Dated: Monday, 24 February 2025 *For Educational Purposes and Private Circulation Only

Fundamental Right to Equality:

General Principles (Part I)
CONSTITUTIONAL LAW – I
ANUJAY SHRIVASTAVA
LL.B. (HONS.) 2024 | SECTION C & E
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sources themselves, including the case-laws. The content and extracts provided hereunder are
primarily for class discussion reference.
3. Any paragraph numbers referred to for judgments or orders typically correspond to the equivalent in
SCCOnline Trueprint versions.
4. These slides are meant for circulation to the students of LL.B. (Hons.) 2024 – Sections C & E.
5. These slides indicate at the top corner (left or right), what is the importance of a slide or set of slides that
fall under a title/head for purposes of examination preparation. Illustrative indications are “Important”,
“Optional”, “Further/Suggested” and “Not Important”.
 Important!

Primary Readings (per Course Manual)

CASE LAWS (ENUNCIATION OF PRINCIPLES OF “REASONABLE” CLASSIFICATION
AND APPLICATION OF THOSE PRINCIPLES TO DIFFERENT FACT SITUATIONS):

1. State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75

2. Kathi Raning Rawat v. Saurashtra, AIR 1952 SC 123
3. Kedar Nath Bajoria v. State of West Bengal, AIR 1953 SC 404
4. Maganlal Chhaganlal Ltd. v. Municipal Corporation of Greater Bombay, (1974)
2 SCC 402
 Optional to Study!

Further/Advanced Readings
(per Course Manual)
FURTHER/ADVANCED READINGS:
1. B, Errabi. “Protective Discrimination: Constitutional
prescriptions and judicial perception,” 10 and 11 Delhi L.
Rev. 66 ff (1981-1982)
2. P.K. Tripathi, “Some insights into Fundamental Rights,”
[Bombay: Bombay University Press, 1972].
 Optional to Study!

Further/Advanced Readings
(beyond Course Manual)
CASE LAWS (BEYOND COURSE MANUAL):
1. Chiranjitlal Choudhuri v. The Union of India, 1950 SCC 833: [1950] S.C.R. 869 (Introduced
the Dual-Test of Reasonable Classification under Article 14 in India)
2. Lachmandas Kewalram Ahuja, (1952) 1 SCC 726 [21] (Sudhi Ranjan Das, J.)
3. Gopi Chand v. Delhi Administration, AIR 1959 SC 609 [10].
4. Shri. Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar, AIR 1958 SC 538: 1959 SCR 279
[11]-[13].
5. Kangshari Halder v. State of West Bengal, AIR 1960 SC 457.
 Important!

CONSTITUTIONAL
PROVISIONS
ARTICLE 14
 Important!

Article 14
RIGHT TO EQUALITY
14. Equality before law.— The State shall not
deny to any person equality before the law or
the equal protection of the laws within the
territory of India.
ARTICLE 15
 Important!

Article 15
15. Prohibition of discrimination on grounds
of religion, race, caste, sex or place of birth.—
(1) The State shall not discriminate against
any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them.
 Important!

Article 15
15.(2) No citizen shall, on grounds only of religion, race, caste, sex, place of
birth or any of them, be subject to any disability, liability, restriction or
condition with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any
special provision for women and children.
 Important!

Article 15
15.(4) Nothing in this article or in clause (2) of article
29 shall prevent the State from making any special
provision for the advancement of any socially and
educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes.
[Introduced by the Constitution (First Amendment)
Act, 1951.]
 Important!

Article 15
15.(5) Nothing in this article or in sub-clause (g) of clause (1) of article
19 shall prevent the State from making any special provision, by
law, for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes or the
Scheduled Tribes in so far as such special provisions relate to their
admission to educational institutions including private educational
institutions, whether aided or unaided by the State, other than the
minority educational institutions referred to in clause (1) of article 30.
[Introduced by Constitution (Ninety-third Amendment) Act, 2005 and Upheld
as constitutional in Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1]
 Important!

Article 15
15.(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State
from making,—
(a) any special provision for the advancement of any economically weaker sections of citizens other than the
classes mentioned in clauses (4) and (5); and
(b) any special provision for the advancement of any economically weaker sections of citizens other than the
classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to
educational institutions including private educational institutions, whether aided or unaided by the State, other
than the minority educational institutions referred to in clause (1) of article 30,
which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten
per cent. of the total seats in each category.
Explanation.— For the purposes of this article and article 16, “economically weaker sections” shall be such as may
be notified by the State from time to time on the basis of family income and other indicators of economic
disadvantage.
[Inserted by the Constitution (One Hundred and Third Amendment) Act, 2019. Upheld as constitutional in Janhit Abhiyan v.
Union of India, (2023) 5 SCC 1.]
ARTICLE 16
 Important!

Article 16
16. Equality of opportunity in matters of public employment.—
(1) There shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the
State.
(2) No citizen shall, on grounds only of religion, race, caste, sex,
descent, place of birth, residence or any of them, be ineligible for,
or discriminated against in respect of, any employment or office
under the State.
 Important!

Article 16
16.(3) Nothing in this article shall prevent Parliament from making any
law prescribing, in regard to a class or classes of employment or
appointment to an office under the Government of, or any local or other
authority within, a State or Union territory, any requirement as to
residence within that State or Union territory prior to such employment
or appointment.
(4) Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favour of any
backward class of citizens which, in the opinion of the State, is not
adequately represented in the services under the State.
 Important!

Article 16
16.(4A) Nothing in this article shall prevent the State from
making any provision for reservation in matters of
promotion, with consequential seniority, to any class or
classes of posts in the services under the State in favour of
the Scheduled Castes and the Scheduled Tribes which, in the
opinion of the State, are not adequately represented in the
services under the State.
[Inserted by the Constitution (Seventy-seventh Amendment) Act, 1995.
Upheld as constitutional in M. Nagaraj v. Union of India, AIR 2007 SC 71.]
 Important!

Article 16
16.(4B) Nothing in this article shall prevent the State from considering any
unfilled vacancies of a year which are reserved for being filled up in that
year in accordance with any provision for reservation made under clause
(4) or clause (4A) as a separate class of vacancies to be filled up in any
succeeding year or years and such class of vacancies shall not be
considered together with the vacancies of the year in which they are being
filled up for determining the ceiling of fifty per cent. reservation on total
number of vacancies of that year.
[Inserted by the Constitution (Eighty-fifth Amendment) Act, 2001. Upheld as
constitutional in M. Nagaraj v. Union of India, AIR 2007 SC 71.]
 Important!

Article 16
16.(5) Nothing in this article shall affect the operation of
any law which provides that the incumbent of an office in
connection with the affairs of any religious or
denominational institution or any member of the
governing body thereof shall be a person professing a
particular religion or belonging to a particular
denomination.
 Important!

Article 16
16.(6) Nothing in this article shall prevent the State from
making any provision for the reservation of
appointments or posts in favour of any economically
weaker sections of citizens other than the classes
mentioned in clause (4), in addition to the existing
reservation and subject to a maximum of ten per cent. of
the posts in each category.
[Inserted by the Constitution (One Hundred and Third Amendment) Act, 2019.
Upheld as constitutional in Janhit Abhiyan v. Union of India, (2023) 5 SCC 1.]
ARTICLE 17
 Important!

Article 17
17. Abolition of Untouchability.—
“Untouchability” is abolished and its
practice in any form is forbidden. The
enforcement of any disability arising out of
“Untouchability” shall be an offence
punishable in accordance with law.
ARTICLE 18
 Important!

Article 18
18. Abolition of titles.—
(1) No title, not being a military or academic distinction, shall be conferred by the
State.
(2) No citizen of India shall accept any title from any foreign State.
(3) No person who is not a citizen of India shall, while he holds any office of profit
or trust under the State, accept without the consent of the President any title from
any foreign State.
(4) No person holding any office of profit or trust under the State shall, without
the consent of the President, accept any present, emolument, or office of any kind
from or under any foreign State.
INTRODUCTION
 INTRODUCTION

• Articles 14-18 of the Indian Constitution embody the ideas of

both negative and positive equality (formal and substantive
equality).
• The framers of the Constitution were aware of the existing
social inequalities in India due to discriminatory social
structure and they wanted the Indian State to take positive
measures to promote equality in positive sense.

[Input Acknowledgement: Professor (Dr.) Sarbani Sen.]

 INTRODUCTION
• Two concepts are involved in Article 14, viz. ‘equality before the law’ and ‘equal protection of law’.
• The first is a negative concept which ensures that there is no special privilege in favour of any one,
that all are equal subject to the ordinary law of the land and that no person, whatever be his rank or
condition, is above the law. There are certain exceptions to it, such as – foreign diplomats enjoy
immunity from the country’s judicial process; Art. 361 extends immunity to the President of India.
• The second concept, ‘equal protection of laws’, is positive in content. It does not mean that
identically the same law should apply to all persons, or that every law must have a universal
application within the country irrespective of different circumstances. Equal protection of the laws
does not postulate equal treatment of all person without distinctions. What it postulates is the
application of the same laws alike and without discrimination to all persons similarly situated. It
denotes equality of treatment in equal circumstances.

