Case BriefsSupreme Court

Supreme Court: While deciding the instant appeal wherein the appellant challenged the externment order issued against him under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951, the Division Bench of Ajay Rastogi and Abhay S. Oka*, JJ., quashed the impugned externment order observing that that an order of externment is not an ordinary measure and it must be resorted to sparingly and in extraordinary circumstances. The Bench held that,

If the order of externment for the maximum permissible period of two years is passed without recording subjective satisfaction regarding the necessity of extending the order of externment to the maximum permissible period, it will amount to imposing unreasonable restrictions on the fundamental right guaranteed under Article 19(1) (d) of the Constitution”.

Facts: As per the facts; the respondents, while exercising their powers under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951, issued an externment order dated 15-12.2020. By this order, the appellant, who is a resident of Mandeolgaon, Taluka Badnapur, District Jalna was directed to remove himself outside the limits of District Jalna within 5 days. By the said order, he was externed from District Jalna for a period of two years from the date on which he removes himself from District Jalna.

A statutory appeal was preferred by the appellant against the impugned order of externment, but the appeal was dismissed by the Appellate Authority. The appellant further challenged the impugned order by filing a writ petition under Article 226 of the Constitution of India before the Bombay High Court. A Division Bench of the Bombay High Court dismissed the writ petition and the impugned order of externment was passed on the ground that the confidential statements of witnesses ‘A’ and ‘B’ disclose that witnesses are not willing to come forward to give evidence against the appellant, the activities of the appellant are very dangerous and the offences registered against the appellant under the IPC, are of grave and serious nature which are causing disturbance to the public at large.

Contentions: The counsel for the appellant, Sandeep Sudhakar Deshmukh, contended that the act of passing the impugned order of externment was a mala fide act at the instance of a local Member of the Legislative Assembly (MLA) with the object of settling family disputes. He argued that, the offences stated in the impugned order, would not attract Section 56(1) and the rest of the offences stated in the order are “stale offences and there is no live link between the said three offences and the object of passing the impugned order of externment”.  He also submitted that under Section 58 of the 1951 Act, the maximum period for which a person can be externed is of two years and that in the impugned order of externment, no reasons have been assigned for externing the appellant for a maximum period of two years.

Sachin Patil, appearing for the respondents, urged that while passing the order of externment, the competent authority is not required to pass a reasoned order. The competent authority has recorded subjective satisfaction of the existence of the grounds as required under Section 56 of the 1951 Act.

Observations: After carefully perusing the facts and contentions of the parties, the Court noted that Article 19(1)(d) of the Constitution contains the fundamental right to the citizens to move freely throughout the territory of India, subject to reasonable restrictions as provided in Art. 19(5) of the Constitution. An order of externment passed under provisions of Section 56 of the 1951 Act makes serious inroads on the personal liberty of a citizen guaranteed under Article 19(1) (d) of the Constitution. Hence, the restriction imposed by an order of externment must stand the test of reasonableness.

The Court further noted that, externment order is an extraordinary measure, “Such an order prevents the person even from staying in his own house along with his family members during the period for which this order is in subsistence. In a given case, such order may deprive the person of his livelihood. It thus follows that recourse should be taken to Section 56 very sparingly keeping in mind that it is an extraordinary measure”. The Court also observed that for the invocation of Section 56 (1), there must be

  • Objective material on record on the basis of which the competent authority must record its subjective satisfaction that the movements or acts of any person are causing or calculated to cause alarm, danger to persons or property
  • The competent authority must record subjective satisfaction that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or offences punishable under Chapter XII, XVI or XVII of the IPC.
  • The competent authority must be satisfied that witnesses are not willing to come forward to give evidence against the person proposed to be externed by reason of apprehension on their part for their safety or their property.
  • The competent authority is not expected to write an elaborate decision. However, the competent authority must record the existence of one of the grounds in Section 56 (1) because if the order is challenged the competent authority must be in a position to show the application of mind.

Regarding the duty of a Court while testing an exterment order, the Bench noted that-

  • A Court while testing the order of externment cannot go into the question of sufficiency of material based on which the subjective satisfaction has been recorded. However, the Court can always consider whether there existed any material on the basis of which a subjective satisfaction could have been recorded.
  • The Court can interfere when either there is no material or the relevant material has not been considered. “In the case of any other administrative order, the judicial review is permissible on the grounds of mala fide, unreasonableness or arbitrariness”

With the aforementioned observations, the Court stated that the bare facts of the case reveal there was an apparent non-application of mind while deliberating upon the impugned externment order. The Court also noted that the Order itself was passed in a casual manner and reeks of arbitrariness. Therefore, the order cannot be held sustainable. The Court also held that the Bombay High Court, being a Constitutional Court, was duty bound to test the externment order on established criteria. However the HC failed to notice the extraordinary nature of an externment order.

[Deepak v. State of Maharashtra, 2022 SCC OnLine SC 99, decided on 28-01-2022]


*Judgment by: Justice Abhay S. Oka


Sucheta Sarkar, Editorial Assistant has put this report together 

 

Experts CornerSiddharth R Gupta

Part I of this Article dwelt into the origins of the concept of non-arbitrariness through various judgments delivered in the decades of 1950s and 1960s. It discussed the ripening of the said jurisprudence up to the judgment of  E.P. Royappa v. State of T.N.[1] Eventually, whilst referring to various judgments, specifically the judgment of the Supreme Court in K.R. Lakshmanan v. State of T.N.[2], to deduce that the sword of non-arbitrariness can be swung for invalidating not only the executive action, but also the legislative one. Part I thus, left the remaining discourse to be covered by the present part of this article, which shall be elucidating upon distortion of the applicability of arbitrariness for invalidating legislative action in the judgment of State of A.P. v. McDowell & Co.[3] How post distortion in McDowell[4], the Supreme Court did a systemic course correction in Shayara Bano v. Union of India[5] and settled the chequered legal position holding the ground today. The article shall also delve into “time as a testing criteria” for examining the validity or invalidity of the legislation on the altar of Article 14 and the initial view of the Indian judiciary on the same.

 


Distortion in McDowell and its Resurrection in Shayara Bano


In State of A.P. v. McDowell & Co.[6], constitutional validity of certain provisions of Andhra Pradesh Liquor Prohibition (Amendment) Act, 1995 were assailed by the manufacturers of intoxicating liquor. The challenge relating to Article 14 and arbitrariness of the amending provisions was mounted essentially on the ground that though there was an absolute prohibition under the enactment, the exempted categories were allowed to consume intoxicated liquor in Andhra Pradesh. Thus the real purpose of imposing a total prohibition within the territories of Andhra Pradesh stood defeated by provisions relating to exemption of specified categories of manufacturers and consumers of liquor, which was pitched to be completely arbitrary. It was argued that roots of Article 14 were traceable to the Federal Constitution of the United States of America, wherein the power of the Parliament/State Legislature to make the laws is delimited by the Bill of Rights.  The 3-Judge Bench of the Supreme Court  vide para 43[7] onwards held that only two grounds are available for striking down any legislation/legislative action viz. “lack of legislative competence” or “violation of any fundamental right under Part III of the Constitution of India” or any other constitutional provision, or both. The Court further held that the ground of invalidation must fall within four corners of the wordings of Article 14, then only can it be struck down. In the context of Article 19(1), it was held that parliamentary/State legislation can be struck down only if it is found to be not saved by any of clauses (2) to (6) of Article 19. The Court in clear and categorical terms held that no enactment can be struck down merely on the argument that it is “arbitrary” or “unreasonable”, but there has to be some other tangible constitutional infirmity to be found before the legislation is declared unconstitutional. The Supreme Court vide para 46 held that applicability of arbitrariness as a ground for invalidating any legislation is confined only to legislative actions and no opinion was expressed insofar as its applicability to delegated legislation is concerned. The Court held that any act which is discriminatory can easily be labelled as arbitrary, but the reverse synthesis is not permissible. Accordingly, the Court repelled the challenge to the constitutionality of the A.P. Prohibition Act, on the specific anvil of the arbitrariness under Article 14 of the Constitution of India.

