid  classification for the purpose of legislation, provided such classification is  not  arbitrary in the sense I have just  explained.  The doctrine, as expounded by this Court in the two cases I have mentioned,  leaves a considerable latitude to the  Court  in the matter of the application of article 14 and consequently has the merit of flexibility.      The  learned Attorney-General, appearing in support  of these  appeals,  however, contends that while  a  reasonable classification of the kind mentioned above may be a test  of the  validity of a particular piece of legislation,  it  may not  be  the only test which will cover all cases  and  that there may be other tests also. In answer to the query of the Court  he  formulates an alternative test in  the  following

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words: If there is in fact inequality of treatment and  such inequality is not made with a special intention of prejudic- ing  any.  particular person or persons but is made  in  the general interest of administration, there is no infringement of article 14. It is at once obvious that, according to  the test thus formulated, the validity of State action, legisla- tive  or executive, is made entirely dependent on the  state of  mind of the authority.  This test will permit even  fla- grantly discriminatory State action on the specious plea  of good  faith  and  of the subjective view  of  the  executive authority as to the existence of a supposed general interest of  administration. This test, if accepted, will  amount  to adding  at the end of article 14 the words "except  in  good faith and in the 336 general  interest  of administration." This is  clearly  not permissible for the Court to do. Further, it is obvious that the addition of these words will, in the language of Brewer, J.,  in  Gulf,  Colorado and Santa Fe Railway  Co.  v.  W.H. Ellis(1), make the protecting clause a mere rope of sand, in no  manner  restraining State action. I am  not,  therefore, prepared to accept the proposition propounded by the learned Attorney-General,  unsupported  as  it is  by  any  judicial decision,  as a sound test for determining the  validity  of State action.     The  learned  Attorney-General  next  contends,  on  the authority  of a passage in Cooley’s  Constitutional  Limita- tions,  8th  Edition, Vol. 2, p. 816, that  inequalities  of minor  importance do not render a law invalid and  that  the constitutional  limitations  must  be  treated  as  flexible enough  to  permit  of practical  application.  The  passage purports  to be founded on the decision in Jeffrey  Manufac- turing Co. v. Blagg (2).  A careful perusal of this decision will make it quite clear that the Court upheld the  validity of the statute impugned in that case, not on the ground that the  inequality was of minor importance but, on  the  ground that  the classification of establishments according to  the number of workmen employed therein was based on an  intelli- gible   distinction  having  a  rational  relation  to   the subject-matter  of the legislation in question.  That  deci- sion, therefore, does not support the proposition so  widely stated  in  the passage apparently added by the  editor   to the   original  text  of  Judge  Cooley.   The    difference brought  about by a statute may be of such a trivial, unsub- stantial  and illusory nature that that  circumstance  alone may be regarded as cogent ground for holding that the  stat- ute has not discriminated at all and that no inequality  has in fact been created.  This aspect of the matter apart, if a statute brings about inequality in fact and in substance, it will be illogical and highly undesirable to make the consti- tutionality  of such a statute depend on the degree  of  the inequality so (1) 165 U.S. 150.           (2) 235 U.S. 571; 59 L. Ed. 364. 337 brought  about.  The adoption of such a principle  will  run counter to the plain language of article 14.     At one stage of his arguments the learned AttorneyGener- al just put forward an argument, which he did not press very strongly,  that  the  Article is a  protection  against  the inequality of substantive law only and not against that of a procedural  law.   I  am quite definitely  not  prepared  to countenance  that  argument. There is no logical  basis  for this distinction.  A procedural law may easily inflict  very great hardship on persons subjected to it, as, indeed,  this very Act under consideration will presently be seen to  have

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obviously done.     That  the Act has prescribed a procedure of trial  which is  materially different from that laid down in the Code  of Criminal  Procedure cannot be disputed.  The different  sec- tions  of the Act have been analysed and the important  dif- ferences  have been clearly indicated by the  learned  Chief Justice  of West Bengal and need not be repeated in  detail. The elimination of the committal proceedings and of trial by jury  (sec.  6), the taking away of the right to a  de  novo trial on transfer (sec. 7), the vesting of discretion in the Special Court to refuse to summon a defence witness if it be satisfied  that his evidence will not be material (sec.  8), the liability to be convicted of an offence higher than that for  which the accused was sent up for trial under  the  Act (sec. 13), the exclusion of interference of other Courts  by way of revision or transfer or under section 491 of the Code (sec.  16) are some of the glaring instances  of  inequality brought  about by the impugned Act.  The  learned  Attorney- General  has drawn our attention to various sections of  the Code of Criminal Procedure in an endeavour to establish that provisions somewhat similar to those enacted in this Act are also  contained in the Code.  A comparison between the  lan- guage of those sections of the Code and that of the  several sections of this Act mentioned above will clearly show  that the Act has gone much beyond the proViSions of the Code  and the Act cannot by any means 44 338 be  said  to be an innocuous substitute  for  the  procedure prescribed  by  the Code.  The far-reaching  effect  of  the elimination of the committal proceedings cannot possibly  be ignored  merely by stating that the warrant procedure  under the  Code  in a way also involves a committal by  the  trial Magistrate,  namely  to himself, for the  warrant  procedure minimises the chances of the prosecution being thrown out at the  preliminary  stage. as may be done  by  the  committing Magistrate, and deprives the accused person of the  opportu- nity of knowing, well in advance of the actual trial  before the  Sessions Court, the case sought to be made against  him and the evidence in support of it and, what is of the utmost importance,  of the benefit of a trial before and the  deci- sion  of a different and independent mind. The liability  to be  convicted  of a higher offence has no  parallel  in  the Code.  It is true that the State can, under section 269  (1) of the Code, do away with trial by jury but that section, as pointed out by Chakravartti J. does not clearly  contemplate elimination of that procedure only in particular cases which is  precisely what the Act authorises the Government to  do. On a fair reading of the Act there  can  be  no escape  from the fact that it quite definitely brings about a substantial inequality  of  treatment, in the matter of  trial,  between persons  subjected to it and others who are left to be  gov- erned by the ordinary procedure laid down. in the Code.  The question is whether section 5 (1) which really imposes  this substantial  inequality on particular persons can  be  saved from the operation of article 14 on the principle of ration- al classification of the kind permissible in law. Section 5 (1) of the Act runs as follows":--       "  A Special Court shall try such offences or  classes of  offences  or  cases or classes of cases,  as  the  State Government  may,  by general or special  order  in  writing, direct".      It will be noticed that the sub-section refers to  four distinct  categories, namely, "offences",’ ’classes  of  of- fences", "cases" and "classes of cases" and empowers

