Coimbatore Blast Case Judgement on Internet Curbs

Abdul Nazar Madani vs State Of Tamil Nadu & Anr.
on 5 May, 2000
was to address election meeting at RS Puram, Coimbatore City, the whole of the city and its suburbs
were hit by a series of 12 powerful bomb blasts killing 47 persons and injuring 218 persons apart
from causing extensive damage to the properties owned primarily by a particular section of the
society. The high intensity bombs/Improvised Explosive Devices (IEDs) exploded all over the city
and its suburbs including near the venue of the public meeting. The bomb blasts were targeted at
some specified congregations and their establishments. Shri L.K. Advani was planned to be targeted
by Suicide Squad members armed with "instantaneous-type bombs" tied to their waists and
"throw-type bombs," which, however, could not materialise since neither the members of the suicide
squad charged with the task could penetrate the police cordon and reach near the public meeting
place, nor Shri Advani was available at the targeted place at the scheduled time due to delay of his
flight. The blasts had been planned and executed by the muslim fundamentalists organisation
named "Al-Umma" headed by S.A. Basha, co-accused No. 1 in the case allegedly as a brutal
answer/retaliation to the killing of 18 muslims in communal riots and police firing and extensive
damages to the muslim properties following the stabbing to death of a Traffic Police Constable
Selvaraj at Ukkadam, Coimbatore on 29-11-1997. There were some other bomb blasts resulting in
total the death of 58 persons besides Injuring 250 persons. Private and public properties to the tune
of Rs. 4.37 crores is also stated to have been damaged. The petitioner Madani has admitted to be the
founder leader of Islamic Seva Sangh and presently the leader of Peoples Democratic party. He was
arrested at Kozhikode on 31-3-1998 in connection with Kozhikode Kasba PS Cr. No. 103/92 Under
Section 153A and B, I.P.C. and in the case in Cr. No. 62/98 under Section 120(B) 212, I.P.C. and
under Section 3 read with Section 25(1)(a) Arms Act, 1959 and was remanded to judicial custody
and lodged in Central Prison, Cannanore, Kerala State. His involvement in the Coimbatore Series
Bomb Blast case came to light from the alleged confession statement made by accused Tajudeen
alias Abu Mujahith, Accused No. 3 on 26th March, 1988. Other accused persons were arrested from
different places on different dates.
3. Regarding allegations of the petitioners which have been made basis for seeking transfer, the
respondents have submitted that it was not correct to state that there existed feelings in Tamil Nadu
in general or in Chennai and Coimbature in particular, that no patriotic lawyer would appear and
plead for any of the accused persons in the Bomb Blast cases. The submission of the petitioners is
alleged to be illusory. Advocates from Chennai, Vijayawada and Coimbatore are stated to have
already appeared for the accused in the courts at Coimbature and also before the High Court of
Judicature at Chennai. A list of such advocates has been annexed with the counter affidavit as
Annexure A. Regarding the existence of an alleged surcharged communal atmosphere, it is
submitted that there is presently no communal tension in Tamil Nadu as communal harmony is
maintained in the State. The situation which was created in the aftermath of series bomb blasts in
February, 1998 has since been completely defused and normalized due to the strong measures taken
by the fair and firm investigation of the case and by the law and order machinery. The atmosphere
in the State is stated to be peaceful and the trial is assured to be conducted peacefully and smoothly.
4. The submission of the petitioners that they will not get any assistance of lawyers of their choice
due to rivalry of religious fundamentalists is false and concocted, deliberately put as a ground to
stall and delay the progress of the case. The proposed transfer would cause inconvenience not only
to the prosecution but also other co-accused persons. Most of the witnesses are in Tamil Nadu and
Indian Kanoon - http://indiankanoon.org/doc/1438663/ 2

Anant Prasad Lakshminivas ... vs State Of Andhra Pradesh And ... on 2 November, 1962
legislatures. Under s. 119 of the States Reorganisation Act, all laws in force are to continue till
repealed or altered by the appropriate legislature. It was therefore held that different (1) [1954]
S.C.R. 996.
(2) [1962] Supp. 2 S.C.R. 257, though parallel laws in different parts of Madhya Pradesh could be
sustained on the ground that the differentiation arose from historical reasons, and a geographical
classification based on historical reasons could be upheld as being not contrary to the equal
protection clause in Art.
14. We think' the ratio' of Bhaiyalal Shukla's case(1) applies in the present case and not the ratio of
Rao Manohaar Singhji's case(2). In the latter case, the Jagirdars of a particular area became singled
out after the creation of the State of Rajasthan and management of their properties was taken away
from them while the jagirdars of the rest of Rajasthan retained the management of their pro-
perties. It was in those circumstances when there was a preexisting law in one part of Rajasthan to
which there was nothing corresponding in the rest of Rajasthan that this Court held that the patent
discrimination arising in that case was violative of Art. 14. In Bhaiyalal Shukla's case(1) both parts
had the same kind of law relating to sales-,tax, though there were-some differences in their
provisions. It was in these circumstances that parallel, though somewhat different, laws in two parts
of the same State were upheld on the ground of "geographical classification based on historical
reasons." The present case is similar to Bhaiyalal Shukla's case(1), for in both parts of Andhra
Pradesh there are laws with respect to public trusts of religious nature, though there may be some
differences in detail in their provisions. Therefore, the, attack on the basis of violation of Art. 14
must be repelled in the present case on the authority of Bhaiyalal Shukla's case(1). Re. (4).
This brings us to the question whether the Regulations are violative of Art. 19(1)(f) of the
Constitution. We do not propose in the present case to examine the numerous Rules that have been
framed under the Regulations and shall confine ourselves to (1) [1962] Supp. 2 S.C.R. 257.
(2) [1954] S.C.R. 996.
the vires of that part of the Regulations which is concerned with registration of endowments, and
some of the Rules in that behalf as the appeal is only concerned with registration. We have been told
that some of the rules have been the target of attack in the former High Court of Hyderabad, and
some of them have been struck down by that High Court (see Narayan Pershad v. State of
Hyderabad (1)). The sections with respect to registration are s. 3 to s. II. Section 3 lays down that a
book of endowments will be prepared containing all the endowments which are in force on the date
of the Regulations or which will be brought into force in future. Section 4(a) lays down that it will be
the duty of every trustee or endowed of an endowment to inform in writing with regard to an
endowment the Director of Endowments concerned with respect to movable and immovable
property of the endowment, and if there is a deed of endowment, submit the same or a certified copy
thereof. Section 4(b) lays down that. if any trustee neglects to discharge his duties referred to in s. 4
(a), he can be deprived of the benefit or consideration of the endowment wholly or partly which he
possesses under the endowment. Section 5 lays down that any person may inform the Director of
Endowments with regard to an endowment which has not been entered in the book of endowments..

Anuradha Bhasin vs Union Of India on 10 January, 2020
of trade and commerce through the medium of the internet is also constitutionally protected under
Article 19(1)(g), subject to the restrictions provided under Article 19(6).
28. None of the counsels have argued for declaring the right to access the internet as a fundamental
right and therefore we are not expressing any view on the same. We are confining ourselves to
declaring that the right to freedom of speech and expression under Article 19(1)(a), and the right to
carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally
protected.
29. Having explained the nature of fundamental rights and the utility of internet under Article 19 of
the Constitution, we need to concern ourselves with respect to limitations provided under the
Constitution on these rights. With respect to the freedom of speech and expression, restrictions are
provided under Article 19(2) of the Constitution, which reads as under:
(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub−clause
in the interests of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency or morality or in relation
to contempt of court, defamation or incitement to an offence.
30. The right provided under Article 19(1) has certain exceptions, which empowers the State to
impose reasonable restrictions in appropriate cases. The ingredients of Article 19(2) of the
Constitution are that:
a. The action must be sanctioned by law;
b. The proposed action must be a reasonable restriction;
c. Such restriction must be in furtherance of interests of the sovereignty and integrity

of India, the security of the State, friendly relations with foreign States, public order,
decency or morality or in relation to contempt of court, defamation or incitement to
an offence.
31. At the outset, the imposition of restriction is qualified by the term reasonable and is limited to
situations such as interests of the sovereignty, integrity, security, friendly relations with the foreign
States, public order, decency or morality or contempt of Court, defamation or incitement to an
offence. Reasonability of a restriction is used in a qualitative, quantitative and relative sense.
32. It has been argued by the counsel for the Petitioners that the restrictions under Article 19 of the
Constitution cannot mean complete prohibition. In this context we may note that the aforesaid
contention cannot be sustained in light of a number of judgments of this Court wherein the
restriction has also been held to include complete prohibition in appropriate cases. [Madhya Bharat
Cotton Association Ltd. v. Union of India, AIR 1954 SC 634, Narendra Kumar v. Union of India,

Arun Ghosh vs State Of West Bengal on 2 December, 1969
from acting in a manner prejudicial to public order was not justified. In support of this submission
reference is made to three cases of this Court: Dr. Ram Manohar Lohia v. State of Bihar ; Pushkar
Mukherjee and Ors. v. State of West Bengal and Shyamal Chakraborty v. The Commissioner of
Police, Calcuta and Anr. . In Dr. Ram Manohar Lohia's case this Court pointed out the difference
between maintenance of law and order and its disturbance and the maintenance of public order and
its disturbance. Public order was said to embrace more of the community than law and order. Public
order is the even tempo of the life of the community taking the country as a whole or even a
specified locality. Disturbance of public order is to be distinguished, from acts directed against
individuals which do not disturb the society to the extent of causing a general disturbance of public
tranquillity. It is the degree of disturbance and its effect upon the life of the community in a locality
which determines whether the disturbance amounts only to a breach of law and order. Take for
instance, a man stabs another. People may be shocked and even disturbed, but the life of the
community keeps moving at an even tempo, however much one may dislike the act. Take another
case of a town where there is communal tension. A man stabs a member of the other community.
This is an act of a very different sort. Its implications are deeper and it affects the even tempo of life
and public order is jeopardized because the repercussions of the act embrace large Sections of the
community and incite them to make further breaches of the law and order and to subvert the public
order. An act by itself is not determinant of its own gravity. In its quality it may not differ from
another but in its potentiality it may be very different. Take the case of assault on girls. A guest at a
hotel may kiss or make advances to half a dozen chamber maids. He may annoy them and also the
management but he does not cause disturbance of public order. He may even have a fracas with the
friends of one of the girls but even then it would be a case of breach of law and order only. Take
another case of a man who molests women in lonely places. As a result of his activities girls going to
colleges and schools are in constant danger and fear. Women going for their ordinary business are
afraid of being waylaid and assaulted. The activity of this man in its essential quality is not different
from the act of the other man but in its potentiality and in its affect upon the public tranquillity
there is a vast difference. The act of the man who molests the girls in lonely places causes a
disturbance in the even tempo of living which is the first requirement of public order. He disturbs
the society and the community. His act makes all the women apprehensive of their honour and he
can be said to be causing disturbance of public order and not merely committing individual actions
which may be taken note of by the criminal prosecution agencies. It means therefore that the
question whether a man has only committed a breach of law and order or has acted in a manner
likely to cause a disturbance of the public order is a question of degree and the extent of the reach of
the act upon the society. The French distinguish law and order and public order by designating the
latter as order publique. The latter expression has been recognised as meaning something more than
ordinary maintenance of law and order. Justice Ramaswami in Writ Petition No. 179 of 1968 drew a
line of demarcation between the serious and aggravated forms of breaches of public order which
affect the community or endanger the public interest at large from minor breaches of peace which
do not affect the public at large. He drew an analogy between public and private crimes. The analogy
is useful but not to be pushed too far. A large number of acts directed against persons or individuals
may total up into a breach of public order. In Dr. Ram Manohar Lohia's(1) case examples were given
by Sarkar, and Hidayatullah, JJ. They show how similar acts in different contexts affect differently
law and order on the one hand and public order on the other. It is always a question of degree of the
harm and its effect upon the community. The question to ask is: Does it lead to disturbance of the

Babu Rao Patel vs State Of Delhi on 21 February, 1980
attempting to promote feelings of enmity, hatred or ill-will between different religious groups on
grounds or religion. The convictions under section 153-A were, therefore, wrong, he submitted.
Section 153-A(1) (a) provides, "whoever by words, either spoken or written, or by signs or by visible
representations or otherwise, promotes, or attempts to promote, on grounds of religion, race, place
of birth, residence, language, caste or community or any other ground whatsoever, disharmony or
feelings of enmity, hatred, or ill-will between different religious, racial language or regional groups
or castes or communities shall be punished with imprisonment which may extend to three years, or
with fine, or with both". It is seen that s. 153A(1). (a) is not confined to the promotion of feelings of
enmity etc. on grounds of religion only as argued by Shri Sen but takes in promotion of such feelings
on other grounds as well such as race, place of birth, residence, language, caste or community. In the
present case we have to consider the question whether the two articles promote on grounds of
religion or community, feelings of enmity, hatred or ill- will between different religious groups or
communities.
The first of the articles "A tale of two communalisms" does begin as a sort of political thesis.
According to the author "communalism is an instrument of political minorities". His thesis is that
militant minorities thrive on communalism. If he wanted to develop his thesis on those lines no-one
could object. But, he referred to Muslims generally as "a basically violent race" and went on to say
"communalism is, therefore, an instrument of a minority with a racial tradition of rape, loot,
violence and murder as is found in India with a Muslim population of 12.7%. In Pakistan the Hindu
minority is 6.6% but because its racial tradition is different it does not indulge in communal riots....
Three essentials are necessary for violent communalism. The community must be a minority, the
minority must be sizable and the minority must have a tradition of murder and violence... We find
these three essentials in the Muslim community of India". He then stated in the article that in
Pakistan and particularly in East Bengal peace loving and terror struck Hindu minority was being
eliminated by periodical killing and conversions on a mass scale. "Young Hindu males were
compelled to undergo vasectomy operations, young and pretty Hindu girls became the victims of
Islamic beds of lust". It is then said "It is not in the nature and religion of the Hindu of India to be
intolerant and blood-thirsty like the followers of Islam". According to him the only answer to the
problem of communalism was to declare India a Hindu State. In our opinion there cannot be the
slightest doubt that the article is not even thinly veiled as a political thesis; it is an undisguised
attempt to promote feelings of enmity, hatred and ill-will between the Hindu and the Muslim
communities. It is designed to fan the sparks of ill-will and hatred on ground of community. The
reference to the alleged Muslim tradition of rape, loot, violence and murder and the alleged terror
struck into the hearts of Hindu minority in a neighbouring country by periodical killings, in the
context of his thesis that communalism is the instrument of a militant minority can lead to no other
inference.
The second article 'Lingering disgrace of history' is said to be a protest against the naming of Delhi
roads after the Moghul emperors who according to the author were lustful perverts, rapists and
murderers. According to the learned counsel the attack was directed against the Moghul rulers and
not against the Muslims of India. It was also said that all the statements in the article about the lusts
and perversions of the Moghul rulers were plain historical truths. On a full reading of the article it

Bharat Barrel & Drum Mfg. Co. Ltd. & ... vs Employees State Insurance ... on 23 September, 1971
wide enough to cover a rule of limitation, that cannot authorize the Government to frame a rule
regulating limitation for the recovery of contributions...............
because according to- it the validity of the rule does not necessarily depend on the ascertainment of
"whether it confers rights or merely regulates procedure, but by determining whether it is in
conformity with the powers conferred by the statute and whether it is consistent with the provisions
of the statute". These decisions also held that the scheme of the Act was such that the Legislature did
not and could not have intended to confer any power upon the State Government to make rules
prescribing a period of limitation for application under Sec. 75(2). The question which directly
confronts us is whether the power to prescribe periods of limitation for initiating proceedings before
the Court is a part of, and is included, in the power to prescribe "the procedure to be followed in
proceedings before such Courts". The answer to this question would involve the determination of
the further question whether the law relating to limitation is procedural or substantive or partly
procedural and partly substantive. If it is procedural law does it make any difference whether it
relates to the time of filing application for initiation of proceedings before the Court or whether it
relates to interlocutory applications or other statements filed before it after the initiation of such
proceedings,. The contention on behalf of the Appellant is that the law relating to limitation is
merely procedural, as such it makes (1) AIR 1964 (Vol. 51) Madhya Pradesh 75.
(2) AIR 1964 (Vol. 51) Madras 376.
(3) AIR 1965 (Vol. 52) Allahabad 410.
(4) AIR 1967 (Vol. 54) Punjab 166 (FB).
(5) AIR 1968 (Vol. 55) Punjab 56 (SB).
(6) 1970 Labour & Industrial cases 921.
no difference whether it relates to the time of filing an application or it deals with the time for filing
interlocutory applications or other statements. There is also it is submitted no indication in the
scheme of the Act that it is otherwise or that there is any impediment for the Government to
prescribe under the rule making authority the period of limitation for applications under Sec. 75 (2).
Before we consider the scheme of the Act it may be necessary to examine the scope and ambit of the
terms 'procedure' as used in Sec. 96(1)(b).
The topic of procedure has been the subject of academic debate and scrutiny as well as of judicial
decisions over a long period but in spite of it, it has defied the formulation of a logical test or
definition which enables us, to determine and demarcate the bounds where procedural law ends and
substantive law begins, or in other words it hardly facilitates us in distinguishing in a given case
whether the subject of controversy concerns procedural law or substantive law. The reason for this
appears to be obvious, because substantive law deals with right and is fundamental while procedure
is concerned with legal process involving actions and remedies, which Salmond defines "as that
branch of law which governs the process of litigation", or to put it in another way, substantive law is

Bharat Barrel & Drum Mfg. Co. Ltd. & ... vs Employees State Insurance ... on 23 September, 1971
that which we enforce while procedure deals with rules by which we enforce it. We are tempted in
this regard to cite a picturesque aphorism of Therman Arnold when he says "Substantive law is
canonised procedure. Procedure is unfrocked substantive law(1)".
The manner of this approach may be open to the criticism of having over simplified the distinction,
but nonetheless this will ,enable us to grasp the essential requisites of each of the concepts which at
any rate "has been found to be a workable concept to point out the real and valid difference between
the rules in which stability is of prime importance and those in which flexibility is a more important
value (2 ) ". Keeping these basic assumptions in view it will be appropriate to examine whether the
topic of limitation belongs to the Branch of procedural law or is outside it. if it is a part of the
procedure whether the entire topic is covered by it or only a part of it and if so what part of it and the
tests for ascertaining them. The law of limitation appertains to remedies because the rule is that
claims in respect of rights cannot be entertained if not commenced within the time prescribed by the
statute in respect of that right. Apart from Legislative action prescribing the time, there is no period
of limitation recognised under the general law and therefore any time fixed by the statute is neces-
(1) XLV Harvard Law Journal-617 & 645.
(2) American Juris-prudence-Vol. 51 (Second Edn.) 605.
sarily to be arbitrary. A, statute prescribing limitation however does not confer a right of action nor
speaking generally does it confer on a person a right to relief which has been barred by eflux of time
prescribed by the law. The necessity for enacting periods of limitation is to ensure that actions are
commenced within a particular period, firstly to assure the availability of evidence documentary as
well as oral to enable the defendant to contest the claim against him; secondly to give effect to the
principle that law does not assist a person who is inactive and sleeps over his lights by allowing them
when challenged or disputed to remain dormant, without asserting them in a court of law. The,
principle which forms the basis of this rule is expressed in the maxim vigilantibus, non
dormientibus, jura subveniunt (the laws give help to those who are watchful and not to those who
sleep). Therefore the, object of the statutes of limitations is to compel a person to exercise his right
to action within a reasonable time as also to dis- courage and suppress stale, fake or fraudulent
claims. While this is so there are two aspects of the statutes of limitation the one concerns the
extinguishment of the right if a claim or action is not commenced with a particular time and the
other merely bars the claim without affecting the right which either remains merely as a moral
obligation or can be availed of to furnish the consideration for a fresh enforceable obligation. Where
a statute prescribing the limitation extinguishes the right, it affects substantive rights while that
which purely pertains to the commencement of action without touching the right is said to be
procedural. According to Salmond the law of procedure is that branch of the law of actions which
governs the process of litigation, both Civil and Criminal. "All the residue" he says "is substantive
law, and relates not to the process of litigation but to its purposes and sub-, ject matter". It may be
stated that much water has flown under the bridges since the original English theory justifying a
statute of limitation on the ground that a debt long overdue was presumed to have been paid and
discharged or that such statutes are merely procedural. Historically there was a period when
substantive law was inextricably intermixed with procedure; at a later period procedural law seems

