010 - 1981 - Constitutional Law-I (Fundamental Rights)

10
CONSTITUTIONAL LAW-I
(FUNDAMENTAL RIGHTS)
S.P. Sathe*
THE ACTIVIST thrust of the Supreme Court continued unabated in 1981.
It was towards articulating the rights of the small man, which had so far
remained unattended, and facilitating equal access to justice. The court
accorded maximum deference to the will of the legislature in matters of
economic policy but vigilantly safeguarded various aspects of the human
rights.
I ARTICLE 12"STATE"
Since Rajasthan Electricity Board's1 case the statutory corporations

have been considered as "state" for the purpose of article 12 and, there-
fore, have been compelled to abide by the guarantees of fundamental rights
contained in part III. But 'statutory' character being the sole test was
bound to produce some strange results. It was obvious that companies
registered under the Companies Act, 1956 could not be included within the
definition of<'state". But by the same logic, even government companies
could escape the rigour of part III, if they were merely registered under
the Companies Act and were not created by a statute.2 The distinction
between statutory corporations and government companies was really one
of form and could hardly explain why the former was "state" and the
latter not. There have been some judicial pronouncements declaring
certain government companies as "state". 3 There have been some efforts
to extend the scope of article 12 to cover the cooperative societies4 and
the panchayats constituted under the Panchayat Acts.5 On the other
hand a government owned registered cooperative society was held not to
* Principal, ILS Law College, Pune.

i Rajasthan State Electricity Boardv. Mohan Lai, A.I.R. 1967 S.C. 1857. See further
Sabhaji Tiwari v. Union of India, A.I.R. 1975 S.C 1329; Sukhdev Singh v.
Bhagatram, A.I.R. 1975 S C. 1331.
2
Sabhajit Tiwari v. Union of India, ibid.
8
State Bank of India v. Kalpaka Transport Co , A.I R 1979 Bom. 250 \ Abdul
Ahmad v. Govt. Woollen Mill, A.LR. 1979 J. & K. 57.
* Chotalal Pannalal v. DM. Indore, A.I.R. 1978 M.P. 191.
* State of Gujarat v. R.L. KeshavlaU (1980) 4 S.C.C. 653.
www.ili.ac.in The Indian Law Institute

Vol. XVII] Constitutional Law-I 195
be an "other authority" within the meaning of art;cle 12.6 In U. P.
Warehousing Corporation v. Vijay Narain7 the U.P. State Warehousing
Corporation, which was a statutory body wholly controlled and managed
by the government, was held to be "state" within the meaning of article 12.
In Som Prakash v. Union of India,s the Supreme Court was asked
whether the Bharat Petroleum Corporation Ltd. was "state" within article
12. By the Burmah Shell (Acquisition of Undertaking in India) Act,
1976, the undertakings in India of the Burmah Shell Oil Storage and
Distributing Co. of India Ltd. were acquired by the government. It was
then given to the Bharat Petroleum Corporation Ltd., a government
company, which the court described as "the well-worn legal strategy for
government to run economic and like enterprises".9 A writ petition was
filed by an employee of the Burmah Shell Private Ltd., who had retired
and was entitled to get pension from the Bharat Petroleum Corporation
Ltd. The corporation claimed that the pension was payable subject to
certain deductions. The petitioner had challenged such deductions since
he was held entitled to only Rs. 40 per month by the corporation. A
preliminary objection was taken against the writ petition that no writ
could lie against the corporation since it being just a company, was not
"state" within the meaning of article 12.
While dealing with the various forms of public enterprises such as
government departments, statutory corporations and government companies,
the court observed that merely because a company or other legal person
had functional and jural individuality for certain purposes and certain
areas of law, it did not follow that for the effective enforcement of the
fundamental rights "we should not scan the real character of that entity".10
If it was found that it was "a mere agent or surrogate of the State" and
was in fact owned by the state or controlled by the state and "in effect an
incarnation of the State"11 why should it not be included within article 12?
Krishna Iyer J. made it clear that if an entity was no more than a company
under the Companies Act or a society under the societies' registration law
or a cooperative society it could not be called an authority within the
meaning of article 12. For example, a ration shop run by a cooperative
store financed by the government was not an authority. According to
Salmond, an authority meant the
ability conferred upon a person by the law to alter by his own will
directed to that end, the rights, duties, liabilities or other legal
relations either of himself or of other persons.12
6
S.S. Dhanoa v. Municipal Corporation, Delhi, (1981) 3 S.C.C. 431.
7 A.LR. 1980 S.C.840.
s A.LR. 1981 S.C. 212.
9
Id. at 218.
Ibid.
11
Ibid.
" Salmond, Jurisprudence 242 (10th ed.).

196 Annual Survey of Indian Law [1981
The learned judge pointed out that what was material was not whether a
"corporation was formed by a statute or under a statute" 13 . The true
test had to be functionalnot how the legal person was born or created but
besides discharging the functions or doing business as the proxy of the
state, there must be an element of ability to affect legal relations by virtue
of the power vested in it by law.
In the instant case, the control of the government on the company was
writ large in [the Act. Various provisions of the Act were examined to
come to the conclusion that the government company in question was not
a mere company but that it had statutory character. Section 7 of the Act
vested the right, title, interest and liabilities of the Burmah Shell Co. in the
Burmah Shell Refineries Ltd. Everything about the employees, their
provident fund, superannuation and welfare funds was regulated statutorily,
unlike in the case of the ordinary companies. Section 12 clothed the
government company with power to take delivery of the property of the
Burmah Shell from every person in whose possession, custody or control
such property might be. The provision for penalties against a person
meddling with the property of the Bharat Petroleum emphasised the
special character of this government company. Section 16 conferred on the
government company and its officers and employees protection for anything
which was "in good faith, done or intended to be done under the Act".
These provisions distinguished the government company in question from
government companies merely registered under the Companies Act.
Unlike an ordinary company, "it was a limb of government, an agency of
the State, a vicarious creature of statute working on the wheels of the
Acquisition Act". 14
It need not be forgotten that the wider meaning given to the word
"state" in recent years, starting particularly from Bhagwati J/s judgment
in the Airport Authorities case, is part of the forward thrust of the court
towards increasing the accountability of the public authorities and thereby
expanding the scope of the fundamental rights. The device of government
company was intended to "free the State from the inevitable constraints of
governmental slow motion, not to play truant with the great rights". 15 In
view of the increasing role of the state and varied devices such as corpora-
tions or companies through which it played it, a wider definition of the
word "state" was most welcome. Bhagwati J. had said in the Airport
Authority's case :16
The Corporations acting as instrumentality or agency of Govern-
ment would obviously be subject to the same limitations in the field
of constitutional and administrative law as Government itself,
13
Supra noteS at 219.
Id. at 220.
" Id. at 222.
V R.P* Shitty Y. Intwtatbnet Airport Authority AIR* }979 g-C. 1628 tt 1638,

Vol. XVII] Constitutional LawI 197
though in the eye of the law, they would be distinct and independent
legal entities. If Government acting through its officers is subject
to certain constitutional and public law limitations, it must follow
a fortiori that Government acting through the instrumentality or
agency of corporations should equally be subject to the same
limitations.
In that case, while saying that if the entire share capital of the corporation
was held by the government, it would go a long way towards indicating
that the corporation was an instrumentality or agency of the government,
he said :
It is not possible to formulate an all-inclusive or exhaustive test
which would adequately answer this question [What were the tests to
determine whether a corporation was an agent or instrumentality of
State?]. There is no cut and dried formula which would provide
the correct division of corporations into those which are instrumenta-
lities or agencies of Government and those which are not. 16a
Various tests which emerged were, (/) the state financial support plus an
unusual degree of control over the management and policies of the corpo-
ration; (ii) existence of deep and pervasive state control; (Hi) whether
the corporation enjoyed the monopoly status; (**v) whether the operation
of the corporation was an important public function; (v) if the functions
of the corporation were of public importance and closely related to
governmental functions; and (vi) if a department of government was
transferred to a corporation.
The matter came up once again in Ajay Hasia v. Khalid MujihP The
validity of admissions to the Regional Engineering College, Srinagar were
challenged. The Regional Engineering College (REC) was one of the 15
engineering colleges sponsored by the Government of India. The college
was established and administered by a society registered under the Jammu
and Kashmir Registration of Societies Act, 1898. The objection to the
petition rested on the plea that the REC was not an 'other authority"
within the meaning of article 12. Bhagwati J. observed :18
It would be an authority within the meaning of article 12 if it is an
instrumentality or agency of the Government and that would have
to be decided on a proper assessment of the facts in the light of the
relevant factors.
The court observed that the composition of the Society was dominated by
the representatives appointed by the central government and the govern-
ment of Jammu and Kashmir; the rules to be made by the society had to
be approved by the central government and the accounts of the society
1<ia
Id. at 1639.
17
A.I.R. 1981 S.C. 487.
18
Id. 492.

were required to be submitted for government approval and scrutiny. In

view of such sweeping governmental control the REC was held to be an
"other authority" within the meaning of article 12 and hence, subject to
the fundamental rights.180
In State of Punjab v. Raja Ram19 the Supreme Court observed that
the Food Corporation of India could be described as an agent or instru-
mentality of the central government in view of the fact that its original
share capital was provided by the central government and that 11 out of
12 members of the board of directors were appointed by the Government.
However, it could not be divested of its character of "a company" within
the meaning of section 3 (e) of the Land Acquisition Act, 1894 and,
therefore, compliance with the provisions of chapter VII of the Act
had to be made in order to lawfully acquire any land for its purpose. The
court has very elaborately pointed out the difference between a government
department and a government company. This decision by Bahrul Islam J.
also cautions us against applying the wider meaning of the words "other
authorities" in article 12 in all situations. While such wider meaning is
relevant only where fundamental rights are involved, it would not be
desirable to apply it to situations dealing with special privileges or immu-
nities of the state. Here we might also mention that the Supreme Court
has hastened to add in Ajay Hasia that a juristic entity may be state for
the purpose of parts III and IV (fundamental rights and directive principles)
of the Constitution and yet may not be so for the purpose of part XIV
(services under the Union and the states). An employee of a government
company which is an agent or instrumentality of the state under article 12
would be entitled to the fundamental rights guaranteed by articles 14 and
16 of the Constitution but not to the right guaranteed by article 311 of the
Constitution.
II RIGHT TO EQUALITY
The most notable case on right to equality of this year was the Air
Hostesses' case, Air India v. Nergesh Meerza.20 This case attracted atten-
tion because the petitioners were the pretty air hostesses and the issue was
of equality between man and woman. There was a good deal of disparity
between the pay scales and promotional avenues of the male cabin crew
consisting of flight pursers (FP) additional flight pursers (AFP) and In-
flight pursers (IFP) on the one hand and the air hostesses (AH), check
air hostesses, deputy chief air hostess, additional chief air hostess and
chief air hostess on the other. The two cadres of pursers and air hostes-
ses were different in respect of qualifications, starting salaries and the
i9a jn re Badri Narayan, A.LR. 1981 Cal. 214held that an institution recognised by
the board of secondary education was not an "authority" within the meaning of
article 12.
i" A.I.R. 1981 S.C. 1694.
w A.I.R, 1981 S.C. 1829.

