1 Merged

TC- C042
Compendium
(Petitioner)
MANU/SC/0209/2002
Equivalent Citation: AIR2002SC 1533, [2002(93)FLR1134], JT2002(3)SC 219, 2002LabIC 1457, 2002(3)SC ALE203, (2002)4SC C 34,
2002(2)SC T547(SC ), 2002(2)SLJ497(SC ), 2002(2)SLJ497(SC ), 2002(3)SLR18(SC ), (2002)2UPLBEC 1567
IN THE SUPREME COURT OF INDIA

Appeal (civil) 7777 of 1997
Decided On: 20.03.2002
Appellants:Ashutosh Gupta
Vs.
Respondent:State of Rajasthan and Ors.
Hon'ble Judges/Coram:
G.B. Pattanaik, S.N. Phukan and Brijesh Kumar, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Shushil Kumar Jain and A.P. Dhamija, Advs
For Respondents/Defendant: S.K. Bhattacharya (NP), Sandhya Goswami and M.P.S.
Tomar, Advs.
Case Note:
Civil - Validity of rule - Rule 25 of Emergency Recruitment Rules, 1976 -
Petitions were filed by direct recruits against validity of Rule 25 - Single
Judge as well as Division Bench had upheld validity of Rule 25 - Hence, this
Appeal - Whether, recruitment under Emergency Recruitment Rules of 1976
by having a notional year of allotment was discriminatory - Held, necessary
materials had not been placed to show how there had been an unequal
treatment - Appellants had utterly failed to establish any materials from
which grievances about discrimination alleged could be made - Provision of
Section 25 had been specifically designed to meet all situations under which
people from different walks of life could be recruited to Rajasthan
Administrative Service under Emergency Recruitment Rules - They were
neither directed recruits under Recruitment Rules of 1954, nor were promoted
- For purpose of their seniority in cadre in Emergency Recruitment Rules, a
formula had been adopted - Formula could not be held to be discriminatory in
nature - Hardly a few people of those emergency recruits were on verge of
superannuation - There was no justification to interference with impugned
Judgment of High Court - Appeal dismissed.
Ratio Decidendi:
"If a person complains of unequal treatment burden lies on him to place
before Court sufficient materials from which it can be inferred that there is
unequal treatment."
JUDGMENT
G.B. Pattanaik, J.
1. The appellant is a direct recruit to the Rajasthan Administrative Service, having been
selected through the competitive examination held by the Rajasthan Public Service
Commission. The recruitment of the appellant had been made on 5.6.1975 under the
08-10-2020 (Page 1 of 7) www.manupatra.com Central University of South Bihar

or appointment to any office in the State does not prevent the State from making any
provision for the reservation of appointments to posts in favour of any backward class
of citizens which in the opinion of the State is not adequately represented in the
services of the State. Article 335 stipulates that the claims of the members of Scheduled
Castes and Scheduled Tribes shall be taken into consideration , consistent with the
maintenance of efficiency of administration, in the making of appointment to services
and posts in connection with the affairs of the union or of State. It is, thus, apparent
that even in the matter of reservation in favour of Scheduled Castes and Scheduled
Tribes the founding fathers of the Constitution did make a provision relating to the
maintenance of efficiency of administration. In this view of the matter, if any statutory
provision provides for a recruitment of a candidate without bearing in mind the
maintenance of efficiency of administration such a provision cannot be sustained being
against the constitutional mandate. But we are unable to accede to the contention of Mr.
Jain that those persons who got recruited to the Rajasthan Administrative Service under
the Emergency Recruitment Rules are either in-efficient or their suitability has been
adjudged on an inferior standard. It may be reiterated that those persons also had
undertaken a written test on specified subjects as indicated in the Rules and after
qualifying in the written test they were also subjected to interview conducted by the
Public Service Commission, in the same manner, as those who had been recruited to
Rajasthan Administrative Service under the Recruitment Rules of 1954 though there may
have been a variance on the subjects of which they had taken the test. But that by itself
would not be sufficient to hold that the candidates recruited under the Emergency
Recruitment Rules are less efficient or their suitability had been adjudged at a lesser
standard. We would, therefore, reject the submissions made by Mr. Jain on the ground
of discrimination, on the score.
5 . Article 14 of the Constitution secures equal protection to government servants and
Article 16 is a particular application of general guarantee provided in Article 14. The
doctrine of equality before law is a necessary corollary to concept of rule of law
accepted by the Constitution. It is well settled principle that if a person complains of
unequal treatment, the burden squarely lies on that person to place before the court
sufficient materials from which it can be inferred that there is unequal treatment.
Where, however, the necessary materials have not been placed to show how there has
been an unequal treatment, the plea of provisions being violative of Article 14 cannot be
entertained. We record this conclusion of ours, as in course of hearing of this matter.
Mr. Jain, learned counsel appearing for the appellant, had often repeated that the
provision of the Emergency Recruitment Rules has permitted even a beetle shop owner
with the minimum income as indicated therein to appear and compete at the test and on
being selected, the period for which he had been earning the aforesaid amount could be
taken into account for the purpose of seniority in the cadre even though there has been
no nexus between that period and the service to which he has been recruited. Apart
from making such submission on a hypothetical basis, no material has been produced to
indicate if anyone of the persons recruited under the Emergency Recruitment Rules has
reaped any undue advantage in respect of his past experience by adoption of the
formula in the Emergency Recruitment Rules for the purpose of allotting year of
allotment as 1976 -- (N 1 + N 2). In the absence of an iota of materials on this aspect,
we are not required to examine the correctness of the said submission of Mr. Jain, on
an. assumption that the provisions of the Recruitment Rules might have enabled the
professionals on being recruited to count their past experience for reckoning their
seniority in the cadre of Administrative Service even though the said experience might
not have any co-relationship with the Administrative Service. Even otherwise, the entire
experience of such recruits could not have been totally wiped off and, therefore, the
rule-making authority while making the rules for recruitment on emergency basis did

MANU/SC/0033/1952
Equivalent Citation: AIR1952SC 75, 1952C riLJ510, [1952]1SC R284

Cases Nos. 297 and 298 of 1951
Appellants:The State of West Bengal
Vs.
Respondent:Anwar Ali Sarkar
M. Patanjali Sastri, C.J., Saiyid Fazl Ali, M.C. Mahajan, B.K. Mukherjea, Sudhi Ranjan
Das, N. Chandrasekhara Aiyar and Vivian Bose, JJ.
Case Note:
West Bengal Special Courts Act 1950, ss., 3, 5-Constitution of India, 1950 Art.
14-Act constituting special courts and empowering State Government to refer
to such courts "cases" or "offences" or "classes of cases" or "classes of
offences -Constitutional validity-Fundamental right to equality before the law
and laws' protection-Construction of Act-Reference to preamble-Act does not
classify cases or laying down standard for classification-How far material is
Intention of legislature-Notification's validity under Act-Equality test before
law-Essentials of reasonable classification-Whether necessity for speedier
trial reasonable ground for discrimination.
JUDGMENT
M. Patanjali Sastri, C.J.
1. This is an appeal by the State of West Bengal from a judgment of a Full Bench of the
High Court of Judicature at Calcutta quashing the conviction of the respondent by the
Special Court established under section 3 of the West Bengal Special Courts Ordinance,
1949, (Ordinance No. 3 of 1949) which was replaced in March, 1950, by the West
Bengal Special Courts Act, 1950, (West Bengal Act X of 1950) (hereinafter referred to as
"the Act").
2. The respondent and 49 other persons were charged with various offences alleged to
have been committed by them in the course of their raid as an armed gang on a certain
factory known as the Jessop Factory at Dum Dum, and they were convicted and
sentenced to varying terms of imprisonment by the Special Court to which the case was
sent for trial by the Governor of West Bengal by a notification dated 26th January,
1950, in exercise of the powers conferred by section 5 (1) of the Act. Thereupon the
respondent applied to the High Court under article 226 of the Constitution for the issue
of a writ of certiorari quashing the conviction and sentence on the ground that the
Special Court had no jurisdiction to try the case inasmuch as section 5 (1), under which
it was sent to that Court for trial, was unconstitutional and void under article 13(2) as it
denied to the respondent the equal protection of the laws enjoined by article 14. The
High Court by a Full Bench consisting of the Chief Justice and four other Judges
quashed the conviction and directed the trial of the respondent and the other accused
persons according to law. Hence the appeal.

special court may not be subject to judicial review and may, in that sense, be absolute,
but that is very different from saying that it was intended to be arbitrary. Its exercise
must involve bona fide consideration of special features or circumstances which call for
a comparatively prompt disposal of the case or cases proposed to be referred. In other
words, section 5 (1) must, in my opinion, be read as empowering the State Government
to direct a special court to try such offences or classes of offences or cases or classes of
cases as, in its judgment, require speedier trial.
8 . The question next arise as to whether the provision, thus understood, violates the
prohibition under article 14 of the Constitution. The first part of the article, which
appears to have been adopted from the Irish Constitution, is a declaration of equality of
the civil rights of all persons within the territories of India and thus enshrines what
American Judges regard as the "basic principle of republicanism" [cf. Ward v. Flood 17
Am. Rep. 405. The second part which is a corollary of the firsts and is based on the last
clause of the first section of the Fourteenth Amendment of the American Constitution,
enjoins that equal protection shall be secured to all such person in the enjoyment of
their rights and liberties without discrimination or favoritism, or as an American Judge
put it "it is a pledge of the protection of equal laws" [Yick Wo v. Hopkins 118 U.S. 356,
369], that is, laws that operate alike on all persons under like circumstances. And as the
prohibition under the article is directed against the State, which is defined in article 12
as including not only the legislatures but also the Governments in the country, article
14 secures all person within the territories of India against arbitrary laws as well as
arbitrary application of laws. This is further made clear by defining "law" in article 13
(which renders void any law which takes away or abridges the rights conferred by Part
III) as including, among other things, any "order" or "notification", so that even
executive orders or notifications must not infringe article 14. This trilogy of articles thus
ensures non-discrimination in State action both in the legislative and the administrative
spheres in the democratic republic of India. This, however, cannot mean that all law
must be general in character and universal in application. As pointed out in Chiranjit
Lal's case MANU/SC/0009/1950 : [1950] S.C.R. 869, and in numerous American
decisions dealing with the equal protection clause of the 14th Amendment, the State in
the exercise of its governmental power must of necessity make laws operating
differently on different groups or classes of persons within its territory to attain
particular ends in giving effect to its policies, and it must posses for that purpose large
powers of distinguishing and classifying person or things to be subjected to such laws.
But classification necessarily implies discrimination between persons classified and
those who are not members of that class. "It is the essence of a classification" said Mr.
Justice Brewer in Atchison, Topeka & Santa Fe R. Co. v. Matthews 174 U.S. 96, 106,
"that upon the class are case duties and burdens different from those resting upon the
general public. Indeed the very idea of classification is that of inequality, so that it goes
without saying that the mere fact of inequality in no manner determines this matter of
constitutionality". Commenting on this observation in hi dissenting opinion in Connolly
v. Union Sewer Pipe Co. 184 U.S. 540, 566, 567, 568, (which later prevailed in Tigner
v. Texas 310 U.S. 141, Mr. Justice McKenna posed a problem and proceeded to answer
it. "It seems like a contradiction to say that a law having equality of operating may yet
give equality of protection. Viewed rightly, however, the contradiction disappears.....
Government is not a simple thing. It encounters and must deal with the problems which
come from persons in an infinite variety of relations. Classification is the recognition of
those relations, and, in making it, a legislature must be allowed a wide latitude of
discretion and judgment.... Classification based on those relations need not be
constituted by an exact or scientific exclusion or inclusion of person or things.
Therefore it has been repeatedly declared that classification is justified if it is not
palpably arbitrary.

MANU/SC/0406/1984
Equivalent Citation: AIR1986SC 515, (1985)1C ompLJ115(SC ), (1985)1C ompLJ115(SC ), [1986]159ITR856(SC ), (1985)1SC C 641

Writ Petns. Nos. 2656-60, 2935 to 2952, 3402, 3467, 3595, 3600-03, 3608, 3632,
3653, 3661, 3821, 3890-93, 4590-93, 4613-15, 5222, 5576, 5600-02, 5726-27, 7410,
8459-62, 8825. 8944 of 1981, 1325 of 1982, 470-72 of 1984, T.C. Nos. 23 of 1983 and
23 of 1984 and W.P. Nos. 3114-17, 3392-93, 3853 and 6446-47 of 1981
Appellants: Indian Express Newspapers (Bombay) Private Ltd. and Ors.
Vs.
Respondent: Union of India (UOI) and Ors.
O. Chinnappa Reddy, A.P. Sen and E.S. Venkataramiah, JJ.
JUDGMENT
E.S. Venkataramiah, J.
1. The majority of Petitioners in these petitions filed under Article 32 of the Constitution
are certain companies, their shareholders and their employees engaged in the business
of editing, printing and publishing newspapers, periodicals, magazines etc. Some of
them are trust or other kinds of establishments carrying on the same kind of business.
They consume in the course of their activity large quantities of newsprint and it is
stated that 60% of the expenditure involved in the production of a newspaper is utilized
for buying newsprint, a substantial part of which is imported from abroad. They
challenge in these petitions the validity of the imposition of import duty on newsprint
imported from abroad under Section 12 of the Customs Act, 1962 (Act 52 of 1962) read
with Section 2 and Heading No. 48.01/21 Subheading No. (2) in the First Schedule to
the Customs Tariff Act, 1975 (Act 51 of 1975) and the levy of auxiliary duty under the
Finance Act, 1981 on newsprint as modified by notifications issued under Section 25 of
the Customs Act, 1962 with effect from March 1, 1981.
2. The first set of writ petitions challenging the above levy was filed in May, 1981. At
that time under the Customs Act, 1962 read with the Customs Tariff Act, 1975 customs
duty of 40% ad valorem was payable on newsprint. Under the Finance Act, 1981 an
auxiliary duty of 30% ad valorem was payable in addition to the customs duty. But by
notifications issued under Section 25 of the Customs Act, 1962 the customs duty had
been reduced to 10% ad valorem and auxiliary duty had been reduced to 5% ad
valorem in the case of newsprint used for printing newspapers, books and periodicals.
3 . During the pendency of these petitions while the Customs Tariff Act, 1975 was
amended levying 40% ad valorem plus Rs. 1,000/- per MT as customs duty on
newsprint, the auxiliary duty payable on all goods subject to customs duty was
increased to 50% ad valorem. But by reason of notifications issued under Section 25 of
the Customs Act, 1962 duty at a flat rate of Rs. 550/- per MT and auxiliary duty of Rs.
275/- per MT are now being levied on newsprint i.e. in all Rs. 825/- per MT is now
being levied.
4. The Petitioners inter alia contend that the imposition of the import duty has the direct

