JUSTICE BHAGWATI AND INDIAN

CONSTITUTIONAL LAW
M.P. JAIN.*
Shri Natwarlal Harilal Bhagwati joined the Supreme Court
on September 8, 1952, after a distinguished judicial career in the
Bombay High Court. He served the country creditably as a Supreme
Court judge till August 7, 1959, when he retired on reaching the age
1
of 65 years.
When Mr. Justice Bhagwati joined the Supreme court,
the Constitution, barely two years old at the time, was in its
formative
stage
and much ground remained unexplored. During his career,
Mr. Justice Bhagwati delivered a number of distinguished opinions
and decided and settled a number of important points in constitutional law. 2 It is, therefore, proposed in this brief article to
take of the contribution made by him to the development of the
note
constitutional jurisprudence of the country.
II
Mr. Justice Bhagwati's opinions bear on their face the imprint
of deep study. Some of them are very elaborate, even on the verge
of being prolix. A few features of his opinions may be noted here. (1)
Many a time, while interpreting a constitutional provision, he went
to the historial roots of the matter he was considering. This approach
helped in giving a better insight into a particular provision and into
the minds of the framers, and a better appreciation of why the
provision has been framed in the way it was 3 (2) The same histori*LL.*M (Delhi), J.S.D. , (Yale), Project Director, Indian Law Institute.
1. Art. 124(2) prescribes the retiring age of a Supreme Court Judge at 65 years.
2. Some of his important opinions are:
Muthiah
v. Commissioner of Incometax,
[1955] 2 S.C.R. 1247 (mjority decision, Jagnannth das J. dissenting) :
Bombay v. United Motors Ltd.,[1953] S.C.R. 1069 (Separate opinion): Bengal
Immunity Co., v. Bihar, [1955] 2 S.C.R. 603 (Separate opinion); Pannalal Binjraj
v. India, A.I.R. 1957 S.C. 397 "(majority opinion); Express Newspaper Ltd. v.
India, A.I.R. 1958 S.C. 578 (Unanimous opinion of the Court);
Tikaramji v.
U.P.y AJ.R. 1956 S.C, 67& (Unanimous opinion of the Court).
3. See for example: Mttqbool v. Bombay, [1953] S.C.R. pp. 736-738 where he
goes into She historical roots of the doctrine of double jeopardy in the Common
Law of England and also in the U.S.A. to interpret Art. 20(2) of the
Indian Constitution; inBengal Immunity case he surveys the Indian scene prior to
the Constitution and depicts the scramble by Provinces for sales-tax on the
basis of the doctrine of territorial nexus, to understand the implications of Art.

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32 JTTSTIOB BHAGWATI AND INDIAN CONSTITUTIONAL LAW

cal approach may be seen, in cases where he had to judge the validity
of a statutory provision against a constitutional provision.* (3)
Usually, while interpreting a constitutional provision, he went
extensively into the entire existing case-law on the provision concerned.5 (4) In a number of his opinions, he discussed very
elaborately foreign constitutional precedents, mainly American,6 though he
did not follow them indiscriminately. 7 (5) At times, he discussed
in his opinions, many issues argued before him relating to a particular controversy in hand, but which might not be, strictly speaking,
entirely relevant to decide the particular controversy. 8

4.t

5.
6.

7.

8.