 

Thus, the judgment of McDowell[8] was essentially a clear distortion from the linear reasoning being adopted prior to it of legislations being invalidated if found “arbitrary” per se. The Supreme Court in McDowell case[9] thus completely shut the doors to entertain any argument of arbitrariness for assailing any legislative enactment.

 

Pertinently, McDowell case[10] had in its enthusiastic bid to hold or limit the applicability of arbitrariness doctrine to legislative enactments ignored its own binding decisions delivered prior in point of time. The first one being the Constitution Bench judgment in Ajay Hasia v. Khalid Mujib Sehravardi[11] by a larger Bench and the second one being the Coordinate 3-Judge Bench judgment in K.R. Lakshmanan[12].

 

Besides the line of reasoning adopted by the three-Judge Bench in McDowell case[13] was that American Courts have discouraged and dissuaded the employment of “substantive due process” for scrutinising and invalidating legislative actions in the US. Therefore the Court should not sit over the wisdom of the legislature and employ “substantive due process” to strike down legislative provisions. This reasoning was completely flawed as by this time, Maneka Gandhi v. Union of India[14] and its legacy had come to occupy the field with Articles 21, and 14 imbued with the spirit of substantive due process getting interconnected and interlinked with “reasonableness” under Article 19. This was said in so many words by Justice Krishna Iyer in the celebrated judgment of Sunil Batra v. Delhi Admn.[15], wherein the Court categorically held that Section 21 encompasses substantive due process and fairness also as a ground for testing any executive decision. Vide para 52, the Supreme Court in Sunil Batra[16] speaking through Justice Krishna Iyer held thus:

 

  1. True, our Constitution has no “due process” clause or the VIII Amendment; but, in this branch of law, after Rustom Cavasjee Cooper v. Union of India[17] and Maneka Gandhi[18], the consequence is the same. For what is punitively outrageous, scandalisingly unusual or cruel and rehabilitatively counterproductive, is unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21. Part III of the Constitution does not part company with the prisoner at the gates, and judicial oversight protects the prisoner’s shrunken fundamental rights, if flouted, frowned upon or frozen by the prison authority. Is a person under death sentence or undertrial unilaterally dubbed dangerous liable to suffer extra torment too deep for tears? Emphatically no, lest social justice, dignity of the individual, equality before the law, procedure established by law and the seven lamps of freedom (Article 19) become chimerical constitutional claptrap. Judges, even within a prison setting, are the real, though restricted, ombudsmen empowered to proscribe and prescribe, humanise and civilise the lifestyle within the concerns. The operation of Articles 14, 19 and 21 may be pared down for a prisoner but not puffed out altogether. For example, public addresses by prisoners may be put down but talking to fellow prisoners cannot. Vows of silence or taboos on writing poetry or drawing cartoons are violative of Article 19. So also, locomotion may be limited by the needs of imprisonment but binding hand and foot, with hoops of steel, every man or woman sentenced for a term is doing violence to Part III.

 

McDowell21, which was a 3-Judge Bench pronouncement, was followed by multiple other subsequent judgments of the Supreme Court, as also the High Courts, which are not being spelt out herein, since the discussion has to now get routed to the verdict of Shayara Bano v. Union of India[19] of the Constitution Bench of the Supreme Court of India. Here the practice of instantaneous triple talaq was laid challenge to by Shayara Bano who was a Muslim lady and married to Rizwan Ahmed for 15 years, when in 2016, she was divorced by just being pronounced orally talaq thrice.

 

She approached the Supreme Court praying for writ declaring the orally declared triple talaq void ab initio on the grounds that it violated her fundamental rights. The question arose about the applicability of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, which provided that “notwithstanding any custom or usage to the contrary, all questions relating to marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula, and mubaarat, etc. the rule of decision in cases where the parties are Muslims shall be Muslim Personal Law (Shariat)”. Meaning thereby that in case of Muslims, by virtue of Section 2 of the Application Act of 1937, Muslim personal laws became automatically applicable in disputes appertaining to marriage, dissolution of marriage, including talaq.

 

The majority opinion led by Justice R.F. Nariman held that the practice of triple talaq is inherently unconstitutional. Referring to the long line of judgments of Sunil Batra[20], Mithu v. State of Punjab[21], the Court held that a law can always be tested on the allegations of it being arbitrary, oppressive and crossing all the bounds of reasonableness. The Court categorically held that McDowell case[22] had perhaps overlooked and ignored the binding nature and efficacy of multiple Constitution Bench and Coordinate Bench (3 Judges) judgments, which being earlier in point of time were all binding on it. Vide paras 82 to 84 of the Shayara Bano case25, the majority speaking through Justice R.F. Nariman held thus:

 

  1. It is, therefore, clear from a reading of even the aforesaid two Constitution Bench judgments in Mithu case[23] and Sunil Batra case[24] that Article 14 has been referred to in the context of the constitutional invalidity of statutory law to show that such statutory law will be struck down if it is found to be “arbitrary”.
  2. A three-Judge Bench in the teeth of this ratio cannot, therefore, be said to be good law. Also, the binding Constitution Bench decision in Sunil Batra[25] which held arbitrariness as a ground for striking down a legislative provision, is not at all referred to in the three-Judge Bench decision in McDowell[26].
  3. The second reason given is that a challenge under Article 14 has to be viewed separately from a challenge under Article 19, which is a reiteration of the point of view of A.K. Gopalan v. State of Madras[27] that fundamental rights must be seen in watertight compartments. We have seen how this view was upset by an eleven-Judge Bench of this Court in Rustom Cavasjee Cooper v. Union of India[28] and followed in Maneka Gandhi[29]. Arbitrariness in legislation is very much a facet of unreasonableness in Articles 19(2) to (6), as has been laid down in several judgments of this Court, some of which are referred to in Om Kumar v. Union of India[30] and, therefore, there is no reason why arbitrariness cannot be used in the aforesaid sense to strike down legislation under Article 14 as well.

 

Accordingly the Supreme Court expressly overruled the judgment of McDowell[31] and the consequent distortion caused by it. The law eventually resettled by Shayara Bano[32] is that applying the “arbitrariness doctrine”, even the legislative provisions can be struck down if they are found to be discriminatory, with their operation being whimsical, excessive, unreasonable or disproportionate. The Constitution Bench categorically held that this sort of arbitrariness will cut deeply through all kinds of State action, be it legislative or executive and would spare no one. The fine tuning of this doctrine was taken to highest standards in Shayara Bano[33] by holding that Articles 32 and 226 are an integral part of the Constitution and provide remedies for enforcement of fundamental rights as also other rights conferred by the Constitution. Hesitation or refusal on the part of constitutional courts to nullify the provisions of an Act meant to be unconstitutional on the technical grounds of “non-applicability of arbitrariness doctrine” to legislative actions even when such legislative provisions patently infringe constitutional guarantees in the name of judicial humility, would escalate serious erosion of remedies available to the citizens of this country under the Constitution.