Vol. XVII] Constitutional Law-1 199
number of posts. There were, however, provisions affecting air hostesses

which did not apply to men stewards who did the same type of job. An
AH's service could continue upto 35 years of age or upto her marriage if
contracted within 4 years since recruitment or till first pregnancy. The
court upheld the provision regarding marriage within 4 years as a bar to
future service. The regulation permitted an air hostess to marry at the
age of 23 if she had joined the service at 19 which according to the court
was "a sound and salutary provision". In the opinion of Fazal Ali J.
"apart from improving the health of the employee, it helps a great deal
in the promotion and boosting up of our family planning programme".
Secondly, if a woman married near about the age of 20 to 23 years, she
became fully mature and there was every chance of such a marriage prov-
ing a success. Further, if this bar was removed, the Air India International
would have to incur huge expenditure on recruiting additional air hostesses
either on a temporary or ad hoc basis to replace the working air hostesses
who conceived. Any period shorter than 4 years would be too short for
the corporation to provide for such replacement. Atul Setalwad, one of
the counsels had argued that such a bar doubtless constituted "an outrage
on the dignity of the fair sex" 21 and was per se unconstitutional. The court
did not agree with this.
Some questions, however, arise out of the court's observations. Firstly,
it is submitted that any discrimination against women in the name of family
planning programme ought to be avoided. If family planning programme
could be justification for a bar on the fair hostesses getting married within
4 years, it should equally ban the male employees from getting married
within 4 years. Further, if a bar like this could be justified on the ground
that a huge expenditure would have to be incurred by the corporation for
appointing additional air hostesses to work during the maternity leave of
the working air hostesses, then it could apply to all women employments in
general. Such an approach would nullify the principle of equality between
man and woman. It is most respectfully submitted that neither family
planning nor the costs of maternity leave can be arguments to uphold the
impugned provision, which was palpably discriminatory and violative of
article 15 (1) and 16(2).
The court's objection against the second impugned condition which
terminated an air hostess' services on first pregnancy does not square well
with its approval of the first condition. In the court's opinion the
condition of termination of an air hostess'services on first pregnancy was
"unreasonable and arbitrary provision which shocks the conscience of the
Court". 22 The corporation argued that the pregnancy led to a number of
complications and to physical disabilities which might obstruct the
efficient discharge of her duties. What the corporation must have meant
11
Id. at 1928.
2 Ibid.

was that the physicial charms of an air hostess were diminished on

her pregnancy. In a man's world, woman is a commodity used for her
femininity. The court reacted sharply to such a suggestion when it said
that the power to terminate the services of an air hostess if she became
pregnant amounted to compelling the poor lady not to have any children
and thus interfered with and diverted the ordinary course of human nature.
Moreover an argument of physical charm was not only callous and cruel
but "an open insult to Indian womanhoodthe most sacrosanct and
cherished institution". 23 The judge further castigated the corporation for
advancing such an argument which in his opinion was 'in bad taste' and
demonstrated * male chauvinism". 24 The court observed that, if third
instead of first pregnancy was made a bar to future service, it would be
quite reasonable.
It is submitted that the exigencies of population control could not be
a justification for inequality between man and woman. Would the judge
recommend such a measure, i.e., a bar against future service after the birth
of third child in respect of all employeesmale or female ? Why should
such a bar exist only against the woman employees ? An air hostess had
to retire at the age of 35 whereas a male steward could work upto 58. An
air hostess however, could be continued by the managing director upto 45.
The court took strong exception to this provision, which in its opinion
violated article 14 and also suffered from the vice of excessive delegation
of legislative power. It was held that the air hostesses could continue to
work upto 45 unless they were found medically unfit.
It is respectfully submitted that the court should have struck down the
first impugned provisionregarding pregnancy during 4 years since
recruitment as well as the proposed amendment providing for termination
of service after third pregnancy as being inconsistent with article 14. We
are further confused by the following observations of Fazal Ali J.25
Even though the conditions mentioned above may not be violative
of article 14 on the ground of discrimination but if it is proved to
our satisfaction that the conditions laid down are entirely unreason-
able and absolutely arbitrary, then the provisions will have to be
struck down.
How can a provision be unreasonable, arbitrary and yet not be violative

of article 14 ? Any differential treatment which is not based on any classi-
fication or reasonable classification is void under article 14. Can one take
into consideration something like 'family planning' which is not even
remotely connected with the impugned provision and say that a provision
which is discriminatory is reasonable because it is required for family
planning ? Further, it is submitted that when reasonableness of a provision
23
Id. at 1306.
w Ibid.
>* Id, at 1295.

is considered under article 19, certainly family planning or environmental

pollution would figure as extenuating factors for the restrictions. But
when a provision is challenged as discriminatory, what the court has to
see is whether the differential treatment is based on classification. The
judgment of reasonableness would come only while considering whether
the extent of differential treatment was justified.
In Ajay Hasia v. Khalid Mujib26 the Supreme Court observed that
right to equality did not mean mere classification. The court held that
an oral interview test was undoubtedly not a very satisfactory test for
assessing and evaluating the capacity and calibre of the candidates
because it was subjective and based on first impression, its result was
influenced by many uncertain factors and it was capable of abuse. But
in the absence of a better test for measuring personal characteristics and
traits, the oral interview test must be regarded as rational or relevant. An
oral interview test could not be relied upon as an exclusive test, but it
might be used as an additional or supplementary test. It was held that
allocation of 33 \ per cent of the total marks for oral interview infected the
admission procedure with arbitrariness. It was observed that allocation
of more than 15 per cent of the marks to interview would be arbitrary and
unreasonable. The court, however, did not set aside the previous
selections. In another case260 allocation of 30 per cent marks for the viva
voce for admission to the medical college was held to be excessive. How-
ever, in Lila Dhar v. Rajasthan27 where 25 per cent of the marks were
allotted in the selection of munsifs to the Rajasthan Judicial Service for
an oral interview, it was held that the selections were not vitiated by any
illegality.
Another important case of this year under article 14 was R. K. Garg v.
Union of India28 popularly called the Bearer Bonds case in which the
constitutional validity of the Special Bearer Bonds (Immunities and
Exemptions) Ordinance, 1981 and the Special Bearer Bonds (Immunities
and Exemptions) Act, 1981 were challenged on a number of grounds, the
principal ground being that they violated article 14. The purpose of this
Act was "to canalise for productive purposes black money" which had
become "a serious threat to the national economy." In order to induce
people with black money to invest it in bearer bonds certain immunities
and exemptions were granted by the Act. These exemptions and immu-
nities (sections 3 & 4) were as follows :
(/) A person subscribing to or acquiring the bonds was not required to
disclose for any purpose whatsoever the nature and source of acquisition
of such bonds ;
A.I.R. 1981 S.C. 487.

* ArtiSapru v. /. & K., A.I.R. 1981 S.C. 1009.
v A.I.R. 1981 S.C. 1777.
as A.I.R. 1981 SC. 2138.

202 Annual of Survey Indian Law [1981
(//) The fact that such a person had subscribed to or acquired the
bonds could not be taken into account and was inadmissible as evidence
in any proceeding relating to any offence or for the imposition of any
penalty under any such law ;
(Hi) Subscription to or acquisition of those bonds could not be taken
into account for the purpose of any proceedings under the Income-tax
Act, 1961, the Wealth Tax Act, 1957 or the Gift Tax Act, 1958. The
person concerned, however, would not be immune from prosecution for
any offence punishable under chapter IX or chapter XVII of the Indian
Penal Code, 1861 (I.P.C.), the Prevention of Corruption Act, 1947 or for
any offence which was punishable under any other law and which was
similar to an offence punishable under either of those chapters or under
that Act or for the purpose of enforcement of any civil liability. Further,
such a person could not be entitled to claim any set-off or relief in any
assessment, reassessment, appeal, reference or other proceeding under the
Income-tax Act or to reopen any assessment or re-assessment made under
that Act on the ground that he had subscribed to or had otherwise acquired
the said bonds.
Bhagwati J. who wrote the judgment on behalf of the majority consist-
ing of Chandrachud C. J., Fazal Ali and A.N. Sen JJ. stated at the outset
that there are "certain well established principles" which had "been evolved
by the courts as rules of guidance in discharge of its constitutional function
of judicial review."29 These were :
(/) There was always a presumption in favour of the constitutionality
of a statute and the burden was upon him who attacked it to show that
there had been a clear transgression of the constitutional principles ;
(ii) Laws relating to economic activities had to be viewed with greater
latitude than laws touching civil rights such as freedom of speech, religion
etc.
Bhagwati J. pointed out that the immunities granted under section 3(1)
were "very limited in scope". 30 They did not protect the holder of bearer
bonds from any inquiry/or investigation into the concealed income, which
could have been made, if he had not subscribed to or acquired the special
bearer bonds. There was no immunity given to the black money which
was invested in the bonds from taxation. That money remained subject
to tax with all consequential penalties, if it could be discovered indepen-
dently of the fact of subscription to or acquisition of the special bearer
bonds. It was argued by the petitioners that had this black money not
been allowed to be invested in the bonds it could have been seized by the
tax authorities by carrying out search and seizure in accordance with the
provisions of the tax laws. Bhagwati J. observed that it was precisely
because black money could not be obtained by such searches and seizures
*9 Id. at 2146.
*o id. at 215a

that the device of bearer bonds had come into use. Moreover, search or
seizure was not the only method of detecting unaccounted money. Close
and searching scrutiny of the books of account might reveal that accounts
were not properly maintained. The only inhibition on the revenue was
that it would not be entitled to call upon the assessee to disclose for the
purpose of assessment, the nature and source of acquisition of the special
bearer bonds. In making the assessment, the investment in the special
bearer bonds would have to be left wholly out of account. The revenue
would not be entitled to rely upon it as evidence of possession of undis-
closed money. Even this limited immunity was not available in relation
to any prosecution for any offence punishable under chapter IX or chapter
XVII of the LP.C. or the Prevention of Corruption Act, alleged to
have been committed by him. The investment in bearer bonds would not
be immune from wealth tax if any asset was found by the taxing autho-
rities, otherwise than by relying on the fact of acquisition of the bearer
bonds, to be belonging to the assessee and hence forming part of his net
wealth. These immunities were available only to the person who was the
holder of the bearer bond but it would not be available to him if he trans-
ferred that bond to another person.
The court held that there was a practical and real classification between
persons having black money and those who did not have the black money.
The court did not take seriously the contention that even the white money
might be invested in the purchase of the bearer bonds. According to the
court, such investment was not going to be advantageous. The real con-
tention was that the Act was unconstitutional as it offended against
morality by according to dishonest assessees who had evaded the tax, immu-
nities and exemptions which were denied to honest tax payers. Bhagwati J.
observed :31
It is necessary to remember that we are concerned here only with the

constitutional validity of the Act and not with its morality.
The learned judge conceded that "the provisions of the Act may thus
seem to be putting premium on dishonesty" but "howsoever regrettable or
unfortunate it may be" they had to be enacted "in order to bring out black
money in the open and canalise it for productive purposes". 32 The Act
was upheld because the classification between the holders of black money
and the holders of white money was related to the object of the Act which
was to unearth black money. Bearer bonds was a measure for inducing
the holders of black money to convert it into white and make available such
hidden money for developmental purposes.
Gupta J. in his lone dissenting judgment held that the Act violated
article 14 and, therefore, was void. According to him the Act distin-
Id. at 2155.
Id. at 2156.

guished between two classes of holders of special bearer bondstax evaders

and honest tax payers. The immunities provided by the impugned Act
were clearly for the benefit of those who had acquired the bonds with
black money. The learned judge observed that, if the exemptions and
immunities conferred by the Act were sufficiently attractive to induce tax
evaders to acquire the special bearer bonds, they would be equally attrac-
tive to the tax payers, who would buy them with their white money.
Denial of those immunities or exemptions to such people did not further
the object of canalisation of black money for productive purposes. It is
respectfully submitted that the parity which Gupta J. was contemplating
between those who bought the bonds with black money and those who
bought them with white money was more imaginary than real. The bene-
fits such as anonymity and confidentiality of the source of acquisition or
possession of the bonds were peculiar to the unaccounted money. The
possibilities that the bonds might be used as parallel currency or that they
might not mop up the black money were more in the nature of conjectures.
It is submitted that the objections to the bearer bonds were and ought to
be more fundamental. They should be to the policy as well as to the
method. They would be vulnerable on both the counts. But we wonder
whether they could be vulnerable under article 14, Any sane policy was
likely to have perversions or distortions and such possibilities could not be
a ground for calling those provisions discriminatory.
A notification making amendments to the rules for the combined
competitive examinationscivil service examination 1979, by giving
option to the candidates hailing from the North-Eastern States/Union
Territories of Arunachal Pradesh, Manipur, Meghalaya, Mizoram and
Nagaland to take or not to take part I on Indian languages, was upheld in
Javed Niaz Beg v. Union of India.33 The people of those areas had handi-
caps in the matter of language and, therefore, the concession was conducive
to equality.
It was held that preference could be shown to a cooperative society for
running a fair price shop under the M.P. Foodstuffs (Civil Supply Distri-
bution Scheme), 1981.34 It was held that population could be a basis for
selecting local areas for the purpose of levy of tax simultaneously exclud-
ing those areas which did not answer the population criterion.35 Section 3
of the Wealth Tax Act which provided for a lower limit of exemption to
individual and higher to Hindu undivided family was upheld.36 A separate
constituency for women based on largest population of fair sex prdVided
by the Hyderabad Municipal Corporations Act 1956, as amended by the
88
A.I.R. 1981 S.C. 794.
3
4 SarkariSasta Anaj Vikreta Sangh v. State of M.P., A.I.R. 1981 S.C. 2030; see
Also M.P. Ration Vikreta Sangh Society v. M.P., A.I.R. 1981 S.C. 2001.
35
State of Karnataka v. Hansa Corporation, A.I.R. 1981 S.C. 463.
36
W.T. Officer, Calicut v. C.K. Mammed Kayi, A.I.R. 1981 S.C. 1269 ; see also
State Bank ofTravancore v. Mohammed Khan, A.I.R. 1981 S.C. 1744.

