article 14 right to equality

Right to EqualityRight to Equality

Provisions in Indian Provisions in Indian ConstitutionConstitution

Article 14-Equality before LawArticle 14-Equality before Law Article 15- Prohibition of Article 15- Prohibition of

Discrimination on grounds of religion, Discrimination on grounds of religion, race, caste, sex or place of birthrace, caste, sex or place of birth

Article 16-Equality of opportunity in Article 16-Equality of opportunity in matters of public employmentmatters of public employment

Article 17-Abolition of untouchabilityArticle 17-Abolition of untouchability Article 18-Abolition of titleArticle 18-Abolition of title THESE ARTICLES GUARANTEE THE THESE ARTICLES GUARANTEE THE

RIGHT TO EQUALITY.RIGHT TO EQUALITY.

Article 14 0f Indian Article 14 0f Indian ConstitutionConstitution

The State shall not deny to any The State shall not deny to any person equality before the law person equality before the law and equal protection of the laws and equal protection of the laws within the territory of India.within the territory of India.

Article 14 embodies the general principles of Article 14 embodies the general principles of equality.equality.

Article 14 bars discrimination & prohibits Article 14 bars discrimination & prohibits discriminatory laws.discriminatory laws.

Article 14 outlaws (forbid) discrimination in a Article 14 outlaws (forbid) discrimination in a general way & guarantees equality before law to all general way & guarantees equality before law to all persons.persons.

In view of certain amount of indefiniteness in article In view of certain amount of indefiniteness in article 14, separate provisions to cover specific 14, separate provisions to cover specific discriminatory situations have been made by discriminatory situations have been made by subsequent Articles.subsequent Articles.

Article 14 is the genus while Article 15 & 16 is the Article 14 is the genus while Article 15 & 16 is the species.species.

In situations not covered by Article 15 to 18, the In situations not covered by Article 15 to 18, the general principle of equality embodied in Article 14 general principle of equality embodied in Article 14 is attracted whenever discrimination is alleged.is attracted whenever discrimination is alleged.

The goal set out in the Preamble to the The goal set out in the Preamble to the Constitution regarding status and opportunity Constitution regarding status and opportunity is embodied and concretised in Article 14 to 18.is embodied and concretised in Article 14 to 18.

Article 17 of UDHR- Article 17 of UDHR- declares that all are equal declares that all are equal before law and are entitled without any before law and are entitled without any discrimination to the equal protection of laws.discrimination to the equal protection of laws.

By & large the same concept of equality inheres By & large the same concept of equality inheres in Article 14 of the Indian Constitution.in Article 14 of the Indian Constitution.

Right to equality has been declared by the Right to equality has been declared by the Supreme Court as the basic feature of the Supreme Court as the basic feature of the Constitution.Constitution.

Article 14 uses two Article 14 uses two expressionsexpressions

Equality before lawEquality before law Equal protection of lawsEqual protection of laws

EQUALITY BEFORE THE EQUALITY BEFORE THE LAWLAW

Negative conceptNegative concept It does not mean absolute equality among human It does not mean absolute equality among human

beings which is not possible.beings which is not possible. It means:-It means:- There is no special privilege in favour of any There is no special privilege in favour of any

individual.individual. All are equally subject to the ordinary law of the land.All are equally subject to the ordinary law of the land. No person whatever is his rank or condition is above No person whatever is his rank or condition is above

the land.the land. Equivalent to the second corollary of the Dicean Equivalent to the second corollary of the Dicean

concept of theconcept of therule of law.rule of law.

Prof Dicey’s three meanings of the Rule of Law:-Prof Dicey’s three meanings of the Rule of Law:- Absence of arbitrary power or supremacy of the law.Absence of arbitrary power or supremacy of the law. Equality before the law.Equality before the law. The constitution is the result of the ordinary law of The constitution is the result of the ordinary law of

the land.the land.

Equality before Law –Not absolute rule-Equality before Law –Not absolute rule-exceptionsexceptions

Article 361- Immunity to President and Article 361- Immunity to President and GovernorGovernor

Special Privileges to Members of Special Privileges to Members of Parliament.Parliament.

Article 33 - Members of the Armed forces Article 33 - Members of the Armed forces Ambassadors, foreign diplomats enjoy Ambassadors, foreign diplomats enjoy immunity from the country’s judicial immunity from the country’s judicial processprocess

Public servants cannot be prosecuted for Public servants cannot be prosecuted for certain offences without the sanction of certain offences without the sanction of the appropriate authorities—Section 164 the appropriate authorities—Section 164 I.P.C read with s 197 Cr.P.C.I.P.C read with s 197 Cr.P.C.

EQUAL PROTECTION OF EQUAL PROTECTION OF LAWSLAWS

Positive in content.Positive in content. Based on the last clause of the first Based on the last clause of the first

section of the 14th Amendment to section of the 14th Amendment to the American Constitution.the American Constitution.

Section 1 of 14th Amendment:-“No Section 1 of 14th Amendment:-“No state shall deny to any person within state shall deny to any person within its jurisdiction the equal protection its jurisdiction the equal protection of the law”of the law”

Equal Protection of Law does not Equal Protection of Law does not mean that-mean that-

Identically the same law should Identically the same law should apply to all persons.apply to all persons.

Every law must have a universal Every law must have a universal application within the country application within the country irrespective of differences of irrespective of differences of circumstances.circumstances.

It does not postulate equal It does not postulate equal treatment of all persons without treatment of all persons without distinction.distinction.

Equal Protection of Law meansEqual Protection of Law means

Application of the same laws alike and Application of the same laws alike and without discrimination to all persons without discrimination to all persons similarly situated.similarly situated.

Equality of treatment in equal Equality of treatment in equal circumstances.circumstances.

Implies that among equals the law should Implies that among equals the law should be equal and should be equally be equal and should be equally administered, that the like should be administered, that the like should be treated alike, without distinction of race, treated alike, without distinction of race, religion, wealth, social status or political religion, wealth, social status or political influence.influence.

UNDERLYING PRINCIPLE:-UNDERLYING PRINCIPLE:- Article 14 prescribes equality before the Article 14 prescribes equality before the

law.law. All persons are not equal by nature, All persons are not equal by nature,

attainment or circumstances.attainment or circumstances. Therefore a mechanical equality before Therefore a mechanical equality before

the law may result in injustice.the law may result in injustice. The guarantee of equal protection of the The guarantee of equal protection of the

law does not mean that identically the law does not mean that identically the same rules of law should be made same rules of law should be made applicable to all persons applicable to all persons in spite of in spite of differences in circumstances or differences in circumstances or conditionsconditions..

UNDERLYING PRINCIPLE:-UNDERLYING PRINCIPLE:- The varying needs of different classes or The varying needs of different classes or

sections of people require different and sections of people require different and separate treatment.separate treatment.

The legislature is required to deal with The legislature is required to deal with

diverse problems arising out of an infinite diverse problems arising out of an infinite variety of human relations. variety of human relations.

It must, therefore, necessarily have the It must, therefore, necessarily have the power of making laws to attain particular power of making laws to attain particular objects and, for that purpose, of objects and, for that purpose, of distinguishing, selecting and classifying distinguishing, selecting and classifying persons and things upon which its laws are persons and things upon which its laws are to operate.to operate.

Legislative ClassificationLegislative Classification

It is accepted that persons may It is accepted that persons may be classified into groups and be classified into groups and such groups may be treated such groups may be treated differently if there is a differently if there is a reasonable basis for such reasonable basis for such difference.difference.

ARTICLE 14 FORBIDS CLASS LEGISLATION BUT ARTICLE 14 FORBIDS CLASS LEGISLATION BUT IT DOES NOT FORBID REASONABLE IT DOES NOT FORBID REASONABLE CLASSIFICATIONCLASSIFICATION Class LegislationClass Legislation Legislation which confers special privileges or Legislation which confers special privileges or

imposes special disabilities upon one class.imposes special disabilities upon one class. Class legislation is that Class legislation is that

which makes an which makes an improper discriminationimproper discrimination by conferring particular privileges upon a class by conferring particular privileges upon a class

of personsof persons arbitrarily selectedarbitrarily selected from a large number of from a large number of

persons, persons, all of whom stand in the same relation all of whom stand in the same relation to the privilege granted and the persons not so to the privilege granted and the persons not so

favored favored no no reasonable distinctionreasonable distinction or or substantial substantial

differencedifference can be found can be found justifying in the inclusion of one and the justifying in the inclusion of one and the

exclusion of the other from such privilege.exclusion of the other from such privilege.

ARTICLE 14 FORBIDS CLASS LEGISLATION ARTICLE 14 FORBIDS CLASS LEGISLATION BUT IT DOES NOT FORBID REASONABLE BUT IT DOES NOT FORBID REASONABLE

CLASSIFICATIONCLASSIFICATION Reasonable ClassificationReasonable Classification Classification must not be Classification must not be

arbitrary, arbitrary, Artificial, orArtificial, or evasive. evasive.

Classification must always be based Classification must always be based upon some upon some real and substantial real and substantial distinctiondistinction bearing a just and bearing a just and reasonable relation to the object reasonable relation to the object sought to be achieved by the sought to be achieved by the legislature.legislature.

TESTS FOR REASONABLE TESTS FOR REASONABLE CLASSIFICATIONCLASSIFICATION

Classification to be reasonable should fulfill the Classification to be reasonable should fulfill the following two conditions:-following two conditions:-

1.1. The classification must be founded on an The classification must be founded on an intelligible differentiaintelligible differentia which distinguishes persons which distinguishes persons or things that are grouped together from others or things that are grouped together from others left out of the group; andleft out of the group; and

2.2. The The differentia must have a rational relation to the differentia must have a rational relation to the object object sought to be achieved by the Act.sought to be achieved by the Act.

The differentia which is the basis of the The differentia which is the basis of the classification and the object of the act are two classification and the object of the act are two distinct things.distinct things.