 

The majority opinion of the Supreme Court thus in Shayara Bano[34] ultimately held that triple talaq is gender biased giving uncanalised discretion to a Muslim man/husband to strip off his marital ties with his wife through mere oral recitations. Therefore Section 2 of the Application Act of 1937 was held to be patently unconstitutional being manifestly arbitrary.

 

Two recent judgments of the Supreme Court in State of T.N. v. K. Shyam Sunder[35] and A.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy[36] reiterated the legal position that even legislative provisions can be struck down if found to be arbitrary and resultantly violative of Article 14. Vide paras 52 and 53, the Supreme Court in K. Shyam Sunder[37] observed as follows:

  1. In Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group[38], this Court held that:

205. Arbitrariness on the part of the legislature so as to make the legislation violative of Article 14 of the Constitution should ordinarily be manifest arbitrariness.”

  1. In Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board[39] and Grand Kakatiya Sheraton Hotel and Towers Employees and Workers Union v. Srinivasa Resorts Ltd.[40], this Court held that a law cannot be declared ultra vires on the ground of hardship but can be done so on the ground of total unreasonableness. The legislation can be questioned as arbitrary and ultra vires under Article 14. However, to declare an Act ultra vires under Article 14, the court must be satisfied in respect of substantive unreasonableness in the statute itself.

 

In the same vein, the Supreme Court vide para 29 in A.P. Dairy Development Corpn.[41] reiterated the legal proposition as follows:

  1. It is a settled legal proposition that Article 14 of the Constitution strikes at arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. This doctrine of arbitrariness is not restricted only to executive actions, but also applies to the legislature. Thus, a party has to satisfy that the action was reasonable, not done in unreasonable manner or capriciously or at pleasure without adequate determining principle, rational, and has been done according to reason or judgment, and certainly does not depend on the will alone. However, the action of the legislature, violative of Article 14 of the Constitution, should ordinarily be manifestly arbitrary. There must be a case of substantive unreasonableness in the statute itself for declaring the act ultra vires Article 14 of the Constitution.

 

Completing the whole picture on the issue, it is luminescent that there is no inhibition for the constitutional courts to resort to arbitrariness doctrine for striking down any legislative enactment or provision. I am deliberately avoiding reference to a long line of judgments (more than 10 in number) where the Supreme Court in the last 10 years has struck down statutory provisions of any enactment on being found unreasonable, harsh, oppressive, onerous and resultantly arbitrary. It struck down legislative provisions on being found arbitrary even if not strictly discriminatory.

 


Article 14 and the Time Machine: Initial Judicial Responses


After an indepth analysis and scrutiny of correlation between “arbitrariness doctrine” and its applicability to legislative action, we shall undertake discussion on the specific topic as to how far passage of time can be a testing criteria for the validity of any legislation or legislative provision. In other words, whether any statutory provision which was constitutional to start with at the time of its enactment can be struck down on the ground of arbitrariness with the efflux of time; what impact “time as a factor” has on the applicability of arbitrariness doctrine to any legislative provision or enactment. Under these subheadings we shall be referring to some of the landmark judgments of the early decades of the 1950s, 60s and the 70s, wherein through various judgments of the Supreme Court, the constitutionality of any legislative provision was anchored on the tide of time as the testing criteria.

The first in the fray is the Constitution Bench judgment of the Supreme Court in Bhaiyalal Shukla v. State of M.P.[42] In this case the petitioner who was a government contractor challenged the levy of sales tax on the building materials supplied by him for the construction of various buildings, roads and bridges under government contracts. Levy of sales tax on the building materials supplied by him for the construction of various buildings, roads and bridges under government contracts, in District Rewa, which was falling under formerly State of Vindhya Pradesh, specifically after merger of that area in the newly constituted State of Madhya Pradesh formed on 1-11-1956 under the States Reorganisation Act. The sale of building materials in works contract was not subject to any levy of sales tax in another part of (the newly constituted) State of Madhya Pradesh. However the Court rejected the said contention holding that “the laws in different portions of newly constituted State of Madhya Pradesh were enacted by different legislatures and till they are repealed or altered by the newly constituted legislature, they shall continue to operate. Different laws in different parts of Madhya Pradesh, which were earlier part of a different demerged State which was earlier part of another State prior to its merger, would be sustained on the grounds of geographical classification arising out of historical reasons….”[43]

Thus in Bhaiyalal Shukla[44]  the Supreme Court did not directly answer the issue of effect of passage of time over validity of any legislation.

The next judicial milestone on the subject under discussion is State of M.P. v. Bhopal Sugar Industries Ltd.,[45] wherein the levy of agricultural income tax in Bhopal, formerly a part of Bhopal State was continued even post merger with the newly constituted State of Madhya Pradesh in 1956. In all other parts of the State, the levy was not being imposed on the identically placed landowners or assessees. The Supreme Court again referring to Section 119 of the States Reorganisation Act, 1956 held that differential treatment arising out of application of the laws pre-existing from the merger of said regions/States in the newly constituted merged State does not invite discrimination or offend equality clause under Article 14. However the Supreme Court acknowledged the impact “efflux of time” would have on the validity of any legislative provision, even though enacted with justifiable cause or reason on the date of its enactment, but later on becoming constitutionally pernicious for perpetuating a treatment not having reasonable cause or rational basis to support it. Vide para 7 (p. 6), the Constitution Bench of the Supreme Court held thus:

 

  1. This in the view of the High Court was unlawful because the State had since the enactment of the States Reorganisation Act sufficient time and opportunity to decide whether the continuance of the Bhopal State Agricultural Income Tax Act in the Bhopal region would be consistent with Article 14 of the Constitution. We are unable to agree with the view of the High Court so expressed. It would be impossible to lay down any definite time limit within which the State had to make necessary adjustments so as to effectuate the equality clause of the Constitution. That initially there was a valid geographical classification of regions in the same State justifying unequal laws when the State was formed must be accepted. But whether the continuance of unequal laws by itself sustained the plea of unlawful discrimination in view of changed circumstances could only be ascertained after a full and thorough enquiry into the continuance of the grounds on which the inequality could rationally be founded, and the change of circumstances, if any, which obliterated the compulsion of expediency and necessity existing at the time when the Reorganisation Act was enacted.

(emphasis supplied)

 

From the above observations it can safely be inferred that the Supreme Court delved upon the inevitable effect time would have on the validity of any legislation, especially in the context of its failure to pass the litmus test of “equal protection of laws” guaranteed under Article 14 of the Constitution of India. As would be detailed below, this jurisprudence has since thereafter been expanded again and again in various dimensions by the Supreme Court.