286, [1955] 2 S.C.R. pp. 700-709. In Sri Ram Ram Narain v. Bombay, he goes
into the history of land tenures in the country to interpret Art. 31A (l)(a),
A.I.R. 1959 S.C. 459.
Refer to TikaramjVs case, where he traces elaborately the history of the legislation of U.P. regarding sugar and sugarcane, A.I.R. 1956 S.C. 676. In
Express Newspaper case, the Judge went elaborately into the historical materials
throwing light on the factors culminating in the enactment of the Working
Journalists Act, 1955, the steps taken thereafter to appoint the Wage Board,
and how the Board arrived at its decision which was questioned in the case,
Supra, Note 2.
In ThangaVs case, [1955] 2 S.C.R. at p. 1237, he quotes copiously from the
earlier Supreme Court cases on Article 226.
In the Bengal Immunity case, supra, while discussing the binding nature of its
own decisions on the Supreme Court itself, he traversed a very wide ground,
surveying the position in the U.K., Australia and America and referring to a
large number of cases from these countries. In
Express Newspaper case, he
referred extensively to American precedents, pertaining to the liberty of the
press, viz*, Grosjean v. Amercian Press Co., 297 U.S. 233 (1935); Associated Press
v. National Labour Relations Board,301 U.S. 103 (1936); Schneider v. Irvingtor,
308 U.S. 147 (1939); Thomas
v. Collins,323 U.S. 516 (1944); Terminiello v.
Chicago, 93 L. Ed. 1131 (1949); the dissenting opinion of Douglas J. in
v. Illinois,343 U.S. 250 (1951); Murdoch v.Pennsylvania 319 U.S.
uBeauharnais
105 (1942); Oklahoma -Press Publishing Co., v. Walling, 327 U.S. 18a (1945);
Mabee v. White Plains PublishingCo., 327 U.S. 178. Justifying reference to
American decisions, he observed, "Our Constitution has drawn freely inter alia
upon the Constitution of the United States and it would be helpful to consider
what is the position in the United States " The Bengal Immunity case, [1955]
2 S.C.R. 603, 692.
In Basheshar Nath v. Income-tax Commissioner, A.I.R. 1959 S.C. 149, he refused
to follow American precedents on the question of waiver of Fundamental
Rights in India.
In Express Newspaper case,supra, the Judge went into the question whether a
Wage Board discharged quasi-judicial or legislative functions. No final
opinion was,however, expressed as the controversy could be disposed of on the
ground that the Wage Board's decision in question was
ultra viresthe Act.
Another illustration is afforded by his elaborate discussion of the
nexus theory
in the Bengal Immunity case, even though it was not at all necessary for deciding
the particular controversy.

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M.P. JAIN 33

These tendencies sometimes made his opinions rather diffused,

clouding the basic issues involved. But to a persevering researcher,
these opinions offer a store-house of learning and information on
constitutional points. In a country like India, in view of the
singular absence of strong academic legal profession devoted to
analysing and conducting research into legal problems, it would, perhaps, be
a distinct advantage if judicial opinions, particularly those
relating
to constitutional matters, are broad-based, going into the broader
questions, instead of deciding a particular controversy on narrow
grounds. That appears to be necessary for a proper development
of constitutional law and some of Justice Bhagwati's opinions fulfil
the role very well.
Ill
Mr. Justice Bhagwati delivered a number of opinions in the area
of Fundamental Rights. In Maqbool v. Bombay? interpreting Art.
20(2) dealing with 'double jeopardy,5 he laid down the important
principle that the provision could be invoked where there was a
"prosecution and punishment in respect of the same offence before a court
of law or a tribunal" deciding matters judicially on oath and not
before a tribunal entertaining departmental or administrative
enquiry. He also held that Sea Customs authorities were not judicial
tribunals but were merely "constituted administrative machinery" 10
and adjudging by them of confiscation, increased rate of duty or
penalty did not constitute such a judgment of a court or judicial
tribunal, as to support a plea of double jeopardy when judicial trial
was held later for the same offence. The principle laid down by
Bhagwati J. regarding the scope of Art. 20(2) has been followed
ever sir ce and even repeated verbatim in later decisions.11 Bhagwati
J. had, however, left the status of Sea Customs authorities somewhat
vague. He held them cnot judicial* without specifying whether they
were quasi-judicial or administrative. Later Supreme Court's decisions have articulated it and these authorities are* now regarded, as
quasi judicial
bodies.12 Bhagwati J. had held that adjudging of
9. f 1953] S.C.R. 730,738. "
10. Bhagwati J. in Maqbool Hussain's case, applied the tests laid down in the
Bharat
Bank case, [1950] S.C.R. 459, but found the Sea Customs Authorities wanting
in them.
11. See Ebrahim v. Bombay, [1954] S.C.R. at p. 941; S.A. Venkataraman v. India,
[1954] S.C.R. 1150 at p. 1155.
12. F.N. Roy v. Collector of Customs,A.I.R. 1957 S.C. 648; Leo Frey v.Superintendent,
District Jail,
A.I.R. 1958 S.C. 119;
Sewpujanrai v. Collector of Customs.[19$8]
S.C. J. 1199.