What is necessary is that there must be a nexus What is necessary is that there must be a nexus between the basis of classification and the object between the basis of classification and the object of the Act which makes the classification. of the Act which makes the classification.

It is only when there is no reasonable basis for a It is only when there is no reasonable basis for a classification that legislation making such classification that legislation making such classification may be declared discriminatory.classification may be declared discriminatory.

New Concept of Equality: New Concept of Equality: Protection against arbitrarinessProtection against arbitrariness E.P.Royappa v. State of Tamiladu AIR 1974 E.P.Royappa v. State of Tamiladu AIR 1974

SC 555SC 555

The S.C has challenged the traditional The S.C has challenged the traditional concept of equality which was based concept of equality which was based on reasonable classification.on reasonable classification.

LAID DOWN A NEW CONCEPT OF LAID DOWN A NEW CONCEPT OF EQUALITY.EQUALITY.

E.P.Royappa v. State of Tamilnadu AIR E.P.Royappa v. State of Tamilnadu AIR 1974 SC 5551974 SC 555

Bhagwati,J., delivering the judgement on behalf of Bhagwati,J., delivering the judgement on behalf of himself ,Chandrachud and Krishna Iyer,JJ. himself ,Chandrachud and Krishna Iyer,JJ. propounded the new concept of equality in the propounded the new concept of equality in the following words – following words –

““Equality is a dynamic concept with many aspects Equality is a dynamic concept with many aspects and dimensions and and dimensions and

it cannot be ‘cribbed, cabined and confined’ within it cannot be ‘cribbed, cabined and confined’ within traditional and doctrinaire limits. traditional and doctrinaire limits.

From a positivistic point of view, equality is From a positivistic point of view, equality is antithesis to arbitrariness. antithesis to arbitrariness.

In fact equality and arbitrariness are sworn In fact equality and arbitrariness are sworn enemies; one belong to the rule of law in republic enemies; one belong to the rule of law in republic while the other, to the whim and caprice of an while the other, to the whim and caprice of an absolute monarch. absolute monarch.

Where an act is arbitrary, it is implicit in it that it Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and is unequal both according to political logic and constitutional law and is therefore violative of constitutional law and is therefore violative of Article 14.”Article 14.”

Maneka Gandhi v. Union of IndiaManeka Gandhi v. Union of India AIR 1978 SC 597 AIR 1978 SC 597

Bhagwati,J. again quoted with approval the Bhagwati,J. again quoted with approval the new concept of equality propounded by him new concept of equality propounded by him in the E.P.Royappa case. He said:- in the E.P.Royappa case. He said:-

“…………“…………Equality is a Equality is a dynamic concept dynamic concept with with many aspects and dimensions and many aspects and dimensions and it cannot it cannot be imprisoned within traditional and be imprisoned within traditional and doctrinaire limitsdoctrinaire limits. .

Article 14 strikes at arbitrariness in state Article 14 strikes at arbitrariness in state action and ensures fairness and equality of action and ensures fairness and equality of treatment. treatment.

The principle of reasonableness, which The principle of reasonableness, which legally as well as philosophically, is an legally as well as philosophically, is an essential element of equality or non-essential element of equality or non-arbitrariness, pervades Article 14 like a arbitrariness, pervades Article 14 like a brooding omnipresence.”brooding omnipresence.”

R.D.Shetty v. International Airport Authority R.D.Shetty v. International Airport Authority of India of India

AIR 1979 SC 1628 AIR 1979 SC 1628 Bhagwati, J. reiterated the same principle in Bhagwati, J. reiterated the same principle in

the following words:-the following words:- ““It must ….therefore, now be taken to be well-It must ….therefore, now be taken to be well-

settled that what Article 14 strikes at is settled that what Article 14 strikes at is arbitrariness because an action that is arbitrariness because an action that is arbitrary, must necessarily involve negation of arbitrary, must necessarily involve negation of equality. equality.

The doctrine of classification which is involved The doctrine of classification which is involved by the court is merely a by the court is merely a JUDICIAL FORMULA JUDICIAL FORMULA FOR DETERMINING WHETHER THE FOR DETERMINING WHETHER THE LEGISLATURE OR EXECUTIVE ACTION IN LEGISLATURE OR EXECUTIVE ACTION IN QUESTION IS ARBITRARYQUESTION IS ARBITRARY and, therefore, and, therefore, constituting denial of equality. constituting denial of equality.

If the classification is not reasonable and does If the classification is not reasonable and does not satisfy the two conditions referred to above, not satisfy the two conditions referred to above, the impugned legislation or executive action the impugned legislation or executive action would plainly be arbitrary and the guarantee of would plainly be arbitrary and the guarantee of equality under Article 14 would be breached.equality under Article 14 would be breached.

Problem 1Problem 1 FactsFacts Rule 34 of the Central Services (Pension) Rule 34 of the Central Services (Pension)

Rules, 1972 was challenged.Rules, 1972 was challenged. In 1979 a liberalized scheme of Pension In 1979 a liberalized scheme of Pension

Rules was introduced. Rules was introduced. The scheme was applied only to those who The scheme was applied only to those who

retired after 31-3-79.retired after 31-3-79. Rule 34 classified between pensioners Rule 34 classified between pensioners

RETIRING BEFORE 31-3-79 AND RETIRING RETIRING BEFORE 31-3-79 AND RETIRING AFTER THAT DATE.AFTER THAT DATE.

The validity of classification of employees of The validity of classification of employees of the Central Government on the basis of the the Central Government on the basis of the date of retirement was questioned. date of retirement was questioned.

Problem 1Problem 1 IssuesIssues Do pensioners entitled to receive Do pensioners entitled to receive

superannuation or retiring pension superannuation or retiring pension under Central Civil Services under Central Civil Services (Pension) Rules, 1972 ('1972 Rules' (Pension) Rules, 1972 ('1972 Rules' for short) form a class as a whole?for short) form a class as a whole?

Is the date of retirement a relevant Is the date of retirement a relevant consideration for eligibility when a consideration for eligibility when a revised formula for computation of revised formula for computation of pension is ushered in and made pension is ushered in and made effective from a specified date?effective from a specified date?

D. S. Nakara v. Union of India AIR 1983 D. S. Nakara v. Union of India AIR 1983 SC 130SC 130

S.C struck down Rule 34 of the Central S.C struck down Rule 34 of the Central Services (Pension) Rules, 1972 as Services (Pension) Rules, 1972 as unconstitutional on the ground that the unconstitutional on the ground that the classification made by it between pensioners classification made by it between pensioners retiring before a particular date and retiring retiring before a particular date and retiring after that date was not based on any rational after that date was not based on any rational principle and was arbitrary and violative of principle and was arbitrary and violative of Article 14 of the Constitution.Article 14 of the Constitution.

The S.C removed the unconstitutional The S.C removed the unconstitutional element, viz., the arbitrarily fixed date as to element, viz., the arbitrarily fixed date as to retirement, and allowed all the pensioners retirement, and allowed all the pensioners governed by the 1972 rules to have the governed by the 1972 rules to have the benefit of the 1979 rules.benefit of the 1979 rules.

Problem 2Problem 2 Regional Engineering College made admissions of candidates Regional Engineering College made admissions of candidates

on the basis of oral interview after a written test.on the basis of oral interview after a written test. The test of oral interview was challenged on the ground that The test of oral interview was challenged on the ground that

it was arbitrary and unreasonable because it was arbitrary and unreasonable because high percentage of high percentage of marks were allocated for oral test, and the candidates were marks were allocated for oral test, and the candidates were interviewed only 2 or 3 minutes.interviewed only 2 or 3 minutes.

The Supreme Court struck down the ruleThe Supreme Court struck down the rule prescribing high prescribing high percentage of marks for oral test, i.e., allocation of one-third percentage of marks for oral test, i.e., allocation of one-third of total marks for oral interview was plainly arbitrary and of total marks for oral interview was plainly arbitrary and unreasonable and violative of article 14 of the Constitution. unreasonable and violative of article 14 of the Constitution.

Allocation of 33 percent of the total marks for oral interview Allocation of 33 percent of the total marks for oral interview infected the admission procedure with arbitrariness.infected the admission procedure with arbitrariness.

SC observed that allocation of more than 15 percent marks to SC observed that allocation of more than 15 percent marks to the interview will be arbitrary and unreasonable.the interview will be arbitrary and unreasonable.

The court, however, did not set aside the previous selections.The court, however, did not set aside the previous selections.

Other cases Other cases Arti Sapru v. J&K, AIR 1981 SC 1777Arti Sapru v. J&K, AIR 1981 SC 1777 Allocation of 30 percent marks for the viva-voce Allocation of 30 percent marks for the viva-voce

for admission to the medical college was for admission to the medical college was excessive.excessive.

Lila Dhar v. Rajasthan, AIR 1981 SC 1777 Lila Dhar v. Rajasthan, AIR 1981 SC 1777 Where 25% of the marks were allotted for Where 25% of the marks were allotted for

interview for the selection of munsifs in the interview for the selection of munsifs in the Rajasthan Judicial Service it was held that the Rajasthan Judicial Service it was held that the selection were not illegalselection were not illegal

D.V.Bakshi v. Union of India, (1993) 3 SCC 662D.V.Bakshi v. Union of India, (1993) 3 SCC 662 The test evolved in the case of Ajay Hasia cannot The test evolved in the case of Ajay Hasia cannot

be applied in every case and particularly in be applied in every case and particularly in selection of professionals. selection of professionals.

No fixed limit can be laid down and much would No fixed limit can be laid down and much would depend on the nature of performance expected depend on the nature of performance expected by a candidate.by a candidate.

Problem 3Problem 3 Section 302. Punishment for Section 302. Punishment for

murder-Whoever commits murder murder-Whoever commits murder shall be punished with death, or shall be punished with death, or imprisonment for life, and shall also imprisonment for life, and shall also be liable to fine.be liable to fine.