 

Another controversy which cropped up before the Constitution Bench of the Supreme Court in Narottam Kishore Deb Varman v. Union of India[46] was pertaining to the legality of Section 87-B of the Code of Civil Procedure, 1908. The provision under challenge required prior consent of the Central Government as a prerequisite for institution or trial of any suit against the ruler/maharaja of any State/Province, which got merged with the Indian Union. Though the Supreme Court repelled the constitutional challenge to validity of Section 87-B for historical and geographical justifications produced before it including the protection adumbrated under Article 372 of the Constitution of India. However at the same time, after affirming the constitutionality of Section 87-B, the Supreme Court required the Central Government to review and re-examine the extent of period to which the said protection of prior consent of the Central Government to be available as against the said provision being there on the statute book in perpetuity. Vide para 11, the Constitution Bench held thus:

 

  1. Before we part with this matter, however, we would like to invite the Central Government to consider seriously whether it is necessary to allow Section 87-B to operate prospectively for all time. The agreements made with the rulers of Indian States may, no doubt, have to be accepted and the assurances given to them may have to be observed. But considered broadly in the light of the basic principle of the equality before law, it seems somewhat odd that Section 87-B should continue to operate for all time. For past dealings and transactions, protection may justifiably be given to rulers of former Indian States; but the Central Government may examine the question as to whether for transactions subsequent to 26-1-1950, this protection need or should be continued. If under the Constitution all citizens are equal, it may be desirable to confine the operation of Section 87-B to past transactions and not to perpetuate the anomaly of the distinction between the rest of the citizens and rulers of former Indian States. With the passage of time, the validity of historical considerations on which Section 87-B is founded will wear out and the continuance of the said section in the Code of Civil Procedure may later be open to serious challenge.

 

Next in the series is the Constitution Bench judgment of the Supreme Court in H.H. Shri Swamiji of Shri Amar Mutt v. Commr., Hindu Religious and Charitable Endowments Department[47]. As in the earlier cases, the dispute in this case also arose out of the reorganisation of States in various parts of the country in 1956. The South Kanara District, formerly a part of State of Madras was reconstituted to be merged with the State of Mysore (now Karnataka) in 1956, and by reason of Section 119 of the States Reorganisation Act, Madras Hindu Religious and Charitable Endowments Act, 1951 continued to apply to South Kanara District nonetheless when it ceased to be part of erstwhile State of Madras. The challenge to applicability of Endowments Act of 1951 was mounted on the ground that South Kanara District was the only district in the whole State of Mysore (now Karnataka), which continued to be governed by the Madras State enactment, which was thus starkly offensive of Article 14.

 

The Supreme Court on the point of “time” rendering the purpose of any legislation ineffective or constitutionally offensive referred to celebrated Latin maxim of “cessante ratione legis cessat ipsa lex”, that is, “reason is the soul of the law and when the reason of any particular law ceases, so does the law itself”. It held that an indefinite extension and application of unequal laws for all times to come starts militating against the true character and laudable intent of being a “temporary measure” to serve a “temporary purpose”. Though the challenge to the constitutionality was repelled by the Supreme Court, but the majority speaking through Justice Y.V. Chandrachud reminded the legislature to wake up timely to the altered necessities of time. The majority opinion directing for suitable tailoring of the legislative provisions, lest it would lead to enactment being left vulnerable to constitutional attack observed vide para 31 of H.H. Shri Swamiji case48 thus:

 

  1. But that is how the matter stands today. Twenty-three years have gone by since the States Reorganisation Act was passed but unhappily, no serious effort has been made by the State Legislature to introduce any legislation – apart from two abortive attempts in 1963 and 1977 – to remove the inequality between the temples and mutts situated in the South Kanara District and those situated in other areas of Karnataka. Inequality is so clearly writ large on the face of the impugned statute in its application to the district of South Kanara only, that it is perilously near the periphery of unconstitutionality. We have restrained ourselves from declaring the law as inapplicable to the district of South Kanara from today but we would like to make it clear that if the Karnataka Legislature does not act promptly and remove the inequality arising out of the application of the Madras Act of 1951 to the district of South Kanara only, the Act will have to suffer a serious and successful challenge in the not distant future. We do hope that the Government of Karnataka will act promptly and move an appropriate legislation, say, within a year or so. A comprehensive legislation which will apply to all temples and mutts in Karnataka, which are equally situated in the context of the levy of fee, may perhaps afford a satisfactory solution to the problem.

 

From the narrative of the various judgments in the early decades of the 20th century, it can safely be inferred that indefinite extension and application of unequal laws militates against their real character as also the true intent behind their enactment. The strong foundation on which the edifice of any legislation is erected gets weakened with the passage of time if inequality amongst equals continues unabated without sufficient justifications for continuing them. The Supreme Court has always batted for timely reviews and introspections of such categories of legislations, failing which the legislations are bound to become discriminatory and arbitrary attracting the wrath of Article 14.

With this, we are nearing completion of Part II of the three part series article. Part III of the series, which shall also be the concluding part, shall delve into the remaining issues of “obsolescence as a ground for arbitrariness” of any legislation and the extant position of law on the said proposition.


†Advocate practising at Madhya Pradesh High Court and Supreme Court of India. He specialises in Constitutional Law Matters.

†† Final Year Student, B.A.LL.B (Hons.),  National Law Institute University (NLIU), Bhopal.

[1] (1974) 4 SCC 3 : AIR 1974 SC 555.

[2] (1996) 2 SCC 226 : AIR 1996 SC 1153.

[3]  (1996) 3 SCC 709 : AIR 1996  SC 1627.

[4]  (1996) 3 SCC 709 : AIR 1996  SC 1627.

[5] (2017) 9 SCC 1.

[6] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[7] (1996) 3 SCC 709, 737-38 : AIR 1996  SC 1627.

[8] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[9] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[10] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[11] (1981) 1 SCC 722 : AIR 1981 SC 487.

[12] (1996) 2 SCC 226 : AIR 1996 SC 1153.

[13] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[14] (1978) 1 SCC 248 : AIR 1978 SC 597.

[15] (1978) 4 SCC 494 : AIR 1978 SC 1675.

[16]  (1978) 4 SCC 494, 518-19 : AIR 1978 SC 1675.

[17]  (1970) 1 SCC 248.

[18] (1978) 1 SCC 248 : AIR 1978 SC 597.

21 (1996) 3 SCC 709 : AIR 1996  SC 1627.

[19] (2017) 9 SCC 1.

[20] (1978) 4 SCC 494 : AIR 1978 SC 1675.

[21] (1983) 2 SCC 277.

[22]  (1996) 3 SCC 709 : AIR 1996  SC 1627.

25 (2017) 9 SCC 1, 87 & 88-89.

[23] (1983) 2 SCC 277.

[24] (1978) 4 SCC 494 : AIR 1978 SC 1675.

[25] (1978) 4 SCC 494 : AIR 1978 SC 1675.

[26] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[27] AIR 1950 SC 27 : 1950 SCR 88.

[28] (1970) 1 SCC 248.

[29] (1978) 1 SCC 248 : AIR 1978 SC 597.

[30] (2001) 2 SCC 386.

[31] (1996) 3 SCC 709 : AIR 1996  SC 1627.

[32] (2017) 9 SCC 1.

[33] (2017) 9 SCC 1.

[34] (2017) 9 SCC 1.

[35] (2011) 8 SCC 737.

[36] (2011) 9 SCC 286.

[37]  (2011) 8 SCC 737, 767.

[38] (2006) 3 SCC 434 : AIR 2006 SC 1489.

[39] (2007) 6 SCC 668 : AIR 2007 SC 2276.

[40] (2009) 5 SCC 342 : AIR 2009 SC 2337.

[41] (2011) 9 SCC 286, 303.