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339 the  State  government to direct any one or  more  of  these categories  to  be tried by the  Special  Court  constituted under  the Act.  I shall first deal with the section  in  so far  as  it authorises the State government to  direct  "of- fences", "classes of offences" and "classes of cases" to  be tried  by a Special Court. These expressions  clearly  indi- cate,  and obviously imply, a process of  classification  of offences  or cases. Prima facie those words do  not  contem- plate  any particular offender or any particular accused  in any  particular  case.   The emphasis is  on  "offences",  ’ ’classes of offences" or "classes of cases".  The  classifi- cation of ’ ’offences" by itself is not calculated to  touch any individual as such, although it may, after the classifi- cation  is made, affect all individuals who may  commit  the particular offence. In short, the classification implied  in this part of the sub-section has no reference to, and is not directed  towards the singling out of any particular  person as  an object of hostile State action but is concerned  only with  the grouping of "offences", "classes of offences"  and "classes  of  cases"  for the purpose of being  tried  by  a Special  Court.  Such being the meaning and  implication  of this part of section 5 (1), the question arises whether  the process  of  classification  thus contemplated  by  the  Act conforms  to the requirements of  reasonable  classification which does not offend against the Constitution.     Learned  Attorney-General claims that the  impugned  Act satisfies  even  this test of rational  classification.  His contention is that offences may be grouped into two classes, namely, those that require  speedier trial, that is speedier than what is provided for in  the  Code  and  those  that do not require a speedier trial.  The Act, according  to   him, purports  to deal only with offences of the first class.  He first draws our attention to the fact that the Act is  inti- tuled  "An Act to provide for the speedier trial of  certain offences"  and then points out that the purpose of the  Act, as  stated  in  its preamble, also is "to  provide  for  the speedier  trial of certain offences". He next refers  us  to the different sections of the Act and urges 340 that  all the procedural changes introduced by the  Act  are designed  to  accomplish  the object  of  securing  speedier trial.  The Act accordingly empowers the State government to direct  the offences, which, in its view,  require  speedier trial,  to  be  tried by a Special Court  according  to  the special  procedure provided by it for the speedier trial  of those offences.  This construction of the section, he  main- tains, is consonant with the object of the Act as recited in the  preamble and does not offend against the inhibition  of article  14  of our Constitution.  Learned counsel  for  the respondents, on the other hand, urge that there is no  ambi- guity whatever in the language used in the sub-section, that there  is  no indication in the sub-section  itself  of  any restriction or qualification on the power of  classification conferred  by it on the State government and that the  power thus given to the State government cannot be controlled  and cut  down by calling in aid the preamble of the Act,     for the  preamble cannot abridge or enlarge the meaning  of  the plain language of the sub-section. This argument was accept- ed by the High Court in its application to the other part of the section dealing with selection of "cases" but in judging whether  this  argument applies, with equal force,  to  that part  of the section I am now considering, it must be  borne in  mind that, although the preamble of an Act cannot  over- ride  the  plain meaning of the language  of  its  operative

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parts, it may, nevertheless, assist in ascertaining what the true meaning or implication of a particular section is, for the  preamble is, as it were a key to the  understanding  of the  Act.  I therefore, proceed to examine this part      of section 5(1) in the light of the preamble so as to ascertain the true meaning of it.      I  have already stated that  this  part  of   the  sub- section  contemplates  a process of classification  of  "of- fences", "classes of offences" and "classes of cases".  This classification must, in order that it may not  infringe  the constitutional   prohibition,  fulfil the two  conditions  I have mentioned.  The preamble of the Act under consideration recites  the expediency of providing for the speedier  trial of certain 341 offences.  The provision for the speedier trial  of  certain offences  is, therefore, the object of the Act.  To  achieve this  object, offences or cases have to be  classified  upon the  basis of some differentia which will distinguish  those offences or cases from others and which will have a reasona- ble relation to the recited object of the Act. The differen- tia  and  the object being, as I have said,  different  ele- ments,  it follows that the object by itself cannot  be  the basis  of the classification of offences or the cases,  for, in  the absence of any special circumstances which may  dis- tinguish  one offence or one class of offences or one  class of cases from another offence, or class of offences or class of  cases,  speedier trial is desirable in the  disposal  of all  offences  or classes of offences or classes  of  cases. Offences or cases cannot be classified in two categories  on the basis of the preamble alone as suggested by the  learned Attorney-General.     Learned counsel for the respondents then contended  that as  the object of the Act as recited in the preamble  cannot be  the basis of classification, then this part of  sub-sec- tion  5  (1)  gives an uncontrolled and  unguided  power  of classification  which  may well be exercised  by  the  State government capriciously or "with an evil eye and an  unequal band" so as to deliberately bring about invidious  discrimi- nation between man and man, although both of them are  situ- ated in exactly the same or similar circumstances. By way of illustration it is pointed out that in the Indian Penal Code there are different chapters dealing with offences  relating tO  different matters, e.g., Chapter XVII which  deals  with offences against property, that under this generic head  are set  forth different species of offences  against  property, e.g.,  theft (section 378), theft in a dwelling house  (sec- tion 380), theft by a servant (section 381), to take only  a few  examples,  and  that according to  the  language     of section  5(1)  of the impugned Act it will be  open  to  the State government to direct all offences of theft in a dwell- ing house under section 380 to be tried by the Special Court according  to  the special procedure laid down  in  the  Act leaving all offences of theft by a servant under section 381 to be dealt with in the 342 ordinary  Court  in  the usual way. In  other  words,  if  a stranger  is charged with theft in a dwelling house, he  may be sent up for trial before the Special Court under  section 380  whereas if a servant is accused of theft in a  dwelling house  he  may  be left to be tried under the  Code  for  an offence  under  section 381. The argument is  that  although there  is  no apparent reason why an offence of theft  in  a dwelling  house by a stranger should require speedier  trial any  more than an offence of theft in a dwelling house by  a

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servant  should  do, the State government  may  nevertheless select  the  former offence for special  and  discriminatory treatment  in the matter of its trial by bringing  it  under the  Act.  A little reflection will show that this  argument is  not sound.  The part of sub-section 5(1) which I am  now examining confers a power on the State government to make  a classification  of offences, classes of offences or  classes of cases, which, as said by Chakravartti J., "means a proper classification."  In order to be a proper classification  so as  not to offend against the Constitution it must be  based on some intelligible differentia which should have a reason- able  relation  to the object of the Act as recited  in  the preamble.  In the illustration taken above the two  offences are only two species of the same genus, the only  difference being  that in the first the alleged offender is a  stranger and in the latter he is a servant of the owner whose proper- ty has been stolen.  Even if this difference in the  circum- stances  of the two alleged offenders can be made the  basis of a classification, there is no nexus between this  differ- ence  and the object of the Act, for, in the absence of  any special  circumstances, there is no apparent reason why  the offence  of theft in a dwelling house by a  stranger  should require a speedier trial any more than the offence of  theft by  a servant should do. Such classification will be  wholly arbitrary and will be liable to be hit by the principles  on which the Supreme Court of the United States in Jack Skinner v.  Oklahoma(1) struck down the Oklahoma  Habitual  Criminal Sterilisation Act which (1) 216 US. 535; 86 L. Ed. 1655. 343 imposed sterilisation on a person convicted more than  twice of larceny but not on one who was convicted of  embezzlement on  numerous occasions.  That sort of  classification  will, therefore,  not clearly be a proper classification  such  as the Act must be deemed to contemplate.     On  the other hand, it is easy to visualise a  situation when  certain offences, e.g., theft in a dwelling house,  by reason  of  the  frequency of their  perpetration  or  other attending circumstances, may legitimately call for a speedi- er trial and swift retribution by way of punishment to check the  commission of such offences. Are we not  familiar  with gruesome crimes of murder, arson, loot and rape committed on a large scale during communal riots in particular localities and  are  they not really different from a case of  a  stray murder,  arson, loot or rape in another district  which  may not  be  affected  by any communal upheaval ?   Do  not  the existence  of the communal riot and the  concomitant  crimes committed  on  a large scale call for  prompt  and  speedier trial in the very interest and safety of the community ? May not political murders or crimes against the State or a class of  the community, e.g., women, assume such  proportions  as would be sufficient to constitute them into a special  class of  offences  requiring  special treatment ?  Do  not  these special  circumstances add a peculiar quality to  these  of- fences  or  classes of offences or classes  of  cases  which distinguish  them from stray cases of similar crimes and  is it  not reasonable and even necessary to arm the State  with power  to classify them into a separate group and deal  with them  promptly  ?     I have no doubt in my  mind  that  the surrounding  circumstances and the special features  I  have mentioned  above will furnish a very cogent  and  reasonable basis  of  classification, for it is obvious  that  they  do clearly distinguish these offences from similar or even same species  of offences committed elsewhere and under  ordinary circumstances. This differentia quite clearly has a reasona-