[Input Acknowledgement: Professor (Dr.) Sarbani Sen.]

ENUNCIATION OF PRINCIPLES OF
“REASONABLE” CLASSIFICATION AND
APPLICATION OF THOSE PRINCIPLES
TO DIFFERENT FACT SITUATIONS
 Important!

Doctrine of Reasonable Classification

(a.k.a., Dual-Test of Reasonable Classification; Classification Doctrine)

Article 14 forbids class legislation but does not prohibit legislative classification (special legislations for
doctors, lawyers etc.). Article 14 allows for reasonable classification of persons, objects and transactions by
the Legislature for the purpose of achieving specific ends. Classification to be reasonable should fulfil
following two test –
1. It should not be arbitrary, artificial or evasive. It should be based on an intelligible differentia, some real and
substantial distinction, which distinguishes persons or things grouped together in the class from others left out
of it; and
2. The differentia adopted as the basis of classification must have a rational or reasonable nexus with the object
sought to be achieved by the statute in question.
Illustration – Section 11 of the Indian Contract Act, person who have not attained majority i.e. the age of 18 or above cannot enter
into a contract. The two classes are adults and minors. The basis of this classification is the age. Age obviously has a relation to the
object of legislation i.e. the capacity to enter into contract. This section therefore satisfies both the requirements of a valid
classification and it groups adults and minors separately and such grouping has rational relation with the object of legislation that
is capacity to make a contract.

[Input Acknowledgement: Professor (Dr.) Sarbani Sen.]

 Doctrine of Reasonable Classification
(a.k.a., Dual-Test of Reasonable Classification)
• The importance of doctrine of reasonable classification must be examined in the light of
principle of non-arbitrariness stated previously. Article 14 strikes at arbitrariness in State
Action because an arbitrary action will be negation of Equality.
• The present position is that Article 14 is no longer equated with doctrine of reasonable
classification alone. Article 14 is primarily a guarantee against arbitrariness in State Action and
doctrine of reasonable classification has been evolved only as a subsidiary rule for testing
whether a particular state action is arbitrary or not.
• Similarly, the judiciary has evolved the test of arbitrariness and/or ‘manifest arbitrariness’,
which is another way to test whether a particular law or state action, including through a
legislation, is violative of Article 14.

[Input Acknowledgement: Professor (Dr.) Sarbani Sen.]

 Important!

State of West Bengal v.

Anwar Ali Sarkar,
AIR 1952 SC 75
 State of West Bengal v. Anwar Ali
Sarkar, AIR 1952 SC 75
Bench (7-J): M. Patanjali Sastri, C.J., Saiyid Fazl Ali, M.C. Mahajan, B.K.
Mukherjea, S.K. Das, N. Chandrasekhara Aiyar and Vivian Bose, JJ. [Seven Judges]
Facts: W.B. Special Courts Act 1950 was a state legislation that provided for speedier
trial. It deprived those prosecuted under the Act of certain rights and procedural fairness
which was provided in the Code of Criminal Procedure. Therefore, the validity of the
impugned legislation was challenged. The High Court of Calcutta ruled against the State
of West Bengal and held that the Act was ultra vires of Article 14. The State of W.B.
appealed to the Apex Court.
Issue: Whether West Bengal Special Courts Act, 1950 is ultra vires of Article 14 and is
unconstitutional?
 State of West Bengal v. Anwar Ali
Sarkar, AIR 1952 SC 75
S.K. DAS, J. (Concurring; Main Ratio)
56. I concur in dismissing these appeals but I am not persuaded that the
whole of section 5 of the West Bengal Special Courts Act is invalid. As I find
myself in substantial agreement with the interpretation put upon that section by
the majority of the Full Bench of the Calcutta High Court and most of the reasons
adopted by Harries, C.J., in support thereof, I do not fell called upon to express
myself in very great detail. I propose only to note the points urged before us and
shortly state my conclusions there on.
 State of West Bengal v. Anwar Ali
Sarkar, AIR 1952 SC 75
S.K. DAS, J. (Concurring; Main Ratio)
58. It is now well established that while article 14 is designed to prevent a person or class of persons from
being singled out from others similarly situated for the purpose of being specially subjected to discriminating
and hostile legislation, it does not insist on an “abstract symmetry” in the sense that every piece of
legislation must have universal application. All persons are not, by nature, attainment or
circumstances, equal and the varying needs of different classes of persons often require separate treatment
and, therefore, the protecting clause has been construed as a guarantee against discrimination amongst equals
only and not as taking away from the state the power to classify persons for the purpose of legislation. This
classification may be on different bases. It may be geographical or according to objects or occupations or the
like Mere classification, however, is not enough to get over the inhibition of the Article. […]
 State of West Bengal v. Anwar Ali
Sarkar, AIR 1952 SC 75
S.K. DAS, J. (Concurring; Main Ratio)