Centre For Policy Research vs Brahma Chellaney & Ors. on 12 March, 2010
fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be
confined only to statutory authorities and instrumentalities of the State. They may cover any other
person or body performing public duty. The form of the body concerned is not very much relevant.
What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light
of the positive obligation owed by the person or authority to
_____________________________________________________________________________________________
the affected party. No matter by what means the duty is imposed, if a positive obligation exists
mandamus cannot be denied. It may be pointed out that mandamus cannot be denied on the ground
that the duty to be enforced is not imposed by the statute. The judicial control over the fast
expanding maze of bodies affecting the rights of the people should not be put into watertight
compartment. It should remain flexible to meet the requirements of variable circumstances.
Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is
found. Technicalities should not come in the way of granting that relief under Article 226. We also
quote paragraphs 20 and 21 of the judgment:
"20. In Praga Tools Corporation v. Shri C.A Imanual and Ors., (1969) 3 SCR 773 : (AIR 1969
Supreme Court 1306) , this Court said that a mandamus can issue against a person or body to carry
out the duties placed on them by the Statutes even though they are not public officials or statutory
body. It was observed (at 778) ; "It is however not necessary that the person or the authority on
whom the statutory duty is imposed need be a public official or an official body, A mandamus can
issue, for instance, to an official or a society to compel him to carry out the terms of the statute
under or by which the society is constituted or governed and also to companies or corporations to
carry out duties placed on them by the statutes authorising their undertakings. A mandamus would
also lie against a company constituted by a statute for the purpose of fulfilling public
responsibilities. (See Halsbury's Laws of England (3rd Ed. Vol. II p. 52 and onwards)."
21. Here again we may point out that mandamus cannot be denied on the ground that the duty to be
enforced is not imposed by the statute Commenting on the development of this law, Professor De
Smith states : "To be enforceable by mandamus a public duty does not necessarily have to be one
imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law,
custom or even contract." (Judicial Review of administrative Act 4th Ed. p.540). We share this view.
The judicial control over the fast expanding maze of bodies affecting the rights of the people should
not be put into water-tight compartment. It should remain flexible to meet the requirements of
variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach
injustice whenever it is found'. Technicalities should not come in the way of granting that relief
under Article 226. We, therefore, reject the contention urged for the appellants on the
maintainability of the writ petition."
26. Thereafter a reference was made to the pronouncement of the Supreme Court in various matters
as discussed aforesaid.
27. In Saroj Devi (Widow) Vs. Union of India & Ors. 156 (2009) DLT 429 (DB) this very Bench had
a n o c c a s i o n t o d e a l w i t h t h e q u e s t i o n
_____________________________________________________________________________________________

Commissioners For The Port Of ... vs Asit Ranjan Majumder And Ors. on 2 May, 1961
rights, when no question of violation of Article 311 arises. This contention of the appellants must
also be rejected."
19. This decision is an authority for the proposition that no one has a fundamental right to be
employed as a Government servant. It follows that no claim could be made on that basis under
Article 19(1)(g), for a right to carry on any occupation. Government service as an occupation is a
particular occupation and apparently Government service is not a kind of occupation within the
meaning of Article 19(1)(g) which gives a fundamental right which was described as a right inherent
in all and which can be carried on by all.
20. The next case is of , which had already been distinguished by Mahajan, C. J. in the case quoted
above. There the Bye-law of the municipal board provides that no person shall establish any new
market or place for wholesale transactions without obtaining the previous permission of the Board,
and no person shall sell or expose for sale any vegetable at any place other than fixed by the board
for the purpose. Another Bye-law permitted the grant of a monopoly to a contractor to deal in
wholesale transactions at the place fixed as :a market. The Supreme Court held there that the
prohibition became absolute in the absence of provision authorising the issue of a licence, and,
inasmuch as the municipal board had, further, put it out of its power to grant a licence to the
petitioner by granting a monopoly, the restrictions imposed were not reasonable within the meaning
of Article 19(6). This case does not help the petitioner for many reasons. First, because the right to
sell vegetables is a kind of business inherent in all and therefore, was well within the meaning of
fundamental right and the claim there was to sell vegetable in one'e own premises or a premises
rented by him. The case here is very different. Here the petitioner is claiming to carry on business of
stevedoring in the land, wharves, quays, jetties and area owned by the Commissioners for the Port of
Calcutta.
21. The case on which most reliance was placed by the petitioner is Saghir Ahmed v. State of U. P. .
There Mukherjea J. points out at page 719 of the Report (SCR) : (at p. 735 of AIR):
"The legislation in the present case has excluded all private bus owners from the field of transport
business. Prima facie it is an infraction of the provision of Article 19(1)(g) of the Constitution and
the question for our consideration therefore is whether this invasion by the legislature of the
fundamental right can be justified under the provision of Clause (6) of Article 19 on the ground that
it imposes reasonable restrictions on the exercise of the right in the interests of the general public."
22. Two points have distinguished that authority from the present appeal before us. We do not read
this decision to be an authority for the proposition that a citizen has a fundamental right to carry on
business at a particular place. There the highway was regarded as public property and as dedicated
to the State for public use. Dedication is always implied in the concept of a highway. Highway itself
imports the notion that it is open to traffic and transport to all, and that is why it is called a highway.
These features are absent in the present appeal before us. Here there is no question of dedication of
a highway or a road to carry on business of transport in a dedicated highway. Here the question is
whether the Commissioners for the Port of Calcutta can or cannot permit by a licence or otherwise
to regelate the type of persons whom they should allow to work in their own property owned,

Confederation Of Ex-Servicemen ... vs Union Of India & Ors on 22 August, 2006
supplied) The above observations have been quoted with approval by this Court in Kharak Singh v.
State of U.P. (1964) 1 SCR 332 : AIR 1963 SC 1295. A similar view thereafter has also been taken in
several cases, viz., Prithi Pal Singh v. Union of India, (1982) 3 SCC 140 : AIR 1982 SC 1413; A.K. Roy
v. Union of India, (1982) 1 SCC 271 : AIR 1982 SC 710; Olga Tellis v. Bombay Municipal
Corporation, (1985) 3 SCC 545 : AIR 1986 SC 180; State of H.P. v. Umed Ram Sharma, (1986) 2 SCC
68 : AIR 1986 SC 847; Prabhakaran v. State of Tamil Nadu, (1987) 4 SCC 238 : AIR 1987 SC 2117;
A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 : AIR 1988 SC 1531; Vikram Deo Singh v. State of
Bihar, 1988 Supp SCC 734 : AIR 1988 SC 1782; Parmanand Katara v. Union of India, (1989) 4 SCC
286 : AIR 1989 SC 2039; Kishan Pattnayak v. State of Orissa, 1989 Supp (1) SCC 258 : AIR 1989 SC
677; Shantistar Builders v. Narayan, (1990) 1 SCC 520 : AIR 1990 SC 630; Chhetriya Pradushan
Mukti Sangharsh Samiti v. State of U.P., (1990) 4 SCC449 : AIR 1990 SC 2060; Charan Lal Sahu v.
Union of India, (1990) 1 SCC 613 : AIR 1990 SC 1480; Delhi Transport Corporation v. Delhi
Transport Corporation Mazdoor Congress, 1991 Supp (1) SCC 600(735) : AIR 1991 SC 101; Kapila
Hingorani v. State of Bihar, (2003) 6 SCC 1; District Registrar & Collector, Hyderabad v. Canara
Bank, (2005) 1 SCC 496].
The stand of the Union of India, however, is that to provide medical facilities to all defence
personnel in service as well as retired, necessary steps have been taken. So far as ex-servicemen are
concerned, Contributory Scheme of 2002 provides for medical services by charging 'one time
contribution' on the basis of amount of pension received by an employee. The amount ranges from
Rs.1,800 to Rs.18,000 which cannot be said to be excessive, disproportionate or unreasonably high.
The question, therefore, is whether the State can ask the retired defence personnel to pay an amount
of contribution for getting medical facilities by becoming a member of such scheme. In our opinion,
such a contributory scheme cannot be held illegal, unlawful or unconstitutional. Ultimately, the
State has to cater to the needs of its employees past and present. It has also to undertake several
other activities as a 'welfare' State. In the light of financial constraints and limited means available,
if a policy decision is taken to extend medical facilities to ex- defence personnel by allowing them to
become members of contributory scheme and by requiring them to make 'one time payment' which
is a 'reasonable amount', it cannot be said that such action would violate fundamental rights
guaranteed by Part III of the Constitution.
In State of Punjab v. Ram Lubhaya Bagga, [(1998) 4 SCC 117 : AIR 1998 SC 1703], a three Judge
Bench of this Court had an occasion to consider the question of change of policy in regard to
reimbursement of medical expenses to its employees. Referring to earlier decisions, the Bench took
note of ground reality that no State has unlimited resources to spend on any of its projects.
Provisions relating to supply of medical facilities to its citizens is not an exception to the said rule.
Therefore, such facilities must necessarily be made limited to the extent finances permit. No right
can be absolute in a welfare State. An individual right has to be subservient to the right of public at
large.
"This principle equally applies when there is any constraint on the health budget on account of
financial stringencies."

Delhi Transport Corporation vs D.T.C. Mazdoor Congress on 4 September, 1990
An order impounding a passport must be made quasi-judicially. This was not done in the present
case. It cannot be said that a good enough reason has been shown to exist for impounding the
passport of the petitioner. The petitioner had no opportunity of showing that the ground for
impounding it given in this Court either does not exist or has no bearing on public interest or that
the public interest can be better served in some other manner. The order should be quashed and the
respondent should be directed to give an opportunity to the petitioner to show cause against any
proposed action on such grounds as may be available. Even executive authorities when taking
administrative action which involves any deprivation of or restriction on inherent fundamental
rights of citizens must take care to see that justice is not only done but manifestly appears to be
done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness,
unreasonableness or unfairness. They have to act in a manner which is patently impartial and
meets the requirements of natural justice. It is also pertinent to refer in this connection the
pronouncement of this Court in the case of E.P. Royappa v. State of Tamil Nadu and Anr., [1974] 2
SCR 348. "Equality and arbitrariness are sworn enemies, one belongs to the rule of law in a public
while the other to the whim and caprice of an absolute monarch. 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 omni-presence and the procedure contemplated by Article 21 must answer
the test 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."
In the case of Municipal Corporation of Greater Bombay v. Malvenkar and Ors., [1978] 3 SCR 1000
the services of respondent No. 2, a permanent clerk in the Bombay Electric Supply and Transport
Undertaking, which is run by the appellant were terminated from the close of work on January 23,'
1968 as her record of service was unsatisfactory. The order of termination stated that the
respondent No. 2 should be paid one month's wages in lieu of notice and would also be eligible for
all the benefits as might be admissible under the Standing Orders and Service Regulations of the
Undertaking. The respondent No. 2 made an application before the Labour Court under Section
42(4) of the Bombay Industrial Relations Act contending that the order terminating her services was
invalid as it was not passed by the competent authority as envisaged by the Stand- ing Order and
that the so called Executive Assistant to the General Manager had no authority to terminate her
services because no validly sanctioned post of that designation existed on 20th or 23rd January,
1968. It was also contended that the aforesaid oders besides being mala fide was violative of the
principles of natural justice in as much as the same was passed without holding any enquiry. The
Labour Court dismissed the application. The respondent's appeal before the President of the
Industrial Court was however allowed. The Industrial Court held that the impugned orders bore
only the initials of the Central Manager and therefore it was passed by an authority which was
lacking in authority, the wording "unsatisfactory service record" cast a stigma and was patently
punitive attracting the non-observ- ance of Standing Order No. 26 which did not create an absolute
right in the management to terminate the services of an employee for misconduct without holding
an enquiry or giving her a fair opportunity of being heard. A Writ application filed by the appellant
was dismissed holding inter alia that the appellant was dismissed holding inter alia that the fact that
Standing Order 26 required reasons to be mentioned in the order terminating the services of an
employee did not mean that an order of dismissal on the ground of misconduct could be converted

Ex. Armymen'S Protection ... vs Union Of India And Ors on 26 February, 1947
been understood by the authority. This court cannot disregard the same and unsettle or dislodge it
as if it is adjudicating an appeal. (Emphasis supplied) and thus, the appeal was allowed setting aside
the order passed by the learned Single Judge.
8. Thus aggrieved, the appellant is before us.
9. By order dated 17.05.2010, while issuing notice, this Court stayed the operation of the impugned
judgment of the Division Bench.
10. Heard the counsels on both sides. The learned Single Judge, after going through the files, has
taken one view and the Division Bench, after going through the entire files, some of which had not
been noticed by the learned Single Judge, has taken another view. We do not find it necessary for
this Court to go into the disputed contentions or on the different views taken by the High Court. We
find that on principle of law, the High Court, be it through the learned Single Judge or the Division
Bench, is of the same view. According to the learned Single Judge, if there are justifiable facts and
national security is threatened, then, a party cannot insist nor any court can insist on compliance of
principle of natural justice as a condition precedent to take adverse action. Though in different
words, after having gone through the entire files, it is the same principle that has been restated and
reiterated by the Division Bench in the impugned judgment.
11. It is now settled law that there are some special exceptions to the principles of natural justice
though according to Sir William Wade[1], any restriction, limitation or exception on principles of
natural justice is only an arbitrary boundary. To quote further:
The right to a fair hearing may have to yield to overriding considerations of national security. The
House of Lords recognized this necessity where civil servants at the government communications
headquarters, who had to handle secret information vital to national security, were abruptly put
under new conditions of service which prohibited membership of national trade unions. Neither
they nor their unions were consulted, in disregard of an established practice, and their complaint to
the courts would have been upheld on ground of natural justice, had there not been a threat to
national security. The factor which ultimately prevailed was the danger that the process of
consultation itself would have precipitated further strikes, walkouts, overtime bans and disruption
generally of a kind which had plagued the communications headquarters shortly beforehand and
which were a threat of national security. Since national security must be paramount, natural justice
must then give way.
The Crown must, however, satisfy the court that national security is at risk. Despite the constantly
repeated dictum that those who are responsible for the national security must be the sole judges of
what the national security requires, the court will insist upon evidence that an issue of national
security arises, and only then will it accept the opinion of the Crown that it should prevail over some
legal right. (Emphasis supplied)
12. In Council of Civil Service Union and others v. Minister for the Civil Service[2], the House of
Lords had an occasion to consider the question. At page-402, it has been held as follows:

Himat Lal K. Shah vs Commissioner Of Police, ... on 15 September, 1972
section does not authorise framing of rules requiring prior

permission for holding meetings and (2) that the sub-section
and the rules were violative of the fundamental rights
guaranteed under art.19(1) (a)and (b) of the constitution.
The High Court dismissed the petition.
HELD : (per Curiam) : Rule 7 of the rules is void. [283F;
293E; 299D]
(Per S. M.Sikri, C.J., A.N. Ray and P. Jaganmohan
Reddy,JJ):
(1)The impugned rules are not ultra vies s/33 (1) in so
far as they require prior permission for holding meetings,
[280B-C]
Sub-section 33 (1) (0) proceeds on the basis that the public
has a right to hold assemblies and take processions on and,
along sawn though It is necessary to regulate the conduct
and behaviour or action of' persons constituting such
assemblies or processions in order to safeguard the rights
of citizens and in order to preserve public order. The word
'regulate' would include the power to prescribe that
permission in writing should be taken a few days before the
holding of a meeting on a public street. The impugned rules
do not prohibit the holding of meetings but only prescribe
that permission should be taken. [275B-E]
(2)(a) Section 33(1) (0) does not violate Art. 19(1) (b ),
and Art. 19(i) (a) is not attracted to the facts of 'the
case. The dub-section has nothing to do with the formation
of assemblies and processions but only deals with persons as
members of assemblies and processions. The subsection
enables the Commissioner to make rules to regulate the
assemblies and processions. Without such rules, in crowded
public streets, it would be impossible for citizens to enjoy
their various rights. Indeed, the section may be said to
have been enacted in aid of the rights under Art. 19
(1) (a) and 19(1) (d). [281B-D]
(b)It could not be contended by the 'respondent that as
under the Common Law of England no one has a right to hold a
meeting on a highway, and the same law prevails in India.
and therefore, the word 'regulate' means a right to prohibit
the holding of a meeting also. In India, the law has
developed on slightly different lines, and a citizen in
India had, before the Constitution, a right to hold meetings
on public streets subject to the control of the appropriate
authority regarding the time and place of the meetings and
subject to considerations of public
267
order While prior to the coming into force of the
Constitution, the right to assemble could have been abridged
or taken away by law, after the coming into force of the
Constitution, the right cannot be abridged except by
imposing reasonable restrictions. There is nothing wrong in
requiring prior permission to be obtained before holding a
public meeting a public street, for the Tight which flows
from Art. 19(1)(b) is not a right to hold a meeting at any

In Re:Destruction Of Public&Pvt. ... vs State Of A.P. & Ors on 16 April, 2009
(IV) An Assessor may be appointed to assist the Claims Commissioner.
(V) The Claims Commissioner and the Assessor may seek instructions from the High Court or
Supreme Court as the case may be, to summon the existing video or other recordings from private
and public sources to pinpoint the damage and establish nexus with the perpetrators of the damage.
(VI) The principles of absolute liability shall apply once the nexus with the event that precipitated
the damage is established.
(VII) The liability will be borne by the actual perpetrators of the crime as well as organisers of the
event giving rise to the liability - to be shared, as finally determined by the High Court or Supreme
Court as the case may be.
(VIII) Exemplary damages may be awarded to an extent not greater than twice the amount of the
damages liable to be paid.
(IX) Damages shall be assessed for:

(a) damages to public property;
(b) damages to private property;
(c) damages causing injury or death to a person or persons;
(d) Cost of the actions by the authorities and police to take preventive and
other actions
(X) The Claims Commissioner will make a report to the High Court or Supreme Court which will
determine the liability after hearing the parties.
The recommendations of Justice K.T. Thomas Committee and Mr. F.S. Nariman Committees above
which have the approval of this Court shall immediately became operative. They shall be operative
as guidelines.
The power of this Court also extends to laying down guidelines. In Union of India v. Association for
Democratic Reforms (2002) 5 SCC 294, this Court observed:
"...It is not possible for this court to give any directions for amending the Act or statutory Rules. It is
for Parliament to amend the Act and the Rules. It is also established law that no direction can be
given, which would be contrary to the Act and the Rules. However, it is equally settled that in case
when the Act or Rules are silent on a particular subject and the authority implementing the same
has constitutional or statutory power to implement it, the court can necessarily issue directions or
orders on the said subject to fill the vacuum or void till the suitable law is enacted." (pp.307) This
court has issued directions in large number of cases to meet urgent situations e.g. 7 Lakshmi Kant
Pandey v. Union of India, (1984) 2 SCC 244 7 Vishaka v. State of Rajasthan, (1997) 6 SCC 241 7
Vineet Narain v. Union of India, (1998) 1 SCC 226 ] 7 State of W.B. v. Sampat Lal, (1985) 1 SCC 317 7
K. Veeraswami (1991) 3 SCC 655 7 Union Carbide Corporation v. Union of India, (1991) 4 SCC 584 7
Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406 7 Delhi Development Authority v.
Indian Express Newspapers ... vs Union Of India & Ors. Etc. Etc on 6 December, 1984
unenforceable-this must be because Parliament is to be presumed not to have

intended to authorise the subordinate legislative authority to make changes in the
existing law which are uncertain. "
Prof. Alan Wharam in his Article entitled 'Judicial Control of Delegated Legislation:
The Test of Resonableness' 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 statutory instrument on the grounds of
unreasonableness or uncertainty, vagueness or aribitrariness; but the writer's (1) [1964] 1 Q.B.. 214.
view is that for all practical purposes such instruments must be read as forming part of the parent
statute, subject only to the ultra vires test.
(ii) The courts are prepared to invalidate by- 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 by-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 non- 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).
In India arbitrariness is not a separate ground since it will come within the embargo of Article 14 of
the Constitution. In India any enquiry into the vires of delegated legislation must be confined to the
grounds on which plenary legislation may be questioned, to the ground that it is contrary to the
statute under which it is made, to the ground that it is contrary to other statutory provisions or that
it is so arbitrary that it could not be said to be in conformity with the statute or that it offends Article
14 of the Constitution.
That subordinate legislation cannot be questioned on the ground of violation of principles of natural
justice on which administrative action may be questioned has been held by this Court in The
Tulsipur Sugar Co. Ltd. v. The Notified Area Committee, Tulsipur(l), Rameshchandra Kachardas
Porwal & Ors. v. State of (1) [1980] 2 S.C.R- 1111.
Maharashtra & Ors. etc(1). and in Bates v. Lord Hailsham of St Marylebone & Ors(2). A distinction
must be made between delegation of a legislative function in the case of which the question of
reasonableness cannot be enquired into and the investment by statute to exercise particular

Indra Sawhney Etc. Etc vs Union Of India And Others, Etc. ... on 16 November, 1992
departments and State Governments was in progress in this behalf. He stated that a meeting of the
Chief Ministers would be convened shortly to take decisions in the matter.
The Report was again discussed in the year 1983. The then Hon'ble Minister for Home Sri P.C.
Sethi, while replying to the debate stated: "While referring to the Commission whose report has
been discussed today, I would like to remind the House that although this Commission had been
appointed by our predecessor Government, we now desire to continue with this Commission and
implement its recommendations."
The Office Memorandum dated 13th August, 1090:
21. No action was, however, taken on the basis of the Mandal Commission Report until the issuance
of the Office Memorandum on 25th September, 1991. On that day, the then Prime Minister Sri V.P.
Singh made a statement in the Parliament in which he stated inter alia as follows:
After all, if you take the strength of the whole of the Government employees as a proportion of the
population, it will be 1% or 1-1/2. I do not know exactly, it may be less than 1%. We are under no
illusion that this 1% of the population, or a fraction of it will resolve the economic problems of the
whole section of 52%. No. We consciously want to give them a position in the decision-making of the
country, a share in the power structure. We talk about merit. What is the merit of the system itself?
That the section which has 52% of the population gets 12.55% in Government employment. What is
the merit of the system? That in Class I employees of the Government it gets only 4.69%, for 52% of
the population in decision-making at the top echelons it is not even one-tenth of the population of
the country; in the power structure it hardly 4.69. I want to challenge first the merit of the system
itself before we come and question on the merit, whether on merit to reject this individual or that.
And we want to change the structure basically, consiciously, with open eyes. And I know when
changing the structures comes, there will be resistance....
What I want to convey is that treating unequals as equals is the greatest injustice.
And, correction of this injustice is very important and that is what I want to convey. Here, the
National Front Government's Commitment for not only change of Government, but also change of
the social order, is something of great significance to all of us; it is a matter of great significance.
Merely making programmes of economic benefit to various sections of the society will not do....
There is a very big force in the argument to involve the poorest in the power structure. For a lot of
time we have acted on behalf of the poor. We represent the poor....
Let us forget that the poor are begging for some crumbs. They have suffered it for thousands of
years. Now they are fighting for their honour as a human being....
A point was made by Mahajan ji that if there are different lists in different States how will the Union
List harmonise? It is so today in the case of the Scheduled Castes and the Scheduled Tribes, That has
not caused a problem. On the same pattern, this will be there and there will be no problem.