Section 303. Punishment for Section 303. Punishment for murder by life convict-murder by life convict-

Whoever, Whoever, being under sentence of being under sentence of imprisonment for lifeimprisonment for life, commits , commits murder, shall be punished with murder, shall be punished with death.death.

IssuesIssues Is there a valid basis for classifying persons Is there a valid basis for classifying persons

who commit murders whilst they are under the who commit murders whilst they are under the sentence of life imprisonment, separately from sentence of life imprisonment, separately from those who commit murders whilst they are not those who commit murders whilst they are not under the sentence of life imprisonment, for under the sentence of life imprisonment, for the purpose of making the sentence of death the purpose of making the sentence of death obligatory in the case of the former and obligatory in the case of the former and optional in the case of the latter?optional in the case of the latter?

Is there any nexus between such Is there any nexus between such discrimination and the object of the impugned discrimination and the object of the impugned statute? statute?

IssuesIssues Is a law which provides for the sentence of Is a law which provides for the sentence of

death for the offence of murder, without death for the offence of murder, without affording to the accused an opportunity to show affording to the accused an opportunity to show cause why that sentence should not be imposed, cause why that sentence should not be imposed, just and fair ? just and fair ?

Secondly, is such a law just and fair if, in the Secondly, is such a law just and fair if, in the very nature of things, it does not require the very nature of things, it does not require the Court to state the reasons why the supreme Court to state the reasons why the supreme penalty of law is called for ?penalty of law is called for ?

Is it not arbitrary to provide that whatever may Is it not arbitrary to provide that whatever may be the circumstances in which the offence of be the circumstances in which the offence of murder was committed, the sentence of death murder was committed, the sentence of death shall be imposed upon the accused ?shall be imposed upon the accused ?

Mithu Singh v. State of Punjab, AIR 1983 SC Mithu Singh v. State of Punjab, AIR 1983 SC 473473

Supreme Court struck down Section 303 of Supreme Court struck down Section 303 of Indian Penal Code as unconstitutional.Indian Penal Code as unconstitutional.

Problem No. 3Problem No. 3 The discretion as to which sentence is to be The discretion as to which sentence is to be

awarded is to be exercised by the court s which awarded is to be exercised by the court s which will determine the matter on the nature of will determine the matter on the nature of offences committed by an accused.offences committed by an accused.

This judicial discretion is not available to a life This judicial discretion is not available to a life convict under section 303.convict under section 303.

Problem 4Problem 4

Special Bearer Bonds Act 1981Special Bearer Bonds Act 1981 Act "to Act "to provide for certain provide for certain

immunities to holders of Special immunities to holders of Special Bearer Bonds 1981Bearer Bonds 1981 and for certain and for certain exemptions from direct taxes in exemptions from direct taxes in relation to such Bonds and for relation to such Bonds and for matters connected therewith" .matters connected therewith" .

Preamble of the actPreamble of the act Whereas for effective economic and social Whereas for effective economic and social

planning it is necessary to canalize for planning it is necessary to canalize for productive purposes black money which productive purposes black money which has become a serious threat to the has become a serious threat to the national economy;national economy;

And whereas with a view to such And whereas with a view to such canalization the Central Government has canalization the Central Government has decided to issue at par certain bearer decided to issue at par certain bearer bonds to be known as the Special Bearer bonds to be known as the Special Bearer Bonds, 1991, of the face value of ten Bonds, 1991, of the face value of ten thousand rupees and redemption value, thousand rupees and redemption value, after ten years, of twelve thousand after ten years, of twelve thousand rupees;rupees;

And whereas it is expedient to And whereas it is expedient to provide for provide for certain immunities and exemptions to certain immunities and exemptions to render it possible for persons in render it possible for persons in possession of black money to invest the possession of black money to invest the same in the said Bondssame in the said Bonds: :

Section 3(1)Section 3(1) 3. (1) Notwithstanding anything contained in any other 3. (1) Notwithstanding anything contained in any other

law for the time being in force :-law for the time being in force :- (a) no person who has subscribed to or has otherwise (a) no person who has subscribed to or has otherwise

acquired Special Bearer Bonds acquired Special Bearer Bonds shall be required to shall be required to disclose, for any purpose whatsoever, the nature and disclose, for any purpose whatsoever, the nature and source of acquisition of such Bonds;source of acquisition of such Bonds;

(b) (b) no inquiry or investigation shall be commenced no inquiry or investigation shall be commenced against any personagainst any person under any such law on the ground under any such law on the ground that such person has subscribed to or has otherwise that such person has subscribed to or has otherwise acquired Special Bearer Bonds; andacquired Special Bearer Bonds; and

(c) the fact that (c) the fact that a person has subscribed to or has a person has subscribed to or has otherwise acquired Special Bearer Bonds shall not be otherwise acquired Special Bearer Bonds shall not be taken into account and shall be inadmissible as evidence taken into account and shall be inadmissible as evidence in any proceeding's relating to any offencein any proceeding's relating to any offence or the or the imposition of any penalty under any such law.imposition of any penalty under any such law.

(2) Nothing in sub-section (1) shall apply in relation to (2) Nothing in sub-section (1) shall apply in relation to prosecution for any offence punishable under Chap. IX prosecution for any offence punishable under Chap. IX or Chap. XVII of the Indian Penal Code, the Prevention or Chap. XVII of the Indian Penal Code, the Prevention of Corruption Act, 1947 or any offence which is of Corruption Act, 1947 or any offence which is punishable under any other law and which is similar to punishable under any other law and which is similar to an offence punishable under either of those Chapters or an offence punishable under either of those Chapters or under that Act or for the purpose of enforcement of any under that Act or for the purpose of enforcement of any civil liability.civil liability.

Problem 4Problem 4

S.3 of the act S.3 of the act granted certain immunities to a granted certain immunities to a person who had invested his unaccountable money person who had invested his unaccountable money in the special Bearer Bondsin the special Bearer Bonds..

They were They were not required to disclose the nature and not required to disclose the nature and

source of acquisitionsource of acquisition of the Special Bearer Bonds. of the Special Bearer Bonds.

It It prohibited the commencement of any enquiry or prohibited the commencement of any enquiry or investigationinvestigation against such a person. against such a person.

The constitutional validity of the Special The constitutional validity of the Special Bearer Bonds (Immunities & Exemptions) Bearer Bonds (Immunities & Exemptions) Ordinance 1981 and the Act which replaced Ordinance 1981 and the Act which replaced it was challenged on rational basis and was it was challenged on rational basis and was violative of Article 14 of the Constitution.violative of Article 14 of the Constitution.

R.K.Garg v. Union of India AIR R.K.Garg v. Union of India AIR 1981 SC 138 (Bearer Bond Case)1981 SC 138 (Bearer Bond Case)

Supreme Court he 4-1 majority upheld the Supreme Court he 4-1 majority upheld the validity of the Ordinance and the Act.validity of the Ordinance and the Act.

The object of the Act being to unearth black money for The object of the Act being to unearth black money for being utilised for productive purposes with a view to being utilised for productive purposes with a view to effective social and economic planning, effective social and economic planning, there has there has necessarily to be a classification between persons necessarily to be a classification between persons possessing black money and others and such possessing black money and others and such classification cannot be regarded as arbitrary or classification cannot be regarded as arbitrary or irrational.irrational.

There is a There is a practical and real classification made between practical and real classification made between persons having black money and persons not having such persons having black money and persons not having such money money and and this de facto classification is clearly based on this de facto classification is clearly based on intelligible differentialintelligible differential, having rational relation with the , having rational relation with the object of the Act. object of the Act.

The validity of a classification has to be judged with The validity of a classification has to be judged with reference to the object of the legislation and if that is reference to the object of the legislation and if that is done, there can be no doubt that the classification made done, there can be no doubt that the classification made by the Act is rational and intelligible and the operation by the Act is rational and intelligible and the operation of the provisions of the Act is rightly confined to persons of the provisions of the Act is rightly confined to persons in possession of black money.in possession of black money.


Observations of the SC on the object of the ActObservations of the SC on the object of the Act It was realised that all efforts to detect black It was realised that all efforts to detect black

money and to uncover it had failed and the money and to uncover it had failed and the problem of black money was an obstinate problem of black money was an obstinate economic issue which was defying solution and economic issue which was defying solution and the Act providing for issue of Special Bearer the Act providing for issue of Special Bearer Bonds was therefore enacted with a view to Bonds was therefore enacted with a view to mopping up black money and bringing it out in mopping up black money and bringing it out in the open, so that, instead of remaining the open, so that, instead of remaining concealed and idle, such money may become concealed and idle, such money may become available for augmenting the resources of the available for augmenting the resources of the State and being utilised for productive State and being utilised for productive purposes so as to promote effective social and purposes so as to promote effective social and economic planning.economic planning.


It cannot also be said that the Act is unconstitutional as it offends against morality by according to dishonest assesses who have evaded payment of tax, immunities and exemptions which It cannot also be said that the Act is unconstitutional as it offends against morality by according to dishonest assesses who have evaded payment of tax, immunities and exemptions which are denied to honest tax payers. There may be cases where the provisions of a statute may be so reeking with immorality that the legislation can be readily condemned as arbitrary or are denied to honest tax payers. There may be cases where the provisions of a statute may be so reeking with immorality that the legislation can be readily condemned as arbitrary or irrational and hence violative of Article 14. irrational and hence violative of Article 14.

Observation of Supreme Court on the ground of Observation of Supreme Court on the ground of IMMORALITY IMMORALITY

But the test in every such case would be not whether the But the test in every such case would be not whether the provisions of the statute offend against morality but provisions of the statute offend against morality but whether they are arbitrary and irrational having regard whether they are arbitrary and irrational having regard to all the facts and circumstances of the case. to all the facts and circumstances of the case.

Immorality by itself is not a ground of constitutional Immorality by itself is not a ground of constitutional challenge and it obviously cannot be.challenge and it obviously cannot be.