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ble relation to the object sought to be achieved by the Act, namely,  the  speedier  trial of certain  offences.  Such  a classification will not be 344 repugnant to the equal protection clause of our Constitution for there will be no discrimination, for whoever may  commit the specified offence in the specified area in the specified circumstances  will be treated alike and  sent  up before  a Special  Court  for  trial  under  the  special   procedure. Persons  thus  sent up for trial by a Special  Court  cannot point their fingers to the other persons who may be  charged before an  ordinary Court with similar or even same  species of  offences in a different place and in  different  circum- stances  and complain of unequal treatment, for those  other persons  are  of  a different category  and  are  not  their equals.   Section 5(1), in so far as it empowers  the  State government to direct "offences" or "classes of offences"  or "classes of cases" to be tried by a Special Court, also,  by necessary  implication  and intendment, empowers  the  State government  to  classify the "offences" or "classes  of  of- fences"  or "classes of cases ", that is to say, to  make  a proper classification in the sense I have explained.  In  my judgment,  this part of the section, properly construed  and understood,  does  not confer an uncontrolled  and  unguided power  on the State government. On the contrary, this  power is controlled by the necessity for making a proper classifi- cation which is guided by the preamble in the sense that the classification  must have a rational relation to the  object of the Act as recited in the preamble. It is, therefore, not an  arbitary power. I, therefore, agree with  Harries,  C.J. that  this part of section 5(1) is valid. if the State  gov- ernment  classifies  offences  arbitrarily and  not  on  any reasonable basis having a relation to the object of the Act, its  action  will be either an abuse of its power if  it  is purposeful or in excess of its powers even if it is done  in good  faith and in either case the resulting  discrimination will  encounter  the challenge of the Constitution  and  the Court  will strike down, not the law which is good, but  the abuse  or misuse or the unconstitutional  administration  of the law creating or resulting in unconstitutional  discrimi- nation. 345     In  the present case, however, the State government  has not  purported  to proceed under that part of  section  5(1) which  I have been discussing so far. It has, on  the  other hand, acted under that part of the section which  authorises it  to direct" cases" to be tried by the Special Court,  for by the notifications it has directed  certain specific cases identified by their individual numbers in the records of the particular than  as to be tried by the Special Court.  There is ostensibly no attempt at, or pretence of, any classifica- tion on any basis whatever.  The notifications simply direct certain  "cases"  to be tried by the Special Court  and  are obviously  issued  under  that part of  section  5(1)  which authorises  the  State government to direct  "cases"  to  be tried  by the Special Court. The word "cases" has been  used to signify a category distinct from "classes of cases".  The idea of classification is, therefore, excluded.  This ’means that this part of the sub-section empowers the State Govern- ment to pick out or select particular cases against particu- lar  persons  for  being sent up to the  Special  Court  for trial.  It is urged by the learned AttorneyGeneral that this selection  of  cases must also be made in the light  of  the object  of the Act as expressed in its preamble, that is  to say, the State government can only select those cases which,

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in their view, require speedier trial. Turning to the pream- ble,  I find that the object of the Act is "to  provide  for the speedier trial of certain offences" and not of a partic- ular case or cases.  In other words, this part of section  5 (1)  lies  beyond the ambit of the object laid down  in  the preamble and, therefore, the preamble can have no manner  of application  in  the selection of "cases" as  distinct  from "offences", "classes of offences" or "classes of cases".   I agree  with  Harries C.J. that the preamble  cannot  control this part of the sub-section where the language is plain and unambiguous.   Further,  as I have  already  explained,  the object  of  the Act cannot, by itself, be the basis  of  the selection which, I repeat, must be based on some differentia distinguishing the ’ ’case" from other ’ ’cases" and  having a relation to the 45 346 object  of the Act.  It is difficult, if not impossible,  to conceive of an individual "case", as distinct from a  "class of cases", as a class by itself within the rule of permissi- ble  and  legitimate classification.  An individual case  of a  crime committed with gruesome atrocity or committed  upon an  eminent  person may shock our moral sense to  a  greater extent  but,  on  ultimate analysis and in  the  absence  of special  circumstances such as I have mentioned, it  is  not basically different from another individual case of a  simi- lar  crime  although committed with less vehemence or  on  a less  eminent person.  In any case, there is  no  particular bond  connecting  the circumstances of the  first  mentioned case with the necessity for a speedier trial. In the absence of  special  circumstances of the kind  I   have   described above,  one  individual  case, say of murder, cannot require speedier  trial  any more than another  individual  case  of murder  may do.  It is, therefore, clear, for the  foregoing reasons,  that the power to direct "cases" as distinct  from "classes  of cases" to be tried by a Special  Court  contem- plates  and involves a purely arbitrary selection  based  on nothing more substantial than the whim and pleasure of State Government  and  without  any appreciable  relation  to  the necessity for a speedier trial. Here the law lays an unequal hand  on  those who have committed  intrinsically  the  same quality  of  offence. ]his power must inevitably  result  in discrimination and this discrimination is, in terms incorpo- rated  in  this part of the section itself  and,  therefore, this part of the section itself must incur our condemnation. It  is not a question of an unconstitutional  administration of a statute otherwise valid on its face but here the uncon- stitutionality  is  writ large on the face  of  the  statute itself. I, therefore, agree with the High Court that section 5(1)  of the Act in so far as it empowers the State  Govern- ment  to direct "cases" to be tried by a Special  Court  of- fends against the provisions of article 14 and therefore the Special  Court had no jurisdiction to try these  "cases"  of the respondents.  In ray judgment, the High Court was  right in quashing the conviction 347 of  the respondents in the one case and in prohibiting  fur- ther proceedings in the other case and these appeals  should be dismissed.     CHANDRASEKHARA  AIYAR  J.--The  short  question     that arises  for  consideration  in these cases  is  whether  the whole,  or  any portion of the West Bengal  Special   Courts Act,  X  of 1950, is invalid as being  opposed  to  equality before the law and the equal protection of the laws  guaran- teed  under  article 14 of the Constitution of  India.   The

