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9/25/2017 Brief case analysis of State of West Bengal v.

Anwar Ali Sarkar

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Brief case analysis of State of West Bengal v.


Anwar Ali Sarkar
INTRODUCTION

State of West Bengal v. Anwar Ali Sarkar [1] is


one of the landmark cases of the judicial
scenario in India. The said case dealt with
West Bengal Special Courts Act, Construction
of the said Act, Article 14 of constitution of India, empowerment of State government of
discretion, Reference to preamble test of equality before law, necessity for speedier trial, and
reasonable ground for discrimination.

State of Bengal appealed in Supreme Court of India to overrule the judgement given by High
Court of Calcutta. The issue raised by the petitioner was constitutional validity of West
Bengal Special Courts Act (X of 1950) which was entitled as “An Act to provide for the
speedier trial of certain offences”. The applicant challenged it on the grounds of Article 14.
Also, section 5(1) of the act was constitutionally challenged as it was submitted that the said
section gives arbitrary power and authority to the state government to refer any ‘case’ or
‘class of cases’ to Special Courts without a reasonable classification. The issue also included
inclusion of any individual ‘case’ besides the ‘class of cases’.

The Supreme court however, dismissed the appeal and held the act bad on the grounds that
the Act do give arbitrary power to the state government and it may happen that they may use
this power being prejudiced or under sway of emotion or in their own interest and hence, the
act does violates equality before law and equal protection of laws.

STATEMENT OF FACTS

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A. Special Courts were introduced in West Bengal 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), for the
speedier trials of some cases which were to be referred to Special Courts by the State
Government.

B. A case, the Special court tried under a notification under section – 5 of the said Act, and
Mr. Anwar Ali and 49 others were tried for various offences alleged to be committed by them
in the course of raiding a factory, known as Jessop Factory, as an armed gang, and were
convicted and sentenced to varying terms of imprisonments.

C. The accused applied in High Court under Article 226[2] of Constitution of India 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 as section – 5 of the said act is
unconstitutional and void under Article 13(2)[3] of constitution of India, as it denied to the
respondent, equal protection of laws enjoined by Article 14[4] of constitution of India.

D. 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 people
according to law. Hence the appeal.

COURT’S DECISION

The Supreme Court held that Section 5(1) of the West Bengal Special Courts Act
contravened Article 14 and was void since it conferred arbitrary power on the Government to
classify offences or cases at its pleasure and the Act didn’t lay down any policy or guideline
for the exercise of discretion to classify cases or offences at its pleasure and the act didn’t
lay down any policy or guidelines for the exercise of discretion to classify cases or offences.
The procedure laid down by the Act for the trial by the special courts varied substantially
from the procedure laid down for the trial of offences generally by the criminal procedure
court.

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The differentia which is the basis of classification and the object of the Act are two distinct
things. What is necessary is that there must be a nexus between the basis of classification
and the object of the Act which makes the classification. It is only when there is no
reasonable basis for a classification that legislation making such classification may be
declared discriminatory. Thus, legislature may fix the age at which persons shall be deemed
contempt to contract between themselves but no one will claim that competency. No contract
can be made to depend upon the stature or colour of the hair. Such a classification will be
arbitrary.

Law doesn’t include administrative directions or instructions issued by the government for the
guidance of its officers.

There can be no discrimination both in substantive as well as procedural law.

RATIO DECIDENDI AND OBITER DICTA

“… When an act gives power which may and can offend against a provision or provisions of
the Constitution, such an act is ultra vires though it could be administered so as not to offend
against the Constitution”

“Reasonable Classification” was the test applied by Harries C.J, and it was held that,
although the need for a speedier trial than what is possible under the procedure prescribed
by the Code of Criminal Procedure might form the basis of a reasonable classification, but as
it vest in the State government an absolute and arbitrary power to refer to special courts for
trial of “any cases, which must include an individual case, “whether or not the duration of
such case is likely to be long”, and hence was regarded violative of Article 14 of constitution.

Das Gupta J., supported the ruling of Harries C.J on the grounds that though the preamble
clearly states the main object of the act, but however, general expressions used in the
language of provisions of the act would impute to the legislature an intention to confer an
arbitrary power of reference which would be inconsistent not only with the constitutional
prohibition against discrimination, which the legislature must be taken to have been aware of

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when it deliberately re–enacted the provisions of the old Ordinance. Also, the discretion
vested in State Government in selecting cases for reference to a special court may not be
subject to judicial review and may, in that sense, be absolute.

