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 EQUALITY BEFORE THE LAW IN INDIA

SUBRATA Roy CHOWDHURY *

THE Constitution of the Republic of India came into operation on

January 26, 1950. The doctrine of equality before the law is con-
tained in Article 14 of the Constitution which declares:
" The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of
India."
The doctrine of equal protection of the laws as embodied in
Article 14 is substantially based on the last part of Section I of the
Fourteenth Amendment to the Constitution of the U.S.A. which
provides that no state shall " deny to any person within its juris-
diction the equal protection of the laws." A distinguished Indian
judge, P. B. Mukharji, speculated that the first expression
" equality before the law " in Article 14 was an embodiment in the
Constitution of India of the doctrine of the Rule of Law of the
British jurisprudence, while the next expression " equal protection
of the laws " represented the American constitutional doctrine on
the subject.'
The doctrine embodied in Article 14 of the Constitution of India
is not of independent Indian origin, but has been inspired by the
teachings of British and American jurisprudence. The doctrine has
therefore to be examined in the larger international perspective.
The influence of British and American legal thought on the forma-
tion of the Indian doctrine has been admirably expressed by P. B.
Mukharji J., who said:
" The preceding Anglo-Indian jurisprudence of over a
century has been slowly but painfully preparing the ground for
the constitutional principle of equality before the law and the
equal protection of the laws. This was done through the
inspiration of the applied British jurisprudence of the Rule of
Law, which, on the one hand, was building up the tradition
that true law was no respecter of persons, and on the other,
teaching the suave doctrine that equality was equity-the
resultant legal effect of the four British constitutional land-
marks, the Magna Carta (1215), the Petition of Rights (1628),
the Bill of Rights (1689) and the Act of Settlement (1701),
which, after transmigration and transmutation across the
* M.A.(Cal.), M.A.(Cantab.), of Lincoln's Inn, Barrister-at-Law, Advocate of the
Supreme Court of India, and of the High Court of Calcutta.
1 Journal of the Indian Law Institute (1960), Vol. 2, p. 182.
 The Cambridge Law Journal [1961]
Atlantic in the United States, returned by the Pacific to find a
new reincarnation in India. Universality of true culture is
never so plain as in the universality of true legal concepts
which transcend the boundaries of State. Law is the most
universal legatee." 2

THE MEANING OF EQUALITY

Equality before the law does not however necessarily mean that
the same law should be made universally applicable to all persons in
all circumstances. Equality before the law in substance means that
there should be no discrimination amongst equals. If law deals
equally with all persons belonging to a certain category or class,
there is no denial of the fundamental right of equal protection on the
ground that the particular legislation has not been made applicable
to persons outside the category or class. Classification is inevitable
in human life and the conditions of the society. As Mr. Justice
Douglas of the Supreme Court of the U.S.A. observed:
" For one chief task of lawmakers is to make classifications:
graduating taxes according to income, regulating business
according to size, protecting people according to age, requiring
special health regulations for particular communities, reserving
certain lands for specified purposes, restricting land holdings
to maximum acreages, requiring some equipment to have safety
devices, barring trucks of specified weights from the highways,
and so on." 3
It is therefore clear that law is always based on some kind of
classification or selection. Some kind of inequality is implicit in
every selection. Not every species of inequality is unconstitutional.
As we shall see later in this article, in order to be unconstitutional
the inequality must be actually and palpably unreasonable and
arbitrary.
While Article 14 of the Constitution lays down the general
principle of equality, there are other articles in the Indian Constitu-
tion which exemplify the particular instances of the application of
the general rule. Article 15 (1), for instance, prohibits discrimina-
tion by the state against a citizen on grounds only of religion, race,
caste, sex, place of birth or any of them. Article 16 (1) guarantees
that there shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the
state. Article 17 provides that untouchability (an extreme disa-
bility based on caste) is abolished and its practice in any form is
forbidden.
To revert to the subject of permissible classification in legislative
2 Ibid.
3 Douglas: Studies in American and Indian Constitutional Law, p. 309.
C.L.J. Equality Before the Law in India

enactments, it is now well settled that any classification, in order to

be constitutional, should satisfy two tests: (1) the classification
must be founded on intelligible differentia which distinguish those
that are grouped together in the group from others left out of the
group; and (2) the differentia must have a rational relation to the
object sought to be achieved by the legislation. There must be a
nexus between the differentia and the objects.