[42] AIR 1962 SC 981 : 1962 Supp (2) SCR 257.

[43] AIR 1962 SC 981 : 1962 Supp (2) SCR 257, para 18.

[44]  AIR 1962 SC 981 : 1962 Supp (2) SCR 257.

[45] AIR 1964 SC 1179 : (1964) 6 SCR 846.

[46] AIR 1964 SC 1590 : (1964) 7 SCR 55.

[47] (1979) 4 SCC 642 : AIR 1980 SC 1.

48 (1979) 4 SCC 642, 659 : AIR 1980 SC 1, 18.

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Satish Chandra Sharma CJ and Sachin Shankar Magadum J allowed the petition, quashed the initial allotment of the site to respondent 3 and sets aside the allotment order made in favour of respondent 3.

The facts of the case are such that PIL was filed on the ground that a civic amenity site No. 35, situated at 5th phase, Yelahanka New Town, Bengaluru, was allotted by the Karnataka Housing Board (KHB) to  Murthy Charitable Trust respondent 3, and there were specific conditions like the allottee was required to construct a building suitable for Education and public service within a period of two years and that the Housing Board shall be entitled to cancel the allotment without issuing any notice after expiry of five years. As no construction was carried out, KHB then executed an absolute sale deed in favour of respondent 3 for a sum of Rs 3,87,000/-. The value of the land is more than 10 Crores and an additional amount was received by KHB i.e., Rs 18, 00,000/- for additional area allotted to respondent No.3. Undisputedly, at no point of time, the procedure provided under the Karnataka Housing Board (allotment) Regulations, 1983 was followed.

Counsel for KHB submitted that PIL is not maintainable in the facts and circumstances of the case and the petitioner cannot seek cancellation of a registered document in exercise of writ jurisdiction under Article 226 of the Constitution of India and the petitioner has to take shelter of the provisions of the Specific Relief Act.

The Court observed that “The most shocking aspect of the case is that an instrumentality of the State i.e., KHB has allotted the site in question without following the allotment regulations. There is a detailed procedure provided under the KHB Regulations for allotment of sites and the procedure has not been followed at all especially when the site was reserved as a Civic Amenity Site.” 

The Court further observed that the provisions of KHB Act of 1962 and KHB (Allotment) Regulations, 1983 makes it very clear that a site can be allotted / can be sold only through a transparent process that too after wide publicity through tender notice/auction notice.

The Court observed that State largesse should not be marred by any arbitrariness. Fairness, in the action of the State or local bodies or instrumentalities of the State while leasing out / disposing any public property is a sine qua non. The State and the instrumentality of the State are required to follow a transparent procedure. The statutory provisions as contained under the Act and the Regulations are required to be followed. However, in the present case favoritism has been done by respondent 2 to respondent 3 without following the prescribed procedure.

The Court held that in the present case, the land has been allotted by the KHB without following a transparent procedure. Therefore, “the allotment order, as well as the subsequent sale deed in favour of respondent No.3, deserves to be quashed.”

[Adinarayan Shetty v. Principal Secretary, Writ Petition 9616 of 2020, decided on 30-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For petitioners: Mr Sunil Kumar H.

For respondents: Mr Vijayakumar Patil, Mr B J Mahesh, Mr Chandrashekhar, and Mr H S Prashanth

Experts CornerSiddharth R Gupta

“So diverse and adverse are the decisions of different High Courts, and of the same High Court, that in examining cases, as precedents by which to try a suit, the lawyer encounters a perpetual change of cloud and sunshine, and occasionally a real thunderstorm, succeeded by a burning sun. What was law at one time, is not law now – what is law in one place, is not in another – locality, individuality, prejudice, and perpetual change, characterise the decisions of Judges learned in the law.”

Levi Carroll Judson

(American Jurist)

Laws and institutions are constantly tending to gravitate. Like clocks, they must be occasionally cleansed, and wound up, and set to true time.

Henry Ward Beecher

(American Congregationalist Clergyman, Social Reformer and Speaker)

 

The 3-part series of this article attempts to dive deep into “arbitrariness as a testing criteria” for examining the validity and constitutionality of any legislative enactment. In other words, how far “arbitrariness as an independent ground” can be a reason for the constitutional courts to strike down any law having become a havoc for Article 14 of the Constitution of India. A priori, we would have a peep into how the concept of arbitrariness has been expanded to be made applicable to parliamentary/State enacted legislations for nullifying them through the sword  of Article 14. The article which shall be split in 3 parts, shall be compartmentalised into the following sub-sections:

  1. Jurisprudence of Arbitrariness: Origins and Growth up to Royappa.
  2. Unconstitutionality of Legislative Provisions vis-à-vis
  3. Distortion in McDowell and its Resurrection in Shayara Bano.
  4. Article 14 and the Time Machine: Initial Judicial Responses.
  5. Obsolescence as a Ground for Arbitrariness and Unconstitutionality.
  6. Outdated Legislations in the Context of K.S. Puttaswamy.
  7. Scrutiny of Certain Legislations as Being Obsolete and Resultantly Unconstitutional.

 


Jurisprudence of Arbitrariness in India: Origins and Growth up to Royappa


Most of us understand the roots of “concept of arbitrariness” to be originating from the celebrated judgment of E.P. Royappa v. State of T.N.[1] and its intertwining with other pillars of Part III viz. Articles 19, 21 and 32 of the Constitution of India. However very few of us are actually aware that E.P. Royappa[2] had merely enamoured the content of Article 14 with “concept of arbitrariness” in a well-articulated expression, in a way never done before. The Supreme Court in E.P. Royappa[3] in fact did not actually discover “arbitrariness” in Article 14 for the first time, but had elegantly woven the same thing said before, but on different occasions and in different judgments. We will explain how.

 

Article 14 has its reflection in the Preamble to our Constitution, the relevant portion of which reads “Equality of Status and of Opportunity”. It is a hybrid amalgam of two different species of equality viz:

(a) Equality before law – (concept borrowed from the UK Constitution).

(b) Equal protection of law – (concept borrowed from 14th Amendment to the US Constitution).

 

The theory of classification adopted by American Courts was a corollary to the concept underlying equality clause, namely, that a law must operate alike on all persons under like circumstances. In fact, the latter component of Article 14 was the reason for the evolution of the concept of “classification”.

 

The celebrated dissent of Justice Subba Rao in State of U.P. v. Deoman Upadhyaya[4] stated that Article 14 comprises both “positive content” as well as “negative content”. Whereas, equality before the law is a negative content, equal protection of the laws exhibits a positive content of Article 14. In this case, the accused Deoman was convicted for offence of murder by the Sessions Court, Gyanpur. The challenge to the conviction arose on the inherent anomaly in Section 27 of the Evidence Act, 1872 making inadmissible the statements of persons under the presence of a police officer, but not actually in police custody. The statement by Deoman purportedly was made in the presence of the police officer and therefore benefit of Section 27 was being pleaded by the accused. The Constitution Bench affirmed the classification of accused persons separately between those actually in police custody and those with police personnel present around them as reasonable. The Court though accepted that the statements may be confessional in nature, however separate treatment of both the categories of accused was found to be justified. Justice Subba Rao, however in his historic dissent accorded a different dimension and colour to Article 14, vide para 24, he has thus:

 

  1. … This subject has been so frequently and recently before this Court as not to require an extensive consideration. The doctrine of equality may be briefly stated as follows: All persons are equal before the law is fundamental of every civilised constitution. Equality before law is a negative concept; equal protection of laws is a positive one. The former declares that everyone is equal before law, that no one can claim special privileges and that all classes are equally subjected to the ordinary law of the land; the latter postulates an equal protection of all alike in the same situation and under like circumstances. … So, a reasonable classification is not only permitted but is necessary if society should progress. But such a classification cannot be arbitrary but must be based upon differences pertinent to the subject in respect of and the purpose for which it is made.