J.K. Cotton Spinning And Weaving ... vs Union Of India & Ors on 30 October, 1987
(ii) a warehouse or any other place or premises wherein the excisable goods have
been permitted to be deposited without payment of duty, from where such goods are
removed.
It is submitted on behalf of the appellants that the Explanations to rule 9 and rule 49 are ultra vires
the provision of clause (b) of sub-section (4) of section 4 of the Act inasmuch as "place of removal"
as defined therein, does not contemplate any deemed removal, but a physical and actual removal of
the goods from a factory or any other place or premises of production or manufacture or a
warehouse etc. A This contention is unsound and also does not follow from the definition of "place
of removal . Under the definition "place of removal" may be a factory or any other place or premises
of production or manufacture of the excisable goods etc The Explanation to rules 9 and 49 do not
contain any definition of "place of removal", but provide that excisable goods produced or
manufactured in any place or premises at an intermediate stage and consumed or utilised for the
manufacture of another commodity in a continuous process, shall be deemed to have been removed
from such place or premises immediately before such consumption or utilization. Clause (b) of
sub-section (4) of section 4 has defined "place of removal", but it has not defined 'removal'. There
can be no doubt that the word 'removal contemplated shifting of a thing from one place to another.
In other words, it contemplates physical movement of goods from one place to another It is well
settled that a deeming provision is an admission of the non-existence of the fact deemed. Therefore,
in view of the deeming provisions under Explanations to rules 9 and 49, although the goods which
are produced or manufactured at an intermediate stage and, thereafter, consumed or utilised in the
integrated process for the manufacture of another commodity is not actually removed, shall be
construed and regarded as removed. The Legislature is quite competent to enact a deeming
provision for the purpose of assuming the existence of a fact which does not really exist. It has been
already noticed that the taxing event under section 3 of the Act is the production or manufacture of
goods and not removal The Explanations to rules 9 and 49 contemplate the collection of duty levied
on the production of a commodity at an intermediate stage of an integrated process of manufacture
of another commodity by deeming such production or manufacture of the commodity at an
intermediate stage to be removal from such place or premises of manufacture. The deeming
provisions are quite consistent with section 3 of the Act As observed by the Federal Court in Boddu's
case (supra) there is in theory nothing to prevent the central legislature from imposing a duty of
excise on a commodity as soon as it comes into existence, no matter what happens to it after- wards,
whether it be sold, consumed or destroyed or given away. It is for the convenience of the taxing
authority that duty is collected at the time of removal of the commodity. There is, therefore, nothing
unreasonable in the deeming provision and, as discussed above, it is quite in conformity with the
provision of section 3 of the Act The contention that the amendments to rules 9 and 49 are ultra
vires clause H
(b) of sub-section (4) of section 4 of the Act, is without substance and is overruled.
It is next contended on behalf of the appellants that even assuming that there can be fictional
removal as provided in the Explanation to rules 9 and 49, there cannot be such fictional or deemed
removal without the specification of the place where the excisable goods are produced, cured or
manufactured or any premises appurtenant thereto. Rule 9(1), inter alia provides that no excisable

Jalan Trading Co. (Private Ltd.) vs Mill Mazdoor Union(With ... on 5 August, 1966
allowance up to Rs. 1600 per month regardless of whether they were "workmen" as defined in the
Industrial Disputes Act or other relevant statutes, but subject to the proviso that the quantum of
bonus payable to employees drawing total basic pay and dearness allowance over Rs. 750 per month
shall be limited to what it would be if their pay and dearness allowance were only Rs. 750 per
month. It was proposed that the general formula should not apply to new establishments until they
had recouped all early losses including all arrears of normal depreciation admissible under the
Income- tax Act, subject to a time limit of six years. They also suggested that the scheme
recommended should be made applicable to all bonus matters relating to the accounting year ending
on any day in the calendar year 1962 other than those matters in which settlements had been
reached or decisions had been given.
The Government of India accepted a majority of the recommendations and the President issued on
May 29, 1965 the Payment of Bonus Ordinance, 1965, providing for payment of bonus to all
employees drawing salary not exceeding Rs. 1600 under the formula devised by the Commission. It
is not necessary to set out the provisions of the Ordinance, for the Ordinance was replaced, by the
Payment of Bonus Act 21 of 1965 and by s. 40(2) it was provided that notwithstanding such repeal,
anything done or any action taken under the Payment of Bonus Ordinance, 1965, shall be deemed to
have been done or taken under the Act as if the Act had commenced on May 29, 1965. Since the
action taken under the Ordinance is to be deemed to have been taken under the Act, in these cases
validity of the provisions of the Act alone need be considered.
It may be broadly stated that bonus which was originally a voluntary payment out of profits to
workmen to keep them contented, acquired the character, under the Bonus Formula, of a right to
share in the surplus profits, and enforceable through the machinery of the Industrial Disputes Act.
Under the Payment of Bonus Act, liability to pay bonus has become a statutory obligation imposed
upon employers covered by the Act.
Counsel for the Jalan Trading Company urged that the Act was invalid in that it amounts to fraud on
the Constitution or otherwise is a colourable exercise of legislative power. That argument has no
force. It is not denied that the Parliament has power to legislate in respect of bonus to be paid to
industrial employees. By enacting the Payment of Bonus Act, the Parliament has not attempted to
trespass upon the province of the State Legislature. It is true that by the impugned legislation
certain principles declared by this Court e.g. in Express Newspapers (Private) Ltd, and Anr. v. The
Union of India and Ors.(1) in respect of grant of bonus were modified, but on that account it cannot
be said that the legislation operates as fraud on the Constitution or is a colourable exercise of
legislative power. Parliament has normally power within the frame-work of the Constitution to enact
legislation which modifies principles enunciated by this Court as applicable to the determination of
any dispute, and by exercising that power the Parliament does not perpetrate fraud on the
Constitution. An enactment may be charged as colourable, and on that account void, only if it be
found that the legislature has by enacting it trespassed upon a field outside its competence: K. C.
Gajapati Narayan Deo and Ors. v. The State of Orissa(2).
The provisions of the Act and its scheme may now be summarised. The Payment of Bonus Act was
published on September 25, 1965. By s.1(4) save as otherwise provided in the Act, the provisions of

Jolly George Verghese & Anr vs The Bank Of Cochin on 4 February, 1980
been issued without any investigation as regards the current

ability of the judgment-debtors to clear off the debts or
their mala-fide refusal, if any, to discharge the debts.
On the question whether under such circumstances
personal freedom of the judgment-debtors can be held to
ransom until repayment of the debt.
Allowing the appeal,
^
HELD: 1. The words in section 51 which hurt are "or has
had since the date of the decree the means to pay the amount
of the decree." Superficially read this implies that if at
any time after the passing of an old decree the judgment-
debtor had come by some resources and had not discharged the
decree he could be detained in prison even though at that
later point of time he was found to be penniless. This is
not a sound position, apart from being inhuman going by the
standards of Article 11 of the International Covenant on
Civil and Political Rights and Article 21. A simple default
to discharge is not enough. There must be some element of
bad faith beyond mere indifference to pay, some deliberate
or recusant disposition in the past or alternatively current
means to pay the decree or a substantial part of it. The
provision emphasises the need to establish not mere omission
to pay but an attitude of refusal on demand verging on
dishonest disowning of the obligation under the decree.
Considerations of the debtor's other pressing needs and
straitened circumstances will play prominently. [922E-G]
2. 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
914
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 courts is the former not the latter. [918A-B]
3. Quondom affluence and current indigence without
intervening dishonesty or bad faith in liquidating his
liability can be consistent with Article 11 of the Covenant
because then no detention is permissible under section 51 of
the Code of Civil Procedure. [921G]
4. The high value of human dignity and the worth of the
human person enshrined in Article 21, read with Articles 14
and 19, obligates the State not to incarcerate except under
law which is fair, just and reasonable in its procedural
essence. To cast a person in prison because of his poverty
and consequent inability to meet his contractual liability
is appalling. To be poor is no crime and to "recover" debts
by the procedure of putting one in prison is flagrantly
violative of Article 21 unless there is proof of the minimal
fairness of his wilful failure to pay in spite of his

K.C. Gajapati Narayana Deo And ... vs The State Of Orissa on 30 January, 1953
come up for consideration before the Supreme Court. It may be noticed that the argument based on
such fraudulent design was only casually referred to by his Lordship Mahajan J. at the bottom of p.
437 and the top of p. 438, only to be summarily rejected.
64. There can be no doubt, however, that the principle of colourable legislation as the result of a
legislative scheme has been recognized in a number of Privy Council decisions. It is interesting to
note that a study of those cases reveals that this principle was rather slow to be evolved and accepted
in the Privy Council. In the very early case in --'(Union Colliery Company v. Bryden', (1899) A. C.
580 at p. 587 (Z8), where this principle appears to have been put forward by counsel, their
Lordships of the Privy Council appear to have been reluctant to accept it and preferred to decide the
case on the 'pith and substance' principle. (See the interesting verbatim report of a portion of the
argument in Lefroy on Canadian Constitution, pp. 78, 79, and 80). In the next case decided only a
few days later, i.e., in --'Madden v. Nelson & Fort Sheppard Rly.', (1899) A.C. 626, (Z9), their
Lordships refer to the 'familiar principle' that 'you cannot do indirectly what you are prohibited from
doing directly' and thereby made the beginning to recognize it. The full rerognization of the
principle of colourable legislation by the Judicial Committee emerges in their judgment in --
'Attorney General for Ontario v. Reciprocal Insurers', (I924) A. C. 328 at p. 337 (Z10), wherein their
Lordships point out that :
"Where the law-making authority is of a limited or qualified character,
XX XX XX
"It is the result of that investigation and not the form alone, which the statute may have rec
This has been reaffirmed by tha Privy Council in later cases and in particular in '(1939) A C
"the Courts will be careful to detect and invalidate any actual violation of constitutional
That principle has been restated with elaboration in the passage at p. 793 in '61 C. L. Rule 7
"Where the law-making authority is of a limited or qualified character,
In that case, this Court applied the well-known principle that in relation to 'co
same issue may be whether legislation which at first sight appears to conform to constitutional
(It may be mentioned that Justice Evatt's is the dissenting judgment in this case from which the
above passage has been accepted by the Privy Council on the merits, in appeal, in -- 'W. R. Moran
Proprietary Ltd. v. Deputy Commr. of Taxation for N. S. W.', (1940) A C 838 (Z13). While, therefore,
it is clear that the principle of invalidity of a legislative measure as the result of a colourable
legislative scheme must now be taken as well established, caution is required in the application
thereof and I venture to think that American decisions in this behalf cannot always be relied as a
sure and infallisble guidance.

Kavalappara Kottarathil Kochuni ... vs The State Of Madras And Others on 4 May, 1960
herein. But a further scrutiny reveals that they have no bearing on the construction of Art. 31(1) of
the Constitution after cl. (2) of Art. 31 has been amended and el. (2A) has been inserted in that
Article by the Constitution (Fourth Amendment) Act, 1955. Before the amendment, this Court, as we
have already noticed, held by a majority in The State of West Bengal v. Subodh Gopal Bose (2) that
cls. (1) and (2) of Art. 31 were not mutually exclusive in scope and content, but should be read
together and understood as dealing with the same subject, namely, the acquisition or taking
possession of property referred to in cl. (2) of Art. 31. In that view, Art. 31, before the amendment,
was a selfcontained Article providing for a subject different from that dealt with in Art. 19. On that
basis it was possible to hold, as this Court held in The State of Bombay v. Bhanji Munji (3) on the
analogy drawn from Art. 21, that when the property therein was requisitioned within the meaning of
Art. 31, the operation of Art. 19 was excluded. But there is no scope for drawing such an analogy
after the Constitution (Fourth Amendment) Act, 1955, as thereafter they dealt with two different
subjects: Art. 31(2) and (2A) with acquisition and requisition and Art. 31(1) with deprivation of
property by authority of law. The decision of this Court in Bhanji Munji's Case (3) no longer holds
the field after the Constitution (Fourth Amendment) Act, 1955. Strong reliance is placed upon the
observations of Das, J. (as he then was), in Subodh Gopal Bose's Case ( 2 ). Therein the learned
Judge dissented from the view of the majority on the interpretation of Art. 31(1) and (2) of the
Constitution. In the course (1) [1950] S.C.R. 88 (2) [1954] S.C.R 587.
(3) [1955] 1 S.C.R. 777, of his dissenting judgment, the learned Judge made certain observations on
the effect of his interpretation of Art. 31 on Art. 19. The learned Judge said at p. 632 thus: " Such
being the correct correlation between article 19(1), sub-clauses (a) to (e) and (g) on the one hand
and article 21 on the other, the question necessarily arises as to the correlation between article 19(1)
(f) and article 31. Article 19(1)(f) guarantees to a citizen, as one of his freedoms, the right to acquire,
hold and dispose of property but reasonable restrictions may be imposed on the exercise of that
right to the extent indicated in clause (5). Article 31, as its heading shows, guarantees to all persons,
citizens and non-citizens, the ' right to property' as a fundamental right to the extent therein
mentioned. What, I ask myself, is the correlation between article 19(1)(f) read with article 19(5) and
article 31 ? If, as held by my Lord in A. K. Gopalan's Case(1) at p. 191, subclauses (a) to
(e)and (g) of article 19(1) read with the relevant clauses (2) to (6) ' presuppose that the citizen to
whom the possession of these fundamental rights is secured retains the substratum of personal
freedom on which alone the enjoyment of these rights necessarily rests', it must follow logically that
article 19(1)(f) read with article 19(5) must likewise presuppose that the person to whom that
fundamental right is guaranteed retains his property over or with respect to which alone that right
may be exercised. I found myself unable to escape from this logical conclusion." The learned Judge
earlier expressed the same opinion in Chiranjit Lal Chowdhuri v. The Union of India (2). When it
was pointed out to the learned Judge that, if his view was correct, the legislature while it cannot
restrict a person's right to property unless the restriction is reasonable and for a public purpose, it
can deprive him of his property without any such limitations, the learned Judge negatived the
objection in the following words at p. 654: (1) [1950] S.C.R, 88, (2) [1950] S.C.R. 869.
" What is abnormal if our Constitution has trusted the legislature, as the people of Great Britain
have trusted their Parliament ? Right to life and personal liberty and the right to private property

Kedar Nath Singh vs State Of Bihar on 20 January, 1962
152). Section 124A must, therefore, be interpreted in the same manner as sedition is interpreted in
England and it must be held that a tendency to disturb public order is an essential element of the
offence under s. 124A. Articles 133 and 133A of the Canadian Criminal Code which deal with
sedition have been given the same interpretation, 1951, canadian S. C. R. 265. The view taken in
Tilak's case 22 Bom. 1112, in Bhalerao's case 74 I.A. 89 and in Wallice Johnsons case[1940] A. C. 231
that incitement to violence or a tendency to disturb public order was not a necessary ingredient of s.
124A, is not the correct view. 1942 F. C. R.38 takes the correct view and lays down that the tendency
to disturb public order is a necessary ingredient of the offence under s. 124A. Devi Saran's case 32
Pat. 1124 also takes the same view.
There are two interpretations of s. 124A before the Court, one taken by the Federal Court and the
other taken by the Privy Council. This Court should accept the interpretation given by the section
Court, as that interpretation would make the section Constitutional. Even if the interpretation put
by the Privy Council be accepted as correct one, section 124A will still be valid. The section certainly
contemplates cases where the speech is likely to disturb public order and as such the section in the
interest of public order as contemplated in Art. 19(2) and the mere fact that some cases in which the
public order is not likely to be disturbed are also included therein, cannot invalidate the section.
This court took a similar view in Ramjilal Modi's case [1957] S. C. R. 860 and in Virendra's case
[1958] S. C. R. 308, the decision Lohia's case [1960] 2 S. C. R. 821 does not affect this case, as in that
case it was found that that provisions curtailing freedom of speech were not in the interest of public
order as the connection between the provisions and disturbance of public order as too remove. Even
if the section be held according to the Privy Council view to include which threaten public order and
those which the section can be held valid with respect s where public order is threatened as the two
of case are severable. [1957] S. C. R. 930, [1941] F. C. 72 [1951] S. C. R. 682, [1953] 1059 and 65 L.
Ed, 1139.
P. Verma for the Attorney-General of Article 374(2) of the Constitution perversion of the Federal
Court shall have the rect as the decision of the Supreme Court. Decision of the Federal Court in 1942
F.C.R. 38 be deemed to be a decision of this Court and should be held binding. A tendency to disturb
public order is inherent in s. 124A itself.
Gopal Behari for respondent in Criminal Appeal No. 124 of 1958:-The interpretataion of s. 124A by
the Privy Council has been accepted by the High Court. Even in English Law sedition does not
necessarily include an intention to disturb public order, 79 C. L. R. 101. Explanations (2) and (3)
would be redundant if section 124A is interpreted to incorporate the English view of sedition. The
Allahabad High Court as well as other High Courts have given the same interpretation of s. 124A as
the Privy Council has. See 1941 All. 156, 1930 Lah. 309, 56 Cal. 1085 and 10 Luck. 712. The decision
in Lohia's case also [1960] 2 S.C.R. 821 governs the present case also section 124A punishes such
speeches also as have no tendency to disturb public order and contravenes Art. 19(1)(a). It is not
saved by Art. 19(2) as placing of restriction on such speeches is not in the interest of public order. It
is not open to the Court to rewrite the section by removing from its purview such speeches as have
no tendency to disturb public order and to confine it to such speeches as have a tendency to disturb
public order. The whole section must fail; it cannot be dissected.

Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April, 1973
17. The Constitution (First Amendment) Act, 1951, which inserted inter alia Articles 31A and 31B in
the Constitution was the subject matter of decision in Sankari Prasad's [1952] S.C.R. 89 case. The
main arguments relevant to the present case which were advanced in support of the petition before
this Court were summarised by Patanjali Sastri, J. as he then was, as follows:
First, the power of amending the Constitution provided for under Article 368 was conferred not on
Parliament but on the two Houses of Parliament as designated body and, therefore, the provisional
Parliament was not competent to exercise that power under Article 379.
Fourthly, in any case Article 368 is a complete code in itself and does not provide for any
amendment being made in the bill after it has been introduced in the House. The bill in the present
case having been admittedly amended in several particulars during its passage through the House,
the Amendment Act cannot be said to have been passed in conformity with the procedure prescribed
in Article 368.
Fifthly, the Amendment Act, in so far as it purports to take away or abridge the rights conferred by
Part III of the Constitution, falls within the prohibition of Article 13(2).
XXX
18. As stated in the head note, this Court held:
The provisional Parliament is competent to exercise the power of amending the Constitution under
Article 368. The fact that the said article refers to the two Houses of the Parliament and the
President separately and not to the Parliament, does not lead to the inference that the body which is
invested with the power to amend is not the Parliament but a different body consisting of the two
Houses.
The words "all the powers conferred by the provisions of this Constitution on Parliament" in Article
379 are not confined to such powers as could be exercised by the provisional Parliament consisting
of a single chamber, but are wide enough to include the power to amend the Constitution conferred
by Article 368.
19. I may mention that Mr. Seervai contends that the conclusion just mentioned was wrong and that
the body that amends the Constitution under Article 368 is not Parliament.
20. The Court further held:
The view that Article 368 is a complete code in itself in respect of the procedure provided by it and
does not contemplate any amendment of a Bill for amendment of the Constitution after it has been
introduced, and that if the Bill is amended during its passage through the House, the Amendment
Act cannot be said to have been passed in conformity with the procedure prescribed by Article 368
and would be invalid, is erroneous.

Although "law" must ordinarily include Constitutional law there is a clear demarcation between
ordinary law which is made in the exercise of legislative power and Constitutional law, which is
made in the exercise of constituent power. In the context of Article 13, "law" must be taken to mean
rules or regulations made in exercise of ordinary legislative power and not amendments to the
Constitution made in the exercise of constituent power with the result that Article 13(2) does not
affect amendments made under Article 368.
21. Although the decision in Sankari Prasad's [1952] S.C.R. 89 case was not challenged in Sajjan
Singh's [1965] 1 S.C.R. 933 case, Gajendragadkar, C.J. thought it fit to give reasons for expressing
full concurrence with that decision.
22. The only contention before the Court was that "since it appears that the powers prescribed by
Article 226 are likely to be affected by the intended amendment of the provisions contained in Part
III, the bill introduced for the purpose of making such an amendment, must attract the proviso, and
as the impugned Act has admittedly not gone through the procedure prescribed by the proviso, it is
invalid". According to Gajendragadkar, C.J. "that raised the question about the construction of the
provisions contained in Article 368 and the relation between the substantive part of Article 368 with
its proviso.
23. The Chief Justice came to the conclusion that "as a matter of construction, there is no escape
from the conclusion that Article 368 provides for the amendment of the provisions contained in Part
III without imposing on Parliament an obligation to adopt the procedure prescribed by the proviso.
24. The learned Chief Justice thought that the power to amend in the context was a very wide power
and it could not be controlled' by the literal dictionary meaning of the word "amend". He expressed
his agreement with the reasoning of Patanjali Sastri, J. regarding the applicability of Article 13(2) to
Constitution Amendment Acts passed under Article
368. He further held that when Article 368 confers on Parliament the right to amend the
Constitution, it can be exercised over all the provisions of the Constitution. He thought that "if the
Constitution-makers had intended that any future amendment of the provisions in regard to
fundamental rights should be subject to Article 13(2), they would have taken the precaution of
making a clear provision in that behalf.
25. He seemed to be in agreement with the following observations of Kania, C.J. in A.K. Gopalan v.
The State of Madras [1950] S.C.R. 88 at p. 100:
the inclusion of Article 13(1) and (2) in the Constitution appears to be a matter of abundant caution.
Even in their absence if any of the fundamental rights was infringed by any legislative enactment,
the Court has always the power to declare the enactment, to the extent it transgresses the limits,
invalid.
26. He was of the view that even though the relevant provisions of Part III can be justly described as
the very foundation and the cornerstone of the democratic way of life ushered in this country by the

Parliament in the manner prescribed in Article 368 "it shall be presented to the President for his
assent and upon such assent being given to the Bill, the Constitution shall stand amended in
accordance with the terms of the bill". The amended Article makes a change. It prescribes that when
the Bill is presented to the President, he "shall give his assent to the Bill". Some comment was made
at the bar about the inappropriateness of commanding the President to give his assent to the Bill.
That is a question of propriety. The substance of the matter is that when the Bill is presented to the
President, he shall not withhold his assent. This change cannot be said to have damaged or
destroyed any basic element of the Constitution. In fact Article 111 which deals with the assent to the
Bills specifically prescribes that when a money Bill, after having been passed by the Houses of
Parliament is presented to the President he "shall not withhold assent therefrom". Hence it cannot
be said that the change made in Article 368 relating to the assent of the President has any great
importance in the scheme of our Constitution. In fact under our Constitution the President is only a
Constitutional head. Ordinarily he has to act on the advice of the cabinet. There is no possibility of
the Constitution being amended in opposition to the wishes of the cabinet.
714. The only change that remains to be considered is as to the exclusion of the application of Article
13 to an amendment of the Constitution. We have earlier come to the conclusion that Article 13 as it
stood earlier did not bar the amendment of the Constitution. Article 13(4) and 368(3) make explicit
what was implicit.
715. It was contended that by means of the 24th Amendment Parliament intended to and in fact
purported to enlarge its amending power. In this connection reliance was placed on the statement of
objects and reasons attached to the Bill which resulted in the 24th Amendment. The power of
Parliament does not rest upon its professed intention. It cannot acquire a power which it otherwise
did not possess. We are unable to accept the contention that Clause (e) to the proviso to Article 368
confers power on Parliament to enlarge its own power. In our judgment the power to amend the
Constitution as well as the ordinary procedure to amend any part of the Constitution was and is
contained in the main part of the Article. The proviso merely places further restrictions on the
procedure to amend the articles mentioned therein. Clause (e) to the proviso stipulates that Article
368 cannot be amended except in the manner provided in the proviso. In the absence of that clause,
Article 368 could have been amended by following the procedure laid down in the main part. At best
Clause (e) of the proviso merely indicates that Article 368 itself comes within its own purview. As we
have already seen, the main part of Article 368 as it stood earlier, expressly lays down only the
procedure to be followed in amending the Constitution. The power to amend is only implied therein.
716. It is difficult to accept the contention that an implied power was impliedly permitted to be
enlarged. If that was so, there was nomeaning in limiting that power originally. Limitation on the
power to amend the Constitution would operate even when Article 368 is amended. A limited power
cannot be used to enlarge the same power into an absolute power. We respectfully agree with the
observation of Hidayatullah J. (as he then was) in Golaknath's case that what Parliament cannot do
directly, it also cannot do indirectly. We have earlier held that the "amendment of this Constitution"
means the amendment of every part of the Constitution. It cannot be denied that Article 368 is but a
part of the Constitution. Hence, the mere fact that the mover of the 24th Amendment Act, in the
Statement of Objects and Reasons laid claim to certain power does not go to show that Parliament

either endorsed that claim or could have conferred on itself such a power. It must be deemed to have
exercised only such power as it possessed. It is a well-accepted rule of construction that if a
provision is reasonably capable of two interpretations the Court must accept that interpretation
which makes the provsion valid. If the power conferred on Parliament to amend the Constitution
under Article 368 as it stood originally is a limited power, as we think it is, Parliament cannot
enlarge the scope of that power-see Attorney General for the State of New South Wales v. The
Brewery Employees Union of New South Wales; 6, C.L.R. 469 Ex Parte Walsh and Johnson; In Re
Yates; 37, C.L.R. 36 at p. 67 and Australian Communist Party v. The Commonwealth 83, C.L.R. p 1.
717. For the reasons mentioned heretofore, the scope of Parliament's power to amend the
Constitution or any part thereof must be held to have remained as it was before the 24th
Amendment notwithstanding the alterations made in the phraseology of Article 368. The 24th
Amendment made explicit, what was implicit in the unamended Article 368. In this view of the
matter the 24th Amendment must be held to be valid.
718. This takes us to the validity of the Constitution 25th Amendment Act. It is necessary to examine
the scope and effect of that Act for deciding the question whether that Act or any one of its
provisions can be held to be outside the amending power of the Parliament. That Act has three
sections. We are not concerned with the first section which sets out the short title. Clause (a) of the
second section amends Article 31(2). Clause (b) of that section incorporates into the Constitution
Article 31(2B). Section 3 introduces into the Constitution a new Article viz. Article 31C.
719. Let us first take up the newly substituted Article 31(2) in the place of the old Article 31(2) and
examine its scope. To do so, it is necessary to examine the history of that Article.
720. Article 31(2) has undergone several changes. As originally enacted it read thus: No property,
movable or immovable, including any interest in, or in any company owning, any commercial or
industrial undertaking, shall be taken possession of or acquired for public purposes under any law
authorising the taking of such possession or such acquisition, unless the law provides for
compensation for the property taken possession of or acquired and either fixes the amount of the
compensation, or specifies the principles on which, and the manner in which, the compensation is to
be determined and given."
721. That Article was amended first by the Fourth Amendment Act 1955 and, thereafter by the
Twenty-fifth Amendment Act, 1971. At a later stage, it will be necessary for us to compare Article
31(2) as it stood after the Fourth Amendment Act and as it stands after the Twenty-fifth Amendment
Act. Hence we shall quote them side by side. Article 31(2) as substituted by Article 3(2) as
susbtituted by the 4th Amendment Act 1955 the 25th Amendment Act 1971 No property shall be
compulsorily No property shall be compulsorily acquired or requisitioned save for acquired or
requisitioned save for a public purpose and save by a public purpose and save by authority of a law
which provides for authority of a law which provides compensation for the property so for
acquisition or requisitioning acquired or requisitioned and either of the property for an amount
fixes the amount of the compensation which may be fixed by such law or specifies the principles on
or which may be determined in which and the manner in which, accordance with such principles the

Kuldip Nayar vs Union Of India & Ors on 22 August, 2006
Article 84 is styled as a provision to indicate "Qualification for membership of Parliament". In

clauses (a) and (b), Article 84 makes it incumbent for any person seeking to be chosen to fill a seat
in Parliament to be a citizen of India and of a certain age, which in the case of a seat in the Council of
States cannot be less than 30 years. Article 84(c) provides that a candidate seeking to be elected as a
Member of Parliament must "possess such other qualifications as may be prescribed in that behalf
by or under any law made by Parliament".
Part XV of the Constitution pertains to the subject matter of "Elections". It includes, presently,
Articles 324 to 329. The superintendence, direction and control of elections vests in the Election
Commission.
Article 327 confers, on the Parliament, the power, subject to the provisions of the Constitution, to
make, from time to time by law, provisions with respect to "all matters relating to, or in connection
with, elections", inter alia, "to either House of Parliament", including "the preparation of electoral
rolls, the delimitation of the constituencies and all matters necessary for securing the due
consideration of such House or Houses". Part XI of the Constitution pertains to the "Relations
between the Union and the States". Chapter I of Part XI is in respect of "Legislative Relations".
Article 245 generally states that the Parliament, subject to the provisions of the Constitution, may
make laws for the whole or any part of the territory of India. Article 246 vests in the Parliament "the
exclusive power" to make laws with respect to any of the matters enumerated in List I in the Seventh
Schedule ("Union List", hereafter). The Union List, as given in the Seventh Schedule includes Entry
No.72, which relates to, amongst others, the "Elections to Parliament".
History of RP Acts, 1950 and 1951 In the year 1952, the Parliament came to be duly constituted and
summoned to meet for the first session under the provisions of the Constitution. Till then, the
Constituent Assembly, which had prepared and adopted the Constitution, functioned as the
Provisional Parliament, in accordance with the provision contained in Article 379. It may be added
here that after the first General Elections had led to the two Houses of Parliament being constituted,
Article 379, having served its purpose, was deleted by Constitution (Seventh Amendment) Act, 1956
with effect from 1st November, 1956. The Provisional Parliament, in exercise of its authority under
Article 379 read with aforementioned enabling provisions, enacted a law called the "Representation
of the People Act, 1950" (the RP Act, 1950), which came into force with effect from 12th May, 1950.
This law had been enacted to provide for "the allocation of seats in and the delimitation of
constituencies for the purpose of election to, the House of the People and the Legislatures of States,
the qualifications of voter at such elections, the preparation of electoral rolls, and matters connected
therewith". It must be mentioned here that the subject matter relating to "the manner of filling seats
in the Council of States to be filled by the representatives of Part- C States (later "Union Territories")
was inserted in this law by way of Act 73 of 1950 (to be read with the Adaptation of Laws (No. 2)
Order, 1956) which, among others, added Part IVA to the RP Act, 1950.
The RP Act, 1950 did not contain all the provisions relating to elections. Provisions for the actual
conduct of elections, amongst others, to the Houses of Parliament, the qualifications for the
membership of such Houses etc. had been left to be made in subsequent measures. In order to make
provisions for such other subjects, the Provisional Parliament, in exercise of its authority under

M.Nagaraj & Others vs Union Of India & Others on 19 October, 2006
Petitioners have invoked Article 32 of the Constitution for a writ in the nature of certiorari to quash
the Constitution (Eighty-Fifth Amendment] Act, 2001 inserting Article 16(4A) of the Constitution
retrospectively from 17.6.1995 providing reservation in promotion with consequential seniority as
being unconstitutional and violative of the basic structure. According to the petitioners, the
impugned amendment reverses the decisions of this Court in the case of Union of India and others
v. Virpal Singh Chauhan and others , Ajit Singh Januja and others v. State of Punjab and others (Ajit
Singh-I), Ajit Singh and others (II) v. State of Punjab and others , Ajit Singh and others (III) v. State
of Punjab and others , Indra Sawhney and others v. Union of India , and M. G.
Badappanavar and another v. State of Karnataka and others . Petitioners say that the Parliament has
appropriated the judicial power to itself and has acted as an appellate authority by reversing the
judicial pronouncements of this Court by the use of power of amendment as done by the impugned
amendment and is, therefore, violative of the basic structure of the Constitution. The said
amendment is, therefore, constitutionally invalid and is liable to be set aside. Petitioners have
further pleaded that the amendment also seeks to alter the fundamental right of equality which is
part of the basic structure of the Constitution. Petitioners say that the equality in the context of
Article 16(1) connotes "accelerated promotion" so as not to include consequential seniority.
Petitioners say that by attaching consequential seniority to the accelerated promotion, the impugned
amendment violates equality in Article 14 read with Article 16(1). Petitioners further say that by
providing reservation in the matter of promotion with consequential seniority, there is impairment
of efficiency. Petitioners say that in the case of Indra Sawhney5 decided on 16.11.1992, this Court has
held that under Article 16(4), reservation to the backward classes is permissible only at the time of
initial recruitment and not in promotion. Petitioners say that contrary to the said judgment
delivered on 16.11.1992, the Parliament enacted the Constitution (Seventy- Seventh Amendment)
Act, 1995. By the said amendment, Article 16(4A) was inserted, which reintroduced reservation in
promotion. The Constitution (Seventy-Seventh Amendment) Act, 1995 is also challenged by some of
the petitioners. Petitioners say that if accelerated seniority is given to the roster-point promotees,
the consequences would be disastrous. A roster-point promotee in the graduate stream would reach
the 4th level by the time he attains the age of 45 years. At the age of 49, he would reach the highest
level and stay there for nine years. On the other hand, the general merit promotee would reach the
3rd level out of 6 levels at the age of 56 and by the time, he gets eligibility to the 4th level, he would
have retired from service. Petitioners say that the consequences of the impugned 85th Amendment
which provides for reservation in promotion, with consequential seniority, would result in reverse
discrimination in the percentage of representation of the reserved category officers in the higher
cadre. BROAD ISSUES IN WRIT PETITION No.527 OF 2002: The broad issues that arise for
determination in this case relate to the:
1. Validity
2. Interpretation
3. Implementation of (i) the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution
(Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000, and
the Constitution (Eighty-Fifth Amendment) Act, 2001; and, (ii) Action taken in pursuance thereof

Madhu Limaye & Anr vs Ved Murti & Ors on 28 October, 1970
Magistrate for taking action under sections 107/117 and 151 of the Criminal Procedure Code. When
they appeared before the Magistrate he read out a notice under section 112 of the Code calling upon
them to furnish security in the sum of Rs. 5,000 with two sureties in the like amount for keeping the
peace. Narendra Shastri was however discharged as it was not proved that he was the right person.
The petitioners refused to accept the notice and the Magistrate thereupon adjourned the case to the
following, day and remained, them to jail when the petitioners declined to offer bail. On the
following day (August 10, 1970) the case was again adjourned to August 17, 1970. Since then the
case, has stood ,adjourned as the petition in this Court was pending and the petitioners were in the
custody of this Court. As the remand was not extended by the Magistrate, the petitioners became
free from custody and we declared them to be so. After the arguments concluded, we held by an
order that detention of the petitioners from August 9, 1970 was illegal and they were entitled to be
free. Since they were not any longer in detention, we were not required to make an order. I We now
give our reasons for the order we made.
The petitioners were arrested by the Police without a warrant under section 151 Criminal Procedure
Code for purposes of taking them before a Magistrate to be bound over under section 107 of the
Code of Criminal Procedure. The arrest of the petitioners being one for action under section 107 of
the Code, the provisions of Chapter VIII applied. The Special Eench has analysed those provisions
critically and we need refer to them only briefly here. The first sub- section of the section arms
certain Magistrates of specified classes with the power to require a person, who is likely to commit
a.breach of the peace or to disturb the public tranquillity or to do any wrongful act that may
probably occasion a breach of the peace or disturb the public tranquillity, to execute a bond and
furnish security for keeping the peace. The sub-section however lays down that the Magistrate shall
proceed "in the manner hereinafter provided". The Chapter then contains elaborate provisions for
the procedure which the Magistrate must follow. Since the liberty of the person is involved, not
because of anything he has done but because of, the likelihood of breach of the peace or disturbance
of the public tranquillity by reason of some act on, his part, the provisions must obviously 'be,
strictly followed. Since the action is taken on the mere opinion of the Magistrate, the provisions of
the Chapter naturally ensure that no case of harassment arises.
The first requirement is that the Magistrate must pass an order in writing setting forth the substance
of the information received, the amount of bond to be-executed, the term for which it is to be in
force and the number, character and class of sureties (if any) required under section 112. This order
may be passed in the presence of the person to be bound over and even in his absence. This is clear
from the provisions of the two sections that follow. Section 113 deals with the procedure when the
person is present in the Court. Then the Magistrate must read over the order to the person and if he
so desires, the substance of it must be explained to him. When the person is not present in Court,
the next section applies. The Magistrate shall then issue a summons to him to appear and if he is in
custody, the Magistrate shall issue a warrant to the person who has his custody to produce him
before the Court. If there is need of immediate arrest of the person, the Magistrate on the report of
the Police Officer or upon other information (the substance of which report or information is to be
recorded in writing by the Magistrate) may issue a war-rant for the arrest of the person. This action
can only be taken. if there is reason to fear that a breach of the peace cannot be prevented except by
the arrest of the person (section 114). Whenever a summons or a warrant is issued under section 114,

Maneka Gandhi vs Union Of India on 25 January, 1978
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. 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 omni-presence and the procedure contemplated
by Article 21 must answer the test 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.
[674 B-C]
It is true that the Passports Act does not provide for
giving reasonable opportunity to the holder of the passport
to be heard in advance before impounding a passport. But
that is not conclusive of the question. If the statute make
itself clear onthis point, then no more question arises
but even when statute is silent the lawmay in a given case
make an implication and apply the principle. Naturaljustice
is a great humanising principle intended to invest law with
fairness and to secure justice and over the years it has
grown into a widely pervasive rule affecting large areas of
administrative action. [674 F-G, 675 A-B] Wiseman v.
Borneman [1971] A.C. 297 approved.
Schmidt v. Secretary of State for Home Affairs [1968] 112
Solicitor General 690 approved.
There can be no distinction between a quasi-judicial
function and an administrative function for the purpose of
principles of natural justice. The aim of both
administrative inquiry as well as the quasi-judicial enquiry
is to arrive at a just decision and if a rule of natural
justice is calculated to secure justice or to put it
'negatively, to prevent miscarriage of justice, it is
difficult to see why it should be applicable to quasi-
judicial enquiry and not to administrative enquiry. It must
logically apply to both. It cannot be said that the
requirements of fairplay in action is any the less in an
administrative enquiry than in a quasi-judicial one.
Sometimes an unjust decision in an administrative enquiry
may have far more serious consequences than a decision in a
quasi-judicial enquiry and hence rules of natural justice
must apply, equally in an administrative enquiry which
entails civil consequences. [676 G-H, 677 A]
Rex v. ElectricityCommissioners [1924] 1 K.B. 171 referred
to.
Rex v. LegislativeCommittee of the Church Assembly [1928]
1 K. B. 411 and Ridge v. Baldwin[1964] A. C. 40 referred
to.
Associated Cement Companies Ltd. v. P. N. Sharma & . Anr
[1965] 2 SCR 366, State of Orissa v. Dr. Binapani [1967] 2
SCR 625 and A. K. Kraipak & Ors. v. Union of India & .Ors
[1970] 1 SCR 457 relied.