SIX PRINCIPLES FORMULATED

The classical formulation of the law on the subject is contained
in the decision of the Supreme Court of India in the case of Dalmia
v. Justice Tendolkar.4 The six principles deduced from the decided
cases were enumerated by S. R. Das C.J. as follows:
(1) A law may be constitutional even though it relates to a
single individual if, on account of some special circumstances or
reasons applicable to him and not applicable to others, that single
individual may be treated as a class by himself;
(2) There is always a presumption in favour of constitutionality
of an enactment and the burden is upon him who attacks it to show
that there has been a clear transgression of the constitutional
principle;
(3) It must be presumed that the legislature understands and
correctly appreciates the need of its own people, that its laws are
directed to problems made manifest by experience and that its
discriminations are based on adequate grounds;
(4) The legislature is free to recognise degrees of harm and may
confine its restriction to those cases where the need is deemed
clearest;
(5) In order to sustain the presumption of constitutionality, the
court may take into consideration matters of common knowledge,
matters of common report and the history of the times, and may
assume every state of facts which can be conceived existing at the
time of legislation;
(6) While good faith and knowledge of the existing conditions
on the part of a legislature are to be presumed, if there is nothing
on the face of the law or the surrounding circumstances brought to
the notice of the court on which the classification may reasonably
be regarded as based, the presumption of constitutionality cannot be
carried to the extent of always holding that there must be some
undisclosed and unknown reasons for subjecting certain individuals
or corporations to hostile or discriminating legislation.
It is perhaps permissible to submit that the above principles can
be really reduced into three principles: viz., the principles stated
4 A.I.R. 1958 S.C. 538.
 The Cambridge Law Journal [19611
under No. (1) above, the principle stated under No. (4) above and
the principles stated under the remaining heads. These latter
principles may be summarised as one principle, viz., that there is
a rebuttable presumption in favour of constitutionality of an
enactment.

FIVE CLASSES: (1) LEGITIMATE CLASSIFICATION

After enumerating the six principles, Das C.J. in the Dalmia

case set out five different classes of Supreme Court decisions in which
these principles were applied. It is the purpose of this article to
examine the relevant law with reference to these five classes.
In class (1), the Supreme Court stated, a statute might itself
indicate the persons or things to whom its provisions were intended
to apply and the basis of classification might appear on the face of
the statute or might be gathered from the surrounding circum-
stances known to or brought to the notice of the court. In determin-
ing the validity or otherwise of such a statute, the court has to
examine whether such classification is or can be reasonably regarded
as based upon some differentia which distinguish the persons or
things grouped together from those left out of the group and
whether such differentia have a reasonable relation to the object
sought to be achieved by the statute; no matter whether the pro-
visions of the statute are intended to apply only to an individual
person or thing or only to a certain class of persons or things.
Where the court finds that the classification satisfies the tests, the
court will uphold the validity of the law as it did in the cases
discussed below.
In the controversial case of Chiranjit Lal v. The Union of
India,5 an ordinance was promulgated by the Governor General
empowering the Central Government to take over the control and
management of a single corporation known as Sholapur Spinning &
Weaving Co., Ltd., its properties and effects, by appointing
nominated directors in the place of the directors elected by the
shareholders of the company. Accordingly, Government nominated
directors, replaced the company's directors and took charge of the
management and of the properties of the company. The Act (which
eventually replaced the Ordinance) was challenged by a shareholder
of the company, inter alia, on the ground that it denied to the share-
holders of the particular company the protection of law relating to
Joint Stock Companies generally and was therefore discriminatory
against these particular shareholders as compared to the share-
holders of other companies which were untouched by the impugned
Act.
5 (1950) S.C.R. 869 = 1951 Supreme Court Reporter 234.
C.L.J. Equality Before the Law in India

