Constitutional Law Fundamental Rights: M. P. Jain

C O N S T I T U T I O N A L LAW
F U N D A M E N T A L RIGHTS
M. P. Jain*
I. INTRODUCTION
As USUAL, the provisions concerning fundamental rights in the Indian

Constitution continue to be a prolific source of case-law. Seventy
cases are reported in this urea in the twelve monthly issues of the
All India Reporter. Of these, fifteen decisions have been rendered
by the Supreme Court and the rest by the High Courts. Questions
of interpretation of articles 12 and 13 have been considered in four
cases. Article 14 which guarantees equal protection of laws has
been the most commonly invoked provision and has figured in twenty-
seven cases. Questions of discrimination in public services under
•article 16 have been raised in four cases. Article 15 banning dis-
crimination on certain specific grounds has figured in two decisions.
Various clauses of article 19, especially sub-clauses ( a ) , (/) and (g),
of clause (1), guaranteeing respectively freedom of speech and ex-
pression, freedom to acquire, hold and dispose of property and
freedom to carry on trade and commerce, have figured in fourteen
cases. Questions concerning articles 20 and 22 which secure free-
dom of the person have been raised in six cases. Seven decisions
concern acquisition of property by the state and thus revolve around
articles 31, 31A and 3 IB, while in four cases problems concerning
rights of the minorities under articles 25, 26, 29 and 30, have been
considered. There is only one case involving the question of the
relationship between legislative privileges and fundamental rights and
one case on article 32. Thus, from this analysis, it appears that during
the year 1969, the provisions of the Constitution dealing with the
fundamental rights which have been active are articles 12, 13, 14,
15, 16, 20, 22, 25, 26, 29, 30 and 31. Other constitutional pro-
visions in the area have remained dormant during the year under
review.
Another notable development of the year, from the point of

view of fundamental rights, was that the emergency declared in the
country under article 352 on 20 October 1962, was revoked on
10 January 1969.
"Porfessor of Law, Banaras Hindu University, Varanasi.

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHTS 211
II. FUNDAMENTAL RIGHTS AND LEGISLATIVE PRIVILEGES
In C. Subramniam v. Speaker, Legislative Assembly,1 the Madras

High Court was called upon to consider the relationship between the
legislative privileges and the fundamental rights. A show-cause
notice had been issued to C. Subramaniam as to why he should not
be held to have committed contempt of the Madras Legislative
Assembly. The matter had arisen out of a public speech made by
him in which he had criticized the language resolution of the legis-
lature and charactirized it as a 'political fraud'. Subramaniam filed
a petition under article 226 in the High Court of Madras for a writ
of prohibition to restrain the speaker of the Madras Legislative
Assembly from proceeding further with the matter of legislative
privilege against him. The main point of contention involved in the
case related to the relation of articles 19(1) (a) and 21, the constitu-
tional provisions guaranteeing freedom of speech and expression, and
procedure according to law, with regard to the legislative privileges.
The High Court reiterated what had already been held by the Supreme
Court earlier in M. S. M. Sharma v. Sri Krishna Singh2 and the Keshav
Singh case3 that article (19(1) (a) does not control legislative privile-
ges though article 21 does. The High Court, however, dismissed
the petition on the ground of pre-maturity as regards the provisions
of article 21, for there was as yet no warrant, or any thing analog-
ous to a committal proceeding, against Subramaniam but simply a
notice calling upon him to show cause why he should not be held
to have committed a breach of the privilege of the legislature. In-
terestingly, the High Court emphasized the point, already well settled,
that if a state legislature were to enact a law under article 194(3)
defining its privileges, then such a law would be subject to artile 13
and the fundamental rights.
III. ARTICLE 12
In Electricity Board Rajasthan v. Mohanlal,4 the Supreme Court

had held that the expression 'other authorities' included in the defini-
tion of the 'state' in article 12 would include all constitutional or
statutory authorities on whom powers were conferred by law and it
did not matter that some of the powers so conferred might be for
1. A.I.R. 1969 Mad. 10.

2. A.I.R. 1959 S.C. 395.
3. In re, Under Article 143, Constitution of India, A.I.R 1965 S.C.
745.
4. A.I.R. 1967 S.C. 1857.
lYl ANNUAL SURVEY OF INDIAN LAW 1969
carrying on commercial activities. This staple pronouncement has

been referred to in practically all cases in which article 12 has figured
though the results reached by the High Courts have not been always
the same. In Ranjit Kumar v. Union of India,** the Calcutta High
Court has held that a government company registered under the
Indian Companies Act, 1956 was not a 'state' within the meaning
of article 12. The question raised in the insant case was whether
the Durgapur Steel Plant appertaining to the Hindustan Steel Limit-
ed, a government company, was a 'state' within the meaning of
article 12. The High Court replied in the negative. It read the
Supreme Court case, Electricity Board Rajasthan v. Mohanlal, as
pertaining to a statutory body exercising statutory functions. Thus,
on this view, a statutory corporation is a 'state' but not a non-
statutory body. The juristic personality of a company, the High
Court pointed out, is separate and distinct from the government.
The decision of the Bombay High Court, in Pramodrai v. L. L
Corpn.® is based on completely opposite view. It was held in this case
that the Life Insurance Corporation, a statutory body created by
Parliament, is not a 'state' within the meaning of article 12. This
part of the decision of the Bombay High Court is difficult to sustain
in view of the Supreme Court's decision in the Rajasthan case. The
Bombay High Court has stated regarding this case that "It is not
possible to read the judgment to say that 'authority' includes every
and any autonomous body merely because it is constituted by a
statute, whatever be its functions." But a careful reading of the
Rajasthan case would show that that does appear to be the drift
of the Supreme Court's opinion. The main point involved in the
Pramodrai case, however, was whether article 311 would apply to
the employees of the Life Insurance Corporation. On this point,
there appears to be no doubt that such employees do not fall within
the scope of article 311 as has already been held in a large number
of cases.7 For this purpose, it was not necessary for the Bombay
High Court to go into the question whether the Life Insurance Cor-
poration was a 'state' or not and whether a writ could go to it for
breach of a fundamental right. Article 12 comes into the picture
only when a question of fundamental right is involved. It is quite
conceivable that a body may be regarded as a 'state' under article 12
5. A.I.R. 1969 Cal. 95.

6. A.I.R. 1969 Bom. 337.
1. D.V.C. v. Provat Roy, 60 C.W.N. 1023; Sunil Kumar v. Mining
and Allied Machinery Corp., A.I.R. 1968 Cal. 322; Bool Chand
Kurukshetra University, A.I.R. 1968 S.C. 292.
for purposes of fundamental rights, and yet may not be a 'state'

for purposes of article 311. Article 12 does not control article 311.
The Rajasthan Electricity Board which has been held to be a 'state'
by the Supreme Court in the Rajasthan case under article 12 would
not be so construed for purposes of article 311.
The pronouncement made by the Delhi High Court in Mohinder
Singh v. Union of India8 is also debatable. Here the Court declared
that a society registered under the Societies Registration Act is aa
'authority' for purposes of article 12. The society involved in the
case consisted of bulk of government nominees. After reading the
regulations of the society, the Court held that it could not be regard-
ed as being under the control and superintendence of the government.
It was not a government department but was an autonomous body
and the government had no power to interfere in its day to day
working. But, nevertheless, the Court declared that it fell under
article 12 being included within the term 'other authority' in that
constitutional provision. Referring to the Rajasthan case, the Delhi
High Court has held that a registered society is statutory inasmuch
as it is registered under, and certain powers are conferred on it by,
the Registration of Societies Act, and so it can be regarded as an
'authority'. It remains open to doubt if the term 'statutory' used
by the Supreme Court in the Rajasthan case means a body registered
under the Registration of Societies Act, for, on that view, every co-
operative society and every limited company would become 'statutory'
as these are also registered as compulsorily required to be registered
under the relevant laws. In quite a few cases, issue of writs to these
bodies have been refused. In fact, a company under the Indian Com-
panies Act is under a much more rigorous government control today
than a 'registered' society ever is, and if still a company is not con-
sidered to be an 'authority' within article 12 and subject to the writ
jurisdiction, then it stands to reason whether a society merely because
it is registered under a law can be so characterized.
An interesting point emerges from the above cases, viz., the
varying interpretations which the High Courts have put on the
Rajasthan case. While on the one extremity is the Bombay High
Court which is not prepared to hold a statutory body like the Life
Insurance Corporation as a 'state' or an 'authority' within article 12,
on the other extremity is the Delhi High Court which has gone to
the extent of holding even a registered society as a 'state' or 'aut-
hority', and both the High Courts base themselves on the Rajasthan
case.
8. A I R . 1969 Delhi 170. ~~
214 ANNUAL SURVEY OF INDIAN LAW 1969
IV ARTICLE 13
In Chief Settlement Commissioner, Punjab v. Om Parkash,9 the
Supreme Court has again laid stress on the salient principle, already
emphasized by the Court earlier in several cases,10 that if there is a
conflict between an administrative instruction having no statutory
force and a statutory enactment, then the "statutory provisions must
take precedence and must prevail over the directions." The Court
went on to point out that in India, law making authority was vested
in Parliament, state legislatures and other bodies, and "whatever
legislative power the executive administration possesses must be
derived directly from the delegation by the legislature and exercised
validly only within the limits prescribed. The notion of inherent or
autonomous law-making power in the executive administration is
a notion that must be emphatically rejected." The most
characteristic feature of the Indian constitutional system, the Court
has stressed, is the concept of rule of law which means the authority
of the law courts to test all administrative actions by the standard of
legality, and to set aside the administrative or executive action which
does not meet the standard, if the aggrieved party brings an appro-
priate court-action for the purpose.11 In the instant case, the ques-
tion involved was whether a particular person was a 'displaced
person' or a 'refugee'. The terms, the Court has pointed out, have
been used in the relevant statutes with reference to a person who
migrated to India as a result of disturbances on partition of the
country. A person who had died before the disturbances took place
and never migrated to India could not be covered by the expression
'displaced person' or 'refugee' and this statutory meaning could not
be overridden by any administrative direction. Therefore, an admin-
istrative direction going against a fundamental right will be quashed
by the courts.12
IV. ARTICLE 14
Article 14 is invoked in a large number of cases to question
a law or an administrative action as discriminatory. This constitu-
tional provision which guarantees to every person "equality before
9. A . I . R . 1969 S.C. 33, see notes 13, 62, 82 infra.
10. Mannalal Jain v. State of Assam, A . I . R . 1962 S.C. 386.
11. The Court adopted Jackson, J. 's observations in Youngstown Sheet
and Tube Co. v. Sewver, 343 U . S . 579, 655 (1952).. On the law relating
to administrtive directions in India see, S. N . Jain, "Legality of Administrative
Directions," 8 J.I.L.I. 349 (1966), and the cases mentioned therein.
12. Balaji v. State of Mysore A . I . R . 1963 S.C. 649. Also see, note
13 infra.
CONSTITUTIONAL LAW : FUNDAMENTAL RIGHTS 215
the law or the equal protection of the laws" appears to have assumed
an omnibus character, and those who want to challenge legislation
adversely affecting them make use of article 14 if no other constitu-
tional provision seems to help them. At times, article 14 is invoked
alone, by itself, and, at other times, along with some other consti-
tutional provision like articles 15, 16, 19(1) (/) or 1 9 ( l ) ( g ) .
The main ground of attack under article 14 is discrimination, either
by law or administrative action, but the variety of situations in which
the argument of discrimination is raised can only be appreciated by
referring to the cases and concrete factual situations in which article 14
has been invoked during the year under review.
To manage certain Swetambara Jain temples within the state
of Bihar, the state government appointed the Bihar State Board of
Swetambara Jain Trusts under the Jain Religious Trusts Act, 1950.
The board was to consist of two persons appointed by the govern-
ment, four persons elected by the Swetambara Jain Religious Trusts
registered under the Act, and five persons to be elected by the Sree
Sangh—an assembly of Swetambara Jains from all over India. For
election of these five persons, the government made a provision
through an administrative instruction that an electoral list be pre-
pared containing the names of all the Swetambara Jains above the
age of twenty-one residing in Bihar, and of Swetambara Jains out-
side Bihar who were above the age of twenty-one years and had
donated not less than Rs. 500 to a Swetambara religious trust within
the last ten years. In Labh Chandra v. State,lz the Patna High
Court declared the administrative instruction as discriminatory under
article 14, for there was no rational basis for distinguishing between
Swetambara Jains residing within and outside the state. Just because
the trust properties were situated within the state, there was no
reason why the Jains living outside the state should not have the
same right as those living within the state in the matter of election
of five members of the board. But, Jains living outside the state
have been given an irrationally and unreasonably limited right. A
donor from outside Bihar who may have donated lacs of rupees in
construction of these temples would not get any say in electing mem-
bers of the board if he had not given Rs. 500 within the last ten
years.
A phenomenon appearing in independent India has been the keen
competition for admission to professional colleges. For regulating
these admissions, varied rules have been made by the state gov-
ernments and persons adversely affected by these rules have brought
13. A.I.R. 1969 Pat. 209.
them before the courts for scrutiny. Article 15 prohibits discrimina-

tion on certain specified grounds, such as religion, race, caste, sex
or place of birth, but when the admission rules appear to be vitiated
on any other ground of discrimination, then article 15 may not help
and article 14 has to be invoked. In quite a few cases, admission
rules have failed to stand the judicial scrutiny. Thus, in G.
Venkataratnam v. Principal Osmania M.C.,U certain rules of admis-
sion to the M.B.B.S. course, made by the Andhra Pradesh gov-
ernment, were declared to be discriminatory on the ground of un-
limited reservation in favour of certain classes of candidates, like
sons and daughters of government officers serving in Hyderabad. In
R. S. Singh v. Darbhanga Medical College,13 a rule permitting ad-
mission straightaway to B.Sc. Honours candidates to the state medical
colleges, irrespective of the marks obtained by them, was declared
to be bad under article 14 as the basis of classification adopted by
the rules had no rational nexus with the object to be achieved, viz.,
securing suitable candidates for admission to the medical course. A
blanket order directing automatic admission to the medical course
of a B.Sc. Honours graduate, without consideration of marks obtained
by him, is unfair to the B.Sc. students who may have got much higher
marks. In Abodha Kumar v. State1® the Orissa High Court ruled
as discriminatory under article 14, a provision "for regionwise
selection of candidates for admission to state medical colleges.
The High Court depended for its view directly on the Supreme
Court's ruling in P. Rajendran v. State of Madras11 in which the Court
had vetoed a provision laying down district-wise distribution of seats
in the state medical colleges on the basis of the ratio of the pupula-
tion of district to the total state population. The basic
reason given by the Supreme Court for this proposition
was that classification to be valid under anicle 14 is not only
to be based on reasonable criterion, but that there has also to be a
nexus between the classification and the object to be achieved. The
object to be achieved by any scheme of admission rules is to select
the best available talent for admission to medical colleges. District-
wise selection does not fulfil this object, and may even be discrimi-
natory, inasmuch as a better qualified candidate from one district
may be rejected while a less qualified candidate from another dis-
trict may be admitted. In Surendra Kumar v. State of Rajasthan,19
' 14. A.I.R. 1969 A.P. 35.
15. A.I.R. 1969 Pat. 11.
16. A.I.R. 1969 Ori. 80.
17. A.I.R. 1968 S.C. 1012.
18. A.I.R. 1969 Raj. 183.
the Rajasthan High Court held the following reservations for admis-
sions to the state medical colleges as unreasonable: children of doc-
tors, voids and hakims; children of political sufferers; children of
members of Parliament and state legislature; a few seats to be filled
in by the state government in its discretion. Invoking the authority
of the Rajendran case, the Court pointed out that as none of these
categories can be held to fulfil the objective of the admission rules,
viz., to secure the best possible material for admission to educational
institutions, the classification could not be held to be reasonable.
However, reservation of a few seats for children of defence personnel
was held as not unreasonable, keeping in view the national interests
and the fact that Rajasthan is a border state.19
It has so happened that in all the four cases in which admission
rules were questioned, the rules were held discriminatory under
article 14. One will be surprised, after reading the rules challenged,
at the amount of irrational thinking that goes on in the country in
academic matters. The state governments are pressurized by all
sorts of groups and interests for securing preferential treatment in
the matter of admissions to professional colleges so that their econo-
mic welfare may be promoted. In such a situation, assertion by the
courts that the purpose of any scheme of admission rules is to secure
the best material available looks very refreshing. There is no doubt
that the credit for the judicial acceptance of such an approach goes
to the Supreme Court which showed the path by its pronouncement
in the Rajendran case.
A number of tax-laws have been challenged under article 14,
but here the attitude of the courts has not been as demanding and
critical as in the case of admission rules. It is only rarely that a
tax law is held to be discriminatory. The reason for so much judi-
cial deference to tax-laws has been that because of the inherent
complexities of fiscal adjustment of diverse elements, a legislature
should be permitted to have a much larger discretion in the matter
of classification in a tax-law.20 The state of Uttar Pradesh levied
a tax on professions, trades, callings and employments within the
state. Exemptions from the tax were granted to those engaged in
agriculture and armed forces. The exemptions were held valid by
the Allahabad High Court in Sushil Chander v. State,21 as being
19. Reference was made to Subhashini v. State of Mysore, A.I.R. 1966
Mys. 40, where a similar reservation was held valid.
20. Balaji v. Income Tax Officer, A.I.R. 1962 S.C. 123; Khyerbari
Tea Co. v. State of Assam, A . I . R . 1964 S.C. 925.
21. A.I.R. 1969 AU. 317.
based on a reasonable classification. The state of Mysore levied