7 3 . A piece of subordinate legislation does not carry the same degree of immunity
which is enjoyed by a statute passed by a competent legislature. Subordinate legislation
may be questioned on any of the grounds on which plenary legislation is questioned. In
addition it may also be questioned on the ground that it does not conform to the statute
under which it is made. It may further be questioned on the ground that it is contrary to
some other statute. That is because subordinate legislation must yield to plenary
legislation. It may also be questioned on the ground that it is unreasonable,
unreasonable not in the sense of not being reasonable, but in the sense that it is
manifestly arbitrary. In England, the Judges would say "Parliament never intended
authority to make such rules. They are unreasonable and ultra vires". The present
position of law bearing on the above point is stated by Diplock L.J. in Mixnam
Properties Ltd. v. Chertsey U. D C, (1964) 1 QB 214 thus:
The various grounds upon which subordinate legislation has sometimes been
said to be void can. I think, today be properly regarded as being particular
applications of the general rule that subordinate legislation, to be valid, must
be shown to be within the powers conferred by the statute. Thus the kind of
unreasonableness which invalidates a bye-law is not the antonym of
"reasonableness" in the sense of which that expression is used in the common
law, but such manifest arbitrariness, injustice or partiality that a court would
say: 'Parliament never intended to give authority to make such rules; they are
unreasonable and ultra vires.'
If the courts can declare subordinate legislation to be invalid for 'uncertainty,'
as distinct from unenforceable his must be because Parliament is to be
presumed not to have intended to authorize the subordinate legislative
authority to make changes in the existing law which are uncertain...
74. Prof. Alan Wharam in his Article entitled 'Judicial Control of Delegated Legislation,:
The Test of Reasonableness' in 36 Modern Law Review 611 at pages 622-23 has
summarised the present position in England as follows:
(i) It is possible that the courts might invalidate a statutory instrument on the
grounds of unreasonableness or uncertainty, vagueness or arbitrariness: but the
writer's view is that for all practical purposes such instruments must be read as
forming part of the parents statute subject only to the ultra vires test.
(ii) The courts are prepared to invalidate bye-laws, or any other form of
legislation, emanating from an elected, representative authority, on the grounds
of unreasonableness, uncertainty or repugnance to the ordinary law :but they
are reluctant to do so and will exercise their power only in clear cases.
(iii) The courts may be readier to invalidate bye-laws passed by commercial
undertakings under statutory power, although cases reported during the present
century suggest that the distinction between elected authorities and commercial
undertakings, as explained in Kruse v. Johnson, might not now be applied so
stringently.
(iv) As far as subordinate legislation of no statutory origin is concerned, this is
virtually obsolete, but it is clear from In re French Protestant Hospital (1951)
Ch 567 that it would be subject to strict control.
(See also H.W. R. Wade: Administrative Law (5th Edn.) pp. 747-748).

MANU/SC/0759/2001
Equivalent Citation: AIR2002SC 322, 2002(1)ALD66(SC ), 2002(1)ARBLR231(SC ), JT2001(Suppl2)SC 1, 2001(8)SC ALE417, (2002)2SC C 188

Appeal (civil) 4998 of 2000
Appellants: Sharma Transport Rep. by D.P. Sharma
Vs.
Respondent: Government of Andhra Pradesh and Ors.
B.N. Kirpal, K.G. Balakrishnan and Dr. Arijit Pasayat, JJ.
Counsels:
For Appearing parties: Harish Salve, Solicitor General, K.N. Bhat, G.L. Sanghi and K.
Amareswari, Sr. Advs., B.K. Choudhary, E.C. Vidya Sagar, A.T.M. Sampath, Irshad
Ahmad, R.S. Hegde, Somiran Sharma, Prashant Jain, P.P. Singh, S. Udaya Kumar Sagar,
S.R. Setia, Jaideep Gupta, Niranjana Singh, Anil Katiyar, T.V. Ratnam, K. Subba Rao and
K. Ram Kumar, Advs. and Guntur Prabhakar, Adv. (NP
Case Note:
Motor Vehicles - constitutional validity of order - Articles 73, 246, 254, 256,
301 and 304 of Constitution of India - constitutionality and legality of
Government Order challenged - Order issued by joint secretary directive in
nature - it cannot also be treated as subordinate legislation deriving its force
or power from Act or any other law made by Union - if Court is satisfied that if
in larger public interest it would be inequitable to hold Government or public
authority to promise or representation made by it, then promissory estoppel
cannot be pressed into action - as president's sanction has been obtained,
case would be relatable to Article 304 rather than Article 301 - for
applicability of clause (b), mere assent is not sufficient, but, tax has to be
levied in public interest.
JUDGMENT
Arijit Pasayat, J.
1 . These appeals relate to a common judgment of the Andhra Pradesh High Court by
which challenge to Notification issued by the State Government in G.O. Ms. No. 83,
Transport, Roads and Buildings (Tr.II) Department dated 5.6.2000 was rejected. By the
said Notification issued under Clause (b) of Section 9(1) of the Andhra Pradesh Motor
Vehicles Taxation Act, 1963 (in short 'the Taxation Act') an earlier order dated 1.7.1995
issued by the Transport, Roads and Buildings (Tr.II) Department, was cancelled. The
appellants who are operators of tourist buses originating from Karnataka State (their
home State) and plying in adjacent States including the State of Andhra Pradesh filed
the writ petitions assailing the legality and constitutional validity of the said Notification
dated 5.6.2000.
2 . Case of the appellants as canvassed before the High Court and reiterated in this
Court is essentially as follows:

obligation to act in a manner, i.e., fair and just or that it is not bound by the
considerations of honesty and good faith. In fact, the Government should be held a high
standard of rectangular rectitude while dealing with citizens. Since the doctrine of
promissory estoppel is an equitable doctrine, it must yield where the equity so requires.
If it can be shown by the Government that having regard to the facts as they have
transpired, it would be inequitable to hold the Government or public authority to the
promise or representation made by it, the Court would not raise an equity in favour of
the promise and enforce the promise against the Government. The doctrine of
promissory estoppel would be displaced in such a case, because on the facts, equity
would not require that the Government should be held bound by the promise made by
it. But the Govt. must be able to show that in view of the fact as have been transpired,
public interest would not be prejudiced. Where the Govt. is required to carry out the
promise the Court would have to balance, the public interest in the Government's
carrying out the promise made to the citizens, which helps citizens to act upon and alter
his position and the public interest likely to suffer if the promises were required to be
carried out by the Government and determine which way the equity lies. It would not be
enough just to say that the public interest requires that the Govt. would not be
compelled to carry out the promise or that the public interest would suffer if the Govt.
were required to honour it. In order to resist its liability the Govt. would disclose to the
Court the various events insisting its claim to be except from liability and it would be
for the Court to decide whether those events are such as to render it equitable and to
enforce the liability against the Govt.
27. It is equally settled law that the promissory estoppel cannot be used compelling the
Government or a public authority to carry out a representation or promise which is
prohibited by law or which was devoid of the authority or power of the officer of the
Government or the public authority to make. Doctrine of promissory estoppel being an
equitable doctrine, it must yield place to the equity, if larger public interest so requires,
and if it can be shown by the Government or public authority for having regard to the
facts as they have transpired that it would be inequitable to hold the Government or
public authority to the promise or representation made by it. The Court on satisfaction
would not, in those circumstances raise the equity in favour of the persons to whom a
promise or representation is made and enforce the promise or representation against
Government or the public authority. These aspects were highlighted by this Court in
Vasantkumar Radhakrishan Vora v. The Board of Trustees of the Port of Bombay
MANU/SC/0005/1991 : [1990]3SCR825 ,Sales-tax Officer and Anr. v. Shree Durga Oil
Mills and Anr. (supra) and Dr. Ashok Kumar Maheshwari v. State of U.P. and Anr.
MANU/SC/0094/1998 : [1998]1SCR147 . Above being the position, the plea relating to
promissory estoppel has no substance.
2 8 . It has been pleaded as noted above that withdrawal is without any rational or
relevant consideration. In this context, it has to be noted that the operators in the State
of Andhra Pradesh are required to pay the same tax as those registered in other states.
Therefore, there cannot be any question of irrationality. The tests of arbitrary action
applicable to executive action do not necessarily apply to delegated legislation. In order
to strike down a delegated legislation as arbitrary it has to be established that there is
manifest arbitrariness. In order to be described as arbitrary, it must be shown that it
was not reasonable and manifestly arbitrary. The expression "arbitrarily" means: in an
unreasonable manner, as fixed or done capriciously or at pleasure, without adequate
determining principle, not founded in the nature of things, non-rational, not done or
acting according to reason or judgment, depending on the will alone. In the present
cases all persons who are similarly situated are similarly affected by the change. That
being so, there is no question of any discrimination. That plea also fails.

MANU/SC/0048/1979
Equivalent Citation: AIR1979SC 1628, (1979)2C ompLJ112(SC ), (1979)IILLJ217SC , (1979)3SC C 489, [1979]3SC R1014

Civil Appeal No. 895 of 1978
Appellants:Ramana Dayaram Shetty
Vs.
Respondent:International Airport Authority of India and Ors.
P.N. Bhagwati, R.S. Pathak and V.D. Tulzapurkar, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Ashok H. Desai, Y.S. Chitale, Jai Chinai, P.G. Gokhale
and B.R. Agarwala, Advs
For Respondents/Defendant: G.B. Pai, O.C. Mathur and D.N. Mishra, Advs.
Case Note:
Commercial - Tender procedure - 4th Respondent was awarded contract by 1st
Respondent state to run a IInd class Restaurant and two Snack bars -
However, 1st Respondent set aside requirement of 5 years experience and
proceeded with 4th Respondent - Appeal of Appellant was rejected by High
Court - Hence, this Appeal - Whether, State was entitled to deal with its
property in any manner it liked or award a contract to any person it chose,
without any constitutional limitations upon it - Held, when 1st Respondent
entertained tender of 4th Respondents despite their inexperience, then,
others were denied equality of opportunity - Thus, acceptance of tender of 4th
Respondents was, in circumstances invalid as being violative of equality
clause of Constitution as also of rule of administrative law inhibiting arbitrary
action - In view of peculiar facts and circumstances of case, it would not have
been appropriate to upset High Court's decision and void contract - Moreover,
Petition had been filed by Appellant after more than five months after tender
of 4th Respondents had been accepted - During this period, 4th Respondent
had incurred considerable expenditure in making arrangements for putting up
restaurant and snack bars - Hence, It would have been most inequitous to set
aside contracts of 4th Respondents at instance of Appellant - Appeal
dismissed.
Ratio Decidendi:
"Cause of action should be borne immediately after alleged grievance has
taken place."
JUDGMENT
1. This appeal by special leave raises interesting questions of law in the area of public
law. What are the constitutional obligations on the State when it takes action in exercise
of its statutory or executive power? Is the State entitled to deal with its property in any
manner it likes or award a contract to any person it chooses without any constitutional
limitations upon it? What are the parameters of its statutory or executive power in the

is now well settled as a result of the decisions of this Court in E. P. Rayappa v. State of
Tamil Nadu MANU/SC/0380/1973 : (1974)ILL J172SC and Maneka Gandhi v. Union of
India MANU/SC/0133/1978 : [1978]2SCR621 that Article 14 strikes at arbitrariness in
State action and ensures fairness and equality of treatment. It requires that State action
must not be arbitrary but must be based on some rational and relevant principle which
is non-discriminatory : it must not be guided by any extraneous or irrelevant
considerations, because that would be denial of equality.
The principle of reasonableness and rationality which is legally as well as
philosophically an essential element of equality or non-arbitrariness is protected by
Article 14 and it must characterise every State action, whether it be under authority of
law or in exercise of executive power without making of law. The State cannot,
therefore act arbitrarily in entering into relationship, contractual or otherwise with a
third party, but its action must conform to some standard or norm which is rational and
non-discriminatory.
This principle was recognised and applied by a Bench of this Court presided over by
Ray, C.J., in Erusian Equipment and Chemicak v. State of West Bengal (supra) where
the learned Chief Justice pointed out that "the State can carry on executive function by
making a law or without making a law. The exercise of such powers and functions in
trade, by the State is subject to Part III of the Constitution. Article 14 speaks of equality
before the law and equal protection of the laws. Equality of opportunity should apply to
matters of public contracts. The State has the right to trade. The State has there the
duty to observe equality. An ordinary individual can choose not to deal with any person.
The Government cannot choose to exclude persons by discrimination. The order of
black-listing has the effect of depriving a person of equality of opportunity in the matter
of public contract. A person who is on the approved list is unable to enter into
advantageous relations with the Government because of the order of blacklisting.... A
citizen has a right to claim equal treatment to enter into a contract which may be
proper, necessary and essential to his lawful calling.... It is true that neither the
petitioner nor the respondent has any right to enter into a contract but they are entitled
to equal treatment with others who offer tender or quotations for the purchase of the
goods." It must, therefore follow as a necessary corollary from the principle of equality
enshrined in Article 14 that though the State is entitled to refuse to enter into
relationship with any one, yet if it does so, it cannot arbitrarily choose any person it
likes for entering into "such relationship and discriminate between persons similarly
circumstanced, but it must act in conformity with some standard or principle which
meets the test of reasonableness and non-discrimination and any departure from such
standard or principle would be invalid unless it can be supported or justified on some
rational and non-discriminatory ground.
22. It is interesting to find that this rule was recognised and applied by a Constitution
Bench of this Court in a case of sale of kendu leaves by the Government of Orissa in
Rashbihari Panda v. State of Orissa. MANU/SC/0054/1969 : [1969]3SCR374 . The trade
of kendu leaves in the State of Orissa was regulated by the Orissa Kendu Leaves
(Control of Trade) Act, 1961 and this Act created a monopoly in favour of the State so
far as purchase of kendu leaves from growers and pluckers was concerned. Section 10
of the Act authorised the Government to sell or otherwise dispose of kendu leaves
purchased in, such manner as the Government might direct. The Government first
evolved a scheme under which it offered to renew the licences of those traders who in
its view had worked satisfactorily in the previous year and had regularly paid the
amount due from them. The scheme was challenged and realising that it might be struck
down, the Government withdrew the scheme and instead, decided to invite tenders for
advance purchase of kendu leaves but restricted the invitation to those individuals who
had carried out contracts in the previous year without default and to the satisfaction of