58. […] The classification must not be arbitrary but must

be rational, that is to say, it must not only be based on some
qualities or characteristics which are to be found in all the
persons grouped together and not in others who are left out
but those qualities or characteristics must have a reasonable
relation to the object of the legislation.
 State of West Bengal v. Anwar Ali
Sarkar, AIR 1952 SC 75
S.K. DAS, J. (Concurring; Main Ratio)
58. […] In order to pass the test, two conditions must be fulfilled, namely, that the classification must be
founded on an intelligible differentia which distinguishes those that are grouped together from others
and that that differentia must have a rational relation to the object sought to be achieved by the Act.
The differentia which is the basis of the classification and the object of the Act are distinct things and
what is necessary is that there must be a nexus between them.
In short, while the Article forbids class legislation in the sense of making improper discrimination by
conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of
other persons similarly situated in relation to the privileges sought to be conferred or the liability
proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such
classification is not arbitrary in the sense I have just explained.
The doctrine, as expounded by this Court in the two cases I have mentioned, leaves a considerable latitude
to the Court in the matter of the application of article 14 and consequently has the merit of flexibility.
 State of West Bengal v. Anwar Ali
Sarkar, AIR 1952 SC 75
S.K. DAS, J. (Concurring; Main Ratio)
67. In order to be a proper classification so as not to offend against the
Constitution it must be based on some intelligible differentia which
should have a reasonable relation to the object of the Act as recited in
the preamble. In the illustration taken above the two offences are only two
species of the same genus, the only difference being that in the first the
alleged offender is a stranger and in the latter he is a servant of the owner
whose property has been stolen. […]
 State of West Bengal v. Anwar Ali
Sarkar, AIR 1952 SC 75
S.K. DAS, J. (Concurring; Main Ratio)
67. […] Even if this difference in the circumstances of the two alleged offenders can be made
the basis of a classification, there is no nexus between this difference and the object of the
Act, for, in the absence of any special circumstances, there is no apparent reason why the
offence of theft in a dwelling house by a stranger should require a speedier trial anymore
than the offence of theft by a servant should do.
Such classification will be wholly arbitrary and will be liable to be his by the principles on which
the Supreme Court of the United States in Jank Skinner v. Oklahoma 216 U.S. 535 : 86 L.
Ed.1655, struck down the Oklahoma Habitual Criminal Sterilisation Act which imposed
sterilisation on a person convicted more than twice of larceny but not on one who was convicted of
embezzlement on numerous occasions. That sort of classification will, therefore, not clearly be a
proper classification such as the Act must be deemed to contemplate.
 State of West Bengal v. Anwar Ali
Sarkar, AIR 1952 SC 75
FAZL ALI, J. (Concurring; but Dissenting on Dual-Test)
33. In some American cases, there is a reference to “purposeful or intentional discrimination”, and it was argued that
unless we can discover an evil intention or a deliberate design to mete out unequal treatment behind the Act, it
cannot be impugned. It should be noted however that the words which I have put in inverted commas, have been
used in few American cases with reference only to executive action, where certain Acts were found to be innocuous
but they were administered by public authority with “an evil eye and an unequal hand.” I suggest most respectfully
that it will be extremely unsafe to lay down that unless there was evidence that discrimination was “purposeful or
intentional” the equality clause would not be infringed. In my opinion, the true position is as follows: - As a general
rule, if the Act is fair and good, the public authority who has to administer it will be protected. To this general
rule, however, there is an exception, which comes into play when there is evidence of mala fides in the
application of the Act. The basic question however still remains whether the Act itself is fair and good, which
must be decided mainly with reference to the specific provisions of the Act. It should be noted that there is no
reference to intention in article 14 and the gravamen of that Article is equality of treatment. In my opinion, it
will be dangerous to introduce a subjective test when the Article itself lays down a clear and objective test.
 State of West Bengal v. Anwar Ali
Sarkar, AIR 1952 SC 75
FAZL ALI, J. (Concurring; but Dissenting on Dual-Test)
35. The framers of the Constitution have referred to equality in the Preamble, and have devoted as
many as five articles, namely, articles 14, 15, 16, 17, and 18 in the Chapter on Fundamental Rights, to
ensure equality in all its aspects. Some of these Articles are confined to citizens only and some can be
availed of by non-citizens also; but on reading these provisions as a whole, one can see the great
importance attached to the principle of equality in the Constitution. That being so, it will be wrong to
whittle down the meaning of article 14, and however well-intentioned the impugned Act may be and however
reluctant one may feel to hold it invalid, it seems to me that section 5 of the Act, or at least that part of it with
which alone we are concerned in this appeal, does offend against article 14 of the Constitution and is
therefore unconstitutional and void. The Act is really modelled upon a pre-Constitution pattern and will
have to be suitably redrafted in order to conform to the requirements of the Constitution.
 State of West Bengal v. Anwar Ali
Sarkar, AIR 1952 SC 75
M.C. MAHAJAN, J. (Separate Judgment fully concurring with Mukherjea J.)
“It is no classification at all in the real sense of term as it is not
based on any characteristic which are peculiar to persons or to
cases which are to be subject to special procedure prescribed by
the Act. The mere fact of classification is sufficient to relieve the
statute from the reach of equality clause of Article 14.”
 State of West Bengal v. Anwar Ali
Sarkar, AIR 1952 SC 75
N. CHANDRASEKHARA AIYAR, J. (Partly Dissenting)
71. The preamble to the Constitution mentions one of the object to be to secure to all
its citizens equality of status and opportunity. Article 14 provides: “The State shall not
deny to any person equality before the law or the equal protection of the laws within the
territory of India.”
73. There can be no doubt that as regards the cases to be sent before the Special
Court or Courts, the Act under scrutiny has deviated in many matters of importance
from the procedure prescribed by the Criminal Procedure Code for the trial of
offences and that this departure has been definitely adverse to the accused.
 State of West Bengal v. Anwar Ali
Sarkar, AIR 1952 SC 75
N. CHANDRASEKHARA AIYAR, J. (Partly Dissenting)
73. Preliminary inquiry before committal to the sessions, trial by jury or with the aid of assessors,
the right of a de novo trial on transfer of a case from one Court to another, have been taken away
from the accused who are to be tried by a Special Court; even graves is section 13, which provides
that a person may be convicted of an offence disclosed by the evidence as having been committed
by him, even though he was not charged with it and it happens to be a more serious offence. This
power of the Special Court is much wider than the powers of ordinary courts. The points of
prejudice against the accused which appear in the challenged Act have been pointed out in
detail in the judgment of Trevor Harries C.J. They cannot all be brushed as ideas variations
of minor and unsubstantial importance.
 State of West Bengal v. Anwar Ali
Sarkar, AIR 1952 SC 75
N. CHANDRASEKHARA AIYAR, J. (Partly Dissenting)
74. The argument that changes in procedural law are not material and cannot be
said to deny equality before the law or the equal protection of the laws so long as the
substantive law remains unchanged or that only the fundamental rights referred to
in articles 20 to 22 should be safeguarded is, on the face of is, UNSOUND. The right
to equality postulated by article 14 is as much a fundamental right as any other
fundamental right dealt with in part III of the Constitution. Procedural law may
and does confer very valuable rights on a person, and their protection must be as
much the object of a court's solicitude as those conferred under substantive law.
 State of West Bengal v. Anwar Ali
Sarkar, AIR 1952 SC 75
N. CHANDRASEKHARA AIYAR, J. (Partly Dissenting)
76. It is well settled that equality before the law or the equal
protection of laws does not mean identity or abstract symmetry of
treatment. Distinctions have to be made for different classes and
groups of persons and a rational or reasonable classification is
permitted, as otherwise it would be almost impossible to carry on
the work of Government of any State or country.
 State of West Bengal v. Anwar Ali
Sarkar, AIR 1952 SC 75
N. CHANDRASEKHARA AIYAR, J. (Partly Dissenting)
78. The seven principles formulated by Fazl Ali J. are as follows:-
“1. The presumption is always in favour of the constitutionality of an enactment, since it must be assumed
that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed
to problems made manifest by experience and its discriminations are based on adequate grounds.
2. The presumption may be rebutted in certain cases by showing that on the face of the statute, there is to
classification at all and no difference peculiar to any individual or class and not applicable to any other
individual or class, and yet the law hits only a particular individual or class.
3. The principle of equality does not mean that every law must have universal application for all persons who
are not be nature, attainment or circumstances in the same position, and the varying needs of different classes
of persons often require separate treatment. […]
 State of West Bengal v. Anwar Ali
Sarkar, AIR 1952 SC 75
N. CHANDRASEKHARA AIYAR, J. (Partly Dissenting)
78. The seven principles formulated by Fazl Ali J. are as follows:- [Contd.]
4. The principle does not take away from the State the power of classifying persons for legitimate purposes.
5. Every classification is in some degree likely to produce some inequality, and mere production of inequality is not
enough.
6. If a law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of
denial of equal protection on the ground that it has no application to other persons.
7. While reasonable classification is permissible, such classification must be based upon some real and substantial
distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be
made arbitrarily and without any substantial basis.”
 Important!

Kathi Raning Rawat v.