The provisions of the Act may seem to be putting The provisions of the Act may seem to be putting premium on dishonestly, and they may, not without premium on dishonestly, and they may, not without some justification, be accused of being tinged with some some justification, be accused of being tinged with some immorality, but howsoever regrettable or unfortunate it immorality, but howsoever regrettable or unfortunate it may be, they had to be enacted by the legislature in may be, they had to be enacted by the legislature in order to bring out black money in the open and canalise order to bring out black money in the open and canalise it for productive purposes.it for productive purposes.

Special Court & Special Special Court & Special ProcedureProcedure

Article 246(2) empowers the Article 246(2) empowers the Parliament by law to set up Special Parliament by law to set up Special Courts and to provide special Courts and to provide special procedure for the trial of certain procedure for the trial of certain ‘offences’ or ‘certain class of offences’.‘offences’ or ‘certain class of offences’.

Such a law will not be violative of Such a law will not be violative of Article 14.Article 14.

But the special procedure prescribed But the special procedure prescribed by such a law should not be by such a law should not be substantially different from the substantially different from the procedure prescribed under an procedure prescribed under an ordinary law.ordinary law.

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

The Constitutional Validity of S.5 (1) of The Constitutional Validity of S.5 (1) of the West Bengal Special Courts Act 1850 the West Bengal Special Courts Act 1850 was challenged.was challenged.

Section 5Section 5:-:- "5 (1) a Special Court shall try such "5 (1) a Special Court shall try such

offences or classes of offences or cases offences or classes of offences or cases or classes of cases, as the State or classes of cases, as the State Government may by general or special Government may by general or special order in writing, direct.”order in writing, direct.”

Object of the ActObject of the Act ““To provide for the speedier trial of To provide for the speedier trial of

certain offences”.certain offences”.

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

Facts Facts The respondent and 49 other persons were The respondent and 49 other persons were

charged with various offences alleged to have charged with various offences alleged to have been committed by them in the course of been committed by them in the course of their raid as an armed gang on a certain their raid as an armed gang on a certain factory known as the Jessup factory at Dum factory known as the Jessup factory at Dum Dum.Dum.

Governor of West Bengal by a notification Governor of West Bengal by a notification dated 26-1-1950 in exercise of the powers dated 26-1-1950 in exercise of the powers conferred by S. 5(1) of the Act sent the cases conferred by S. 5(1) of the Act sent the cases for trial to the Special Court.for trial to the Special Court.

They were convicted and sentenced to They were convicted and sentenced to varying terms of imprisonment.varying terms of imprisonment.

State of West Bengal v. Anwar Ali AIR State of West Bengal v. Anwar Ali AIR 1952 SC 751952 SC 75

Respondent applied to the High Court under Art. Respondent applied to the High Court under Art. 226 of the Constitution for the issue of a 226 of the Constitution for the issue of a writ of writ of certiorari certiorari quashing the conviction and sentence quashing the conviction and sentence on the ground that the Special Court had no on the ground that the Special Court had no jurisdiction to try the case inasmuch as S. 5(1), jurisdiction to try the case inasmuch as S. 5(1), under which it was sent to the Court for trial was under which it was sent to the Court for trial was unconstitutional and void under Art. 13(2) as it unconstitutional and void under Art. 13(2) as it denied to the respondent the equal protection of denied to the respondent the equal protection of the laws enjoined by Art. 14.the laws enjoined by Art. 14.

The High Court by a Full Bench consisting of the The High Court by a Full Bench consisting of the Chief Justice and four other Judges Chief Justice and four other Judges quashed the quashed the conviction conviction and directed the trial of the respondent and directed the trial of the respondent and the other accused persons according to law. and the other accused persons according to law.

Hence the appeal.Hence the appeal.

State of West Bengal v. Anwar Ali AIR State of West Bengal v. Anwar Ali AIR 1952 SC 751952 SC 75

Supreme Court held:-Supreme Court held:-

S.5 (1) of the act contravened Article 14 and was S.5 (1) of the act contravened Article 14 and was void.void.

It It conferred arbitrary power on the government conferred arbitrary power on the government to to classify offences or cases at its pleasure. classify offences or cases at its pleasure.

The Act did The Act did not lay down any policy or guidelines not lay down any policy or guidelines for the exercise of discretion to classify cases or for the exercise of discretion to classify cases or offences.offences.

The The procedure varied substantially procedure varied substantially from the from the procedure laid down for the trial of offences procedure laid down for the trial of offences generally by the Cr.P.C.generally by the Cr.P.C.

The The act did not lay down any basis for act did not lay down any basis for classification classification nor did it nor did it mention clearly what kinds mention clearly what kinds of cases were to be directed for trial by the of cases were to be directed for trial by the Special Courts.Special Courts.

It thus left it to It thus left it to the uncontrolled discretion of the the uncontrolled discretion of the State Government to direct any type of cases State Government to direct any type of cases which it liked to the tried by the Special Court.which it liked to the tried by the Special Court.

Kathi Ranning v. State of Saurashtra AIR Kathi Ranning v. State of Saurashtra AIR 1952 SC 751952 SC 75

Facts:-Facts:- Appellant Kathi Raning Rawat, who has been Appellant Kathi Raning Rawat, who has been

convicted under Ss. 302, 307 and 392 read convicted under Ss. 302, 307 and 392 read with sec. 34 of the Indian Penal Code and with sec. 34 of the Indian Penal Code and sentenced to death and of seven years' R. I., sentenced to death and of seven years' R. I., the sentences to run concurrently.the sentences to run concurrently.

The The appellant was tried by a special Court appellant was tried by a special Court constituted under the Saurashtra State Public constituted under the Saurashtra State Public Safety MeasuresSafety Measures (Third Amendment) (Third Amendment) Ordinance 1949 (Ord. No. 66 of 1949). Ordinance 1949 (Ord. No. 66 of 1949).

His conviction and sentences were upheld on His conviction and sentences were upheld on appeal by the State High Court.appeal by the State High Court.

He has preferred an appeal to this Court He has preferred an appeal to this Court against the decision of the High Court. against the decision of the High Court.

The act referred to four distinct categories of The act referred to four distinct categories of ‘offences’ or cases which could be directed by ‘offences’ or cases which could be directed by the Government to be tried by the Special the Government to be tried by the Special Courts established under Ordinance.Courts established under Ordinance.

Kathi Ranning v. State of Kathi Ranning v. State of Saurashtra AIR 1952 SC 75Saurashtra AIR 1952 SC 75

Supreme Court heldSupreme Court held:-:- The act is not violative of Article 14.The act is not violative of Article 14. The act laid down proper guidelines for The act laid down proper guidelines for

the exercise of discretion by the the exercise of discretion by the executive to refer cases to Special Courts executive to refer cases to Special Courts for trial.for trial.

The object as mentioned in the The object as mentioned in the ordinance was to provide for “public ordinance was to provide for “public safety, public order, and preservation of safety, public order, and preservation of peace and tranquility” in the State of peace and tranquility” in the State of Saurashtra.Saurashtra.

Difference between Anwar Ali & Kathi Difference between Anwar Ali & Kathi RanningRanning

The main distinction between the West Bengal The main distinction between the West Bengal case and the Saurashtra Ordinance was that case and the Saurashtra Ordinance was that while in while in Anwar Ali case there was no principle Anwar Ali case there was no principle to be found to control the application of to be found to control the application of discriminatory provisions or to correlate these discriminatory provisions or to correlate these provisions to some reasonable, tangible provisions to some reasonable, tangible objectiveobjective; ;

the latter (Kathi Ranning) the latter (Kathi Ranning) clearly laid down clearly laid down the guiding principlethe guiding principle, that is, , that is, to provide for to provide for public safety, maintenance of public order and public safety, maintenance of public order and preservation of peace and tranquility on Statepreservation of peace and tranquility on State. .

The mere mention of the speedier trial as the The mere mention of the speedier trial as the object in the West Bengal Act did not cure the object in the West Bengal Act did not cure the defect, because the expression afforded no defect, because the expression afforded no help in determining what cases require help in determining what cases require speedier trial.speedier trial.

The main objection to the West Bengal Act was that The main objection to the West Bengal Act was that it permitted it permitted discrimination "without reason" or without any rational basis.discrimination "without reason" or without any rational basis. Having laid down a Having laid down a procedure which was materially different procedure which was materially different from and less advantageous to the accused than the ordinary from and less advantageous to the accused than the ordinary procedureprocedure, that , that Act gave uncontrolled and unguided authority Act gave uncontrolled and unguided authority to the State Government to the State Government to put that procedure into operation in to put that procedure into operation in the trial of any case or class of cases or any offence or class of the trial of any case or class of cases or any offence or class of offences. There was offences. There was no principle to be found in that Act to no principle to be found in that Act to control the application of the discriminatory provisions or to control the application of the discriminatory provisions or to correlate those provisions to some tangible and rational correlate those provisions to some tangible and rational objectiveobjective, in such a way as to enable anyone reading the Act to , in such a way as to enable anyone reading the Act to say: - If that is the objective, the provisions as to special say: - If that is the objective, the provisions as to special treatment of the offences seem to be quite suitable and there treatment of the offences seem to be quite suitable and there can be no objection to dealing with a particular type of offences can be no objection to dealing with a particular type of offences on a special footing. on a special footing. The mere mention of speedier trial as the The mere mention of speedier trial as the object of the Act did not cure the defect, because the expression object of the Act did not cure the defect, because the expression "speedier trial" standing by itself provided no rational basis of "speedier trial" standing by itself provided no rational basis of classification. classification. It was merely a description of the result sought to It was merely a description of the result sought to be achieved by the application of the special procedure laid be achieved by the application of the special procedure laid down in the Act and afforded no help in determining what cases down in the Act and afforded no help in determining what cases required speedier trial. required speedier trial.