an education cess. Then the state was re-organized and made bigger
by addition of new areas to it under the States' Re-organisation Act,
1956. The cess continued to be levied in the old Mysore state but
was not extended in the new areas. This was challenged as discri-
minatory under article 14, but the Mysore High Court in Cawasji &
Co. v. State— had no difficulty in rejecting the argument in view of
many cases in which prevalence of two different laws in different
parts of the same state after its re-organization has been held to be
valid, because a "geographical classification based on historical rea-
sons can be upheld as not being contrary to the equal protection
clause in article 14."23 Under the Wealth Tax Act, 1957, wealth
tax is levied on net wealth with progressively higher rates for the
higher slabs. Over and above this, an additional wealth tax is also
levied on the value of lands and buildings situated in urban areas.
Urban areas are divided into four categories according to their popu-
lation, and exemption limits vary from one category of urban area
to another. Thus, while in centre A, the additional tax is levied on
property in excess of five lacs, in centre D it is levied on property
in excess of 2 lacs. In this way, while property valuing Rs. 10 lacs
would suffer no additional tax if situated in non-urban centres, it
would suffer a tax of Rs. 7000, 5000, 4000, and 3000 respectively
in centres D,C,B, and A. This differentiation in levy of wealth tax
was challenged as discriminatory under article 14 in Kadija Bai v.
Wealth Tax Officer2A but the challenge was rejected and the levy of
tax upheld by the High Court. The justification for the additional
wealth tax was to curb excessive investment in urban property and
to have some ceiling on vast accumulations of urban property. The
differentiation in taxation was justified on account of differences in
urban property values in towns of different sizes. The wealth tax
is leviable on the capital value of assets. Immovable property fet-
ches a higher income in an urban than a rural area. Therefore, in
relation to its market value, the capital value of an asset situated in
an urban area is higher than the capital value of an asset situated
in a rural area. The same is true of various urban centres. As
one proceeds from a smaller to a bigger urban area, the market
value of an asset increases out of all proportion to its productivity,
in other words, out of proportion to its capital value. Another way
22. A . I . R . 1969 Mys. 23.

23. Bhavalal Shukla v. State of M.P., A.I.R. 1962 S.C. 981; Anand
Prasad v. State of A.P. A . I . R . 1963 S.C. 853.
24. A.I.R. 1969 Ker. 69.
of looking at the problems is this. The scheme of the Act, justified

by clauses (b) and (c) of article 39, is to tax excessive wealth on
a progressive scale. Having regard tb such factors as the cost and
standard of living, and the much higher price which one has to pay
for a property of the same physical character in a bigger city than
in a smaller one, it can reasonably be said that while property worth
five lacs is not excessive wealth in a place like Bombay, it may be
so regarded in a smaller place.
State of Kerala v. Haji K. Kutty23 presents an example of a
tax-law held invalid under article 14. The state of Kerala levied a
tax on buildings on the 'floorage' basis on a sliding scale. The
Supreme Court held the tax to be discriminatory, because whether a
building was situated in a large industrial town or in an
insignificant village, the rate of tax was determined by
its floor area; it did not depend upon the purpose for which
the building was used; the nature of the structure, the
town and locality in which the building was situated, the
economic rent obtained from the building, its cost and
other related circumstances which might appropriately be taken into
consideration in any rational system of taxation of buildings. The
legislature had made no attempt at any rational classification in im-
posing the tax in question. Imposing a uniform tax on objects,
persons or transactions essentially dissimilar may result in discrimi-
nation. Not to make a rational classification may operate in some
cases as denial of equality. This ruling is in line with the three
other rulings of the Supreme Court, viz., Moopil Nair, State of Andhra
Pradesh v. Raja Reddy and New Manek Chowk Spinning and Weav-
ing Mills Co. Ltd. v. Municipal Corporation of Ahmedabad. Follow-
ing the Moopil Nair2Q the Supreme Court in Andhra Pradesh v.
Raja Reddy27 declared levy of an additional land revenue as void
under article 14. Here again, a minimum flat rate had been imposed
25. A . I . R . 1969 S.C. 378.
26. K. T. Moopil Nair v. State of Kerala, A . I . R . 1961 S.C. 552. In
Moopil Nair case a land tax at a flat ratt of Rs. 2 per acre was held to he
discriminatory under article 14 as it made no reference to income, either
actual or potential, from the land taxed. A fiat rate of tax imposed on
land whether or not there was any income from the property. The Court
held that the lack of classification created in-equality, as was evidenced by
facts of the said case where the petitioner was required to pay a tax of
Rs. 54,000 per year whole income from the land taxed came to Rs. 3,100
only. Therefore, the Court characterized the tax as discriminatory and
confiscatory and hence bad under article 14.
27. A . I . R . 1967 S.C. 1458.
on land without taking into account the quality or productivity of

the soil. In case of irrigated land, the basis of classification adopted
for imposing land revenue was held unreasonable as it had no re-
lation to either the duration of water supply or to the quality or
productivity of the soil. The Court emphasized that article 14 is
offended both when a statutory provision finds differences where
there are none, or, by making no differentiation where differences
exist. Even a tax-law cannot introduce unreasonable discrimination
between persons or property either by classification or lack of it.
In the Haji Kutty case, following the New Manek Chowk Mills28
case the Supreme Court has again stated the proposition that where
objects, persons or transactions essentially dissimilar are treated by
the imposition of a uniform tax, discrimination may result for refusal
to make a rational classification may itself in some cases operate as
a denial of equality.
Under the Punjab Passengers and Goods Taxation Act, 1952,

the same tax was levied on trucks as well as tempos although the
carrying capacity of tempos is only twenty maunds while that of
the trucks it is two hundred maunds. Nevertheless, the Punjab High
Court upheld the tax in Sain Doss v. State29 against a challenge of
its being discriminatory. Against its validity the Supreme
Court's observation in the Moopil Nair case that in some cases
lack of classification might result in discrimination, was cited. The
High Court, however, read the case as laying down the proposition
that equal protection of laws would be violated if the same clan
of property similarly situated is subject to an incidence of taxation
which results in inequality. The decision of the Punjab High Court
appears to be arguable. There was a clear lack of classification in
the tax-law in question insofar as vehicles with different carrying
capacities were being equally taxed. The Court's reading of the
Moopil Nair case does not appeal to be sound for the basic proposi-
tion derivable from the case is that at times levy of a uniform tax
on property, without any classification, may result in discrimination,
and the instanr case appears to be one where this principle was
directly applicable.
28. N.M.C.S. & Mills v. Ahmedabad Muncply.t A.I.R. 1967 S.C.

1801. In this case a flat rate for floor area for determining the annual value
of factory building was held to be against all principle! of valuation for
purposes of taxation.
29. A.I.R. 1969 Funj. 305.
In the modern administrative-age, it is customary to confer

large discretionary powers on administrative officers. Often a sta-
tutory provision conferring such a power is couched in very broad
terms, gives a large area of choice to the administrator to apply
the law to concrete factirtal situations, and does not lay down the
norms or principles on which the adminstrator is to act in exercising
his discretion. The administrator is thus left free most of the time
to act according to his judgment. This creates the danger of official
arbitrariness as uncontrolled administrative discretion may be exer-
cised in such a way as to discriminate between persons or things simi-
larly situated. In this context, article 14 has come to play a very
useful role. To mitigate the danger of misuse of power, the courts
have spelled out of article 14 the proposition that a law conferring
absolute or uncontrolled discretion on the administrator is invalid;
that a law to be valid should lay down the principles or policies sub-
ject to which the discretionary power conferred by it on the admini-
strator is to be exercised by him. Accordingly, article 14 is now
invoked in a large number of cases to challenge laws on the ground
that they confer unguided and arbitrary powers on administrative
authorities. Since the trend today is to confer such powers more
and more, there is almost an unlimited scope to invoke article 14.
But, the courts do not accept such challenges to laws lightly; their
tendency generally is to uphold legislation by finding some policy
statement here and there within the statute concerned; if the same
can be discerned from the preamble or the long title of the Act in
question, it would be upheld. Even vague or imprecise policy state-
ments to guide administrative discretion are accepted as adequate
for purposes of article 14 and it is only in a rare case that a statute
would be declared void under this article. The year 1969 has seen
a number of such challenges to the laws, and the way the courts
have handled such cases may be noted here.
Under the Public Money (Recovery of Dues) Act, 1965, the
managing director of the Uttar Pradesh Financial Corporation is
authorized to send a certificate to the collector mentioning the
amount due which is to be recovered as arrears of land revenue.
Under the general law, there also exists the ordinary remedy to
recover debts incurred by the corporation through the civil courts.
It was argued that since the procedure under the Public Money Act
was more drastic than the ordinary procedure, and the authority
was given an unguided and absolute power to pick and choose
between its various debtors for applying this Act, there was discri-
mination under article 14. The authority of Northern India Caterers
(P) Lid. v. State of Punjab30 was invoked in support of the argument.

The Allahabad High Court in T. S. Works v. U. P. Financial Corpn?1
held the provision valid because the remedy under the Public Money
Act could be applied in relation to only those debtors of the corpo-
ration who had expressly entered into an agreement with it to be
subject to that procedure. The election to recover loan as arrears
of land revenue does not therefore depend upon the will or whim
of the corporation but would be availed of only in cases where the
parties had voluntarily agreed to it.32 Referring to a few earlier
Supreme Court cases33, the Allahabad High Court also derived a
proposition in the instant case that the principle applicable to reco-
very of public property would not apply to recovery of public
money and therefore the ratio of the Northern India case which
was a case concerning recovery of public property should not be
extended to recovery of public money. Now, it is difficult to appre-
ciate this part of the Court's argument. If the procedure is discrimi-
natory, it would be bad and it would hardly matter whether it
applies to recovery of public money or property. That was the
principle laid down in the Northern India Caterers case, and there
is nothing in that case to suggest that the coverage of this principle
is not to extend to recovery of public money. None of the other
Supreme Court cases cited by the Allahabad High Court gives
countenance to the theory propounded by the Court. In each,
procedure to recover public money was upheld as it was found not
to be vitiated under article 14.
In several cases, the High Courts have applied the principle of
the Northern India Caterers case straightaway. In Wall Mohd.
30. A . I . R . 1967 S.C. 1581. Here the Supreme Court declared section
5 of the Punjab Premises and Land (Eviction and Rent Recovery) Act, 1959,
discriminatory under article 14. The reason was that two procedures were
available to evict unauthorized persons from public premises—one a drastic
and summary procedure under § 5, and the other under the Civil Procedure
Code which was more elaborate. § 5 laid down no guiding norm as to the
cases in which its drastic procedure was to be invoked, and so the Court held
that an unguided discretion had been given to the concerned administrative
authority to follow the one procedure or the other at its discretion and
that this violated article 14.
31. A . I . R . 1969 All. 419.
32. For this view, the Court depended upon Banarsi Das v. Cane Com-
missioner, A . I . R . 1963 S.C. 1417.
33. Mannalal v. Collector of Jhalawar, A.I.R. 1961 S.C. 828;
Nav Rattan Mai v. Collector of Rajasthan, A.I.R. 1961 S.C. 1704;
Collector of Malabar v. Ebrahim, A.I.R. 1957 S.C. 688; Lachhman Das
v. State of Punjab, A . I . R . 1963 S.C. 222.
v. Administrator Municipality^ the Jammu and Kashmir High