Saurashtra, AIR 1952 SC 123
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
Bench: M. Patanjali Sastri [Lead], Saiyid Fazl Ali [Concurring],
M.C. Mahajan [Dissent], B.K. Mukherjea [Concurring], Sudhi
Ranjan Das [Concurring], N. Chandrasekhara Aiyar [Dissent]
and Vivian Bose [Dissent], JJ.
Issue: Whether the enactment of the Saurashtra State Public Safety
Measures (Third Amendment) Ordinance, 1949 (No. XLVI of 1949)
is unconstitutional as ultra vires of violating Article 14?
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
M. PATANJALI SASTRI, C.J.
2. As in the West Bengal case, the jurisdiction of the Special
Court of Criminal Jurisdiction, which tried and convicted the
Appellant, was challenged on the ground that the impugned
Ordinance, under which the Court was constituted, was
discriminatory and void. The Objection was overruled by the
Special Judge as well as by the High Court of Saurashtra on
appeal and the Appellant now seeks a decision of this Court on
the point.
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
3. The impugned Ordinance purports to amend the Saurashtra State Public Safety
Measures Ordinance (No. IX of 1948) which had been passed “to provide for public
safety, maintenance of public order and preservation of peace and tranquillity in the
State of Saurashtra”, by the insertion of Sections 7 to 18 which deal with the
establishment of Special Courts of criminal jurisdiction in certain areas to try
certain classes of offences in accordance with a simplified and shortened procedure.
Section 9 empowers the State by notification to constitute Special Courts for such 'areas
as may be specified in the notification and Section 10 provides for appointment of Special
Judges to preside over such courts. Section 11 enacts that the Special Judge shall try “such
offences or classes of offences or such cases or classes of cases as the Government may,
by general or special order in writing; direct”.
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
3. The impugned Ordinance purports to amend the Saurashtra State Public Safety
Measures Ordinance (No. IX of 1948) which had been passed “to provide for public
safety, maintenance of public order and preservation of peace and tranquillity in the
State of Saurashtra”, by the insertion of Sections 7 to 18 which deal with the
establishment of Special Courts of criminal jurisdiction in certain areas to try
certain classes of offences in accordance with a simplified and shortened procedure.
Section 9 empowers the State by notification to constitute Special Courts for such 'areas
as may be specified in the notification and Section 10 provides for appointment of Special
Judges to preside over such courts. Section 11 enacts that the Special Judge shall try “such
offences or classes of offences or such cases or classes of cases as the Government may,
by general or special order in writing; direct”.
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
4. Then follow provisions prescribing the procedure applicable to the trial of such
offences. The only variations in such procedure from the normal procedure in
criminal trials in the State consist of the abolition of trial by jury or with the aid of
assessors and the elimination of the inquiry before commitment in sessions cases.
Even under the normal procedure trial by jury is not compulsory unless the
Government so directs (Sections 268 and 269(1)). while assessors are not really
members of the court and their opinion is not binding on the judge with whom the
responsibility for the decision rests. Nor can the commitment proceeding in a sessions
case be said to be an essential requirement of a fair and impartial, trial, though its
dispensation may involve the deprivation of certain advantages which an Accused person
may otherwise enjoy. Thus the variations from the normal procedure are by no means
calculated to imperil the chances of a fair and impartial trial.
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
5. In exercise of the power conferred by Sections 9, 10 and 11, the
Government issued the notification No. H/35-5-C dated 9/11
February, 1950, directing that a Special Court shall be constituted
for certain special areas and that it shall try certain specified
offences which included offences Under Sections 302, 307 and 392
read with Section 34 of the Indian Penal Code (as adapted and
applied to the State of Saurashtra) for which the Appellant was
convicted and sentenced.
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
6. It is contended on behalf of the Appellant that Section 11 and the notification referred to above are
discriminatory in that the offences alleged to have been committed by the Appellant within the specified
areas are required to be tried by the Special Judge under the special procedure, while any person
committing the same offences outside those areas would be tried by the ordinary courts under the
ordinary procedure. It is also urged that Sections 9 and 11 by empowering the State Government to establish a
Special Court and to direct it to try under a special procedure such offences as may be notified by the
Government, in effect, authorise the Government to amend Section 5 of the Code of Criminal Procedure read
with the Second Schedule (as adapted and applied to the State of Saurashtra), which provides that:
“all offences under the Indian Penal Code shall be investigated, enquired into, tried and otherwise dealt with according
to the provisions hereinafter contained”,
and that delegation of such power to the executive Government was beyond the competence of a legislature and
was, therefore, void.
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
7. On the first point, many of the considerations which weighed with me in
upholding the constitutionality of Section 5 (1) of the West Bengal Special
Courts Act, which is in identical terms with Section 11 of the impugned Act,
apply a fortiori to the present case. The West Bengal case [1952] S.C.R. 284
arose out of a reference by the State Government of certain individual cases to the
Special Court for trial and there expressed the view that it was wrong to think that
classification was something that must somehow be discoverable in every piece of
legislation or it would not be legislation. That way of regarding classification, I
pointed out, tended only to obscure the real nature of the problems for which we
have to find solution.
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
8. In the present case, however, the State Government referred not certain
individual cases but offences of certain kinds committed in certain areas and
so the objection as to discriminatory treatment is more easily answered on the
line of reasoning indicated in my judgment in the West Bengal case [1952]
S.C.R. 284. Again, the variations from the normal procedure authorised by the
impugned Ordinance are less disadvantageous to the persons tried before the
Special Court than under the West Bengal Act. It was, however, said that any
variation in procedure which operates materially to the disadvantage of such
persons was discriminatory and violative of Article 14. […]
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
8. […] On the other hand, it was contended on behalf of the Respondent State that,
in the field of personal liberty, the only constitutional safeguards were those
specifically provided in articles 20 to 22, and 'this Court having held in Gopalan's
case [1950] S.C.R. 88. that any procedure prescribed by law satisfies the
requirements of Article 21 (the only Article relevant here) the impugned Ordinance
which prescribes a special procedure for trial of offences falling within its ambit
could not be held to be unconstitutional. Reliance was placed on a decision of a
Full Bench of the Hyderabad High Court (Abdur Rahim and Ors. v. Joseph A.
'Pinto and Ors., 1951) which seems to lend some support to this view. I am,
however, of opinion that neither of these extreme contentions is sound.
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
9. All legislative differentiation is not necessarily discriminatory. In fact, the word
“discrimination” does not occur in Article 14. The expression “discriminate against” is
used in Article 15 (1) and article. 16(2), and it means, according to the Oxford Dictionary,
“to make an adverse distinction with regard to; to distinguish unfavourably from others”.
Discrimination thus involves an element of unfavourable bias and it is in that sense
that the expression has to be understood in this context. If such bias is disclosed and is
based on any of the grounds mentioned in articles 15 and 16, it may well be that the
statute will, without more, incur condemnation as violating a specific constitutional
prohibition unless it is saved by one or other of the provisos to those articles. But the
position Under Article 14 is different. Equal protection claims under that Article are
examined with the presumption that the State action is reasonable and justified.
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
9. […] This presumption of constitutionality stems from the wide
power of classification which the legislature must, of necessity,
possess in making laws operating differently as regards different
groups of persons in order to give effect to its policies. The power of
the State to regulate criminal trials by constituting different courts
with different procedures according to the needs of different parts
of its territory is an essential part of its police power-(cf. Missouri v.
Lewis) 101 U.S. 22.
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
10. Though the differing procedures might involve disparity in the treatment of the
persons tried under them, such disparity is not by itself sufficient, in my opinion, to
outweigh the presumption and establish discrimination unless the degree of
disparity goes beyond what the reason for its existence demands as, for instance,
when it amounts to a denial of a fair and impartial trial. It is, therefore, not correct
to say that Article 14 provides no further constitutional protection to personal
liberty than what is afforded by Article 21. Notwithstanding that its wide
general language is greatly qualified in its practical application by a due
recognition of the State's necessarily wide powers of legislative classification,
Article 14 remains an important bulwark against discriminatory procedural
laws.
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
11. In the present case, the affidavit filed on behalf of the Respondent State by one of its
responsible officers states facts and figures relating to an increasing number of
incidents of looting, robbery, dacoity, nosecutting and murder by marauding gangs of
dacoits in certain areas of the State, and these details support the claim that “the