The Supreme Court looked into the preamble of the ordinance,

and also referred to the parliamentary proceedings, and came to
the conclusion that the particular company exhibited certain excep-
tional features not possessed by other companies and therefore could
be reasonably regarded as a class by itself. The preamble stated
that the special provisions for the particular company became neces-
sary, since owing to gross mismanagement and neglect in its
administration by the directors and managing agents, a situation
had arisen which prejudicially affected the production of an essential
commodity and had caused a serious unemployment problem. By a
majority of three to two, the Supreme Court declared the statute
constitutional. Reliance was also placed by the court on the origin-
ally American doctrine that there is a presumption in favour of the
constitutionality of an enactment and it was held that the petitioner
had failed to satisfy the court that there were other companies which
fell within the same category as the Sholapur Company and that the
reasons for this special legislation also applied to any other such
companies.
In two dissenting judgments Sastri and Das JJ. declared the
statute as unconstitutional under Article 14. Sastri J. (as he then
was) in no uncertain terms condemned legislation singling out a
particular individual or corporate body for mismanagement or mis-
conduct and compared the same with the notorious parliamentary
procedure formerly employed in Britain of punishing individual
delinquents by retrospective bills of attainder. Das J. (as he then
was) found in the impugned legislation a palpable infringement of
Article 14. He expressed the view that if mismanagement affecting
production and resulting in unemployment were to be the basis of a
classification for making a law for preventing mismanagement and
securing production and employment, such law must embrace
within its ambit all companies which were or might become subject
to that vice.
Mr. Justice Douglas commented that the legislation impugned
in the above case would undoubtedly have been condemned in
America. A law aimed in terms at only one man, one company,
one taxpayer, one farmer, or one trade union contains the very
essence of that discrimination which the Fourteenth Amendment of
the American Constitution had condemned. He reiterated the
American doctrine that the equal protection of laws is a pledge of
the protection of equal laws. 6
In the case, the State oj Bombay v. Balsara,7 the subject-matter
was the Prohibition Act of Bombay which contained certain clauses
6 Douglas: Studies in American and Indian Constitutional Law, p. 317.
7 (1951) S.C.R. 683 = A.I.R. 1951 S.C. 318.
 The Cambridge Law Journal [1961]
exempting the military canteens from its operation. It was chal-
lenged on the ground that the discrimination was arbitrary, capri-
cious and unreasonable. The Supreme Court declared that the
statute was constitutional. It held that the military personnel
formed a class by itself and that there was nothing wrong in
according special treatment to such personnel.
In the case of Kedarnath Bajoria v. State of West Bengal 8 the
object of the impugned legislation-the West Bengal Criminal Law
Amendment Act, 1949-as stated in the preamble, was to provide
for the more speedy trial and more effective punishment of certain
offences. The offences were set out in a schedule. The Act
empowered the Government to set up special courts for specified
areas and to appoint special judges for the trial of scheduled
offences. The impugned section 4 of the Act authorised the Govern-
ment to allot cases of scheduled offences for trial to a special judge.
The procedure laid down for proceedings before the special court
was different from the normal procedure of ordinary criminal law;
for instance, the accused before the special court did not have the
benefit of a jury trial. In upholding the validity of the law the
Supreme Court took into consideration several facts. During the
post-war period many unscrupulous persons in charge of public
undertakings had enriched themselves by corrupt practices at the
expense of the state. The offences covered by the statute were
widely prevalent during such period. The policy of the enactment
was to impose a deterrent punishment and to compel offenders to
disgorge their ill-gotten gains. Hence the system of special courts
to deal with the special type of offences under a shortened and
simplified procedure was devised. The Supreme Court felt that the
enactment was based on a perfectly intelligible classification, having
a clear and reasonable relation to the object sought to be achieved.
It was next contended that the impugned provision permitted the
Government to make a discriminatory choice among persons charged
with the same offence for trial by a special court. The vice of this
discrimination consisted in the unguided and unrestricted power of
singling out for different treatment one among a class of persons all
of whom were similarly situate. The Supreme Court however held
that the discretion was not unguided, as sufficient guidance was to
be found in the declared policy and object of the legislation. If it
could be shown that in any particular case the executive had abused
its powers, the court would strike down such action under Article
14, which included within its purview both executive and legislative
acts.
The validity of the Madras General Sales Tax Act, 1939, and
s (1954) S.C.R. 30.
C.L.J. Equality Before the Law in India .229