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MANU/SC/2117/2007
Equivalent Citation: 2008(3)ALT1(SC ), 2007(2)BLJR1708, [2007(114)FLR236], [2008(2)JC R130(SC )], JT2007(5)SC 628, (2007)IILLJ724SC ,
2007(4)PLJR8, 2007(6)SC ALE45, (2007)4SC C 669, [2007]5SC R430, 2007(3)SC T255(SC ), 2007(4)SLR108(SC ), 2007(3)UC 1568

Civil Appeal No. 2106 of 2007 (Arising out of Special Leave Petition (Civil) No. 5187 of
2005)
Appellants:Management of Coimbatore District Central Co-operative Bank
Vs.
Respondent:Secretary, Coimbatore District Central Co-operative Bank
Employees Association and Ors.
C.K. Thakker and Tarun Chatterjee, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: K.V. Vishwanathan, B. Raghunath, Anup Kumar, Rajeev
Kumar Singh and R. Nedumaran, Advs
For Respondents/Defendant: N.G.R. Prasad and S.R. Setia, Advs.
Case Note:
(1) Industrial Disputes Act, 1947 - Sections 10 and 11A-Employment -
Punishment-Employees of appellant Bank went on strike-Settlement arrived
at between Management and Union-134 employees gave up 'strike call' and
resumed work-53 employees refused to join duty and continued their illegal
strike and acts of misconduct-They also prevented other employees from
joining duty and threatened them of dire consequences-Disciplinary
proceedings initiated against them and they were placed under suspension-
They did not participate in proceedings-In ex parte enquiry, workmen held
guilty of charges-Order of punishment passed-Punishment awarded was (i)
stoppage of increment for 1-4 years with cumulative effect-And (ii) non-
payment of salary for period of suspension-Labour court held that action of
Management could not be described as illegal, unlawful or improper-Demands
of workmen rejected-Single Judge of High Court held that workmen not
entitled to wages for suspension period-However, stoppage of 1 to 4 annual
increments, with cumulative effect was held to be 'harsh'-Order of stoppage
of increments set aside-Management directed to pay arrears with 12%
interest-Division Bench modified order of single Judge-And held that proper
punishment would be stoppage of increment(s) without cumulative effect-
Order of interest set aside-Whether single Judge and Division Bench justified
in interfering with order of punishment and award of Labour Court?-Held,
"no"-Order passed by labour court-Perfectly just, legal and proper and
required 'no interference'.
(2) Employment - Punishment-Doctrine of proportionality-Punishment should
not be disproportionate to misconduct alleged and established-Keeping in
view charges proved, labour court rightly held that punishment imposed on
workmen could not be said to be harsh so as to require interference.

(iii) They prevented other employees who returned for work from joining duty
by administering threat to them; and
(iv) They prevented the employees who came to receive wages on April 17,
1972.
10. At the enquiry, all the charges leveled against the employees were established. In
the light of the said finding, the Management imposed punishment of (i) stoppage of
increment of 1 to 4 years with cumulative effect; and (ii) non-payment of salary during
period of suspension. In our considered opinion, the action could not be said to be
arbitrary, illegal, unreasonable or otherwise objectionable. When the Union challenged
the action and reference was made by the 'appropriate Government' to the Labour
Court, Coimbatore, the Labour Court considered all questions in their proper
perspective. After affording opportunity of hearing to both the parties, the Labour Court
negatived the contention of the Union that the proceedings were not in consonance with
principles of natural justice and the inquiry was, therefore, vitiated. It held that the
inquiry was in accordance with law. It also recorded a finding that the allegations
leveled against the workmen were proved and in view of the charges leveled and proved
against the workmen, the punishment imposed on them could not be said to be
excessive, harsh or disproportionate. It accordingly disposed of the reference against
the workmen. In our considered opinion, the award passed by the Labour Court was
perfectly just, legal and proper and required 'no interference'. The High Court, in
exercise of power of judicial review under Article 226/227 of the Constitution, therefore,
should not have interfered with the well-considered award passed by the Labour Court.
11. The learned Counsel for the Union, however, submitted that under the 'doctrine of
proportionality', it was not only the power, but the duty of the 'Writ Court' to consider
whether the penalty imposed on workmen was in proportion to the misconduct
committed by the workmen. Our attention, in this connection, was invited by both the
sides to several decisions of English Courts as also of this Court.
DOCTRINE OF PROPORTIONALITY
12. So far as the doctrine of proportionality is concerned, there is no gainsaying that
the said doctrine has not only arrived at in our legal system but has come to stay. With
the rapid growth of Administrative Law and the need and necessity to control possible
abuse of discretionary powers by various administrative authorities, certain principles
have been evolved by Courts. If an action taken by any authority is contrary to law,
improper, unreasonable, irrational or otherwise unreasonable, a Court of Law can
interfere with such action by exercising power of judicial review. One of such modes of
exercising power, known to law is the 'doctrine of proportionality'.
13. 'Proportionality' is a principle where the Court is concerned with the process,
method or manner in which the decision-maker has ordered his priorities, reached a
conclusion or arrived at a decision. The very essence of decision-making consists in the
attribution of relative importance to the factors and considerations in the case. The
doctrine of proportionality thus steps in focus true nature of exercise - the elaboration
of a rule of permissible priorities.
de Smith states that 'proportionality' involves 'balancing test' and 'necessity test'.
Whereas the former ('balancing test') permits scrutiny of excessive onerous penalties or
infringement of rights or interests and a manifest imbalance of relevant considerations,
the latter ('necessity test') requires infringement of human rights to the least restrictive
alternative.

MANU/UKPC/0024/1998
Equivalent Citation: [1999]1 AC 69, [1998]UKPC 30, [1998] 3 WLR 675
JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

Privy Council Appeal No . 42 of 1997
de Freitas v. The Permanent Secretary of Ministry of Agriculture, Fisheries,
Lands and Housing and Others (Antigua and Barbuda)
Hon'ble Judges:
Lord Browne-Wilkinson Lord Lloyd of Berwick Lord Hoffmann Lord Clyde
JUDGMENT
Lord Clyde
1. The question in this appeal arises out of the participation by a civil servant in certain
demonstrations in September and October 1990 against Government corruption in
Antigua and Barbuda.Â In 1990 the appellant was an Extension Officer in the Ministry
of Agriculture, Fisheries, Lands and Housing of Antigua and Barbuda.Â In that year a
Commission of Inquiry was held in Antigua relating to the transhipment into Antigua of
a consignment of guns.Â In the course of the Inquiry various allegations of
Government corruption were made.Â Some of these allegations were directed at the
Minister of Agriculture, Mr. Hilroy Humphreys.Â The appellant admitted in an affidavit
that on 24th and 25th September 1990, after the Inquiry and while he was on vacation,
he was one of several persons peacefully picketing the Headquarters of the Ministry.
Some of the placards displayed by the appellant were critical of Mr. Humphreys.
2. The Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing,
who is the first respondent, immediately claimed that the appellant was acting in breach
of the restraints imposed on civil servants by section 10(2)(a) of the Civil Service Act
Laws of Antigua and Barbuda c. 87 and threatened to refer the matter to the Public
Service Commission for disciplinary action.Â That body is the second respondent.Â
The appellant replied denying that he was infringing that section and referred to the
Constitution of Antigua and Barbuda, sections 12 and 13 of which protected his rights of
expression and assembly. On 27th September 1990 while he was still on vacation and
on 2nd October after he had returned to work he made further peaceful demonstrations.
After further communications between himself and the first respondent the latter, under
a power which he possessed under the Public Service Commission Regulations 1967,
interdicted the appellant from the exercise of the powers and functions of his office.Â
In November 1990 the appellant issued an Originating Motion seeking redress under
section 18 of the Constitution, which makes provision for the enforcement of the
protective provisions in the Constitution.Â The motion was opposed by the first and
second respondents and by the Attorney-General who is the third respondent.Â The
matter came before Redhead J. and on 26th February 1993 he declared that section
10(2)(a) of the Civil Service Act was unconstitutional.Â He took the view that it had not
been demonstrated that section 10(2) fell within the permissible limits prescribed by the

"The language of (the section) is so inclusive that (the trial judge) declined to provide any definition of its scope
but rather preferred to deal with the activity of each of the plaintiffs individually in measuring the restriction
imposed by the section against the Charter. The number of instances in which the operation of the section would
otherwise have been in breach of ... the Charter is extensive.Â On this basis there is little doubt that in future other
instances will arise which will require a similar reading down of the section.Â In the final analysis, a law that is
invalid in so many of its applications will, as a result of wholesale reading down, bear little resemblance to the law
that Parliament passed and a strong inference arises that it is invalid as a whole ... In my opinion, it is Parliament
that should determine how the section should be redrafted and not the court. Apart from the impracticability of a
determination of the constitutionality of the section on a case-by-case basis, Parliament will have available to it
information and expertise that is not available to the court."
24. It is precisely the same considerations which in the view of their Lordships apply to
the solution proposed by the Court of Appeal and render it inadequate to save the
validity of the provision in question.
25. Even if the subsection, with or without the supplementary provision sought to be
implied by the Court of Appeal satisfied the first of the two requirements already
referred to, namely that was a restraint upon the freedom of civil servants "reasonably
required for the proper performance of their functions", it would still have to satisfy the
second requirement of being "reasonably justifiable in a democratic society".Â Their
Lordships were referred to three cases in which that phrase has been considered.Â In
Government of the Republic of South Africa v. The Sunday Times Newspaper [1995] 1
L.R.C. 168 Joffe J. adopted from Canadian jurisprudence four criteria to be satisfied for
a law to satisfy the provision in the Canadian Charter of Rights and Freedoms that it be
"demonstrably justified in a free and democratic society".Â These were a sufficiently
important objective for the restriction, a rational connection with the objective, the use
of the least drastic means, and no disproportionately severe effect on those to whom
the restriction applies.Â In two cases from Zimbabwe, Nyambirai v. National Social
Security Authority [1996] 1 L.R.C. 64 and Retrofit (Pvt.) Ltd. v. Posts and
Telecommunications Corporation, [1996] 4 L.R.C. 489, a corresponding analysis was
formulated by Gubbay CJ., drawing both on South African and on Canadian
jurisprudence, and amalgamating the third and fourth of the criteria. In the former of
the two cases at page 75 he saw the quality of reasonableness in the expression
"reasonably justifiable in a democratic society" as depending upon the question whether
the provision which is under challenge "arbitrarily or excessively invades the enjoyment
of the guaranteed right according to the standards of a society that has a proper respect
for the rights and freedoms of the individual".Â In determining whether a limitation is
arbitrary or excessive he said that the Court would ask itself:-
"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures
designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right
or freedom are no more than is necessary to accomplish the objective."
26. Their Lordships accept and adopt this threefold analysis of the relevant criteria.

MANU/UKHL/0041/2007
Equivalent Citation: [2007]2 AC 167, [2007]4All ER15, [2007]UKHL 11, [2007] 2 WLR 581
UNITED KINGDOM HOUSE OF LORDS

Huang v. Secretary of State for the Home Department
Hon'ble Judges:
Lord Bingham of Cornhill, Lord Hoffmann, Baroness Hale of Richmond, Lord Carswell
and Lord Brown of Eaton-under-Heywood
Counsels:
Appellant: Monica Carss-Frisk QC Adam Robb (Instructed by Treasury Solicitor)
Respondent : Nicholas Blake QC Raza Husain (Instructed by TRP Solicitors) Second
Appeal: Kashmiri Rabinder Singh QC Duran Seddon (Instructed by Luqmani Thompson &
Partners) Monica Carss-Frisk QC Adam Robb (Instructed by Treasury Solicitor)
JUDGMENT
ORDERED TO REPORT
The Committee (Lord Bingham of Cornhill, Lord Hoffmann, Baroness Hale of
Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood) have met and
considered the causes Huang (FC) (Respondent) v. Secretary of State for the Home
Department (Appellant) and Kashmiri (FC) (Appellant) v. Secretary of State for the Home
Department (Respondent). We have heard counsel on behalf of the appellants and
respondents.
1. The following is the opinion of the Committee.
2. These two appeals have been heard together. They raise a common question on the
decision-making role or function of appellate immigration authorities (adjudicators, the
Immigration Appeal Tribunal, immigration judges) when deciding appeals, on
Convention grounds, against refusal of leave to enter or remain, under section 65 of the
Immigration and Asylum Act 1999 and Part III of Schedule 4 to that Act.
3. Mrs Huang is a Chinese citizen born on 29 March 1942. Her husband (from whom
she is separated), daughter, son-in-law and two grandsons are British citizens living in
this country. Mr Kashmiri is an Iranian citizen born on 4 July 1981. His parents and two
siblings came to this country in 2000 and were in due course granted indefinite leave to
remain as refugees, but Mr Kashmiri's claim to asylum has been refused. It is
unnecessary for purposes of deciding these appeals to explore the underlying facts of
these two cases, and given our conclusion on the outcome of the appeals it is
undesirable to do so.
4. Mrs Huang appears before the House as a respondent in an appeal by the Secretary
of State and Mr Kashmiri as an appellant in an appeal against the Secretary of State, but
it is convenient to refer to them as "the applicants". Neither of the applicants qualifies
for the grant of leave to remain in this country under the Immigration Rules and
administrative directions currently promulgated. Both claim that the refusal of leave to
remain is unlawful because incompatible with their Convention right to respect for their
family life guaranteed by sections 2, 3 and 6 of and article 8 in Schedule 1 to the