20 As regards the present Ordinance, we can discover a guiding 20 As regards the present Ordinance, we can discover a guiding principle within its four corners, which cannot but have the effect of principle within its four corners, which cannot but have the effect of limiting the application of the special procedure to a particular limiting the application of the special procedure to a particular category of offences only and establish such a nexus (which was category of offences only and establish such a nexus (which was missing in the West Bengal Act) between offences of a particular missing in the West Bengal Act) between offences of a particular category and the object with which the Ordinance was promulgated, category and the object with which the Ordinance was promulgated, as should suffice to repel the charge of discrimination and furnish as should suffice to repel the charge of discrimination and furnish some justification for the special treatment of those offences. The some justification for the special treatment of those offences. The Ordinance, as I have already stated, purported to amend another Ordinance, as I have already stated, purported to amend another Ordinance, the object of which was to provide for public safety, Ordinance, the object of which was to provide for public safety, maintenance of public order and preservation of peace and maintenance of public order and preservation of peace and tranquility in the State. It was not disputed before us that the tranquility in the State. It was not disputed before us that the preamble of the original Ordinance would govern the amending preamble of the original Ordinance would govern the amending Ordinance also, and the object of promulgating the subsequent Ordinance also, and the object of promulgating the subsequent Ordinance was the same as the object of promulgating the original Ordinance was the same as the object of promulgating the original Ordinance. Once this is appreciated, it is easy to see that there is Ordinance. Once this is appreciated, it is easy to see that there is something in the Ordinance itself to guide the State Government to something in the Ordinance itself to guide the State Government to apply the special procedure not to any and every case but only 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 those cases or offences which have a rational relation to or connection with the main object and purpose of the Ordinance and connection with the main object and purpose of the Ordinance and which for that reason become a class by themselves requiring to be which for that reason become a class by themselves requiring to be dealt with on a special footingdealt with on a special footing

The clear recital of a definite objective furnishes a tangible and rational basis of 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 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, Ordinance and for choosing only such offences or cases as affect public safety, maintenance of public order and preservation of peace and tranquility. Thus, u/s. 11, the maintenance of public order and preservation of peace and tranquility. Thus, u/s. 11, the State Government is expected to select only such offences or class of offences or class of 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 cases for being tried by the special Court in accordance with the special procedure, as are calculated to effect public safety, maintenance of public order, etc., and u/s. 9, the use of calculated to effect public safety, maintenance of public order, etc., and u/s. 9, the use of the special procedure must necessarily be confined to only disturbed areas or those areas 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 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 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 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 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 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 one can see at once that all these offences directly affect the maintenance of public order and peace and tranquility. The Notification also specifies certain areas in the State over and peace and tranquility. The Notification also specifies certain areas in the State over which only the special Court is to exercise jurisdiction. There can be no dispute that if the which only the special Court is to exercise jurisdiction. There can be no dispute that if the State Legislature finds that lawlessness and crime are rampant and there is a direct State Legislature finds that lawlessness and crime are rampant and there is a direct threat to peace and tranquility in certain areas within the State, it is competent to deal threat to peace and tranquility 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 with offences which affect the maintenance of public order and preservation of peace and tranquility in those areas as a class by themselves and to provide that such offences shall tranquility 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 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 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 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 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, 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 Art. 14 of the even when abnormal conditions prevail, will amount to a violation of Art. 14 of the Constitution. I am satisfied that this case is distinguishable from the case relating to 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 legislature should have recourse to legislation West Bengal Act, but I also feel that the legislature should have recourse to legislation such as the present only in very special circumstances. The question of referring 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 individual cases to the special Court does not arise in this appeal, and I do not wish to express any opinion on it.express any opinion on it.

In re the Special Courts In re the Special Courts Bill, 1978Bill, 1978

Whether the Special Courts Bill, 1978 Whether the Special Courts Bill, 1978 proposing to set up special courts for proposing to set up special courts for the speedy trial of offences the speedy trial of offences committed by the holders of high committed by the holders of high public offices during the emergency public offices during the emergency of 1975-1977 is constitutionally valid.of 1975-1977 is constitutionally valid.

Contention- In view of exhaustive Contention- In view of exhaustive provisions in Chapter IV, Part V, provisions in Chapter IV, Part V, regarding Judiciary, Parliament had regarding Judiciary, Parliament had no power to set up special courts.no power to set up special courts.

In re the Special Courts In re the Special Courts Bill, 1978Bill, 1978 S.C held:-S.C held:-

Parliament had legislative competence Parliament had legislative competence to enact the law under Entries II-A of to enact the law under Entries II-A of List III and Entry 77 of List I.List III and Entry 77 of List I.

It also ruled that the It also ruled that the classification made classification made by the Bill was validby the Bill was valid and it did not and it did not infringe Article 14 as it infringe Article 14 as it classified both classified both “offence” and class of offenders“offence” and class of offenders, the , the former in relation to the periodformer in relation to the period, and in , and in relation to objective that it was relation to objective that it was imperative to decide such cases speedily imperative to decide such cases speedily and the and the latter in relation to their statuslatter in relation to their status i.e., holders of high public offices. i.e., holders of high public offices.


It was only when both these It was only when both these conditions existed the prosecution conditions existed the prosecution could be committed during the period could be committed during the period of emergency constitute a ‘class’ by of emergency constitute a ‘class’ by themselves and so do the persons who themselves and so do the persons who have utilized the high public offices have utilized the high public offices by them as a cover or opportunity for by them as a cover or opportunity for the purpose of committing those the purpose of committing those “offences”. Thus there was a close “offences”. Thus there was a close relationship between the basis of relationship between the basis of classification and the object of classification and the object of (speedier trial) of the Bill.(speedier trial) of the Bill.


The court also held that apart The court also held that apart from the requirement of Article from the requirement of Article 14 the law must also satisfy the 14 the law must also satisfy the requirements of Article 21 which requirements of Article 21 which requires that the procedure requires that the procedure provided for the trial of such provided for the trial of such offenders must be fair, just and offenders must be fair, just and reasonable.reasonable.


The court found three procedural defects in The court found three procedural defects in the billthe bill

FirstlyFirstly, there was no provision in the bill for , there was no provision in the bill for the transfer of cases from one special court to the transfer of cases from one special court to another,another,

SecondlySecondly, the Bill empowered the Government , the Bill empowered the Government to appoint retired High Court Judges to to appoint retired High Court Judges to preside over a special court.preside over a special court.

ThirdlyThirdly, the judges were appointed by the , the judges were appointed by the Government only with the “consultation” of Government only with the “consultation” of the Chief Justice of India and not by the Chief Justice of India and not by “concurrence”. “concurrence”.

Since all the three procedural amendments Since all the three procedural amendments were acceptable to the Government the court were acceptable to the Government the court held that the Bill was constitutional.held that the Bill was constitutional.

Chiranjit Lal v. Union of India AIR 1961 Chiranjit Lal v. Union of India AIR 1961 SC 41SC 41

Facts Facts Due to mismanagement in Sholapur Due to mismanagement in Sholapur

Spinning and Weaving Company Limited, Spinning and Weaving Company Limited, the management threatened to close the management threatened to close down the mill. down the mill.

The Government of India passed the The Government of India passed the Sholapur Spinning and Weaving Co. Sholapur Spinning and Weaving Co. (Emergency Provisions) Act(Emergency Provisions) Act

The act empowers the Government to The act empowers the Government to take over the control and management of take over the control and management of the company and its properties by the company and its properties by appointing their own directors.appointing their own directors.

The act was challenged by a shareholder The act was challenged by a shareholder of the company.of the company.

Chiranjit Lal v. Union of India AIR Chiranjit Lal v. Union of India AIR 1961 SC 411961 SC 41

Petitioners Contention Petitioners Contention A single company and its shareholder A single company and its shareholder

was being denied equality before the was being denied equality before the law, because the Act treated them law, because the Act treated them differently vis-à-vis other companies differently vis-à-vis other companies and their shareholders. and their shareholders.

Law had selected one particular Law had selected one particular company and its shareholders and had company and its shareholders and had taken away from them the right to taken away from them the right to manage their own affairs but the same manage their own affairs but the same treatment had not been meted out to treatment had not been meted out to all other companies or shareholders in all other companies or shareholders in an identical manner.an identical manner.


The Supreme Court held thatThe Supreme Court held that The Act is valid. The Act is valid. A law may be constitutional even though A law may be constitutional even though

it applies to a single individuals it applies to a single individuals if, on if, on account of some special circumstances or account of some special circumstances or reasons applicable to him and not reasons applicable to him and not applicable to others, that single applicable to others, that single individual may be treated as a class itself, individual may be treated as a class itself, unless it is shown that there are others unless it is shown that there are others who are similarly circumstanced. who are similarly circumstanced.

The presumptions is always in the favour The presumptions is always in the favour of the enactment and the burden is on the of the enactment and the burden is on the petitioner who attacks the validity of the petitioner who attacks the validity of the legislation to place all materials before legislation to place all materials before the court which would show that the the court which would show that the selection is arbitrary and unreasonable.selection is arbitrary and unreasonable.


In the present case Sholapur company In the present case Sholapur company formed a class by itself because the formed a class by itself because the mismanagement of the company’s mismanagement of the company’s affairs prejudicially affected the affairs prejudicially affected the production of an essential commodity production of an essential commodity and had caused a serious and had caused a serious unemployment amongst labourers.unemployment amongst labourers.


Mukherjee,J., observed, “We should bear in Mukherjee,J., observed, “We should bear in mind that a corporation, which is engaged in mind that a corporation, which is engaged in production of a commodity vitally essential to production of a commodity vitally essential to the community, has a social character of its the community, has a social character of its own and it must not be regarded as the concern own and it must not be regarded as the concern primarily or only of those who invest their primarily or only of those who invest their money in it. If its productions are large and it money in it. If its productions are large and it had a prosperous and useful carrier for a long had a prosperous and useful carrier for a long period of time and is about to collapse not for period of time and is about to collapse not for any economic reason but through sheer any economic reason but through sheer perversity of the controlling, one cannot say perversity of the controlling, one cannot say that the legislature has no authority to treat it that the legislature has no authority to treat it as a class by itself and make special legislation as a class by itself and make special legislation applicable to it alone in the interest of the applicable to it alone in the interest of the community at large.”community at large.”