certain rules framed thereunder were challenged in the case of Syed

Mohammed v. Andhra.9 The petitioners were purchasers of un-
tanned hides and skins. They complained that the impugned
legislative provisions had, for the purpose of taxation, singled out
the purchasers of certain specified commodities only, but left out
the purchasers of all other commodities, and the discrimination was
therefore unconstitutional. The Supreme Court held that it was well
settled that the guarantee of equal protection did not require that
the same law should be made applicable to all persons. Legislative
classification based on some differentia having a reasonable relation
to the object and the purpose of the law is not hit by Article 14. It
held that the petitioners had failed to rebut the presumption of the
constitutionality of the enactment inasmuch as they had not placed
any materials before the court to suggest that purchasers of other
commodities were similarly situated as purchasers of hides and
skins.
A comparable American decision can be found in Tigner v.
Texas. 10 In that case the Supreme Court declared constitutional
the antitrust laws of Texas which made a distinction between com-
binations of businesses and combinations of agriculturists. The
legislators might have reasonably thought that the combination of
farmers presented lesser threat to the society than industrial
combinations.
The validity of section 80 of the Criminal Procedure Code of
India was challenged in the case of Budhan Chowdhry v. The State
of Bihar." The impugned provision provided that in certain speci-
fied states the Government might invest any magistrate with the
power to try, as a magistrate, any offence not punishable with
death. The procedure followed by a magistrate was different from
the procedure followed by a Court of Sessions. The complaint of
the petitioners was that they were tried by a magistrate under the
impugned section 80 and were thus denied the more advantageous
procedure of a trial at Sessions which inter alia allowed the accused
the privilege of commitment proceedings before a magistrate fol-
lowed by a trial before the Sessions Judge who was aided by a jury
and by assessors.
The Supreme Court found that there was a classification in the
statute itself on which the impugned provision was based, namely,
in respect of certain localities (i.e., certain states) and in respect of
some offences (i.e., those not punishable with death). The legisla-
ture correctly appreciated the needs of its own people which might

o (1954) S.C.R. 1117.

10 310 U.S. 141.
11 (1955) 1 S.C.R. 1045.
 The Cambridge Law Journal [1961]
vary from place to place. A classification could be legitimately
based on geographical or territorial considerations. The Supreme
Court was also satisfied that circumstances did exist which made
the classification a reasonable one; for example, the distance
between the place of a crime and the place at which the nearest
Sessions Court functioned, the difficulty of finding suitable persons
to act as jurors in distant places, etc. It was further held that
liability to be tried under this procedure fell on all persons commit-
ting any of the specified offences and accordingly there was no
discrimination in the section itself.
The Supreme Court closely examined another argument
advanced on behalf of the petitioners. It was contended that the
impugned section itself might not be discriminatory but it could
easily lend itself to abuse. Police officers could decide to send one
person to be tried by a section 30 magistrate, and another person by
a Court of Sessions. The petitioners relied upon the well-known
decision of the Supreme Court of the U.S.A. in Yick Wo v.
Hopkins,'1 2 where it was held that a law might be fair on its face
and impartial in operation, yet it might amount to a denial of equal
justice if it were administered by a public authority with an evil eye
and an unequal hand. The Supreme Court of India did not dispute
the validity of this proposition but held that on an analysis of the
different provisions of the Code of the Criminal Procedure, the
decision by which method a particular accused was to be tried
depended on the proper exercise of a judicial discretion and not on
the whim of the police or the executive authority. The Indian
Supreme Court applied the test laid down by the Supreme Court of
the U.S.A., viz., that one has to see in each particular case whether
there was an element of intentional and purposeful discrimination
so as to amount to a denial of equal protection of law. The Supreme
Court held that in the case before them there was no suggestion of
any intentional or purposeful discrimination.
Three other instances of legitimate classification will now be
briefly examined. In the case of Rehman Shagoo v. State of Jammu
and Kashmir,13 the validity of the Jammu and Kashmir Enemy
Agents Ordinance was challenged on the ground that it was dis-
criminatory and violative of Article 14 of the Constitution. The
Supreme Court, in declaring the ordinance constitutional, held that
certain offences might be so heinous or serious that in certain
circumstances such offences might be treated as a separate class and
tried in a different way. The ordinance created a new offence of an
aggravated kind which could be properly dealt with by a drastic
12 118 U.S. 356.
is A.I.R. 1960 S.C.1.
C.L.J. Equality Before the Law in India