Moti Das And Ors. vs The State Of Bihar on 6 May, 1954
"The reapers were taking away bundles of paddy. Sonu came ahead to stop them. Moti gave the
order for assault. Misri ran towards Sonu and Sonu fled. Misri overtook him and gave him a bhala
blow with the result that he fell down in the field of Rasul Mian. The other accused persons then
assaulted him with lathis. The Havaldar and constables came up and caught hold of accused Jagan
and Churaman".
This is substantially the version which has been believed by both the Courts and so we must accept
those facts.
5. Founding on them the learned counsel for the appellants contends that no conviction can be
based on the facts so found. He says that the prosecution must be strictly confined to the charge and
that they cannot now travel beyond it. He says the charge was that the appellant formed an unlawful
assembly because their common object was to steal the paddy in the fields and assault Sonu Gope in
the course of the transaction of stealing. They have been acquitted on the dacoity charge of which
the main ingredient was the theft because the prosecution have not proved either that the
complainant was in possession or that the accused were not. Therefore, if no question of theft arises,
no question of assaulting Sonu Gope as part and parcel of the transaction of stealing can arise either.
In the alternative he says that even if the portion relating to Sonu Gope can be separated from the
rest of the charge, it is evident that the appellants could not have met there for the purpose of
assaulting him because no one knew that he would come. It follows, he argues, that the common
object set out in the charge fails, and if there is no common object there can be no unlawful
assembly and without an unlawful assembly there can be no riot. If some hot-heads in a lawful
assembly suddenly lose their heads and chase and assault a man each can only be held responsible
for his own actions. The assembly cannot, without a common object which postulates pre-concert as
an ingredient, be turned into an unlawful assembly because of that alone.
6. It is not necessary to enter into a controversy about the nature of the assembly at its inception. Let
us assume that it was lawful to start with despite the numbers and despite the armed body guard of
'lathials' . Even so it became unlawful the moment Moti Das called on the others to assault Sonu
Gope and they, in response to his invitation, started to chase Sonu Gope who was running away. It is
legitimate to infer from the facts set out above that the intention of those who chased Sonu in
response to a call of that kind, made in the circumstances just narrated, was to assault him,
particularly when it is coupled with the fact that he was in fact assaulted. It is net likely that the
motive which impelled each to run after him arose spontaneously and independently and had no
relation to Moti Das' incitement.
7. Now an assembly which was lawful when it assembled can become unlawful subsequently. That is
the Explanation to Section 141 of the Indian Penal Code. The law on this point has, in our opinion,
been correctly set out in the 18th edition of Ratanlal's Law of Crimes at page 333 in these words:
"An assembly which is lawful in its inception may become unlawful by the subsequent acts of its
members. It may turn unlawful all of a sudden and without previous concert among its members.
But an illegal act of one or two members, not acquiesced in by the others, does not change the

Moti Das And Ors. vs The State Of Bihar on 6 May, 1954
character of the assembly".
Previous concert is not necessary. The common object required by Section 141 differs from the
common intention required by Section 34 in this respect.
8. To return now to the charge. We are unable to agree that the two objects set out, namely the theft
and the assault, are inseparable. If they had been charged as two counts, or placed in two
paragraphs, this objection could not have been taken. But a mere imperfection in the charge cannot
be used to over-throw a conviction unless prejudice can be shown. The irregularity is curable both
under Section 225 and Section 537 of the Criminal Procedure Code.
9. We do not think prejudice is possible in this case. The First Information Report sets out the facts
in detail. They are simple. There are only six accused and a few prosecution witnesses who have told
their story shortly and concisely. Nobody could have been misled by the omission to set out the two
objects of the assembly in separate paragraphs.
We therefore uphold the convictions under Section 147, I. P. C. and the conviction of Misri Das
under Section 148. He was armed with a spear and used it, so his case falls squarely under that
section once it is conceded that the assembly was unlawful.
10. We do not think the sentences call for interference.
The assemblage of 30 or 40 'lathials' at a place where the peaceable reaping of paddy is supposed to
be in progress indicates an intention to use force; and in this case the complainant, who felt himself
aggrieved, did not take the law into his own hands but had recourse to the authorities and sought
and obtained the assistance of those in local charge of the forces of law and order.
In the face of that, to attack an unarmed man, peaceably registering a protest in the very manner
contemplated by the law, does not call for an exercise of leniency.
11. The appeal is dismissed and the convictions and sentences maintained.

Municipal Board, Manglaur vs Sri Mahadeoji Maharaj on 24 November, 1964
Board for several decades the respondent had lost title to

the same, and that while the Municipality had no right to
put up structures on the land the respondent had no right to
object. The High Court in second appeal held that it had
not been shown how the respondent had lost his title to the
Kacha strips of land or patris. On that finding it set
aside the decree of the first appellate court and restored
that of the Trial court. The Municipality appealed to the
Supreme Court by special leave.
It was contended for the appellant Municipality that the
entire pathway between the two drains stood dedicated to the
public; and the fact that only a part of the pathway was
metalled would not detract from the totality of the
dedication.
HELD : (i) Inference of dedication of a highway to the
public may be drawn from a long use of the highway by the
public. The width of the highway depended upon the extent
of the use. The side lands are usually included in the road
for they are necessary for the proper maintenance of the
road. [247 C-D]
Halsbury's Laws of England, 3rd Edn. Vol. 19, p. 49,
referred to.
Harvey v. Truro Rural District Council,, (1903) L.R. 2 Ch.
638, Rex v. Wright (1832) 2 B. & Ad, 681 : 37 R.R. 520 and
Anukul Chandra v. Dacca Dt. Board A.I.R. 1928 Cal. 485,
referred to.
In the present case it was not disputed that the metalled
road was dedicated to the public. The inference that the
side lands were also included in the public way was drawn
easily as the said lands were between the metalled road and
the drains admittedly maintained by the Municipal Board.
[247 E-F]
(ii) When a pathway vests in the Municipality in the above
manner the Municipality does not own the soil. It has the
exclusive right to manage and control the surface of the
soil and so much of the soil below and of the space above
the surface as is necessary to enable it to adequately
maintain the street as a street. It has also a certain
property in the soil of the street which would enable it as
owner to bring a possessory action against trespassers. So
far as the owner of the land is concerned
243
the position is that subject to the right of public to pass
and repass on the highway the owner of the soil in general
remains the occupier of it and as such may maintain action
for trespass against any member of the public who acts in
excess of his rights. [247 F-G]
Partt and Mackenzies Law of Highways, 20th Edn. at p. 4, and
S. Sundaram Ayyar v. Municipal Council of Madura and the
Secretary of State for India in Council, (1902) I.L.R. 25
Mad. 635, referred to.
(iii)The appellant Municipality had no right to put up any
statue or structures on the public pathway which were not

My Space Inc. vs Super Cassettes Industries Ltd. on 23 December, 2016
it was urged, especially in cases of fresh releases where maximum revenue is generated within the
first few days of the FAO(OS) 540/2011 Page 10 release, then by the time it took down the content,
the work would have been communicated to a large audience resulting in substantial revenue loss to
SCIL.
13. MySpace on the other hand argued that no injunction was warranted in the circumstances of the
case it claimed to be only an intermediary and even otherwise since registration was free, no revenue
was being generated because of the works of the users. As for "Adwords" it was argued that these
were nothing more than hints. To illustrate it was stated if a user were to search for Punjaban, a
song would appear in the results and along with it an advertisement, like Punjabi Matrimonial
would pop up automatically because of the similarity in the keyword. It was emphasized that
thousands of videos were uploaded each day to an audience of millions and the sheer volume of data
in question made it impossible for MySpace to manually monitor uploaded content for
infringement. MySpace tried to make a distinction between infringement happening in the real/
physical world and that happening in cyberspace/ virtual world. MySpace stated that to appreciate
the nature of online content vis-à-vis its legal implications, international covenants- WIPO
Copyright Treaty (WCT) and WIPO Performance and Phonogram Treaty (WPPT)had to be taken
into account. It quoted Article 8 of the WIPO Copyright Treaty to explain that its role as a facilitator
did not invite liability associated with infringement. MySpace also stated that by creating a website
for users to share their content it was only acting as an "intermediary", under the Information
Technology Act ("IT Act"). It argued that the provisions of the IT Act and Act had to be read
harmoniously. As a US based company, it took several remedial measures in compliance with the
DMCA. MySpace argued that not reading the IT Act and Act in a complimentary manner would lead
to an absurd situation where an intermediary would be absolved from liability under the IT Act but
would still invite strict liability under the Act; surely this was not the intention of the legislation as
the entire reason for enacting Section 79 of the IT Act was to shield intermediaries from liability
invited by primary infringers as long as the intermediary fulfils the conditions set out in the
provision including exercise of due diligence and lack of actual knowledge.
14. MySpace highlighted that SCIL did not claim relief against any specific infringed work and had
required it to remove all its works- both current as well as future works.
FAO(OS) 540/2011 Page 11 The impossibility of acting on such demand came in when a)MySpace
was required to peruse through the current works, which runs into more than 100,000 titles and b)
MySpace had to monitor of every future work being uploaded on the Internet. In the latter instance,
another issue arose, i.e liability for infringement of works not in existence and were to be uploaded
in the future could not be assumed or fastened. The quia timet relief sought by the plaintiff was
impermissible in law. Lastly, it was argued that MySpace had several safeguard measures in place to
track and remove infringing content, which included the Rights Management Tool, Take Down Stay
Down tool, and the Hash Block Filter. All SCIL had to do was register with MySpace to take benefit
of these technologies. In the absence of the plaintiff taking such recourse, the entire burden of
liability could not have been transferred to the intermediary alone.

Naga People'S Movement, Of Human ... vs Union Of India on 27 November, 1997
case on hand, if a legislation, apparently enacted under one Entry in the list, falls in
plain truth and fact, within the content, not of that Entry but of one assigned to
another legislature, it can be struck down as colourable even if the motive were most
commendable. In other words, the letter of the law notwithstanding, what is the pith
and substance of the Act? Does it 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."
[pp. 349, 350] The use of the expression "colourable legislation"
seeks to convey that by enacting the legislation in question the legislature is seeking to do indirectly
what it cannot do directly. But ultimately the issue boils down to the question whether the
legislature had the competence to enact the legislation because if the impugned legislation falls
within the competence of the legislature the question of doing something indirectly which cannot be
done directly does not arise.
As regards the competence of Parliament to enact the Central Act, we have already found that
keeping in view Entry 1 of the State List and Article 248 read with Entry 97 and Entries 2 and 2A of
the Union List Parliament was competent to enact the Central Act in 1958 in exercise of its
legislative power under Entry 2 of the Union List and Article 248 read with Entry 97 of the Union
List and, after the forty-second amendment of the Constitution, the legislative power to enact the
said legislation is expressly conferred under Entry 2A of the Union list and that it cannot be
regarded as a law falling under Entry 1 of the State List. Since Parliament is competent to enact the
Central Act, it is not open to challenge on the ground of being a colourable legislation or a fraud on
the legislative power conferred on Parliament.
Having dealt with the question of legislative competence of Parliament to enact the Central Act, we
would now proceed to deal with the submissions of the learned counsel assailing the provisions
contained in the Act. The expression 'disturbed area' has been defined in Section 2(b) to mean an
area which is for the time being declared by notification under Section 3 to be a disturbed area. Ms.
Indira Jaising has assailed the validity of the said provision on the ground that it is vague inasmuch
as it does not lay down any guidelines for declaring an area to be a 'disturbed area'. We do not find
any substance in this contention. Section 2(b) has to be read with Section 3 which contains the
power to declare an areas to be a 'disturbed area'. In the said section declaration about disturbed
area can be made where the Governor of that State or the Administrator of that Union Territory of
the Central Government is of the opinion that the whole or any part of such Stat or Union Territory,
as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid
of the Civil power is necessary. Since the use of armed forces of the Union in aid of the civil power in
a state would be in discharge of the obligation imposed on the Union under Article 355 to protect the
State against internal disturbance, the disturbance in the area to be declared as 'disturbed area' has
to be of such a nature that the Union would be obliged to protect the State against such disturbance.

Namit Sharma vs Union Of India on 13 September, 2012
of life. Still of greater significance is the inclusion of privacy or certain protection in the process of
disclosure, under the right to information under the Act. Sometimes, information ought not to be
disclosed in the larger public interest.
37. The courts have observed that when the law making power of a State is restricted by a written
fundamental law, then any law enacted, which is opposed to such fundamental law, being in excess
of fundamental authority, is a nullity. Inequality is one such example. Still, reasonable classification
is permissible under the Indian Constitution. Surrounding circumstances can be taken into
consideration in support of the constitutionality of the law which is otherwise hostile or
discriminatory in nature, but the circumstances must be such as to justify the discriminatory
treatment or the classification, subserving the object sought to be achieved. Mere apprehension of
the order being used against some persons is no ground to hold it illegal or unconstitutional
particularly when its legality or constitutionality has not been challenged. {Ref. K. Karunakaran v.
State of Kerala & Anr. [(2000) 3 SCC 761]}. To raise the plea of Article 14 of the Constitution, the
element of discrimination and arbitrariness has to be brought out in clear terms. The Courts have to
keep in mind that by the process of classification, the State has the power of determining who
should be regarded as a class for the purposes of legislation and in relation to law enacted on a
particular subject. The power, no doubt, to some degree is likely to produce some inequality but if a
law deals with liberties of a number of individuals or well defined classes, it is not open of the charge
of denial of equal protection on the ground that has no application to other persons. Classification,
thus, means segregation in classes which have a systematic relation usually found in common
properties and characteristics. It postulates a rational basis and does not mean herding together of
certain persons and classes arbitrarily, as already noticed. The differentia which is the basis of the
classification and the object of the Act are distinct things and what is necessary is that there must be
a nexus between them. The basis of testing constitutionality, particularly on the ground of
discrimination, should not be made by raising a presumption that the authorities are acting in an
arbitrary manner. No classification can be arbitrary. One of the known concepts of constitutional
interpretation is that the legislature cannot be expected to carve out classification which may be
scientifically perfect or logically complete or which may satisfy the expectations of all concerned.
The Courts would respect the classification dictated by the wisdom of the Legislature and shall
interfere only on being convinced that the classification would result in pronounced inequality or
palpable arbitrariness tested on the touchstone of Article 14 of the Constitution. {Ref. Welfare
Association of Allottees of Residential Premises, Maharashtra v. Ranjit P. Gohil [(2003) 9 SCC
358]}.
38. The rule of equality or equal protection does not require that a State must choose between
attacking every aspect of a problem or not attacking the problem at all, and particularly with respect
to social welfare programme. So long as the line drawn, by the State is rationally supportable, the
Courts will not interpose their judgment as to the appropriate stopping point. A statute is not invalid
because it might have gone further than it did, since the legislature need not strike at all evils at the
same time and may address itself to the phase of the problem which seemed most acute to the
legislative mind. A classification based on experience was a reasonable classification, and that it had
a rational nexus to the object thereof and to hold otherwise would be detrimental to the interest of
the service itself. This opinion was taken by this Court in the case of State of UP & Ors. v. J.P.

Nazir Khan And Ors vs State Of Delhi on 22 August, 2003
submitted that the activities cannot be treated as an offence against the State. Chapter VI of IPC
relates to offence of the State. The Trial Court has convicted the accused under Sections 121A, 122
and 124 IPC. For convicting the accused persons under the aforesaid provisions, the trial Court has
relied on the fact that the accused persons were trying to overawe the Government of India by
criminal force and to bring out hatred and contempt in the people of India and to arouse
dissatisfaction in a section of people in India against the Government of India established by laws
and collected materials and arms for the aforesaid offences.
The line dividing preaching disaffection towards the Government and legitimate political activity in
a democratic set up cannot be neatly drawn. Where legitimate political criticism of the Government
in power ends and disaffection begins, cannot be ascertained with precision. The demarcating line is
thin and wavy. The Indian Law Commissioners in their Second Report dated 24.6.1847 had
observed We conceive the term "wages war against the Government" naturally to import a person
arraying himself in defiance of the Government in like manner and by like means as a foreign enemy
would do, and it seems to us, we presume it did to the authors of the Code that any definition of the
term so unambiguous would be superfluous". Mere collection of men, arms and ammunitions does
not amount to waging war.
There is a difference, says Foster: (3 Crown cases, pp.208, 209 and 210) "between those
insurrections which have carried the appearance of an army formed under leaders, and provided
with military weapons, and with drums, colours, etc., and those other disorderly tumultuous
assemblies which have been drawn together and conducted to purposes manifestly unlawful, but
without any of the ordinary shew and apparatus of war before mentioned.
"I do not think any great stress can be laid on that distinction. It is true, that in case of levying war
the indictments generally charge, that the defendants were armed and arrayed in a warlike manner;
and, where the case would admit of it, the other circumstances of swords, guns, drums, colours etc.,
have been added. But I think the merits of the case have never turned singly on any of these
circumstances".
"In the cases of Damaree and Purchase,...there was nothing giving in evidence of the usual
pageantry of war, no military weapons, no banners or drums, nor any regular consultation previous
to the rising; and yet the want of these circumstances weighed nothing with the Court, though the
prisoners' counsel insisted much on that matter. The number of the insurgents supplied the want of
military weapons; and they were provided with axes, crows, and other tools of the like nature,
proper for the mischief they intended to effect.... "The true criterion, therefore, in all these cases is,
Quo animo did the parties assemble? For if the assembly be upon account of some private quarrel,
or to take revenge on particular persons, the statute of treasons hath already determined that point
in favour of the subject....
"Upon the same principle and within the reason and equity of the statute, risings to maintain a
private claim of right, or to destroy particular inclosures, or to remove nuisance, which affected or
were thought to affect in point of interest the parties assembled for these purposes, or to break
prisons in order to release particular persons without any other circumstances of aggravation, have

Om Kumar And Ors vs Union Of India on 17 November, 2000
I (a) Wednesbury principle:
Lord Greene said in 1948 in the Wednesbury case that when a statute gave discretion to an
administrator to take a decision, the scope of judicial review would remain limited. He said that
interference was not permissible unless one or other of the following conditions were
satisfied-namely the order was contrary to law, or relevant factors were not considered, or irrelevant
factors were considered; or the decision was one which no reasonable person could have taken.
These principles were consistently followed in UK and in India to judge the validity of
administrative action. It is equally well known that in 1983, Lord Diplock in Council for Civil
Services Union v. Minister of Civil Services, (1983) 1 AC 768 (called the GCHQ case) summarised the
principles of judicial review of administrative action as based upon one or other of the following-viz.
Illegality, procedural irregularity and irrationality. He, however, opined that 'proportionality' was a
'future possibility.'
(b) Proportionality:
The principle originated in Prussia in the nineteenth Century and has since been adopted in
Germany, France and other European countries. The European Court of Justice at Luxembourg and
the European Court of Human Rights at Strasbourg have applied the principle while judging the
validity of administrative action. But even long before that, the Indian Supreme Court had applied
the principle of 'proportionality' to legislative action since 1950, as stated in detail below.
By 'proportionality', we mean the question whether, while regulating exercise of fundamental rights,
the appropriate or least restrictive choice of measures has been made by the legislature or the
administrator so as to achieve the object of the legislation or the purpose of the administrative
order, as the case may be. Under the principle, the Court will see that the legislature and the
administrative authority 'maintain a proper balance between the adverse effects which the
legislation or the administrative order may have on the rights, liberties or interests of persons
keeping in mind the purpose which they were intended to serve'. The legislature and the
administrative authority are, however, given an area of discretion or a range of choices but as to
whether the choice made infringes the rights excessively or not is for the Court. That is what is
meant by proportionality.
The above principle of proportionality has been applied by the European Court to protect the rights
guaranteed under the European Convention for the Protection of Human Rights and Fundamental
Freedoms, 1950 and, in particular, for considering whether restrictions imposed were restrictions
which were 'necessary'-Within Articles 8 to 11 of the said convention (corresponding to our Article
19(1) and to find out whether the restrictions imposed on fundamental freedoms were more
excessive than required. (Handyside v. UK, (1976) I EHR p. 737. Articles 2 and 5 of the Convention
contain provisions similar to Article 21 of our Constitution relating to life and liberty. The European
Court has applied the principle of proportionality also to questions of discrimination under Article
14 of the Convention (corresponding to Article 14 of our Constitution). (See European
Administrative Law by J. Schwarze, 1992, pp. 677-866.