for present purposes to attempt to summarise the Convention jurisprudence on article 8,
save to record that the article imposes on member states not only a negative duty to
refrain from unjustified interference with a person's right to respect for his or her family
but also a positive duty to show respect for it. The reported cases are of value in
showing where, in many different factual situations, the Strasbourg court, as the
ultimate guardian of Convention rights, has drawn the line, thus guiding national
authorities in making their own decisions. But the main importance of the case law is in
illuminating the core value which article 8 exists to protect. This is not, perhaps, hard to
recognise. Human beings are social animals. They depend on others. Their family, or
extended family, is the group on which many people most heavily depend, socially,
emotionally and often financially. There comes a point at which, for some, prolonged
and unavoidable separation from this group seriously inhibits their ability to live full
and fulfilling lives. Matters such as the age, health and vulnerability of the applicant,
the closeness and previous history of the family, the applicant's dependence on the
financial and emotional support of the family, the prevailing cultural tradition and
conditions in the country of origin and many other factors may all be relevant. The
Strasbourg court has repeatedly recognised the general right of states to control the
entry and residence of non-nationals, and repeatedly acknowledged that the Convention
confers no right on individuals or families to choose where they prefer to live. In most
cases where the applicants complain of a violation of their article 8 rights, in a case
where the impugned decision is authorised by law for a legitimate object and the
interference (or lack of respect) is of sufficient seriousness to engage the operation of
article 8, the crucial question is likely to be whether the interference (or lack of respect)
complained of is proportionate to the legitimate end sought to be achieved.
Proportionality is a subject of such importance as to require separate treatment.
Proportionality
19. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and
Housing [1999] 1 AC 69, 80, the Privy Council, drawing on South African, Canadian and
Zimbabwean authority, defined the questions generally to be asked in deciding whether
a measure is proportionate:
"whether: (i) the legislative objective is sufficiently important to justify limiting a
fundamental right; (ii) the measures designed to meet the legislative objective are
rationally connected to it; and (iii) the means used to impair the right or freedom
are no more than is necessary to accomplish the objective."
This formulation has been widely cited and applied. But counsel for the applicants
(with the support of Liberty, in a valuable written intervention) suggested that the
formulation was deficient in omitting reference to an overriding requirement which
featured in the judgment of Dickson CJ in R v Oakes [1986] 1 SCR 103, from which this
approach to proportionality derives. This feature is (p 139) the need to balance the
interests of society with those of individuals and groups. This is indeed an aspect which
should never be overlooked or discounted. The House recognised as much in R (Razgar)
v Secretary of State for the Home Department MANU/UKHL/0055/2004 : [2004] UKHL
27, [2004] 2 AC 368, paras 17-20, 26, 27, 60, 77, when, having suggested a series of
questions which an adjudicator would have to ask and answer in deciding a Convention
question, it said that the judgment on proportionality
"must always involve the striking of a fair balance between the rights of the
individual and the interests of the community which is inherent in the whole of the
Convention. The severity and consequences of the interference will call for careful

MANU/SC/0066/1974
Equivalent Citation: AIR1974SC 1232, 1973(21)BLJR171, 1974MPLJ729, (1974)4SC C 788, [1974]3SC R624

Writ Petition No. 1177 of 1973
Appellants:Naraindas Indurkhya
Vs.
Respondent:The State of Madhya Pradesh and Ors.
A.N. Ray, C.J., A. Alagiriswami, H.R. Khanna, K.K. Mathew and P.N. Bhagwati, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Bhasker Sen, K.P. Munshi, Umesh Kumar Khaitan and
S.R. Agarwala, Advs
For Respondents/Defendant: Y.S. Dharmadhikari, Ram Panjwani, I.N. Shroff,
V.N.Ganpule and Urmila Sirur, Advs.
Case Note:
Constitution - text books - Section 4 (1), 4 (2), and 4 (3) of Madhya Pradesh
Prathamik, Middle School Tatha Madhyamik Shiksha (Pathya Pustakon
Sambandhi Vyavastha) Adhiniyam, 1973 and Articles 32 and 162 of
Constitution of India - power of State Government to select and prescribe text
books under Section 4 (1) challenged - Apex Court observed that power to
select and prescribe text books for obligatory use by students in schools can
be potent and powerful weapon in hands of executive to inculcate its social,
economic or political philosophy and ideology in young impressionable minds -
such young minds have not yet developed capacity to think independently for
themselves and are easily amenable to thoughts, ideas, and influence to
which they are continually exposed - it is therefore necessary that in
selection and prescription of text books all political and other extraneous
influences should be eliminated - objective must be to give to student best
possible text book possessing highest degree of merit and quantity from a
purely objective and academic point of view - there is nothing to prevent
State Government from setting up an independent committee on lines
indicated by Secondary Education Commission for purpose of assisting it in
task of selecting and prescribing text books - this can be done by Government
by making appropriate rules under Section 8 and there is no reason to
suppose that State Government will not do so - power conferred upon State
Government to select and prescribe text books under Section 4 (1) not liable
to be struck down as invalid on ground of contravention of Article 14.
JUDGMENT
P.N. Bhagwati, J.

the petitioners to carry on their business of preparing, printing, publishing and selling
textbooks was infringed by the - notifications issued by the State Government in
furtherance of their policy of nationalisation of text books for students and the
petitioners were, therefore, not entitled to any relief under Article 32 of the
Constitution. Mukherjea, C.J., speaking on behalf of a unanimous Court, pointed out:
The procedure hitherto followed was that the Government used to invite
publishers and anthers to submit their books for examination and approval by
the Education Department and after selection was made by the Government, the
size, contents as well as the prices of the books were fixed and it was left to
the publishers or authors to print and publish them and offer them for sale to
the pupils. So long as this system was in vogue the only right which publishers,
like the petitioners had, was to offer their books for inspection and approval by
the Government. They had no right to insist on any of their books being
accepted as text books. So the utmost that could be said is that there was
merely a chance or prospect of any. or some of their books being approved as
text books by the Government. Such chances are incidental to all trades and
businesses and there is no fundamental right guaranteeing them. A trader might
be lucky in securing a particular market for his goods but if he loses that field
because the particular customers for some reason or other do not choose to buy
goods from him, it is not open to him to say that it was his fundamental right
to have his old customers for ever. On the one hand, therefore, there was
nothing but a chance or prospect which the publishers had of having their
books approved by the Government, on the other hand the Government had the
undisputed right to adopt any method of selection they liked and if they
ultimately decided that after approving the text books they would purchase the
copyright in them from the authors and others provided the latter were willing
to transfer the same to the Government on certain terms, we fail to see what
right of the publishers to carry on their trade or business is affected by it.
Nobody is taking away the publishers' right to print and publish any books they
like and to offer them for sale but if they have no right that their books should
be approved as text books by the Government it is immaterial so far as they are
concerned whether the Government approves of text books submitted by other
persons who are willing to sell their copyrights in the books to them, or choose
to engage authors for the purpose of preparing the text books which they take
up on themselves to print and publish The action of the Government does not
amount to an infraction of the fundamental right guaranteed by Article 19(1)(g)
of the Constitution.
23. These observations are equally applicable where the State Government instead of
prescribing text books in exercise of its executive power does so in exercise of statutory
power such as that conferred under Section 4, Sub-section (1). No fundamental right
guaranteed to the petitioners under Article 19(1)(g) is infringed if the State Government
in exercise of the statutory power conferred under Section 4, Sub-section (1) does not
prescribe text books printed and published by him. The challenges based on Article
19(1)(g) must, therefore, fail.
24. That takes us to the challenge based on Article 14 of the Constitution. Tin's Article
ensures equality before law and strikes at arbitrary and discriminatory State action.
Where State Government exercises any power, statutory or otherwise, it must not
discriminate unfairly between one person and another. Every State action must be
guided by certain norms and standards which are in themselves not objectionable as
being discriminatory in character. If power conferred by statute on any authority of the

MANU/SC/0935/2004
Equivalent Citation: AIR2005SC 186, 2005(1)ALLMR(SC )19, 2005(2)ALT8(SC ), [2005]126C ompC as356(SC ), 2004(5)C TC 376, JT2004(9)SC 379,
2004(4)RC R(C ivil)724, 2004(9)SC ALE215, (2005)1SC C 496

Civil Appeal Nos. 6350-6374 of 1997 with C.A. 7079/2004 (Arising out of SLP (C) No.
11607/2001)
Appellants:Distt. Registrar and Collector, Hyderabad and Ors.
Vs.
Respondent:Canara Bank and Ors.
R.C. Lahoti, C.J. and Ashok Bhan, J.
Counsels:
K. Amareswari, Sr. Adv., T.V. Ratnam, K. Subba Rao, O.S.G. Prasuna, K. Ram Kumar,
Pradeep Dewan, Manmohan Sharma, Pramod B. Agarwala, Praveena Gautam, Anupam
Dhingra, S. Srinivasan, A. Ranganadhan, Buddy A. Ranganadhan, A.V. Rangam, P.P.
Singh, S.N. Bhat, Y. Prabhakar Rao, Y. Raja Gopala Rao, V. Sudeer, M.B. Rama Subba
Raju, Balaji Srinivasan, S. Sunita, Devendra Singh and Ghan Shyam Vasisht, Advs. for
appearing parties
Case Note:
Civil - Indian Stamp Act, 1899 - Section 73 as incorporated by Andhra Pradesh
Act No. 17 of 1986 by amending Central Act - Constitutional Validity of - Right
to privacy - Protection of law from arbitrary interference with person's
privacy, family, home and correspondence - Entitlement to Writ Petitions
challenging amendment of Section 73 on ground that it empowered any
person authorized in writing by collector to have access to documents in
private custody or custody of a public officer without regard to fact whether
documents were sought to be used before any authority competent to receive
evidence - Grievance of petitioners that Section 73 did not lay down any
guidelines for determining person who could be authorized by collector to
exercise powers conferred by Section 73 and that power was capable of being
exercised at all reasonable times and was not preceded by any requirement of
reasons being recorded by collector or person authorized for his belief
necessitating search - Grievance of Writ Petitioners that Section 73 was
unconstitutional as it interfered with personal liberty of citizens as it allowed
intrusion into privacy and property of citizens - Section 783 struck down by
High Court as ultra vires provisions of Indian Stamp Act and Article 14 -
Appeal to Supreme Court - Unbridled power available to be exercised by any
person whom the collector may think proper to authorize without laying down
any guidelines as to persons who may be authorized and without recording
availability of grounds which would give rise to belief, on the existence
whereof only, power may be exercised deprives provision of quality of
reasonableness - Since Under garb of power conferred by section 73 the
person authorized may go on rampage searching house after house exercise
would prove to be absolutely disproportionate to purpose sought to be
achieved - Hence High Court held justified in holding Section 73 as amended

that be the correct view of the law, we cannot accept the line of Miller in which the
Court proceeded on the basis that the right to privacy is referable to the right of
'property' theory. Once that is so, then unless there is some probable or reasonable
cause or reasonable basis or material before the Collector for reaching an opinion that
the documents in the possession of the Bank tend, to secure any duty or to prove or to
lead to the discovery of any fraud or omission in relation to any duty, the search or
taking notes or extracts therefore, cannot be valid. The above safeguards must
necessarily be read into the provision relating to search and inspection and seizure so
as to save it from any unconstitutionality.
55. Secondly, the impugned provision in sec. 73 enabling the Collector to authorize
'any person' whatsoever to inspect, to take notes or extracts from the papers in the
public office suffers from the vice of excessive delegation as there are no guidelines in
the Act and more importantly, the section allows the facts relating to the customer's
privacy to reach non-governmental persons and would, on that basis, be an
unreasonable encroachment into the customer's rights. This part of the Section 73
permitting delegation to 'any person' suffers from the above serious defects and for that
reason is, in our view, unenforceable. The State must clearly define the officers by
designation or state that the power can be delegated to officers not below a particular
rank in the official hierarchy, as may be designated by the State.
5 6 . The A.P. amendment permits inspection being carried out by the Collector by
having access to the documents which are in private custody i.e. custody other than that
of a public officer. It is clear that this provision empowers invasion of the home of the
person in whose possession the documents 'tending' to or leading to the various facts
stated in sec. 73 are in existence and sec. 73 being one without any safeguards as to
probable or reasonable cause or reasonable basis or materials violates the right to
privacy both of the house and of the person. We have already referred to R.
Rajagopal's case wherein the learned judges have held that the right to personal
liberty also means the life free from encroachments unsustainable in law and such right
flowing from Article 21 of the Constitution.
57. I n Smt. Maneka Gandhi v. Union of India and Anr., MANU/SC/0133/1978 :
[1978]2SCR621 - a 7-Judges Bench decision, P.N. Bhagwati, J. (as His Lordship then
was) held that the expression 'personal liberty' in Article 21 is of the widest amplitude
and it covers a variety of rights which go to constitute the personal liberty of man and
some of them have been raised to the status of distinct fundamental rights and given
additional protection under Article 19 (emphasis supplied). Any law interfering with
personal liberty of a person must satisfy a triple test: (i) it must prescribe a procedure;
(ii) the procedure must withstand the test of one or more of the fundamental rights
conferred under Article 19 which may be applicable in a given situation; and (iii) it
must also be liable to be tested with reference to Article 14. As the test propounded by
Article 14 pervades Article 21 as well, the law and procedure authorizing interference
with personal liberty and right of privacy must also be right and just and fair and not
arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy the
requirement of Article 14 it would be no procedure at all within the meaning of Article
21.
58. The constitutional validity of the power conferred by law came to be decided from
yet another angle in the case of Air India v. Nergesh Meerza and Ors.,
MANU/SC/0688/1981 : (1981)IILL J314SC , it was held that a discretionary power may
not necessarily be a discriminatory power but where a statute confers a power on an
authority to decide matters of moment without laying down any guidelines or principles

or norms, the power has to be struck down as being violative of Article 14.
59. An instrument which is not duly stamped cannot be received in evidence by any
person who has authority to receive evidence and it cannot be acted upon by that
person or by any public officer. This is the penalty which is imposed by law on the
person who may seek to claim any benefit under an instrument if it is not duly stamped.
Once detected the authority competent to impound the document can recover not only
duty but also penalty, which provision, protects the interest of revenue. In the event of
there being criminal intention or fraud, the persons responsible may be liable to be
prosecuted. The availability of these provisions, in our opinion adequately protects the
interest of revenue. Unbridled power available to be exercised by any person whom the
Collector may think proper to authorize without laying down any guidelines as to the
persons who may be authorized and without recording the availability of grounds which
would give rise to the belief, on the existence where of only, the power may be
exercised deprives the provision of the quality of reasonableness. Possessing a
document not duly stamped is not by itself any offence. Under the garb of the power
conferred by Section 73 the person authorized may go on rampage searching house
after house i.e. residences of the persons or the places used for the custody of
documents. The possibility of any wild exercise of such power may be remote but then
on the framing of Section 73, the provision impugned herein, the possibility cannot be
ruled out. Any number of documents may be inspected, may be seized and may be
removed and at the end the whole exercise may turn out to be an exercise in futility.
The exercise may prove to be absolutely disproportionate with the purpose sought to be
achieved and, therefore, a reasonable nexus between stringency of the provision and
the purpose sought to be achieved ceases to exist.
6 0 . The abovesaid deficiency pointed out by the High Court and highlighted by the
learned counsel for the respondents in this Court has not been removed even by the
rules. The learned counsel for the respondents has pointed out that under the Rules the
obligation is cast on the bank or any other person having custody of the documents
though it may not be a party to the document, to pay the duty payable on the
documents in order to secure release of the documents.
61. For the foregoing reasons we agree with the view taken by the High Court that
Section 73 of the Indian Stamp Act as amended in its application to the State of Andhra
Pradesh by Andhra Pradesh Act No. 17 of 1986 is ultra vires the Constitution. As we do
not find any infirmity in the judgment of the High Court all the appeals are dismissed.
© Manupatra Information Solutions Pvt. Ltd.