security of the State and public peace were jeopardised and that it became impossible
to deal with the offences that were committed in different places in separate courts of
law expeditiously.” The statement concludes by pointing out that the areas specified
in the notification were the “main zones of the activities of the dacoits as mentioned
above.” The impugned Ordinance having thus been passed to combat the increasing
tempo of certain types of regional crime, the two-fold classification on the lines of type
and territory adopted in the impugned Ordinance, read with the notification issued
thereunder, is, in my view, reasonable and valid, and the degree of disparity of
treatment involved is in no way in excess of what the situation demanded.
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
12. On the second point, the Appellant’s learned Counsel claimed that the majority view in In re The
Delhi Laws Act, 1912, etc. [1951] S.C.R. 747 supported his contention. He attempted to make this
out by piecing together certain dicta found in the several judgments delivered in that case. While
undoubtedly certain definite conclusions were reached by the majority of the Judges who took part
in the decision in regard to the constitutionality of certain specified enactments, the reasoning in
each case was different and it is difficult to say that any particular principle has been laid down by
the majority which can be of assistance in the determination of other cases. I have there expressed
my view that legislatures in this country have plenary authority to delegate their power to make laws
to subordinate agencies of their choice and such delegation, however inexpedient or undesirable
politically, is constitutionally competent. I accordingly reject this contention. It follows that the
Special Judge had jurisdiction to try the Appellant and the persons Accused along with him.
13. As the majority concur in overruling the preliminary objection the appeal will be heard on
the merits.
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
FAZL ALI, J. (CONCURRING)
16. From the foregoing summary of the provisions of the Ordinance, it will appear that the difference
between the procedure laid down in the Code of Criminal Procedure and the procedure to be followed by
the Special Judge consists mainly in the following matters:
(1) Where a case is triable by a court of session, no commitment proceeding is necessary, and the Special
Judge may take cognizance without any commitment;
(2) The trial shall not be by jury or with the aid of assessors;
(3) Only a memorandum of the substance of the evidence of each witness is ordinarily to be recorded;
(4) The period of limitation for appeal to the High Court is curtailed; and
(5) No court has jurisdiction to transfer any case from any Special Judge, or to make an order Under
Section 491 of the Code of Criminal Procedure.
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
FAZL ALI, J. (CONCURRING)
19. As has been already indicated, the main contention advanced before us on behalf of the Appellant is that the
Ordinance of 1949 violates the provisions of Article 14 of the Constitution, by laying down a procedure which is
different from and less advantageous to the Accused than the ordinary procedure laid down in the Code of Criminal
Procedure, and thereby discriminating between persons who are to be tried under the special procedure and those tried
under the normal procedure. In support of this argument, reliance is placed on the decision of this Court in The State
of West Bengal v. Anwar Ali Sarkar and Gajen Mali (Cases Nos. 297 and 298 of 1951) [1952] S.C.R. 284, in which
certain provisions of the West Bengal Special Courts Act, 1949, have been held to be unconstitutional on grounds
similar to those urged on behalf of the Appellant in the present ease. A comparison of the provisions of the
Ordinance in question with those of the West Bengal Act will show that several of the objectionable features in
the latter enactment do not appear in the Ordinance, but, on the whole, I am inclined to think that that
circumstance by itself will not afford justification for upholding the Ordinance. There is however one very
important difference between the West Bengal Act and the present Ordinance which, in my opinion, does
afford such justification, and I shall try to refer to it as briefly as possible.
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
FAZL ALI, J. (CONCURRING)
20. I think that a distinction should be drawn between “discrimination without
reason” and “discrimination with reason”. The whole doctrine of classification
is based on this distinction and on the well-known fact that the circumstances
which govern one set of persons or objects may not necessarily be the same as
those governing another set of persons or objects, so that the question of
unequal treatment does not really arise as between persons governed by
different conditions and different sets of circumstances. […]
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
FAZL ALI, J. (CONCURRING)
20. […] The main objection to the West Bengal Act was that it permitted discrimination "without reason"
or without any rational basis. Having laid down a procedure which was materially different from and
less advantageous to the Accused than the ordinary procedure, that Act gave uncontrolled and
unguided authority to the State Government to put that procedure into operation in the trial of any
case or class of cases or any offence or class of offences. There was no principle to be found in that
Act to control the application of the discriminatory provisions or to correlate those provisions to
some tangible and rational objective, in such a way as to enable anyone reading the Act to say: If
that is the objective, the provisions as to special treatment of the offences seem to be quite suitable
and there can be no objection to dealing with a particular type of offences on a special footing. The
mere mention of speedier trial as the object of the Act did not cure the defect, because the
expression “speedier trial” standing by itself provided no rational basis of classification. It was
merely a description of the result sought to be achieved by the application of the special procedure
laid down in the Act' and afforded no help in determining what cases required speedier trial.
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
FAZL ALI, J. (CONCURRING)
21. As regards the present Ordinance, we can discover a guiding principle within its
four corners, which cannot but have the effect of limiting the application of the
special procedure to a particular category of offences only and establish such a nexus
(which was missing in the West Bengal Act) between offences of a particular category
and the object with which the Ordinance was promulgated, as should suffice to repel
the charge of discrimination and furnish some justification for the special treatment
of those offences. The Ordinance, as I have already stated, purported to amend
another Ordinance, the object of which was to provide for public safety, maintenance
of public order and preservation of peace and tranquillity in the State.
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
FAZL ALI, J. (CONCURRING)
22. It was not disputed before us that the preamble of the original Ordinance would govern
the amending Ordinance also, and the object of promulgating the subsequent Ordinance
was the same as the object of promulgating the original Ordinance. Once this is
appreciated, it is easy to see that there is something in the Ordinance itself to guide
the State Government to apply the special procedure not to any and every case but
only to those cases or offences which have a rational relation to, or connection with,
the main object and purpose of the Ordinance and which for that reason become a
class by themselves requiring to be dealt with on a special footing. The clear recital of
a definite objective furnishes a tangible and rational basis of classification to the State
Government for the purpose of applying the provisions of the Ordinance and for
choosing only such offences or cases as affect public safety, maintenance of public
order and preservation of peace and tranquillity. […]
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
FAZL ALI, J. (CONCURRING)
22. […] Thus, Under Section 11, the State Government is expected to select only such offences or
class of offences or class of cases for being tried by the special court in accordance with the special
procedure, as are calculated to affect public safety, maintenance of public order, etc., and Under
Section 9, the use of the special procedure must necessarily be confined to only disturbed areas or
those areas where adoption of public safety measures is necessary. That this is how the Ordinance was
intended to be understood and was in fact understood, is confirmed by the Notification issued on the
9/11th February by the State Government in pursuance of the Ordinance. That Notification sets out 49
offences under the Indian Penal Code as adapted and applied to the State and certain other offences
punishable under the Ordinance, and one can see at once that all these offences directly affect the
maintenance of public order and peace and tranquillity. The Notification also specifies certain
areas in the State over which only the special court is to exercise jurisdiction.
 Kathi Raning Rawat v. Saurashtra,
AIR 1952 SC 123
FAZL ALI, J. (CONCURRING)
23. There can be no dispute that if the State Legislature finds that lawlessness and crime are rampant and
there is a direct threat to peace and tranquillity in certain areas within the State, it is competent to deal with
offences which affect the maintenance of public order and preservation of peace and tranquillity in those
areas as a class by themselves and to provide that such offences shall be tried as expeditiously as possible in
accordance with a special procedure devised for the purpose. This, in my opinion, is in plain language the
rationale of the Ordinance, and it will be going too far to say that in no case and under no circumstances can a
legislature lay down a special procedure for the trial of a particular class of offences, and that recourse to a
simplified and less cumbrous procedure for the trial of those offences, even when abnormal conditions prevail,
will amount to a violation of Article 14 of the Constitution. I am satisfied that this case is distinguishable from
the case relating to the West Bengal Act, but I also feel that the legislatures should have recourse to
legislation such as the present only in very special circumstances. The question of referring individual cases
to the special court does not arise in this appeal, and I do not wish to express any opinion on it.
 Important!