Amendment Act of 1979, was upheld.37 The principle that public interest
demands that those who seek the privilege of extracting mineral under lease
from the state should be asked to bid against each other in a public auction
with open participation and a reserved prize guarantee was asserted.270
Although the government is free to decide whom to give advertisement, it
cannot act dfscriminatorily. When government was given power to refuse
an advertisement to newspapers which were rabid or abusive or "raging
fanatical" such grant of power was bad because the guidelines were
vague.37*
Section 17(5) of the Maharashtra Medical Practitioners Act, 1961
provided that any person, not being a person qualified for registra-
tion under sub-sections (3) or (4), who proves to the satisfaction of the
committee appointed under clause (6) that he was practising the ayurvedic
or unani system of medicine "in the Bombay area of the State" could
obtain licence to practise. The provision was held unconstitutional because
"Bombay area of the State" was defined as excluding the Vidarbha and
Hyderabad areas of the State.38 Section 4 of the Urban Land Ceiling Act,
1976 as amended by the West Bengal Act of 1977, which imposed a uniform
tax on lands and buildings without making any distinction between posh
areas and other areas, was held to be discriminatory in so far as it treated
"unequals as equals" 39 Where the M.P. Lok Parisar (Bedakhali) Abhi-
niyam, 1974 as amended in 1978, which provided for the expeditious
eviction of unauthorised occupants from public premises, dispensed with
service of notice and other rights of the occupants provided under the un-
amended sections in the matter of contesting the eviction, the court inter-
vened on behalf of such occupants and held the impugned sections un-
constitutional.40 Similarly where ownership of a building for housing a
school was a condition precedent to permission to open a new private,
primary school and its recognition for grant-in-aid purposes, the court
held that such a condition was unconstitutional as being violative of
article 14. In both the above cases the courts have gone beyond the
formal classification requirement into questions of substantive equality.
In a number of other cases the impugned provisions were held inconsistent
with article 14.41
Two other areas in which article 14 was invoked were education and
services. In the selection of students for admission to the post-graduate
course, the choice could not be restricted to the students of the current
37
C. Satyanarayana v. Govt of A.P., A.I.R. 1981 A.P. 81.
37
State ofU.P. v. Shivacharan Sharma, A.I.R. 1981 S.C. 1722.
3
UshodayaPublications (P)Ltd. v. A.P., A.LR. 1981 A.P. 109.
38
A.T. Zambre v. Kartar Krishna Shastri., A.I.R. 1981 S.C. 796.
39
Samarendra Nath v. State, A.I.R. 1981 Cal. 5$.
*o Munawar Ahmed v. State, A.I.R. 1981 M.P. 41.
41 Jawahar and Co, Kami v. State, A.I.R. 1981 M.P. 214 ; M.D. Shah v. L.I.C. of
India, A.I.R. 1981 Guj. 15 ; Laxmi Khandsari v. Uf.% A,LR. m\ S-C, $72 ; 0w?
Prakqsh v, State of J, & K.% A.LR, 1981 S.C, 1001,

batch only and exclusion of those belonging to the previous batches was
unconstitutional. 42 A condition for admission to Goa Medical College
that a candidate must have passed the S.S.C. examination or its equivalent
examination from any recognised school in the Union Territory of Goa,
Daman and Diu was held to be arbitrary and having no nexus with the
object to be achieved.43 A rule giving preference to candidates working as
residents and demonstrators for admission to post-graduate course in
medical college was held to be discriminatory.44 Preferential treatment to
the children of government servants for transfer from one medical college
to another was held to be inconsistent with article 14.45 Reservation of 10
per cent seats for candidates from the universities other than the said three
universities of Punjab was, however, held to be valid.46 Where reser-
vation for outstanding sportsmen was not implemented, the court could
not compel the government to make such reservations.*7 Where one seat
was reserved for a candidate from Diu, but one candidate was eligible for
admission on open merit basis, other candidate from Diu could not force
the authorities to admit the selected candidate against the unreserved seat,
thereby providing him admission against the reserved scat.48 It has been
held m S.L. Sachdev v. Union of India** that upper division clerks in the
Savings Bank Internal Clerk Organization (SBICO) were recruited
from two sourcesfrom among those who worked in the P & T Audit
Office and those worked in the P & T Accounts Organization, their pro-
motional opportunities could not be made to depend upon the existing
strength of the upper division clerks (UDC) drawn from a particular source.
Since, under the impugned directions, the number of selection grade posts/
head clerks had to be 10 per cent of the number of UDCs drawn from the
audit offices, no promotional opportunities at all would be available to
them in certain circles in which less than 10 UDCs drawn from the audit
offices were working. Chandrachud C J . observed that "the classification
made for the purpose of determining the promotional opportunities seems
to us unreasonable and arbitrary". 50 The learned Chief Justice said :51
The test of educational qualifications can conceivably be an intelli-
gible differential bearing nexus with the object of ensuring greater
efficiency in public service. But once a cadre is formed by recruit-
ing persons drawn from different departments of the government,
there would normally be no justifications for discriminating between
42
Mukul v. Dean, Goa Medical College, A.I.R. 1981 Goa 39.
43
Mahesh Kumar Jivakhai v. Goa Medical College, A.I.R. 1981 Goa 2.
44
A.J M.DeSouza v. Goa Medical Coilege, A.I.R. 1981 Goa 14.
45
Patel Rajesh Motibhai v. State, A.I.R. 1981 Guj. 30.
*o Neeru Verma v. Parvinder Kaur, A.I.R. 1981 P. & H. 292.
47
Preetni Srinath v. Selection Committee, Govt, and Private Medical Colleges, A.I.R.
1981 Kant. 58.
4
8 Jugaldasv. Principal, College of Engineering, A.LR. 1981 Goa 9,
** A.LR. 1981 S.C. 411,
M Id. a/ 414.
Ibid.

Vol. XVII] Constitutional Law-1 207
them by subjecting one class to more onerous terms in the matter

of promotional chances.
The direction was therefore held invalid, though it would also have
been invalid due to its inconsistency with the rules. But the Chief Justice
upheld the provision in column 10 of item 3 of the schedule to
the Recruitment Rules of 1969, which provided that the UDCs
drawn from the audit offices must put in 10 years of service for
acquiring eligibility for promotion, whereas other UDCs were eligible for
promotion after patting in 5 years' service. It is respectfully submitted
that neither the fact that the impugned provision was in force since 1969
and no objection was taken against it until 1979 nor the fact that the staff
of the audit office faced retrenchment justified the above decision. Why
they required longer experience for being eligible for promotion has not
been adequately explained in the judgment.
Aviation Research Centre was an organization constituted by the
central government on purely temporary basis and was being continued
on a year to year basis. The initial staff was brought either from various
other departments on deputation or by direct recruitment on ad hoc basis.
It was held in S.S. Moghe v. Union of India52 that since there was no
regularly constituted service, the principle contained in the office
memorandum, that all deputationists be replaced by d ; rect appointees
and until then the former be placed below the latter would have
no application. When a new service was constituted, it was fully within
the competence of the government to decide as a matter of policy the
sources from which the personnel required for manning the services were
to be drawn. In Bal Ram Prasad v. Uttar Pradesh?* the court observed
that in exercise of its power under article 72 of the Constitution the Union
could change the policy formulated either regarding promotion of Union
employees in the defence forces; but the new policy as well as method of
changing the policy must conform to article 14. Relief was given to
government servants in a number of other cases.54
It was held that the principle of equality for equal work did not mean
that scales of pay or remuneration should not vary according to qualifica-
cations.55 In some other cases the court struck down actions as being
contrary to article 16.55
One of the controversial decisions of this year was Kuljeet Singh v.
52
A.LR. 1981 S.C. 1495.
" A.LR. 1981 S.C. 1575.
54
Virendra Kumar v. Union of India, A.LR. 1981 S.C. 1775 ; lima Charan v. M.P.%
A.I.R. 1981 S.C. 1915 ; K: Jagannadha Rao v. A.P., A.LR. 1981 S.C. 1591 ; CC.
Padmanabhan v. Director of Public Instruction, A.I.R. 1981 S.C. 64.
55 C. Girijambal v. A.P., A.I.R. 1981 S.C. 1537.
5*a Rama Kant v. Divisional Supdt. Northern Rly., Moradabad, A.I R. 1981 S.C. 357;
K.S. Vasudevav. Union of India, A.LR. 1981 S.C. 1980 ; Mohd. Magbaol v. Chair-
man, Dist. Recruitment Board, A.LR. 1981 J.&K. 27 ; Uma Charan v. State of
M.P., A.LR. 1981 S.C. 1915.

Lt. Governor* in which the Supreme Court stayed execution of two

convicted criminals, Billa and Ranga, who had been held guilty of brutally
murdering two innocent children, Sanjay Chopra and Geeta Chopra, on
the ground that it had to ascertain whether the power to grant pardon
vested in the President by article 72 had been exercised in accordance with
certain relevant criteria. Although the principle underlying the decision
was doubtless unassailable, it is submitted that the case deserved to be
dismissed on the presumption that the President had exercised the power
correctly. There were not available any circumstances which could lend
support to the petitioner's plea. In the absence of such a careful scrutiny
the court merely obliged a petitioner who was using the court process for
the purpose of extending his own life.
Ill COMPENSATORY DISCRIMINATION
Reservation of seats for villages identified as socially and educationally
backward was held bad by the court on the ground that the classification
as well as identification of social and educational backwardness was arbit-
rary.56 A government order making blanket reservation of 14 per cent
and 9 per cent for scheduled castes and scheduled tribes respectively for
admission to the post-graduate medical course was held bad because it
contained no guidelines and no merit qualification.57
State of M.P. v. Nivedita Jainbs was the most notable case of the year
on reservation of seats in educational institutions. Nivedita Jain sought
admission to a medical college. Though she had obtained the necessary
qualifying marks, she could not secure admission as other candidates for
the general seats had obtained higher marks. One of the rules stated
that if the reserved seats (for scheduled castes and scheduled tribes) re-
mained unoccupied, they could be thrown open as unreserved. The
government, however, passed an order dispensing with the requirement of
obtaining the qualifying marks for admission in respect of the candidates
for the reserved seats. Nivedita would have been admitted if these seats
had been thrown open but because of the above government order, she
was not. She therefore challenged the validity of the government order
on the grounds, (/) it contravened regulation II of the regulations made by
the Medical Council of India and section 19 of the Indian Medical Council
Act, 1956 and (ii) that the order violated articles 14 and 15 by allowing
less qualified and less deserving candidates to fill up the seats. The
Madhya Pradesh Court struck down the order admitting the above
objections. Against this the State of M.P. appealed to the Supreme Court.
The state argued that (i) the state under article 15(4) was competent to do
everything possible for the upliftment of the scheduled castes and scheduled
tribes and other backward communities and it was entitled to reserve seats
5** A.LR. 1981 S.C. 2239.
56 Supra note 26a.
57 Anand Kumar v. State, A.I.p.. 1?81 f a t . 16^
$8 A.LR. 1981 .C. 2045,

in medical colleges for them. It must then be open to it to lay down such
conditions as would make such reservations effective and would enable
the candidates belonging to those communities or groups to get the benefits
of such reservations. When the state found that the qualifying conditions
laid down for admission had in reality resulted in denial of opportunities
to them, the government considered it expedient to relax the conditions
so as to enable the candidates of those communities to get admission;
(ii) the scheme of the Indian Medical Council Act clearly suggested that
the medical council was responsible for maintaining the standards of
medical education and that stage came only after the students were
admitted to the medical course. Therefore, the counsel was not compe-
tent to frame regulations prescribing the conditions for admission ; (Hi) it
was also argued that the regulation of the council prescribing minimum
qualifying marks was merely directory and not mandatory. The court
held that the regulations of the council were merely directory. It further
held that the state was competent to relax the qualifying condition. The
court speaking through A.N. Sen J. pointed out that the relaxation was
not regarding eligibility for admission into medical college. It was
only in the rule regarding selection of candidates belonging to
Scheduled Castes and Scheduled Tribes categories who were other-
wise qualified and eligible to seek admission into medical colleges
only in relation to seats reserved for them.58"
The impugned order was, therefore, held valid. There were two cases
which showed that the court was vigilant against spurious claims to
backwardness. Where certain benefits were available to those whose
income (family) was less than Rs. 10,000, a candidate belonging to a
family with annual income of Rs. 10,000 adopted in a family with annual
income less than Rs. 10,000 could not claim the advantage of economic
backwardness.59 Where a person who was born as Christian, had re-
converted himself to Hinduism and claimed that he belonged to one of
the scheduled castes to which his forefathers had belonged before conver-
sion, he was held not entitled to the advantages of a reserved seat in a
medical college. The person had got converted just before applying for
admission to the medical course.60
Compensatory discrimination in government service came under attack
in S.S. Sharma v. Union of India61 and A.B.S.K. (Rly.) v. Union of India**
In Sharma, the government's rules providing for a special competitive
examination for selecting candidates for the reserved seats among candi-
dates belonging to Scheduled Castes and Scheduled Tribes (SCs and STs)
" Id. at 2058.
89
R. Srinivasa v. Chairman, Selection Committee, A.LR. 1981 Kant. 86,
o / . Das v. State, A.LR. 1981 Ker. 164.
w A.LR. 1981 S.C. 588.
62
A.LR. 1981 S.C. 298.