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facts which have led up to the cases have been stated in the judgments of the High Court at Calcutta and their  recapitu- lation is unnecessary. I agree in the conclusion reached  by my learned brothers that the appeals should be dismissed and I  propose to indicate my views as shortly as possible on  a few only of the points raised and discussed.     The  preamble  to the Constitution mentions one  of  the objects  to  be to secure to all its  citizens  equality  of status and opportunity. Article 14 provides:     "The State shall not deny to any person equality  before the  law  or  the equal protection of the  laws  within  the territory of India."     Then  follow articles 15 and 16, the former  prohibiting discrimination  on  grounds of religion, race,  caste,  sex, place of birth, or any of them and the latter providing  for equality  of  opportunity in matters of  public  employment. Leaving  aside articles 17 to 19 as irrelevant  for  present purposes,  we proceed to articles 20, 21 and 22, which  deal with prosecutions and convictions for offences and cases  of preventive  detention  and prescribe, in rough  and  general outline, certain matters of procedure.  Article 21 is, so to say, the key of this group or bunch and it is in these terms :-     "No  person  shall be deprived of his life  or  personal liberty   except  according  to  procedure  established   by law".      There can be no doubt that as regards the cases to be sent before the Special Court or Courts, the Act 348 under  scrutiny has deviated in many matters  of  importance from the procedure prescribed by the Criminal Procedure Code for  the trial of offences and that this departure has  been definitely  adverse  to  the  accused.  Preliminary  inquiry before committal to the sessions, trial by jury or with  the aid  of assessors, the right of a de novo trial on  transfer of  a case from one Court to another, have been  taken  away from  the  accused who are to be tried by a  Special  Court; even graver is section 13, which provides that a person  may be  convicted  of an offence disclosed by  the  evidence  as having been committed by him, even though he was not charged with  it and it happens to be a more serious  offence.  This power of the Special Court is much wider than the powers  of ordinary  courts.  The points of prejudice against  the  ac- cused  which appear in the challenged Act have been  pointed out  in detail in the judgment of Trevor Harries  C.J.  They cannot  all  be  brushed aside as variations  of  minor  and unsubstantial importance.     The  argument  that changes in procedural  law  are  not material and cannot be said to deny equality before the  law or the equal protection of the laws so long as the  substan- tive  law  remains unchanged or that  only  the  fundamental rights referred to in articles 20 to 22 should be safeguard- ed  is,  on the face of it, unsound. The right  to  equality postulated  by article 14 is as much a fundamental right  as any  other fundamental right dealt with in Part III  of  the Constitution. Procedural law may and does confer very  valu- able  rights  on a person, and their protection must  be  as much  the object of a court’s solicitude as those  conferred under substantive law.     The  learned  Attorney-General  contended  that  if  the object  of  the  legislation was a laudable one  and  had  a public purpose in view, as in this case, which provided  for the  speedier trial of certain offences, the fact that  dis- crimination  resulted as a bye-product would not offend  the provisions of article 14. His point was that if the inequal-

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ity of treatment was not specifically intended to  prejudice any particular person or group 349     persons but was in the general interests of  administra- tion, it could not be urged that there is a denial of equal- ity  before  the law. To accept this position  would  be  to neutralize,  if  not  to abrogate  altogether,  article  14. Almost  every piece of legislation has got a public  purpose in  view and is generally intended, or said to be  intended, to  promote  the  general progress of the  country  and  the better  administration of Government.’ The intention  behind the legislation may be unexceptionable and the object sought to  be achieved may be praiseworthy but the  question  which falls  to  be  considered under article 14  is  whether  the legislation is discriminatory in its nature, and this has to be  determined not so much by its purpose or objects but  by its effects.  There is scarcely any authority for the  posi- tion taken up by the Attorney-General.     It  is well settled that equality before the law or  the equal protection of laws does not mean identity or  abstract symmetry  of  treatment.  Distinctions have to be  made  for different  classes and groups of persons and a  rational  or reasonable  classification  is permitted,  as  otherwise  it would  be almost impossible to carry on the work of  Govern- ment of any State or country. To use the felicitous language of  Mr. Justice Holmes in Bain Peanut Co. v.  Pinson(1)  "We must  remember  that the machinery of government  could  not work  if it were not allowed a little play in  its  joints." The  law  on the subject has been well stated in  a  passage from  Willis  on Constitutional Law (1936 Edition,  at  page 579) and an extract from the pronouncement    this Court  in what is known as the Prohibition Case, The State of.  Bombay and Another v.F.N. Balsara(2), where my learned brother Fazl Ali J. has distilled in the form of seven principles most of the useful observations of this Court in the Sholapur  Mills case,  ChiranLal  Chowdhury  v.  The  Union  of  India   and Others(3) Willis says :--     "The guaranty of the equal protection of the laws  means the protection of equal laws.  It forbids   (1) 282 U.S. 499 at p. 501.       (3) [1950] S.C.R. 869.   (2) [1951] S.C.R. 682. 350 class legislation, but  does not forbid classification which rests  upon reasonable grounds of distinction. It  does  not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which  it is to operate.  "It merely requires that all persons subject to  such legislation shall be treated alike under like  cir- cumstances  and conditions both in the privileges  conferred and  in  the liabilities imposed."  "The inhibition  of  the amendment  was  designed to prevent any person or  class  of persons  from  being singled out as a  special  subject  for discriminating  and hostile legislation."  It does not  take from the states the power to classify either in the adoption of  police  laws, or tax laws, or eminent domain  laws,  but permits to them the exercise of a wide scope of  discretion, and  nullifies  what  they do only when it  is  without  any reasonable basis.  Mathematical nicety and perfect  equality are not required. Similarity, not identity of treatment,  is enough. If any state of facts can reasonably be conceived to sustain  a  classification, the existence of that  state  of facts  must  be assumed.  One who assails  a  classification must carry the burden of showing that it does not rest  upon any reasonable basis."     The  seven principles formulated by Fazl Ali J.  are  as