MANU/SC/8127/2008
Equivalent Citation: AIR2009SC 904, JT2008(11)SC 520, 2009-2-LW222, (2009)5MLJ1464(SC ), 2008(13)SC ALE783, (2009)1SC C 180

Civil Appeal No. 6143 of 2008 (Arising out of S.L.P. (C) No. 10230 of 2006)
Appellants:Sethi Auto Service Station and Ors.
Vs.
Respondent:Delhi Development Authority and Ors.
C.K. Thakker and Devinder Kumar Jain, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Arun Jaitley, Sr. Adv., R.S. Suri and Mohd. Wasay
Khan, Advs
For Respondents/Defendant: A. Sharan, A.S.G., Vishnu Bahadur Saharya, Advs. for
Saharya & Co., H.K. Puri, S.K. Puri, V.M. Chaudhary, Priya Puri, Parijat Sinha, Reshmi
Rea Sinha, S.C. Ghosh and Snehasish Mukherjee, Advs.
Case Note:
Commercial - Relocation of - Petrol pump - Commercially unviable - Doctrine
of legitimate expectation - Appellant filed for re-locating two petrol pumps
owned by him due to construction of fly over- Respondent No. 1 rejected
proposal for relocation of two petrol pumps - Appellants filed writ petitions -
Respondent No. 1 contended that new policy does not contain any provision
for allotment of an alternative site for an existing petrol pump located on
private land or land allotted by other agency such as the AAI and no vested
right accrued in favour of Appellants till final decision was taken by
Competent Authority - Learned Single Judge dismissed the Writ Petitions -
Letters Patent Appeal preferred by Appellants also dismissed by Division
Bench - Whether the Courts below justified in dismissing the appeal - Held,
Notings in departmental file do not have sanction of law to be an effective
Order - Notings culminate into an executable Order, only when it reaches the
final decision making authority in the department; gets approval and the final
Order is communicated to the person concerned - In the instant case there
were several notings which recommended consideration of the Appellants'
case for relocation but finally no official communication was addressed to or
received by the Appellants accepting their claim - Concept of legitimate
expectation has no role to play where the State action is as a public policy or
in the public interest unless the action taken amounts to an abuse of power -
Appeal dismissed.
Case Category:
ORDINARY CIVIL MATTER - DEALERSHIP AND DISTRIBUTORSHIP OF PETROLEUM
PRODUCTS
JUDGMENT
Devinder Kumar Jain, J.

16. Finally, the Vice Chairman concurred with the view of the Commissioner; proposals
for re-sitement were rejected and consequently decision was taken to put the two plots,
on which the appellants had staked their claims for auction.
17. From the afore-extracted notings of the Commissioner and the order of the Vice
Chairman, it is manifest that although there were several notings which recommended
consideration of the appellants' case for relocation but finally no official communication
was addressed to or received by the appellants accepting their claim. After the
recommendation of the Technical Committee, the entire matter was kept pending; in the
meanwhile a new policy was formulated and the matter was considered afresh later in
the year 2004, when the proposal was rejected by the Vice Chairman, the final decision
making authority in the hierarchy. It is, thus, plain that though the proposals had the
recommendations of State Level Co-ordinator (oil industry) and the Technical
Committee but these did not ultimately fructify into an order or decision of the DDA,
conferring any legal rights upon the appellants. Mere favourable recommendations at
some level of the decision making process, in our view, are of no consequence and
shall not bind the DDA. We are, therefore, in complete agreement with the High Court
that the notings in the file did not confer any right upon the appellants, as long as they
remained as such. We do not find any infirmity in the approach adopted by the learned
Single Judge and affirmed by the Division Bench, warranting interference.
1 8 . We may, now, consider the plea relating to the legitimate expectation of the
appellants in terms of DDA's policy dated 14th October, 1999 and the impact of change
of the policy, in June, 2003, thereon.
1 9 . The protection of legitimate expectations, as pointed out in De Smith's
Judicial Review (Sixth Edition), (para 12-001), is at the root of the constitutional
principle of the rule of law, which requires regularity, predictability, and certainty in
government's dealings with the public. The doctrine of legitimate expectation and its
impact in the administrative law has been considered by this Court in a catena of
decisions but for the sake of brevity we do not propose to refer to all these cases.
Nevertheless, in order to appreciate the concept, we shall refer to a few decisions. At
this juncture, we deem it necessary to refer to a decision by the House of Lords in
Council of Civil Service Unions and Ors. v. Minister for the Civil Service [1984]
3 All ER 935, a locus classicus on the subject, wherein for the first time an attempt was
made to give a comprehensive definition to the principle of legitimate expectation.
Enunciating the basic principles relating to legitimate expectation, Lord Diplock
observed that for a legitimate expectation to arise, the decision of the administrative
authority must affect such person either (a) by altering rights or obligations of that
person which are enforceable by or against him in private law or (b) by depriving him
of some benefit or advantage which either: (i) he has in the past been permitted by the
decision maker to enjoy and which he can legitimately expect to be permitted to
continue to do until some rational ground for withdrawing it has been communicated to
him and he has been given an opportunity to comment thereon or (ii) he has received
assurance from the decision-maker that they will not be withdrawn without first giving
him an opportunity of advancing reasons for contending that they should be withdrawn.
20. I n Attorney General of Hong Kong v. Ng Yuen Shiu (1983) 2 All.ER 346, a
leading case on the subject, Lord Fraser said: "when a public authority has promised to
follow a certain procedure, it is in the interest of good administration that it should act
fairly and should implement its promise, so long as the implementation does not
interfere with its statutory duty.

21. Explaining the nature and scope of the doctrine of legitimate expectation, in Food
Corporation of India v. Kamdhenu Cattle Feed
IndustriesMANU/SC/0257/1993 : AIR1993SC1601 , a three-Judge Bench of this
Court had observed thus:
The mere reasonable or legitimate expectation of a citizen, in such a situation,
may not by itself be a distinct enforceable right, but failure to consider and give
due weight to it may render the decision arbitrary, and this is how the
requirement of due consideration of a legitimate expectation forms part of the
principle of non-arbitrariness, a necessary concomitant of the rule of law. Every
legitimate expectation is a relevant factor requiring due consideration in a fair
decision-making process. Whether the expectation of the claimant is reasonable
or legitimate in the context is a question of fact in each case. Whenever the
question arises, it is to be determined not according to the claimant's
perception but in larger public interest wherein other more important
considerations may outweigh what would otherwise have been the legitimate
expectation of the claimant. A bona fide decision of the public authority reached
in this manner would satisfy the requirement of non-arbitrariness and withstand
judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the
rule of law and operates in our legal system in this manner and to this extent.
22. The concept of legitimate expectation again came up for consideration in Union of
India and Ors. v. Hindustan Development Corporation and
Ors.MANU/SC/0219/1994 : AIR1994SC988 . Referring to a large number of foreign
and Indian decisions, including in Council of Civil Service Unions and Kamdhenu
Cattle Feed Industries (supra) and elaborately explaining the concept of legitimate
expectation, it was observed as under:
If a denial of legitimate expectation in a given case amounts to denial of right
guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of
power or violation of principles of natural justice, the same can be questioned
on the well-known grounds attracting Article 14 but a claim based on mere
legitimate expectation without anything more cannot ipso facto give a right to
invoke these principles. It can be one of the grounds to consider but the court
must lift the veil and see whether the decision is violative of these principles
warranting interference. It depends very much on the facts and the recognised
general principles of administrative law applicable to such facts and the concept
of legitimate expectation which is the latest recruit to a long list of concepts
fashioned by the courts for the review of administrative action, must be
restricted to the general legal limitations applicable and binding the manner of
the future exercise of administrative power in a particular case. It follows that
the concept of legitimate expectation is "not the key which unlocks the treasury
of natural justice and it ought not unlock the gate which shuts the court out of
review on the merits", particularly when the element of speculation and
uncertainty is inherent in that very concept.
23. Taking note of the observations of the Australian High Court in Attorney General
for New South Wales v. Quinn (1990) 64 Aust L JR 327 that "to strike down the
exercise of administrative power solely on the ground of avoiding the disappointment of
the legitimate expectations of an individual would be to set the Courts adrift on a
featureless sea of pragmatism", speaking for the Bench, K. Jayachandra Reddy, J. said
that there are stronger reasons as to why the legitimate expectation should not be
substantively protected than the reasons as to why it should be protected. The caution

sounded in the said Australian case that the Courts should restrain themselves and
restrict such claims duly to the legal limitations was also endorsed.
24. Then again in National Buildings Construction Corporation v. S. Raghunathan and
Ors. MANU/SC/0550/1998 : AIR1998SC2779 , a three-Judge Bench of this Court
observed as under
The doctrine of "legitimate expectation" has its genesis in the field of
administrative law. The Government and its departments, in administering the
affairs of the country, are expected to honour their statements of policy or
intention and treat the citizens with full personal consideration without any iota
of abuse of discretion. The policy statements cannot be disregarded unfairly or
applied selectively. Unfairness in the form of unreasonableness is akin to
violation of natural justice. It was in this context that the doctrine of "legitimate
expectation" was evolved which has today become a source of substantive as
well as procedural rights. But claims based on "legitimate expectation" have
been held to require reliance on representations and resulting detriment to the
claimant in the same way as claims based on promissory estoppel.
2 5 . This Court in Punjab Communications Ltd. v. Union of India and
Ors.MANU/SC/0326/1999 :[1999]2SCR1033 , referring to a large number of
authorities on the question, observed that a change in policy can defeat a substantive
legitimate expectation if it can be justified on "Wednesbury" reasonableness. The
decision maker has the choice in the balancing of the pros and cons relevant to the
change in policy. Therefore, the choice of the policy is for the decision maker and not
for the Court. The legitimate substantive expectation merely permits the Court to find
out if the change in policy which is the cause for defeating the legitimate expectation is
irrational or perverse or one which no reasonable person could have made. (Also see:
Bannari Amman Sugars Ltd. v. Commercial Tax Officer and
Ors.MANU/SC/0994/2004 : (2004)192CTR(SC)492 )
2 6 . Very recently in Jitendra Kumar and Ors. v. State of Haryana and
Anr.MANU/SC/8192/2007 : (2008)2SCC161 , it has been reiterated that a legitimate
expectation is not the same thing as an anticipation. It is distinct and different from a
desire and hope. It is based on a right. It is grounded in the rule of law as requiring
regularity, predictability and certainty in the Government's dealings with the public and
the doctrine of legitimate expectation operates both in procedural and substantive
matters.
2 7 . An examination of the afore-noted few decisions shows that the golden thread
running through all these decisions is that a case for applicability of the doctrine of
legitimate expectation, now accepted in the subjective sense as part of our legal
jurisprudence, arises when an administrative body by reason of a representation or by
past practice or conduct aroused an expectation which it would be within its powers to
fulfill unless some overriding public interest comes in the way. However, a person who
bases his claim on the doctrine of legitimate expectation, in the first instance, has to
satisfy that he has relied on the said representation and the denial of that expectation
has worked to his detriment. The Court could interfere only if the decision taken by the
authority was found to be arbitrary, unreasonable or in gross abuse of power or in
violation of principles of natural justice and not taken in public interest. But a claim
based on mere legitimate expectation without anything more cannot ipso facto give a
right to invoke these principles. It is well settled that the concept of legitimate
expectation has no role to play where the State action is as a public policy or in the

MANU/SC/0149/1997
Equivalent Citation: AIR1997SC 568, JT1997(1)SC 288, 1996(9)SC ALE318, (1997)1SC C 301, [1996]Supp10SC R321, 1997(1)UJ187