was challenged. The court pointed out that whether or not reserved
vacancies should be de-reserved was a matter falling primarily within the
administrative discretion of the government. There was no right in can-
didates seeking to fill vacancies belonging to the general category to insist
on de-reservation of reserved vacancies so long as it was possible in law
to fill the reserved vacancies. De-reservation as a process could be resor-
ted to only when it was not reasonably possible within the contemplation
of the law to fill the reserved vacancies. The question of holding the
examination arose only when the reserved vacancies could not be filled
because eligible officers from the reserved categories were not available
through the original process of selection.
In Akhil Bharatiya Soshit Karamchari Sanghys (A.B.S.K. Sangh)63
case the Supreme Court dealt with the validity of certain measures inten-
ded "to catalyse the prospects of" the SCs and STs "entering the many
Departments of Government not merely at the initial stage but also at
promotional points".64 Two arguments were mainly pressed by the
petitioners, (i) article 16(4) could not be applicable to promotional levels ;
and (//) efficiency of administration was a constitutional consideration
under "article 335 and could not be a sacrificial goat to propitiate the
backward class kali".65 The railway administration provided for reserva-
tion of candidates belonging to the SCs and STs in proportion to their
ratio in the total population (15 and 7.5 per cent). This percentage of
reservation applied to class IV, class III or class II and in a limited way,
to class I posts also. However, inspite of such reservations, the vacancies
reserved for them remained, in many cases unfulfilled by SC and ST
candidates. The government adopted a policy of "carry forward" upto
three recruitment years of reserved vacancies, if enough numbers of
candidates from the said groups did not get selected. The "carry forward"
rule was calculated to keep open the reserved vacancies for at least 3 years,
so that the under representation could be made up at least partially.
Where recruits for the reserved seats were deficient in efficiency, provision
was made for special training with a view to bringing them up to the
minimal level. When reservations in the promotions were challenged, the
court speaking though Krishna Iyer J. pointed out that the preponderant
majority coming from the unreserved communities were presumably effi-
cient and that the dilution of efficiency caused by the minimal induction
of a small percentage of reserved candidates could not affect the overall
administrative efficiency significantly. Moreover, care had been taken to
give in-service training and coaching to correct the deficiency. In promo-
tion by selection from class III to class IV, the SCs and STs, if they were
otherwise eligible, were to be given one grade higher than the grading
otherwise assignable to them on the basis of their record of service, It
68
Ibid.
4 Id. at 308.
Id. at 309.

was further provided that in promotions made by selection in or to class
III and class IV posts, in grades or services in which the element of direct
recruitment, if any, did not exceed 50 per cent, there would be reservation
of 12 per cent and 5 per cent of the vacancies for the SCs and STs. It
had been further decided that in respect of promotions to selection posts
in class III, where safety aspect was not involved the qualifying marks
under "professional ability" in respect of SC and ST candidates should be
25 out of 50 instead of 30 out of 50 as applicable to the candidates belong-
ing to the unreserved groups.
Krishna Iyer J. formulated the questions as follows :
(/) Did article 16(1) insist on absolute equality or did it permit realistic
and rational classification of unequal classes and treatment of such classes
differently?
(/'/) Did SCs and STs stand in a different class from the rest of the
Indian community?
(Hi) Were STs within the scope of article 16(2)? If so, did article
16(4) save special provisions in their favour in matters of promotion and
allied matters?
(iv) Did the directives under attack impair administrative efficiency
to the extent of violating article 335?
(v) Did the ten circulars reduce the fundamental right under article
16(1) to a husk or cipherise it altogether?
Regarding the first, the learned judge observed that the classification
of the SCs and STs for the purpose of adequate representation in the
services was just and reasonable. Regarding the second question, he
observed that the SCs were not mere castes. He said :66
They may be something less or something more and the time badge
is not the fact that the members belong to a ca'ste but the circum-
stances that they belong to an indescribably backward human
group.
However, even if SCs were a caste and therefore within the prohibitory
scope of the article 16(1), they could be given differential treatment by
virtue of clause (4) of article 16. The learned judge while upholding
various circulars of the government pointed out :67
The Railway Board shall take care to issue instructions to see that
in no year shall SC and ST candidates be actually appointed to
substantially more than 50 per cent of the promotional posts.
Chinnappa Reddy J. stated that when posts were reserved for the SCs
and STs, whether at the stage of initial recruitment or at the stage of
promotion, "it was not a concession or priviledge extended to them" but
6 Id. at 322.
Id. at 327,

it was "in recognition of their undoubted fundamental right to equality

of opportunity."68 There was "no fixed ceiling to reservation or prefer-
ential treatment in favour of the SCs and STs though generally reservation
may not be far in excess of fifty per cent".69 There could not be rigidity
about 50 per cent rule which was only" a convenient guideline laid down
by the judges".70 The impugned orders were upheld by both the judges.
Pathak J. in his dissenting judgment, however, said that "a maximum of
50 per cent for reserved quotas in their totality" was a rule which appeared
fair and reasonable. The majority view, therefore, appears to permit
reservations beyond 50 per cent of the total number of seats but subject to
judicial approval.In view of what happened in Gujarat last year and the
overall reaction of the society, a careful balancing of compensatory dis-
crimination vis-a-vis equality will have to be made in the coming years.
Over-reservations might set in opposite reaction and ultimately cause a
set back to the constitutional thrust towards social justice.
IV FREEDOMS UNDER ARTICLE 19

Freedom of speech and expression guaranted by article 19(l)(a)
received a somewhat wider interpretation in M.D. Shah v. L.I.C. of India.71
The Consumer Education and Research Centre (CERC) published a
study entitled "A Fraud on Policy Holders" which was a critique of the
the Life Insurance Corporation of India (LIC.) The director of the
corporation wrote a reply to it which was published in "the Hindu" as
well as "Yogakshema"a journal of the LIC. When a trustee of the
CERC wrote a reply to the director's reply, he sent it to "Yogakshema",
which was rejected by the LIC. It was held that the action of the cor-
poration violated article 19(l)(a). It did not mean that any one had a
right to publish in any journal or newspaper. The right that was recog-
nised was only of replying to criticism made in such a journal or news-
paper. It was held in Ushodaya Publications (P) Ltd. v. A.P.72 that while
the government was free to decide to whom the advertisements should be
given, any decision based on guidelines such as that advertisement be not
given to newspapers which were rabid or abusive or "raging fanatical"
was discriminatory and an unreasonable restriction upon article I9(l)(a).
It is now well known that the right to acquire, hold and dispose of
property guaranteed by article (I9)(f) was deleted by the 44th Constitu-
tional Amendment. But in most of the cases in which this right was
invoked, the impugned legislation was upheld by the courts. Thus, a
provision of the West Bengal Land Reforms Act, 1955 as amended in
Id. 339.
Ibid.
Jtf.340.
71 A.I.R. 1981 Guj. 15.
7" A.LR. 1981 A.P. 109,

Vol XVII] Constitutional Law-t 213
1977 which provided that the cultivator or members of his family must
reside in the locality where the land was situated for the greater part of the
year, was upheld, as being a reasonable restriction on the right guaranteed
by article 19(1)(/).73 The right of pre-emption on the ground of common
enjoyment of appendages and immunities was also upheld.74
In Laxmi Khandsariv. U.P.,75 a notification issued under clause 8 of
Sugarcane (Control) Order, 1966 made under section 3 of the Essential
Commodities Act, 1955 was upheld. It provided that no power crusher,
with certain exceptions, of a khandsari unit, or any agent of such owner
in the reserved area of a mill could be worked until December 1, 1980.
Sugar was being produced in U.P. by sugar mills through hydraulic
process and by the power crushers through what was known as the 'open
pan process'. Both the mills as well as the crushers drew their raw
material, namely, sugarcane, from the sugercane growers. In order to
facilitate production by sugar mills, a reserved area of the fields growing
sugarcane was fixed throughout the state. The ban was confined to a
particular area and restricted to a short period of October 9, 1980 to
December 1, 1980. It was not only just but essential to boost the pro-
duction of sugar by factories so that it could be available to the consumers.
Further, production by power crushers involved waste of sugarcane. The
recovery of sugarcane juice by the mills was double that of by the crushers,
and if the latter were allowed to operate unrestricted, the wastage of
sugarcane would have been almost 50 per cent. The restriction was,
therefore, reasonable. Similarly the M.P. (Foodstuffs) Civil Supplies
Public Distribution Scheme, 1981 formulated by the government under
sub-clause (d) of clause (2) of the M.P. Foodstuffs (Distribution) Control
Order, 1960 made under section 3 of the Essential Commodities Act,
which gave preference to co-operative societies for running the fair price
shops, was upheld.76
In Fertilizer Corporation Kamgar Union (Regd.) v. Union of India,77

by a petition filed under article 32 the petitioners, who were workers in
the public sector corporation, challenged the validity of the sale of certain
plants and equipment of the corporation, namely the Sindri Fertilizer
Factory. The challenge was based on the ground that, (/) the decision
to sell the plants and equipment was taken without calling for any report,
expert or otherwise ; (ii) that the original tender of Rs. 7.6 crores was
unaccountably reduced to Rs. 4.25 crores; (/"//) the price of the plants
and equipment was manipulated with unfair process ; (iv) the decision t&
restrict the fresh offers to the tenders who had submitted tenders for more
*8K. Thakuraniv. Union of India (1981) Scale 391.
?*Rajendra Kumar v. Rameshwar Dass, A.I.R. 1981 AH. 391.
A.I.R. 1981 S.C. 873.
76M.P. Ration Vikreta Sangh Socy. v. M.P., supra note 34; also see Mjs. New
India Sugar Works v. U.P., A.I.R. 1981 S.C. 998.
" A.LR. 1981 S.C. 344.

than Rs. 4 crores was unfair and arbitrary ; (v) the decision resulted in a
huge loss to the public exchequer since if the sale had been readvertised,
an appreciably higher price would have been realised and (iv) the sale
had jeopardised the employment of 11,000 odd workers who faced retren-
chment as a result of the sale. The petitioners, therefore, contended that
the sale deprived them of their rights under article 19(l)(g) to carry on
their occupation as industrial workers.
Chandrachud C.J. observed at the outset that the jurisdiction conferred

on the Supreme Court by article 32 was "an important and integral part
of the basic structure of the Constitution". 78 While dealing with the
question whether the petitioners could claim a right under article 19(1)(^),
the learned Chief Justice said :79
The right to pursue a calling or to carry on an occupation is not

the same thing as the right to work in any particular post under a
contract of employment.
The right given by article I9(l)(g) was available to all persons to do

work of their choice. It did not confer the right to hold a particular job
or to occupy a particular post of one's choice. In fact the management
of the corporation had pointed out that the sale of the plant was not going
to result in the unemployment of workers. But it was good that the
Chief Justice clarified the scope of article \9(l)(g). Because otherwise
his liberal stance on the question of locus standi might have led to some
misunderstanding. Article I9(l)(g) could not be invoked against loss of
a job or retrenchment or removal from service. A job or a service was
essentially contractual, subject to restrictions against arbitrary dismissal
or removal imposed by the law or the Constitution. A person who loses
his job may impugne it on the ground that the conditions prescribed by
the law (such as observance of the rules of natural justice) had not been
fulfilled but not on the ground that h >s fundamental right guaranteed by
article 19(l)(g) had been violated. No one can have a fundamental right
to be in a contractual relationship with another person. This case is
significant for the fact that the court conceded the following :80
If public property is dissipated, it would require a strong argument
to convince the Court that representative segments of the public or
at least a section of the public which is directly interested and
affected would have no right to complain of the infraction of public
duties and obligations.
This was the court's green signal to public interest litigation which in
(1981) 1 S.C.C. 568, 574.