 

In yet another landmark dissent in Lachhman Dass v. State of Punjab[5], Justice Subba Rao cautioned on imperceptible deprivation of Article 14 of its glorious content and shining aura, whilst emphasising too much on the doctrine of classification. The appellants in this case, were a joint Hindu family firm which has been carrying on business since 1911 in grains, dal, cereals, cotton ginning and pressing, oil manufacture and the like, in the erstwhile State of Patiala. The firm had an account called the cash credit account and used to borrow money in this account by pledging its stocks. In 1951-1952 there was a heavy slump in the prices of the commodities with the result that the amounts advanced by the bank on the security of the goods were very much in excess of the market prices thereof. To cover this shortfall the firm entered into an arrangement with the bank and it is this that formed the source of the litigation in this case. The bank sanctioned a loan on “demand loan account”. The amount payable under the demand loan account not having been paid by the appellants, the bank took steps to realise the same in accordance with the provisions of the Patiala Recovery of State Dues Act, 2002. The vires and constitutionality of this enactment was challenged before the Supreme Court on the ground that the Act and the Rules made thereunder became void on the coming into force of the Constitution as being repugnant to Articles 14 and 19(1)(f) and (g), and the proceedings taken under those provisions being illegal. Vide para 47, the dissenting opinion lent importance to the “positive content” under Article 14. Justice Subba Rao while discussing the scope of Article 14 in the aforementioned para, stated that:

 

  1. 47. … It shall also be remembered that a citizen is entitled to a fundamental right of equality before the law and that the doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to the said doctrine. Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the article of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality: the fundamental right to equality before the law and equal protection of the laws may be replaced by the doctrine of classification.

 

Perhaps the first landmark judgment which actually spotted the virtue of non-arbitrariness in Article 14 was S.G. Jaisinghani v. Union of India[6] . The Court, for the first time held “absence of arbitrary power” as sine qua non to rule of law with confined and defined discretion, both of which are essential facets of Article 14. Quoting the celebrated saying of Douglas, J., in United States v.  Wunderlich[7] :

  1. … when it has freed man from the unlimited discretion of some ruler…. Where discretion is absolute, man has always suffered.

 

It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion as Lord Mansfield stated it in classic terms in John Wilkes[8], Burr at p. 2539:

“… means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague, and fanciful….”

 

In Jaisinghani[9], the constitutional validity of seniority rule in regard to Income Tax Officers was challenged along with the improper implementation of the “quota” recruitment as infringing the guarantee of Articles 14 and 16(1) of the Constitution. Justice Subba Rao (this time majority opinion) elaborating on the wide expanse of Article 14 , vide para 14 held thus:

  1. In this context it is important to emphasise that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law.

 

Another milestone in the development of the concept of arbitrariness in State of Mysore v. S.R. Jayaram[10] wherein the constitutional validity of Rule 9(2) of the Mysore Recruitment of Gazetted Probationers Rules, 1959 was challenged. Under the first part of the said Rule 9(2), the candidates were provided preferential claim to appointment as per their place on the merit list subject to certain reservations for SC/STs and OBCs. The latter part however vested upon the Government the right of making appointment of any candidate to any particular cadre as it deemed suitable at its discretion. This part of the rule was assailed as arbitrary as can be gleaned from the submissions of the counsels appearing from the petitioner therein. The Constitution Bench of the Supreme Court examining the challenge to Rule 9(2) resorted to the principle of “conferment of arbitrary powers”. Arbitrariness was construed in the judgment of S.R. Jayaram[11]  as vesting of uncanalised and unguided discretion of the executive and thus opposed to positive content imbibed in Article 14 r/w Article 16.

 

Thereafter, in the celebrated judgment of Indira Nehru Gandhi v. Raj Narain[12], whilst dealing with the challenge to newly inserted clauses (4) and (5) to Article 329-A , the Constitution Bench of Supreme Court imported the concept of “inherent arbitrariness” in the amending Act to strike down the said clause (4). Whilst declaring clause (4) unconstitutional, the Court held that the amendment to the Constitution created a situation of vacuum with no law to be applied for deciding the dispute of election. The explicit opinion of Justice Chandrachud held that newly inserted clauses (4) and (5) to be arbitrary with the potential to altogether destroy the rule of law. Vide para 681, Justice Chandrachud in his concurring judgment employed the “rationale of arbitrariness”  to declare clauses (4) and (5) to be violative of Article 14. His observations ran thus:

  1. 681. It follows that clauses (4) and (5) of Article 329-A are arbitrary and are calculated to damage or destroy the rule of law. Imperfections of language hinder a precise definition of the rule of law as of the definition of “law” itself.[13]

From the above expositions, one would conveniently comprehend that the foundation stone as also the basic groundwork for embodiment of “concept of arbitrariness” as an essential attribute of Article 14 was laid much before the judgment of E.P. Royappa[14]. It would therefore be  prevaricating to state that concept of non-arbitrariness was expounded for the first time in the judgment of E.P. Royappa[15]. As would be detailed below, the Supreme Court in E.P. Royappa[16] just beautifully joined the dots together to meticulously articulate the negative correlation between arbitrariness and Article 14. E.P. Royappa had challenged the validity of his transfer from the post of Chief Secretary, first to the post of Deputy Chairman, State Planning Commission and thereafter as Officer on  Special Duty as violative of his Articles 14 and 16  rights. The assail rested on mala fide exercise of power by the State with an inferior officer being appointed to the position of Chief Secretary, overlooking the seniority of petitioner Royappa therein.

 

The stage was thus set in the peculiar constitutional facts for the constitutional prodigy Justice P.N. Bhagwati who despised any attempt to “crib, cabin or confine” the unlimited reach of Article 14. Vide para 85, speaking for the majority, Justice Bhagwati held[17]:

  1. 85. … Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., “a way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.

 

Thus in E.P. Royappa[18], the concept of arbitrariness came to be formally embedded as a ground for striking down any legislative or executive action being antithetical to Article 14.

 


Unconstitutionality of Legislative Provisions vis-à-vis Arbitrariness


Post the verdict of E.P. Royappa[19], the Supreme Court found itself armed with a dynamic tool for testing the constitutionality of any legislative or executive action on the touchstone of arbitrariness. The substantive right of “equal protection of law” came to be acknowledged as synonymous to a substantive right and protection against “arbitrariness per se”. Though Seervai in his treatise on Constitutional Law of India[20] has argued that the new doctrine of arbitrariness “hangs in the air” as it is propounded without reference to the terms in which the right to “equal protection of laws” is conferred. Courts have misunderstood the relation between “arbitrariness” and “discrimination”. From the Supreme Court’s reasoning, it appears that “arbitrarness” involves a voluntary action of a person on whom the arbitrary power has been conferred. However, according to Seervai, one cannot attribute will or intention to a legislature. Whatever violates equality is not necessarily arbitrary, though arbitrary actions are ordinarily violative of equality.