Ammeerunnisa Begum v. Ammeerunnisa Begum v. Mahboob AIR 1953 SC 91Mahboob AIR 1953 SC 91

Facts Facts On the death of the Nawab of Hyderabad On the death of the Nawab of Hyderabad

a dispute between two rival parties a dispute between two rival parties regarding succession to his property regarding succession to his property arose which resulted in protracted arose which resulted in protracted litigation. litigation.

In order to put an end to this long-In order to put an end to this long-standing litigation the Hyderabad standing litigation the Hyderabad legislature passed the Wali-ud-Dowla legislature passed the Wali-ud-Dowla Succession Act, 1950.Succession Act, 1950.

By this Act the claims of one party, i.e., By this Act the claims of one party, i.e., two ladies were dismissed and the two ladies were dismissed and the property was adjudged to the other party.property was adjudged to the other party.


The act was challenged on the ground The act was challenged on the ground that that

It deprived the petitioners the right to It deprived the petitioners the right to enforce their claims in a court of lawenforce their claims in a court of law and thus discriminated them from the and thus discriminated them from the rest of the community in respect of a rest of the community in respect of a valuable right which the law secures to valuable right which the law secures to all.all.

The Government justified the The Government justified the classification mainly on the ground classification mainly on the ground that the Act was passed that the Act was passed to put an end to put an end to a long standing litigationto a long standing litigation..


Supreme Court held that-Supreme Court held that- The Act unconstitutional on the ground that The Act unconstitutional on the ground that

it it did not furnish any reasonable ground for did not furnish any reasonable ground for the discrimination made by it. the discrimination made by it.

The court said that the continuance of a The court said that the continuance of a dispute even for a long time between two sets dispute even for a long time between two sets of rival claimants to the property of a private of rival claimants to the property of a private person is not such an unusual circumstances person is not such an unusual circumstances by itself justifying its differentiation from all by itself justifying its differentiation from all other cases of succession disputes. other cases of succession disputes.

The exceptional circumstances which were The exceptional circumstances which were present in the Chiranjit Lal’s case were not present in the Chiranjit Lal’s case were not present in this case.present in this case.

Where the law affects the community as a Where the law affects the community as a whole the court will assume the existence of whole the court will assume the existence of some reasonable ground for sustaining the some reasonable ground for sustaining the classification made by it.classification made by it.

P. Venugopal Vs. UOI-P. Venugopal Vs. UOI-(2008)5SCC1 (2008)5SCC1

Sub-section (1A) with its proviso added to Section 11 Sub-section (1A) with its proviso added to Section 11 of the AIIMS (Amendment) Act, 2007 reads as of the AIIMS (Amendment) Act, 2007 reads as follows:follows:

((1A) - The Director shall hold office for a term 1A) - The Director shall hold office for a term of five years from the date on which he enters of five years from the date on which he enters upon his office or until he attains the age of upon his office or until he attains the age of sixty-five years, whichever is earlier.sixty-five years, whichever is earlier.

Provided that any person holding office as a Provided that any person holding office as a Director immediately before the Director immediately before the commencement of the All India Institute of commencement of the All India Institute of Medical Sciences and the Post-Graduate Medical Sciences and the Post-Graduate Institute of Medical Education and Research Institute of Medical Education and Research (Amendment) Act, 2007, shall in so far as his (Amendment) Act, 2007, shall in so far as his appointment is inconsistent with the provisions appointment is inconsistent with the provisions of this sub-section, cease to hold office on such of this sub-section, cease to hold office on such commencement as such Director and shall be commencement as such Director and shall be entitled to claim compensation not exceeding entitled to claim compensation not exceeding three months' pay and allowances for the three months' pay and allowances for the premature termination of his office or of any premature termination of his office or of any contract of service....contract of service....

P. Venugopal Vs. UOI-P. Venugopal Vs. UOI-(2008)5SCC1 (2008)5SCC1 Under Article 32 Dr.P.Venugopal , a renowned and Under Article 32 Dr.P.Venugopal , a renowned and

internationally famed Cardio Vascular Surgeon, calls internationally famed Cardio Vascular Surgeon, calls in question the constitutional validity of the proviso in question the constitutional validity of the proviso to Sub-section (1A) of Section 11 of the All India to Sub-section (1A) of Section 11 of the All India Institute of Medical Sciences (Amendment) Act, Institute of Medical Sciences (Amendment) Act, 2007.2007.

Petitioner was the Director of All India Institute of Petitioner was the Director of All India Institute of Medical Sciences (in short the "AIIMS") immediately Medical Sciences (in short the "AIIMS") immediately prior to the commencement of the added provisions.prior to the commencement of the added provisions.

By virtue of the legislative command contained in the By virtue of the legislative command contained in the added provision he had been made to demit his office added provision he had been made to demit his office as Director of the said Institute from the date of as Director of the said Institute from the date of coming into force of this added provision.coming into force of this added provision.

Petitioner was to complete his five-year term in the Petitioner was to complete his five-year term in the Office of the Director on Office of the Director on 2nd of July, 20082nd of July, 2008, , but due to but due to this added provision in the Act, had to suffer a pre-this added provision in the Act, had to suffer a pre-mature termination and consequent removal from mature termination and consequent removal from the office of the Director on 30th of November, 2007. the office of the Director on 30th of November, 2007.

It is alleged that this adverse affectation has been It is alleged that this adverse affectation has been brought about directly by the added provision.brought about directly by the added provision.

P. Venugopal Vs. UOI-P. Venugopal Vs. UOI-(2008)5SCC1 (2008)5SCC1 The petitioner has challenged its constitutional The petitioner has challenged its constitutional

validity mainly on the following grounds: validity mainly on the following grounds: (i) The proviso is patently a (i) The proviso is patently a SINGLE-MAN SINGLE-MAN

LEGISLATIONLEGISLATION and and intended to affect the writ intended to affect the writ petitioner onlypetitioner only and none else thus introduces a and none else thus introduces a "naked discrimination""naked discrimination" to deprive the writ to deprive the writ petitioner of the constitutional protection petitioner of the constitutional protection under Article 14 of the Constitution.under Article 14 of the Constitution.

(ii) The writ petitioner has been (ii) The writ petitioner has been singled out to singled out to be deprived of the two protective conditions be deprived of the two protective conditions in in respect of curtailment of his tenure. respect of curtailment of his tenure.

The The benefit of notice benefit of notice and and justifiable reasons justifiable reasons being the two such conditions will continue to being the two such conditions will continue to be available to all future Directors but the be available to all future Directors but the proviso makes them non-available to the writ proviso makes them non-available to the writ petitioner being the Director presently in office petitioner being the Director presently in office and requires him to move out of the office and requires him to move out of the office under the legislative command.under the legislative command.


(iii) In the facts and circumstances of the (iii) In the facts and circumstances of the case and in view of the pending proceedings case and in view of the pending proceedings with different orders passed therein, with different orders passed therein, such such calculated steps to force the writ petitioner calculated steps to force the writ petitioner out of his office offend the constitutional out of his office offend the constitutional scheme envisaging fair, reasonable and scheme envisaging fair, reasonable and equal treatment on the part of the State in equal treatment on the part of the State in its dealing with the individual in general its dealing with the individual in general and with people in public employment in and with people in public employment in particular.particular.

(iv) The (iv) The writ petitioner claims the protection writ petitioner claims the protection of Articles 14 and 16 of Articles 14 and 16 of the Constitution of of the Constitution of India.India.


Supreme Court held:-Supreme Court held:- Section 11A of the AIIMS Act is hit by Article Section 11A of the AIIMS Act is hit by Article

14 of the Constitution. 14 of the Constitution. Accordingly, we hold that the proviso is ultra Accordingly, we hold that the proviso is ultra

vires and unconstitutional and accordingly it vires and unconstitutional and accordingly it is struck down. is struck down.

Such an impermissible over classification Such an impermissible over classification through a one man legislation clearly falls through a one man legislation clearly falls foul of Article foul of Article 1414 of the Constitution being an of the Constitution being an apparent case of "naked discrimination" in apparent case of "naked discrimination" in our democratic civilized society governed by our democratic civilized society governed by Rule of Law and renders the impugned Rule of Law and renders the impugned proviso as void, ab initio and proviso as void, ab initio and unconstitutional.unconstitutional.

P. Venugopal Vs. UOI-P. Venugopal Vs. UOI-(2008)5SCC1 (2008)5SCC1 We are of the view that this writ petition is covered by We are of the view that this writ petition is covered by

the decisions of this Court in the case of D.S. Reddy and the decisions of this Court in the case of D.S. Reddy and L.P. Agarwal and the impugned proviso to Section 11A of L.P. Agarwal and the impugned proviso to Section 11A of the AIIMS Act is, therefore, hit by Article the AIIMS Act is, therefore, hit by Article 1414 of the of the Constitution. Accordingly, we hold that the proviso is Constitution. Accordingly, we hold that the proviso is ultra vires and unconstitutional and accordingly it is ultra vires and unconstitutional and accordingly it is struck down. struck down.

The writ petition under Article The writ petition under Article 3232 of the Constitution is of the Constitution is allowed. allowed.

In view of our order passed in the writ petition, the writ In view of our order passed in the writ petition, the writ petitioner shall serve the nation for some more period, petitioner shall serve the nation for some more period, i.e., upto 2i.e., upto 2ndnd of July, 2008. of July, 2008.

We direct the AIIMS Authorities to restore the writ We direct the AIIMS Authorities to restore the writ petitioner in his office as Director of AIIMS till his petitioner in his office as Director of AIIMS till his period comes to an end on 2period comes to an end on 2ndnd of July, 2008. of July, 2008.