Writ Petn. (C) No. 256 of 1991
Appellants: People's Union of Civil Liberties (PUCL)
Vs.
Respondent: Union of India (UOI) and Ors.
Kuldip Singh and Saiyed Saghir Ahmad, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Kapil Sibal, Rajinder Sachar, Rashmi Kapadi and Sanjay
Parikh, Advs
For Respondents/Defendant: Venugopal Reddy, P. Parmeswaran, Hemant Sharma and
Anil Katiyar, Advs.
Case Note:
Constitution - telephone-tapping - Sections 5 (2) and 7 of Telegraph Act,
1885 and Articles 19 and 21 of Constitution of India - petitioner challenged
constitutional validity of Section 5 (2) or in alternative contended that said
provisions be suitably read down to include procedural safeguards to rule out
arbitrariness and to prevent indiscriminate telephone tapping - Section 5 (2)
provided that in event of occurrence of public emergency or in interest of
public safety messages could be intercepted - rules required to be framed
under Section 7 (2) (b) for providing procedural safeguards not framed - it
was alleged Act lays down situations when such power can be exercised but
manner in which such power is to be exercised not provided in Act - right to
privacy is part of right to "life" and "personal liberty" enshrined under Article
21 - telephone-tapping unless comes within reasonable restrictions under
Article 19 (2) is infringement of right to freedom of speech and expression
contained in Article (1) (a) - to protect right to privacy of people necessary to
lay down procedural safeguards - Order for telephone-tapping under Section 5
(2) shall be issued by Home Secretary of Central or State Government who
shall maintain proper records of intercepted communications and disclosure of
materials intercepted - total period for operation of Order shall not exceed six
months - Court provided for Review Committees which shall review Orders
under Section 5 (2) and set aside Orders where there appears to be
contravention of provisions of Section 5 (2).
ORDER
Kuldip Singh, J.
1. Telephone-Tapping is a serious invasion of an individual's privacy. With the growth
of highly sophisticated communication technology, the right to hold telephone
conversation, in the privacy of one's home or office without interference, is increasingly

the Constitution. This freedom means the right to express one's convictions and
opinions freely by word of mouth, writing, printing, picture, or in any other manner.
When a person is talking on telephone, he is exercising his right to freedom of speech
and expression. Telephone-tapping unless it comes within the grounds of restrictions
under Article 19(2) would infract Article 19(1)(a) of the Constitution.
2 1 . India is a signatory to the International Covenant on Civil and Political Rights,
1966. Article 17 of the said covenant is as under:
Article 17
1. No one shall be subject to arbitrary or unlawful interference with his privacy,
family, human or correspondence, nor to lawful attacks on his honour and
reputation.
2. Every one has the right to the protection of the law against such interference
or attacks.
Article 12 of the Universal Declaration of Human Rights, 1948 is almost in similar terms.
2 2 . International law today is not confined to regulating the relations between the
States. Scope continues to extend. Today matters of social concern, such as health,
education and economics apart from human rights fall within the ambit of International
Regulations. International law is more than ever aimed at individuals.
23. It is almost an accepted proposition of law that the rules of customary international
law which are not contrary to the municipal law shall be deemed to be incorporated in
the domestic law.
24. Article 51 of the Constitution directs that the State shall endeavour to inter alia,
foster respect for international law and treaty obligations in the dealings of organised
peoples with one another. Relying upon the said Article, Sikri, C.J in Kesavananda
Bharathi v. State of Kerala MANU/SC/0114/1972 : 1972CriLJ1526 , observed as under:
It seems to me that, in view of Article 51 of the directive principles, this Court
must interpret language of the Constitution, if not intractable, which is after all
a municipal law, in the right of the United Nations Charter and the solemn
declaration subscribed to by India.
In A.D.M. Jabalpur v. 5. Shukla, Khanna J. in his minority opinion observed as under:
Equally well established is the rule of construction that if there be a conflict
between the municipal law on one side and the international law or the
provisions of any treaty obligation on the other, the Courts would give effect to
municipal law. If, however, two constructions of the municipal law are possible,
the Courts should lean in favour of adopting such construction as would make
the provisions of the municipal law to be in harmony with the international law.
on treaty obligations. Every statute, according to this rule is interpreted, so far
as its language permits, so as not to be inconsistent with the comity of nations
on the established rules of international law, and the Court will avoid a
construction which would give rise to such inconsistency unless compelled to
adopt it by plain and unambiguous language.
In Jolly George Varghese v. Bank of Cochin MANU/SC/0014/1980 : [1980]2SCR913 ,
Krishna Iyer, J. posed the following question:

MANU/SC/0040/1967
Equivalent Citation: AIR1967SC 1836, 1968(70)BOMLR1, [1967]3SC R525

Writ petitions Nos. 230 of 1966 and 30 of 1967
Appellants:Satwant Singh Sawhney
Vs.
Respondent:D. Ramarathnam and Ors.
K. Subba Rao, C.J., C.A. Vaidialingam, J.M. Shelat, M. Hidayatullah and R.S. Bachawat,
JJ.
Case Note:
Constitution - right to travel abroad - Articles 14, 21 and 32 of Constitution of
India - petitioner engaged in business of export and import - for purpose of
business petitioner required to visit countries outside India - regular
passports for traveling abroad granted to petitioner on two occasions -
decision to withdraw passport facilities extended to petitioner by Central
Government - petitioner called upon to surrender both passport - writ before
Supreme Court for Order of mandamus against decision which was conveyed
via letters issued by Regional Passport Officer Bombay - majority decision laid
out that Article 21 to include liberty to travel abroad - exercise of arbitrary
discretion to refuse issue of passport in contravention of Article 14 - minority
decision observed that Article 21 does not grant absolute right to a citizen to
obtain a passport from Government as it has right to scrutinize credentials of
passport holder - petitioner found to undertake illegal import and export
activities - denial of passport not arbitrary - Apex Court held, that Order of
mandamus to be passed and passport to be restored to petitioner.
JUDGMENT
K. Subba Rao, C.J.
1 . Satwant Singh Sawhney, the petitioner is a citizens of India. He carries on the
business of Importer, Exporter and Manufacture of automobile parts and engineering
goods in the name and style of Indi-Europeans Trading Corporation. he also carries on
another business in engineering goods in the name of "Sawhney Industries". For the
purpose of his business it is necessary for the petitioner to travel abroad. From the year
1958 he was taking passports for visiting foreign countries in connection with his
business. On December 8, 1965 be obtained a regular passport form the Government of
India which is valid upon March 22, 1969. So too, on October 27, 1965 he obtained
another passport which was valid upto March 22, 1967. On August 31, 1966 the
Assistant Passport Officer, Government of India, Ministry of External Affairs, New Delhi,
the 1st respondent herein, wrote to the petitioner calling upon him to return the said
two passports as the 3rd Respondent, the Union of India, had decided to withdraw the
passport facilities extended to the petitioner. So too the 2nd respondent the Regional
Passport Officer, Bombay wrote to the petitioner a letter dated September 24, 1966,
calling upon him to surrender the said two passports immediately to the Government

8 8 . Now it is obvious that Blackstone, when he defined 'personal liberty' was not
writing a commentary on the Indian Constitution. The generality of his observations
cannot be woven into our Constitution without paying heed to the context in which the
words occur. It seems strange that the Constitution should have guaranteed the right of
motion, in one place, limited to the territories of India, and in another, without
specifying the right of motion given an added fundamental right to leave India. This, in
our opinion, has been earlier noticed indirectly in the two cases of this Court already
referred to.
8 9 . Gopalan's case MANU/SC/0012/1950 : 1950CriL J1383 is one of them. It was
concerned with preventive detention and was not directly concerned with the question
whether Art. 21 comprehends the right to travel abroad or to leave India as an attribute
of personal liberty. The point now before us did not really arise. However, varied
opinions were expressed by the Constitution Bench. Kania,C.J. did not express any clear
view. According to him there was no conflict between Arts. 19 and 21. He thought of
personal liberty in terms of right to eat or sleep when one likes, to work or not to work.
To him personal liberty meant liberty of the physical body. Fazl Ali, J. accepted that
freedom of movement was the essence of personal liberty; but observed at p. 139 as
follows :
"In my opinion, the words 'throughout the territory of India' were used to
stretch the ambit of the freedom of movement to the utmost extent to which it
could be guaranteed by our Constitution. " (Italics added).
90. Patanjali Sastri, J. (later C.J.) thought that personal liberty in Art. 21 was used in a
sense which excluded freedoms dealt with in Art. 19, that is to say, personal liberty in
the context of Part III of the Constitution was something distinct from the freedom to
move freely throughout the territory of India. Das, J. (later C.J.) dealing with Art. 19
observed at p. 301 :
"Its purpose, as I read it, is not to provide protection for the general right of
free movement but to secure a specific and special right of the Indian citizen to
move freely throughout the territories of India regarded as an independent
additional right apart from the general right of locomotion emanating from the
freedom of the person. It is a guarantee against unfair discrimination in the
matter of free movement of the Indian citizen throughout the Indian Union. In
short, it is a protection against provincialism. It has nothing to do with the
freedom of the person as such. That is guaranteed to every person, citizen or
otherwise, in the manner and to the extent formulated by article 21."
9 1 . Mahajan J. (later C.J.) thought that in providing that life and liberty might be
deprived only in accordance with procedure established by law, the intention was to
give immunity against exercise of despotic power by the Executive. Mukherjea J. (later
C.J.) thought that movement throughout the territory of India could be curtailed in the
interest of other public but movement outside could only be curtailed by law.
92. The learned Chief Justice has selected the views of Fazl Ali and Das JJ. and drawn
the conclusion that personal liberty in art. 21 is a more comprehensive concept and has
a much wider connotation than the right conferred by Art. 19(1)(d). The learned Chief
Justice refers to Kharak Singh's case MANU/SC/0085/1962 : 1963CriL J329 and observes
as follows :
"This Court, adverting to the expression "personal liberty", accepted the
meaning put upon the expression 'liberty' in the 5th and 14th Amendments to

MANU/SC/0133/1978
Equivalent Citation: AIR1978SC 597, (1978)2C ompLJ62(SC ), (1978)1SC C 248, [1978]2SC R621

Writ Petition No. 231 of 1977
Appellants:Maneka Gandhi
Vs.
Respondent:Union of India (UOI) and Ors.
M. Hameedullah Beg, C.J., N.L. Untwalia, P.N. Bhagwati, P.S. Kailasam, S. Murtaza Fazal
Ali, V.R. Krishna Iyer and Y.V. Chandrachud, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Madan Bhatia and D. Goburdhan, Advs
For Respondents/Defendant: S.V. Gupte, Attorney General, Soli J. Sorabjee, Additional
Sol. Genl. Of Indian, R.N. Sachthey and K.N. Bhat, Advs.
Case Note:
(i) Constitution - validity of provision - Articles 14, 19 and 21 of Constitution
of India and Section 10 (3) (c) of Passports Act, 1967 - validity of Section 10
(3) (c) challenged - procedure in Article 21 means procedure which conforms
to principles of natural justice - power conferred under Section 10 (3) (c) not
unguided and it is implied in it that rules of natural justice would be
applicable - held, Section 10 (3) (c) not violative of Article 21.
(ii) Right of dignity - right to live is not merely confined to physical existence
- it includes within its ambit right to live with human dignity.
(iii) Inter-relationship - principle of reasonableness provided under Article 14

must apply to procedure as contemplated under Article 21 - Article 21
controlled by Article 19 also - in case a law does not infringe Article 21 even
then it has to meet challenges of Articles 14 and 19.
(iv) Post-decisional hearing - petitioner's passport impounded and not given

pre-decisional notice and hearing - Government contended that rule audi
alteram partem must be excluded because it may have frustrated very
purpose of impounding passport - concept of post-decisional hearing
developed to maintain balance between administrative efficiency and fairness
to individual - Court stressed that fair opportunity of being heard following
immediately Order impounding passport would satisfy mandate of natural
justice.

prescribes the procedure whereby an application for a passport may be granted fully or
partially, with or without any endorsement, and a passport once granted may later be
revoked or impounded. But the mere prescription of some kind of procedure cannot
ever meet the mandate of Article 21. The procedure prescribed by law has to be fair,
just and reasonable, not fanciful, oppressive or arbitrary. The question whether the
procedure prescribed by a law which curtails or takes away the personal liberty
guaranteed by Article 21 is reasonable or not has to be considered not in the abstract or
on hypothetical considerations like the provision for a full-dressed hearing as in a
Courtroom trial, but in the context, primarily, of the purpose which the Act is intended
to achieve and of urgent situations which those who are charged with the duty of
administering the Act may be called upon to deal with. Secondly, even the fullest
compliance with the requirements of Article 21 is not the journey's end because, a law
which prescribes fair and reasonable procedure for curtailing or taking away the
personal liberty guaranteed by Article 21 has still to meet a possible challenge under
other provisions of the Constitution like, for example, Articles 14 and 19. If the holding
in A. K. Gopalan v. State of Madras [1950] SCR 88 that the freedoms guaranteed by the
Constitution are mutually exclusive were still good law, the right to travel abroad which
is part of the right of personal liberty under Article 21 could only be found and located
in that article and in no other. But in the Bank Nationalisation Case (R. C. Cooper v.
Union of India [1973] 3 SCR 530 the majority held that the assumption in A. K-
Gopalan MANU/SC/0012/1950 : 1950CriL J1383 that certain articles of the Constitution
exclusively deal with specific matters cannot be accepted as correct. Though the Bank
Nationalisation case [1973] 3 SCR 530 was concerned with the inter-relationship of
Article 31 and 19 and not of Articles 21 and 19, the basic approach adopted therein as
regards the construction of fundamental rights guaranteed in the different provisions of
the Constitution categorically discarded the major premise of the majority judgment in
A. K. Gopalan (supra) as incorrect. That ;is how a seven-Judge Bench in Shambhu Nath
Sarkar v. State of West Bengal and Ors. MANU/SC/0537/1972 : [1973]1SCR856
assessed the true impact of the ratio of the Bank Nationalisation Case (supra) on the
decision in A. K. Gopalan (supra) in Shambhu Nath Sarkar MANU/SC/0537/1972 :
[1973]1SCR856 it was accordingly held that a law of preventive detention has to meet
the challenge not only of Articles 21 and 22 but also of Article 19(1)(d). Later, a five-
Judge Bench in Haradhan Saha v. State of West Bengal and Ors. MANU/SC/0419/1974 :
1974CriL J1479 adopted the same approach and considered the question whether the
Maintenance of Internal Security Act, 1971 violated the right guaranteed by Article
19(1)(d). Thus, the inquiry whether the right to travel abroad forms a part of any of the
freedoms mentioned in Article 19(1) is not to be shut out at the threshold merely
because that right is a part of the guarantee of personal liberty under Article 21. I am in
entire agreement with Brother Bhagwati when he says :
The law must, therefore, now be taken to be well settled that Article 21 does
not exclude Article 19 and that even if there is a law prescribing a procedure for
depriving a person of 'personal liberty' and there is consequently no
infringement of the fundamental right conferred by Article 21, such law, in so
far as it abridges or takes away any fundamental right under Article 19 would
have to meet the challenge of that article.
41. The interplay of diverse articles of the Constitution guaranteeing -various freedoms
has gone through vicissitudes which have been elaborately traced by Brother Bhagwati.
The test of directness of the impugned law as contrasted with its consequences was
thought in A. K. Gopalan (supra) and Ram Singh [1951] SCR 451 to be the true
approach for determining whether a fundamental right was infringed. A significant
application of that test may be perceived in Naresh S. Mirajkar MANU/SC/0044/1966 :