Court declared invalid under article 14 section 5 of the Jammu &
Kashmir Public Premises (Eviction of Unauthorised Occupants)
Act, 1959, as it suffered from the same defects as the provision
declared invalid by the Supreme Court in the N.I. Caterers case.
In Raja Sahib of Nalagarh v. State of Punjab ?* the Delhi High
Court declared section 7 of the Punjab Public Premises Act void
under article 14. According to section 7, the collector could
assess damages against any person who had been in unauthorized
occupation of any public premises on such principles as might be
laid down in the rules. The main ground underlying the invalidity
of section 7 was that it was inextricably inter-connected with section
5 of the Act which the Supreme Court had declared void in the
N.I. Caterers case. Under section 21 of the Uttar Pradesh Indus-
trial Housing Act, 1965 the housing commissioner had authority
to evict a tenant from government housing merely by giving a notice
to that effect. The Allahabad High Court in Ram Gopal v. Asst.
Housing Commr.^ declared the provision discriminatory under
article 14, following the N.L Caterers case, because there were two
ways of evicting an allottee. The housing commissioner could
either adopt the drastic and summary procedure as laid down in
section 21, or could file a civil suit for eviction against the allottee
under the Civil Procedure Code. The Act gave no guidance as to
when the commissioner should follow one or the other procedure
and this contravened article 14. As a contrast against the Delhi
High Court's ruling, there is the Bombay High Court's ruling in
Ramraj Singh Thakur v. State of Maharashtra?1 Under the Bombay
Housing Board Act, 1948, the board was authorized to evict any
tenant in the board's houses under circumstances mentioned in the
Act by giving him a notice and an opportunity of being heard to
the tenant concerned. Two arguments were raised against the
validity of the provision. Firstly, it was said that it made an unrea-
sonable discrimination between the housing board and private citizens
owning property insofar as the latter could evict their tenants by
following the normal procedure. This argument was rejected by
the Court saying that the distinction was based on an intelligible
differentia. Secondly, it was argued that the board had at its dispo-
sal two procedures, a normal procedure under the Civil Procedure
34. A l.R. 1969 J & K 88.
35. A.I.R. 1969 Del. 194.
36. A.I.R. 1969 All. 278.
37. A.I.R. 1969 Bom. 333,
Code and a drastic procedure under the Housing Act, and this
involved discrimination as no guidance had been furnished to the
board as to which of the two procedures it should follow in what
cases. Here was a situation parallel to the one dealt with by the
Allahabad High Court in the Ram Gopal case,38 but the response
of the Bombay High Court was contrary to that of the Allahabad
High Court. The Bombay High Court rejected the argument of dis-
crimination by saying that though technically there would be an
option with the board to adopt either of the two procedures, yet,
in practice, "it is well-nigh impossible that any suit would ever
be filed" by it and "as there is no chance of a suit being filed, there
could be no chance of discrimination between occupants of the Board
and hence the provision cannot be regarded as invalid." It is diffi-
cult to agree with this approach of the Court in view of the NJ.
Caterers case where, practically, the same argument could have been
taken. When the concerned administrative authority has a summary
remedy at its disposal, it would hardly think of taking recourse to
the dilatory and expensive remedy under the Civil Procedure Code.
Nevertheless, in the NJ. Caterers case, section 5 was declared void
under article 14 because, in theory, discrimination was possible. The
view taken by the Allahabad High Court in a similar case is more
sound.
Under section 60(1) of the Motor Vehicles Act, the transport
authority can, on the same grounds, either cancel or suspend the
permit for such period as it thinks fit. Under rule 134A of the
Madras Motor Vehicles Rules, the transport authority was authorized
to delegate to its secretary the power of suspending the licence. Tht
Madras High Court in Batcha Saheb v. R.T.A.™ found this arrange-
ment to be discriminatory. No classification was made as to the
category of offences for which the punishment of suspension or that
of cancellation of permit could be imposed. In the absence of such
a classification, defaulters could be dealt with quite arbitrarily, and
even by chance, in one of the two ways—for either xhe authority may
deal with it itself and cancel the permit, or the secretary may deal
with it and suspend the permit. It is quite possible that certain
more serious categories of default may be dealt with by the secre-
tary under the delegated power by merely suspending the permits,
while some of the less serious defaults are dealt with by the authority
itself by cancellation of permits and this offends article 14.
38. Supra, note, 36.

39. A.I.R. 1969 Mad. 223.
In Balwant Singh v. Director of Inspection, Income-tax,*® it

was contended before the Delhi High Court that the provisions
relating to search and seizure contained in section 132 of the Income-
tax Act, 1961, were violative of articles 14, 19(1)(/) and 19(l)(g).
On this question, there has been some difference of judicial opinion
among the High Courts. In S. Doongar Mai Agency v. K. E.
Johnson,41 the Assam High Court, by a majority, held section 37(2)
of the Indian Income-tax Act, 1922 (the predecessor of the present
section 132) as violative of articles 14, 19(1) (/) and (g). In
Suraj Mull Nagar Mull v. Commissioner of Income-tax,42 the
Calcutta High Court took an opposite view and held the provision
valid. In State of Madras v. R. S. Jhaver,*3 the Supreme Court
has upheld the validity of section 41(2) and (3) of the Madras
General Sales Tax Act relating to search and seizure. In Gopikisan
v. Asst. Collector, Customs** the Supreme Court has held section
105 of the Customs Act, 1962, valid against a challenge to it under
article 14. In C. Venkata Reddy v. I.T.O.,*5 the Mysore High
Court has held that section 132 of the Income-tax Act, 1961, does
not violate articles 14 and 19. In the Balwant Singh case, the
argument raised against the constitutional validity of section 132
was on the same lines as in the Assam case. It was argued that it
had been left to the absolute discretion of the authorities concerned
to either take recourse to section 131 or to section 132 which was
a more drastic provision and no criteria had been laid down regard-
ing the cases when section 132 had to be applied. Rejecting the
argument, the Delhi High Court pointed out that section 131 was
a general power given to the various income-tax officers for enforcing
the attendance of persons or compelling the production of accounts
and other documents. Section 132, on the other hand, is directed
to compel compliance with notices already issued. Section 131
gives power to compel production of persons and books, while
section 132 is intended to give power to search or seize documents
which the persons concerned are likely to withhold. There is, there-
fore, a reasonable and valid classification as to the persons against
whom proceedings under section 132 could be taken. Also, the
power of search and seizure is subject to several safeguards, e.g.,
40. A.I.R. 1969 Del. 91.
41. A.I.R. 1964 Ass, 1.
42 A.I.R. 1961 Cal. 578.
43. A.I.R. 1968 S.C. 59.
44. A.I.R. 1967 S.C. 1298.
45. A.I.R. 1969 Mys. 118.
search can be ordered only when senior officials like the director of
inspection or commissioner have reason to believe that relevant
or useful books or documents would not be produced; provisions of
the Criminal Procedure Code are applicable to search and seizure,
and the officer ordering search has to record reasons. Therefore,
section 132 is not hit by articles 14 and 19.
In State v. Annam,*u the validity of Rice Levy Order issued
under the Essential Commodities Act was sustained because the
scales of levy were classified on the basis taluks and areas culti-
vated by each cultivator, and the order provided for raising of objec-
tions by a cultivator against the amount of levy, enquiry and decision
by a government officer and appeal to higher officers. A taluk had
been taken as a unit to indicate general productivity of land as it
would be extremely difficult to take into account the actual produc-
tion of each piece of land in the state and so some general standard
had to be adopted. The scale of levy could not be characterized
as having no relation to the actual production of a cultivator and
was not arbitrary. The discretion given to the government to exempt
any class of cultivators from the order in 'public interest' 'having
regard to the conditions prevailing in any area' was not an uncon-
trolled discretion and hence was valid.47
The Punjab Entertainments Duty Act, 1955, levying an enter-
tainment tax, made certain acts by proprietor of an entertainment
establishment punishable, e.g., fraudulently evading the payment of
any duty under the Act or doing an act in contravention of the
Act etc. Two alternative procedures were provided for punishing
these acts: one through a trial in a criminal court, and the second
by a fine imposed by a prescribed authority after hearing. In
Grand Cinema v. Entertainment Tax Officer,*9 the Punjab High
Court held that, undoubtedly, trial before a magristrate was more
beneficial to the accused than imposing a penalty by a quasi-judicial
authority as in the former case, evidence had to be judged according
to the rules laid down in the Evidence Act and the trial had to be
according to the provisions of the Critairial Procedni?e Code. The
Act prescribed no criteria as to the ca$es v/h'^h were to be covered
by the one or the other of the procedures The matter was left
entirely to the sweet discretion of the executive authority. As there
46. A.I.R. 1969 Ker. 38.
47. Reference was made to Inder Singh v. State of Rajasthan, A.I.R.
1957 S.C. 510; P. J. Irani v. State of Madras, A.I.R. 1961 S.C. 1731.
48. A.I.R. 1969 Punj. 98.
was no reasonable basis for differentiating between persons similarly

situate in the matter of application of these parallel provisions which
aimed at the same objective, it resulted in discrimination and, there-
fore, the provision authorizing punishment by a quasi-judicial body
was declared to be discriminatory under article 14.
Under section 12A of the Mysore Sales Tax Act, 1957, three
authorities could assess escaped turn-over, viz., commercial tax
officer, the deputy commissioner, the revising authority who was
usually the commissioner of commercial taxes. When the commer-
cial tax officer exercised the power, first appeal from him could go
to the deputy commissioner, the second appeal to the sales tax
appellate tribunal, and then a revision petition could be presented
to the High Court against the tribunal's order. But if the deputy
commissioner exercised the same power, then there could be no
appeal to any one, even to the tribunal, and no revision petition lay
to the High Court. Similar was the case when power was exerised
by the commissioner of commercial taxes. The Mysore High Court
held the scheme to be discriminatory in Lakshmi Bag Mfg. Co. v.
State of Mysore.** The case of one dealer could be picked up by
the commercial tax officer and that of the other by the deputy commi-
ssioner, or the commissioner and, thus, an incongruous situation
is created for while the former has a right to several appeals and
even revision in the High Court, the latter had no such right.
Under fundamental rule 56(a) (promulgated under article 309),
the age of retirement of government servants has been fixed at
fifty-eight years, but under rule 56(j), the appropriate authority has
"if it is of the opinion that it is in the public interest to do so" an
absolute right to retire any government servant after he has attained
the age of fifty-five years by giving him a three months' notice.
Rule 56(j) was challenged under article 14 on the ground that it
gave arbitrary power to the authority concerned because the expres-
sion "in the public interest" used therein had not been defined and
thus there were no well-defined limits within which the power could
be exercised. However, the Delhi High Court rejected the argu-
ment in R. L. Butial v. Union of India.60 The fact that the power
to retire compulsorily can be exercised only if it is in the public
interest to do so was held to be a sufficient safeguard against arbitr-
ary exercise of this power. Public interest is not a new concept
though it is not defined because it is incapable of precise definition.
49. A.I.R. 1969 Mys. 295.

50. A.I.R. 1969 Del. 14.
Nevertheless, it is not a vague concept. What is included in public

purpose may differ from time to time and place to place. In the
context of rule 56 (j), however, it means the proper functioning of
the public service. A similar view was taken by the Orissa High
Court in Somnath Misra v. Union of India.51 A rule providing for
compulsory retirement after thirty years' qualifying service in public
interest under the All India Services (Death-cum-Retirement Benefit)
Rules, 1958, was held to be not discriminatory as the words 'in the
public interest' gave the necessary guide line and the rule did not
confer an arbitrary power.
Another use made of article 14 is to challenge administrative
discrimination. If the statute itself is discriminatory as discussed
above, it may be declared to be void under article 14. But there
may arise a situation where the statute itself may not be bad, its
implementation by the concerned administrative authority may be
discriminatory. In such a case, the charge of violation of equal
protrction may be laid against the administration and its action
quashed under article 14. One oan find a few examples of admin-
istrative discrimination in the case-law of 1969. The government
of Assam through a notification (issued under F.R. 56) raise the age
of compulsory retirement from fifty-five to fifty-eight years provided
they were efficient and physically fit. A procedure was laid down
for testing the efficiency and physical fitness of a government servant
at the age of fifty-five years. Three professors in a government col-
lege were allowed to continue in service beyond the age of fifty-five
years, but the petitioner who was also a professor in the same college
and was found to be medically fit and efficient according
to the procedure laid down was not allowed to remain in service
beyond fifty-five years. In Barm Ram v. Secretary, Government
of Assam*- the Assam High Court quashed the government's action
as hostile and discriminatory because persons similarly placed were
differently treated. If a servant was found to be physically fit and
efficient, he was to be kept in service and no arbitrary discretion
had been given to the government to refuse extension. Had the
notification given an unqualified discretion 'to pick and sack', then it
would have been invalid as violating articles 14 and 16. Although a law
might not be discriminatory, its application might be so and in that
case the application of the law must be struck down. Godrej &
51. A.I.R. 1969 Ori. 37.

52. A.I.R. 1969 Ass. 46.
Boyce Mfg. Co. Ltd. v. Stale53 furnishes another example of admin-

istrative discrimination. The petitioner company, carrying on a
manufacturing occupation in steel furniture, acquired a piece of land
measuring about twenty-two acres in the state of Madras, to accom-
modate its increasing business. Later, the government sought to
acquire fourteen acres of this land to develop an industrial estate
under the Land Acquisition Act. The company challenged this
through a writ petition, and the Madras High Court quashed the
land acquisition on several grounds. Firstly, acquisition of land of
the petitioners, who themselves wanted to expand their business acti-
vities, for allotting the srame to other persons, could not be regarded
as a public purpose. Secondly, there was discrimination because
whereas the government was itself giving out plots of twenty acres
to manufacturers, it regarded the petitioners' land measuring about
twenty-two acres as excessive and wanted them to keep only seven
acres, and no reasons had been given for this. The Court referring
to the Somwanti case54 stated that whereas there the court had held
that refrigeration industry could be given a higher priority over a
paper mill in the context of the circumstances of the Punjab state,
in the instant case the state had fixed no such priorities and it was
simply following the policy of acquiring lands, developing them and
allotting them to various applicants in the industrial estate. In the
absence of any priority in the matter of allotment of factory sites,
it would amount to discrimination if the petitioners' land is taken
away for developing it and allotting it to other industrialists similarly
placed as the petitioners. There was no differentiation between
petitioners' industry and other industries which were sought to be
preferred. No attempt had been made at a reasonable classification
in the matter of allotment of factory sites. On behalf of the state,
an argument was raised that once a declaration was issued under
section 6 of the Land Acquisition Act, there was conclusiveness
attached to the question whether the purpose was a public purpose
or not. The High Court however side-tracked the argument with
the observation that it was very much in doubt to say that the
petitioners' lands were acquired for a public purpose. In effect, on
the facts of the case, the Court was on a very strong ground to
quash administrative action on the ground of discrimination.
53. A . I . R . 1969 Mad. 305.

54. A . I . R . 1963 S.C. 151. In this case, the Supreme Court had
upheld acquisition of land by the state from the petitioners who wanted to
establish a paper mill thereon for purposes of another industrialist who
wanted to establish a refrigeration plant.
ARTICLE 15
Article 15(1) specifically bars the state from discriminating

against a citizen of India on grounds only of religion, race, caste,
sex, place of birth, or any of them. This article has been invoked
in Abodha Kumar v. State,56 where a provision providing for region-
wise selection of candidates for admission to the state medical
colleges was quashed on the ground that discrimination was based
solely on the ground of 'place of birth'.56
The question of identifying the 'educationally and socially back-
ward classes' for purposes of article 15(4) has been a very difficult
one, and yet no acceptable criteria to define the same have been
evolved. In several cases,57 the Supreme Court has declared that
caste alone cannot be the sole determinant of backwardness. The
state of Mysore issued a notification on the 26 July 1963, laying
down that classification of socially and educationally backward classes
should be made on the basis of economic condition and occupation.
Poverty being one of the factors for social backwardness, the gov-
ernment fixed an annual income of Rs. 1,200 per year for a family
as a test of economic backwardness. The other determining factor
for social backwardness was occupation and, therefore, persons fol-
lowing occupations of agriculture, petty business, inferior services,
crafts or other occupations involving manual labour were listed as
contributing to social backwardness. These classes were also taken
to be educationally backward. For the classes fulfilling the tests
laid down, thirty per cent of the seats in professional and technical
colleges were reserved. In Subhas Chandra v. State,** the Mysore
notification figured in the context of a claim by the petitioner for
admission to such a college. No objections could be taken to the
notification as such because it laid down social and economic tests
which were not based on 'caste9 alone. The real point at issue in
the instant case, however, was whether the son of a retired school
teacher, in receipt of a pension and enagaged in agriculture after
retirement, could claim the benefit of the reservation under the above-
mentioned notification. Rejecting the petitioner's claim, the Court
held that the occupations contemplated by the order "are not casual
55. A . I . R . 1969 Ori. 80.