Kedar Nath Bajoria v. State of

West Bengal, AIR 1953 SC 404
 Kedar Nath Bajoria v. State of West Bengal,
AIR 1953 SC 404
Bench: M. Patanjali Sastri, C.J., B. Jagannadhadas, B.K.
Mukherjea, Ghulam Hasan and Vivian Bose, JJ. [Five
Judges]
Issue: Whether S.4 of The West Bengal Criminal Law
Amendment Act 1949 which provides for a Speedier Trial and
different procedure than the regular criminal laws is
Constitutionally valid with respect to Article 14?
 Kedar Nath Bajoria v. State of West Bengal,
AIR 1953 SC 404
M. PATANJALI SASTRI, C.J. (For the majority)
8. Now, it is well settled that the equal protection of the laws guaranteed by article 14 of the
Constitution does not mean that all laws must be general in character and universal in application and
that the State is no longer to have the power of distinguishing and classifying persons or things for the
purposes of legislation. To put it simply, all that is required in class or special legislation is that the
legislative classification must not be arbitrary but should be based on an intelligible principle having a
reasonable relation to the object which the legislature seeks to attain. If the classification on which the
legislation is founded fulfil this requirement, then the differentiation which the legislation makes between the
class of persons or things to which it applies and other persons or things left outside the purview of the
legislation cannot be regarded as a denial of the equal protection of the law, for, if the legislation were all-
embracing in its scope, no question could arise of classification being based on intelligible differential
having a reasonable relation to the legislative purpose. […]
 Kedar Nath Bajoria v. State of West Bengal,
AIR 1953 SC 404
M. PATANJALI SASTRI, C.J. (For the majority)
8. […] The real issue, therefore, is whether having regard to the
underlying purpose and policy of the Act as disclosed by its title,
preamble and provisions as summarised above, the classification of
the offenses, for the trial of which the Special Court is set up and a
special procedure is laid down, can be said to be unreasonable or
arbitrary and, therefore, violative of the equal protection clause.
 Kedar Nath Bajoria v. State of West Bengal,
AIR 1953 SC 404
M. PATANJALI SASTRI, C.J. (For the majority)
“10. …Article 14 does not insist that legislative
classification should be scientifically perfect or logically
complete and we cannot accept the suggestion that the
classification made in the Act is based on no intelligible
principle and is, therefore, arbitrary.”
 Kedar Nath Bajoria v. State of West Bengal,
AIR 1953 SC 404
M. PATANJALI SASTRI, C.J. (For the majority)
11. It has been further contended that even assuming that the scheduled offenses and the persons charged with the
commission thereof could properly form a class in respect of which special legislation could be enacted, section 4 of
the Act is discriminatory and void, vesting, as it does, an unfettered discretion in the Provincial Government to
choose any particular "case" of a person alleged to have committed an offence falling under any of the specified
categories for allotment to the Special Court to be tried under the special procedure, while other offenders of the
same category may be left to be tried by ordinary Courts. In other words, section 4 permits the Provincial
Government to make a discriminatory choice among persons charged with the same offence or offenses for trial by
a Special Court, and such absolute and unguided power of selection, though it has to be exercised within the
class or classes of offenses mentioned in the schedule, is no less discriminatory than the wider power of
selection from the whole range of criminal law conferred on the State Government by the legislation
impugned in Anwar Ali Sarkar’s case.
 Kedar Nath Bajoria v. State of West Bengal,
AIR 1953 SC 404
M. PATANJALI SASTRI, C.J. (For the majority)
11. […] The vice of discrimination, it is said, consists in
the unguided and unrestricted power of singling out for
different treatment one among a class of persons all of
whom are similarly situated and circumstances, be that
class large or small.
 Kedar Nath Bajoria v. State of West Bengal,
AIR 1953 SC 404
M. PATANJALI SASTRI, C.J. (For the majority)
11. […] The argument overlooks the distinction between those cases where the legislature
itself makes a complete classification of persons or things and applies to them the law which
it enacts, and other where the legislature merely lays down the law to be applied to persons
or things answering to a given description or exhibiting certain common characteristics, but
being unable to make a precise and complete classification, leaves it to an administrative
authority to make a selective application of the law to persons or things within the defined
group, while laying down the standards or at least indicating in clear terms the underlying
policy and purpose, in accordance with, and in fulfilment of, which the administrative
authority is expected to select the persons or things to be brought under the operation of the
law.
 Kedar Nath Bajoria v. State of West Bengal,
AIR 1953 SC 404
M. PATANJALI SASTRI, C.J. (For the majority)
11. […] A familiar example of this type of legislation is the Preventive Detention Act, 1950, which, having
indicated in what classes of cases and for what purposes preventive detention can be ordered, vests in the
executive authority a discretionary power to select particular persons to be brought under the law. Another
instance in point is furnished by those provisions of the Criminal Procedure Code which provide immunity
from prosecution without sanction of the Government for offenses by public servants in relation to their
official acts, the policy of the law being that public officials should not be unduly harassed by private
prosecution unless in the opinion of the Government, there were reasonable grounds for prosecuting the
public servant which accordingly should condition the grant of sanction.
It is not, therefore, correct to say that section 4 of the Act offends against article 14 of the Constitution merely
because the Government is not compellable to allot all cases of offenses set out in the schedule to Special
Judges but is vested with a discretion in the matter.
 Kedar Nath Bajoria v. State of West Bengal,
AIR 1953 SC 404
M. PATANJALI SASTRI, C.J. (For the majority)
12. Whether an enactment providing for special procedure for the trial of certain offenses is or is not
discriminatory and violative of article 14 must be determined in each case as it arises, for, no general rule
applicable to all cases can safely be laid down. A practical assessment of the operation of the law in the
particular circumstances is necessary. There are to be found cases on each side of the line: Anwar Ali Sarkar’s
case is an authority on one side; the Saurashtra case is on the other. Apart from dicta here and there in the course of
the judgments delivered in these cases and the decisions based on them, there is no real conflict of principle
involved in them. The majority decision in Anwar Ali Sarkar's case proceeded on the view that no standard was laid
down and no principle or policy was disclosed in the legislation challenged in that case, to guide to exercise of
discretion by the Government in selecting a "case" for reference to the Special Court for trial under the special
procedure provided in the Act. All that was relied on as indicative of a guiding principle for selection was the object,
as disclosed in the preamble of the West Bengal Act, of providing for the "speedier trial of certain offenses", but the
majority of the learned judges brushed that aside as too indefinite and vague to constitute a reasonable basis for
classification.
 Kedar Nath Bajoria v. State of West Bengal,
AIR 1953 SC 404
M. PATANJALI SASTRI, C.J. (For the majority)
12. […] “Speedier trial of offenses”, observed Mahajan J., “may be the reason and motive for the
legislation but it does not amount either to a classification of offenses or of cases.... In my opinion it is
not classification at all in the real sense of the term as it is not based on any characteristics which are
peculiar to persons or to cases which are to be subject to the special procedure prescribed by the Act”.
Mukherjea J. said, “I am definitely of opinion that the necessity of a speedier trial is too vague, uncertain and
elusive a criterion to form a rational basis for the discrimination made. The necessity for speedier trial may
be the object which the legislature had in view or it may be the occasion for making the enactment. In a
sense quick disposal is a thing which is desirable in all legal proceedings..... This is not reasonable
classification at all but an arbitrary selection”. Similar observations are to be found in the judgments of
Das and Chandrasekhara Aiyar JJ. at pages 328 and 352 respectively.
 Kedar Nath Bajoria v. State of West Bengal,
AIR 1953 SC 404
M. PATANJALI SASTRI, C.J. (For the majority)
15. Das J. no doubt laid stress on the fact that although section 11 of the Saurashtra
Ordinance was in the same terms as section 5(1) of the West Bengal Act, the court had to
consider the discriminatory character of the latter enactment in so far as item powered the
West Bengal Government to refer an individual case to the special court for trial, whereas
the Saurashtra Government, having by the notification issued under the Ordinance
referred only certain offences, the court was called upon to consider the constitutionality
of that part of section 11 which enabled the executive government to refer “offences,
classes of offences and classes of cases”. […]
 Kedar Nath Bajoria v. State of West Bengal,
AIR 1953 SC 404
M. PATANJALI SASTRI, C.J. (For the majority)
16. Among the minority Judges both Mahajan and Chandrasekhara Aiyar JJ. took the view that the
preamble which merely referred to the need to provide for public safety, maintenance of
public order and the preservation of peace and tranquillity in the State of Saurashtra
indicated no principle of classification, as the object was a general one which had to be kept
in view by every enlightened Government or system of administration and that every law
dealing with commission and punishment of offenses was based on this need.
Accordingly, in their view, the decision of the majority in the Saurashtra case ([1952] S.C.R. 435.)
marked a retreat from the position taken up by the majority in the earlier case of Anwar Ali Sarkar:
([1952] S.C.R. 284.). […]
 Kedar Nath Bajoria v. State of West Bengal,
AIR 1953 SC 404
M. PATANJALI SASTRI, C.J. (For the majority)
16. […] However that may be, the majority decision in the Saurashtra case: ([1952]
S.C.R. 435) would seem to lay down the principle that if the impugned legislation
indicates the policy which inspired it and the object which it seeks to attain, the mere
fact that the legislation does not itself makes a complete and precise classification of
the persons or things to which it is to be applied, but leaves the selective application
of the law to be made by the executive authority in accordance with the standard
indicated or the underlying policy and object disclosed is not a sufficient ground for
condemning it as arbitrary and, therefore, obnoxious to article 14. […]
 Kedar Nath Bajoria v. State of West Bengal,
AIR 1953 SC 404
M. PATANJALI SASTRI, C.J. (For the majority)
16. […] In the case of such a statute it could make no difference in principle whether the
discretion which is entrusted to the executive Government is to make a selection of
individual cases or of offences, classes of offences or classes of cases. For, in either case,
the discretion to make the selection is a guided and controlled discretion and not an
absolute or unfettered one and is equally liable to be abused, but as has been pointed
out, if it be shown in any given case that the discretion has been exercised in
disregard of the standard or contrary to the declared policy and object of the
legislation, such exercise could be challenged and annulled under article 14 which
includes within its purview both executive and legislative acts.
 Kedar Nath Bajoria v. State of West Bengal,
AIR 1953 SC 404
M. PATANJALI SASTRI, C.J. (For the majority)
17. It seems reasonable, if misuse of the special machinery
provided for the more effective punishment of certain
classes of offenders is to be avoided, that some competent
authority should be invested with the power to make a
selection of the cases which should be dealt with under the
special Act.
 Important!

Maganlal Chhaganlal Ltd. v.

Municipal Corporation of Greater
Bombay, (1974) 2 SCC 402
Maganlal Chhaganlal Ltd. v. Municipal Corporation of
Greater Bombay, (1974) 2 SCC 402
Bench: A.N. Ray, C.J., D.G. Palekar, J., H.R. Khanna, J. [Concurring],
K.K. Mathew, J., A. Alagiriswami, J. [Majority], and P.N. Bhagwati &
V.R. Krishna Iyer, JJ. [Concurring].
Issue: Whether when there are two procedures available to the Corporation
and the State Government, one by way of a suit under the ordinary law (CPC)
and the other under either of two available legislations – which are harsher and
more onerous than the procedure under the ordinary law, would the latter
procedures (which are harsher) offend Article 14 of the Constitution in absence of
any guidelines as to which procedure may be adopted?
 Maganlal Chhaganlal Ltd. v. Municipal Corporation of
Greater Bombay, (1974) 2 SCC 402

6. The argument based on the availability of two procedures, one more

onerous and harsher than the other and, therefore, discriminatory has led some
High Courts to resort to various reasoning in order to get round the effect of
the decision in the Northern India Caterers' case. This has happened in the case
of Madras High Court in Abdul Rashid v. Asst. Engineer (Highways): AIR 1970 Mad 387,
the Andhra Pradesh High Court in M. Begum v. State, AIR 1971 AP 382 and
Meharunnissa Begum v. State of Andhra Pradesh, 1970-1 Andh. LT 88 and the Patna High
Court in Bhartiya Hotel v. Union of India: AIR 1968 Pat 476. The decision of the Patna
High Court is one of the cases which was considered along with Hari Singh’s case. […]
 Important!

Maganlal Chhaganlal Ltd. v. Municipal Corporation of

Greater Bombay, (1974) 2 SCC 402
6. […] It is rather interesting that this attack based on Article 14 of the Constitution
should have led to the apparently more onerous and harsher procedure becoming the
rule, the resort to the ordinary Civil Court being taken away altogether. It is difficult to
imagine, who benefits by resort to the ordinary Civil Courts being barred. One finds it
difficult to reconcile oneself to the position that the mere possibility of resort to the
Civil Court should make invalid a procedure which would otherwise be valid.
It can very well be argued that as long as a procedure does not by itself violate either
Article 19 or Article 14 and is thus Constitutionally valid, the fact that that procedure is
more onerous and harsher than the procedure in the ordinary civil courts, should not
make that procedure void merely because the authority competent to take action can
resort to that procedure in the case of some and ordinary civil court procedure in the
case of others. […]
 Important!

Maganlal Chhaganlal Ltd. v. Municipal Corporation of

Greater Bombay, (1974) 2 SCC 402

6. […] That a Constitutionally valid provision of law should

be held to be void because there is a possibility of its being
resorted to in the case of some and the ordinary civil court
procedure in the case of others somehow makes one feel
uneasy and that has been responsible for the attempts to get
round the reasoning which is the basis in the decision in Northern
India Caterers’ case.
 Important!