Article 14 secures all persons within the territories of India against arbitrary law as well as
arbitrary actions of law. This is further made clear by defining “law” in Article 13 as including,
among other things, any “order” or “notification”, so that even executive order or notifications
must not infringe Article 14. Also, reasonableness of classification comes into question only
in those cases where special legislation affecting a class of persons is challenged as
discriminatory. Nor could it arise when executive orders or notifications directed against
individual citizens are assailed as discriminatory.

Fazl Ali J. stated – The framers of the act have merely copied the provisions of Ordinance of
1949 which was promulgated when there was no provision similar to article 14 of the present
Constitution. Moreover, the framers of the Criminal Procedure code also were alive to the
desirability of having a speedy trial in certain classes of cases, and with this end in view they
made four different sets of provisions for the trial of four classes of cases, these being
provisions relating to summary trials, trial of summon cases, trial of warrant cases and trial of
cases triable by a court of session. Broadly speaking, their classification of offences for the
purpose of applying these different sets of provisions was according to offences, though in
classifying the offences fit for summary trial the experience and power of the trying
magistrate was also taken into consideration.

But, the impugned act has completely ignored the principle of classification followed in the
Code and it proceeds to lay down a new procedure without making any attempt to
particularize or classify the offences or cases to which it is to apply. Indeed sect – 5 of the
act, which is the most vital section, badly states that the “Special Court sball try such
offences or classes of offences, as the state government may, by general or special order in
writing direct”. And as already stated, the act is a verbatim copy of the earlier Ordinance
which was framed before the Constitution came into force, and article 14 could not have
been before the minds of those who framed it because Article 14 was not in existence.

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Mahajan J stated – It is no classification at all in the real sense of term as it is not based on
any characteristic which are peculiar to persons or to cases which are to be subject to
special procedure prescribed by the act. The mere fact of classification is sufficient to relieve
the statute from the reach of the equality clause of Article 14.

Persons concerned in offences or cases needing so called speedier trial are entitled to
inquire ‘Why are they being made the subject of a law which has short circuited the normal
procedure of trial; Why has it grouped them in that category and why has the law deprived
them of the protection and safeguards which are allowed in the case of accused right under
the procedure mentioned in the Criminal Procedure Code; What makes the legislature or the
executive to think that the cases need speedier trials then those of others like them.

The act has left this matter entirely to the unregulated discretion of the provincial
government.

Das J. – There is no dispute that the question of validity of section 5 of the impugned act has
to be determined in the light of provisions in Constitution of India. A comparison between the
language of those sections of the Code of Criminal Procedure and of the impugned act will
clearly show that the Act has gone beyond the provisions of the Code and the Act cannot by
any means be said to be an innocuous substitute for the procedure prescribed by the Code.
The far – reaching effect of the elimination of committal proceedings cannot possibly be

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ignored merely by stating that warrant procedure under the code in a way also involves a
committal by the trial Magistrate, namely to himself, for the warrant procedure minimises the
chances of the prosecution being thrown out at the preliminary stage.

The object of the Act as recited in the preamble of the Act cannot be the basis of
classification and this section 5(1) gives an uncontrolled and unguided power of classification
which may well be exercised by the state government capriciously or “with an evil eye and an
unequal band”

Section-6 of the Act which lays down that the Special Courts may take cognizance of an
offence without the accused being committed to it for trial, and that in trying the accused it
has to follow the procedure for trial of warrant cases by Magistrate. In warrant case, the
entire proceeding is before the same Magistrate and the before the same officer who frames
the charge hears the case finally. In a Sessions case, on the other hand, the trial is actually
before another Judge, who was not connected with the earlier proceeding. It was also clear
the committal before the Sessions Judge actually hears the case; there is generally a large
interval of time which gives the accused ample opportunity of preparing his defence. He
cannot have the same advantage in a warrant case even if adjournment is granted by the
Magistrate after the charge is framed. This is one of the matters upon which the normal
procedure has been departed from in the Special Courts Act.

It is stated that it is only when speedier trial is necessary that the discretion should be
exercised. The word used here is “speedier” which is a comparative term and as there may
be degrees of speediness, the word undoubtedly introduces an uncertain and variable
element.

“It matters not how lofty and laudable the motives are. The question with which I charge
myself is, can fair minded, reasonable, unbiased and resolute men, who are not swayed by
emotion or prejudice, regard this with equanimity and call it reasonable, just and fair, regard it
as that equal treatment and protection in the defence of liberties which is expected of a

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sovereign democratic republic in the conditions which obtain in India today? I have but one
answer to that. On that short and simple ground I would decide this case and hold the Act
bad”.