procedure without violating the fundamental right to equal protec-

tion. The Supreme Court further held that " enemy " and
" enemy agents " mentioned in the ordinance were a clearly defined
class of persons and could be the subject of a reasonable classifica-
tion for the purpose of that legislation. The classification was
founded on intelligible differentia which distinguished the persons
covered by the ordinance from others. In holding the ordinance
constitutional the Supreme Court took into consideration that
although the actual raids in the state by enemies were over, the
danger of subversion of the Government was still there, and there
was a persistent threat from those who intended to aid the enemy.
In the case of Western India Theatres, Ltd. v. The Cantonment
Board,1 the Supreme Court held that it might not be unreasonable
or improper to impose a higher tax on larger and more prosperous
cinema houses situate in fashionable localities and visited by richer
persons than on smaller cinema houses situate in less fashionable
localities and visited by persons in less affluent circumstances. The
two types of cinema houses could not be said to be similarly
situated.
In the case of Harman Singh v. Regional Transport Authority,15
the Supreme Court held that where, in the interest and for the
benefit of a section of the public, small taxi cabs were introduced
and cheaper rates were fixed for them having regard to the size,
horse power and expenses of running such cabs, there was nothing
unreasonable in the classification of taxis into large taxis and small
taxis and there was no violation of Article 14 of the Constitution in
fixing different rates for each class. The Supreme Court reiterated
its view that in construing Article 14 the courts should not adopt a
doctrinaire approach which might choke all beneficial legislation.

(2) UNCONSTITUTIONAL DISCRIMINATION

In class (2) the Supreme Court dealt with cases in which a

statute might direct its provisions either against one individual
person or thing or against groups of persons or things but no reason-
able basis of classification might appear on the face of the statute
or be deducible from surrounding circumstances or matters of
common knowledge. In such cases the court would strike down the
statute as it did in the two cases of Amirunnessa Begum v. Mahboo
7
Begum 16 and Ramprosad v. State of Bihar.'
In Amirunnessa Begum's case, prolonged private disputes arose
as to the succession to the estate of a Nawab of Hyderabad between
14 (1960) 1 S.C.A. 25.
15 A.R. 1954 S.C. 190.
16 (1953) S.C.R. 404.
17 (1953) S.C.R. 1129.
 The Cambridge Law Journal [19611
his legally married wife and two ladies who claimed also to be his
wives. The Legal Adviser of the Nizam submitted a report which
negatived the claims of the two ladies. Before the Nizam could
issue a firman in accordance with the report, Hyderabad became a
part of the Union of India and subject to the Indian Constitution.
The Hyderabad Legislature passed an enactment which purported
to dismiss the claims of the two ladies and their children and which
further provided that the enactment could not be called in question
in any court of law. The Supreme Court had no difficulty in declar-
ing the statute to be void as an instance of naked and unconsti-
tutional discrimination. The two ladies had been singled out from
all those who claimed to be related to the late Nawab, and were
alone denied the legal right to enforce their claim in a court of law
in accordance with the relevant personal law. Although the object
of the enactment was to end certain private disputes, such object
did not furnish any rational basis for this palpably unreasonable and
discriminatory selection. The Supreme Court also held that an
analogy with private Acts of the British Parliament was not helpful,
because the British Parliament enjoyed legislative omnipotence and
was unfettered by any constitutional limitations upon its authority
or power.
In Ramprosad's case, the Supreme Court issued a serious
warning to the executive and the legislative powers of the State of
Bihar not to forget that no law would be valid which took away or
abridged the fundamental rights granted by the Constitution. The
Court of Wards had on the recommendations of the Board of
Revenue granted to the appellants at half the usual rates a large
area of land belonging to the Bettiah Raj. Subsequently the Indian
National Congress, the ruling political party, expressed the opinion
that such grant was against public interest. The State Legislature
thereafter passed an Act declaring the grant to be null and void, and
empowering the Collector of the District to evict the appellants.
There were several other grants of lands belonging to the Bettiah
Raj on similar terms, but no action was taken to invalidate them.
Sastri C.J. pointed out in the Supreme Court the danger that, in a
system of government by political parties, was inherent in special
enactments which deprived named persons of their liberty or
property, merely because the legislature considered such persons
guilty of misconduct. The Supreme Court held that the disputes
between the parties (as to the propriety of the grant) were of a
private nature and their determination should have been entrusted
to courts of law. This was the protection which the law guaranteed
equally to all persons, and Article 14 prohibited every state from
denying this protection to any person. Sastri C.J. further observed:
C.L.J. Equality Before the Law in India