56. It was also held bad under article 14, supra note 16.
57. Balaji v. State of Mysore, A.I.R. 1963 S.C. 649; Chitralekha v.
State of Mysore, A . I . R . 196 S.C. 1823; State of A.P. v. P. Sagar, A.I.R.
1968 S.C. 1379; P. Rajendran v. State of Madras, A . I . R . 1968 S.C. 1012.
58. A.I.R. 1969 Mys. 48.
or temporary occupations, but the habitual occupations of families,"

otherwise a person might claim to be backward in one year and
forward in another year, or one member of the family might be
classed as backward and not the other. The order treats a family
as a unit and, therefore, what "has to be seen is whether a particular
family to which the candidate belongs is socially and educationally
backward. When the family is considered as a unit for purposes of
classification, it is not possible to.envisage a situation where one
member of the family is treated as backward while another is not."
A school teacher is not backward, and his family cannot be regarded
as having become so after his retirement. The Court also found as
a fact that the income of the family was over Rs. 1,200 per year, the
limit fixed by the order in question. It might be of interest to know
that several notifications issued by the Mysore state one after an-
other defining socially and educationally backward classes mainly
on the basis of caste have been invalidated by the courts and thus
Mysore has contributed perhaps the largest amount of case-law under
article 15(4). 59 The notification of 1963, mentioned above, how-
ever, shows that after all a rational attitude is emerging on the ques-
tion of defining backwardness for purposes of article 15(4) inas-
much as economic and social considerations and not the caste are
being taken into account for the purpose. The value of the con-
tribution made by the Supreme Court in this respect cannot be
minimised.
VI. ARTICLE 16
Questions of discrimination in public services have been raised

in several cases under article 16. The foremost case in the area
during the year 1969 is Triloki Nath v. State of Jammu and
Kashmir™ The government of Jammu and Kashmir formulated
the policy of reserving fifty per cent of the vancancies to the civil
services of the state for Muslims of the entire state of Kashmir,
forty per cent of vacancies for the Jammu Hindus and ten per cent
for the Kashmir Hindus. The state justified such a policy under
article 16(4) on the ground that Muslims of the state and the
Jammu Hindus constituted 'backward' classes of the citizens who
were not adequately represented in state services and, therefore,
reservations could be made for them in state services under article
16(4). The Supreme Court did not agree with this approach of
59. Balaji v. State of Mysore, supra note 57; Chitralekha v. State of
Mysore, supra note 57.
60. A.I.R. 1969 S.C. 1.
the state, but emphasized that in determining whether a section

forms a backward class, a test based solely on caste, community,
race, religion, sex, descent, place of residence or birth cannot be
adopted because it would directly infringe article 16(2). The Court
emphasized that the normal rule contemplated by the Constitution
is equality between aspirants to public appointments, but in view of
the backwardness of certain classes, the state could make a provi-
sion for reservation of posts in their favour. But here was an ins-
tance not of reservation in favour of any backward class, but, in
effect, of distribution of the total number of posts on the basis of
community or place of residence. This was contrary to articles 16(1)
and (2) and was hardly permissible under article 16(4). The
Court did not say now, as it had said earlier on several occasions,61
that reservation could not go beyond fifty per cent. Another feature
of the state scheme brought out by the Court was that it was based
neither on law nor any rule nor any executive order or direction.
The Court conceded the point that reservation of posts for backward
classes under article 16(4) need not be made by law and ttoat an
executive instruction may suffice for the purpose, but it refused to
express any opinion in the instant case on the question whether a
provision under article 16(4) was not effective unless it was made
by law or by an executive order formally published.62
In Sham Sunder v. Union of India^3 the Supreme Court reite-
rated the principle, laid down by it in earlier cases,64 that equality
of opportunity in matters of employment under article 16(1) means
equality as between members of the same class of employees and
not equality as between members of separate, independent classes.
For purposes of promotion, all enquiry-cum-reservation clerks in
the Northern Railway form one separate unit. Where there was no
discrimination and ho denial of equal opportunity in the matter erf
promotion, article 16 would not apply even when there were allega-
tions of discrimination between this class and other classes of ser-
vants. This principle has been applied by the High Courts in two
cases reported in 1969. In Madras, while the age of retirement of
government servants in certain departments was fixed at fifty-eight,
in the department of commercial taxes, it was kept at fifty-five. This
61. T. Devadasan v. Union of India, A . I . R . 1964 S.C. 179.
62. Supra note 9.
63. A . I . R . 1969 S.C. 212.
64. Menon v. State of Rajasthan, A.I.R. 1968 S.C. 81; All India
Station Massters Association v. General Manager, Central Rly., A . I . R .
1960 S.C. 384.
was challenged as discriminatory under article 16 as well as 14.

Rejecting the contention, the Madras High Court held in C. S. Deva-
sahayam v. State66 that a government servant is entided to equality
in matters of salary, periodical increments, leave etc. But classifica-
tion can validly be madef if two tests are satisfied: (1) Classification
must be founded on an intelligible differentia and (2) the differentia
in question must have a reasonable relation to the object sought to be
achieved by the rule or statutory provision in question. In those depart-
ments where there was dearth of qualified persons in the servfce, the
age of superannuation had been fixed at fifty-eight years, but in
departments where there was no such dearth, it was fixed at fifty-five.
This is reasonable classification as it is based on an intelligible diff-
entia. This also has a reasonable relation to the object sought to be
achieved, viz., efficient public service which could be achieved only
by retaining persons in service when there was a dearth of qualified
persons.
Hindi teachers in the primary schools run by the Bhilai Steel
Project brought a petition in the Madhya Pradesh High Court com-
plaining that their scales of pay were lower than those of the tea-
chers employed in the English primary schools and this, they argued,
violated articles 14 and 16. The High Court rejected the petition in
B.H.P.S.T. Association v. B.S. Project.66 Even if it be assumed that
the Hindi teachers in primary schools do the same work as the
English teachers, still the difference in scales of pay could not be
held to be offending article 14 or 16 as has been held by the Supreme
Court in Kishori Mohanlal Bakshi v. Union of India61 and State of
Punjab v. Joginder Singh.CH The state can constitute two services
consisting of employees doing the same work but with different
scales of pay and the proposition that equal work must receive equal
pay is untenable. As the qualifications prescribed, methods of re-
cruitment and avenues of promotion for Hindi teachers and English
teachers are different, they form two distinct classes and so there
was no question of predicating equality or inequality of opportunity
as between these two classes in matters of promotion. The Court
found support for this view from A.I. Station Masters9 Association v.
General Manager, Central Railway60
65. A.I.R. 1969 Mad. 118,

66. A.I R 1969 M . P 43
67. A.I R. 1962 S.C. 1139.
68 A.I.R. 1963 S C. 913.
69. ^.Supra note 64.
VII. ARTICLE 19 (I) (a)
There are only two cases, one decided by the Supreme Court
and the other by the Delhi High Court, dealing with the freedom of
speech and expression under article 19 ( l ) ( a ) . The points raised
in both the cases were simple. In Railway Board, New Delhi v. AT.
Singh,™ the following fact-situation was involved. The General
Manager, Northern Railway, by a circular prohibited the holding of
meetings by the railway workers inside the railway premises such as
workshops. Meetings were permitted to be held in open grounds
away from the places of work, with the permission of the railway
authorities concerned, if such open grounds fell within the railway
boundaries. The prohibition to hold meetings within the railway
premises was challenged as unconstitutional. The Supreme Court
rejected the contention and held the prohibition valid. The Court
pointed out that the direction did not deprive the workers of their
freedom under article 19 ( l ) ( a ) or (b). What has been prohibited
is the holding of meetings within the railway premises. The premises
belong to the railways who are owners thereof. They have a right to
enjoy their properties in the same way as any private individual may
do subject only to such restrictions as the law or the usage may place
on them. Unless it is shown that either under the law or because of
some usage, the railway servants have a right to hold their meetings
in the railway premises, no objection can be taken to the direction
given by the General Manager. There is no fundamental right in
any one to hold meetings in government premises. The freedoms
guaranteed by article 19 ( l ) ( a ) and (b) do not include the right
to exercise them in properties belonging to others.
In E. T. Sen v. E. Narayan,71 an attempt was made by the
respondents to make out a case against the validity of the Contempt
of Courts Act, 1952, on the ground that the freedom of the press
overrode the law of contempt of court, which concept was charac-
terized as indefinite and imprecise, for the Act gave no definition of
the expresion 'contempt of court.' The Delhi High Court rejected
the argument and upheld the validity of the Act on the ground that
the expression has a well recognized judicial interpretation. Refer-
ring to articles 19(1) (a), 19(2), 129 and 215, the Court refused
to accept the argument that freedom of speech and expression, and
particularly that of the press, overrides the law of contempt of court.
The Court held that there was nothing unconstitutional in the judicial
70. A.I.R. 1969 S.C. 966.
71. A.I.R. 1969 Del. 201.
determination by the courts of the meaning of the expression "con-

tempt of court." The argument that the expression 'contempt of
court' being undefined by statute is not open to construction by the
High Courts and by the Supreme Court,72 and that the said expres-
sion is too vague and indefinite to be enforceable was rejected. Law
declared by the Supreme Court is binding on all courts in India, and
if the law of contempt of court has been recognized by the Supreme
Court then its constitutionality must be upheld. The Court pointed
out that the legislature has refrained from defining the scope of the
law of contempt with a view to maintain flexibility of law so that it
may reach the wide sweep of the diversity of situations that it has to
meet. Therefore, the court has to mould the law keeping in view
the limitation of reasonable restriction and the dictates of reason as
applicable to the circumstances of the case.
It might be of interest to note that at present the Contempt of
Courts Bill, 1968, is pending in Parliament on which a joint select
committee of Parliament has just reported. It seeks to codify the law
of contempt of court and make it precise and clear. There is a felt
need for such a law for the existing law of contempt of court is quite
imprecise because what constitute contempt of court has to be ascer-
tained from the case-law which is voluminous and not always consis-
tent.
VIII. ARTICLE 19 (1)(/)
There were not many cases in 1969 under article 19 (1)(/).

There is only one High Court case in which the problem under
article 19 (1)(/) has been raised exclusively. In other cases articles
19 (1)(/) and 31 have been invoked together and these cases have
been considered later under the later article. In Syed Habib v.
Kamal Chand,7B the Rajasthan High Court pointed out that a custo-
mary easement of privacy to be valid under article 19 (1)(/) has
to be reasonable as required by article 19(5). Therefore, only a
reasonable claim to privacy can be sustained under the custom. If,
therefore, intrusion of one's privacy is of a substantial nature, or, if
the offending window in the servient house invades the privacy of
72. In the matter of the Editor, Primer, and Publisher, Times of India,
A.I.R. 1953 S.C. 75; Hiralal Dixit v. State of U.P., A.I.R. 1954 S.C. 743;
Saibal Kumar Gupta v. B. K. Sen, A.I.R. 1961 S.C. 633.
73. A.I.R. 1969 Raj. 31.
those portions of the dominant tenement which are ordinarily ex-

cluded from observation, then the window will have to be closed and
fhe easement to privacy sustained.73*
ARTICLE 19 (l)(g)
During the year, there are a few cases reported under article
19 (1) (g). In Krishnamurthi & Co. v. State of Madras,1* the
Madras High Court considered the question of validity of a law which
imposed sales tax with retrospective effect. Referring to several
Supreme Court cases,7* the Court pointed out that a legislature in
India has legislative power to levy a tax prospectivly as well as re-
trospectively, and that a retrospective levy does not become ipso
facto bad. Referring to Krishnamurthy v. State of Orissa7G an-
other case on retrospective levy of sales tax, the High Court held
that a retrospective levy may be bad if it is unreasonable, confiscatory,
or if it operates as a cloak for an oblique legislative purpose remov-
ed from ostensible tax considerations, or so totally oppressive as
might destroy the very source of taxation. In the instant case, the
Court refused to declare the tax law as unreasonable for if it gave
rise to any inequality or practical difficulties, these were only perip-
heral and procedural in nature.77
Section 31 ( l ) ( b ) of the Central Previnces Excise Act, 1915,

enables the licensing authority to cancel licence for reasons given in
the section, but it made no provision for giving a hearing to the
licensee concerned. The Madhya Pradesh High Court declared the
provision to be bad in Sukhlal v. Collector, Satna78 because the
power to cancel a licence was a quasi-judicial power and a licence
could not be cancelled without giving to the licensee an opportunity
of being heard. Under article 19 (l)(g), only reasonable restric-
tions can be imposed on the right to carry on a trade, profession or
73 '\ Cases in which suestions have been raised both under articles
19(1)(/) and 31 are discussed later in section XII, see notes 120, 121, and
129 infra, as well as supra, notes 40, 45.
74. A . I . R . 1969 Mad. 265.
75. Jaora Sugar Mills v. State of Madhya Pradesh, A . I . R . 1966 S.C.
416; 7. K. Jute Milts Co. v. State of Uttar Pradesh, A\J\RL 1961 S.C. 1534;
Chhottabhai v. Union of India, A . I . R . 1962 S.C. 1006.
76. A . I . R . 1964 S.C. 1581.
77. Also see, Jawaharmal v. State of Rajasthan, A . I . R . 1966 S.C.
764.
78. A . I . R . 1969 M . P . 176.
business. Cancellation of a licence to deal in liquor without observ-

ing the principles of natural justice would amount to an unreason-
able restriction and hence would be void. The High Court could
quote a number of the Supreme Court cases in suppof its position.79
An important controversy concerning article 19(1)(g) was
raised in Ram Kishan v. Union of India.80 The petitioner imported
some iron and steel under an import licence issued to him under the
Import (Control) Order. As he did not fulfil the condition on
which he had been allowed to import, the government by an adminis-
trative order sought to place him on the banning list. This was
challenged by the petitioner both under articles 14 and 19 ( l ) ( g ) .
The Calcutta High Court ruled that article 14 was not applicable in
the fact-situation because the ground upon which the petitioner was
sought to be excluded constituted a reasonable basis of classificaion,
namely, that he had defaulted in carrying out the terms of the
licence issued to him by the government, and the petitioner hod
not shown that there was any other trader who had committed a
similar default, but had not been black-listed. A part of the peti-
tioner's business fell within the purview of such statutes as the
Essential Commodities Act and some import business under the Import
(Control) Act, a part of his business was of a non-statutory type.
The Court conceded the point that as regards non-statutory business,
the administrative order black-listing the petitioner raised no problem,
for the government could claim the same freedom, as any private
trader, to choose the parties with whom it would deal and that no
individual had any legal or constitutional right to insist that govern-
ment must enter into contracts with him.81 The government could
make an administrative decision in this connection. But the Court
ruled further that the administrative decision could not affect the
'statutory' sector of his business. His right to get import licence for
iron and steel in future could not be affected by the administrative
order. The Import Order itself lays down the penalties for violation
of a condition of licence. An action can be taken under that statutory
provision. But an action taken administratively, and not under the
Import Control Order, could not debar the petitioner from being
considered for future imports. Another point stressed upon by the
79. Negendra Nath Bora v. Commr. of Hills Division, A.I.R. 1958
S.C. 398; Kjshan Chand v. Commr. of Police, A . I . R . 1961 S.C. 705;
Associated Cement Companies v. P. N. Sharma, A.I.R. 1965 S C. 1595;
Shri Bhagwan v. Ram Chand, A.I.R. 1965 S.C. 1767.
80. A.I.R. 1969 Cal. 18.
81. Achutan v. State of Kerala, A.I.R. 1959 S.C. 490.
High Court was that although the government could decide not to
deal with the petitioner in the non-statutory sector, it could not induce
other independent organs like the statutory corporations, not to deal
with him. Though the government has the right to say that it would
not enter into business transactions with a particular person or per-
sons, it has no such right under the common law to induce another
legal person that he should not enter into business dealings with a
third party.82 A question regarding black-listing was raised in
Punnen Thomas v. Stated and the response of the Kerala High
Court was similar to that of the Calcutta High Court. A contractor
was black-listed by the government who was debarred from taking
any government work for ten years because of his having committed
irregularities in connection with some government contract resulting
in loss to the government. The contractor challenged the order
under article 19 (l)(g) on the ground that he had not been heard
before the order was made. The Kerala High Court rejected his
contention by 2:1. The majority took the view that since the order
had not been communicated to him, and affects none of his rights,
he can claim no right to a government contract. The impugned
order was no more than a direction by the government to the sub-
ordinates not to give any contracts to the petitioner. Citing Achutan
case, the Court pointed out that the government has freedom of con-
tract and is free to deal with whom it pleases. While a person has a
fundamental right to carry on trade or business, he has no such right,
to insist on the government to do business with him. The position
might be different if there were a law regulating the conduct of its
business with the government. Then the government would have to
keep within the terms of the law. As the function in the instant case
was not quasi-judicial, there was no right of hearing in the petitioners.
The dissenting Judge, on the other hand, stressed that the question
whether the petitioner committed irregularities was a question of fact
and. therefore, an exparte adverse adjudication on this question by
the government without notice and hearing, and debarring the peti-
tioner from taking any government work for ten years by way of pun-
ishment, was against all notions of fairness in a democratic country.
Even though it may be regarded as a privilege and not a right to deal
with the government, yet the government is the government and it
cannot act in an arbitrary or discretionary manner while it distributes
its largess or bounty. On strictly legal terms, the decision of the
82. See, supra note 9 on administrative directions and fundamental
rights.
83. A.I.R. 1969 Ker. 81.
majority in this case may be said to be sound. In cases like Achutan