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follows :--     "1. The presumption is always in favour of the constitu- tionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the  needs of  its own people, that its laws are directed  to  problems made  manifest  by experience and  its  discriminations  are based on adequate grounds.     2.  The presumption may be rebutted in certain cases  by showing that on the face of the statute, there is no classi- fication at all and no difference peculiar to any individual or  class  and  not applicable to any  other  individual  or class, and yet the law hits only a particular individual  or class.     3.  The principle of equality does not mean  that  every law must have universal application for all 351 persons  who are not by nature, attainment or  circumstances in  the  same position, and the varying needs  of  different classes of persons often require separate treatment.        4.  The principle does not take away from  the  State the power of classifying persons for legitimate purposes.     5. Every classification is in some degree likely to produce  some inequality, and mere production of  inequality is not enough.       6.   If  a  law  deals  equally  with  members  of   a welldefined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground  that it has no application to other persons.      7. While reasonable classification is permissible, such classification must be based upon some real and  substantial distinction  bearing a reasonable and just relation  to  the object sought to be attained, and the classification  cannot be made arbitrarily and without any substantial basis."     After these citations, it is really unnecessary to refer to or discuss in detail most of the American decisions cited at  the Bar.  Their number is legion and it is  possible  to alight  on decisions in support of propositions,  apparently even conflicting, if we divorce them from the context of the particular facts and circumstances and ignore the setting or the  background  in which they were delivered.   With  great respect,  I fail to see why we should allow ourselves to  be unduly   weighted-down  or  over-encumbered in this  manner. To  say  this is not to shut out illumining light  from  any quarter;  it  is merely to utter a note of caution  that  we need not stray far into distant fields and try to clutch  at something which may not after all be very helpful.  What  we have  to  find  out is whether the statute  now  m  question before us offends to any extent the equal protection of  the laws  guaranteed by our written Constitution.   Whether  the classification,  ii any, is reasonable or arbitrary,  or  is substantial or unreal, has to be adjudicated upon by 352 the courts and the decision must turn more on one’s  common- sense than on over-refined legal distinctions or subtleties.     The  Attorney-General  argued that if the  principle  of classification has to be applied as a necessary test,  there is  a classification in the impugned Act as it says that  it is  intended  to provide for the speedier trial  of  certain offences;  and  in the opinion of  the  legislature  certain offences  may  require  more expeditious  trial  than  other offences  and this was a good enough classification. But  as speedy administration of justice, especially in the field of the  law of crimes, is a necessary characteristic  of  every civilised  Government,  there is not much point  in  stating that  there is a class of offences that require such  speedy

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trial.  Of course, there may be certain offences whose trial requires priority over the rest and quick progress, owing to their  frequent occurrence, grave danger to public peace  or tranquillity,  and  any other special features that  may  be prevalent at a particular time in a specified area. And when it  is  intended to provide that they should be  tried  more speedily than other offences, requiring in certain  respects a  departure from the procedure prescribed for  the  general class of offences, it is but reasonable to expect the legis- lature  to indicate the basis for any  such  classification. If  the  Act does not state what exactly  are  the  offences which in its opinion need a speedier trial and why it is  so considered, a mere statement in general words of the  object sought  to  be achieved, as we find in this case, is  of  no avail  because  the classification, if any, is  illusive  or evasive.   The  policy  or idea  behind  the  classification should  at least be adumbrated, if not stated, so  that  the court which has to decide on the constitutionality might  be seized  of something on which it could base its  view  about the  propriety of the enactment from the standpoint of  dis- crimination  or equal protection. Any arbitrary division  or ridge  will render  the equal protection clause moribund  or lifeless.      Apart  from the absence of any reasonable  or  rational classification we have in this case the additional feature 353 of  a carte blanche being given to the State  Government  to send  any  offences or cases for trial by a  Special  Court. Section  5, sub-clause (1), of the impugned Act is in  these terms :--     " A Special Court shall try such offences or classes  of offences or cases or classes of cases, as the State  Govern- ment may, by general or special order in writing, direct."     If the scope or the’ meaning of the Act is doubtful, the preamble can be referred to for ascertaining its extent  and purpose.  But where the operative parts of the Act are clear and there is no ambiguity, the preamble cannot be allowed to control  the express provisions. On the terms of section  5, it  would be perfectly open to the State Government to  send before  the  Special Court any case,  whatever  its  nature, whether  it has arisen out of a particular incident  or  re- lates  to a crime of normal occurrence, whether the  offence involved  is grave or simple, whether it needs more  expedi- tious  trial or not.  Thus, we have before us  an  enactment which does not make any reasonable classification and  which confers on the executive an uncontrolled and unguided  power of discrimination.     The question whether there is any proper  classification where  no  standard is set up by the  enactment  to  control executive  action  has arisen for consideration  before  the American  courts and has been differently answered.   Willis says at page 586 :-     "Is  it proper classification to put in one class  those who  get the consent of a board or of an official  and  into another class those who do not, where no standard is set  up to control the action of the board or official ? Some  cases answer. this question in the affirmative, while other  cases answer  it in the negative.  Perhaps the best view  on  this subject is that due process and equality are not violated by the  mere  conference  of unguided power, but  only  by  its arbitrary exercise by those upon whom it is conferred."     The  case cited in support of this view,  Plymouth  Coal Co. v. Pennsylvania(1), is really on authority for (1) 232 U.S. 532. 46

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354 any such position.  In that case, the statute provided  that it  was "obligatory on the owners of adjoining coal  proper- ties to leave, or cause to be left, a pillar of coal in each seam  or  vein  of coal worked by them, along  the  line  of adjoining property, of such width that, taken in  connection with the pillar to be left by the adjoining property  owner, will be a sufficient barrier for the safety of the employees of  either  mine in case the other should be  abandoned  and allowed  to  fill  with water; such width of  pillar  to  be determined by the engineers of the adjoining property owners together  with  the inspector of the district in  which  the mine is situated." When the Inspector of Mines wrote to  the plaintiff company, Plymouth Coal Co., asking their  engineer to meet him so that they can meet the engineer of the neigh- bouring  coal company to decide about the thickness  of  the barrier pillar to be left unmined between the two  adjoining coal properties, the plaintiff company declined to  co-oper- ate.   Thereupon  the Inspector filed a  bill  of  complaint against  the plaintiff company for a preliminary and a  per- petual injunction from working its mines--without leaving  a barrier pillar of the dimensions he thought necessary.   The plaintiff company urged that the Act upon which the bill was based  "was confiscatory, unconstitutional, and void".   The bill of complaint succeeded but it was provided in the final order  that  it was without prejudice to the  Plymouth  Coal Co.’s  right to get dissolution or modification of  the  in- junction.   The  matter  came up on appeal  to  the  Supreme Court.  The legislative Act was challenged by  the  Plymouth Coal Co. on the grounds that the method of fixing the  width of the barrier pillar indicated in the Act was crude, uncer- tain  and  unjust, that  there was uncertainty and  want  of uniformity in the membership of the statutory tribunal, that there was no provision of notice to the parties  interested, that  the procedure to be followed was not  prescribed,  and that there was noright of appeal. All these objections  were negatived.   The Court observed on the main contention  that "it was competent for the legislature to lay 355 down  a general rule, and then establish  an  administrative tribunal  with authority to fix the precise width or  thick- ness of pillar that will suit the necessities of the partic- ular situation, and constitute a compliance with the general rule."  This case is no authority for the position that  the mere conferment of naked or uncontrolled power is no  viola- tion  of the due process or c equality clauses. it  is  true that  the power to deal with a particular  situation  within the  general  rule prescribed by the enactment may  be  con- ferred  on an administrative body or even on a single  indi- vidual but this entrustment or delegation is subject to  the condition  that the statute must itself be a valid  one,  as not being opposed to the 5th or 14th Amendment of the Ameri- can Constitution, corresponding to articles 14 and 22 of our Constitution.     Discrimination may not appear in the statute itself  but may  be  evident  in the administration of the  law.  If  an uncontrolled  or  unguided power is  conferred  without  any reasonable and proper standards or limits being laid down in the enactment, the statute itself may be challenged and  not merely  the particular administrative act.  Citing the  case of Sunday Lake Iron Co. v. Wakefield, Rogers v. Alabama  and Concordia  Fire Ins. Co. v. Illinois, Prof. Weaver  says  at page 404 of his compendious book on Constitutional Law under the heading of ’ DISCRIMINATION IN THE ADMiNiSTRATION OF THE LAWS’:--