CONCLUSIONS AND SUGGESTIONS

The case of State of West Bengal v. Anwar Ali Sarkar was decided by Hon’ble Supreme
Court of India, in the favour of Anwar Ali Sarkar, deciding the West Bengal Special Courts
Act void, on the grounds that the act was violating the Article 14 of Constitution of India as
the Act gave arbitrary, uncontrolled, unguided power to the State Government which could
be used unreasonably and biasedly, and also restricted equal protection of laws. The Act
failed to provide a reasonable classification between “cases”, “classes of cases”, offences”
and “classes of offences”.

Also, it was held that classification of cases as already done in the Code of Criminal
Procedure was reasonable and such reasonableness didn’t meet the classification as done
in the impugned Act. Moreover, the Code already provided the classification of cases which
are to be provided with speedy trial and no adequate need was seen of the Act.

The State Government had revised the Act which was enacted in 1949 and exact provisions
were revised in the Act. This was seen as the State Government deliberately ignored the
holding of arbitrary power of reference.

Suggestions

The West Bengal Special Courts Act though gave an arbitrary power to the State
Government to refer cases to special court, but it didn’t reduce the judicial power or authority
of judges. So, even if the cases had arbitrarily referred to the Special Courts, the justice
would be the same as the judiciary was not taken under the control of State Government.

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Fault on the behalf of State Government was also seen as they without any modification in
the earlier ordinance, re-enacted the Act, without taking into consideration that Ordinance
was passed prior 1950 and therefore could be lacking many provisions of Constitution of
India.

The case had many aspects and The Hon’ble Supreme Court left no doubt over the scope of
Article 14 in dealt case. Not with a complete, but with a majority, and reasons for the
conclusions, greatly observed the case quashing the appeal of State of West Bengal.

[1] AIR 1952 SC 75

2 Article 226. Power of High Courts to issue certain writs.-

(1) Notwithstanding anything in article 32 every High Court shall have power, throughout the
territories in relation to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including [writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose.]

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in
relation to the territories within which the cause of action, wholly or in part, arises for the
exercise of such power, notwithstanding that the seat of such Government or authority or the
residence of such person is not within those territories.

(3) Where any party against whom an interim order, whether by way of injunction or stay or in
any other manner, is made on, or in any proceedings relating to, a petition under clause (1),
without-

(a) furnishing to such party copies of such petition and all documents in support of the plea
for such interim order; and
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(b) giving such party an opportunity of being heard,

makes an application to the High Court for the vacation of such order and furnishes a copy of
such application to the party in whose favour such order has been made or the counsel of
such party, the High Court shall dispose of the application within a period of two weeks from
the date on which it is received or from the date on which the copy of such application is so
furnished, whichever is later, or where the High Court is closed on the last day of that period,
before the expiry of the next day afterwards on which the High Court is open; and if the
application is not so disposed of, the interim order shall, on the expiry of that period, or, as
the case may be, the expiry of the said next day, stand vacated.]

(4)] The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme Court by clause (2) of article 32.

[3] The State shall not make any law which takes away or abridges the rights conferred by
this Part and any law made in contravention of this clause shall, to the extent of the
contravention, be void.

[4] The State shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India.

Vaibhav Sharma
on 19 December 2016

Published in Constitutional Law Other Articles by - Vaibhav Sharma


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dr g balakrishnan  31 December 2016


problem today is interpretation if not done properly and not accepted by a court competent
, naturally litigation surges.

dr g balakrishnan  31 December 2016


Any one may differ but law of the land is obviously controlled by the Art.14 and other
relevant articles of the mother Constitution of India, which is like a Magna carta of india

dr g balakrishnan  31 December 2016


In the similar way any PIL on 'demonetization of Modi government can surface if rightly
sought under Art. 32 or 226 r/w 227, r/w Art 14 r/w Art 13, as there is a failure of relevant
public Notice with a period of 60 days (as citizens need to serve 60 days Notice to
government u/s 80 of CPC 1908, to public, as 'public Notice, was not served. After all
'demonetization definitely affects every loyal citizen in the country as much as 'hoarders of
currency' ; even hoarders of currency also need the similar sec 80 Notice, under Art 14,
even though they may be 'accused', after all 'accuses' too till convicted is treated under
law as 'innocent person till he or she is convicted; Obviously the govt of india failed to
comply whatever PM Modi may say; it is the responsibility of administration under
governance principle govt is not exempted except under 'Emergency' if proclaimed by the
honorable president of india, under an appropriate article say Art.265 r/w Art 352. so
government of india obviously failed its duties to follow rule of law under very Art 51A of
the Part IVA of the Constitution of india, as the Govt of india behaved the way WB govt did
in its spl courts Act under sec 5(1).

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