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34 JT/6TK& BHAGWATI AND INDUS CONSTTTtmONAL LAW

penalty by a tribunal holding an administrative enquiry would not

bar a subsequent proceeding before a court for the same offence.
It is n6t clear whether, in view of the present-day holding of the
Supreme Court that the Sea Customs authorities are quasi-judicial
bodies, theratioof theMaqbool Hussain case, on this point, would
undergo a change. The principle enunciated by Bhagwati J. under
Art. 20(2) envisaged punishment and prosecution by a court or by
a judicial tribunal which may be interpreted as either excluding or
including quasi-judicial bodies.12* A view may also be taken that
proceedings before the Sea Customs authorities or any quasi-judicial
tribunal do not constitute 'prosecution' within the meaning of Art.
20(2). The question is not entirely free from doubt. 12b
Mr. Justice Bhagwati had occasion to deliver a few opinions on
Art. 14. In some, the issues involved were not very complicated and
called for an application of the principle already established.13 But,
some of his decisions in this area involved important issues and his
pronouncements thereon are note-worthy, though some of them may
be regarded as controversial. In Thangal v. Venkalachalam,K the
Travancore Taxation on Income (Investigation Commission) Act,
was challenged under Art. 14. Sec. 5(1) of the Act laid down that the
government might, before 15.2.'50, refer to the Commission for
investigation and report any case in which the government had
prima faciereasons for belief that a person had, substantial
to a
extent,
evaded payment of tax on income. It was contended that this
12a. The words 'judicial9 and 'quasi-judicial* have been used by the Supreme Court
more or less inter-changeably in relation to the Sea Customs authorities. See
the following statement of S.K. Das J.: "In F.N. Roy v. Collector of Customs,
Calcutta this Court Jield that the imposition of a fine under sec. 167(8) of the
Sea Customs Act was really a quasi-judicial act and in the later decision,
Leoof
RqyFreyv. The Supdt., Dist. Jail, Amritsar,
it has been held that in imposing
confiscation and penalties under the Sea Customs Act, * the Collector acts
judicially. Therefore, the view that an order of confiscation or penalty under
the Sea Customs Act is a mere administrative or executive act is no longer
tenable." Sewpujanrai v. Customs Collector, supra,
Note 12, p. 1203.
12b. Leo Frey v. Superintendent, District Jail,
[1958] S.C.J. 301, 304.
13. In Sakhawat Ali v. Orissa, [1955] 1 S.C.R. 1009, he held valid a provision of an
Orissa Act barring a legal practitioner employed on behalf of or against a
municipality to contest a seat therein. He held *jthaj the classification had a
reasonable relation to the object sought to be achieved, vizj^ purity of public
life.Ram Chandra Palai
v. Orissa. [1956] S.C.R. 28, laid down the principle
that one uniform law need not operate throughout^ that State, regarding a
particular matter. The State could very well be divided into several zones
and different laws applied, if circumstances warranted it.
14. [1955] 2 S.C.R. 1196.