and Ram Jawaya v. State of Punjab,8* the Supreme Court has pro-
pounded the view that article 19 ( l ) ( g ) does not come into picture
in case of contractual relation even when one of the parties is the
government. If, however, the government were to make a law or a
rule defining with whom, and under what circumstances, it will deal
then the validity of such a law or rule may be justiceable under
article 19 ( l ) ( g ) , but not the administrative practice because of the
theory of freedom of contract. But there is a lot of truth in what
the dissenting Judge has said in Punnen Thomas v. State case. Should
not, therefore, the government itself adopt an administrative practice
to give a hearing to a person before he is black-listed. It appears
doubtful in the present state of judicial thinking that such an obliga-
tion will be imposed in the near future on the government by a judi-
cial decision as regards its power to enter into contracts. But
as the government cannot afford to seem to be acting arbitrarily, it
should suo motu accept the obligation to give hearing to the person
concerned.
The Cement Control Order issued under section 18 G of the

Industries (Development and Regulation) Act, 1951, fixes varying
ex-factory prices for cement ranging between Rs. 90.05 to Rs. 129.75
per metric tonne. This was challenged as being violative of article
19(1) (g) (as well as under article 14), but the Rajasthan High
Court upheld the validity of the order in Jaipur Udyog v. Union of
India85 The different retention prices for different cement factories
were sought to be justified by the government of India on the
ground that the system of differential ex-factory prices has been in
operation since 1961; that the Tariff Commission in 1961, after
an examination of individual cases of different producers, recom-
mended different prices to be given to them as the Commission
did not find it possible to arrive at a common price for all the various
units because of the wide disparity in their cost of production. The
Court rejected the petitioner's argument of discrimination as the
differentiation in the ex-factory prices of cement was based on ratio-
nal and logical grounds. The prices fixed for cement were not
arbitrary as all the factors relevant for determining the same have
been taken into consideration. These guiding factors for fixation
84. A l.R. 1955 S.C. 549.

85. A.I.R. 1969 Raj. 281.
of ex-factory prices are contained in the Cement Control Order it-

self and it is open to any cement producer to move the government
for altering the ex-factory prices whenever any occasion arises for
the same regard being had to the faitors mentioned in clause 12 of
the order. The ex-factory prices have not been proved to be below
cost of production. There was thus no discrimination and the
restrictions were thus reasonable. The Court also stated that a
company, not being a citizen of India, could not invoke article 19.
Clause 9 of the order was also questioned before the Court. Under
this clause, if the expenditure incurred by a producer on freight
charges was less than that charged from the dealer (which was uni-
formly fixed at Rs. 25.48 per tonne for all destinations for despat-
ches by all producers), then the producer could not retain the whole
of it but had to pay the excess in a Cement Regulation Aocount.
If the expenditure on this item happened to be more than the uniform
rate prescribed then the producer was to be reimbursed to the
extent of the excess from the fund. This arrangement was challeng-
ed as unreasonable by the producer who had to refund the excess.
The government's justification for the arrangement was that the
charge of Rs. 25.48 was fixed after taking into account the freight
payable in different parts of the country from the producing centres
to the places of consumption. The Court, however, rejected the
petitioner's argument on the ground that the burden fell on the
ultimate buyer and not on the producers of cement who could not,
therefore, make any grievance out of it. An interesting question
considered by the Court was whether the powers of central govern-
ment under the Cement Order could be delegated to the Cement
Corporation of India—a public sector undertaking registered under
the Companies Act. Under section 25 of the Industries Act, the
government could confer its powers on an officer or an authority.
The Court held that the corporation was not an 'authority,' and so
the government could not confer its power on the corporation.
Accordingly, clause 2(b) of the Order was declared to be ultra vires
the Act.
The question of price-fixation had been raised earlier in a

number of cases under article 19(1 )(g), but in no case hitherto
the courts have ever given any relief to the party concerned.86 Till
86. Dwarka Pd v. State of U.P., A l . R . 1954 S.C. 224; Diwan Sugar

Mills \ . Union of India, A . I . R . 1959 S.C. 626; Union of India v. Bhanamal
Gutzanmal, A l.R 1960 S.C. 475.
now, price-fixing has been an area which to a very great extent has
been free of judicial control.87
In two cases, the question of validity of laws dealing with some
aspects of government monoply in certain trades have been considered
with reference to article 19(l)(g). The Punjab legislature passed
a law conferring exclusively on the state government a right to con-
trol, manage and regulate a cattle fair anywhere in the state. In
Amritsar Municipality v. State of Punjab,88 the Supreme Court upheld
the validity of the law. It pointed out that the state had not pro-
hibited all transactions for sale and purchase of cattle. The state
only took upon itself a monopoly of conducting fairs but it did not
thereby seek to monopolise all transactions of sale and purchase in
cattle. A law which vests in the state a monopoly to carry on a
certain trade or business, to the extent that it has direct relation
to the creation of the monopoly, is not open to challenge on this
ground of violation of article 19(l)(g). 8 9 The law to monopolize
cattle fairs is thus protected. The Court also said that a municipal
committee not being a citizen could not seek the protection of
article 19.
The creation of monopoly in its favour by the state of Orissa
in sale and purchase of kendu leaves has given rise a number of
cases, and the question has been before the courts for sometime
now.90 Rasbihari v. State of Orissa91 constitutes another link in this
chain of cases. The state of Orissa acquired a monopoly to pur-
chase and sell kendu leaves used in manufacture of bidis. The
method of sale or disposal of the leaves was left to the state govern-
ment as it thought fit. Instead of inviting tenders and offering the
leaves to every one who might be interested therein, the state gov-
ernment proceeded to offer to certain old contractors the option of
purchasing leaves on the terms mentioned. From the facts it appeard
that the prices at which the leaves had been auctioned in the previ-
ous year were much higher than the prices at which the leaves were
now offered for sale. A lacuna in the scheme, however, was that,
except those to whom the leaves were offered, all others were shut
out from purchasing the same. The Supreme Court declared the
87. The Indian Law Institute Administrative Process under The Essen-
tial Commodities Act 54-59 (1964).
88. A.I.R. 1969 S.C. 1100.
89. Akadasi Padhan v. State of Orissa, A.I R. 1963 S.C. 1047.
90. Ibid. For a comment on the case see 6 3.I.L.I., 578 (1965).
91. A.I.R. 1969 S.C. 1081.
scheme to be bad under article 19(1) (g) because k gave rise to a

monopoly in trade in kendu leaves in favour of certain traders only
and singled out others for discriminatory treatment. It was not in
the public interest. Hie government had sought to create a mono-
poly in favour of third parties from out of its own monopoly. As
the scheme adopted by the state to sell leaves to selected purchasers
was not "integrally and essentially" connected with the creation of
monopoly,92 it could not claim protection under article 19(6)(ii).
The scheme could be valid only if it satisfied the requirements of
reasonableness under article 19(6), but as it could not do so, it
was bad.
X. ARTICLES 20-22
In Government of Manipur v. Thokchom Tomba Singh^ the
Judicial Commissioner's Court at Manipur applied the principle laid
down by the Supreme Court in State of Bombay v. Kathi Kalu
Oghad94 that giving of thumb impressions or specimen hand writing
does not fall within the expression "to be a witness" under article
2 0 ( 3 ) . An accused may be compelled to put his thumb impres-
sions or sign before a magistrate so that the same may be compared
with other thumb impressions or signatures on record.
In re Madhu Limaye,-Kt the Supreme Court granted a writ of

habeas corpus as the arrest of Madhu Limaye was held to have
infringed article 2 2 ( 1 ) . He was arrested on 6 November 1968,
for violating an order made under section 144 of the Code of Criminal
Procedure but was not told the reasons for his arrest or of the
offences for which he had been taken into custody. The Court held
that as there was a breach of article 22(1), he was entitled to be
released. The requirements of article 2 2 ( 1 ) , the Court emphasized,
were meant to afford the earliest opportunity to the arrested person
to remove any mistake, misapprehension or misunderstanding in the
minds of the arresting authority and also to know exactly what the
accusation against him was so that he could exercise his second
right under article 2 2 ( 1 ) , namely, that of consulting a legal practi-
tioner of his choice and to be defended by him.
92. As held by the Supreme Court in the Akadasi case, supra.

93. A.I.R. 1969 Man. 22.
94. A.I.R. 1961 S.C. 1808.
95. A.I.R. 1969 S.C. 1014.
The Preventive Detention Act, 1950, enacted by Parliament,

lapsed on 31 December 1969. This Act contributed a very large
body of cases under articles 22(4) to (7). The relevance of these
cases has not, however, been minimized even though the Central
Act has come to an end, because preventive detention laws have now
been passed by some of the States, such as, Assam, Madhya Pradesh,
Rajasthan, Maharashtra. In four cases in 1969 one decided by
Supreme Court, and three by High Courts, two major problems con-
cerning preventive detention have been discussed. In Abdul Karim
v. State of West Bengal was presented the following feet-situation.
An order of detention was made on 17 February 1968, by the
district magistrate with a view to preventing the detenu from acting
in a manner prejudicial to the maintenance of supplies and services
essential to the community. On the same date, grounds of deten-
tion were served on him. On 21 February 1969, the detenu made
a representation of the state government against the order of deten-
tion. On April 22, the advisory board made a report and the gov-
ernment confirmed his detention on 24 July 1968. The order of
detention was challenged on the ground that the state government
had not considered the detenu's representation but forwarded the
same to the advisory board. The Supreme Court held the objection
fatal to the validity of the preventive detention order. According to
the Court, article 22(5) does not expressly say as to whom the
representation is to be made, and how the detaining authority is to
deal with it. But it is necessarily implicit in the language of article
22(5) that the state government, to whom the representation is to
be made, should properly consider the same as expeditiously as
possible. The formation of an advisory board does not absolve the
state from this legal obligation. The obligation of the detaining aut-
hority to consider the representation was different from the obligation
of the advisory board to consider the same later on at the time of
hearing the reference. All the procedural requirements in article
22 are mandatory in character and if any one of them is not com-
plied with, the order of detention would be rendered illegal.
The question of validity of service of a preventive detention
order on a person already in jail custody in connection with some
criminal charges has figured from time to time in a number of
Supreme Court cases. In Rameshwar v. District Magistrate,97 the
Supreme Court had held that if a person was already in jail custody
96. A.I.R. 1969 S.C. 1028.
97. A.I.R. 1964 S.C. 334.
on some criminal charges, then no order of preventive detention can