P. Hemalatha vs The Govt. Of Andhra Pradesh on 23 April, 1976
Andhra High Court

P. Hemalatha vs The Govt. Of Andhra Pradesh on 23 April, 1976
Equivalent citations: AIR 1976 AP 375
Author: S Rao
Bench: S Rao, A Kuppu-Swami, Lakshmaiah
JUDGMENT Sambasiva Rao, J.
1. I agree with the conclusion drawn by my brothers Kuppuswami and Lakshmaiah, JJ., in their
separate judgments, namely that the petition be dismissed.
2. The meaning and scope of Section 124-A, I.P.C. are well known and well established. After the two
opinions of my learned brothers, it is unnecessary for me to elaborate the legal position. A mere
criticism or denunciation of the Government established by law is not objectionable. Citizens are
certainly entitled to express their grievances and to endeavour to get them redressed through lawful
means. However, if these attempts or exhortations bring the established Government or tend to
bring it into hatred and contempt, they certainly come within the ambit of sedition as stated in Sec.
124-A, I.P.C. The test that should be applied is to find out whether any article or articles intend to
have the effect of creating feelings of hostility towards Government and to excite disaffection. I am
not referring to the case law on the point since they have been considered at length by my learned
brother.
3. Now the question is whether the issue of 'Srujana' of May 1974 contains material which causes or
tends to cause such disaffection. In the first poem complained of, people are exhorted to break open
godowns and to cut to pieces who come to obstruct. It is also declared that the rickshaw-puller will
go to the forest to take up the fight and before he goes away, he will cut the throat of the money
grabber (sait) with all vengeance. In the third one, poor people are exhorted to take up axes and
sickles and fight. This fight is to put an end to leaches like landlords and exploiters. The way of
Naxalbari and the line of Charu Babu, Satyam etc., which are well known to be violent methods of
changing the society and the Government, are acclaimed as the best to attain justice. The last one
visualises armed struggle behind the strike (at that time all India Railway strike was going on). It
ends with saying that there will be no rest till the Government is overthrown with arms.
4. These passages certainly intended to bring into hatred and contempt the Government established
by law in India and to excite disaffection towards it. They straightway walk into the ambit of Section
124-A, I.P.C. I am therefore satisfied that the Government of Andhra Pradesh is justified in
forfeiting the said issue of 'Srujana'.
5. Consequently, I join my brothers in dismissing the petition.
Alladi Kuppuswami, J.
6. I have gone through the judgment of Lakshmaiah, J. While I agree with the ultimate conclusion
that the petition merits dismissal I would like to give my own reasons.

P.K. Bhasin vs Union Of India And Ors. on 19 April, 1991
(23) Mr. Vaze was right in contending that the Court should take a holistic and well integrated view
of the Constitution, and then determine as to whether the Judicial Service can be considered to be a
service under the State or not, within the meaning of Article 16(4) of the Constitution.
(24) We find support for this line of approach in one of the cases cited by Mr. Rohatgi himself, the
case of L. V. A. Dikshitulu (supra). That case pertained both to judicial officers as well as officers and
employees of the High Court and on the facts of the case it was held that by virtue of Article 229 and
Article 235. vesting of disciplinary jurisdiction in respect to a judicial officer in the High Court is
subject only to the powers of the Governor in the matter of appointment, dismissal, removal and
reduction in rank and also initial posting and promotion to the cadre of District Judges. It was
nevertheless held that different interpretations of the term, whether Judicial Service is a service
under the State, or of the State, arise in relation to different Articles of the Constitution. It was
noticed in that very judgment that for the purpose of Article 311, the phrase "a person who is a
member of a civil service of a State, shall include officers and servants of the High Court as also
judicial officers".
(25) On this parity of reasoning, it can very well be said that a provision like Article 16(4) of the
Constitution, which advances one of the salient principles enshrined in the Constitution, namely,
special treatment to certain categories of citizens, and Scheduled Castes and Scheduled Tribes being
one of those categories as provided in Article 335, which falls in Part Xvi of the Constitution headed
: "SPECIAL Provisions Relating To Certain CLASSES", has to be read in context of the
Constitutional Scheme.
(26) We draw support for this view from the observations made by the Supreme Court in the case of
Shankalchand Himatlal Sheth (supra) that "the words used in a statute cannot be read in isolation :
their colour and content are derived from their context and, therefore, every word in a statute must
be examined in its context".
(27) We have thus no hesitation in rejecting his specious argument of the petitioners that there can
be no provision for reservation in the Service for the reason that Judicial Service is not a service
under the State; particularly, when, as we have held that Judiciary is one of the organs of the State,
just as Executive and Legislature are other two organs. We are also firmly of the view that 'State' as
an entity, is distinct from 'Government' of a State.
(28) This argument otherwise also is academic in nature in so far as the question of reservation for
Scheduled Castes and Scheduled Tribes is concerned because the more specific source for this
reservation is Article 15(4), which provides as under : "15. Prohibition of discrimination on grounds
of religion, race, caste, sex or place of birth : (1).................................... (2) ....................................
(3).................................... (4) Nothing in this article or in clause (2) of Article 29 shall prevent the
State from making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes."
(29) This removes all impediments in the way of the State, from making special provision for the
advancement of, inter alia, Scheduled Castes and Scheduled Tribes. we have already noticed that the

P.M. Ashwathanarayana Setty & ... vs State Of Karnataka & Ors on 22 September, 1988
Indian Organic Chemicals v. Chemtax Fibres, [1983] Bom LR 406 Secretary, Government of Madras
Home Department v. Zenith Lamp & Electrial Ltd., ILR 1968 (Madras) 247 overruled.
PG NO 159 (6) Though legislative measures dealing with economic regulation are not outside article
14, it is well recognised that the State enjoys the widest latitude where measures of economic
regulation are,concerned. These measures for fiscal and economic regulation involve an evaluation
of diverse and quite often conflicting economic criteria and adjustment and balancing of various
conflicting social and economic values and interests. It is for the State to decide what economic and
social policy it should pursue and what discriminations advance those social and economic policies.
In view of the inherent complexity of these fiscal adjustments, courts give a larger discretion to the
Legislature in the matter of its preferences of economic and social policies and effectuate the chosen
system in all possible and reasonable ways. [187G-H; 188A-B] East India Tobacoo Co. v. State of
Andhra Pradesh, [1963] 1 SCR 411; The State of Gujarat & Anr. v. Shri Ambica Mills Ltd.
Ahmedabad, [1974] 3 SCR 764 referred to. (7) The lack of perfection in a legislative measure does
not necessarily imply its unconstitutionality. It is rightly said that no economic measure has yet
been devised which is free from all discriminatory impact and that is such a complex arena in which
no perfect alternatives exist, the court does well not to impose too rigorous a standard of criticism.
under the equal protection clause. reviewing fiscal services. [189F-G ] G.K. Krishnan etc. v. The Slate
of Tamil Nadu [1975] 2 SCR 715 730; San Antonic Independent School Districf v. Bodriguer. 411
U.S.I. at p. 41.
Income Tax Officer, Shillong & Anr. v. N. Takim Roy Rymbai etc. [1976] 3 SCR 413, referred to.
8. It is trite that for purposes of testing a law enacted by one State in exercise of its own independent
legishtive powers for its alleged violation of Article 14 it cannot be contrasted-with laws enacted by
other States. [192C] The State of Madhya Pradesh v. G.C. Mandawar, [1955] 1 SCR 599, referred to.
(9) Having regard to the nature and complexity of this matter It is, perhaps, difficult to say that the
ad-valorem principle which may not be an ideal basis for distribution of a fee can at the same time
be said to be so irrational PG NO 160 as to incur any unconstitutional infirmity. The presumption of
constitutionality of laws requires that any doubt as to the constitutionality of a law has to be
resolved in favour of constitutionality. Though the scheme cannot be upheld, at the same time, it
cannot be struck down either. [192E-F] (10) The State is in theory entitled to raise the totality of the
expenses by way of fee. Any interference with the present yardstick for sharing the burden might in
turn produce a yardstick less advantageous to litigants at lower levels. [192G] (11) The High Court
has struck down the provisions of section 29(1) read with entry 10 of Schedule I of the Bombay
Court Fees Act, 1959 on the ground that the levy of court fee on proceedings for grant of probate and
letters of administration ad-valorem without the upper limit prescribed for all other litigants is
discriminatory. If in respect of all other suits of whatever nature and complexity an upper limit of
Rs.15,000 on the court fee is fixed, there is no logical justification for singling out this proceeding
for an ad-valorem impost without the benefit of some upper limit prescribed by the same statute
respecting all other litigants. [193A-B; F] (12) The Directive Principles of State Policy though not
strictly enforceable in courts of law, are yet fundamental in the governance in the country. They
constitute fons-juris in a Welfare State. [194E] U.B.S.E. Board v. Hari Shanker, AIR 1979 SC 69

Parisons Agrotech (P) Ltd. & Anr vs Union Of India & Ors on 21 August, 2015
No doubt, the writ court has adequate power of judicial review in respect of such decisions.
However, once it is found that there is sufficient material for taking a particular policy decision,
bringing it within the four corners of Article 14 of the Constitution, power of judicial review would
not extend to determine the correctness of such a policy decision or to indulge into the exercise of
finding out whether there could be more appropriate or better alternatives. Once we find that
parameters of Article 14 are satisfied; there was due application of mind in arriving at the decision
which is backed by cogent material; the decision is not arbitrary or irrational and; it is taken in
public interest, the Court has to respect such a decision of the Executive as the policy making is the
domain of the Executive and the decision in question has passed the test of the judicial review. In
Union of India v. Dinesh Engineering Corporation[2], this Court delineated the aforesaid principle
of judicial review in the following manner:
there is no doubt that this Court has held in more than one case that where the decision of the
authority is in regard to the policy matter, this Court will not ordinarily interfere since these policy
matters are taken based on expert knowledge of the persons concerned and courts are normally not
equipped to question the correctness of a policy decision. But then this does not mean that the
courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping
in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination
or unreasonableness, bearing in mind the material on record. Any decision be it a simple
administrative decision or policy decision, if taken without considering the relevant facts, can only
be termed as an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be
violative of the mandate of Article 14 of the Constitution. The power of the Court under writ
jurisdiction has been discussed in Asif Hameed and Others. v. State of Jammu and Kashmir and
Others[3] in paras 17 and 19, which read as under:
17. Before adverting to the controversy directly involved in these appeals we may have a fresh look
on the inter se functioning of the three organs of democracy under our Constitution. Although the
doctrine of separation of powers has not been recognised under the Constitution in its absolute
rigidity but the Constitution makers have meticulously defined the functions of various organs of the
State. Legislature, executive and judiciary have to function within their own spheres demarcated
under the Constitution. No organ can usurp the functions assigned to another. The Constitution
trusts to the judgment of these organs to function and exercise their discretion by strictly following
the procedure prescribed therein. The functioning of democracy depends upon the strength and
independence of each of its organs. Legislature and executive, the two facets of people's will has no
power over sword or the purse nonetheless it has power to ensure that the aforesaid two main
organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial
review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and
executive. The expanding horizon of judicial review has taken in its fold the concept of social and
economic justice. While exercise of powers by the legislature and executive is subject to judicial
restraint, the only check on our own exercise of power is the self-imposed discipline of judicial
restraint.
xxx xxx xxx

R. S. Joshi, S.T.O. Gujarat Etc. ... vs Ajit Mills Ltd., Ahmedabad & Anr. ... on 31 August, 1977
colourable device or as supplementary, not complementary.

[348 F]
1. (a) The true key to constitutional construction is to
view the equity of the statute and sense the social
mission of the law, language permitting against the triune
facets of justice highlighted in the Preamble to the
Paramount Parchment, read with a spacious signification of
the listed entries concerned. A law hasto be adjudged
for its constitutionality by the generality of cases it
covers,not by the freaks and exceptions it martyrs. [348
H]
(b) The professed object of the law being clear, the motive
of the legislature is irrelevant to, castigate an Act as a
colourable device. The interdict on public mischief and the
insurance of consumer interests against likely, albeit,
unwitting or ex abundanti cautela excesses in the working of
a statute are not merely an ancillary power but a necessary
obligation of a social welfare state. One potent
prohibitory process for this consummation is to penalise the
trader by casting a no-fault or absolute liability to 'cough
up' to the state the total unjust takings snapped up and
retained by him by way of tax, where tax is not so due from
him. [348 D-E]
(c)In a developing country, with the mass of the people
illiterate and below the poverty line, and most of the
commodities concerned constitute their daily requirements,
there is sufficient nexus between the power to tax and the
incidental power to protect purchasers from being subjected
to an unlawful burden. Social justice clauses integrally
connected with the taxing provisions, cannot be viewed as a
mere device or wanting in incidentality. [355 H]
(d)The legal test that divides the constitutional from the
unconstitutional is that if all that the legislation means
to do is to take over, whatever the verbal veils worn, the
collections which were ex-hypothesi not sales tax but were
illegal additives as if sales tax were due, then such an
expropriation of' the expropriators is beyond entry 54 and,
therefore, ultra vires. On the other hand, all real
punitive measures, including the dissuasive penalty of con-
fiscating the excess collections, are valid, being within
the range of ancillary powers of the legislature competent
to exact a sales tax levy. [349 B-C]
2. (a) "Colourable" is not 'tainted with bad faith or evil
motive"; it is not pejorative or crooked. Conceptually
'colourability' is bound up with incompetency 'Colour'
according to Black's Legal Dictionary, is 'an appearance,
semblance or simulacrum, as distinguished from that which
sereal........ a deceptive appearance...... a lack of
reality'. A thing is colourable which is, in appearance
only not in reality, what it purports to be., In Indian
terms, it is maya. In the jurisprudence of power,
colourable exercise of or fraud on legislative 'power or
fraud on the Constitution are expressions which merely mean

R. S. Joshi, S.T.O. Gujarat Etc. ... vs Ajit Mills Ltd., Ahmedabad & Anr. ... on 31 August, 1977
that the legislature is incompetent to enact a particular

law, although the label of competency is stuck or it, and
then itis colourable legislation. [349 F]
(b) If the legislature is competent to pass theparticular
law, the motives which impel it to pass the law are
really irrelevant.If a legislation, apparently enacted
under one Entry in the List, falls in plaintruth and fact,
within the content, not of that Entry but of one assigned to
another legislature it can be struck down as colourable even
if the motive were most commendable. [349 H]
(c)If the questions : what is the pith and substance of
the Act; does it fall within any entry assigned to that
legislature in pith and substance, or as covered by the
ancillary power implied in that Entry, can the legislation
be read down reasonably to bring it within the legislature's
constitutional powers ? 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. [356 A]
3.Having regard to the object of s. 37 read with s. 46,
forfeiture has a punitive impact. [350 F]
340
(a)If forfeiture is punitive in infliction, 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. [350 E]
(b)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'. [350
G]
State of Maryland v. The Baltimore & Ohio RR Co.-(11 Led.
714, 722) and Bankara Municipality v. Lalji Raja & Sons:
(AIR 1953 SC 248, 250) referred to.
(c)The word 'forfeiture' must bear the same meaning of a
penalty for breach of a prohibitory direction. [351E-F]
(d)In the instant case the fact that there was
arithmetical identity between the figures of the illegal
collections made by the dealers and the amounts forfeited to
the State cannot create a conceptual confusion that what is
provided is not punishment but a transference of funds. If
this view be correcting must be held that it is so-the
legislature, by inflicting the forfeiture, does not go
outside the crease when it hits out against the dealer and
deprives him, by the penalty of the law, of the amount
illegally gathered from the customers. The Criminal
Procedure Code, Customs & Excise Laws and several other
penal statutes in India have used diction which accepts
forfeiture as a kind of penalty. [351 F-G]
(e)The contention that s. 37(1) fastens a heavy liability

Ramji Lal Modi vs The State Of U.P on 5 April, 1957
was filed in the court of the District Magistrate, Kanpur, by the Senior Superintendent of Police,
Kanpur, against the petitioner for offences under ss. 153A and 295A of the Indian Penal Code. The
Magistrate by his order dated August 5, 1953, charged the petitioner under ss. 153A and 295A and
committed the petitioner to the Sessions Court of Kanpur for trial. The petitioner pleaded not guilty.
The learned Sessions Judge, by his judgment dated November 16, 1953, acquitted the petitioner of
the charge under s. 153 Abut convicted him under s. 295A and sentenced him to 18 months rigorous
imprisonment and a fine of Rs. 2,000 and, in default of payment of the fine, to further rigorous
imprisonment of 4 months. The petitioner filed an appeal to the High Court at Allahabad. The
learned Single Judge, by his judgment dated October 25, 1956, held that the article was published
with the deliberate and malicious intention of outraging the religious feelings of muslims and that
the petitioner was guilty under s. 295A of the Indian Penal Code. The learned Judge, however,
reduced the sentence of imprisonment to 12 months and -the fine from Rs. 2,000 to Rs. 250 only.
An application for certificate to appeal to this Court under Arts. 132 and 134 having been rejected by
the High Court on October 30, 1956, the petitioner moved this Court for special leave to appeal from
the judgment of the Allahabad High Court dated October 25, 1956. The petitioner also on December
5, 1956, presented the present petition under Art. 32 for the reliefs mentioned above. The petitioner
also made an application in this Court along with the writ petition for stay of the sentence passed on
him. On December 18, 1956, both the stay application and the petition for special leave were
dismissed by this Court. The petition under Art. 32 has now come up for hearing. Presumably the
petitioner has surrendered and is undergoing the sentence of imprisonment.
Learned counsel appearing in support of this petition urges that s. 295A of the Indian Penal Code is
ultra vires and void inasmuch as it interferes with the petitioner's right to freedom of speech and
expression guaranteed to him as a citizen of India by Art. 19(1)(a) of our Constitution. The
contention is that this section cannot be supported as a law imposing reasonable restrictions on the
exercise of the right conferred by Art. 19(1)(a) as provided in cl. (2) of the said Article. Learned
counsel says that the interest of public order is the only thing in cl. (2) which may possibly be relied
upon by the State as affording a justification for its claim for the validity of the impugned section. A
law interfering with the freedom of speech and expression and imposing a punishment for its breach
may, says counsel, be "in the interests of public order" only if the likelihood of public disorder is
made an ingredient of the offence and the prevention of public disorder is a matter of proximate and
not remote consideration. Learned counsel points out that insulting the religion or the religious
beliefs of a class of citizens of India may not lead to public disorder in all cases although it may do so
in some case. Therefore, where a law purports, as the impugned section does, to authorise the
imposition of restriction on the exercise of the fundamental right to freedom of speech and
expression in language wide enough to cover restrictions both within and without the limitation of
constitutionally permissible legislative action affecting such right, the court should not uphold it
even in so far as it may be applied within the constitutionally permissible limits as it is not severable.
So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot
be ruled out it must, according to learned counsel, be held to be wholly unconstitutional and void.
Reference has been made to the cases of Romesh Thappar v. The St-ate of Madras(1) and Brij
Bushan v. The State of Delhi (2).

Re-Ramlila Maidan Incident Dt ... vs Home Secretary And Ors on 23 February, 2012
28. The courts must bear a clear distinction in mind with regard to `restriction' and `prohibition'.
They are expressions which cannot be used inter-changeably as they have different connotations
and consequences in law. Wherever a `prohibition' is imposed, besides satisfying all the tests of a
reasonable `restriction', it must also satisfy the requirement that any lesser alternative would be
inadequate. Furthermore, whether a restriction, in effect, amounts to a total prohibition or not, is a
question of fact which has to be determined with regard to facts and circumstances of each case.
This Court in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Others
[(2005) 8 SCC 534] held as under:-
"75. Three propositions are well settled: (i) 'restriction' includes cases of 'prohibition';
(ii) the standard for judging reasonability of restriction or restriction amounting to
prohibition remains the same, excepting that a total prohibition must also satisfy the
test that a lesser alternative would be inadequate; and (iii) whether a restriction in
effect amounts to a total prohibition is a question of fact which shall have to be
determined with regard to the facts and circumstances of each case, the ambit of the
right and the effect of the restriction upon the exercise of that right....."
29. The obvious result of the above discussion is that a restriction imposed in any form has to be
reasonable and to that extent, it must stand the scrutiny of judicial review. It cannot be arbitrary or
excessive. It must possess a direct and proximate nexus with the object sought to be achieved.
Whenever and wherever any restriction is imposed upon the right to freedom of speech and
expression, it must be within the framework of the prescribed law, as subscribed by Article 19(2) of
the Constitution.
30. As already noticed, rights, restrictions and duties co-exist.
As, on the one hand, it is necessary to maintain and preserve the freedom of speech and expression
in a democracy, there, on the other, it is also necessary to place reins on this freedom for the
maintenance of social order. The term `social order' has a very wide ambit. It includes `law and
order', `public order' as well as `the security of the State'. The security of the State is the core subject
and public order as well as law and order follow the same.
In the case of Romesh Thappar v. State of Madras [1950 SCR 594], this Court took the view that
local breaches of public order were no grounds for restricting the freedom of speech guaranteed by
the Constitution. This led to the Constitutional (First Amendment) Act, 1951 and consequently, this
Court in the case of Dr. Ram Manohar Lohia v. State of Bihar [AIR 1966 SC 740] stated that an
activity which affects `law and order' may not necessarily affect `public order' and an activity which
might be prejudicial to `public order' may not necessarily affect `security of the State'. Absence of
`public order' is an aggravated form of disturbance of public peace which affects the general current
of public life. Any act which merely affects the security of others may not constitute a breach of
`public order'.