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M.P. JAIN 35
provision dealt with the same class of persons dealt with by S. 47 of
the
Travancore Income-tax Act, the procedure wherein was less onerous
than that in the Commission Act and, therefore, the former wa*s 'discriminatory and based on no classification. Bhagwati J. went into
the circumstances leading to the impugned provision and held that it
referred only to those substantial evaders of income-tax who had
made huge profits during the war. The government's discretion
was held to be not unguided and uncontrolled, for it was controlled
by the objective set out in the provision in question. Between the
impugned provision and S. 47 of the Income-tax Act, he found two
differences: (1) S. 47 applied when there was 'definite* information
of tax evasion; on the other hand, the impugned provision applied
when there was no 'definite' but'prima facie"reason to believe that
income had escaped taxation. (2) Under S. 47, discovery must be
within 8 years and it was not confined to war period; but the impugned section was limited to evasion during the Second World War.
The two provisions were thus held to cover two different sets of tax
evaders and so no discrimination was involved. Bhagwati J. interpreted the provision as confining to war-time tax-dodgers only
and so he arrived at an identifiable classification. The point to note
here is that there was nothing explicit in the impugned statute to
this
effect; it was general in terms and could be applied to any taxevader.
Further, the distinction between S. 47 of the Income-tax Act and the
impugned provision on the basis of difference between
'prima facie'
reasons and 'definite' information appears to be unsubstantial as in
both cases, the matter is purely 'subjective' to the person deciding
it. Muthiah v. Commissioner, Income-tax1^ has the distinction of
being one of the few cases where a statutory provision has been declared bad under Art. 14. In that case, Section 5(1) of the Taxation
of Income (Investigation Commission) Act, 1947 and S. 34 of the
Indian Income-tax Act were involved. Bhagwati J. found that
both provisions covered the same class of persons but the former was
more drastic and summary in procedure than the latter and was bad
as being discriminatory.
A very controversial pronouncement of Bhagwati J. is
Pannalal
in
Binjrajv. India.16According to S. 64 of the Indian Incometax
Act, an assessee is to be assessed at his place of residence or
business.
Under Sec. 5 (7A) , the Central Board of Revenue is authorised
to transfer a case from one place to any other place in India.17
15. [1955] 2 S.C-R. 1247.
16. A.I.R. 1957 S.C. 397.
17. The provision authorises (i) the Commissioner of Income-tax to transfer any

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36 JUSTICE BHAGWATI AND INDIAN CONSTITUTIONAL LAW

This provision was challenged on the ground that it invested the Executive with naked and arbitrary power, which was unguided
and discriminatory as the Executive could pick and choose
one assessee from amongst others in a like situation and transfer his
case from one State to another. In the instant case, the income-tax
case of the petitioner was transferred from Calcutta to Delhi.
Hitherto, in a number of cases the rule established was that a law
conferring
on the Excutive a power to discriminate, without any policy to control
it, could not be regarded as valid.18 But, Bhagwati J. held the
provision valid not so much because he read any policy into it, but
more so because it was made for "administrative convenience " .
The key-note of his decision was that such a power was necessary "for
convenient and efficient assessment" of income-tax. This decision
may be regarded as the weakest in the chain of decisions on Art.
14. It has largely diluted the efficacy of this constitutional
provision
as
a restraint on unlimited executive discretion. The case may be
characterised as an extreme example of judicial deference to administrative convenience.19
Somewhat in linewith the above trend is Bhagwati, J.'s decision
in Nimela Textile Finishing Mills Ltd.
v. The 2nd Punjab Industrial
Tribunal,in which the question was whether the discretion vested

in the governmentto refer an industrial dispute

to one ofthe several
bodies under the Industrial Disputes Act21 was valid since there
was
nothing
to regulate government discretion; government could
differentiate between the parties similarly circumstanced by referring
their cases to different bodies. Procedurally, these bodies differ
from each other, a court of enquiry following a less onerous procedure
than an industrial tribunal. Bhagwati J. held the provision valid
because the government must act according to sutrounding circumstances, exigencies of the situation and the object to be
achieVed.22
He stated: "There cannot be any classification and*the reference to
case from one Income-tax Officer to another under him; and (ii) the Central
Board of Revenue to transfer a case from one place to another anywhere in
India.
18. Stateof West Bengal v.Anwar AH, AIR. 1952 S.C. 75; Kathi Raning v. State of
Saurashtra,A.I.R. 1952 S.C. 123. See M.P.Jain: "Administrative Discretion
& Fundamental Rights", 1
Journal of The InUian Law Institute
223.
19. See the article referred to in Note 18, for a detailed comment on this c^se.
20. [1957] S.C.R. 335.
21. These bodies are: .Works Committee, Conciliation Officer, Board of Conciliation,
Court of Enquiry and Industrial Tribunal. For their functions and procedure,
see Sees. 11 to 21, Ch. IV, Industrial Disputes Act, 1947.
22. [1957] S.C.R. at p. 388.