The nature and requirement of the procedure under Article 21.
56. Now, the question immediately arises as to what is the requirement of Article 14 :
what is the content and reach of the great equalising principle enunciated in this article
? There can be no doubt that if is a founding faith of the Constitution. It is indeed the
pillar on which rests securely the foundation of our democratic republic. And, therefore,
it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt
should be made to truncate its all-embracing scope and meaning for, to do so would be
to violate its activist magnitude. Equality is a dynamic concept with many aspects and
dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We
must reiterate here what was pointed out by the majority in E. P. Royappa v. State of
Tamil Nadu and Anr. MANU/SC/0380/1973 : (1974)ILL J172SC namely, that "from a
positivistic point of view, equality is antithetic to arbitrariness. In fact equality and
arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the
other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is
implicit in it that it is unequal both according to political logic and constitutional law
and is therefore violative of Article 14".
Article 14 strikes at arbitrariness in State action and ensures fairness and equality of
treatment. The principle of reasonableness, which legally as well as philosophically, is
an essential element of equality or non-arbitrariness pervades Article 14 like a brooding
omnipresence
and the procedure contemplated by Article 21 must answer the best of reasonableness
in order to be in conformity with Article 14. It must be "right and just and fair" and not
arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the
requirement of Article 21 would not be satisfied.
57. How far natural justice is art essential element of procedure established by law.
58. The question immediately arises : does the procedure prescribed by the Passports
Act, 1967 for impounding a passport meet the test of this requirement ? Is it 'right or
fair or just' ? The argument of the petitioner was that it is not, because it provides for
impounding of a passport without affording reasonable opportunity to the holder of the
passport to be heard in defence. To impound the passport of a person, said the
petitioner, is a serious matter, since it prevents him from exercising his constitutional
right to go abroad and such a drastic consequence cannot in fairness be visited without
observing the principle of audi alteram partem. Any procedure which permits
impairment of the constitutional right to go abroad without giving reasonable
opportunity to show cause cannot but be condemned as unfair and unjust and hence,
there is in the present case clear infringement of the requirement of Article 21. Now, it
is true that there is no express provision in the Passports Act, 1967 which requires that
the audi alteram partem rule should be followed before impounding a passport, but that
is not conclusive of the question. If the statute makes itself clear on this point, then no
more question arises. But even when the statute is silent, the law may in a given case
make an implication and apply the principle stated by Bytes, J., in Cooper v.
Wandsworth Board of Works [1863] 14C B.N.S. 180. "A long course of decisions,
beginning with Dr. Bentley's case and ending with some very recent cases, establish
that, although there are no positive words in the statute requiring that the party shall be
heard, yet the justice of the common law will supply the omission off the legislature".
The principle of audi alteram partem, which mandates that no one shall be condemned
unheard, is part of the rules of natural justice. In fact, there are two main principles in
which the rules of natural justice are manifested, namely, Nemo Judex in Sua Causa and
audi alteram partem. We are not concerned here with the former, since there is no case

MANU/SC/0012/1950
Equivalent Citation: AIR1950SC 27, 1950C riLJ1383, 1942-55-LW638, 1950-63-LW638, (1950)2MLJ42, [1950]1SC R88

Petition No. XIII of 1950
Appellants:A.K. Gopalan
Vs.
Respondent:The State of Madras
H.J. Kania, C.J., B.K. Mukherjea, M.C. Mahajan, M. Patanjali Sastri, Sudhi Ranjan Das
and Sir Saiyid Fazl Ali, JJ.
Overruled / Reversed by:
Sambhu Nath Sarkar v. The State Of West Bengal And Others, MANU/SC/0163/1973;
Bachan Singh v. State of Punjab MANU/SC/0055/1982;Ashok Kumar Gupta and Anr. v.
State of U.P. and Ors. MANU/SC/1176/1997 ; Khudiram Das vs. The State of West
Bengal and Ors. (MANU/SC/0423/1974); M Nagaraj v. Union of India,
MANU/SC/4560/2006 (2006) 8 SCC 212
Case Note:
Constitution - Validity of detention order - Articles 13, 19, 21, 22(5) and 32 of
the Constitution of India - Petitioner challenges legality of detention order
passed by parliament on ground that Preventive Detention Act IV of 1950
contravenes provisions of Articles 13, 19 and 21 and provisions of that Act
were not in accordance with Article 22 of the Constitution - Hence, this
Petition - Held, right to move Supreme Court was given to a person not for
sake of moving only but for moving Court for enforcement of some rights
conferred by Part III - Therefore, to attract Application of Article 32, person
applying must first satisfy that he had got a right under Part III which had to
be enforced under Article 32 - Further, disclosure of grounds would afford
detenu opportunity of making a representation against order supposing that
Authority did not give any grounds at all as distinct from facts referred to in
clause (6) - Detenu lost a fundamental right because he was prevented from
making representation against order of detention - Therefore, suppose
authority handed over to detenu a piece of paper with some scribbling on it
which do not amount to any ground at all for detention - Then also detenu
could legitimately complain that his right had been infringed - Moreover,
Court could not judge whether he had actually get grounds which he was
entitled to under Article 22(5) of the constitution - Detenu may well complain
that both his substantive right under Article 22(5) as well as his right to
constitutional remedies under Article 32 have been infringed - Since, grounds
communicated to detenu was not in conformity with Part III of Constitution
and was, therefore, void under Article 13(2) - Thus, impugned Act was a valid
law except as to Section 14 in so far as it prevents grounds being disclosed to
Court - Petition dismissed.
Ratio Decidendi:
"No person shall be arrested or detained without being at once informed of

(4) No law providing for preventive detention shall authorise the detention of a
person for a longer period than three months unless -
(a) an Advisory Board consisting of persons who are, or have been, or
are qualified to be appointed as, Judges of a High Court has reported
before the expiration of the said period of three months that there is in
its opinion sufficient cause for such detention :
Provided that nothing in this sub-clause shall authorise the
detention of any person beyond the maximum period
prescribed by any law made by Parliament under sub-clause
(b) of clause (7); or
(b) such person is detained in accordance with the provisions of any
law made by Parliament under sub-clauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order made under any law
providing for preventive detention, the authority making the order shall, as
soon as may be, communicate to such person the grounds on which the order
has been made and shall afford him the earliest opportunity of making a
representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as
is referred to in that clause to disclose facts which such authority considers to
be against the public interest to disclose.
(7) Parliament may by law prescribe -
(a) the circumstances under which, and the class or classes of cases in
which, a person may be detained for a period longer than three months
under any law providing for preventive detention without obtaining the
opinion of an Advisory Board in accordance with the provisions of sub-
clause (a) of clause (4) :
(b) the maximum period for which any person may in any class or
classes of cases be detained under any law providing for preventive
detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry
under sub-clause (a) of clause (4)."
107. Mr. Nambiar urged that the word "law" in article 21 should be understood, not in
the sense of an enactment but as signifying the immutable and universal principles of
natural justice - the jus natural of the civil law - and that the expression "procedure
established by law" meant the same thing as that famous phrase "due process of law" in
the American Constitution in its procedural aspect. Numerous American decisions were
cited to show that the phrase implied the basic requirements of (1) an objective and
ascertainable standard of conduct to which it is possible to confirm, (2) notice to the
party of the accusation against him, (3) a reasonable opportunity for him to establish
his innocence, and (4) an impartial tribunal capable of giving an unbiased judgment.
Mr. Nambiar conceded that these requirements might have to be modified or adapted to
suit the nature of the particular proceeding and the object it had in view, as for
instance, in a case of preventive detention, previous notice, which might result in the
person concerned going underground might be dispensed with. Learned counsel insisted

MANU/SC/0039/1985
Equivalent Citation: AIR1986SC 180, 1986RRR290, 1985(2)SC ALE5, (1985)3SC C 545, [1985]Supp2SC R51

Writ Petitions Nos. 4610-4612 and 5068-5079 of 1981
Appellants: Olga Tellis and Ors.
Vs.
Respondent: Bombay Municipal Corporation and Ors.
Y.V. Chandrachud, C.J., A. Vardarajan, O. Chinnappa Reddy, S. Murtaza Fazal Ali and
V.D. Tulzapurkar, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Indira Jaising, Rani Jethmalani, Anand Grover and
Sumeet Kachwaha, Advs. in W.P. No. 4610-12 of 1981 and Ram Jethmalani, Adv. in
W.P. Nos. 5068-79 of 198
For Respondents/Defendant: L.N. Sinha, Attorney General, P. Shankaranarayanan and
M.N. Shroff, Advs. for Respondent Nos. 2 and 3 in W.P. Nos. 4610-12 of 1981 and for
Respondent Nos. 1 and 3 in W.P. Nos. 5068-79 of 1981, K.K. Singhvi, F.N.D. Mollo,
Advs. for Respondent No. 2 in W.P. No. 5068-79 of 1981
Case Note:
Constitution - fundamental right - Articles 14, 19, 21, 32, 37, 39 and 41 of
Constitution of India and Sections 312, 313 and 314 of Bombay Municipal
Corporation Act, 1888 - petition seeking direction against Government Order
regarding demolition of dwelling units of petitioners - petitioners contended
that provisions of Act of 1888 specially Section 314 ultra vires Constitution of
India - Section 314 empowered Municipal Commissioner to cause to be
removed encroachments on footpaths or pavements over which public have
right of passage of access without notice to affected persons - Court observed
that Section 314 cannot be read to mean that Commissioner must cause
removal of encroachment without issuing previous notice - Section 314 or
other provisions of Act of 1888 held not to be unreasonable or violative of
Article 21 as no person has right to encroach on footpaths pavements or other
place reserved for public purpose by erecting structure on it - State
Government assured Court that alternative would be provided to slum
dwellers who were caused to be evicted - Ordered accordingly.
JUDGMENT
Y.V. Chandrachud, C.J.
1 . These Writ Petitions portray the plight of lakhs of persons who live on pavements
and in slums in the city of Bombay. They constitute nearly half the population of the
city. The first group of petitions relates to pavement dwellers while the second group
relates to both pavement and Basti or Slum dwellers. Those who have made pavements
their homes exist in the midst of filth and squalor, which has to be seen to be believed.

prescribed by Section 314 of the B.M.C. Act being arbitrary and unfair, it is not
"procedure established by law" within the meaning of Article 21 and, therefore, they
cannot be deprived of their fundamental right to life by resorting to that procedure. The
petitions are clearly maintainable under Article 32 of the Constitution.
32. As we have stated while summing up the petitioners' case, the main plank of their
argument is that the right to life which is guaranteed by Article 21 includes the right to
livelihood and since, they will be deprived of their livelihood if they are evicted from
their slum and pavement dwellings, their eviction is tantamount to deprivation of their
life and is hence unconstitutional. For purposes of argument, we will assume the factual
correctness of the premise that if the petitioners are evicted from their dwellings, they
will be deprived of their livelihood. Upon that assumption, the question which we have
to consider is whether the right to life includes the right to livelihood. We see only one
answer to that question, namely, that it does. The sweep of the right to life conferred by
Article 21 is wide and far reaching. It does not mean merely that life cannot be
extinguished or taken away as, for example, by the imposition and execution of the
death sentence , except according to procedure established by law. That is but one
aspect of the right to life. An equally important facet of that right is the right to
livelihood because, no person can live without the means of living, that is, the means of
livelihood. If the right to livelihood is not treated as a part of the constitutional right to
life, the easiest way of depriving a person his right to life would be to deprive him of
his means of livelihood to the point of abrogation. Such deprivation would not only
denude the life of its effective content and meaningfulness but it would make life
impossible to live. And yet, such deprivation would not have to be In accordance with
the procedure established by law, if the right to livelihood is not regarded as a part of
the right to life. That, which alone makes it possible to live, leave aside what makes life
livable, must be deemed to be an integral component of the right to life. Deprive a
person of his right to livelihood and you shall have deprived him of his life.
Indeed, that explains the massive migration of the rural population to big cities. They
migrate because they have no means of livelihood in the villages. The motive force
which people their desertion of their hearths and homes in the villages that struggle for
survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus
between life and the means of livelihood. They have to eat to live : Only a handful can
afford the luxury of living to eat. That they can do, namely, eat, only if they have the
means of livelihood.
That is the context in which it was said by Douglas J. in Baksey that the right to work is
the most precious liberty because, it sustains and enables a man to live and the right to
life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois (1877) 94
U.S. 113, means something more than mere animal existence and the inhibition against
the deprivation of life extends to all those limits and faculties by which life is enjoyed.
This observation was quoted with approval by this Court in Kharak Singh v. The State of
U.P. MANU/SC/0085/1962 : 1963CriLJ329
33. Article 39(a) of the Constitution, which is a Directive Principle of State Policy,
provides that the State shall, in particular, direct its policy towards securing that the
citizens, men and women equally, have the right to an adequate means of livelihood.
Article 41, which is another Directive Principle, provides, inter alia, that the State shall,
within the limits of its economic capacity and development, make effective provision for
securing the right to work in cases of unemployment and of undeserved want. Article 37
provides that the Directive Principles, though not enforceable by any court, are
nevertheless fundamental in the governance of the country. The Principles contained in
Articles 39(a) and 41 must be regarded as equally fundamental in the understanding

MANU/SC/0300/1977
Equivalent Citation: AIR1977SC 2279, (1977)6C TR(SC )354, (1977)4SC C 98, 1977SC C (Tax)536, [1978]1SC R338, [1977]40STC 497(SC )