 

Equality vis-à-vis arbitrariness was further polished and fleshed out in the celebrated judgment of Maneka Gandhi v. Union of India[21], where the Supreme Court held that the trinity of three articles i.e. Articles 14, 19 and 21 fertilise and cultivate each other mutually. The Court correlated the principle of reasonableness under Article 19 with non-arbitrariness under Article 14 with substantive due procedure under Article 21.

 

The Supreme Court thereafter in A.L. Kalra v. Project and Equipment Corpn. of India Ltd.[22] and D.S. Nakara  v. Union of India[23] accorded new dimension to Article 14 by holding that arbitrariness does not always require a comparative/relative evaluation between two persons for recording a finding of  discriminatory treatment. The Court held in absolute terms that an action per se arbitrary, (even in the absence of any correlation with any other similarly circumstanced person) shall be violative of second part of Article 14. Kalra[24] thus impliedly extended the  applicability of non-arbitrariness to legislative action as well.

 

Thereafter, in Ajay Hasia v. Khalid Mujib Sehravardi[25], the Constitutional Bench of the Supreme Court (five Judges) in no uncertain terms, held the concept of reasonableness and non-arbitrariness to be applicable even to legislative actions. Vide para 16, the Court speaking through Bhagwati, J. held thus:

  1. … Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an “authority” under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution.

 

Thus, the collateral nurturing of the doctrine of non-arbitrariness and reasonableness throughout for both legislative as well as executive actions, cannot be said to be confined only to the latter. It would therefore, be a constitutional fallacy to state that arbitrariness applies only to executive actions and not to legislative actions. This is evident from the analysis of the Madras Race Club (Acquisition and Transfer of Undertaking) Act, 1986 in K.R. Lakshmanan v. State of T.N.[26] on the touchstones of arbitrariness and unreasonability. The Madras Race Club, a limited liability company registered under the Companies Act, 1956, was formed in the year 1896 by taking over the assets and liabilities of the erstwhile unincorporated club known as Madras Race Club. Race meetings were held in the club’s own race course for which bets were made inside the race course premises. The Tamil Nadu Legislature enacted law by bringing horse racing under the ambit of the definition of “gaming”. The said law was challenged by the club on the grounds that “chance” is a controlling factor in gaming which does not include games of skill like horse racing and thus the said enactment was unconstitutional. The Tamil Nadu Legislature during the pendency of the appeal however, enacted the Madras Race Club (Acquisition and Transfer of Undertaking) Act, 1986 (the 1986 Act) which provided for acquisition and transfer of the undertaking of the Madras Race Club on the basis of “public purpose and public good”. The said Act was challenged as violative of Articles 14 and 19(1)(g) of the Constitution of India being irrational and arbitrary. The Court struck down the legislative enactment for being arbitrary and discriminatory. The Supreme Court in Lakshmanan[27] thus established beyond any cavil of doubt that a legislative enactment could be assailed as being arbitrary. This proposition however, stood distorted later owing to an erroneous interpretation of Article 14 subsequently by a lesser Judge Bench (3 Judges) in State of A.P. v. McDowell & Co.[28]

 

The remaining discourse on the subject shall continue in Part II of this article to follow after a short while.


† Siddharth R. Gupta is an Advocate practising at Madhya Pradesh High Court and Supreme Court of India. He specialises in constitutional law matters.

†† Final year student, BA LLB (Hons.),  National University of Study and Research in Law  (NUSRL), Ranchi.

[1]  (1974) 4 SCC 3 : AIR 1974 SC 555.

[2] (1974) 4 SCC 3 : AIR 1974 SC 555.

[3] (1974) 4 SCC 3 : AIR 1974 SC 555.

[4] (1961) 1 SCR 14 : AIR 1960 SC 1125.

[5] (1963) 2 SCR 353 : AIR 1963 SC 222.

[6] (1967) 2 SCR 703 : AIR 1967 SC 1427.

[7]1951 SCC OnLine US SC 93 : 96 L Ed 113 : 342 US 98 (1951).

[8]R. v. Wilkes, (1770) 4 Burr 2527 : 98 ER 327.

[9] (1967) 2 SCR 703 : AIR 1967 SC 1427.

[10] (1968) 1 SCR 349 : AIR 1968 SC 346.

[11] (1968) 1 SCR 349 : AIR 1968 SC 346.

[12] (1975) 2 SCC 159.

[13] Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, 258.

[14] (1974) 4 SCC 3 : AIR 1974 SC 555.

[15] (1974) 4 SCC 3 : AIR 1974 SC 555.

[16] (1974) 4 SCC 3 : AIR 1974 SC 555.

[17] E.P. Royappa case, (1974) 4 SCC 3, 38 : AIR 1974 SC 555.

[18] (1974) 4 SCC 3 : AIR 1974 SC 555.

[19] (1974) 4 SCC 3 : AIR 1974 SC 555.

[20] H.M. Seervai, Constitutional Law of India,  438 (paras 9.6 and 9.7 ), 4th Silver Jubilee Edition, 1991.

[21] (1978) 1 SCC 248 : AIR 1978 SC 597.

[22] (1984) 3 SCC 316 :  AIR 1984 SC 1361.

[23](1983) 1 SCC 305 : AIR 1983 SC 130.

[24] (1984) 3 SCC 316 :  AIR 1984 SC 1361.

[25] (1981) 1 SCC 722, 741 : AIR 1981 SC 487.

[26] (1996) 2 SCC 226 : AIR 1996 SC 1153.

[27] (1996) 2 SCC 226 : AIR 1996 SC 1153.

[28] (1996) 3 SCC 709 : AIR 1996  SC 1627.

Case BriefsHigh Courts

Andhra Pradesh High Court:  Taking a stern stand against several instances of abuse of power by the Andhra Pradesh State Government, the Division Bench of Rakesh Kumar and D. Ramesh, JJ., reprimanded the Government for its high- handedness in dealing with matters concerning the rights of the people of Andhra Pradesh and making attempts at subduing the constitutional bodies such as the Legislative Council, State Election Commission and the Andhra Pradesh High Court itself. Rakesh Kumar, J., who authored the instant Order, minced no words while berating the State Government’s arbitrary actions- “The State by way of filing the interlocutory application, has ventured to malign the image of one of the Members of this Bench (Hon’ble Sri Justice Rakesh Kumar). It is very difficult for me to swallow the allegation of deviating from the principle of impartiality. With a view to uphold the majesty of law and repose the confidence of citizen in the judicial system, such endeavour made by the State is considered as malicious and cannot be approved. If such petitions are entertained, it will amount to allowing the party for hunting the Bench…. the Court cannot be frightened by any such action of the State”.

 Background and Trajectory of the Issue: The writ petition WP (PIL) 127/2020 was filed with a prayer to declare the action of the Government of Andhra Pradesh/ Municipal Administration and Urban Development Department in issuing Notice Inviting Offer to an outright sale of land/land assets available at Guntur and Visakhapatnam for Mission Build AP on “as is where is” basis through E-auction, as illegal and arbitrary. The writ was first taken up by the Division Bench comprising A.V. Sesha Sai and B. Krishna Mohan, JJ., and while granting time for filing a counter-affidavit, passed an interim order restraining finalization of the bidding process. In the meanwhile, other similar writ petitions were filed questioning the act of the State regarding selling/transferring of the Government land through auction. On 16-12-2020, Sudhakar Reddy, A.A.G., filed a petition for recusal of Rakesh Kumar, J., from the case on the ground that the Judge had made an observation while hearing the matter which implied that he will ‘declare a break down of constitutional machinery in the State and hand over the administration to the Central Government’.