Maganlal Chhaganlal Ltd. v. Municipal Corporation of

Greater Bombay, (1974) 2 SCC 402

14. To summarise: Where a statute providing for a more drastic

procedure different from the ordinary procedure covers the
whole field covered by the ordinary procedure, as in Anwar Ali
Sarkar's case and Suraj Mall Mehta's case without any guidelines as
to the class of cases in which either procedure to be resorted
to, the statute will be hit by Article 14. Even there, as mentioned
in Suraj Mall Mehta's case, a provision for appeal may cure the
defect. […]
 Important!

Maganlal Chhaganlal Ltd. v. Municipal Corporation of

Greater Bombay, (1974) 2 SCC 402
14. Further, in such cases if from the preamble and surrounding
circumstances, as well as the provisions of the statute themselves
explained and amplified by affidavits, necessary guidelines could be
inferred as in Saurashtra case and Jyoti Pershad’s case, the statute will not be hit
by Article 14. Then again where the statute itself covers only a class to
cases as in Haldar's case and Bajorias, the statute will not be bad. The fact
that in such cases the executive will choose which cases are to be tried
under the special procedure will not affect the validity of the statute.
Therefore, the contention that the mere availability of two procedures
will vitiate one of them, that is the special procedure, is not supported
by reason or authority.
 Important!

Maganlal Chhaganlal Ltd. v. Municipal Corporation of

Greater Bombay, (1974) 2 SCC 402
15. The statute itself in the two classes of cases before us clearly lays down the purpose behind
them, that is premises belonging to the Corporation and the Government should be subject to
speedy procedure in the matter of evicting unauthorized persons occupying them. This is a
sufficient guidance for the authorities on whom the power has been conferred. With such an
indication clearly given in the statutes one expects the officers concerned to avail themselves of the
procedures prescribed by the Acts and not resort to the dilatory procedure of the ordinary Civil
Court. Even normally one cannot imagine an officer having the choice of two procedures, one
which enables him to get possession of the property quickly and the other which would be a
prolonged one, to resort to the latter. Administrative officers, no less than the courts, do not
function in a vacuum. It would be extremely unreal to hold that an administrative officer would in
taking proceedings for eviction of unauthorised occupants of Government property or Municipal
property resort to the procedure prescribed by the two Acts in one case and to the ordinary Civil
Court in the other. The provisions of these two Acts cannot be struck down on the fanciful theory
that power would be exercised in such an unrealistic fashion. [...]
 Important!

Maganlal Chhaganlal Ltd. v. Municipal Corporation of

Greater Bombay, (1974) 2 SCC 402
15. [...] In considering whether the officers would be discriminating between one set of
persons and another, one has got to take into account normal human behavior and not
behavior which is abnormal. It is not every fancied possibility of discrimination but
the real risk of discrimination that we must take into account. This is not one of those
cases where discrimination is writ large on the face of the statute. Discrimination may
be possible but is very improbable. And if there is discrimination in actual practice
this Court is not powerless.
Furthermore, the fact that the Legislature considered that the ordinary procedure is
insufficient or ineffective in evicting unauthorised occupants of Government and
Corporation property and provided a special speedy procedure therefore is a clear
guidance for the authorities charged with the duty of evicting unauthorised
occupants. We, therefore, find ourselves unable to agree with the majority in the Northern
India Caterers' case.
 Important!

Maganlal Chhaganlal Ltd. v. Municipal Corporation of

Greater Bombay, (1974) 2 SCC 402
17. It is also necessary to point out that the procedures laid down by the two Acts now under
consideration are not so harsh or onerous as to suggest that a discrimination would result if
resort is made to the provisions of these two Acts in some cases and to the ordinary Civil Court
in other cases. Even though the officers deciding these questions would be administrative
officers there is provision in these Acts for giving notice to the party affected, to inform him of
the grounds on which the order of eviction is proposed to be made, for the party affected to file
a written statement and produce documents and be represented by lawyers. The provisions of
the Civil Procedure Code regarding summoning and enforcing attendance of persons and
examining them on oath, and requiring the discovery and production of documents are a
valuable safeguard for the person affected. So is the provision for appeal to the Principal Judge
of the City Civil Court in the city of Bombay, or to a District Judge in the districts who has got
to deal with the matter as expeditiously as possible, also a sufficient safeguard as was
recognised in Suraj Mall Mehta’s case. […]
 Important!

Maganlal Chhaganlal Ltd. v. Municipal Corporation of

Greater Bombay, (1974) 2 SCC 402
17. […] The main difference between the procedure before an ordinary Civil Court and
the executive authorities under these two Acts is that in one case it will be decided by
a judicial officer trained in law and it might also be that more than one appeal is
available. As against that there is only one appeal available in the other but it is also
open to the aggrieved party to resort to the High Court under the provisions of Article
226 and Article 227 of the Constitution. This is no less effective than the provision for
a second appeal. On the whole, considering the object with which these special
procedures were enacted by the legislature we would not be prepared to hold that the
difference between the two procedures is so unconscionable as to attract the vice of
discrimination. After all, Article 14 does not demand a fanatical approach. We,
therefore, hold that neither the provisions of Chapter V-A of the Bombay Municipal
Corporation Act nor the provisions of the Bombay Government Premises (Eviction)
Act, 1955 are hit by Article 14 of the Constitution.
 Important!

Maganlal Chhaganlal Ltd. v. Municipal Corporation of

Greater Bombay, (1974) 2 SCC 402
H.R. KHANNA, J. [Concurring]:
21. I agree that the writ petitions be dismissed but I would base my conclusion on the ground
that the procedure prescribed by the impugned provisions is not onerous or drastic when
compared with that contained in the Civil Procedure Code. My learned brother Alagiriswami J. has
analysed the impugned provisions contained in the Bombay Municipal Corporation Act as well as those
contained in the Bombay Government Premises (Eviction) Act. It would appear therefrom that
some of infirmities from which the Punjab Public Premises and Land (Eviction and Rent
Recovery) Act of 1959 suffered are not present in the impugned enactments. The impugned
provisions provide for the giving of notice to the party affected. Such a party has to be
informed of the grounds on which the order for eviction is proposed to be made and has to be
afforded an opportunity to file a written statement and produce documents. The party can also
be represented by lawyers. The provisions of the CPC regarding summoning and enforcing
attendance of persons and examining them on oath as also those relating to discovery and
production of documents provide a valuable safeguard. [...]
 Important!

Maganlal Chhaganlal Ltd. v. Municipal Corporation of

Greater Bombay, (1974) 2 SCC 402
H.R. KHANNA, J. [Concurring]:
21. [...] The aggrieved party has a right of appeal, and the appeal lies not to an administrative officer
but to a judicial officer of the status of a Principal Judge of the City Civil Court or a District Judge.
It is also apparent that if the officer concerned acts beyond his jurisdiction, his order would be
liable to assailed under Articles 226 and 227 of the Constitution.
I would, therefore, hold that the procedure envisaged in the impugned provisions is not onerous
and drastic as would justify an inference of discrimination. The simple fact that there are two
forums with different procedures would not justify the quashing of the impugned provisions as
being violative of article 14, especially when both procedures are fair and in consonance with the
principles of natural justice. I agree with my learned brother Bhagwati J. that what is necessary to
attract the inhibition of article 14 is that there must be substantial and qualitative differences
between the two procedures so that one is really and substantially more drastic and prejudicial than
the ether and that we should avoid dogmatic and finical approach when dealing with life’s manifold
realities.
 Optional to Study!

Maganlal Chhaganlal Ltd. v. Municipal Corporation of

Greater Bombay, (1974) 2 SCC 402
H.R. KHANNA, J. [Concurring]:
22. I must also utter a note of caution against the tendency to lightly overrule the view expressed in previous decisions of
the Court. It may be that there is a feeling entertained by certain schools of thought, to quote the words of Cardozo, that
“the precedents have turned upon us and are engulfing and annihilating us--engulfing and annihilating the very devotees
that worshipped at their shrine. So the air is full of new cults that disavow the ancient faiths. Some of them tell us that
instead of seeking certainty in the word, the outward sign, we are to seek for something deeper, a certainty relative and
temporary, a writing on the sands to be effaced by the advancing tides. Some of them even go so far as to adjure us to
give over the vain quest, to purge ourselves of those yearnings for the unattainable ideal, and to be content with an
empiricism that is untroubled by strivings for the absolute.", (see page 9 Selected Writings of Benjamin Nathan Cardozo
by Margaret E. Hall).At the same time, it has to be borne in mind that certainty and continuity are essential ingredients of
rule of law. Certainty in law would be considerably eroded and suffer a serious set back if the highest court of the land
readily overrules the view expressed by it in earlier cases, even though that view has held the field for a number of years.
In quite a number of cases which come up before this Court, two views are possible, and simply because the Court
considers that the view not taken by the Court in the earlier case was a better view of the matter would not justify the
overruling of the view. […]
 Optional to Study!