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   "Discrimination  may exist in the administration of  the laws and it is the purpose of the equal protection clause to secure all the inhabitants of the state from intentional and arbitrary discrimination arising in their improper or preju- diced execution, as well as by the express terms of the  law itself.   The  validity  or invalidity of  a  statute  often depends on how it is construed and applied. It may be  valid when  given a particular application and invalid when  given another."     A  difficulty was suggested and discussed in the  course of  the arguments in case article 14 was to receive  a  very wide interpretation.  Under article 12 of the 356 Constitution, even a local authority comes within the  defi- nition of "the State" and section 13 provides in  sub-clause (3)  that  "’law’  includes any ordinance,  order,  bye-law, rule, regulation, notification............  " Therefore  any ordinance or notification issued by a local authority acting under  the  powers  conferred on it by a  statute  might  be challenged  as discriminatory and if this is permitted,  the work of administration might be paralysed altogether.  This, no doubt, is a possible result but the difficulty  envisaged is by no means insurmountable.  If the statute or the enact- ment  makes a reasonable or rational classification  and  if the  power conferred by the statute on a local authority  is exercised  to the prejudice of a person visa vis other  per- sons similarly situated, two answers would be possible.  One is  that there was no discrimination at all in the  exercise of the power.  The second is that the power was exercised in good faith within the limitations imposed by the Act and for the achievement of the objects the enactment had in view and that  the person who alleges that he has been  discriminated against will have to establish mala fides in the sense  that the step was taken intentionally for the purpose of injuring him;  in other words, it was a hostile act directed  against him.   If  the legislation itself is open to attack  on  the ground of discrimination, the question of any act done by  a local or other authority under the power or powers vested in it  will  not  arise. If the Act itself is  invalid  on  the ground that it is ultra vires, the notification,  ordinance, or rule falls to the ground with it, but if the Act remains, the  validity  of the notification or order etc.,  when  im- pugned, may have to be considered independently.     There may be cases where individual acts of state  offi- cials  are  questioned and not the  legislation  itself.  As regards  such cases, Willoughby states at page 1932  of  his Volume III on the Constitution of the United States :--     "It is, however, to be observed in this connection, that the  prohibitions apply to the acts of State officials  even when they are done in pursuance of some 357 State  legislative direction, for, while  no  constitutional objection  may be made to any law of the State, it has  been held that its officials may exercise their public  authority in  such  a discriminatory or arbitrary manner as  to  bring them within the scope of the prohibitions of the  Fourteenth Amendment.  This, it will be remembered, was one     of  the grounds upon which, in Yick Wo v. Hopkins    (118 U.S.  356) it was held that due process of law    had been denied.  In Tarrance  v. Florida (188 U.S. 519) the administration of  a State  law  and not the law itself was  challenged  and  the court  said: ’Such an actual discrimination is as  potential in creating a denial of equality of rights as a  discrimina- tion made by law.’"     There is only one other point that I would like to  deal

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with. Trevor Harries C.J. has taken the view that section  5 of  the  Act  would have been unexceptionable  had  it  only provided  for  the trial by a Special Court of  certain  of- fences  or classes of offences or certain classes  of  cases and  that  in his opinion the discrimination  arose  by  the provision  for  the trial of cases, as  distinguished   from classes   of  cases.  It is rather  difficult,  however,  to appreciate this distinction. If the statute makes no classi- fication  at all, or if the classification purported  to  be made  is  not reasonable or rational but  is  arbitrary  and illusory,  as in this case, Section 5 would be void as  con- travening  article.  14.  It is no doubt true  that  totally different  considerations might arise if specified  offences or groups of offences in a particular area or arising out of a particular event or incident were to be,tried by a Special Court but this is not the case here. I am unable to see  how if  the Act merely provided that certain "classes of  cases" as  distinguished from "cases" should be tried by a  Special Court,  the attack against discrimination could be  avoided, as even then the test of rationality or reasonableness would still remain to be satisfied. If the Act does not  enunciate any  principle  on the basis of which the  State  Government could  select  offences or classes of offences or  cases  or classes  of cases and the State Government is left  free  to make 358 any arbitrary selection according to their will and pleasure then the Act is void.  On this point, I would invite special attention to the view taken by Mr. Justice Das Gupta in  the following passage of his Judgment:--     "The Act lays  down no principle  on which selection  of "classes  of offences" or "classes of cases" should be  made by  the  State  Government. The State  Government  may  even arbitrarily  determine the classes of cases to be  tried  by the Special Court and if it does so its action will be  well within  its powers conferred by the Act.  The Act  indicates no  basis whatsoever on which such classification should  be made. I am of opinion that the whole Act is ultra vires  the Constitution and  deletion of the word "cases" from  section 5 would not save the rest of the Act from being invalid."     Bose  J.--We are concerned here with article 14  of  the Constitution  and  in particular with  the  words  "equality before  the  law" and "equal protection of the law."  Now  I yield to none in my insistence that plain unambiguous  words in a statute, or in the Constitution, must having regard  to the  context,  be interpreted according  to  their  ordinary meaning  and  be given full effect.  But that  predicates  a position  where the words are plain and unambiguous.   I  am clear that that is not the case here.     Take  first the words "equality before the law".  It  is to be observed that equality in the abstract is not  guaran- teed  but only equality before the law.  That at once  leads to the question, what is the law, and whether "the law" does not  draw  distinctions  between man and man  and  make  for inequalities in the sense of differentiation?  One has  only to  look  to the differing personal laws which  are  applied daily  to see that it does; to trusts and  foundations  from which only one particular race or community may benefit,  to places  of worship from which all but members of  particular faith  are  excluded, to cemeteries and  towers  of  silence which none but the faithful may use, to the 359 laws  of property, marriage and divorce.  All that  is  part and parcel of the law of the land and equality before it  in any literal sense is impossible unless these laws are  swept