Observations: While denying that the aforementioned observation was ever made by him, Rakesh Kumar, J., sternly noted that the instant application is a derogatory and contemptuous act by the State Government. The function of the High Court while exercising jurisdiction under Art. 226 of the Constitution, is to protect and enforce the fundamental right of a citizen if it is infringed or taken away by the State. This is the main protection lying in the hands of the citizen against the unauthorized or illegal act of a State. If the Court has doubts over any issue, then it is its right to ask certain questions. “Honesty, integrity, sincerity, fearlessness and impartiality all are essence of judicial system in general and Judges in particular. If any question is raised without any reasonable basis, the Judge has every right to refer to any undisputed fact even not on record of the said proceeding in his defence”.

Rakesh Kumar, J., went on to make some specific and scathing observations regarding the current attitude of maligning the Judiciary, and the Andhra Govt.’s malicious intent towards the constitutional bodies, especially the A.P. HC. Some of the notable observations are as follows-

  • The Court noted that how a Judge never has a media platform to showcase their impartiality and fearless. “We cannot even go to media for our defence.”
  • The Court also noted “A very disturbing trend has developed in our system. If one is influential, powerful, i.e., both in money and muscle, he feels that he is having every privilege to do anything as per his convenience and to the peril of system or poor citizen”.
  • Regarding the protection of a citizen’s fundamental rights, the Court observed that, “being a Judge of a High Court, it is our primary duty to come forward and examine the right of citizen in which cause of action even partly arose within the jurisdiction of such High Court, and endeavour to get such right enforced”.
  • Justice Kumar further noted the instance wherein the CM had proposed to abolish the Legislative Council itself when they did not agree to proceed with the tune of the Legislative Assembly’s decision regarding the establishment of three capitals in one State
  • Rakesh Kumar, J., also considered whether the letter to Chief Justice of India by the Andhra CM containing allegations against Chief Justices of Telangana and AP HC may have given undue advantage to the CM and people may deduce that the recent transfers of the Chief Justices may have resulted due to the letter. The Court emphasized on the need of transparency in the judicial transfers.
  • Following up on the abovementioned observation, Justice Kumar also noted a plethora of cases against the Chief Minister filed by the CBI and Enforcement Directorate. The Judge noted that the recent transfers are sure to give undue relief to the CM by way of causing delay in hearing of the matters.

With the aforementioned observations, Justice Kumar stated that,It appears that in the aforesaid background, now in the present proceeding, the State by way of filing the interlocutory application, has ventured to malign the image of one of the Members of this Bench”. Accordingly, the prayer for recusal was rejected as, “such prayer is totally untenable and malicious. If Court starts entertaining such petitions; in no case, the Court can be allowed to dispense justice”. In the concluding remarks, the Court stated that the above observations are specifically for considering the prayer for recusal made in this interlocutory application and not on the merits of the case.[Special Officer v. Thota Suresh Babu,2020 SCC OnLine AP 2143, decided on 30-12-2020]


Sucheta Sarkar, Editorial Assistant has put this story together

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Division Bench of Amreshwar Pratap Sahi, CJ and Anjana Mishra, J. rejected an appeal filed by a candidate who had appeared for the Bihar Public Service Commission (BPSC) examination in 2015, but failed to qualify the same; holding that the decision of Commission could not be faulted on legal or any other ground.

The dispute herein was centered around marking of OMR sheet and marks obtained by the petitioner in examinations for the post of Assistant held by BPSC. The appellant herein, had filed a writ petition before this Court contending that he had obtained 132 marks, and since cut-off for the category to which he belonged was 130 marks, he was entitled to be selected. The respondent Public Service Commission’s case was that the appellant had erased six questions in the OMR sheet due to which six marks were deducted and he was awarded 126 marks instead of 132. The learned Single Judge dismissed the writ petition; aggrieved whereby the instant petition was filed.

Mr P.N. Shahi, learned counsel for the respondent, drew the attention of Court towards condition nos. 10 and 12 of instructions contained in the leaflet of Commission which clearly mentioned that ‘any eraser or change is not allowed’ and that ‘failure to comply with any of its instructions would render the candidate liable to such action or penalty as the Commission may decide at their discretion’. He placed reliance on the Division Bench’s judgment in Pushpa Kumari v. State of Bihar, 2016 SCC OnLine Pat 2668 where such a condition imposed by the Commission in another examination was held to be mandatory. Further, appellant’s OMR sheet was produced before the Court and it was pointed out that whitener had been used for erasing the answers already attempted by him for six questions.

The Court opined that Clause 10 of the respondent Commissions instructions clearly provided that any eraser or change is not allowed. The said condition was mandatory in view of the reasoning in Pushpa Kumari case. It was held that any attempt to answer a question a second time after erasing the first answer, results in disallowing the said answer, necessary consequence whereof is a deduction of marks for the said answer.

In view of the above, the appeal was rejected.[Abhishek Kumar v. State of Bihar, 2019 SCC OnLine Pat 479, Order dated 10-04-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Telecom Disputes Settlement & Appellate Tribunal (TDSAT): A Division Member Bench of Shiva Kirti Singh (Chairperson), J., A.K. Bhargava, Member, partly allowed a telecom petition filed against the manner in which penalties are imposed by the respondent (Department of Telecom) in case of non-compliance of radiation norms on EMF exposure by Base Transceiver Stations (BTSs).

The main issue that arose before the Tribunal was whether the method of imposing penalties in case of non-compliance of radiation norms on EMF exposure by Base Transceiver Stations (BTSs), legally valid.

The Tribunal observed that the main point of dispute in the present matter were those sites where the telecom service providers (TSP) were operating jointly. In case of non-compliance of EMF norms at a shared site, DoT levies same penalty of Rs. 10 Lakh on each and every BTS even though individually they may be radiating within the prescribed norms. The Tribunal further observed that there can be options where penalty can be imposed solely upon the erring TSP or it can also be imposed incidence-wise instead of distributing the entire penalty between all the TSPs irrespective of their liabilities. Imposing penalty upon TSPs who are well compliant with the norms laid down by the DoT is unjust and unfair as puts the defaulters and the non-defaulter on the same footing. Not considering options or alternatives by which the defaulters can be effectively penalized, at the same time saving the innocent TSPs, is totally unjust and arbitrary on the part of respondent.

The Tribunal held that with testing and due diligence, it is possible to rationalize the manner in which penalty was levied and DoT should undertake such exercise in right spirit. There can be no excuse to penalize innocent (when proven) arbitrarily in the name of collective responsibility, there can also be no excuse for ignoring the principle of proportionality to the extent that the result appears to be unjust and arbitrary. Resultantly, the respondent was directed to revise and fix penalty as it deems fit, keeping in mind that in case of a shared site, penalty be imposed on a per ‘site’ and ‘per incidence’ basis for non-compliance of EMF radiation norms. The petition was partly allowed and the circulars issued by respondent were partly modified.[Cellular Operators Assn. of India v. Union of India,2018 SCC OnLine TDSAT 353, order dated 15-11-2018]