S. Rangarajan Etc vs P. Jagjivan Ram on 30 March, 1989
values in particular, should not be allowed to be sacrificed

in the guise of social change or cultural assimilation.
[216G-H]
The Censors should be responsive to social change and
they must go with the current climate. The Censors may
display more sensitivity
206
to movies which will have a markedly deleterious effect to
lower the moral standards of those who see it. [217C-D]
If the film is unobjectionable and cannot constitution-
ally be restricted under Article 19(2), freedom of expres-
sion cannot be suppressed on account of threat of demonstra-
tion and processions or threats of violence. That would
tantamount to negation of the rule of law and a surrender to
black mail and intimidation. It is the duty of the State to
protect the freedom of expression since it is a liberty
guaranteed against the State. The State cannot plead its
inability to handle the hostile audience problem. It is its
obligatory duty to prevent it and protect the freedom of
expression. [230C-D]
The Revising Committees have approved the film. The
members thereof come from different walks of life with
variegated experiences. They represent the cross section of
the community. They have judged the film in the light of the
objectives of the Act and the guidelines provided for the
purpose. There is nothing wrong or contrary to the Constitu-
tion in approving the film for public exhibition. [230E-F]
The framework of the Indian Constitution differs from
the First Amendment to the U.S. Constitution. Article
19(1)(a) guarantees to all citizens the right to freedom of
speech and expression. The freedom of the expression means
the right to express one's opinion by words of mouth, writ-
ing, printing, picture or in any other manner, it would thus
include the freedom of communication and the right to propa-
gate or publish opinion. The communication of ideas could be
made through any medium, newspaper, magazine or movie. But
this right is subject to reasonable restrictions on grounds
set out under Article 19(2). Reasonable limitations can be
put in the interest of sovereignty and integrity of India,
the security of the State, friendly relations with foreign
States, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offence.
[212B-D]
In matters of certification of films, it is necessary to
take prompt action by the respective authorities. The pro-
ducer who has invested a large capital should not be made to
wait needlessly. He has a statutory right to have the valid-
ity of the film determined in accordance with law. It would
be, therefore, proper and indeed appreciative if the film is
reviewed as soon as it is submitted. It is not proper to
form an opinion by dwelling upon stray sentences or isolated
passages disregarding the main theme. [219E; 220B-C]
207

Sajjan Singh vs State Of Rajasthan(With ... on 30 October, 1964
? It is also a matter for consideration whether making a change in a basic feature of the Constitution
can be regarded merely as an amendment or would it be, in effect, rewriting a part of the
Constitution; and if the latter, would it be within the purview of Art. 368 ?
The Constitution has enjoined on every member of Parliament before entering upon his office to
take an oath or make an affirmation to the effect that he will bear true faith and allegiance to the
Constitution. On the other hand under Art. 368 a procedure is prescribed for amending the
Constitution. If upon a literal interpretation of this provision an amendment even of the basic
features of the Constitution would be possible it will be a question for consideration as to how to
harmonise the duty of allegiance to the Constitution with the power to make an amendment to it.
Could the two be harmonised by excluding from the procedure for amendment, alteration of a basic
feature of the Constitution ? It would be of interest to mention that the Supreme Court of Pakistan
has, in Mr. Fazlul Quader Chowdhry v. Mr. Mohd. Abdul Haque(1) held that franchise and form of
government are fundamental features of a Constitution and the power conferred upon the President
by the Constitution of Pakistan to remove difficulties does not extend to making an alteration in a
fundamental feature of the Constitution. For striking down the action of the President under, what
he calls 'sub-constitutional power' Cornelius C.J., relied on the Judges' oath of office. After quoting
the following passage from Cooley's Constitutional Limitations:
"For the constitution of the State is higher in authority than any law, direction, or
order made by anybody or any officer assuming to act under it, since such body or
officer must exercise a delegated authority, and one that must necessarily be
subservient to the instrument by which the delegation is made. In any case of conflict
the fundamental law must govern, and the act in conflict with it must be treated as of
no legal validity." the learned Chief Justice observed "To decide upon the question of
constitutional validity in relation to an act of a statutory authority, how-highso-ever,
is a duty devolving ordinarily upon the superior Courts by virtue of their office, and in
the absence of any bar either express or implied which stands in the way of that duty
being performed in respect of the Order here in question it is a responsibility which
cannot be avoided." (p.
506) (1) 1963 P.L.D. 486.
The observations and the passage from Cooley, quoted here for convenience support what I have
said earlier regarding the power of the Courts to pronounce upon the validity of amendments to the
Constitution.
The Constitution indicates three modes of amendments and assuming that the provisions of Art.
368 confer power on Parliament to amend the Constitution, it will still have to be considered
whether as long as the preamble stands unmended, that power can be exercised with respect to any
of the basic features of the Constitution.
To illustrate my point, as long as the words 'sovereign democratic republic' are there, could the
Constitution be amended so as to depart from the democratic form of Government or its republic

Sakhawat Ali vs The State Of Orissa on 25 November, 1954
provisions of section 23 of the Orissa General Clauses Act (Orissa Act I of 1937) which was relied
upon by the respondent. That section only enables the making of rules or bye-laws or the issue of the
preliminary orders in anticipation of the Act coming into force, which rules, bye- laws or orders
however would not come into effect till the commencement of the Act. The clear provisions of
section 1(5) of the Act however expressly empowered the State Government to hold elections and
thereby validated all the preliminary steps taken for the purpose of holding such election, the only
reservation made being that even though the election under the Act be held such election was not to
take effect till the Act came into force in the particular area. This contention of the appellant
therefore fails. The contention that the disqualification prescribed in section 16(1)(ix) violates the
fundamental rights of the appellant under article 14 and article 19(1)(g) is equally untenable. Article
14 forbids class legislation but does not forbid reasonable classification for the purposes of
legislation. That classification however cannot be arbitrary but must rest upon some real and
substantial distinction bearing a reasonable and just relation to the things in respect of which the
classification is made. In other words the classification must have a reasonable relation to the object
or the purpose sought to be achieved by the impugned legislation. The classification here is of the
legal practitioners who are employed on payment on behalf of the Municipality or act against the
Municipality and those legal practitioners are disqualified from standing as candidates for election.
The object or purpose to be achieved is the purity of public life, which object would certainly be
thwarted if there arose a situation where there was a conflict between interest and duty. The
possibility of such a conflict can be easily visualised, because if a Municipal Councillor is employed
as a paid legal practitioner on behalf of the Municipality there is a likelihood of his misusing his
position for the purposes of obtaining Municipal briefs for himself and persuading the Municipality
to sanction unreasonable fees. Similarly, if he was acting as a legal practitioner against the
Municipality he might in the interests of his client misuse any knowledge which he might have
obtained as a Councillor through his access to the Municipal records or he might sacrifice the
interests of the Municipality for those of his clients. No doubt having regard to the best traditions of
the profession very few legal practitioners would stoop to such tactics, but the Legislature in its
wisdom thought it desirable to eliminate any possibility of a conflict between interest and duty and
aimed at achieving this object or purpose by prescribing the requisite disqualification. The
classification thus would certainly have a reasonable relation to the object or purpose sought to be
achieved.
It was however urged that besides this category there are also other categories where there would be
a possibility of conflict between interest and duty and that in so far as they were not covered by the
disqualifications prescribed by section 16(1) of the Act the provision disqualifying the category to
which the appellant belonged was discriminatory. It was particularly pointed out that a client who
had a litigation against the Municipality was not prevented from standing as a candidate for election
whereas the legal practitioner who held a brief against the Municipality was disqualified, though the
ban against both these categories could be justified on ground of avoidance of conflict between
interest and duty. The simple answer to this contention is that legislation enacted for the
achievement of a particular object or purpose need not be all embracing. It is for the Legislature to
determine what categories it would embrace within the scope of legislation and merely because
certain categories which would stand on the same footing as those which are covered by the
legislation are left out would not render legislation which has been enacted in any manner

Samaruddin And vs Emperor on 4 October, 1912
Calcutta High Court

Samaruddin And vs Emperor on 4 October, 1912
Equivalent citations: 17 Ind Cas 565
Bench: Chitty, Richardson
JUDGMENT
1. In this case, the appellant Samar-ud-din has been convicted by the unanimous verdict of a Jury of
offences under Section 304/149, Indian Penal Code, and Section 147, Indian Penal Code, and has
been sentenced by the Additional Sessions Judge of Dacca to two years' rigorous imprisonment on
each count, the sentences to run concurrently. The appeal is, therefore, open to him only on the
questions of law relating to the charge of the Additional Sessions Judge.
2. The first point that has been urged before us is that the Judge was in error in putting before the
Jury what he calls "a third alternative." It should be stated that before the trial began in the Sessions
Court, the charge was amended and, as eventually framed, the common object alleged was "in order
to take forcible possession of complainant Pandab's land and hut and to assault Pandab, Joydeb,
Chandra Kissore and Karam Ali." The Judge suggested to the Jury that the case might not be
precisely as the prosecution alleged and at the same time might not be what the defence
endeavoured to set up, but something between the two, namely, that the complainant's party might
have gone to turn Madhumala out of possession, that they were resisted and driven out of the land
by the Kusamhati Sardars that up to that point the Kusamhati Sardars, might have been acting
within their rights but that they went further and intoxicated with success or anger or both
determined to teach the complainant's party a lesson and assaulted them, Reliance was placed on
the case of Banga Hadua v. King-Emperor 11 C.L.J. 270 : 5 Ind. Cas. 771 : 11 Cr. L.J. 245 and also on
the cases of the Queen v. Sabed Ali 20 W.R. Cr. 5 : 11 B.L.R. (F.B.) 347 and Wafadar Khan v.
Queen-Empress 21 C. 955. But these cases are quite distinguishable on their facts. We can see no
reason why the Judge should not have made this suggestion to the Jury. He left it entirely open to
them as to whether they would accept it or not and we cannot agree in the contention of the learned
Pleader for the appellant that, if it was accepted, it would entirely destroy the prosecution case, The
Full Bench case of Queen v. Sabed Ali 20 W.R. Cr. 5; 11 B.L.R. (F.B.) 347 cited above, was quite
different from the present as was also the case of Wafadar Khan v. Queen-Empress 21 C. 955. There
the charge was altered at the end of the case for the prosecution and a totally different common
object was alleged. Here, there has been one common object alleged throughout and it cannot be
suggested that the accused did not know exactly what they had to meet.
3. In the second place, it is argued that the learned Judge's explanation of Section 147, Indian Penal
Code, is faulty and that violence cannot mean violence against inanimate objects. No authority has
been cited for such a proposition and we see no reason for restricting the meaning of the word
violence" in the manner stated. It could hardly be said that if an unlawful assembly came together
for the purpose, say, of pulling down a man's house and they proceeded to carry out the object, they
could not be said to have used violence. Then it was urged that, as regards the appellant,
Samaruddin, the Judge did not point out to the Jury exactly what the evidence against him was. We
do not see that there is any force in this contention. The Judge has discussed the whole of the
evidence to the Jury and this man's name is mentioned on more than one occasion. He has told the

Sanjeev Coke Manufacturing ... vs Bharat Coking Coal Ltd. And ... on 10 December, 1982
and the rationale involved in upholding the validity of

Article 31C when it confined its protection to laws enacted
to further Article 39(b) or Article 39(c) should
uncompromisingly lead to the same resolute
1004
conclusion that Article 31 C with its extended protection is
also constitutionally valid. It cannot also be said that the
nature of the Directive Principles enunciated in other
Articles of Part IV of the Constitution is so drastic or
different from the Directive Principle in clauses (b) and
(c) of Article 39, that the extension of constitutional
immunity to laws made to further those principles would
afford the basic structure of the constitution Any
observations made to the contrary in Minerva Mills' case,
[1981] 1 S.C.R. 206 may be held to be obiter. [1016 D-H]
9:2. To contend that a law founded on discrimination is
not entitled to the protection of Article 31 C, as such a
law can never be said to further the directive principles
affirmed in Article 39(b) would be to put the cart before
the horse. If the law made to further directive principle is
necessarily non-discriminatory or is based on a reasonable
classification, then such law does not need any protection
such as that afforded by Article 31 C. Such law would be
valid on its own strength, with no aid from Article 31 C. To
make it a condition precedent that a law seeking the haven
of Article 31 C must not be discriminatory or based on
reasonable classification is to make Article 31 C
meaningless. If Article 14 is not offended, no one need give
any immunity from an attack based on Article 14. [1019 A;
1020 A-B]
The broad egalitarian principle of social and economic
justice for all was was implicit in every Directive
Principle, and, therefore, a law designed to promote a
directive principle, even if it came into conflict with the
formalistic and doctrinaire view of equality before the law,
would most certainly advance the broader egalitarian
principle and the desirable constitutional goal of social
and economic justice to all. If the law was aimed at the
broader egalitarianism of the Directive Principles, Article
31 C protected the law from needless, unending and
rancourous debate on the question whether the law
contravened Article 14's concept of equality before the law.
The law seeking the immunity afforded by Article 31 C must
be a law directing the policy of the State towards securing
a Directive Principle. The object of the law must be to give
effect to the Directive Principle and the connection with
the Directive Principle must not be "same remote or tenuous
connection". [1020 B-F]
9:3. WhenArticle 31 C comes in, Article 14 goes out.
There is no scope for bringing in Article 14 by a side wind
as it were, that is, by equating the rule of equality before
the law of Article 14 with the broad egalitarianism of
Article 39(b) or by treating the principle of Article 14, as

Sapna Singh vs The State Of Bihar & Anr on 11 May, 2017
by the Honble Supreme Court, in the case of Balejee -vs- State of Mysore, AIR 1963 SC 649.
8. The issue involved in this matter is relating to grant of contract following the reservation policy.
At this juncture, we must not be unmindful of the principle laid down by His Lordship J.
BHAGWATI (as he then was), in the case of Ramanna Dayaram Shettey -Vs- International Airport
Authority of India, AIR 1979 SC 1628, as follows:
"Where the government is dealing with the public, whether by giving of jobs or
entering into contracts or issuing quotas or licences or granting other forms of
largess, the government cannot act arbitrarily at its sweet Patna High Court CWJC
No.12055 of 2015 dt.11-05-2017 will and, like a private individual, deal with any
person it pleases, but its action must be in conformity with standard or norm which is
not arbitrarily, irrational or irrelevant."
9. A law is void, if inconsistent with a fundamental right, therefore, a void law is unenforceable,
non-est, and devoid of any legal force. Any law made in contravention of Part III of the Constitution
of India, is dead from the very beginning and cannot at all be taken notice or read for any purpose
whatsoever.
10. Here, we would like to refer the relevant Articles of Part III of Constitution of India. Article 14 of
the Constitution of India guarantees the Right to Equality which is one of the magnificent
corner-stones of Indian democracy. Article 14 runs as follows:
"The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India".
11. Two concepts are involved in Article 14, the first is a negative concept but the second is a positive
concept. The Honble Supreme Court of India, in the case of Sri Srinivasa Theatre -VS- Government
of Tamil Nadu, AIR 1992 SC 1004 held that the two expressions equality before law and equal
protection of laws do not mean the same thing, even if they may be much in common between them.
Equality before law is a Patna High Court CWJC No.12055 of 2015 dt.11-05-2017 dynamic concept
having many facets. One facet is that there shall be no privileged person or class and that none shall
be above law. Another facet is the obligation upon the State to bring about, through the machinery
of law, a more equal society ...."
Though Article 14 prescribes equality before law but the fact remains that all persons are not equal
by nature, attainment or circumstances, and, therefore, a mechanical equality may result in
injustice. Thus, the guarantee against the denial of equal protection of law does not mean that
identically the same Rules of law should be made applicable to all persons, in spite of difference in
circumstances or conditions. The different needs of different classes or sections of people require
differential and separate treatment. It is, therefore, necessary for the State to have the power of
making laws to achieve particulars object and, for that purpose, to distinguish, select and classify
persons and things. In the case of Gauri Shankar -Vs- Union of India, AIR 1955 SC 55, the Honble
Supreme Court observed that "equals should not be treated unlike and unlikes should not be treated

Secretary, Finance Department ... vs West Bengal Registration Service ... on 20 February, 1992
that the scale of pay for the post of Sub-Registrar should have been Rs. 660-1600 which is the basic
scale for the State Services and that the scales of pay for the higher posts in the Registration
Directorate as mentioned earlier should have been correspondingly higher. In view of the duties and
responsibilities of the posts we are of the opinion that upgradation of the scales of pay of these posts
will not be justified. The posts should carry the proposed scales of pay and special pay
corresponding to their existing scales and special pay."
As pointed out earlier the High Court took notice of the revised scales fixed by this body and by
subsequent orders directed that the Sub-Registrars should be placed in revised scale No. 17, ie. Rs.
2200-4000, and the officers above them should be placed in the revised scales Nos. 18 and 19. In
taking the view that the Registration Service was underpaid, the High Court was greatly impressed
by the fact that the Sub-Registrars were conferred gazetted status and the entire service was
designated as State Service and being the head of office and the drawing and disbursing officer as
well, he exercised administrative and financial power and now that the recruitment rule had been
brought on par with the educational qualification as prescribed for Munsiffs, the pay-scales of
Sub-Registrars ought to be the same and cannot be less than that of Munsiffs. Strong reliance was
also placed by the High Court on the observations of the First (State) Pay Commission, extracted
earlier, in support of its conclusion that the State Government had arbitrarily brushed aside the
demand to the Sub-Registrars for higher wages. Holding that the position of a Sub-Registrar was
equivalent to others in State Services, the High Court ruled that they were victims of hostile
discrimination and the Government decision not to accept the weighty recommendations of the Pay
Commission was wholly arbitrary and violative of Articles 14 and 16 of the Constitution. In that view
that it took it allowed the Writ Petition and awarded scale No. 17 (Rs. 660-1600 now revised to Rs.
2200-4000) to them and scales Nos. 18 and 19 to higher level officers in the same department. It is
against these orders that the present appeals are preferred.
From the resume of facts set out hereinabove it clearly emerges that prior to 1953 the post of
Sub-Registrars belonged to the Subordinate Service but by the notification dated July 17, 1953 it was
placed in the State Service w.e.f. January 30, 1953. Being the head of office, a drawing and
disbursing officer with certain administrative and financial powers, and also required to perform
certain quasi-judicial functions, such as, interpreting recitals contained in the documents and
provisions of concerned statutes and rules, counsel for the respondents contended that till 1981
when the educational qualification for entry into that post was graduation of any discipline, the Sub-
Registrars were entitled to be treated above members belonging to Junior Service and pay-scale so
determined but the State authority failed to do so. Counsel further contended that after 1981 the
additional qualification of a degree in law was added to the eligibility criterion and thus the same
was brought on par with Munsiffs and hence they should have been equated with Munsiffs in the
matter of pay-scale, since officers in all services recruited from practicing advocates were given the
same scale. Accepting this line of reasoning the Division Bench of the High Court concluded that the
Government had acted arbitrarily and in violation of Articles 14 and 16 of the Constitution in not
awarding scale No. 17 (Rs. 660-1600) earmarked for State Services by the Second (State) Pay
Commission (which the Government had accepted and implemented) to the Sub- Registrars. It is
thus manifest that the decision of the High Court was based on the facts (i) the post of the Sub-
Registrar was a gazetted post belonging to the State Service