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away, but that is not what the Constitution says, for  these very  laws are preserved and along with equality before  the law  is also guaranteed the right to the practice  of  one’s faith.     Then, again, what does "equality" mean? All men are  not alike.  Some  are rich and some are poor. Some by  the  mere accident of birth inherit riches, others are born to  pover- ty.   There are differences in social standing and  economic status.  High sounding phrases cannot alter such fundamental facts. It is therefore impossible to apply rules of abstract equality to conditions which predicate in equality from  the start; and yet the words have meaning though in my  judgment their  true content is not to be gathered by  simply  taking the words in one hand and a dictionary in the other, for the provisions of the Constitution are not mathematical  formula which  have  their essence in mere form. They  constitute  a frame-work  of government written for men  of  fundamentally differing opinions and written as much for the future as the present.  They are not just pages from a text book but  form the  means  of ordering the life of  a  progressive  people. There  is  consequently  grave  danger  in  endeavouring  to confine  them in watertight  compartments made up of  ready- made  generalisations like classification. I have  no  doubt those  tests serve as a rough and ready guide in some  cases but they are not the only tests, nor are they the true tests on a final analysis.     What,  after  all,  is classification? It  is  merely  a systematic  arrangement  of things into groups  or  classes, usually  in  accordance with some definite scheme.  But  the scheme  can be anything and the laws which are laid down  to govern the grouping must necessarily be arbitrarily  select- ed; also granted the right to select, the classification can be  as broadbased as one pleases, or it can be  broken  down and down until finally just one solitary unit is divided off from the rest.  Even those 360 who  propound  this theory are driven to  making  qualifica- tions.  Thus,  it is not enough merely to classify  but  the classification  must  not be ’discriminatory’, it  must  not amount  to  ’hostile  action’,  there  must  be  ’reasonable grounds  for distinction’, it must be ’rational’  and  there must  be  no ’substantial discrimination’.   But  what  then becomes of the classification? and who are to be the  judges of the reasonableness and the substantiality or otherwise of the discrimination?  And, much more important, whose  stand- ards   of   reasonableness   are  to   be   applied?   --the judges’?--the  government’s?--or that of the mythical  ordi- nary  reasonable  man of law which is no single  man  but  a composite  of many men whose reasonableness can be  measured and gauged even though he can neither be seen nor heard  nor felt?  With the utmost respect I cannot see how these  vague generalisations  serve to clarify the position.  To my  mind they do not carry us one whit beyond the original words  and are no more satisfactory than saying that all men are  equal before the law and that all shall be equally treated and  be given  equal protection. The problem is not solved  by  sub- stituting one generalisation for another.     To say that the law shall not be discriminatory  carries us nowhere for unless the law is discriminatory the question cannot  arise.  The whole problem is to pick out from  among the  laws which make for differentiation the ones  which  do not offend article 14 and separate them from those which do. It is true the word can also be used in the sense of showing favouritism, but in so far as it means that, it suffers from the  same defect as the ’hostile action’ test.  We are  then

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compelled to import into the question the element of  motive and delve into the minds of those who make the  differentia- tion or pass the discriminatory law and thus at once substi- tute a subjective test for an objective analysis.     I  would always be slow to impute want of good faith  in these cases. I have no doubt that the motive, except in rare cases, is beyond reproach and were it not for the fact  that the  Constitution  demands 361 equality  of treatment these laws would, in my  opinion,  be valid.  But  that apart. What material have we  for  delving into the mind of a legislature? It is useless to say that  a man  shall be judged by his acts, for acts of this kind  can spring from good motives as well as bad, and in the  absence of other material the presumption must be overwhelmingly  in favour of the former.     I  can conceive of cases where there is the utmost  good faith and where the classification is scientific and ration- al  and  yet  which would offend this law. Let  us  take  an imaginary  case in which a State legislature considers  that all  accused persons  whose skull measurements are below   a certain   standard, or who cannot  pass a given  series   of intelligence  tests, shall be tried summarily  whatever  the offence  on  the  ground  that the  less   complicated   the trial  the  fairer it is to their sub-standard  of  intelli- gence.   Here  is  classification.  It  is  scientific   and systematic.  The intention and motive are good. There is  no question  of favouritism, and yet I can hardly believe  that such a law would be allowed to stand. But what would be  the true  basis  of the decision? Surely simply  this  that  the judges would not consider that fair and proper. However much the real ground of decision may be hidden behind a screen of words  like    ’reasonable’,    ’substantial’,    ’rational’ and  ’arbitrary’ the fact would remain that judges are  sub- stituting their own judgment of what is right and proper and reasonable and just for that of the legislature; and up to a point  that, I think, is inevitable when a judge  is  called upon to crystallise a vague generality like article 14  into a  concrete concept.   Even in England, where Parliament  is supreme,  that is inevitable, for, as Dicey tells us in  his Law of the Constitution,     "Parliament  is  the supreme legislator,  but  from  the moment  Parliament  has uttered its will as  lawgiver,  that will  becomes subject to the interpretation put upon  it  by the  judges of the land, and the judges, who are  influenced by the feelings of magistrates no 47 362 less  than  by  the general spirit of the  common  law,  are disposed  to  construe statutory exceptions  to  common  law principles  in a mode which would not commend itself  either to  a body of officials, or to the Houses of Parliament,  if the  Houses were called upon to interpret their  own  enact- ments."     This,  however, does not mean that judges are to  deter- mine what is for the good of the people and substitute their individual and personal opinions for that of the  government of  the  day, or that they  may usurp the functions  of  the legislature.   That is not their province and  though  there must  always be a a  narrow  margin  within   which  judges, who  are  human, will always be  influenced  by   subjective factors,  their training and their tradition makes the  main body of their decisions speak with the same voice and  reach impersonal results whatever their personal predilections  or their  individual  backgrounds. It is the  function  of  the

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legislature  alone, headed by the government of the day,  to determine what is, and what is not, good and proper for  the people of the land; and they must be given the widest  lati- tude  to exercise their functions within the ambit of  their powers,  else all progress is barred.  But, because  of  the Constitution,  there are limits beyond which they cannot  go and  even though it fails to the lot of judges to  determine where  those limits lie, the basis of their decision  cannot be  whether the Court thinks the law is for the  benefit  of the people or not. Cases of this type must be decided solely on the basis whether the Constitution forbids it.     I realise that this is a function which is incapable  of exact  definition  but I do not view that with  dismay.  The common law of England grew up in that way. It was  gradually added  to  as each concrete case arose and  a  decision  was given  ad  hoc on the facts of that particular case.  It  is true the judges who thus contributed to its growth were  not importing personal predilections into the result and  merely stated what was the law applicable to that particular  ease. But  though they did not purport to make the law and  merely applied 363 what according to them, had always been the law handed  down by  custom and tradition, they nevertheless had to draw  for their material on a nebulous mass of undefined rules  which, though  they existed in fact and left a vague  awareness  in man’s  minds, nevertheless were neither  clearly  definable, nor  even necessarily identifiable, until crystallised  into concrete existence by a judicial decision; nor indeed is  it necessary  to  travel as far afield. Much  of  the  existing Hindu  law  has grown up in that way from  instance  to  in- stance, the threads being gathered now from the rishis,  now from custom, now from tradition.  In the same way, the  laws of liberty, of freedom and of protection under the Constitu- tion will also slowly assume recognisable shape as  decision is  added  to  decision.  They cannot, in  my  judgment,  be enunciated in static form by hidebound rules and arbitrarily applied standards or tests.     I  find it impossible to read these portions of the Con- stitution without regard to the background out of which they arose. I cannot blot out their history and omit from consid- eration the brooding spirit of the times.  They are not just dull, lifeless words static and hide-boundas in some  mummi- fied manuscript, but, living flames intended to give life to a great nation and order its being, tongues of dynamic fire, potent  to mould the future as well as guide t, he  present. The  Constitution  must,  in my judgment,  be  left  elastic enough to meet from time to time the altering conditions  of a  changing world with its shifting emphasis  and  differing needs.  I feel therefore that in each case judges must  look straight  into the heart of things and regard the  facts  of each  case concretely much as a jury would do; and yet,  not quite as a jury, for we are considering here a matter of law and  not just one of fact: Do these "laws" which  have  been called  in question offend a still greater law before  which even they must bow?     Doing  that, what is the history of these  provisions  ? They arose out of the fight for freedom in this land and are but the endeavour to compress into a few 364 pregnant phrases some of the main attributes of a  sovereign democratic  republic as seen through Indian eyes. There  was present to the collective mind of the Constituent  Assembly, reflecting  the mood of the peoples of India, the memory  of grim  trials  by hastily constituted  tribunals  with  novel