Id. at 576.
o Ibid.

the following year was to appear more prominently in S.P. Gupta v. Union
of India,81 popularly known as the Judges case.
Restrictions on the right to carry on trade and business were upheld
in a number of cases.82 They were struck down as being unreasonable in
a few cases.83
V PROTECTION IN RESPECT OF CRIMINAL

PROSECUTION
Prohibition against retroactive penal law was stressed by the Supreme

Court in W.T. Commr., Amritsar v. Suresh Seth8* though the case was
decided on the point that failure to submit a return was not a continuing
offence and it could be punished only according to the law as it existed
on the date of the submission of the return.
It was held that the protection against self-incrimination was available
only to a person against whom a formal accusation of the commission
of an offence had been made. 85 In Dushyant Somal v. Sushma Soma!*6
the Supreme Court speaking through Chinnappa Reddy J. observed that
a criminal prosecution was not a fortress against all other actions in law.
A parent (father), who was accused of kidnapping his child from the
lawful custody of the other parent (mother) under section 363 of I.P.C.,
could not refuse to answer a court in a habeas corpus proceeding on the
ground that it would amount to self incrimination within the meaning of
article 20(3). All he was required to do in a habeas corpus proceeding
was to produce the child before the court. He could have then satisfied
the court that it was in his lawful custody.
VI PERSONAL LIBERTY
The Supreme Court has unfolded many dimensions of the guarantees

of "personal liberty" and "procedure established by law" contained in
article 21 since Maneka Gandhi,87 in the Hoskot88 Hussainara Khatoon89
81
A.I.R. 1982 S.C. 149
82
SrinivasaEnterprises v. Union of India, A.LR. 1981 S.C. 5 0 4 ; Arunkumar v.
Reserve Bank, A.LR. 1981 Del. 314 ; Southern Pharmaceuticals & Chemicals v.
Kerala, A.I.R. 1981 S.C. 1863; State of Karnataka v. Hansa Corporation, A.I.R.
1981 S.C. 463 ; Usmanbhai Hasanbhaiv. State, A.I.R. 1981 Cal. 40 ; P. Venkaiah v.
G. Krishna Rao, A.I.R. 1981 S.C. 1910.
83 S. SardarAliv. Union of India, A.I.R. 1981 (NOC) A.P. 136; Mis. Neelam Wines
v. Police Commissioner, A.LR. 1981 A.P. 191.
8* A.LR. 1981 S.C. 1106.
85
Balkrishna A. Devidayal v. Maharashtra, A.I.R. 1981 S.C. 379.
8* A.LR. 1981 S.C. 1026.
s? Maneka Gandhi v. Union of India, A.LR. 1978 S.C. 597.
as M.H, Hoskot v. Maharashtra, A.LR. 1978 S.C. 1548,
89 Hussainara Khatoon v. Bihar, A.I.R. 1979 S.C. 1360, 1369,1377.

and Sunil Batra90 cases. Under this article, the court has shown increasing
concern for the denial of human rights. The Bhagalpur blinding of sus-
pected prisoners came before the court in a number of cases.91 At
Bhagalpur a number of suspected criminals were allegedly blinded while
they were in prison with a view to meting out 'lynch justice' by police
authorities. The people of Bhagalpur also seemed to support the people,
throwing to the winds the cardinal principle of justice that a person accused
of an offence is to be presumed innocent until proved to be contrary. The
court heard that one of the blinded prisoners, Umesh Yadav, had sent a
petition to the district and sessions judge, Bhagalpur on 30th July 1980,
complaining that he had been blinded by B.K. Sharma, district superin-
tendent of police and that since he had no money he should be provided
a lawyer at government expense to prosecute the delinquent police official.
Ten other blinded persons had made similar petitions and all those
petitions were forwarded to the district and sessions judge on 30th July
1980. The sessions judge stated that there was no provision in the Code
of Criminal Procedure, 1973 under which legal assistance could be provided
to the blinded persons and he forwarded those petitions to the chief judi-
cial magistrate, who also expressed his inability to do anything in the
matter. Bhagwati J. while referring to this observed that the facts
disclosed "a very distrubing state of affairs".92 The court asked the
inspector-general of prisons as to who was the individual or which was the
department of the state government to whose notice he brought this
(blinding) matter and what steps did the government take on receipt of the
petitions of the blinded prisoners forwarded by the inspector-general of
prisons? The court wanted to know "whether the Windings which took
place in October 1980 could have been prevented by the state government
by taking appropriate steps on receipt of information in regard to the
complaint of the blinded prisoners". 93
Bhagwati J. pointed out some irregularities which were shocking. In
the first place, in a few cases the accused persons had not been produced
before the nearest magistrate within 24 hours of their arrest as required by
article 22. In some cases, the accused persons were not producd before
the judicial magistrates subsequent to their first production and they
continued to be in jail without any remand orders being passed by the
judicial magistrates. The provision inhibiting detention without remand
was " a very healthy provision" which enabled the magistrates to keep a
check over the police investigation and the court stressed the need for the
magistrates to exercise such control vigilantly. The learned judge expres-
sed his unhappiness at the lack of concern shown by the judicial magistrate
so Sunil Batra v. Delhi Administration, A.I.R. 1978 S.C, 1675; Sunil Batra v Delhi
Administration {11), X.l.K. 1980 S.C. 1579. * uem
x
Khatri v.Bihar, A.LR. 1981 S.C. 928, 1068.
2 Jd. at 933.
93
Ibid.

in not enquiring from the blinded prisoners when they were first produced
before them or thereafter from time to time for the purpose of remand
as to how they had received injuries in the eyes. This gave rise to two
possibilities, either the prisoners were not physically produced before the
magistrates or that the magistrates mechanically signed the orders of
remand.94 It was also regrettable that no inspecton of the central jail,
Bhagalpur, was carried out by the district and sessions judge at any time
during the year 1980. It was also very callous on the part of the sessions
judge that he should have informed the blinded prisoners that there
was no provision for giving legal assistance under the Code of Criminal
Procedure. Bhagwati J. observed that the right to free legal services
"was clearly an essential ingredient of reasonable, fair and just
procedure for a person accused of an offence", the state governments
had done little to provide such assistance.95 The learned judge
further pointed out that the right to free legal services would become
illusory for an indigent accused unless the magistrate or the sessions
judge before whom he was produced informed him of such right.
Since more than 70 per cent of the people <n the rural areas were illiterate
and even more than that precentage of people were not aware of the rights
conferred upon them by law, it was essential to promote legal literacy as
part of the programme of legal aid. The judge said :96
It would make a mockery of legal aid if it were to be left to a poor

ignorant and illiterate accused to ask for free legal services. Legal
aid would become merely a paper promise and it would fail in its
purpose. The Magistrate or the Sessions Judge before whom the
accused appears must be held to be under an obligation to inform
the accused that if he is unable to engage the services of a lawyer
on account of poverty or indigence, he is entitled to obtain free
legal services at the cost of the State.
The judicial magistrate had failed to discharge this obligation in the case
of the blinded prisoners and they merely stated that no legal representation
was asked for by the blinded prisoners and hence none was provided. We
hope that these exhortations would really percolate downwards and reach
the district and taluka judiciary. Another important question that arose
in these cases was whether the state was liable to pay compensation to
the prisoners if the blinding was done by the police authorities. True,
the court certainly could injunct the state from depriving a person of his
life or personal liberty except in accordance with the procedure establshed
by law. Was "the Court helpless to grant relief to the person" who had
suffered such deprivation? "Why should the Court not be prepared to
* Id. at 932.
6 Id. at 931.
Ibid.

forge new tools and devise new remedies for the purpose of vindicating
the most precious of the fundamental right to life or personal liberty?".97
The learned attorney-general argued that even if the petitioner was blinded
the state was not liable to pay compensation to the petitioners because the
state was not constitutionally or legally responsible for the acts of the
police officers outside the scope of their power or authority. While
replying to this contention, Bhagwati J. asked the following very pertinent
question :
If an officer of the State acting in his official capacity threatens to

deprive a person of his life or personal liberty without the authority
of law, can such person not approach the Court for injuncting the
State from acting through such officer in violation of his fundamen-
tal right under article 22....Can the State urge in defence in such
a case that it is not infringing the fundamental right of the petitioner
under Article 21, because the officer who is threatening to do so is
acting outside the law and therefore beyond the scope of his autho-
rity and hence the State is not responsible for his action.98
Such a plea if accepted would ' make a mockery of article 2 1 " . If there
is a threat of infringement of the fundamental rights due to action of an
official, who might be exceeding or abusing his authority, the injured
person could certainly move the court either under article 226 or 32 of the
Constitution to have such an action prevented. Why should he not be
able to take recourse to court when the action taken by the state had
already resulted in breach of the fundamental right under article 21?.
The court, however, pointed out that these issues would require care-
ful examination only after the fundamental fact that the petitioners were
blinded by the police authorities at the time of arrest or after arrest while
in police custody had been established. They would be taken up only
after the central bureau of investigation completed its investigation.
Judicial review of the prescribed procedure under article 21 was under-
taken in some other cases. In State of Maharashtra v. C.P. Shah" the
court speaking through Chinnappa Reddy J. observed that an accused
"reasolutely minded to delay in the day of reckoning, may quite convenien-
tely and comfortably" delay the proceedings. A delayed trial is not
necessarily an unfair trial. The delay may be occasioned by the tactics or
conduct of the accused himself.
It was held by various High Courts that section 14 of the Official
Secrets Act, 1923 did not in any way deprive the valuable rights of the
aocused to get copies of the statements recorded by the magistrate or
8
'' Id. at 930.
98
A.I.R. 1981 S.C. 1068 at 1074.
9 A.I.R. 1681 S.C. 1675.