" Legislation such as we have now before us is calculated to drain

the vitality from the rule of law which our Constitution so unmis-
takably proclaimed, and it is to be hoped that the democratic
process in this country will not function along these lines."
Mukherjea J. (as he then was) relied upon the observation of Mr.
Justice Brewer in Gulf Colorado v. Ellis,18 that if the presumption
of constitutionality were carried too far, the protection clauses of the
Fourteenth Amendment would turn into a mere rope of sand.

(3) EXCESSIVE DELEGATION

In class (3) the Supreme Court dealt with cases of the following
nature: A statute may not make any classification, but may leave
it to the discretion of the Government to select and classify persons
or things to whom its provisions are to apply. In such cases the
court will examine the statute and ascertain whether the statute
has laid down any policy or principle for the guidance of the exercise
of discretion by the Government in the matter of selection or classifi-
cation. If the statute does not lay down any principle or policy for
guiding the exercise of discretion by the Government the court will
strike it down on the ground that the delegation of arbitrary and
uncontrolled power to the Government enables the Government to
discriminate between persons or things similarly situate and that,
therefore, the discrimination is inherent in the statute itself. In
such a case the court will strike down both the law and the execu-
tive action taken under such law. This occurred in the three cases
of State of West Bengal v. Anwar Ali Sarkar, 19 Dwarka Prosad v.
State of Uttar Pradesh 20 and Dhirendra Kumar Mandal v.
21
Superintendent and Legal Remembrancer.
In Anwar Ali's case, the preamble and the title of the West
Bengal Special Courts Act, 1950, indicated that the object of the
legislation was to provide for the speedier trial of certain offences.
The State Government was empowered to set up Special Courts by
notification. The impugned provision, section 5, provided: "a
Special Court shall try such offences or classes of offences or cases
or classes of cases, as the State Government may by general or
special order in writing, direct." The procedure for trial under the
impugned enactment was less advantageous to the accused than the
ordinary procedure in criminal law. The respondent was convicted
by a Special Court constituted by a notification issued under section
5. The Supreme Court upheld the respondent's contention that the
impugned provisions offended Article 14 of the Constitution. The
18 165 U.S. 150.
19 (1952) S.C.R. 284.
20 (1954) S.C.R. 803.
21 (1955) 1 S.C.R. 224.
C.L.J.9
 The Cambridge Law Journal [1961]
majority in the Supreme Court expressed the view that the Act did
not make any classification nor lay down any basis for classification
of the cases that might be directed to be tried by the Special Court,
but left such classification to the uncontrolled discretion of the
Government without any legislative guidance. The necessity of
speedier trial was too vague, uncertain and elusive a criterion to
form a rational basis for discrimination. Mahajan J. (as he then
was) said that under the impugned Act, the State Government, if it
so desired, could direct that a case of dacoity with firearms and
accompanied by murder, where the persons killed were Europeans,
should be tried by the Special Court, while exactly similar cases,
where the persons killed were Indians, should be tried under the
ordinary procedure. The Government could direct that an ordinary
case of simple hurt was to be tried by the Special Court, leaving a
case of dacoity with murder to be tried in the ordinary way. The
Supreme Court further held that a rule of procedure laid down by
law came as much within the purview of Article 14 as any rule of
substantive law. It was therefore necessary that all litigants who
were similarly situated should be able to avail themselves of the
same procedural rights for relief and for their defence. They should
enjoy the like protection without discrimination.
In Dwarka Prosad's case, the State of Uttar Pradesh had issued
a Coal Control Order under the provisions of section 8 of the Essen-
tial Supplies Act, 1946. Section 3 of the said Act empowered the
Central Government to make provision, by order, for regulating and
prohibiting the production, supply and distribution of an essential
commodity, and the trade and commerce therein, with a view
to maintaining or increasing supplies thereof, or for securing its
equitable distribution and availability at fair price. The order was
challenged, inter alia, on the ground that it gave an unfettered and
unguided discretion to the licensing authority in the matter of
granting and revoking licences, in fixing prices of coal and imposing
conditions upon traders. The licensing authority could again sub-
delegate his powers to any person he might choose. Under the
order, no person was entitled to stock, sell or dispose of coal, except
under a licence. The Supreme Court held that the power vested in
the licensing authority was absolute and no rules were framed and
no directions were given to regulate or guide the discretion and the
impugned provision was therefore unconstitutional. The actual
decision was based on an infringement of Article 19 (1) (g) of the
Constitution which guarantees freedom of trade and business, and
not on a contravention of Article 14 of the Constitution.
In DhirendraKumar Mandal's case, the Supreme Court decided
that some individuals could not be singled out and denied the right
C.L.J. Equality Before the Law in India