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forms  of procedure set forth in Ordinances  promulgated  in haste because of what was then felt to be the urgent  neces- sities of the moment. Without casting the slightest  reflec- tion  on the Judges and the Courts so constituted, the  fact remains that when these tribunals were declared invalid  and the  same persons were retried in the ordinary Courts,  many were  acquitted, many who had been sentenced to  death  were absolved.   That was not the fault of the judges but of  the imperfect tools with which they were compelled to work.  The whole proceedings were repugnant to the peoples of this land and, to my mind, article 14 is but a reflex of this mood.        What  I am concerned to see is not whether  there  is absolute  equality in any academical sense of the  term  but whether the collective conscience of a sovereign  democratic republic  can regard the impugned law, contrasted  with  the ordinary law of the land, as the sort of substantially equal treatment  which men of resolute minds and  unbiassed  views can  regard as right  and proper in a democracy of the  kind we  have  proclaimed ourselves to be. Such views  must  take into consideration the practical necessities of  government, the right to alter the laws and many other facts, but in the forefront  must  remain the freedom of the  individual  from unjust and unequal treatment, unequal in the broad sense  in which  a  democracy would view it. In my opinion,  ’law’  as used  in article 14 does not mean the "legal precepts  which are  actually recognised and applied in the tribunals  of  a given time and place" but "the more general body of doctrine and  tradition from which those precepts are chiefly  drawn, and by which we criticise, them." (Dean Pound in 34  Harvard Law  Review 449 at 452).  I grant that this means  that  the same  things will be viewed differently at different  times. What is 365 considered right and proper in a given set of  circumstances will  be considered improper in another age and vice  versa. But that will not be because the law has changed but because the  times  have altered and it is no longer  necessary  for government  to wield the powers which were essential  in  an earlier  and  more troubled world. That is what  I  mean  by flexibility of interpretation.     This  is no new or startling doctrine. It is  just  what happened in the cases of blasphemy and sedition in  England. Lord  Sumner has explained this in Bowman’s case(1) and  the Federal  Court in Niharendu Dutt Majumdar’s case(2)  and  so did Puranik J. and  I  in the Nagpur High  Court in Bhagwati Charan  Shukla’s case(3).     Coming  now to the concrete cases with which we have  to deal  here.   I am far from suggesting that  the  departures made from the procedure prescribed by the Criminal Procedure Code are bad or undesirable in themselves. Some may be  good in  the  sense  that they will better promote  the  ends  of justice and would thus form welcome additions to the law  of the  land. But I am not here to consider that.  That  is  no part  of  a Judge’s province. What I have  to  determine  is whether the differentiation made offends what I may call the social  conscience of a sovereign democratic republic.  That is  not  a question which can be answered in  the  abstract. but, viewed in the background of our history. I am of  opin- ion that it does.  It is not that these laws are necessarily bad in themselves.  It is the differentiation which matters; the  singling  out of cases or groups of cases, or  even  of offences or classes of offences, of a kind fraught with  the most serious consequences to the individuals concerned,  for special, and what some would regard as peculiar, treatment.      It may be that justice would be fully done by following

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the  new  procedure.  It may even be that it would  be  more truly done. But it would not be satisfactorily done,  satis- factory that is to say, not from (1) [1917] A.C. 406 at 454, 466 and 467. (2) [1942] F.C.R. 32 at 42.        (3) I.L.R. 1946 Nag.  865 at 878 and 879. 366 the  point  of view of the governments who  prosecute,   but satisfactory  in the view of the ordinary  reasonable   man, the  man  in the street.  It is not  enough  that    justice should be done.  Justice must also be seen to   be done  and a  sense of satisfaction and confidence in   it  engendered. That  cannot be when Ramchandra is   tried by one  procedure and  Sakharam,  similarly placed,   facing  equally  serious charges,  also  answering for his   life  and  liberty,  ’by another which differs radically   from the first.         The  law of the Constitution is not only  for  those who  govern or for the theorist, but also for the bulk    of the people, for the common man for whose benefit  and  pride and  safeguard  the Constitution has  also    been  written. Unless and until these fundamental   provisions are  altered by  the constituent processes of   Parliament they  must  be interpreted in a sense which   the common man, not versed in the  niceties of grammar and dialectical logic,  can  under- stand  and appreciate so that he may have faith  and  confi- dence  and   unshaken trust in that which has  been  enacted for his   benefit and protection.       Tested  in the light of these considerations, I am  of opinion  that the whole of the West Bengal  Special   Courts Act  of 1950 offends the provisions of article 14    and  is therefore  bad. When the froth and the foam of    discussion is cleared away and learned dialectics placed   on one side, we reach at last the human element   which to my mind is the most  important  of all.  We   find men accused  of  heinous crimes  called upon to   answer for their lives  and  liber- ties.  We  find them   picked out from  their  fellows,  and however much the   new procedure may give them a few  crumbs of  advantage, in the bulk they are deprived of  substantial and   valuable privileges of defence which others, similarly charged,  are  able  to claim. It matters  not  to  me,  nor indeed  to  them  and  their  families  and  their  friends, whether this be done in good faith, whether it be done   for the convenience of government, whether the process   can  be scientifically  classified and labelled, or whether   it  is an experiment in speedier trials made for the good 367 of society at large.  It matters not how lofty and  laudable the motives are. The question with which I charge myself is, can fair-minded, reasonable  unbiassed and resolute men, who are  not  swayed by emotion or prejudice, regard  this  with equanimity and call it reasonable, just and fair, regard  it as  that  equal treatment and protection in the  defence  of liberties which is expected of a sovereign democratic repub- lic  in the conditions which obtain in India today ? I  have but  one answer to that. On that short and simple  ground  I would decide this case and hold the Act bad.                                 Appeals dismissed. Agent for the appellant in Case No. 297: P.K. Bose. Agent for the respondent in Case No. 297: Sukumar Ghose. Agent for Habib Mohammad (Intervener): Rajinder Narain. Agent for the State of Hyderabad and for the State of Mysore (Interveners):P. A. Mehta. Agent for the appellant in Case No. 298: P.K. Bose Agent for the respondent in Case No. 298: Sukumar Ghose. 48

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