Vol. XVII] Constitutional LawI 2l9
statements of witnesses recorded by the police or the documents obtained

by the police during the investigation as envisaged by the rules framed
under the Code of Criminal Procedure. The Supreme Court observed that
if the accused were denied such information then it would be difficult to
uphold the validity of such procedure.100
Kadra Pehadiya v. State of Bihar101 narrated the story of four young
boys, who had been languishing in"a Bihar jail as undertrial prisoners for
over 10 years, and who, but for the efforts of one of the academic lawyers,
would not have had the day of reckoning so soon. Vasudha Dhagamwar
has narrated the story of her encounters with the subordinate judiciary
before approaching the Supreme Court,102 which is pathetic and which fully
vindicates Bhagwati J.'s observation that the case "represents one more
instance of the utter callousness and indifference of our legal and judicial
system to the undertrial prisoners languishing in the jails." 103 Four young
boys belonging to the pehadiya tribe, which was a backward tribe, were
arrested on 26th November 1972 and 19th December 1972. They were
not committed to the court of session until 2nd of July 1974 and the trial
had not commenced until 30th August 1977 and even this commence-
ment was merely symbolic. While commenting on this Bhagwati J.
observed :103a
We fail to understand why our justice system has become so de-

humanised that lawyers and judges do not feel a sense of revolt at
caging people in iail for years without trial.
The court asked the sessions judge to proceed with the case immediately.
It also criticised the practice of keeping those prisoners in leg irons.
In Francis Coralie Mulhn v. Administrator10* the Supreme Court held
that the right of a detenu to consult his legal adviser could be regulated
in a manner which was reasonable, fair and just and a provision which
required the presence of an officer at the time of such interview was an
unreasonable restriction. The court pointed out that the right to live
under article 21 included the right to live with human dignity and a prisoner
ordetenue would be entitled to have interviews with members of his
family and friends. Such a right was part of the "personal liberty"
because article 21 included the right to socialise with members of the
family and friends subject of course to regulations, which had to be fair
and just. It was held that a provision of the prison rules, whereby a
if Supdt. & Remembrancer, Legal Affairs, W.B. v. S. Bhoumick, A.I.R. 1981 S.C. 917.
*oi A.I.R. 1981 S.C. 939.
102 Vasudha Dhagamwar, "Pahadiya File : A Cry in Wilderness", Mainstream Annual
1-6(1981).
i8 Supra note 101 at 940.
lQ3fl Ibid,
w>4 A.LR. 1981 S.C. 746,

detenu under an order of preventive detention was allowed to meet his

family and friends only once a month, was unreasonable. The court
pointed out that where an undertrial prisoner was permitted interviews
twice a week and a convicted prisoner once a week, the detenu could not
be denied the facility of meeting his relations and friends more than once
a month. The court pointed out the distinction between punitive
detention and preventive detention and observed that the facilities given to
the detenu had to be better than those given to prisoners who had been
adjudged guilty of an offence punisable by law. According to Bhagwati J.
the power of preventive detention had been recognised as a "necessary
evil" and was tolerated "in the larger interests of security of the State and
maintenance of pubic order". While our Constitution recognised preven-
tive detention it was hedged in by various safeguards set out in articles
21 and 22. The law of preventive detention had to pass the test not only
of article 22 but also of article 21 and the procedure had to stand the
test of justness and fairness as required under the new interpretation
of article 21.
Torture of prisoners by prison authorities came for adverse judicial
comment in Kishore Singh v. RajashanWa and Rakesh v. B.D.Vig. Supdt,
Central Jail, New Delhi105. In Malak Singh v. State of Punjab106 it was
held that discreet surveillance of suspects, habitual and political offenders,
might be necessary and so the maintenance of history sheets and surveil-
lance register might also be necessary for the purpose of prevention of
crime. History sheets and surveillance registers had to be and were confi-
dential documents. Neither the person whose name was entered in the
register nor any other member of the public could have access to the
surveillance register. The nature and character of the function involved
in the making of an entry in the surveillance register was so utterly
administrative and non-judicial, that it was difficult to conceive of the
application of the rule of audi alteram partem. It would not be in the
pulic interest to reveal this information. However, surveillance did not
mean licence to the police authorities to interfere with personal liberty.
Surveillance of persons who did not fall within the categories mentioned
in rule 23.4 of the Punjab Police Rules, or for reasons unconnected with
the prevention of crime could be challenged.
In addition to blinding of the Bhagalpur Prisoners and Kadra Pehadiya
cases which tellingly illustrated how rule of law was non-existent in certain
pockets of democratic India, Premchand Paniwala's101 case illustrated the
functional distortions and perversions of our judicial process. Premchand
made a living as a paniwaia or vendor of soft drinks in Delhi. He had a
w A.I.R. 1981 S.C. 625.

ioA.LR. 1981 S.C. 1767.
WAJ.R. 1981 S.C. 760.
w Prem Chand (Paniwala) v. Union of India, A.LR. 1981 S.C. 613.

few mobile carts which were used for refrigerating water. These carts
used to be parked by him on the roadside due to the indulgence of the
police. In return for police indulgence and connivance, he became their
perpetual stooge and stock witness. In 1965 he was involved in a gambling
case by the police to mould him into a permanent stock witness lest he
should be militant enough to defy them. He thus became a regular pedlar
of perjury on police service. When he became rich and socially well-to-do,
he became reluctant to oblige the police and with a view to pressurising
him, the police served him an externment notice asking for his removal
from Delhi. While fighting against such an order, Premchand came to
the Supreme Court. His counsel produced a few hundred summons
wherein the petitioner had been cited as a witness. Krishna Iyer J. reacted
very angrily when he said :108
We condemn, in the strongest terms, the systematic pollution of the

judicial process and the consequent threat to human rights of
innocent persons.
The case makes a very sad commentary on our entire system of police and
investigation of crimes and also criminal justice. Needless to say, the
court quashed the externment order, but the case will stand as a most
revealing testimony of an institutionalised perjury by which our system of
justice is unfortunately infected.
VII PREVENTIVE DETENTION
In Dr. Rahamatullah v. Bihar109, the court explained that under section

3 (2) of the National Security Act, 1980 there were the following obliga-
tions of the appropriate government : (z) To afford to the detenu an
opportunity to make a representation and to consider such representation.
(ii) To constitute an advisory board and to communicate the representation
of the detenu along with the materials to the board to enable it to form its
opinion and to obtain such opinion. The first was distinct from the
second and where the government did not consider the representation but
waited for the opinion of the advisory board, the detention was invalid.
It was not enough that the Government should consider the representation.
It must consider it without any delay.109* In order that the detenu should
be able to make a representation, the detenu must be given the documents
lf,
s id. at 615.
io A.I.R. 1981 S.C. 2069.
W*HarishPahwa v. U.P., A.LR. 1981 S.C. 1126; Saileh Mohammed v. Union of India,
A.I.R. 1981 S.C. I l l ; AshokKumarv. J.&K.,A.LR. 1981 S.C. 851; Kamla v.
Maharashtra, A.LR. 1981 S.C. 814 ; Smt. Khatoon Begum v. Union of India, A.I.R.
1981 S.C. 1077.

on which the order of detention was based.110 In a number of cases the

detention was set aside on the ground of delay in supplying the docu-
ments.111 Where however basic facts had been communicated, a marginal
delay in supplying the supplementaries or additional materials might not
in the peculiar circumstances vitiate the detention.112 Once a document
was referred to in the grounds of detention, it became the bounden duty of
the detaining authority to supply the same to the detenu.113 Where a
document, to which only a casual reference was made, but which was not
relied upon by the detaining authority while making the order of detention,
was not given to the detenu, the detention was not vitiated.114 Where the
grounds were communicated in English and the detenu was not conversant
with the English language, the detention was illegal,115
The Supreme Court could not examine whether the grounds given were
adequate for justifying the detention because that would be the function of
an appellate nature. The only thing a court was supposed to do was to
make sure that the detention order was based on some grounds and that
those grounds had been communicated to the detenu.116
The representation was not required to be in any particular form. So
long as it contained a demand or a request for the release of the detenu, in
whatever form or language couched it had got to be considered as a
representation for the purpose of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 (COFFEPOSA).117 An
advisory board tendering advice ninteen or twenty days after the reference
did not make the detention invalid.118 Where the report of the advisory
board was not submitted within 8 weeks from the date of detention, it
became invalid.119 The advisory board must forward the record of its
proceedings with the report to the state government. If the board failed to
" R.A. Kamat v. Union of India, A.LR. 1980 S.C. 764; Frances Coralie Mullin v. W.C.
Khambra, A.I.R. 1980 S C. 849 ; Smt. Ichu Devi v. Union of India, A.I.R. 1980 S.C.
1983. It was held that this principle applied to detention under the National Security
Act also. Abdul Aziz v. Delhi Administration, A.I.R. 1981 S.C. 1389 ; Taramati v.
Maharashtra, A.I.R. 1981 S.C. 871; Virendra Singh v. Maharashtra, A.LR. 1981
S.C.1909.
ui Sec M.M. Patel v. Maharashtra, A.LR. 1981 S.C. 510; Shri Tushar Thakkar v.
Union of India, (1980) 4S.C.C 499 ; Mehdi Mohammed Joudi v. Maharashtra, A.I.R.
1981 S.C 1752 ; Surjeet Singh v. Union of India, (1981) 2 S . C C 359 ; Mehrnnissa v.
Maharashtra, A.LR. 1981 S.C. 1861 ; Pritam Nath v. Union of India, A.I.R. 1981
S.C 92.
112
Hansmukh v. Gujarat, A.LR. 1981 S.C 28.
wKirit Kumar v. Union of India, A.LR. 1981 S.C. 1621.
ii*L.M.S- UmmuSaleemav. B.B. Gujaral, A.LR. 1981 S.C 1191.
U5 Surjeet Singh v. Union of India, A.LR. 1981 S.C 1153.
118
State of Gujarat v. Adam Kasam Bhaya, A.I.R. 1981 S.C 2005 ; State of Gujarat v.
Ismail Jumma, (1981) 4 S . C C 609.
u
? ShaliniSoniw. Union of India, A.LR. 1981 S.C 431.
118
Smt. Gayathriv. Commr. of Police, Madras, A.LR. 1981 S.C 1672.
* A.K. Btnny v. / . Sc K.9 (1982) 1 S . C C 174.

forward the record, the confirmation of the detention order on the basis
of its report would amount to non-application of the mind and would
result in violation of article 21. 120 Legal assistance in the proceedings
before the board could not be had as a matter of right. However, the
detenu was entitled to make a request and the board was bound to consider
such request and take a reasonable decision. Permitting the detaining
authority to be represented by a lawyer while denying such facility to the
detenu would however violate articles 14 and 21. 121 Mere omission in the
detention order of the information that the detenu had a right to represent
against the order and to be heard by the advisory board did not violate
the order. Where the detenu was an enlightened person and had been
active in politics, such knowledge could be presumed.122 The board was,
however, bound to give a hearing to the detenu where he expressed his
desire to be heard. Where such an opportunity of being heard was not
given, the detention was held void.123 The period for which a person was
to be detained under COFEEPOSA was not to be determined and specified
at the time of making the original order of detention. It had to be deter-
mined and specified at the time of confirming the order of detention under
section 8 ( / ) , after receiving the report of the board. 124 The representation
need not be considered by the same individual, who had exercised his
mind at the initial stage of making the order of detention. 1240 However,
the authority which rejects the representation must have the power to
do so.126
VIII FREEDOM OF RELIGION
During this year, there was hardly any case on this subject. The only
judicial decision in this area was Naseema Khatun v. State126 in which it
was held that the provisions of the Bengal Wakfs Act, 1954 as amended
by the Amendment Act of 1973 under which the wakfs were required to
pay contribution towards wakf fund and the education fund were not
violative of articles 25, 26 and 27.
IX RIGHT TO PROPERTY
Right to property, which was once a citadel of litigants, has been
devalued by the Constitution (Forty-fourth) Amendment Act, 1979. In
Saiyenbhai Kaderbhai v. Intajam Hussain 127 the Gujarat Debtors Relief Act,
1976 survived an attack under clause (2) of article 35 because, as the Gujarat
^NandlalBajajv. Punjab, A.I.R. 1981 S.C. 2041.
i21 Ibid.
m
Wasi Uddin Ahmedv. Dist. Magistrate, Aligarh, A.I.R. 1981 S.C 2166.
123
Hamida Sarfaraz Quareshi v. M.S. Kasbekar, A.LR. 1981 S.C 459.
1,1
Kavita v. Maharashtra, A.I.R. 1981 S.C. 2084; Smt. Masuma v. Maharashtra, A.LR.
1981 S.C. 1753.
124a Kavita v. Maharashtra, ibid.
125
Supra note 113.
i2 A.LR. 1981 Cal. 302.
A.LR. 1981 Guj. 154,