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M.P. JAIN 37

one or the other of the authorities has necessarily got to be

determined
in the exercise of its best discretion by the appropriate government."
The opinion appears to be in the nature of a strong apologia for
vesting vast discretion in the government, the major emphasis being
laid on the necessity for vesting the discretion in the Executive and
emphasising the difficulties in regulating it rather than on locating
the 'policy' to control it. The two cases mentioned above appear
to indicate that when broad discretion is vested in the Executive
which
may be used in a discriminatory manner, Art. 14 is satisfied if the
court feels that there are good reasons to so vest the discretion. If,
instead of finding the 'policy' to control executive discretion,
courts
try to search for reasons to justify the vesting of vast discretion in
the
Executive,
Art. 14 must appear to have been denuded of much of its
potentialities.
Bhagwati J.'s pronouncement on Art. 19(1) (a) in relation
to the press in Express Newspaper Ltd., v. India>2S forms an
important event in the country's constitutional growth. The Working
Journalists' Act, 1955, was challenged on the ground that in
substance,
in its true nature and character and in 'effect and operation,1 it
regulated employment in newspaper industry and thus came under
the prohibition of Art. 19(1) (a) as affecting the freedom of the
press. He did not concede the point for, in his view, the true nature
of the Act was to regulate the conditions of service of working
journalists; it might result in certain disadvantages to the newspaper
industry but they were only 'incidental' and 'extraneous' to the Act. He
formulated the principle thus: unless the disadvantages accruing
to the newspaper industry under the Act were *'direct and inevitable
consequences of the measure," the Act could not be struck down.
There was an interesting argument in the* case on whether Art.
19(1) (a) would operate only when legislation "directly" dealt with
the right mentioned in the Article, or also when a statute, in
'effect',
affects that right. Bhagwati J. did not give a definitive ruling on
the 'subject-matter' v. 'effect' controversy. The* point is of ^great
importance for the 'subject-matter' test is narrower in the sense that
it would permit indirect encroachments on the freedom guaranteed
by Art. 19(l)(a). But, from Bhagwati J.'s opinion, it appears to
emerge that he did not favour any of these tests but took an intermediate positiom He put forth the test of 'true nature' of the
legislation
in question. His test is narrower than the 'effect' test for it
permits
incidental encroachments on the freedom of speech; but, it is broader
23. Supra, Note 2.

