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"
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,
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.
(//) 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
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.
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.
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.
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,
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
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.
This was the court's green signal to public interest litigation which in
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
VI PERSONAL LIBERTY
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
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 :
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.
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,
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.
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.
" 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.
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.
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
is*/</. at 289.
164 ibid. {Emphasis added).
i" Supra note 140.
l %
* Supra note 141.
*7 Supra note 139 at 290.
W8Mat 292.
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.