High Court rightly observed, the debts which were due to the creditors
from the debtors had not been transferred to the state or to any corpo-
ration owned or controlled by the state.
Bhim Singhji v. Union of India*2* which would better be called the
Urban Land Ceiling case, was the major decision of the Supreme Court of
this year on property rights. In this case, the court by majority upheld
the validity of all the provisions except one of the Urban Land (Ceiling
and Regulation) Act, 1976. The majority judgment was delivered by
Chandrachud C. J. on behalf of Bhagwati J. and himself. Krishna
Iyer J., wrote a concurring but separate judgment and Tulzapurkar
and A.P. Sen JJ. wrote dissenting judgments. Section 27(1) was held
invalid by all the judges unanimously as it imposed a restriction on the
transfer of any urban or urbanisable land with a building or a portion
only of such building, which was within the ceiling area. Such property,
therefore, could be transferred without the constraints imposed by that
section. We shall first consider Tulzapurkar L's judgment and then come
back to Krishna Iyer J / s discordance.
The Urban Land Ceiling Act had been passed to provide for the
imposition of a ceiling on vacant land in urban agglomerations, for the
acquisition of such land in excess of the ceiling limit, to regulate the cons-
truction of buildings on such land and for matters connected therewith,
with a view to preventing the concentration of urban land in the hands of
a few persons and speculation and profiteering therein and with a view to
bringing about equitable distribution of land, in furtherance of the direc-
tive principles of state policy contained in article 39(b) and (c). The enact-
ment thus claimed the protection of article 31C and since it was included in
the Ninth Schedule, it also enjoyed the protection of article 31i?. The
strategy of the assailants was to challange the validity of the constitutional
amendment itself by which the impugned Act had been included in the
Ninth Schedule on the ground of its alleged destruction of the "basic
structure" of the Constitution. Secondly, they challenged the assumption
that the impugned law furthered the objectives of the directive principles
embodied in clause (b) or (c) of article 39 and, therefore, claimed that it
could not come within the protective umbrella provided by article 31C.
The Act adopted a definition of "family" for the purpose of deter-
mining the ceiling limit as consisting of husband, wife and three minor
children. It was observed by Tulzapurkar J. that due to such artificial
definition of family, major children, who were normally included in
family, had been excluded in total disregard of the concept of a joint
Hindu family. Such exclusion produced discriminatory results because if
there was a family of husband, wife and three minor children, that family
would retain 500 sq. metres of land, whereas a family consisting of hus-
band, wife and 4 major sons would be able to retain 2500 sq. metres of
w* A.I.R. 1981 S.C 234.

land. The discrimination between minor children and major children was
not based on any reasonable classification. Tulzapurkar J. held that such
an artificial definition clearly violated article 14. But more weighty argu-
ment was that by making such discrimination the Act did not subserve the
purposes embodied in clause (b) or (c) of article 39, but on the contrary
it "enables unwarranted and unjustified concentration of wealth in the
hands of few".*29
Section 23 dealt with the disposal of excess land acquired by the
government. Tulzapurkar J. pointed out that unlike agrarian ceiling,
which dealt with land as a means of production, urban ceiling dealt with
vacant land in urban agglomerations not as a means of production but as
a part of the holder's wealth or capital asset. Agrarian ceiling had the
object of distributing the surplus land straightaway among landless persons.
The impugned Act, however, provided for the acquisition of excess land
and its vesting in the state to be disposed of in accordance with the provi-
sions of section 23. This was clearly a legislation in exercise of the state's
power of eminent domain. But under section 23, the land could be allot-
ted to any "industry". Two pre-conditions requisite for eminent domain
were, (i) that acquisition should be for public purpose and (ii) it must be
on payment of compensation. By adopting a wide definition of the word
"industry" as including any business, trade or profession in private sector,
the state government had been empowered under sub-section (1) of section
23 to allot any extent of such excess vacant land to any businessman,
trader or professional man like a lawyer, doctor or astrologer to enable
him to carry on his private business, trade or profession. This was clearly
outside the scope of eminent domain. Section 23 was, therefore, clearly
violative of article 31(2) and since this provision was non-severable from
the other provisions of that chapter, entire chapter III was held to be
invalid. Furthermore, the wide definition of "industry" and the priorities
for disposal or distribution of excess vacant land laid down in section 23
had an adverse effect on the directive principle contained in article 39(b).
Instead of confining the objective of industrialisation to * public sector or
cooperative sector and the like where benefit to community or public at
large would be the sole consideration, the concept was widely defined to
include any business, trade or profession in private sector and the section
authorised the government to allot the excess land to individuals or bodies
for private purposes. The priorities in the matter of disposal or distri-
bution of the excess vacant land under sub-sections (1) and (4) were such
that the common good came last. This, therefore, could not be said to be
in furtherance of the directive principles contained in clause (b) of article
39 and, therefore, could not be protected by article 31C.
Section 11(6) of the Act said that the amount payable on acquisition of
surplus land could not exceed Rs. 2 lacs, It was contended that this pro-
Wfa at 247,

vision, which put the maximum limit of Rs. 2 lacs on the amount payable
to a claimant irrespective of the extent of the excess vacant land acquired
under the Act, was not only arbitrary but also resulted in illusory payment
and violated articles Hand 31(2). The learned judge pointed out that a
provision putting a maximum limit upon compensation could not always
be regarded as confiscatory. The judge said :
In enactments involving large schemes of social engineering like
abolition of zamindaris, agrarian reforms, nationalisation of under-
takings and business and the like, such a provision might be justi-
fiably made.130
A.P. Sen J. in another dissenting judgment held that sub-sections (1), (2)
and (3) of section 23 and the opening words "Subject to the provisions of
CIs. (1), (2) and (3)" in section 25(4) were ultra vires the Parliament and
were not protected by articles 31,4 or 31C. He, however, upheld the
definition of "family". He also rejected the attack against section 11(6).
Both the judges held section 27(1) as void.
Krishna Iyer J. in his concurring but separate judgment defended sec-
tion 11(6) as follows : m
Having regard to the human condition of a large percentage of pave-
ment dwellers in our urban areas and proletarian miserables in our
rural vastnesses, any one who gets Rs. 2 lakhs can well be regarded as
having got something substantial to go by. In a society where half
of humanity lives below the breadline, to regard Rs. 2 lakhs as a
farthing is farewell to poignant facts and difficult to accept.
Has the excess land been used for housing the slum dwellers or pave-
ment dwellers 7 Is it not true that when on the one hand the government
is helpless against the vice of black money and therefore, has to take
recourse to bearer bonds which legitimise black money, provisions such as
section 11(6) merely amount to arbitrarily confiscating the properties of
some rich people, while leaving others to graze freely 7 Did Parliament
contemplate any real re-distributive endeavour ? Why even Rs. 2 lacs if
one is to take into account the poverty in India 7 Why not take away
property without paying anything 7 The validity of such a legislative
measure ought not to be upheld on the supposed or imaginary ideas of
social engineering. The entire history of urban land ceiling is of govern-
ment inaction or abuse of power. How can we uphold it on the ground
that there is abysmal poverty 7 Krishna Iyer J. is right when he says that
"the prevalent pathology of corrupt use of public power cannot be assum-
ed by the Court".138 But if compensation for the acquired property is not
iso Id. at 254.
131
Id. at 240 (Emphasis, added).
v/<f.at241.

to be illusory or fraudulent, should the court not go into questions which
Tulzapurkar J. has ably raised in his judgment 7 Iyer J, points out that "to
sustain a law by interpretation is the rule", "to be triggerhappy at sight
every suspect law is judicial legicide".133 We would agree with Krishna
Iyer J. if there had been a total scheme of social engineering. Merely
cutting down the compensation for excess land under the Urban Land Ceil-
ing Act when land prices are allowed to escalate and the government is
helpless against black money is rather unfair and counter productive.
This case also raised questions regarding "basic structure" which we
have examined elsewhere.
In Sashahka Sekhar v. Union of India 1U the Supreme Court upheld
tne West Bengal Land Reforms Act, 1956 as amended in 1972. The Act
which lowered the ceiling limit from 25 hectares to 7 hectares in the case of
a family consisting of 5 persons was challenged on the ground that it
amounted acquisition of land within the ceiling limit without providing for
payment of compensation equal to market value as required by the second
proviso to article 31^. The court observed that "ceiling on agricultural
holdings once fixed cannot be static, unalterable for all times".135 Once the
ceiling limit was changed, the second proviso of article 31A applied to the
new ceiling limit.
Whether the impugned Act can get protection of article 31C depends
upon whether there is direct and reasonable nexus between it and the
directive principle embodied in clause (b) of article 39. While coming to
such a conclusion the court has to examine the object, the scheme and
other provisions which reflect the policy of the state. The court has to
see whether in general there is nexus and it cannot subject every provision
to a microscopic examination.136
X LIMITATIONS OF CONSTITUTIONAL AMENDMENT
In Minerva Mills,1*1 the Supreme Court held unanimously that Parlia-
ment could not amend the Constitution so as to destroy its basic structure.
This was reaffirmation of the principle laid down in Kesavananda Bharati.lzB
In Waman Rao v. Union of India,1*9 the constitutional validity of the
Constitution (First Amendment) Act, 1951 which introduced article 31^4
into the Constitution with retrospective effect and section 3 of the Consti-
tion (Fourth Amendment) Act, 1955 which substituted a new clause (1),
sub-clauses (a) to (e) for the original (1) in article 31^4, was upheld.
i3 id. at 242.
"4 A.LR. 1981 S.C. 522.
i" Id. 3t 529.
" Musafa Hussain v. Union of India, A.I.R. 1981 A.P. 283.
w Minerva Mills Ltd. v. Union of India, A.I.R. 198Q S.C. 1789,
" Infra note 140.
t4.LR.198)S.C37t,

Since Kesavananda140 unlike Golakh Nathui had not used any device of
prospective overruling for settling the question of the validity of the consti-
tutional amendments enacted before the date of its decision, that question
was bound to recur again and again. In Waman Rao the court held that all
amendments which were made before April 24, 1973 (the date on which
Kesavananda was decided) and by which the Ninth Schedule to the Cons-
titution was amended from time to time by the inclusion of various Acts
and regulations therein, were valid and constitutional. Amendments to
the Constitution made on or after April 24, 1973, whereby the Ninth
Schedule was amended from time to time, were open to challenge on the
ground that the Acts included in the Ninth Schedule by them damaged
the basic or essential features of the Constitution or its basic structure.
The court refused to pronounce upon the validity of such subsequent
constitutional amendments in the abstract. It merely stated that if any
Act or regulation included in the Ninth Schedule by a constitutional
amendment made after April 24, 1973 was served by article 31^4 or by
article 31C, as it stood prior to its amendment by the 42nd Amendment,
the challenge to the validity of the relevant constitutional amendment by
which that Act or Regulation was put in the Ninth Schedule, need not be
entertained. In addition to various constitutional amendments, the
Maharashtra Agricultural Land Ceiling Amendment Acts of 1975 and 1976
also had been challenged. The court upheld the Act and dismissed the
petitions with costs. The stay orders granted in those matters were also
vacated. The judgment of the court was delivered by Chandrachud
C.J. on behalf of Krishna Iyer, Tulzapurkar, AP. Sen JJ. and himself.
Krishna Iyer J. added a piece of his own and Bhagwati J. wrote a
common judgment for this case and Minerva Mills.
The Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961
which was brought into force on January 26, 1962 imposed a ceiling on
agricultural holdings. The ceiling originally fixed was lowered by certain
amendments which were made by Acts passed in 1975 and 1976. The
validity of these Acts was challenged before the Bombay High Court in
a number of writ petitions. The petitions were dismissed by the High
Court in Vithalrao Udhavrao v. Maharashtra.1** Appeal against this
decision was rejected by the Supreme Court in Dattatraya Govindv.
Maharashtra11* This judgment was delivered while the proclamation of
emergency was in operation. On the revocation of emergency, petitions
were filed in the Supreme Court praying for review of the judgment in
Dattatraya on the ground that several contentions, which were otherwise
open to them for assailing the constitutional validity of the impugned Acts
could not be available by reason of the emergency and, therefore, they
A.I.R. 1973 S.C. 146L
MI A.I.R. 1967 S.C. 1643,
u A.LR. 1977 Bom. 99.
H*AJ-R-J977S.C.91J*
should be allowed to canvas them once again. It was thus that the
question of the validity of these laws and the constitutional amendments
by which these laws were protected came to be considered by the Supreme
Court.
Chandrachud CJ. observed :144
We would like to add that every case in which the protection of a
fundamental right is withdrawn will not necessarily result in dama-
ging or destroying the basic structure of the Constitution. The
question as to whether the basic structure is damaged or destro-
yed in any given case would depend upon which particular Article
of Part III is in issue and whether what is withdrawn is quintessen-
tial to the basic structure of the Constitution.
After tracing the history of Constitution-making the Chief Justice
observed that "these amendments, especially, the First, were made so
closely on the heels of the Constitution that they ought indeed to be
considered as a part and parcel of the Constitution itself ",145 The first
Amendment had made the constitutional ideal of equal justice "a living
truth1'.146 The learned Chief Justice, therefore, held that the impugned
amendments "strengthened rather than weakened the basic structure of
the Constitution."147
It was argued that the validity of article 31A could be sustained on
the ground of the doctrine of stare decisis since it had been upheld by
the court in previous decisions such as Sankari Prasad1*7** Sajjan
Singh1*8 and Golak Nath1*9 Chandrachud C.J., however, noted that
' in none of the three earlier decisions was the validity of Article 31^4 tested
on the ground that it damaged or destroyed the basic structure of the
Constitution".150 Further, it was not necessary to invoke the doctrine of
stare decisis because article 31/1 breathed "its own validity, drawing its
sustenance from the basic tenets of our Constitution".151 Secondly, the
learned Chief Justice pointed out the limitations of the stare decisis.
According to him it was "a wise policy to restrict the principle of stare
decisis to those areas of the law where correction" could be had "by
legislation".152 Another very thought provoking argument put forward
by Tarkunde which had great jurisprudential potential, was that the rules
u
* Supra note 139 at 279.
Ml
/rf at 284.
iJtf. at 285.
l
Ibid.
w* Sankari Prasad v. Union of India, A.I.R. 1951 S.C. 458.
Ms Sajjan Singh v. Rajasthan, A.I.R. 1965 S.C. 845.
149
Supra note 141.
w supra note 139 at 2S6.
isi Id. at 288.
***Ibid.