Shri Krishna Sharma vs The State Of West Bengal And Ors. on 11 February, 1954
In "Cases in Constitutional Law" by Keir & Lawson (3rd Edn.) at p. 298 it has been observed that all
that the Crown does in the sphere of foreign affairs falls within the category of acts of State and the,
making of a treaty being an act of State, treaty obligations cannot be enforced in a municipal Court.
In this connection the observations of Lord Coleridge C. J. in -- 'Rustomjee v. Reg' (1876) 2 QBD 69
at p. 73 (K) have also been referred to; in that case it was held, inter alia, that in all that relates to the
making and performance of a treaty with another Sovereign the Crown is not, and cannot be, either
a trustee or an agent for any subject whatsoever. This case was followed by the House of Lords in the
case of -- 'Civilian War Claimants Association Ltd. v. The King' 1932 AC 14 (L).
Mr. Kar no doubt drew our attention to a passage in the judgment of Lord Atkin to the effect that
there is nothing to prevent the Crown acting as agent or trustee if it deliberately chooses to do so.
We do not find anything in the present case, however, to hold that any such deliberate choice was
made. Our attention has also been drawn to Sections 519 and 520 of Oppenheim's International
Law, 6th Edn. (Vol. I at pp. 929-30). It is pointed out there that as International Law is primarily a
law between States only and exclusively, treaties as a rule can have effect upon States only, though it
is also stated that this rule can be altered by the express or implied terms of the treaty, in which case
its provisions become self-executory. It would seem from a consideration of the above authorities
that the general principle is that though municipal Courts are competent to inquire into matters
involving the construction of treaties and other acts of State, treaty obligations cannot be enforced in
municipal Courts. It is true that the term 'act of State' is sometimes used loosely to express any
lawful act done by the executive Government and if it affects the person or property of subjects
within its jurisdiction, its legality can be questioned in municipal Courts. The present case is,
however, not of that nature: here we are directly concerned with the question of the right of
municipal Courts to enforce treaty obligations. From this standpoint the present petitions are not
entitled to succeed.
19. It is necessary now to examine the scope and nature of the Indian Independence (International
Arrangements') Order, 1947. According to Mr. Kar, it gives statutory recognition to the rights of
citizens of India to export freely to Tibet articles not specifically mentioned in Clause VIII of the
Anglo-Tibet Trade Regulations, 1914, and such rights became part of the municipal law of India
enforceable in Indian Courts. The learned Advocate General does not accept these propositions.
According to him, the Indian Independence (International Arrangements) Order, 1947, has nothing
to do with the rights of the citizens of India and Pakistan and it is simply an agreement reached at a
meeting of the Partition Council between the Dominions of India and Pakistan laying down as to
how rights and obligations under international agreements will devolve upon the two Dominions.
Paragraphs 3 and 4 of the Schedule to the Order which are material for our present purpose, appear
to bear out the contention of the learned Advocate General. The language of the heading of the
Schedule also points in the same direction. It runs thus: "Agreement as to the Devolution of
International Rights and Obligations upon the Dominions of India and Pakistan."
The language used in that heading and in other parts of the above Order may also be contrasted with
the language used in the Indian Independence (Rights, Property and Liabilities) Order, 1947, e.g.
para 3(1) according to which admittedly citizens of India and Pakistan had certain rights against the
respective Governments. Considering all the circumstances, we are not inclined to read more into

Smt Asha Gupta vs Union Of India And Others on 7 December, 2017
11. It appears to us that in the facts of this case, the controversy lies within a short compass. It is well
settled that the persons who have applied to the High Court by the letter are persons affected by the
absence of usable road because they are poor Harijan residents of the area, their access by
communication, indeed to life outside is obstructed and/or prevented by the absence of road. The
entire State of Himachal Pradesh is in hills and without workable roads, no communication is
possible. Every person is entitled to life as enjoined in Article 21 of the Constitution and in the facts
of this case read in conjunction with Article 19(1)(d) of the Constitution and in the background of
Article 38(2) of the Constitution every person has right under Article 19(1)(d) to move freely
throughout the territory of India and he has also the right under Article 21 to his life and that right
under Article 21 embraces not only physical existence of life but the quality of life and for residents
of hilly areas, access to road is access to life itself. These propositions are well settled. We accept the
proposition that there should be road for communication in reasonable conditions in view of our
constitutional imperatives and denial of that right would be denial of the life as understood in its
richness and fullness by the ambit of the Constitution. To the residents of the hilly areas as far as
feasible and possible society has constitutional obligation to provide roads for communication.
13. The persons who have complained about the non- availability of road are the persons who have
been affected by the denial of proper roads in a hilly State. Therefore, there is no dispute as to their
locus. There is also no dispute that the State Government was willing and has indeed sanctioned
money for the construction of the road. Constitutional and legal imperative on the part of the State
to provide roads for residents of hilly State is not in issue. So in this petition we need not examine
how far is the obligation to provide roads."
22. In the instant case, the mandatory notifications were issued in the year 2012 but till date, the
road has not been widened four laned, as per parameters. The State of Uttarakhand is a border
State. All the roads in the State of Uttarakhand have a strategic importance. The projects of national
highways should not be delayed unnecessarily. The state of art infrastructure brings more
investment. The State of Uttarkhand has a hilly terrain and without roads, the communication is not
possible.
23. The residents of Uttarakhand have a fundamental right under Article 21 to access to roads. The
State has constitutional obligation to provide roads for communication.
24. Accordingly, in view of the discussion and observations made hereinabove, there is no merit in
the writ petitions and the same are hereby dismissed. Interim orders are vacated.
25. However, before parting with the judgment, it would be necessary now in the interest of justice
to direct the National Highway Authority of India/Ministry of Road Transport and Highways to
build, (widen/four lane etc.), maintain, manage and make operational National Highway No.-87
within a period of two years, subject to availability of funds.
(Rajiv Sharma, J.) Jitendra

Sri Indra Das vs State Of Assam on 10 February, 2011
5. The alleged confession was subsequently retracted by the appellant. The alleged confession was
not corroborated by any other material. We have held in Arup Bhuyan's case (supra) that confession
is a very weak type of evidence, particularly when alleged to have been made to the police, and it is
not safe to convict on its basis unless there is adequate corroborative material. In the present case
there is no corroborative material.
6. However, the appellant has been convicted under Section 3(5) of TADA which makes mere
membership of a banned organization a criminal act, and sentenced to five years rigorous
imprisonment and Rs.2000/- fine.
7. In Arup Bhuyan's case (supra) we have stated that mere membership of a banned organization
cannot incriminate a person unless he is proved to have resorted to acts of violence or incited people
to imminent violence, or does an act intended to create disorder or disturbance of public peace by
resort to imminent violence. In the present case, even assuming that the appellant was a member of
ULFA which is a banned organization, there is no evidence to show that he did acts of the nature
above mentioned. Thus, even if he was a member of ULFA it has not been proved that he was an
active member and not merely a passive member. Hence the decision in Arup Bhuyan's case (supra)
squarely applies in this case.
8. In our judgment in State of Kerala vs. Raneef 2011(1) Scale 8 we had referred to the judgment of
the U.S. Supreme Court in Elfbrandt vs. Russell 384 US 17(1966) which rejected the doctrine of
`guilt by association'.
9. In Elfbrandt's case (supra) Mr. Justice Douglas, speaking for the Court observed :
"Those who join an organization but do not share its unlawful purposes and who do
not participate in its unlawful activities surely pose no threat. This Act threatens the
cherished freedom of association protected by the First Amendment, made applicable
to the States by the Fourteenth Amendment. .........A law which applies to
membership without the `specific intent' to further the illegal aims of the
organization infringes unnecessarily on protected freedoms. It rests on the doctrine
of `guilt by association' which has no place here."
10. The decision relied on its earlier judgments in Schneiderman vs. U.S. 320 US 118(136) and
Schware vs. Board of Bar Examiners 353 US 232(246). The judgment in Elfbrandt's case (supra)
also referred to the decision of the U.S. Supreme Court in Scales vs. U.S. 367 US 203 (229) which
made a distinction between an active and a passive member of an organization.
11. In Scales case (supra) Mr. Justice Harlan of the U.S. Supreme Court observed :
"The clause (in the McCarran Act, 1950) does not make criminal all associations with
an organization which has been shown to engage in illegal advocacy. There must be
clear proof that a defendant `specifically intends to accomplish the aims of the
organization by resort to violence'. A person may be foolish, deluded, or perhaps

The State Of West Bengal vs Anwar All Sarkarhabib ... on 11 January, 1952
prove that, in making the law, the legislature was actuated

by a hostile or inimical intention against a particular
person or class ; nor would the operation of Art. 14 be
excluded merely because it is proved that the legislature
had no intention to discriminate, though discrimination was
the necessary consequence of the Act. The question of
intention may arise in ascertaining whether an officer acted
mala fide or not; but it cannot arise when discrimination
follows or arises on the express terms of the law itself.
(iii) The language of sec. 5 (1) clearly and unambigu-
ously vests the State Government with unrestricted discre-
tion to direct any cases or class of cases to be tried by
the Special Court, not a discretion to refer cases only when
it is of opinion that a speedier trial is necessary
286
(iv) Assuming that the preamble throws any light on the
section, the necessity of speedier trial is too vague,
uncertain and elusive a criterion to form a rational basis
for discrimination.
(v) It cannot be said that an Act does not contravene
the equality rule laid down by Art. 14 simply because it
confers unregulated discretion on officers or administrative
bodies. The true position is that if the statute itself is
not discriminatory the charge of Violation of the article
may be only against the official who administers it, but if
the statute itself makes a discrimination without any proper
or reasonable basis, it would be void for being in conflict
with Art. 14.
(vi) The notification issued under the Act in the
present case would also come within the definition of
law and could be impeached apart from the Act if it violates
Art. 14.
DAS J.--(1) Article 14 does not insist that every piece
of legislation must have universal application and it does
not take away from the State the power to classify persons
for the purposes of legislation, but the classification must
be rational, and in order to satisfy this test (i) the
classification must be founded on an intelligible differen-
tia which distinguished those that are grouped together from
others, and (ii) that differentia must have a rational
relation to the object sought to be achieved by the Act. The
differentia which is the basis of the classification and the
object of the Act are distinct things and what is necessary
is that there must be a nexus between them. But the mere
fact that the inequality has not been made with the special
intention of prejudicing a particular person or persons but
in the general interest of administration will not validate
a law if in fact it results in inequality of treatment. Nor
can the constitutionality of a statute depend on the degree
of the inequality brought about by the law.
(2) Although the preamble to an Act cannot override the
plain meaning of its operative parts, it may nevertheless
assist in ascertaining what the true meaning or implication

Union Of India (Uoi) (Central ... vs Students Islamic Movement Of ... on 26 March, 2002
Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shiruar Mutt .
22. There can be no dispute about this proposition when someone is sought to be prosecuted under
Section 153-A and 153, IPC. Here the issue is whether SIMI is an 'unlawful association' as defined
under Clause (g) of Section 2 of the Act, which reads:
2(g) "Unlawful Association" means any association:
(i) which has for its objects any unlawful activity, or which encourages or aids persons to undertake
any unlawful activity, or of which the members undertake such activity; or
(ii) which has for its object any activity which is punishable under Section 153A or Section 153B of
the Indian Penal Code, or which encourages or aids persons to undertake any such activity, or of
which the members undertake any such activity.
23. A bare reading of the above would show that an 'unlawful association' means an Association
which has, for its object, any unlawful activity or which encourages or aids persons to undertake any
unlawful activity or of which the members undertake any such activity or which has for its object
any activity, which is punishable under Sections 153-A and 153B, IPC. The section is very wide. If an
Association has for its object any unlawful activity, it can be declared as an unlawful association. The
"unlawful activity" in relation to an individual or association has been defined under Section 2(f) of
the Act to mean any action taken by such individual or association (whether by committing an act or
by words, either spoken or written, or by signs or by visible representation or otherwise), which is
intended, or supports any claim to bring about, on any ground whatsover, the cession of a part of the
territory of India or the session of a part of the territory of India from the Union, or which incites
any individual or group of individuals to bring about such cession or session; which disclaims,
questions, disrupts or is intended to distrupt the sovereignty and territorial integrity of India.
Therefore, while considering the question whether an Association is carrying out any unlawful
activity or not, we have to go by the definition as given in Section 2(f) of the Act. The "cession of any
part of the territory of India" defined under Sub-section (b) of Section 2 of the Act includes
admission of the claim of any foreign country to any such part. "Secession of a part of the territory of
India from the Union" defined under Sub-section (d) includes the assertion of any claim to
determine whether such part will remain a part of the territory of India or not. None of the cases
cited by learned counsel for the respondent SIMI under Section 127-A and 153-A are applicable to
the facts of this case. The factual situation in each of those cases is different. Mere inciting of feeling
of one group, without any reference to another religion was held not to attract the provisions of
Section 153-A. Again, mere casual raising of some slogans couple of times by the accused persons,
without intention to incite people to create disorder was held neither to constitute any threat to
Government of India nor it gave rise to a feeling of hatred amongst different communities or
regions. Therefore, in ultimate analysis, it would be a question of fact to be examined whether the
material available before the Government and placed before the Tribunal is sufficient to hold the
association as an unlawful association or to hold that the activities alleged are unlawful activities or
not, as defined in Sub-section (f) and (g) of Section 2 of the Act.

Venkateshwara Theatre vs State Of Andhra Pradesh And Ors on 10 May, 1993
complex arena in which no perfect alternatives exist, the court does well not to impose too rigorous
a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal
Protection Clause."
Just a difference in treatment of persons similarly situate leads of discrimination, so also

discrimination can arise if persons who are unequals, i.e. differently placed, are treated similarly. In
such a case failure on the part of the legislature to classify the persons who are dissimilar in separate
categories and applying the same law, irrespective of the differences, brings about the same
consequence as in a case where the law makes a distinction between persons who are similarly
placed. A law providing for equal treatment of unequal objects, transactions or persons would be
condemned as discriminatory if there is absence of rational relation to the object intended to be
achieved by the law.
In K T Moopil Nair v. State of Kerala (supra), this Court was dealing with a law providing for
imposition of uniform land tax at a flat rate without having regard to the quality of the land or its
productive capacity. The law was held to be violative of Article 14 of the constitution of the ground
that lack of classification had created inequality. The said decision in K. T Moopil Nair's case (supra)
has been explained by this Court is Jalan Trading Co. (Pvt.) Ltd. v. Mill Mazdoor Union, [1967] 1
SCR 15, in the context of challenge to the validity of section 10 of the Payment of Bonus Act, 1965
providing for payment of a minimum bonus of 4% by all industrial establishments irrespective of the
fact whether they were making profit. This Court held that the judgment in Moopil Nair's case
(supra) has not enunciated any broad proposition that when persons or objects which are unequals
are treated in the same manner and are subjected to the same burden or liability discrimination
inevitably results. It was observed :
"It was not said by the Court in that case that imposition of uniform liability upon
persons, objects or transactions which are unequal must of necessity lead to
discrimination. Ordinarily it may be predicated of unproductive agricultural land that
it is incapable of being put to profitable agricultural use at any time. But that cannot
be so predicated of an industrial establishment which has suffered loss in the
accounting year, or even over several years successively. Such an establishment may
suffer loss in one year and make profit in another. " (p.35) It was further observed
"Equal treatment of unequal objects, transactions or persons is not liable to be struck
down as discriminatory unless there is simulta-
neously absence of a rational relation to the object intended to be achieved by the

law."
(p.36) The limitations of the application of the principle that discrimination would result if unequals
are treated as equal, in the field of taxation, have been pointed out by this Court in Twyford Tea Co.
Ltd. & Anr. v. The State of Kerala & Anr., [1970] 3SCR 383, wherein tax at a uniform rate was
imposed on plantations. Hidayatullah, CJ, speaking for the majority, while upholding the tax, has
observed "It may also be conceded that the uniform tax falls more heavily on some plantations than
on others because the profits ,ire widely discrepant. But does that involve a discrimination ? If the

Virendra, Editor, Printer And ... vs Punjab State on 27 August, 1956
Mr. Dua, who appears for the petitioner, has placed three submissions before us in support of the
contention that the provisions of this section are inconsistent with the provisions of the
Constitution. It is contended in the first place that a law imposing restrictions on the liberty of
speech or expression is ultra vires the Constitution even though the restrictions have been imposed
in the interest of public order.
Two decisions of the Supreme Court have been cited in support of this contention -- Romesh Tha-
par V. State of Madras, 1950 SCR 594: (AIR 1950 SC 124) (B) and Bri] Bhushan v. State of Delhi,
1950 SCR 605: (AIR) 1950 SC 129) (C). It is true that the Supreme Court has taken the view that a
law restricting the freedom of speech would be ultra vires even though it related to public order.
or incitement to an offence provided there was no question of the security of the State being jeopar
dised, but it must be remembered that this con tention, however substantial it might have been
before the enactment of the Constitution First Amendment Act, 1951, when public order was not one
of the purposes for which freedom of the press could be restricted, is at the present moment wholly
devoid of force.
10. Secondly, it is argued that Section 144 cannot fall within the ambit of Article 19(2) inasmuch as
the restrictions imposed by it have not been imposed solely in the interest of public order.' This
contention is sought to be supported by certain observations appearing in the concluding portion Of
1950 SCR 594 at p. 602: (AIR 1950 SC 124 at p. 129) (B), where Patanjali Sastri C. J., stated as
follows:
"We are therefore of opinion that unless a law restricting a freedom of speech and' expression is
directed" solely against the undermining of the security of the State or the overthrowing of it, such
law cannot fall within the reservation under Clause (2) of Article 19 although the restrictions which
it seems to impose may have been conceived generally in the interests of public order." Mr. Dua
contends that Section 144, Criminal P. C. has not been enacted solely in the interests of public order,
and consequently that it cannot fall within the ambit of Clause (2) of Article 19, A similar argument
appears to have found favour with two Judges of the Special Bench in the Matter of Bharati Press,
AIR 1951 Pat 12 (D), but it left the third Judge cold and unconvinced. -'I have read and re-read the
judgments of the Supreme Court" observed Shearer J. "and I can find nothing in them myself which
bear directly on the point at issue and leads me to think that la their opinion a restriction of this
kind is no longer permissible".
This observation was cited with approval by Mahajan J., in State of Bihar v. Sm. Shailabala Devl,
1952 SCR 654 at p. 6SO: (AIR 1952 SC 329 at p. 331) (E). I entertain no doubt in my mind that
Section 144 has been designed to impose restrictions on the exercise of the right of freedom of
speech arid expression in the interests of public order.
11. The third submission was that Section 144 is not covered by the provisions of Clause (2) of Article
19, for if the impugned restrictive law is examined in its' substantive and procedural aspects, State of
Madras ' V. V. J. Row, 1952 SCR 597 at p. 606: (AIR 1952 SC 196 at p. 199) (P), it would be found to

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Abdul Nazar Madani vs State Of Tamil Nadu & Anr.

Indian Kanoon - http://indiankanoon.org/doc/1438663/ 2

(2) [1954] S.C.R. 996.

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a. The action must be sanctioned by law;

b. The proposed action must be a reasonable restriction;

c. Such restriction must be in furtherance of interests of the sovereignty and integrity

Indian Kanoon - http://indiankanoon.org/doc/82461587/ 14

Indian Kanoon - http://indiankanoon.org/doc/720977/ 2

Indian Kanoon - http://indiankanoon.org/doc/180564/ 3

(2) AIR 1964 (Vol. 51) Madras 376.

(3) AIR 1965 (Vol. 52) Allahabad 410.

(4) AIR 1967 (Vol. 54) Punjab 166 (FB).

(5) AIR 1968 (Vol. 55) Punjab 56 (SB).

(6) 1970 Labour & Industrial cases 921.

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(1) XLV Harvard Law Journal-617 & 645.

(2) American Juris-prudence-Vol. 51 (Second Edn.) 605.

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Indian Kanoon - http://indiankanoon.org/doc/242256/ 10

Indian Kanoon - http://indiankanoon.org/doc/1358536/ 7

Indian Kanoon - http://indiankanoon.org/doc/1446617/ 22

Indian Kanoon - http://indiankanoon.org/doc/268805/ 78

8. Thus aggrieved, the appellant is before us.

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section does not authorise framing of rules requiring prior

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(IV) An Assessor may be appointed to assist the Claims Commissioner.

(IX) Damages shall be assessed for:

unenforceable-this must be because Parliament is to be presumed not to have

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The Office Memorandum dated 13th August, 1090:

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Indian Kanoon - http://indiankanoon.org/doc/1418391/ 14

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been issued without any investigation as regards the current

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"Where the law-making authority is of a limited or qualified character,

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Indian Kanoon - http://indiankanoon.org/doc/1431786/ 21

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18. As stated in the head note, this Court held:

20. The Court further held:

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Indian Kanoon - http://indiankanoon.org/doc/257876/ 185

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Article 84 is styled as a provision to indicate "Qualification for membership of Parliament". In

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Indian Kanoon - http://indiankanoon.org/doc/102852/ 2

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Equality and arbitrariness are sworn enemies; one belongs to

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character of the assembly".

10. We do not think the sentences call for interference.

Indian Kanoon - http://indiankanoon.org/doc/553151/ 3

Board for several decades the respondent had lost title to

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[pp. 349, 350] The use of the expression "colourable legislation"

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