The writ petitioner is also entitled to his pay and other The writ petitioner is also entitled to his pay and other emoluments as he was getting before premature emoluments as he was getting before premature termination of his office from the date of his order of termination of his office from the date of his order of termination.termination.


Ratio DecidendiRatio Decidendi ““If a legislative provision is enacted If a legislative provision is enacted

intending to remove one person form the intending to remove one person form the tenure post he is holding without tenure post he is holding without compliance of natural justice and compliance of natural justice and justifiable reasons, such a provision is justifiable reasons, such a provision is discriminatory and classifying one single discriminatory and classifying one single person to the exclusion of others is person to the exclusion of others is impermissible classification without any impermissible classification without any intelligible differentia which is void ab intelligible differentia which is void ab initio and unconstitutional.”initio and unconstitutional.”

P. Venugopal Vs. UOI-P. Venugopal Vs. UOI-(2008)5SCC1 (2008)5SCC1 The principle of law stipulated by this Court that curtailment of the term of five years can only be made for The principle of law stipulated by this Court that curtailment of the term of five years can only be made for

justifiable reasons and compliance with principles of natural justice for premature termination of the term of a justifiable reasons and compliance with principles of natural justice for premature termination of the term of a Director of AIIMS - squarely applied also to the case of the writ petitioner as well and will also apply to any future Director of AIIMS - squarely applied also to the case of the writ petitioner as well and will also apply to any future Director of AIIMS. Director of AIIMS.

Thus there was never any permissibility for any artificial and impermissible classification between the writ Thus there was never any permissibility for any artificial and impermissible classification between the writ petitioner on the one hand and any future Director of AIIMS on the other when it relates to the premature petitioner on the one hand and any future Director of AIIMS on the other when it relates to the premature termination of the term of office of the Director. termination of the term of office of the Director.

GROUNDS OF CHALLENGEGROUNDS OF CHALLENGE The The procedure adopted by the DoT for the Grant of UAS procedure adopted by the DoT for the Grant of UAS

Licences to the private respondents was arbitrary, illegal Licences to the private respondents was arbitrary, illegal and in complete violation of Article 14 of the Constitutionand in complete violation of Article 14 of the Constitution. .

DoT violated the recommendations made by TRAI DoT violated the recommendations made by TRAI that that there should be no cap on the number of Access Service there should be no cap on the number of Access Service Providers in any service area and this was in complete Providers in any service area and this was in complete violation of Section 11(1) of the 1997 Act. violation of Section 11(1) of the 1997 Act.

The petitioners have The petitioners have relied upon the report of the relied upon the report of the Comptroller and Auditor General (CAG) Comptroller and Auditor General (CAG) and pleaded that and pleaded that the consideration of large number of ineligible applicants the consideration of large number of ineligible applicants and grant of licenses to them is ex facie illegal and and grant of licenses to them is ex facie illegal and arbitrary. arbitrary.

The The entire method adopted by the DoT for grant of licence is entire method adopted by the DoT for grant of licence is flawedflawed because the recommendations made by TRAI for grant because the recommendations made by TRAI for grant of licences at the entry fee determined in 2001 was wholly of licences at the entry fee determined in 2001 was wholly arbitrary, unconstitutional and contrary to public interest. arbitrary, unconstitutional and contrary to public interest.

Centre For P.I.L. & Ors. vs Union Of Centre For P.I.L. & Ors. vs Union Of India & Ors., India & Ors.,

2 February, 20122 February, 2012

GROUNDS OF GROUNDS OF CHALLENGECHALLENGE

While deciding to grant licenses, which are While deciding to grant licenses, which are bundled with spectrum, at the price fixed in 2001 bundled with spectrum, at the price fixed in 2001 the the DoT did not bother to consult the Finance DoT did not bother to consult the Finance MinistryMinistry and, thereby, violated the mandate of and, thereby, violated the mandate of the decision taken by the Council of Ministers in the decision taken by the Council of Ministers in 2003. 2003.

The The principle of first-come-first-served is by itself principle of first-come-first-served is by itself violative of Article 14 violative of Article 14 of the Constitution and in of the Constitution and in any case distortion thereof by the Minister of any case distortion thereof by the Minister of C&IT and the consequential grant of C&IT and the consequential grant of licenses is liable to be annulled. licenses is liable to be annulled.

Another ground taken by the petitioners is that Another ground taken by the petitioners is that even though a number of licensees failed to fulfill even though a number of licensees failed to fulfill the roll out obligations and violated conditions of the roll out obligations and violated conditions of the license, the the license, the Government of India did not take Government of India did not take any action to cancel the licenses.any action to cancel the licenses.

COUNTER AFFIDAVITS OF THE COUNTER AFFIDAVITS OF THE RESPONDENTSRESPONDENTS

(i) The (i) The petitioners are not entitled to challenge the petitioners are not entitled to challenge the recommendations made by TRAI and the policy recommendations made by TRAI and the policy decisions decisions taken by the Government for grant of taken by the Government for grant of UAS Licenses.UAS Licenses.

(ii) The (ii) The Court cannot review and nullify the Court cannot review and nullify the recommendations made by TRAIrecommendations made by TRAI in the matter of in the matter of allocation of spectrum in 800, 900 and 1800 MHz allocation of spectrum in 800, 900 and 1800 MHz bands at the rates fixed in 2001. bands at the rates fixed in 2001.

(iii) The (iii) The report prepared by the CAG cannot be report prepared by the CAG cannot be relied upon relied upon for the purpose of recording a finding for the purpose of recording a finding that the procedure adopted for the grant of UAS that the procedure adopted for the grant of UAS Licences is contrary to Article 14 of the Licences is contrary to Article 14 of the Constitution. The private respondents have also Constitution. The private respondents have also claimed that the observations made by the CAG and claimed that the observations made by the CAG and the conclusions recorded by him are seriously the conclusions recorded by him are seriously flawed and are based on totally unfounded flawed and are based on totally unfounded assumptions. assumptions.

COUNTER AFFIDAVITS OF THE COUNTER AFFIDAVITS OF THE RESPONDENTSRESPONDENTS

(iv) The (iv) The UAS Licences were given strictly in accordance UAS Licences were given strictly in accordance with the modified first-come-first-served policy. with the modified first-come-first-served policy. That the That the respondents were able to fulfil LoI conditions because respondents were able to fulfil LoI conditions because newspapers had already published stories about the newspapers had already published stories about the possible grant of licences in the month of January, 2008. possible grant of licences in the month of January, 2008.

(vi) That (vi) That private respondents have made huge private respondents have made huge investments investments for creating infrastructure to provide for creating infrastructure to provide services in different parts of the country and if the services in different parts of the country and if the licences granted to them are cancelled at this stage, licences granted to them are cancelled at this stage, public interest would be adversely affected.public interest would be adversely affected.

(vii) That the (vii) That the private respondents have been able to private respondents have been able to secure foreign direct investment of thousands of crores secure foreign direct investment of thousands of crores for providing better telecom services in remote areas of for providing better telecom services in remote areas of the country and any intervention by the Court would the country and any intervention by the Court would result in depriving the people living in those areas of result in depriving the people living in those areas of telecom services. telecom services.

(viii) The Government and TRAI have already initiated action for levy of penalty/liquidated damages for non-compliance of the roll out obligations and (viii) The Government and TRAI have already initiated action for levy of penalty/liquidated damages for non-compliance of the roll out obligations and violation of conditions of the license. That the licensees have not violated any conditions of the license and that the notices issued by TRAI alleging the same violation of conditions of the license. That the licensees have not violated any conditions of the license and that the notices issued by TRAI alleging the same have already been challenged before TDSAT and in most cases, interim orders have been passed. That the remedy, if any, available to the petitioners is to have already been challenged before TDSAT and in most cases, interim orders have been passed. That the remedy, if any, available to the petitioners is to approach the TDSAT.approach the TDSAT.

(ix) Some of the respondents have also questioned the application of the policy of first-come-first-served by asserting that even though they had applied in (ix) Some of the respondents have also questioned the application of the policy of first-come-first-served by asserting that even though they had applied in 2004 and 2006, and licences had been granted to them before 25.9.2007, the allocation of spectrum was delayed till 2008 and those who had applied in 2007 2004 and 2006, and licences had been granted to them before 25.9.2007, the allocation of spectrum was delayed till 2008 and those who had applied in 2007 were placed above them because they could fulfil the conditions of LoI in terms of the distorted version of the policy first-come-first-served. were placed above them because they could fulfil the conditions of LoI in terms of the distorted version of the policy first-come-first-served.

(v) That those who had made applications in 2004 and 2006 cannot be clubbed with those who had applied in the month of August and September, 2007 (v) That those who had made applications in 2004 and 2006 cannot be clubbed with those who had applied in the month of August and September, 2007 because in terms of the existing UASL guidelines they were entitled to licences.because in terms of the existing UASL guidelines they were entitled to licences.

Issues Issues

(i) (i) Whether the Government has the right to Whether the Government has the right to alienate, transfer or distribute natural alienate, transfer or distribute natural resources/national assets otherwise than by resources/national assets otherwise than by following a fair and transparent method following a fair and transparent method consistent with the fundamentals of the consistent with the fundamentals of the equality clause enshrined in the Constitution?equality clause enshrined in the Constitution?

We hold that the State is the legal owner of the We hold that the State is the legal owner of the natural resources as a trustee of the people and natural resources as a trustee of the people and although it is empowered to distribute the although it is empowered to distribute the same, same, the process of distribution must be the process of distribution must be guided by the constitutional principles guided by the constitutional principles including the doctrine of equality and larger including the doctrine of equality and larger public goodpublic good. .