230 Annual Survey of Indian Law [\9$1
of stare decisis should not be invoked for upholding constitutional devices

like articles 31^4, 31B 31C which were designed to protect not only the
past laws but the future ones also.153 The learned Chief Justice
observed :154
The principle of stare decisis can apply, if at all, to laws protected

by these articles, if those laws have enjoyed the protection of these
articles for a long time, but the principle cannot apply to the articles
themselves.
This was a sound principle which would bring about the correct applica-
tion of the doctrine of prospective overruling. But such was not the occasion
here as the court upheld the articles themselves. However, the learned
Chief Justice in fact used the device of prospective overruling when he
upheld the laws incorporated into the Ninth Schedule before April 24,
1973, the day on which the "basic structure" doctrine was given birth by
the Supreme Court in Kesavananda Bharati.155 The reasoning given is
very much similar to that of Subba Rao C.J. in Golak Nath.1 Chandra-
chud C.J. said:157
A large number of properties must have changed hands and several

new titles must have come into existence on the faith and belief that
the laws included in the Ninth Schedule were not open to challenge
on the ground that they were violative of articles 14, 19 and 31.
We will not be justified in upsetting settled claims and titles and in
introducing chaos and confusion into the lawful affairs of a fairly
orderly society.
Another reason for drawing a line at a convenient and relevant point

of time was that the first 66 items in the Ninth schedule, which were
inserted prior to the decision in Kesavananda Bharati "mostly pertained
to agarian reforms". Therefore, it was held that all Acts and regulations
included in the Ninth Schedule prior to Kesavananda decision would
receive the full protection of article 31i?. The constitutional amendments
enacted after the Kesavananda decision incorporating the laws into the
Ninth Schedule would have to satisfy that they did not damage or destroy
the basic structure of the Constitution. So far as article 31C was con-
cerned, the judge upheld it on the merits like article 31^. The Chief
Justice observed :158
is*/</. at 289.
164 ibid. {Emphasis added).
i" Supra note 140.
l %
* Supra note 141.
*7 Supra note 139 at 290.
W8Mat 292.

Vol. XVII] Constitutional Lawt 231
In fact, far from damaging the basic structure of the Constitution,

laws passed truly and bonafide for giving effect to directive principle
contained in els. (b) and (c) of Art. 39 will fortify that structure.
Although the constitutional amendments adding laws to the Ninth
Schedule enacted after the Kesavananda decision would have to stand the
test of compatibility with the basic structure, those laws would get the
protection of articles 3\A and 31C, if they fell within the scope of those
articles. Various other questions were raised before the court, the most
important being that of the validity of the proclamation of emergency,
which in our respectful submission, the court has rightly refused to
answer.
Bhagwati J. in a separate judgment gave his dissent regarding article
31C, which he upheld in its entirety. The majority had in Minerva Mills159
upheld that article in its pre-Forty Second Amendment form. Bhagwati J.
also differed with the Chief Justice on the question of the application of the
doctrine of stare decisis. In his view these amendments had been upheld in
Ambika Prasad Mishra v. U.P.u9a and, therefore, they could be upheld on
the basis of stare decisis. Krishna Iyer J. also added a note of dissent on
the question of stare decisis.
In Bhimsinghji1*0 which has been discussed earlier, the Constitution
(Fortieth Amendment) Act 1975, whereby the Urban Land Ceiling Act had
been put in the Ninth Schedule, had been challenged as being destructive of
the "basic structure" of the Constitution. Tulzapurkar J. observed that the
petitioners would be able to establish their proposition if they could prove
that the impugned Act itself violated articles 14, 19 and 31.161 The
Attorney-General argued that "even if there was any violation, the Act and
its provisions could not be challenged by the petitioners on that ground
because of the protective umbrella of Articles 31B and 31C."wa It is sub-
mitted that this raises a very significant question regarding the scope of
judicial review. If violation of any of the articles such as 14, 19 or 31
amounted to destruction of the basic structure, for all practical purposes it
would mean that incorporation of any law in the Ninth Schedule would be
unconstitutional, if such an Act violated those provisions. In any case it
would make the entire Ninth Schedule technique superfluous because if the
law violated articles 14, 19 or 31, its inclusion in that schedule would be
unconstitutional and if it did not violate those articles, its inclusion in the
Ninth Schedule would not be necessary. The criteria for judging the vali-
dity, in our respectful submission, would be not the alleged violation of
those rights, the immunity against which was sought to be conferred by such
1B
* Supra note 137.
A.I.R. 1980 S.C. 1762.
180
Supra note 128.
141
A.I.R. 1981 S.C. 234, 245.
a Id. at 246.

232 Annual Survey of Indian Law jl 9 8 l
an amendment but continuity with the theme and objectives of those laws
which came to be included in it upto 1973. In other words, if the new
additions were in consonance with the spirit and objectives of the original
schedule and its expansion upto 1973, they would be valid.
In MJs. Pilani Investment Corporation Ltd, v. Union of India1** the
Madhya Pradesh High Court held that the Constitution (Thirty-ninth
Amendment) Act, 1975 in so far as it gave protection to section 29 D of
the Industries (Development and Regulation) Act, 1951 (IDRA) by includ-
ing it in the Ninth Schedule (item 88) was unconstitutional as being viola-
tive of the "basic structure" of the Constitution. Section 29Z> gave
priority to every debt obtained by an authorised person for carrying on
the management of or exercising functions of control in relation to an
industrial undertaking or part thereof, the management of which had been
taken over by section 18.4 or section 18,4,4 or section \%FA. These
debts were considered as preferential debts within the meaning of section
530 of the Companies Act, 1956. This provision was held not to be ancil-
lary or incidental for carrying out the object of taking over the manage-
ment of an undertaking so as to bring it within the protective wings of
article 3 \A(l)(b). It was also reiterated that the protection of article 311?
was not available to the amendments subsequently made in the Act which
had been included in the Ninth Schedule.164 However, such amendments
might be protected by article 31/L165 Other provisions of the IDRA were
held to come within the protection of article 315.
XI ARTICLE 32
In Kirit Kumar v. Union of Indialm the Supreme Court held that the
principle of res judicata did not apply to successive writ petitions in the
Supreme Court and the High Court under articles 32 and 226 respectively.
It had been held earlier in another case167 that even successive writ petitions
for habeas corpus under article 32 would be maintainable in the Supreme
Court provided the points raised in the subsequent petitions were addi-
tional, not covered or agitated in the previous petitions. From this, the
court observed that if the principles of res judicata could not apply to
successive writ petitions in the Supreme Court, much less could they be
attracted in cases where points were not agitated before the High Court
but were raised for the first time in a writ petition under article 32. Fazal
Ali J. pointed out that the doctrine of finality of judgment or the prin-
ciples of res judicata were founded on the basic principle that where a
court of competent jurisdiction had decided an issue, the same should not
" A.LR. 1981 M.P. 140.
MRamanlalv. Gujarat, A.I.R. 1969 S.C. 168; Godavari Sugar Mills v. S.B. Kamble,
A.I.R. 1975 S.C. 1193.
i " Latafat Ali Khan v. State ofU.P., A.I.R. 1973 S.C. 2070*
* #//>#* note 113.

be allowed to be agitated again and again. Such a doctrine would be

wholly incapable to cases where the two forums had separate and inde-
pendent jurisdictions. It is strange that the court has nowhere even refer-
red to the decision of the Supreme Court in Daryao1*7 which unless
expressly overruled, holds the field. Are we to treat such a judgment as
per incuriam ? Or are we to treat this as overruling by implication ? It
should be noted that the court had treated so far the Daryao rule as
operative.1*7*1 Even in Lallubhai Jagubhai1** the court had pointed out
that in Daryao the court had not expressed any opinion about habeas
corpus petitions. In that case after surveying the case law, the court had
observed that the applicability of the doctrine of constructive res judicata
was confined to civil actions and civil proceedings and was entirely in-
applicable to illegal detention and did not bar a subsequent petition for
habeas corpus under article 32 on fresh grounds, which had not been
agitated in the earlier petition. Even allowing fresh grounds to be agitated
may not violate Daryao because as explained in later cases a writ petition
unless dismissed on merits did not act as res judicata to second petition
under article 32. The observations of Fazal Ali J. in Kirit Kumar go much
beyond these limits and suggest that since article 32 was a fundamental
right it could not be restricted by the application of the principle of res
judicata.
XII DIRECTIVE PRINCIPLES OF STATE POLICY
The Supreme Court no longer holds the view that the directive prin-
ciples are less fundamental than the fundamental rights. Much water has
flown down the Yamuna since this view was voiced many years ago.
There are passages in both Bhimsinghji as well as Waman Rao which
clearly show that the court considers the directive principles of state policy
as part of the basic structure of the Constitution. A law seeking to imple-
ment a directive principle is now presumed to be constitutional.169
"7 Daryao v. UP, A.I.R. 1961 S.C. 1457.

i67a Har Swamp v. General Manager, Central Rly., A.I.R. 1975 S.C. 202; Smt. Sushila
Devi v. Ramanandan Prasad, A.I.R. 1976 S.C. 177; The Ahemdabad Manufacturing
Calico Painting Co. Ltd. v. The Workmen, A.I.R. 1981 S.C. 960.
* Shri Lallubhai Jogibhai Patel v. Union of India, A.I.R. 1981 S.C. 728.
! Sonia Bhatia v. UP., A.I.R. 1981 S.C. 1274.

010 - 1981 - Constitutional Law-I (Fundamental Rights)

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10

Since Rajasthan Electricity Board's1 case the statutory corporations

* Principal, ILS Law College, Pune.

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were required to be submitted for government approval and scrutiny. In

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number of posts. There were, however, provisions affecting air hostesses

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was that the physicial charms of an air hostess were diminished on

How can a provision be unreasonable, arbitrary and yet not be violative

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is considered under article 19, certainly family planning or environmental

A.I.R. 1981 S.C. 487.

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It is necessary to remember that we are concerned here only with the

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guished between two classes of holders of special bearer bondstax evaders

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them by subjecting one class to more onerous terms in the matter

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Lt. Governor* in which the Supreme Court stayed execution of two

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it was "in recognition of their undoubted fundamental right to equality

IV FREEDOMS UNDER ARTICLE 19

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In Fertilizer Corporation Kamgar Union (Regd.) v. Union of India,77

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Chandrachud C.J. observed at the outset that the jurisdiction conferred

The right to pursue a calling or to carry on an occupation is not

The right given by article I9(l)(g) was available to all persons to do

(1981) 1 S.C.C. 568, 574.

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V PROTECTION IN RESPECT OF CRIMINAL

Prohibition against retroactive penal law was stressed by the Supreme

The Supreme Court has unfolded many dimensions of the guarantees

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It would make a mockery of legal aid if it were to be left to a poor

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If an officer of the State acting in his official capacity threatens to

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statements of witnesses recorded by the police or the documents obtained

We fail to understand why our justice system has become so de-

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detenu under an order of preventive detention was allowed to meet his

w A.I.R. 1981 S.C. 625.

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We condemn, in the strongest terms, the systematic pollution of the

VII PREVENTIVE DETENTION

In Dr. Rahamatullah v. Bihar109, the court explained that under section

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on which the order of detention was based.110 In a number of cases the

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