be served on him, the reason being that, at the point of time when
an order of detention was being served on a person, it must be patent
that he would act prejudicially if he was not detained and such a
consideration would be absent when the person was already in jail
custody. The detention would be unjustified because the jail custody
would deny to the person concerned, freedom of action which is
essential to permit him to indulge in unlawful activities. What the
court insisted in the case was that not the order as such, but its
service on a person already in detention, was bad. This view was
reiterated by the Supdeme Court in Makhan Singh v. State of Punjab?8
These two cases were further considered by the Supreme Court in
Godavari Shamrao v. State of Maharashtra^ and Gopi Ram v. State
of Rajasthan.100 In the Godavari case, the detenu was arrested under
the Preventive Detention Act. Ihis order of detention was then
cancelled and a fresh order of detention under the Defence of India
Rules was served on him while he was in jail. The Court held that
the principle of the Rameshwar case and the Makhan Singh case would
apply when an order of detention was served on a person who was
in the prison as an under-trial prisoner in connection with some spe-
cific criminal offence and as such the period of custody was indeter-
minate, or where he was in jail as a convicted prisoner and the period
of sentence was still to run for sometime. But that principle would
not apply when a fresh order of detention was made after cancelling
an earlier detention-order, because it would be an empty formality
to release a person from custody after cancelling one detention order
and then arresting him again at the jail gate under a fresh detention
order. In the Gopi Ram case, a detenue was released on 21 January
1965, on cancellation of the detention order because of some defect
therein. Immediately thereafter, he was re-arrested on a criminal
charge, and then a fresh order of detention was also served on him
on 23 January 1965. The Supreme Court held that the service of
the order was not vitiated under the principle evolved in the Rameshwar
case, as it would not apply when a fresh order of detention was
made after cancellation of an earlier order. In the Rameshwar case,
the order of preventive detention had been made against the detenu
after cancellation of the former order, but it was served on him
while he was in jail custody on a criminal charge. The Court stated
that the validity of the order did not depend necessarily upon whether
98. A.I.R. 1964 S.C. 1120.
99. A.I.R. 1964 S.C. 1128.
100. A.I.R. 1967 S.C. 241.
the order was served on him while he was or he was not in jail
custody, but all the surrounding circumstance were to be borne in
mind for deciding whether the order was valid or not.
In the light of the above cases, the Calcutta High Court consi-
dered in Kanai Pal v. State of West Bengal101 the validity of service
of an order of preventive detention under section 3(2) of the Pre-
ventive Detention Act while the detenu was already in jail custody
in connection with a criminal case. The purpose of the order was
to prevent him from acting in a manner prejudicial to the mainten-
ance of public order. The Court held the service of the order valid
because, though the detenu was in jail when the detention order was
served on him, yet there was at that time an order for bail in the
criminal case with the result that he could have furnished bail and
left the jail custody any moment. In Bhupati Goswami v. C. R.
Krishnamurthi,102 the Assam High Court came to a similar conclu-
sion. It also held valid an order of preventive detention served on
a person in jail custody on a criminal charge but with a possibility
of being released on bail. Practically similar has been the approach
of the Delhi High Court in Mohd. Iqbal v. Superintendent, Central
Jail103 The petitioner, a foreigner, was suspected of being an im-
portant executive of a gold smuggling ring. He was arrested but
was ordered to be released on bail. Before, however, he could be
released, an order of detention was served on him under section 3(2)
(g) of the Foreigners Act. Criminal charges were then brought
against him. After sometime, the first detention order was cancelled
and another detention order was served on him under section (1)
(b) of the Preventive Detention Act. The Delhi High Court held
that, in the circumstances of the case, service of the detention order
was valid. The petitioner could secure his release on bail, or be
acquitted of the charge at any time, and in either of the situations,
the detaining authority could not have collected all the materials
against him, apply its mind, and make necessary enquiries with a
view to regulate his continued presence in India. A point to note
in this connection is that the petitioner had been continously in de-
tention for the last four years and yet the detention order was held
valid.
All the above-mentioned cases show that the efficacy of the
doctrine, first propounded by the Supreme Court in the Rameshwar
case, has been very much diluted in course of time.
101. A.I.R. 1969 Cal. 422.
102. A.I.R. 1969 Ass. 14.
103. A.I.R. 1969 Del. 45.
One or two other points which the High Courts have emphasiz-
ed upon in the above cases regarding detention under the Prventive
Detention Act, 1950, may also be noted hede. In the Bhupati Gaswami
case, the Assam High Court held that when a detention order issued
by the district magistrate was confirmed by the state government
after more than three months, detention of the detenu beyond three
months became illegal. Though section 11 of the Preventive Deten-
tion Act did not in terms mention any time-limit, yet the time-limit
of three months was implicit in the entire scheme of the Act and
setting of the provisions read in the light of article 22(4)(a). The
Court also emphasized that the various time limits laid down in the
Preventive Detention Act must be strictly followed and adhered
to as preventive detention was a serious matter. In Mohd. Iqbal
case, the Delhi High Court considered several interesting points
concerning preventive detention of a foreigner. Firstly, the Court
held that section 3(1) (a) of the Preventive Detention Act was dis-
tinct from section 3 ( l ) ( b ) , that both provisions were to be read inde-
pendently and that section 3(l)(b) authorizing the detention of a
foreigner was not controlled in any way by section 3(1)(a), for
while the former applied specifically to the foreigners, the latter
applied both to the Indians as well as the foreigners. Secondly, on
the question of claim of privilege by the detaining authority under
article 22(6) regarding supply of facts in the public interest, the
Court ruled that the privilege extended as much at the time of
supplying further facts or particulars as at the initial stage. The
right of non-disclosure overlies the mandate of article 22(5) as to
supply of particulars. But the authority is to apply its mind regard-
ing its claim of privilege at the time of supplying facts. If original
grounds are vague, and no decision as to claim of privilege at this
time has been taken and recorded, and no further facts are supplied,
bur then after some time the authority records an order that the
facts were omitted in the grounds supplied on account of public
interest, the claim of privilege would be bad as the authority had not
applied its mind to the claim of privilege regarding supply of facts
in the grounds supplied to the detenu and thus did not afford the
earliest opportunity to the detenu to make a representation against
his detention. Thirdly, the Court rejected the argument that section
3 ( l ) ( b ) of the Preventive Detention Act was invalid under article
14 for giving an unlimited power to the executive to pick and choose
any foreigner for being subjected to preventive detention. The
Court held the provision valid as it contained sufficient guiding
principles governing the exercise of power by the executive. Such
a detention was authorized only with a view to regulating the con-

tinued presence in India of a foreigner from India. Grounds have
to be communicated to the detenu who has an opportunity to make
a representation. In the face of these safeguards, section 3(1 )(b)
could not be held to be invalid.
The Preventive Detention Act, 1950, was a very severe law
which conferred vast powers on the executive to put anybody in
preventive detention. But, during the course of the operation of
the law, the courts did succeed in extending some control and judi-
cial review over the administrative action in this area. The courts
recognized the value of personal freedom in a free and democratic
society and thus sought to mitigate the rigours of the law to the
extent they could within the limits of the doctrines and techniques
available to them.
XI. ARTICLES 25-30
In Sant Das v. Babu Ram,104 the Allahabad High Court con-
sidered the question whether section 295A of the Indian Penal Code
was consistent with articles 25 and 26. Articles 25 and 26 are
"subject to public order morality and health." Holding section of
the Indian Penal Code valid and not in conflict with articles 25 and
26, the Court stated that it did not in any way make punishable
anything which was a mere profession, practice or propagation of a
religion. What is made punishable by section 295A is "deliberate
and malicious intntion of outraging the religious feelings erf any
class of citizens of India," which is not the same thing as professing,
practising or propagating one's own religion. If section 295A does
impose any restriction, it is within the four corners of the expression
"subject to public order etc . . ." Ramji Lai Modi v. State of Uttar
Pradesh10* was cited in support of its view by the Court. In the Modi
case, the Supreme Court has held that on the right to freedom of
religion assured by articles 25 and 26, restrictions can be imposed
in the interests of public order, and section 295A is an example of
such a-restriction.
In K. O. Varkey v. State,106 the Kerala High Court considered
the question of the validity, with reference to article 30, of the Kerala
Education Rules, 1959, which laid down that twenty per cent of the
104. A.I.R. 1969 All. 436.
105. A.I.R. 1957 S.C. 620.
106. A.I.R. 1969 Ker. 191.
seats in the aided training schools were to be filled by the managers

of these schools while eighty per cent of the seats therein were to be
filled in by a selection committee consisting of a member of the
state public service commission as chairman, and two government
officials. It was contended by a training college run by Christian
missionaries that the said rules were ultra vires article 30. The
Kerala High Court accepted the contention and declared the rules
to be unconstitutional on the basis of the Supreme Court's decision
in Sidhrajbhai v. State of Gujarat.101 The government of Kerala had
also raised the argument of waiver of the fundamental right by the
minority in question on the ground that it had submitted the rules
in the past without protest. The High Court rejected this argument
as well on the authority of the Supreme Court's pronouncement in
Basheshar Nath v. Commissioner of Income Tax.108 The High Court
pointed out that the right under article 30 belonged to a community
of persons necessarily fluctuating, and it would be difficult to infer
a waiver from the conduct of the members of a fluctuating body.
There was also no proof that the minority community concerned was
aware of these rules being violative of article 30.
f
W. Proost v. State of Bihar109 constitutes an important judicial
pronouncement on article 30 by the Supreme Court. The St. Xavier
College, affiliated to the Patna University, had been established by
the Jesuits of Ranchi. The Bihar legislature passed an Act estab-
lishing a university commission. Appointments, dismissals, removals,
termination of service or reduction in rank of teachers of affiliated
colleges were to be made by the governing body of the college con-
cerned on the recommendation of the commission, subject to the
approval of the university. For appointment of teachers, the com-
mission was to suggest two names for every post and the governing
body of the college was to select one of those. In no case could a
college appoint a person outside the names recommended by the
commission. As the college in question made some appointments
by-passing the commission's recommendations, the university decid-
ed to withdraw its affiliation. The college challenged this under
articles 29 and 30 on the ground that it was a college founded by a
religious minority, and so the minority concerned had a right to ad-
minister the same as stipulated by article 30. The provisions in
question regarding appointment etc. of teachers completely took
107. A.I.R. 1963 S.C. 540.

108. A.I.R. 1959 S.C. 149.
109. A.I.R. 1969 S.C. 465.
away the autonomy of the governing body and virtually vested the
control of the college in the university commission, and thus article
30 was infringed. The government's argument was that article 30
would protect only such institutions as were established to conserve
"language, script or culture" of the minority as envisaged in article
29. The religious minority could establish a college of its choice,
but as the protection of minorities in article 29(1) is only a right
to conserve a distinct language, script or culture of its own, a college
would not qualify for the protection under article 30(1) if it had
not been founded to conserve the same. The Supreme Court reject-
ed the government's contention and upheld the view of the Christian
minority. The Court refused to cut down the width of article 30(1)
by introducing in it considerations on which article 29 (1) was
based. Article 29 is a general provision giving protection to mino-
rities to conserve their language, script or culture, while article 30
constitutes a special right to the minorities to establish educational
institutions of their choice and this choice is not limited only to institu-
tions seeking to conserve language etc. The choice is not taken
away if the minority community having established an educational
institution of its choice also admits members of other communities.
This circumstance is irrelevant for application of article 30(1) since
no such limitation is expressed and none can be implied. The two
articles create two separate rights, although it is possible that they
may meet in a given case. Referring to its earlier pronouncements
in In re Kerala Education Bill, 1957,110 and Sidhrajbhai v. State of
Bombay,111 the Court ruled that these cases also supported the view
now being propounded. The language of article 30(1) is wide and
must receive full meaning. The Court refused to allow attempts to
whittle down the protection to the minorities. The St. Xavier
College therefore got the protection of article 30(1). In this way, the
Supreme Court has made a conscious effort to increase in depth the
constitutional protection guaranteed to the minority-run institutions.
But, there now exists an anomaly in the situation insofar as minority-
run institutions appear to have far greater autonomy and immunity
from governmental regulatory provisions than the institutions run by
the majority community.
The pronouncement of the Patna High Court in S. K. Patro v.
State of Bihar112 is interesting insofar as it denied claim of protection
110. A.I.R. 1958 S.C. 956.
111. Supra note 107.
112. A.I.R. 1969 Pat. 394.
from state interference to a Christian institution. The Christian

Missionary School at Bhagalpur was founded by the Church Missi-
onary Society, London, 1854, and then later it was transferred to
the Bhagalpur Diocese which ran it through the Bhagalpur Diocese
Trust Association. The question was whether the school could
claim protection under article 30. The High Court noted that the
Indian Christians had no hand in the establishment of the institution.
Articles 25 and 26 refer to 'denomination' which term includes a
denomination of not only Indian citizens but of all persons. But,
in articles 29 and 30, the term used is "any section of citizens" and
it does not, therefore, extend to aliens. The term "all minorities"
in article 30 has been used in contradistinction to 'majority', and,
therefore, it would mean the 'minority' of Indian citizens based on
religion or language and only such a minority would have the right
stated in article 30(1). The words 'establish' and 'administer' in
article 30 have to be read conjunctively as has been held by the
Supreme Court in the Aziz Basha case.113 Since the CMS School was
established by the society in London, and not by the Indian Chris-
tians, it was not an educational institution established by a minority
based on religion or languages within the meaning of article 30 and
could not thus claim any right under that constitutional provision.
The Court did, however, clarify the point that the educational ins-
titution like the school in question fell under article 30 and not article
26 because it could not be regarded as a religious or charitable ins-
titution as it was not an institution for propagation of Christianity;
it imparted secular education and it could not invoke article 26 in
its favour. The school was thus denied protection of article 30 on
the ground that it was not established by the Indian Christians but
by a foreign body. Article 30 covers only such educational institu-
tions as are established and administered by an Indian minority
based on religion or language. Though the word 'Indian' is not pre-
fixed to the word 'minorities' in article 30, yet the word 'minority'
can have no significance except as an Indian minority. As the
constitutional provision has now been interpreted by the Patna High
Court, an institution can claim protection only if it is both establish-
ed and administered bv the minority. If it is established by it,
but is run by it, then it may not get protection of article 30 as
happened with the CMS School in the instant case. It is a rational
view to take that an institution established by a foreign body could
not claim protection from state regulation. The underlying purpose
113. A.I.R. 1968 S.C. 662.

of article 30 is to safeguard the interests of the minority of the people

in India and not those of the aliens.
XII. ARTICLES 31, 31A AND 31B
During the year under review, a number of cases are found

reported in which questions under articles 31, 31A and 3 IB have
been raised, of which the Supreme Court has contributed five cases
and this shows the significance which article 31 and article 31A and
3IB still enjoy in the scheme of things in India. The reason is that
the government is at present engaged in a vast enterprise of social
and economic engineering and thus property interests are being
affected in many ways. To protect their interests, the people affect-
ed take recourse to these constitutional provisions and hence case-
law is generated.
In Torsion Products v. Director of Industries,114 the state gov-
ernment resumed land under a term of the contract under which the
land had been allotted by the government to the petitioners. The
petitioners challenged the resumption under article 31(2), but the
Court rejected the challenge on the ground that article 31(2) would
not extend or expand the content of the right derived under a con-
tract beyond the limits of the terms of that contract. The peti-
tioners did not possess any property in the land apart from what had
been granted to them under agreement, and they could not be said
to have been deprived of property if one of the terms of contract
was sought to be enforced by the government.115 Nevertheless, the
Court emphasized, the principles of natural justice ought to have
been observed and the petitioners given a hearing before their land
was resumed.
In State v. Annam,11% a case already noted under article 14,117
the Rice Levy Order was questioned on the ground that the paddy
under the order was to be paid for at the market price subject to
the maximum price specified by the government from time to time
and that this infringed article 31(2). The Court ruled that the
price to be paid for the paddy procured should be a 'just equivalent',
but this need not be 'adequate' price which had been placed beyond
the court's purview. Though, at times, market price may be higher
than the 'controlled' price, yet to maintain food prices at a fair
114. A . I . R . 1969 A . P . 374.
115. Reference was made to Achutan v. State of Kerala, supra note 81.
116. A . I . R . 1969 Ker. 38.
117. Supra note 46,
level, prices had to be controlled. Once prices are controlled, any

violation thereof becomes an offence punishable under the law and,
therefore, a price above the 'controlled' price could not be taken as
a standard for 'just equivalent' for the paddy acquired.
In Lachhman- Dass v. Jalalabad Municipality,11H the Supreme
Court declared section 20B of the Displaced Persons (Compensation
and Rehabilitation) Act, 1954, unconstitutional under article 31(2).
According to section 20B, where any person was entitled to the
restoration of any property by virtue of an order made by the
Custodian-General under section 27 of the Administration of
Evacuee Property Act, 1950, but the central government was of
opinion that it was not expedient or practicable to restore the same
by reason of its being in occupation of a displaced person, or other-
wise, then the central government could either—(1) transfer to
that person,, in lieu of the property to be restored, any other im-
movable property in the compensation pool, being in the opinion of
the government, as nearly as may be, of the same value as the pro-
perty to be restored; or (2) pay to that person cash from the com-
pensation pool in lieu of property to be restored as the central
government might, having regard to the value of the property to
be restored, in the circumstances deem fit. The Court felt that
section 20B lacked public purpose as well as did not fix compensa-
tion for the property in question. As to the public purpose, it had
been left to the discretion of the government whether or not property
should be restored to the person concerned. The government could
thereby serve a purpose other than a public purpose, because the
government could deem it as convenient or practicable not to restore
the property either because of its own convenience or for that of a
lessee or licensee of the property who might not even be a displaced
person. As to compensation, though provision was made for pay-
ment of cash or giving of equivalent property, yet no point of time
was indicated. It was not clear at what point of time the value of
the property to be restored was to be ascertained. It was not
required that cash should be equivalent to the property in question.
The government might, having regard to the value of the property
to be restored, decide that only fifty per cent of its value should be
paid. Section 12 of the Displaced Persons (Compensation and
Rehabilitation) Act, 1954, provides for acquisition of evacuee pro-
perty without payment of compensation. The Andhra Pradesh High
118. A.I.R, 1969 S.C. 1126.