to jury trial while other individuals committing similar offences were

granted that right. The impugned notification did not indicate in
express terms the grounds on which one set of cases had been segre-
gated from another set. The classification was held to be arbitrary
having no rational relation to the object in view, namely, the with-
drawal of jury trial in one set of cases. The impugned notification
was considered to be more or less of the same kind as the impugned
ordinance in Anwar Ali's case.

(4) PERMISSIBLE DELEGATION

In class (4) the Supreme Court dealt with cases of the following
nature: A statute may not make a classification of the persons or
things but may leave such classification to the discretion of the
Government. The statute may nevertheless lay down a policy or
principles for the guidance of the Government in the exercise of its
discretion in the matter of such selection or classification. In such
a case the court will uphold the law as constitutional as did the
Supreme Court in the case of Kathi Raning Rawat v. The State of
2
Saurashtra.2
In that case, the object of the Saurashtra State Public Service
Measures Ordinance, 1948, was to provide for public safety, the
maintenance of public order and the preservation of peace and
tranquillity in the state. As violent crimes like dacoity and murder
were increasing in certain regions, the ordinance was amended in
1949 to give the Government power to constitute by notification
Special Courts of criminal jurisdiction for such areas as might be
specified in the notification and to invest such Special Courts with
jurisdiction to try such offences or classes of offences or cases or
classes of cases as the Government might direct. The procedure
laid down in the Ordinance varied from the normal procedure in
criminal trial in two material respects, namely, there was no provi-
sion either for trial by jury or for inquiry before commitment for
trial. The Government by notification constituted a Special Court
for certain areas for trial of certain specified kinds of offences. The
majority judges of the Supreme Court declared the ordinance and
the notification to be constitutional mainly on the following
grounds:
(a) The preamble of the main ordinance taken along with the
surrounding circumstances disclosed a definite legislative policy and
objective. The power of the Central Government was controlled by
a duty to make a proper classification which was guided by the
preamble.

22 (1952) S.C.R. 435.