Civil Appeal Nos. 533, 1004, 1410 and 1671-1685 of 1975
Appellants: R.S. Joshi and Ors.
Vs.
Respondent:Ajit Mills Limited and Ors.
M. Hameedullah Beg, C.J., N.L. Untwalia, P.N. Bhagwati, P.S. Kailasam, S. Murtaza Fazal
Ali, V.R. Krishna Iyer and Y.V. Chandrachud, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: S.T. Desai and R.M. Mehta, M.N. Shroff Radha
Rangaswamy and Fali Sam Nariman, Advs
For Respondents/Defendant: K.H. Kaji, Sunanda Bhandare, M.S. Narasimhan, A.K.
Mathur, A.K. Sharma, Advs.
Case Note:
Sales Tax - Forfeiture - Sections 37(1) and 46 of Bombay Sales Tax Act, 1959
- High Court struck down sale-tax project of State of Gujarat - Hence, this
Appeal - Whether, forfeiture clause in Sections 37(1) (a) and 46(2) of Act,
were beyond legislative power conferred by Entry 54, List II, Schedule VII of
Constitution - Held, forfeiture being penal terminologically, excluded mens
rea and penal forfeiture could be enormous germane to legislative policy, not
for judicial compassion - However, express penalty in Section 37(1) (a) had
ceiling while additive forfeit was unlimited - Moreover, limited penalty,
without forfeiture might prove illusory where illegal collections run into
millions, but forfeiture in Section 37(1) was competent legislation -Thus,
sales tax law would have to demarcate articles on which tax could be
collected and prohibitted collection of tax in any manner not authorized by
law - Hence, provisions of Section 37(1) were with-in competence of State
legislature - Appeal allowed.
Ratio Decidendi:
"If it is an act of mere transference of money from dealer to State, then it
falls outside the legislative entry."
JUDGMENT
V.R. Krishna Iyer, J.
1. This bunch of appeals brought by the State of Gujarat by certificate has a pan-Indian
impact, as the sale-tax project which has been struck down by the High Court may
adversely affect cousin provisions in like statutes in the rest of the country.
Contradictory verdicts on the constitutionality of a certain pattern of sales tax
legislation, calculated to counter consumer victimisation by dealers, have been rendered
by different High Courts and what complicates the issue is that reasonings in the prior

fall within any entry assigned to that legislature in pith and substance, or as covered by
the ancillary powers implied in that Entry ? Can the legislation be read down reasonably
to bring it within the legislature's constitutional powers ? If these questions can be
answered affirmatively, the law is valid. Malice or motive is beside the point and it is
not permissible to suggest parliamentary incompetence on the score of mala fides.
17. So much is well-established law. Therefore, if the dealers in the appeals before us
charge the enactment with the vice of colourability, they must make out that in pith and
substance the impugned legislation does not fall within Entry 54 read with Entry 64 of
List II, that it is not embraced even by the expansive connotation of ancillary powers
and that it is not possible to save the law even by reading down some of the wide
expressions used. In the present case, the narrow issue is as to whether the forfeiture
clause in Section 37(1) is bad because of the besetting sin of colourability. If it is a
punitive measure to protect public interest in the enforcement of the fiscal legislation, it
falls squarely within the area of implied powers. Therefore, the finer point stressed by
Shri Kaji is that the expression 'forfeiture' is a ritualistic recital to cover up a secret
design to snatch from the traders sums which cannot be reached at except by the device
of forfeiture. In frank fact, it is not a measure of penalty but an oblique methodology to
do an illegitimate thing which is beyond the legislature's legitimate reach. We have,
therefore, to examine this short point in the light of the decisions of this Court.
18. Coming to 'forfeiture', what is the true character of a 'forfeiture' ? Is it punitive in
infliction, or merely another form of exaction of money by one from another ? If it is
penal, it falls within implied powers. If it is an act of mere transference of money from
the dealer to the State, then it falls outside the legislative entry. Such is the essence of
the decisions which we will presently consider. There was a contention that the
expression 'forfeiture' did not denote a penalty. This, perhaps, may have to be decided
in the specific setting of a statute. But, speaking generally and having in mind the
object of Section 37 read with Section 46, we are inclined to the view that forfeiture has
a punitive impact. Black's Legal Dictionary states that 'to forfeit' is 'to lose, or lose the
right to, by some error, fault, offence or crime', 'to incur a penalty.' 'Forfeiture', as
judicially annotated, is 'a punishment annexed by law to some illegal act or negligence.
. . .'; 'something imposed as a punishment for an offence or delinquency.' The word, in
this sense, is frequently associated with the word 'penalty', According to Black's Legal
Dictionary.
The terms 'fine', 'forfeiture' and 'penalty', are often used loosely and even
confusedly; but when a discrimination is made, the word 'penalty' is found to
be generic in its character, including both fine and forfeiture. A 'fine' is a
pecuniary penalty and is commonly (perhaps always) to be collected by suit in
some form. A 'forfeiture' is a penalty by which one loses his rights and interest
in his property.
19. More explicitly, the U. S. Supreme Court has explained the concept of 'forfeiture' in
the context of statutory construction. Chief Justice Taney, in the State of Maryland v.
The Baltimore & Ohio RR Co. 11 Led. 714. observed:
And a provision, as in this case, that the party shall forfeit a particular sum, in
case he does not perform an act required by law, has always, in the
construction of statutes, been regarded not as a contract with the delinquent
party, but as the punishment for an offence. Undoubtedly, in the case of
individuals, the word forfeit is construed to be the language of contract,
because contract is the only mode in which one person can become liable to

MANU/SC/0014/1953
Equivalent Citation: AIR1953SC 375, 20(1954)C LT1(SC ), [1954]1SC R1

Civil Appeals Nos. 71 to 76 of 1953
Appellants:K.C. Gajapati Narayan Deo and Ors.
Vs.
Respondent:The State of Orissa
M. Patanjali Sastri, C.J., B.K. Mukherjea, Ghulam Hasan, N.H. Bhagwati and Sudhi
Ranjan Das, JJ.
Case Note:
Constitution - constitutional validity - Articles 31 (2), 31 (4) and107 of
Constitution of India, Sections 23, 26, 27 and 37 of Orissa Estates Abolition
Act, 1952, Orissa Agricultural Income-tax (Amendment) Act, 1950 and
Section 110 of Code of Civil Procedure, 1908 - appeal before High Court
challenging constitutional validity of Orissa Estates Abolition Act, 1952 (Act) -
appellant firstly contended validity of Orissa Agricultural Income-tax
(Amendment) Act, 1950 claiming it to be colourable legislation as its object
was to reduce income of intermediaries in order to pay them less
compensation and as it was based upon provisions of Bihar Land Reform Act -
secondly that in relation to Madras Estates Land (Amendment) Act, 1947 that
improper delegation of legislative power to Provincial Government and
provision were against Article 14 of Constitution - thirdly that building was
treated as part of gross assets of estates thereby reducing compensation
payable to intermediaries and provisions of Act give no compensation in
relation to kudivaram rights - fourthly that manner of payment of
compensation was invalid - Supreme Court decided that bill receiving assent
of President was protected from ground of non-compliance with provisions of
Article 31 (2) - even if deductions stated in Bihar Act were improper it did not
make Legislation invalid unless it was unrelated to facts upon which it was
based - in relation to Madras Act contention were not relevant as provisions of
Orissa Estates Abolition Act, 1952 relating to computation of gross asset on
basis of rent payable was not illegal - no objection in relation to inadequacy
of compensation on rental basis can be raised in view of provision of Article
31 (4) - Section 37 of Act contained provision regarding form and manner in
which compensation for acquired properties was to be paid and thus it came
within provision of Constitution - Supreme Court overruled all contentions
raised by appellant.
JUDGMENT
B.K. Mukherjea, J.
1 . The six appeals arise out of as many applications, presented to the High Court of
Orissa, under article 226 of the Constitution, by the properties of certain permanently
settled estates within the State of Orissa, challenging the constitutional validity of the

Bill, it is further pointed out, synchronized with a change in the Ministry of the Orissa
State. The original amended bill was introduced by the then Chief Minister, Mr. H. K.
Mahtab, who was in favor of allowing suitable compensation to expropriated zemindars;
but his successor, who introduced the revised bill, was said to be a champion of the
abolition of zemindary rights with little or no compensation to the proprietors. In these
circumstances, the argument of the learned counsel is that the agricultural income-tax
legislation being really not a taxation statute but a mere device for serving another
collateral purpose constitutes a fraud on the Constitution and as such is invalid, either
in its entirety, or at any rate to the extent that it affects the estate abolition scheme. We
have been referred to a number of decisions on this point where the doctrine of
colourable legislation came up for discussion before courts of law; and stress is laid
primarily upon the pronouncement of the majority of this court in the case of (The State
of Bihar v. Maharaja Kameshwar Singh and Others [1955] S.C.R. 889. which held two
provisions of the Bihar Land Reforms Act, namely, sections 4(b) and 23(f) to be
unconstitutional on the ground, among others, that these provisions constituted a fraud
on the Constitution. The fact that the provisions in the amended Agricultural Income-tax
Act were embodied in a separate statute and not expressly made a part of the Abolition
Act itself should not, it is argued, make any difference in principle. As the question is of
some importance and is likely to be debated in similar cases in future, it would be
necessary to examine the precise scope and meaning of what is known ordinarily as the
doctrine of "colourable legislation".
9. It may be made clear at the outset that the doctrine of colourable legislation does not
involve any question of bona fides or mala fides on the part of the legislature. The
whole doctrine resolves itself into the question of competency of a particular legislature
to enact a particular law. If the legislature is competent to pass a particular law, the
motives which impelled it to act are really irrelevant. On the other hand, if the
legislature lacks competency, the question of motive does not arise at all. Whether a
statute is constitutional or not is thus always a question of power (Vide Cooley's
Constitutional Limitations Vol. I, p. 379.). A distinction, however, exists between a
legislature which is legally important like the British Parliament and the laws
promulgated by which could not be challenged on the ground of incompetency, and a
legislature which enjoys only a limited or a qualified jurisdiction. If the Constitution of a
State distributes the legislative powers amongst different bodies, which have to act
within their respective spheres marked out by specific legislative entries, or if there are
limitations on the legislative authority in the shape of fundamental rights, questions do
arise as to whether the legislature in a particular case has or has not, in respect to the
subject-matter of the statute or in the method of enacting it, transgressed the limits of
its constitutional powers. Such transgression may be patent, manifest or direct, but it
may also be disguised, covert and indirect and it is to this latter class of cases that the
expression "colourable legislation" has been applied in certain judicial pronouncements.
The idea conveyed by the expression is that although apparently a legislature in passing
a statute purported to act within the limits of its powers, yet in substance and in reality
it transgressed these powers, the transgression being veiled by what appears, on proper
examination, to be a mere pretense or disguise. As was said by Duff J. in Attorney-
General for Ontario v. Reciprocal Insurers and Others [1924] A.C. 328.),
"Where the law making authority is of a limited or qualified character it may be
necessary to examine with some strictness the substance of the legislation for
the purpose of determining what is that the legislature is really doing."
10. In other words, it is the substance of the Act that is material and not merely the
form or outward appearance, and if the subject-matter in substance is something which

MANU/SC/0014/1980
Equivalent Citation: AIR1980SC 470, 1980(1)APLJ (SC ) 27, [1982]52C ompC as70(SC ), 1980(1)KarLJ193, (1980)2SC C 360, [1980]2SC R913,
1980(12)UJ379

Civil Appeal No. 1991 of 1979
Appellants: Jolly George Varghese and Ors.
Vs.
Respondent: The Bank of Cochin
R.S. Pathak and V.R. Krishna Iyer, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: M.M. Abdul Khader and K.M.K. Nair, Advs
For Respondents/Defendant: K.M. Iyer and V.J. Francis, Advs.
Case Note:
Civil - arrest - Section 51 and Order 21 Rule 37 of CPC, 1908 - whether
contractual liability under Section 51 read with Order 21 Rule 37 can be
enforced by imprisoning judgment debtor without taking into consideration
his bona fide attempt to discharge debt - simple default to discharge is not
enough - element of bad faith beyond mere indifference to pay in form of
some deliberate disposition must be established - Order of arrest made
without considering attitude of refusal to pay on demand is liable to be set
aside.
JUDGMENT
V.R. Krishna Iyer, J.
1. This litigation has secured special leave from us because it involves a profound issue
of constitutional and international law and offers a challenge to the nascent champions
of human rights in India whose politicised pre-occupation has forsaken the civil debtor
whose personal liberty is imperilled by the judicial process itself, thanks to Section 51
(Proviso) and Order 21, Rule 37, Civil Procedure Code. Here is an appeal by judgment-
debtors- the appellants-whose personal freedom is in peril because a court warrant for
arrest and detention in the civil prison is chasing them for non-payment of an amount
due to a bank-the respondent, which has ripened into a decree and has not yet been
discharged. Is such deprivation of liberty illegal?
2. From the perspective of international law the question posed is whether it is right to
enforce a contractual liability by imprisoning a debtor in the teeth of Article 11 of the
International Covenant on Civil and Political Rights. The Article reads:
No one shall be imprisoned merely on the ground of inability to fulfil a
contractual obligation.

abscond or leave the local limits of the jurisdiction of the Court.
(2) Where appearance is not made in obedience to the notice, the Court shall, if
the decree-holder so requires, issue a warrant for the arrest of the judgment-
debtor.
10. Right at the beginning, we may take up the bearing of Article 11 on the law that is
to be applied by an Indian Court when there is a specific provision in the Civil
Procedure Code, authorising detention for non-payment of a decree debt. The Covenant
bans imprisonment merely for not discharging a decree debt. Unless there be some
other vice or mens rea apart from failure to foot the decree, international law frowns on
holding the debtor's person in civil prison, as hostage by the court. India is now a
signatory to this Covenant and Article 51(c) of the Constitution obligates the State to
"foster respect for international law and treaty obligations in the dealings of organised
peoples with one another". Even so, until the municipal law is changed to accommodate
the Covenant what binds the court is the former, not the latter. A.H. Robertson in
"Human Rights- in National and International Law" rightly points out that international
conventional law must go through the process of transformation into the municipal law
before the international treaty can become an internal law. P. 13
11. From the national point of view the national rules alone count.... With regard to
interpretation, however, it is a principle generally recognised in national legal system
that, in the event of doubt, the national rule is to be interpreted in accordance with the
State's international obligations.
12. The position has been spelt out correctly in a Kerala ruling Xavier v. Canara Bank
Ltd. 1969 K.L.T.927 on the same point. In that case, a judgment-debtor was sought to
be detained under Order 21, Rule 37 C.P.C. although he was seventy and had spent
away on his illness the means he once had to pay off the decree. The observations there
made are apposite and may bear excerption:
The last argument which consumed most of the time of the long arguments of
learned Counsel for the appellant is that the International Covenants on Civil
and Political Rights are part of the law of the land and have to be respected by
the Municipal Courts. Article 11, which I have extracted earlier, grants immunity
from imprisonment to indigent but honest judgment- debtors.
The march of civilization has been a story of progressive subordination of
property rights to personal freedom; and a by-product of this subordination
finds noble expression in the declaration that "No one shall be imprisoned
merely on the ground of inability to fulfil a contractual obligation." This
revolutionary change in the regard for the human person is spanned by the
possible shock that a resuscitated Shylock would suffer if a modern Daniel were
to come to judgment when the former asks the pound of flesh from Antonio's
bosom according to the tenor of the bond, by flatly refusing the mayhem on the
debtor, because the inability of an impecunious obligee shall not imperil his
liberty or person under the new dispensation proclaimed by the Universal
Declaration of Human Rights. Viewed in this progressive perspective we may
examine whether there is any conflict between Section 51 CPC and Article 11 of
the International Covenants quoted above. As already indicated by me, this
latter provision only interdicts imprisonment if that is sought solely on the
ground of inability to fulfil the obligation. Section 51 also declares that if the
debtor has no means to pay he cannot be arrested and detained. If he has and

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