Court has held in Mohd. Fiazuddin v. Custodian, Evacuee Pro*

perty11* that had the Act not been covered by article 31(5) (b) (iii),
it would have been bad under article 31(2). The language of
article 31(5) (b) (Hi) is very wide and it refers to a law with respect
to the property declared to be evacuee property. The Act in ques-
tion is a law with respect to evacuee property. The presence of the
word 'otherwise' in article 31(5) (b) (Hi) indicates that it is not
confined merely to laws made in pursuance of an agreement entered
into between India and Pakistan, but it covers even such laws as are
made otherwise than in accordance with such agreement. The
Court also refused to accept the argument that the provision was bad
under article 19 (1) (/). It referred to several Supreme Court
cases,120 in which the Court had taken the view that article 19(1) (/)
would not apply to a law of acquisition of property failing under
article 31(2).
In Muthyala Reddy v. State of Mysore,121 the question of the
constitutional validity of the City of Bangalore Improvement Act,
1945, was considered by the Mysore High Court. It was argued
that the Act was bad because it made discrimination in matters of
land acquisition when compared with the Land Acquisition Act, for
a person whose land was acquired under the latter Act was in a
more advantageous position than the one whose land was acquired
under the former Act insofar as the procedure concerning hearing
of objections was concerned. The Court rejected the contention
against the Banaglore Act on three main grounds. Firstly, a law of
acquistion has to fulfil the conditions laid down in article 31, and
the fundamental right under article 19(1) (/) has no relevance if
the proposed acquisition does not infringe article 31. Therefore, a
person whose land is being acquired has no right to any particular
procedure. Secondly, the decision whether an acquisition is for a
public purpose or not within the meaning of article 31(2) is ad-
ministrative and not quasi-judicial in nature, and so there need be
no hearing on this specific question. For this proposition, the Court
invoked the authority of Jayanti.Lal Amrit Lai v. F. N. Ram.122
Thirdly, the differentiation of procedure between the Bangalore Act
119. A.I.R. 1969 A.P. 158.

120. State of Bombay v. Bhanji Munji, A.I.R 1955 S.C. 41; Lilavati
v. State of Bombay, A.I.R. 1957 S.C. 521; Barkya Thakur v. State of
Bombay, A.I.R. 1960 S.C. 1203.
121. A.I.R. 1969 Mys. 1.
122. A.I.R. 1964 S.C. 64*.
and the Land Acquisition Act creates no discrimination as the pur-

pose of the former is to acquire land only for an improvement
scheme, while under the latter, land could be acquired for any public
purpose. Thus, a person whose land was acquired under one Act
does not occupy a position similar to that of a person whose land
was acquired under the other Act. The Bangalore Act has been
enacted under entry 5, list II, while the Land Acquisition Act falls
under entry 42, list III.
In G. S. Chooramani v. State of Uttar Pradesh116 the Allahabad
High Court was called upon to consider the constitutional validity
of the U.P. Government Estates Thekedari Abolition Act, 1958,
and of the notification in question issued under section 3 of the Act.
Certain plots of land had been leased to the petitioner for a period
of thirty years in the Tarai and Bhabar area of the state. The peti-
tioner cleared the forest to make the land cultivable, but the gov-
ernment sought to determine the lease within a period of sixteen
years under the Act and the notification in question. The Court
quashed the notification on the following grounds: (1) the lease in
government land could not be determined under the Act in question
unless at the same time the cultivators were given the benefit of the
Zamindari Abolition Act, 1958, and they were to become bhumidars
or sirdars. The Court came to this conclusion by following not a
literal interpretation of the Act but by taking into consideration the
aim, scope and the object of the whole Act, and thus arriving at its
real meaning; (2) the Act violated the second proviso to article 31A
which gives protection to persons against acquisition of their land
within the ceiling limit. To those persons who personally cultivate
land within the ceiling limit, a safeguard is provided that their land
would not be acquired without payment of compensation at the
market rate. As the Act in question extinguished the leases granted
by the state government in respect of government estates, the bene-
ficiary of the determination of the lease was the state and this
amounted to acquisition within the meaning of article 31 A, and land
within the ceiling could not be acquired without payment of the
market price. In this way, the case brings out the true scope of the
second proviso to article 31 A.
In B. Shankara Rao v. State of Mysore,124 the Mysore (Per-
sonal and Miscellaneous) Inams Abolition Act, 1955, was challenged
on the ground of inadequate compensation for acquisition of rights
123. A.I.R. 1969 All. 43.
124. A.I.R. 1969 S.C. 453.
of inamdars in inam estate in Mysore. The main argument advanc-

ed was that the Namasivaya127* and Vajravelu120 cases supported the
proposition that a law providing for inadequate compensation would
be bad under article 31(2). The Supreme Court, however, held that
article 31A protected the Act from attack on the ground of its con-
travening article 31(2), as it had been enacted as a part of agrarian
reform in the state, and so the Namasivaya and Vajravelu cases
were not applicable to it.
The appellants raised grass on their land. Under section 65 of
the Bombay Tenancy and Agricultural Lands Act, 1948, as amended
in 1956, the state government served notices on the appellants that
since the land was lying uncultivated, and full and efficient use of
the land was not being made by them, they were to show cause as
to why the management of their land should not be taken over by
the government. The appellants pointed out that they were culti-
vating the land and growing grass on it. Not accepting their plea,
the deputy collector took the management of the land for purposes
of growing food crops. The appellants challenged this order. The
Supreme Court held in Raman Lai Gulab Chand v. State of
Gujarat,1'21 that though the Act in question, as it stood in 1948, was
included in the ninth schedule, yet its amendment made in 1956
could not be held to be immunized from challenge under the funda-
mental rights. If the amendment were regarded as unassailable,
then that would have the effect of amending the original schedule
IX by including something therein which was not there earlier.
This no state legislature was competent to do. Coming to article
31A (I)(a) and (b), the Court considered the question whether
taking over of lands for management on the ground that full and
efficient use had not been made of the land fell within article 31A
( l ) ( a ) or (b). Taking first article 31A (I)(a) such taking over
was held to be not 'acquisition'. In 'acquisition' taking away must
be by the state for the state, 'acquisition' must transfer the owner-
ship of the property to the state or to a corporation owned or con-
trolled by it. In the instant case, there was no acquisition in this
sense. There is also no 'extinguishment' of the rights of the holders
of the land. Their rights are merely suspended but they continue to
be the owner. 'Extinguishment' involves complete termination of
125. State of Madras v. D. Namasivaya Mudaliar, A.I.R. 1965 S.C.

190.
126. Vajravelu v. Special Deputy Collector, A.I.R. 1965 S.C. 1017.
127. A.I.R. 1969 S.C. 168.
the rights. The scheme of the Act contemplates return of the land
unless sold to others and in those cases in which a sale is not effected
it cannot be said that there is an 'extinguishment' of the rights. As
regards the term 'modification' in article 31(1) (a), it has been in-
terpreted by the Court restrictively. In Raghubir v. Court of
Wards,1 Js the word 'modification' in the context of the article was
held to mean something like an 'extinguishment' of the proprietary
right and not to include within its ambit "a mere suspension of the
right of management of estate for a time, definite or indefinite."
Thus, mere suspension of the right of management of one's property
without modification of the proprietary right was not held sufficient
to give protection of article 31A ( l ) ( a ) . 'Management' has been
specifically provided for in article 31 (l)(b) in which the words
used are "the taking over of the management of any property." Any
property means property of any kind. The 'management' has to be
taken over by the state. Then, this taking over must be either in
the public interest or in order to secure the proper management of
the property. Lastly, the taking over must be for a limited period.
The instant case, the Court held, was covered by this clause and
not by clause 31A ( l ) ( a ) . But article 31A (l)(b) can apply only
when management is taken over for a limited period. A time limit
was necessary to distinguish between cases falling within 'manage-
ment' from those of 'extinguishment'. Without a limit of time, taking
over of the 'management' would be an excuse fpr deprivation of
property without compensation and that is not the intention of
article 31. The protection of article 31A (l)(b) is available only
when there is a definite limit in the law for the period of manage-
ment. Since in the instant case, the taking over of 'management'
was not for a definite period, the provision in question was not pro-
tected. Accordingly, the provision in question can be examined for
reasonableness under article 19 (1)(/) and when so viewed, the
provision is not reasonable for deprivation of property is made to
depend on the subjective determination of an officer; the provision
does not clarify the circumstances when cultivation can be said to
be inefficient, or what would be considered efficient cultivation and
what inquiries are needed to determine this. In these circumstances,
the order of the deputy collector taking over the management of the
land of the appellants was quashed by the Court.
The most significant judicial pronouncement of the year how-
ever is State of Gujarat v. Shantilal,129 in which the Supreme Court
128. A.I.R. 1953 S.C. 373.
129. A.I.R. 1969 S.C. 634.
reconsidered the question of compensation payable for property ac-

quired by the state, and re-stated the proposition regarding the
justiciability of compensation. The Court now took a position which
was somewhat different from what it had taken by the year 1967.
Since the inception of the Indian Constitution, one of the most
debatable, and even critical, problem has been that of payment of
compensation for property acquired by the government for a public
purpose. It might perhaps be true to say that since 1950, no single
subject has given rise to so much litigation between the government
and the citizen as the question of adequate compensation payable for
property acquired by the govrnment, so much so that it has led to
three constitutional amendments, one in 1951, the other in 1955,
and the last in 1964. The basic questions raised in this regard have
been, firstly, whether the compensation payable for the property ac-
quired should be adequate, i.e. should be a 'just equivalent' of the
property acquired or can it be less than that; and, secondly, whether
courts can adjudicate upon the question of adequacy of compensa-
tion. For some time after the constitutional amendment in 1955,
it was thought that the courts had been effectively ousted from the
area and that the question of compensation had been made non-
justiciable. But during the period of 1965-67, the Supreme Court
succeeded, to some extent in breaking through the shackles imposed
on it by the Fourth Constitutional Amendment. It would assert by
then that the government could not escape by providing for shadowy
compensation for property acquired merely to fulfil the letter of the
law. In the Namasivaya case,130 a case under article 31(2) as it
stood before its amendment in 1955, the Court struck down the
Madras Lignite (Asquisition of Land) Act, 1953, on the ground that
although it was a permanent piece of legislation, and lands under it
might be acquired many years after the Act had been passed, yet it
froze land values as on 28 April 1947, and the owners were denied
all increments in land value between 1947 and the date of acquiring
land under the Act. As this denied the landowner the equivalent of
the land expropriated, the Act was declared void. In the Vajravelu
case which arose under article 31(2) as amended in 1955, the Court
stated that a legislation providing for acquisition of property should
provide for a 'just compensation' or 'just equivalent' of what the
owner was being deprived. The principles prescribing the 'just
equivalent' could not be questioned on the ground of 'inadequacy',
but if the principles laid down were not relevant to the value of the
130. A.I.R. 1965 S.C. 190.

property acquired at the time of acquisition, the courts could inter-

vene and scrutinize the validity of the principles. Applying this pro-
position in the Union of India v. The Metal Corporation of India1Z1
the Supreme Court declared the Metal Corporation of India (Acqui-
sition of Undertaking) Act, 1965, to be invalid. The Act was en-
acted by Parliament to acquire the Metal Corporation. In clause B
of para 2 of the schedule to the Act, two principles of valuation were
laid down. The plant, machinery and other equipment which had
not been used and was in good condition was to be valued at the
actual cost of acquisition to the company. The used equipment was
to be valued at the written down value determined in accordance
with the provisions of the Income-tax Act. The Court did not agree
that the basis of cost-price of the unused machinery when it was
acquired was relevant to the fixing of compensation at the time of
the nationalization of the company; nor did the doctrine of written
down value accepted in the Income-tax Act afford guidance for as-
certaining compensation for the used machinery. Both the principles
were held not relevant to the fixing of compensation for machinery
at the time the government was acquiring the same and so the Act
was held bad under article 31(2) as not providing for compensation
within its meaning. The Court enunciated the proposition regarding
compensation thus:
The law to justify has to provide for the payment of a 'just equivalent,
to the land acquired or lay down principles which will lead to that
result. If the principles laid down are relevant to the fixation of
compesation and are not arbirtary* the adequacy of the resultant
product cannot be questioned in a court of law. The validity of
principls, judged bv the above tests, falls within the judicial scruinty,
and if they stand the tests, the adequacy of the product falls outside
its jurisdiction.]3-
The position whk:h the Supreme Court had thus taken by the
end of 1967 was a notable development in the constitutional juris-
prudence of the country. 132 The Shantilal case constitutes a volte
face on the part of the Court on the question of compensation. In this
case was challenged the constitutional validity of the Bombay Town
131. A . I . R . 1967 S.C. 637. Interestingly, the decision was given by
a bench of two Judges and not the Constitution bench of five Judges. The
view tanen was that the appeal involved merely the appliration of the cons-
truction already put upon article 31 by the Court and it was not necessary to
post the appeal before a larger bench. It means that the principles of
interpretation of article 31(2) were regarded as well-established.
132. For a full discussion of the subject see, M. P . Jain, "Property
Relations in Independent India; Constitutional and Legal Implications, Trends
and Prospects," 3 Banaras Law Journal 28-80 (1967).
Planning Act, 1955. The facts of the case were that under a town
planning scheme, a piece of land measuring 18,219 sq. yds., was
divided into two plots, one measuring 15,403 sq. yds. was left with
the owner, and the other plot measuring 2,816 sq. yds. was taken
over by the local authority for construction of quarters for municipal
employees and a sum of Rs. 25,411 was awarded as compensation for
this plot. According to the scheme of the Act, the owner of a plot
in the town planning scheme and the person who lost his property
had to be compensated on the basis of market value of the land
expropriated as on the date of the declaration of the intention to
make the scheme, and not on the date the land was actually taken
over. In the instant case, the intention to take over the land in
question was declared in 1927 but the land was actually taken over
in 1957, after a gap of thirty years, but the compensation had been
assessed with reference to the market value of the land as in 1927.1ZZ
On the principles enunciated in the cases above-mentioned, this
would be no compensation under article 31(2), as the Supreme Court
had emphasized payment of 'just equivalent' of the land acquired as
on, or as near about as possible, the date of acquisition. Here was
a case where compensation was being assessed on the basis of the
market price thirty years back and this could not have passed muster
under the Vajravelu and Metal Corporation rulings. The High Court of
Bombay actually declared the Act bad as it provided for compensa-
tion which was not a just equivalent in terms of money of the pro-
perty expropriated and so could not be upheld under article 31(2).
The state came in appeal before the Supreme Court.
The Supreme Court, in the first place, refused to accept the
argument advanced on behalf of the state that the Act in question
had been enacted with the object of promoting public health, that it
dealt with health and public sanitation and so it was covered by
article 310(b))(ii). Had this argument been accepted, the Act
would have become unchallengeable under article 31(2), as any
legislation falling under article 3l(5)(b)(ii) is exempt from the
operation of article 31(2). On this point, the Court referred to its
earlier decision, Deputy Commissioner and Collector v. Durga Nath
Sharma1M in which it had ruled that the Assam Acquisition of Land
for Flood Control and Prevention of Erosion Act, 1965, did not
133. The proceedings for the town planning scheme in the instant case
were started under the Bombay Town Planning Act, 1915, and were then con-
tinued under the Bombay Town Planning Act, 1955, which repealed the
earlier Act.
134. A . I . R . 1968 S.C. 394.
fall under article 31(5) (b)(ii). The Court had there stated that
this constitutional provision was a sort of exception to article 31(2)
and so must be strictly construed. A law authorizing the abatement
of a public nuisance by 'destroying' or 'taking temporary possession'
of private property, if the peril 'cannot be abated in some other
way,' can be regarded as one for promotion of public health or pre-
vention of danger to life or property within the purview of article
3\ (5) (b) (ii), but not a law for 'permanent acquisition' of property
and as such it could not be regarded as a law falling under article
31 (5)(b)(ii). The object of acquisition may be the opening of a
public park for the improvement of public health or the erection of
an embankment to prevent danger to life or property from flood.
Whatever the object of the acquisition may be, the acquired pro-
perty belongs to the state, and the validity of the law has to be ad-
judged with reference to article 31(2). Article 3l(5)(b)(ii) has
thus been equated to the concept of 'police power' in the United Sta-
tes.135 To take any other view would have been to give a licence to
the state to acquire any property without compensation in the name
of improving public health. Most of the schemes today, like ur-
banization, clearance of slums etc., can be supported under that
rubric.
But, in the second place, the Supreme Court ruled that the Act
in question did not infringe article 31(2) as it specified the 'princi-
ples' on which the compensation was to be determined. The main
argument against the scheme of compensation devised by the Act in
question was whether the adjustment of the market value of the
property acquired as on the date of declaration of the intention of
making the town planning scheme against the market value of the
land which formed the reconstituted plot left with the owner could
be regarded as a principle for determining compensation. The Court
ruled that:
a rule determining payment of or adjustment of price of land of
which the owner was deprived by the scheme estimated on the market
value on the date of declaration of the intention to make a scheme
amounted to specification of a principle of compensation within the
meaning of article 31(2).
It was urged before the Court that in the instant case, while the
declaration of intention to make a scheme was made in 1927, the
final scheme was made in 1957, and a provision to pay market value
prevailing in 1927 was not a provision for compensation. In support
135. Chicago, Barlingto & R'd v. Chicago, 166 U.S. 226, 255; Darling-
ton v. Newport News, 249 U S. 540.
of this contention reference was made to the Supreme Court's cases