 The Cambridge Law Journal [1961]
(b) As the ordinance was passed to combat the increase in
certain types of regional crimes, the two-fold classification based on
territory and type of offences was reasonable.
(c) As the legislative policy was clear and definite and as powers
were vested in the executive authority to make a selective applica-
tion of the law to certain classes of persons with a view to carrying
out such policy, the statute itself could not be condemned as a piece
of discriminatory legislation.
Sastri C.J. distinguished Anwar Ali's case on the ground that
the ordinance there permitted discriminations without reason and
the mere mention of " speedier trial " afforded no help in deter-
mining what cases required speedier trial; while in the Saurashtra
case only such offences were to be selected as would affect public
safety, the maintenance of public order and the preservation of
peace and tranquillity. The same reasoning was applied to uphold
the ordinance in Kedarnath's Bajoria's case, which we have already
22
examined. a
Two of the dissenting judges (Mahajan and Aiyar JJ.) in the
Saurashtra case however took the view that the preamble to the
Saurashtra ordinance indicated no principle of classification, as the
object was a general one which had to be kept in view by every
enlightened Government. They thought that the majority decision
in the Saurashtra case recorded a retreat from the position taken up
by the majority in the earlier case of Anwar Ali, which was decided
only a month before the decision in the Saurashtracase.
A comparable decision of the American Supreme Court can be
found in Salsburg v. Maryland.2 A state legislature permitted the
evidence procured by illegal search and seizure to be used in
prosecutions for some gambling offences in a particular county,
Anne Arundel, but not in other counties. It was upheld as constitu-
tional on the ground that Anne Arundel county presented peculiar
regional problems of law enforcement.
The Dalmia case 23a itself would perhaps come within the type of
cases envisaged by class (4). Section 8 of the Commissions of
Inquiry Act, 1952, empowered the Central Government to appoint
by notification an Enquiry Commission for the purpose of making
inquiry into any definite matter of public importance. In pursu-
ance of this power a notification was issued which, after reciting
certain irregularities and mismanagement in certain companies con-
trolled by the Dalmia and the Jain families causing considerable
loss to the investing public, set up a Commission to inquire into the
22aSupra, p. 234.
23346 U.S. 545.
23a Supra, p. 225.
C.L.J. Equality Before the Law in India

affairs of those companies and to make recommendations. The

Supreme Court upheld the notification as constitutional, inter alia,
on the ground that the Act itself gave sufficient indication of the
legislative policy (namely, the inquiry must relate to a definite
matter of public importance), and Parliament having confided the
selective application of the law to the Central Government, it was to
be presumed that the Government would act honestly and in con-
formity with the legislative policy. The petitioners failed to rebut
the presumption in favour of the constitutionality of the Act and of
the notification since they could not show that there were other
companies similarly situated and yet left out of the operation of the
statute.
In Raymon 4 Co. v. Waverley Jute Mills, 24 the constitutional
validity of the Forward Contracts (Regulation) Act, 1952, was
challenged, inter alia, on the ground that the impugned Act gave an
unguided and uncontrolled discretion to the Central Government in
the matter of selecting the goods and classes of contracts which
could be brought under the ban imposed by the statute; and that
the Act thereby enabled the Government to discriminate between
one class of goods and one class of contracts and other classes of
goods and contracts in violation of the fundamental right contained
in Article 14. A Divisional Bench of the High Court at Calcutta
repelled the contention on the ground that the Act indicated the
policy for which it was enacted (namely, to prohibit speculation in
futures). The classification of contracts into forward contracts
(which the statute prohibited) and ready delivery contracts (which
the statute allowed) bore a reasonable relationship to that legislative
policy. Parliament was perfectly justified in leaving to the Central
Government or its delegate the powers of making a selective applica-
tion of the law, and of declaring from time to time to what forward
contracts the statute was to apply.

(5) UNCONSTITUTIONAL EXECUTIVE ACTION

In class (5) the Supreme Court envisaged the following type of

case: A statute may not make a classification, but may leave such
classification to the discretion of the Government, according to the
policy or the principles laid down by the statute itself for the
guidance of the exercise of such discretion. If the Government in
making the selection or classification does not follow the policy or
principle so laid down by statute, the executive action, but not the
statute, would be condemned as unconstitutional. This principle
24
was laid down in the Saurashtracase. a

24 A.I.R. 1959 Calcutta, 89. 24a Supra, p. 235.

238 The Cambridge Law Journal [1961]

It is submitted that the five categories or classes of cases

examined above cannot be treated as finally exhaustive. They
represent an analytical attempt by the Supreme Court to categorise
the different types of cases which came up before it and they
indicate the trends of development of the constitutional guarantee
embodied in Article 14 of the Indian Constitution. The courts in
India have used the flexible concept of reasonable classification in
enforcing the guaranty of equality before the law and of the equal
protection of the laws. The potentialities of further developments
in this branch of Indian constitutional law are immense. Indian
jurists know well that their work on this subject is being watched
and studied wherever the traditions of Indian, British or American
jurisprudence are understood.