Maganlal Chhaganlal Ltd. v. Municipal Corporation of

Greater Bombay, (1974) 2 SCC 402
H.R. KHANNA, J. [Concurring]:
22. […] The law laid down by this Court is binding upon all courts in the country under article 141 of the Constitution,
and numerous cases all over the country are decided in accordance with the view taken by this Court. Many people
arrange their affairs and large number of transactions also take place on the faith of the correctness of the view taken by
this Court. It would create uncertainty, instability and confusion if the law propounded by this Court on the basis of
which numerous cases have been decided and many transactions have taken place is held to be not the correct law. This
Court may, no doubt, in appropriate cases overrule the view previously taken by it but that should only be for compelling
reasons. Necessity may sometimes be felt of ridding stare decisis of its petrifying rigidity. As observed by Brandeis, "stare
decisis is always a desideratum, even in these Constitutional cases. But in them, it is never a command" (see The
Unpublished Opinions, page 152). Some new aspects may come to light and it may become essential to cover fresh
grounds to meet the new situations or to overcome difficulties which did not manifest themselves or were not taken into
account when the earlier view was propounded. Precedents have a value and the ratio decidendi of a case can no doubt be
of assistance in the decision of future cases. At the same time we have to, as observed by Cardozo, guard against the
notion that because a principle has been formulated as the ratio decidendi of a given problem, it is therefore to be applied
as a solvent of other problems, regardless of consequences, regardless of deflecting factors, inflexibly and automatically,
in all its pristine generality (see Selected Writings, page 31)
 Important!

Maganlal Chhaganlal Ltd. v. Municipal Corporation of

Greater Bombay, (1974) 2 SCC 402
P.N. BHAGWATI, J. (joined by V.R. KRISHNA IYER, J.) [Concurring]:
45. [...] We may point at the outset--and this must be constantly borne in mind,
for otherwise it is likely to distort the proper perspective of article 14 that mere
minor differences between the two procedures would not be enough to invoke
the inhibition of the equality clause. The equality clause would become the
delight of legal casuistry and be shorn of its real purpose which is to provide
hope of equal dispensation to the common man — “the butcher, the baker and
the candle stick maker”-- if we indulged in weaving gossamer webs out of this
guarantee of equality or started meticulous hunt for minor differences in
procedure. […]
 Important!

Maganlal Chhaganlal Ltd. v. Municipal Corporation of

Greater Bombay, (1974) 2 SCC 402
P.N. BHAGWATI, J. (joined by V.R. KRISHNA IYER, J.) [Concurring]:
45. […] What the equality clause is intended to strike at are real and substantial disparities,
substantive or processual and arbitrary or capricious actions of the executive and it would be
contrary to the object and internment of the equality clause to exalt delicate distinctions,
shades of harshness and theoretical possibilities of prejudice into legislative inequality or
executive discrimination. Our approach to article 14 must be informed by a sense of
perspective and proportion based on robust understanding and rejection of over-refined
distinctions. The whole dimension of protection against discrimination in the processual
sphere relates to real and substantial disparities in procedures. What is necessary to attract the
inhibition of article 14 is that there must be substantial and qualitative differences between the
two procedures so that one is really and substantially more drastic and prejudicial than the
other and not mere superfine differences which in this imperfect world of fallible human
instruments are bound to exist when two procedures are prescribed. We should avoid dogmatic
and finical approach when handling life’s flexible realities.
 Important!

Maganlal Chhaganlal Ltd. v. Municipal Corporation of

Greater Bombay, (1974) 2 SCC 402
P.N. BHAGWATI, J. (joined by V.R. KRISHNA IYER, J.) [Concurring]:
46. We may also observe that there is no magic formula by which it can be said that one procedure is substantially more drastic
and onerous than the other. It does not follow that merely because one procedure provides the forum of a civil court while the
other provides the forum of an administrative tribunal, the latter is necessarily more drastic and onerous than the frontier. We
cannot accept such a bald proposition. Indeed, not infrequently, the poor man gets lost when he is drawn into a regular suit in a civil
court which, it is well known, has a long drawn out expensive and escalating litigative system which often spells ruin to the ordinary man
and, consequently, by contrast, a prompt and inexpensive instrument, though manned by administrative personnel untrained in the
sophisticated court methodology and unaided by long and intricate argument of counsel engaged on onerous terms, may be preferred by
many in this country. The procedure of the civil court also suffers from many technicalities. It proceeds on rules of evidence which are
sometimes highly technical, receives probative material only when placed on record through prescribed procedures even though a better
appreciation of the situation may per-hope possible by other means and are sorely on the material brought on record excluding what
commonsense and experience may sometime suggest as useful in reaching the truth. Again, it functions on the basis of adversary system
of administration of justice which may bring about inequality where the opposing adversaries are not evenly balanced. It is quite possible
that in certain types to cases people may receive better justice where judicial formalism is kept out and the procedure is made informal.
The many-tiered system of appeals built into the judicial pyramid often results in pyrrhic victory and leads to disenchantment with the end
product of delayed justice. […]
 Important!

Maganlal Chhaganlal Ltd. v. Municipal Corporation of

Greater Bombay, (1974) 2 SCC 402
P.N. BHAGWATI, J. (joined by V.R. KRISHNA IYER, J.) [Concurring]:
46. We cannot, therefore, accept as an axiomatic exemption or universal generalisation that as between an administrative
tribunal and a civil court, the latter is always functionally better than the former. We have grown up in a system of
administration of justice where civil courts have been the primary authority entrusted with the task of determination of
disputes and, therefore, whenever a special machinery is devised by the Legislature entrusting the power of determination of
disputes to another authority set up by the Legislature in substitution of courts of law, our minds which are conditioned by the
historical existence of courts of law and which have, therefore, acquired a certain predilection for the prevailing system of
administration of justice by courts of law, react adversely against the establishment of such an authority.
We must cast aside our predilection for the existing system of administration of justice which has prevailed over a long period of time and
examine the special machinery set up by the legislature objectively and dispassionately, without any pre-conceived notion or prejudice
against it, and find out whether the special machinery is really and substantially more drastic and prejudicial than the age old machinery of
Civil court. When we say this we do not wish to underscore the high qualities which are the inalienable attributes of administration of
justice by civil courts, namely, detachment and impartiality, objectivity of approach, sensitivity and regard for natural justice and skill and
expertise in sifting of evidence and interpretation and application of the law. But we do wish to point out that the machinery of an
administrative tribunal is not necessarily and invariably more drastic and onerous than that of a civil court. The two
procedures would have to be compared objectively and dispassionately without any. predilection or prejudice to determine
whether one is really and substantially more drastic and prejudicial than the other.
 Important!

Maganlal Chhaganlal Ltd. v. Municipal Corporation of

Greater Bombay, (1974) 2 SCC 402
P.N. BHAGWATI, J. (joined by V.R. KRISHNA IYER, J.) [Concurring]:
47. If we examine the question before us in the light of these general observations, it will be apparent that the special procedure set out
in Chapter VA of the Municipal Act is not substantially more drastic and prejudicial than the ordinary procedure of a civil suit.
[...] Then there is also a right of appeal against the decision of the Municipal Commissioner or other officer and this right of appeal is to a senior
and highly experienced judicial officer and not to a mere executive authority. The appeal lies to the Principal Judge of the City Civil Court or such
other judicial officer in Greater Bombay of not less than ten years standing as the Principal Judge may designate in that behalf and it is an appeal
both on few and fact. It is true that a revision application against the appellate order is excluded, but if the judicial officer invested with appellate,
power has failed to exercise his jurisdiction or acted in excess of his jurisdiction or committed an error of law apparent on the face of the record or
the decision given by him has resulted in grave miscarriage of justice, it is always open to the aggrieved party to bring it up before the High Court
for examination under Article 226 or article 227. The ultimate decision is, therefore, by a judicial officer trained in the art and skill of law
and not by an executive officer. It is difficult to see how, in the context of the need for speedy and expeditious recovery of public
premises for utilisation for important public uses, where dilatoriness of the procedure may defeat the very object of recovery, the
special procedure set out in Chapter VA of the Municipal Act--and this applies equally to the special procedure set out in the
Government Premises Eviction Act--can be regarded as really and substantially more drastic and prejudicial than the ordinary
procedure of a civil suit. We do not think that the two procedures are so substantially and qualitatively disparate as to attract the vice of
discrimination.
48. The result is that all the appeals and writ petitions fail and are dismissed. [...]
 END *
(*TO BE CONTINUED IN
WEEK 5 AND WEEK 6-7)