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38 JtTSTIGB! BHAGWATI AND INDIA** CONSTITUTIONAL LAW

than the 'subject-matter' test because, even though a legislation does

not deal with the right of freedom directly, yet it might become bad
if it lays on the right restrictions which are not inconsequential or
incidental.
The case above mentioned is also very important from the point
of view of Art. 19(l)(g). The Act in question created a Wage
Board for fixing rates of wages for working journalists, having regard
to several circumstances laid in the Act itself.24 The Wage Board
submitted its report. The newspaper industry challenged the Act
and the decision of the Wage Board,inter alia
, under Art. 19(1) (g)
as imposing unreasonable restrictions on the newspaper industry. By
quoting copiously from the Report of the Committee of Fair Wages,*5
Mr. Justice Bhagwati pointed out that what the Act in question
envisaged was something more than a living wage28 and so, it was
necessary to take 'capacity of the industry to pay' into
consideration27
and held that he would read this circumstance into the Act itself.
The Act was thus good,28 but the Wage Board decision was
bad as being ultra viresbecause it had not taken the 'capacity'
into consideration. He upheld the constitutional validity of a wage
board under Art. 19(1) (g) as a machinery of wage fixation in
any industry.29
This pronouncement* of Bhagwati J. may be characterised as
being the most weighty of all his decisions for several reasons. It
furnishes a very good illustration of judicial policy-making for,
unlike
the Supreme Court's positivist approach in constitutional interpre24. These were: Cost oC living; prevalent rates of wages for comparable -employments; circumstances relating to the newspaper industry in different regions of the
country and any other circumstance which may seem relevant to the Board.
25. 1947 to 1949, pp. 5-7, paras 6,7,8 and 10.
26. He classified wages into living wage, fair wage and minimum wage. A minimum
wage provides for bare sustenance of life, just sufficient to cover the bare
physical
needs of a worker and his family. A living wage provides, in addition, a frugal
measure of comfort and other amenities like education and health. The fair
wage is a mean between the two. Minimum wage must be paid to a worker
irrespective of the industry's capacity to pay but in other cases 'capacity' of the
industry to pay is an essential ingredient Tor consideration.
27. He elaborately discusses as to what 'capacity' means and how it is to be
measured.
28. However Sec. 5 (l)(a)(iii) was declared 'unreasonable' as it provide^ for
giving gratuity to an employee who resigned voluntarily from service.
29. His concept of a wage board for an industry was a board having equal number
of representatives of employers and employees, with some independent members,
one of them being the chairman, and the board following a procedure conforming
to natural justice. The Board in question fulfilled all these tests.

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M.*. JAIN 39
tation as revealed in many important cases,30
in this caseyBhagwati
J. refers to socio-economic theories regarding wage-fixing and to
many publications in this respect. This reminds one of the Brandeis
Brief,31 which has been in use in the United States for some time
now in the realm of constitutional law. This case thus depicts a
fresh approach to the interpretation of constitutional law. Under
Art. 19(l)(g) as has now been held, 'capacity of the industrty' must
be taken into consideration while fixing more than living wages.
Thus, this will set the pattern for future wage-fixing in other
industries.
Bhagwati J.'s observations on how wage boards should be constituted and what procedure they should follow will all have their
impact on future legislation regarding wage fixation. Immediately,
the decision saved the newspaper industry from a crisis for, as was
clear from materials placed before the Court, it was in none-toohappy a financial position.32 On merits, it appears to be very fair
that in the fixing of more than minimum wages capacity of the industry be taken into consideration.
"The last of the cases of Bhagwati J. on Fundamental Rights,33
is Basheshar Nath v. Income-tax Commissionor,M wherein arose the
important question whether a person can waive any of his Fundamental
Rights. Das G.J. and Kapur J. confined themselves to Art. 14
onlythe provision which was directly in tssue in the instant case

and held that it could not be waived. S.K. Das J. however, took the
stand that there was no waiver in the instant case and so it was not
necessary for him to decide the general question of waiver but his
view was that a Fundamental Right intended primarily for his
benefit could be waived by the person concerned, provided the waiver
did not contravene public policy or public morals. Bhagwati J.,
30. The high-water-mark of this approach may be seen in the Supreme Court's
decision inGopalan v. Madras, [1950] S.CJ. 174.
31. The Brief for the first time direcdy incorporated social and economic data into
the record before the Supreme Court in constitutional cases. It is now very
commonly recognised in the U.S.A. that underlying question of factpoetical,
social and economicdo condition the constitutionality of legislation and
constitute a crucial element in decision-making by the court: McWhinney,
Judicial Review in the English Speaking World,
139.
32. It was pointed out that the industry was making only an over-all profit of 1%
on a capital of 7 crores, and that a number of news papers were running at a
foss.
33. The case of Shri Ram Ram Narain v. Bombay, in which he interpreted the word
'tenure* in Art. 31A (1) (a) broadly as meaning 'any interest in land' may also
be noted here. Herein is also to be found a discussion of the growth of land
tenures in India. In TikaramjVs case, he discusses very briefly Art. 19 (1) (c).
34. A.I.R. 1959 S.C. 149.

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