mentioned above. But the Court now thought it proper to rule that
"adequacy of compensation fixed by the Legislature or awarded ac-
cording to the principles specified by the Legislature for determina-
tion is not justiciable." If, however, what is fixed as 'compensation'
is 'illusory' or can in no sense be regarded as 'compensation',
then it cannot be upheld as compensation, for to do so would be to
grant a charter of arbitrariness and permit a device to defeat the
constitutional guarantee. In the words of the Court itself, its ap-
proach was laid down as follows:
Principles may be challenged on the ground that they are irrelevant
to the determination of compensation, but not on the plea that what
is awarded as a result of the application of those principles is not just
or fair compensation. A challenge to a statute that the principles
specified by it do not award a just equivalent will be in clear violation
of the constitutional declaration that inadequacy of compensation
provided is not justiciable.136
'Compensation', according to the Court, was what the legislature
"justly regards as proper and fair recompense for compulsory expro-
priation of property." The Court pointed out that it was a wrong
view to take of article 31(2) that attack on the principles specified for
determining compensation was excluded only when it was based on
a plea of 'inadequacy' of compensation. This would be giving a
restricted meaning of article 31(2). The Court ruled that:
It was intended clearly to erclude from the jurisdiction of he Court
an enquiry that what is fixed or determined by the application of the
principles specified as compensation does not award to the owner a
just equivalent of what he is deprived.
In the Court's view, article 31(2) was clear in purport:
If what is fixed or is determined by the application of specified
principles is compensation for compulsory acquisition of property,
the Courts cannot be invited to determine whether it is a just equi-
valent of the value of the property expropriated.
The observations of the Court in the Vajravelu case on justiciability
of compensation were treated "as not necessary for deciding that
case, and cannot be regarded as a binding decision." The Court
now expressly dissented from that part of the ruling in the Metal
Corporation case where certain principles laid down in the Act in
question had been declared to be irrelevant to the fixation of the
value of machinery as on the date of acquisition. The Court now
held that the Parliament had specified the principles for determining
compensation of the undertaking of the company. The principles
136. A.I.R. 1969 S.C. 634, 650.
were not irrelevant to the determination of compensation and the

compensation was not illusory. Similarly, the Court now held that
the principles laid down in the Bombay Town Planning Act for
determining compensation could not be said to be irrelevant, nor
could the compensation determined be regarded as illusory. It was
not liable to be challenged as it was a principle relating to compen-
sation :
If what is specified is a principle for determination of compensation,
the challenge to that principle on the ground that a just equivalent
of what the owner is deprived of is not provided, is excluded by the
plain words of article 31(2). 13T
On the question of inter-relation between articles 19(1) (/)

and 31(2), the Court reiterated the already well-settled position
that a law under article 31(2) was not liable to be challenged under
article 19(1)(/) on the ground that it imposed unreasonable restric-
tions upon the right to hold or dispose of property. Therefore, a
challenge to the scheme of compensation in the Bombay Town
Planning Act under article 19(1) (/) on the ground that it was un-
reasonable to pay to the owner of acquired property market value
at a date which was many years prior to the date on which the title
of the owner was extinguished was rejected by the Court.
Mr. Chief Justice Hidayatullah who was a party to the Vajravelu
case, and who now agreed with the judgment of the Court delivered
by Mr. Justice Shah in a brief note explained his position. He said
that the Vajravelu case was heard along with the Jeejeebhoylss case
which was a pre-Constitution case. The judgments in these two
cases were delivered on the same day, and the reasoning in the two
cases was not kept separate:
Because of the close proximity of the decisions, it escaped me that
the discussion was in the wrong case and the other merely followed
it. My brother Shah has now made the two cases to fall in their
proper places.130
It would be worthwhile to note the distinction between the

Metal Corporation case and the Shantilal case. In the former, the
Court had insisted on 'just equialvent' of the property acquired at
the date of acquisition and if the principles were relevant for the
purpose then the Court would not go into the question of 'adequacy'
137. A . I . R . 1969 S.C. 634, 653.
138. N. B. Jeejeebhoy v. Asstt. Collector, Thana, A.I.R. 1965
S.C. 1096.
139. Supra note 129 at 637.
of the same. In the latter case, the Court discarded the concept of
'just equivalent' and adopted the concept of 'compensation' and
declared that if the principles in a law were irrelevant for the pur-
pose of determining compensation' then the Court could hold them
bad. Whether the compensation was 'just' or 'fair' was not the con-
cern of the Court. 'Compensation' was what the legislature justly
regarded as fair recompense for the property expropriated. Only if
the 'compensation' was 'illusory' or 'no compensation' at all then it
would be a faud on the Constitution and hence unconstitutional.
On the whole, the Shantilal case sought to go to the plain words of
article 31(2), sought to wipe out the effect of the Court's pronounce-
ments during 1965-67, and sought to restore to the legislature much
greater freedom to order compensation in the way it wanted than
would have been the case under the holding of the Metal Corporation
case. The question is that, after having reached the position as laid
down in the Metal Corporation case, was it necessary for the Court
to change its stand on this question within two years. The Court
did not set any standard to measure 'compensation' in the Shantilal
case. It, therefore, stands to reason as to how then could it decide
that compensation in a given case was 'illusory' or 'no compensation'
at all. There could be no worse case of executive red-tapism than
the Shantial case itself, but even then the Court did not go into the
question whether in the instant case 'compensation' being given to the
person concerned was 'illusory' or not. In this way, the Court not
only sanctioned freedom to the legislature to determine compensation
in the way it wanted, but also conceded freedom to the executive to
go slow and take much time as it liked to finalise acquisition. One
wonders if payment of compensation for land at the rate prevailing
thirty years back would not be illusory in these days of spiralling
prices. Even if the satutory formula was not regarded as bad, in
the instant case the net result was not at all satisfactory. The Court
could have made a reservation that the statutory formula would be
valid only if the gap between the actual takeover and expression of
intention to take-over land was not separated by a long span of time.
Looking at the facts of the Shantilal case, it appears that the position
taken by the Court in the Vajravelu case and the Metal Corporation
case was much more satisfactory as it would have placed some res-
traints not only on the legislature but on the executive as well.
On the question of relation between articles 19(1)(/) and
31(2), the Court adopted the position it had been taking for long.140
140. Supra notes 119, 120 and 121. Also, Sitabati Devi v. State of
West Bengal, [1967] S . C R . 949.
At this stage, it may not be out of place to quote what the author of
this survey has said at another place in this regard:
The authority of the Kochuni case has not been held to be applicable
to or to have shaken the authority of the Bhanji Munji which still
remains operative in the area of acquisition and requisitioning of
property. The result of this view has been that while the view
developed in the Bhanji Munji case continues to apply to a law dealing
with 'acquisitioning and requisitioning' of property, it does not now
apply to a law dealing with any other kind of 'deprivation' of property
and, therefore, while article 19(1) (/) would apply to the latter, it
would not apply to the former. This means that while the reasonable-
ness of administrative procedure laid down in an 'acquisition' law
cannot be tested with reference to article 19(1)(/) and 19(5),
that of a law dealing with any other kind of 'deprivation* is susscep-
tible to that scrutiny. The result this approach is that an
acquisition law has only to fulfil the requirements of article 31(2),
and there are no norms of administrative procedure whiih this
legislation may be requiied to fulfil...As things are to-day, 'depri-
vation* is better protected than 'acquisition' as both article 19(1) (/)
and 31(1) apply to the former, while only article 31(2) applies to
the latter. Concepts of 'public purpose' and 'compensation' are
common to both, 141 while administrative procedures involved in
'deprivation' can, but in 'acquisition' cannot, be judicially scrutinised
under article 1(91)(/). This dichotomy is the result of an historical
anomaly rather than of logic. After the Kochuni case, there appears
to be no basis left for not applying articles 19(1)(/) as well as
article 31(2) to acquisition l a w . . . 1 4 2
As an epilogue, however, it might be worthwhile to mention

here that the Supreme Court's ruling in the Shantilal case itself has
not proved abiding and recently in the Bank Nationalization case,143
the Court has again changed its position (10:1) on the
question of justiciability of adequacy of compensation, as well as on
the application of article 19(1) (/) to an acquisition-law falling under
article 31(2). The majority opinion in this case has also been
delivered by Mr. Justice Shah who had delivered the Court's opinion
in the Shantilal case. But it is not within the scope of this survey
to take note of any case falling in the year 1970.
141. Kochuni v. State of Madras, A . I . R . 1960 S.C. 1080, wh^e a

law was held bad because it deprived persons of their property rights without
any compensation and without any public purpose being involved therein.
142. M. P . Jain, "Administrative Procedure in Land Acquisition," in
The Indian Law Instiute, Law and Urbanization in India 173, 178 (1968).
143. Judgment delivered on 10 Feb. 1970.
XIII. RIGHT TO CONSTITUTIONAL REMEDIES
Lastly, one more case needs to be noted to complete this survey,

viz., Maganbhai v. Union of India.iu Writ petitions were filed in
the Supreme Court under articles 32 to restrain the government of
India from ceding without the approval of Parliament any areas in
the Rann of Kutch under the Indo-Pakistan Western Boundary Case
Tribunal Award. In the instant case, the question arose regarding
the standing of the parties to maintain these petitions. Some of the
petitioners were found to have no real or apparent stake in the areas
proposed to be transferred to Pakistan under the Award. None of
these persons had made any move to assert any of his fundamental
rights of movement or residence in these areas and, consequently,
none of these rights apprehended that they would be deprived of
in future. The Court characterized this as "to tenuous
a right to be noticed" by it "in administering the law and still less in
enforcing fundamental rights." One of the petitioners (Madhu
Limaye) put forward the plea that he had attempted to penetrate
these areas but was turned back. The Court characterized his con-
nection with the areas in question as "temporary and almost epheme-
ral," but it heard the petitions and rejected them on merits with the
warning that it should not be taken:
as establishin a precent for this Court which declines
to issue a writ of mandamus except at the instance of a party whose
fundamenal rights are directly and substantially invaded or are in
145
imminent danger of being so invaded
144. A . I . R . 1969 S.C. 783.

145. Id. at 791.

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C O N S T I T U T I O N A L LAW

As USUAL, the provisions concerning fundamental rights in the Indian

Another notable development of the year, from the point of

"Porfessor of Law, Banaras Hindu University, Varanasi.

II. FUNDAMENTAL RIGHTS AND LEGISLATIVE PRIVILEGES

In C. Subramniam v. Speaker, Legislative Assembly,1 the Madras

In Electricity Board Rajasthan v. Mohanlal,4 the Supreme Court

1. A.I.R. 1969 Mad. 10.

carrying on commercial activities. This staple pronouncement has

5. A.I.R. 1969 Cal. 95.

for purposes of fundamental rights, and yet may not be a 'state'

them before the courts for scrutiny. Article 15 prohibits discrimina-

based on a reasonable classification. The state of Mysore levied

22. A . I . R . 1969 Mys. 23.

of looking at the problems is this. The scheme of the Act, justified

on land without taking into account the quality or productivity of

Under the Punjab Passengers and Goods Taxation Act, 1952,

28. N.M.C.S. & Mills v. Ahmedabad Muncply.t A.I.R. 1967 S.C.

In the modern administrative-age, it is customary to confer

(P) Lid. v. State of Punjab30 was invoked in support of the argument.

v. Administrator Municipality^ the Jammu and Kashmir High

38. Supra, note, 36.

In Balwant Singh v. Director of Inspection, Income-tax,*® it

was no reasonable basis for differentiating between persons similarly

49. A.I.R. 1969 Mys. 295.

Nevertheless, it is not a vague concept. What is included in public

51. A.I.R. 1969 Ori. 37.

Boyce Mfg. Co. Ltd. v. Stale53 furnishes another example of admin-

53. A . I . R . 1969 Mad. 305.

Article 15(1) specifically bars the state from discriminating

55. A . I . R . 1969 Ori. 80.

or temporary occupations, but the habitual occupations of families,"

Questions of discrimination in public services have been raised

the state, but emphasized that in determining whether a section

was challenged as discriminatory under article 16 as well as 14.

65. A.I.R. 1969 Mad. 118,

VII. ARTICLE 19 (I) (a)

determination by the courts of the meaning of the expression "con-

There were not many cases in 1969 under article 19 (1)(/).

those portions of the dominant tenement which are ordinarily ex-

Section 31 ( l ) ( b ) of the Central Previnces Excise Act, 1915,

business. Cancellation of a licence to deal in liquor without observ-

majority in this case may be said to be sound. In cases like Achutan

The Cement Control Order issued under section 18 G of the

84. A l.R. 1955 S.C. 549.

of ex-factory prices are contained in the Cement Control Order it-

The question of price-fixation had been raised earlier in a

86. Dwarka Pd v. State of U.P., A l . R . 1954 S.C. 224; Diwan Sugar

scheme to be bad under article 19(1) (g) because k gave rise to a

In re Madhu Limaye,-Kt the Supreme Court granted a writ of

92. As held by the Supreme Court in the Akadasi case, supra.

The Preventive Detention Act, 1950, enacted by Parliament,

on some criminal charges, then no order of preventive detention can

a detention was authorized only with a view to regulating the con-

seats in the aided training schools were to be filled by the managers

107. A.I.R. 1963 S.C. 540.

from state interference to a Christian institution. The Christian

113. A.I.R. 1968 S.C. 662.

of article 30 is to safeguard the interests of the minority of the people

During the year under review, a number of cases are found

level, prices had to be controlled. Once prices are controlled, any

118. A.I.R, 1969 S.C. 1126.

Court has held in Mohd. Fiazuddin v. Custodian, Evacuee Pro*