Issues Issues (ii) (ii) Whether the recommendations made by the Whether the recommendations made by the

Telecom Regulatory Authority of India (TRAI) on Telecom Regulatory Authority of India (TRAI) on 28.8.2007 for grant of Unified Access Service Licence28.8.2007 for grant of Unified Access Service Licence (for short `UAS Licence') with 2G spectrum in 800, (for short `UAS Licence') with 2G spectrum in 800, 900 and 1800 MHz at the price fixed in 2001, which 900 and 1800 MHz at the price fixed in 2001, which were approved by the Department of were approved by the Department of Telecommunications (DoT)Telecommunications (DoT), were contrary to the , were contrary to the decision taken by the Council of Ministers on decision taken by the Council of Ministers on 31.10.2003?31.10.2003?

The recommendations made by TRAI in this regard The recommendations made by TRAI in this regard were contrary to the decision of the Council of were contrary to the decision of the Council of Ministers that the DoT shall discuss the issue of Ministers that the DoT shall discuss the issue of spectrum pricing with the Ministry of Financespectrum pricing with the Ministry of Finance along along with the issue of incentive for efficient use of with the issue of incentive for efficient use of spectrum as well as disincentive for sub-optimal spectrum as well as disincentive for sub-optimal usages. usages.

Issues Issues (iii) Whether the exercise undertaken by the (iii) Whether the exercise undertaken by the

DoT from September 2007 to March 2008 for DoT from September 2007 to March 2008 for grant of UAS Licences to the private grant of UAS Licences to the private respondents in terms of the recommendations respondents in terms of the recommendations made by TRAI is made by TRAI is vitiated due to arbitrariness vitiated due to arbitrariness and malafides and is contrary to public interest? and malafides and is contrary to public interest?

(iv) (iv) Whether the policy of first-come-first-served Whether the policy of first-come-first-served followed by the DoT for grant of licenses is ultra followed by the DoT for grant of licenses is ultra vires the provisions of Article 14 of the vires the provisions of Article 14 of the ConstitutionConstitution and and whether the said principle was whether the said principle was arbitrarily changed by the Minister of arbitrarily changed by the Minister of Communications and Information Technology, Communications and Information Technology, without consulting TRAI, with a view to favour without consulting TRAI, with a view to favour some of the applicants? some of the applicants?

Issues Issues There is a fundamental flaw in the first-come-first-served There is a fundamental flaw in the first-come-first-served

policy inasmuch as it involves an element of pure chance or policy inasmuch as it involves an element of pure chance or accident. accident.

In matters involving award of contracts or grant of licence In matters involving award of contracts or grant of licence or permission to use public property, the invocation of first-or permission to use public property, the invocation of first-come-first-served policy has inherently dangerous come-first-served policy has inherently dangerous implications.implications. Any person who has access to the power corridor at the highest or the lowest level may be able to obtain information from the Any person who has access to the power corridor at the highest or the lowest level may be able to obtain information from the

Government files or the files of the agency/instrumentality of the State that a particular public property or asset is likely to be disposed of or a contract is likely to Government files or the files of the agency/instrumentality of the State that a particular public property or asset is likely to be disposed of or a contract is likely to be awarded or a licence or permission is likely to be given, he would immediately make an application and would become entitled to stand first in the queue at the be awarded or a licence or permission is likely to be given, he would immediately make an application and would become entitled to stand first in the queue at the cost of all others who may have a better claim.cost of all others who may have a better claim.

A A duly publicised auction conducted fairly and impartially duly publicised auction conducted fairly and impartially is perhaps the best methodis perhaps the best method for discharging this burden and for discharging this burden and the methods like first-come-first-served when used for the methods like first-come-first-served when used for alienation of natural resources/public property are likely to alienation of natural resources/public property are likely to be misused by unscrupulous people who are only interested be misused by unscrupulous people who are only interested in garnering maximum financial benefit and have no in garnering maximum financial benefit and have no respect for the constitutional ethos and values. respect for the constitutional ethos and values.

In other words, In other words, while transferring or alienating the natural while transferring or alienating the natural resources, the State is duty bound to adopt the method of resources, the State is duty bound to adopt the method of auction by giving wide publicity so that all eligible persons auction by giving wide publicity so that all eligible persons can participate in the process.can participate in the process.

IssuesIssues The exercise undertaken by the officers of the The exercise undertaken by the officers of the

DoT between September, 2007 and March DoT between September, 2007 and March 2008, under the leadership of the then 2008, under the leadership of the then Minister of Com. was Minister of Com. was wholly arbitrary, wholly arbitrary, capricious and contrary to public interest apart capricious and contrary to public interest apart from being violative of the doctrine of equality.from being violative of the doctrine of equality.

(v) Whether the licenses granted to ineligible (v) Whether the licenses granted to ineligible applicants and those who failed to fulfill the applicants and those who failed to fulfill the terms and conditions of the licence are liable terms and conditions of the licence are liable to be quashed?to be quashed?

In the result, the writ petitions are In the result, the writ petitions are allowed in the following terms: allowed in the following terms: (i) (i) The licences granted to the private respondents on The licences granted to the private respondents on

or after 10.1.2008 pursuant to two press releases or after 10.1.2008 pursuant to two press releases issued on 10.1.2008 and subsequent allocation of issued on 10.1.2008 and subsequent allocation of spectrum to the licensees are spectrum to the licensees are declared illegal and are declared illegal and are quashed.quashed.

(ii) The above direction shall become operative after (ii) The above direction shall become operative after four months. four months.

(iii) Keeping in view the decision taken by the Central (iii) Keeping in view the decision taken by the Central Government in 2011, Government in 2011, TRAI shall make fresh TRAI shall make fresh recommendations for grant of licence and allocation of recommendations for grant of licence and allocation of spectrum in 2G band in 22 Service Areas spectrum in 2G band in 22 Service Areas by auctionby auction, as , as was done for allocation of spectrum in 3G band.was done for allocation of spectrum in 3G band.

(iv) The (iv) The Central Government shall consider the Central Government shall consider the recommendations of TRAI and take appropriate recommendations of TRAI and take appropriate decision within next one month and fresh licences be decision within next one month and fresh licences be granted by auction.granted by auction.

In the result, the writ petitions are In the result, the writ petitions are allowed in the following terms: allowed in the following terms:

(v) (v) Respondent Nos.2, 3 and 9Respondent Nos.2, 3 and 9 who have been who have been benefited at the cost of Public Exchequer by a wholly benefited at the cost of Public Exchequer by a wholly arbitrary and unconstitutional action taken by the DoT arbitrary and unconstitutional action taken by the DoT for grant of UAS Licences and allocation of spectrum for grant of UAS Licences and allocation of spectrum in 2G band and who off- loaded their stakes for many in 2G band and who off- loaded their stakes for many thousand crores in the name of fresh infusion of thousand crores in the name of fresh infusion of equity or transfer of equity equity or transfer of equity shall pay cost of Rs.5 shall pay cost of Rs.5 crores each.crores each. Respondent Nos. 4, 6, 7 and 10 shall pay Respondent Nos. 4, 6, 7 and 10 shall pay cost of Rs.50 lakhs eachcost of Rs.50 lakhs each because they too had been because they too had been benefited by the wholly arbitrary and unconstitutional benefited by the wholly arbitrary and unconstitutional exercise undertaken by the DoT for grant of UAS exercise undertaken by the DoT for grant of UAS Licences and allocation of spectrum in 2G band. Licences and allocation of spectrum in 2G band. We have not We have not

imposed cost on the respondents who had submitted their applications in 2004 and 2006 and whose applications were kept pending till 2007. imposed cost on the respondents who had submitted their applications in 2004 and 2006 and whose applications were kept pending till 2007.

(vi) (vi) Within four months, 50% of the cost shall be deposited Within four months, 50% of the cost shall be deposited with the Supreme Court Legal Services Committee for with the Supreme Court Legal Services Committee for being used for providing legal aid to poor and indigent being used for providing legal aid to poor and indigent litigantslitigants. . The remaining 50% cost shall be deposited in the The remaining 50% cost shall be deposited in the funds created for Resettlement and Welfare Schemes of the funds created for Resettlement and Welfare Schemes of the Ministry of Defence. Ministry of Defence.

Javed v. State of Harayana, AIR Javed v. State of Harayana, AIR 2003 SC 30572003 SC 3057

Section 175(1) (g) of the Harayana Panchayati Raj Section 175(1) (g) of the Harayana Panchayati Raj Act, 1994 disqualifies a person having more than Act, 1994 disqualifies a person having more than two children from contesting elections for two children from contesting elections for Sarpanch or Panch in Gram Panchayats, but does Sarpanch or Panch in Gram Panchayats, but does not apply to offices in other institutions of Local not apply to offices in other institutions of Local Self Government or in State Legislature or in Self Government or in State Legislature or in Parliament.Parliament.

Petitioners challenged the validity of Section Petitioners challenged the validity of Section 175(1) (g) of the Harayana Panchayati Raj Act, 175(1) (g) of the Harayana Panchayati Raj Act, 1994 on the ground that it was violative of Article 1994 on the ground that it was violative of Article 14 of the Constitution.14 of the Constitution.

Disqualifying persons having more than two Disqualifying persons having more than two children to be candidates in Panchayat election: children to be candidates in Panchayat election: Not violative of Article 14.Not violative of Article 14.


A three judge bench of the Supreme Court held that :A three judge bench of the Supreme Court held that : the provision is not discriminatory .the provision is not discriminatory . the classification made by it is based on intelligible the classification made by it is based on intelligible

differentia having nexus with the object of differentia having nexus with the object of popularization of family planning programme. popularization of family planning programme.

Persons having more than two children and persons not Persons having more than two children and persons not having more than two children form two different having more than two children form two different classes.classes.

The provision seeks to achieve a laudable purpose- The provision seeks to achieve a laudable purpose- socio- economic welfare and health care of the masses socio- economic welfare and health care of the masses and is consistent with the National Population Policy. and is consistent with the National Population Policy.

Clause (b) of Article 243GClause (b) of Article 243G provides that Gram provides that Gram Panchayats may be entrusted with the power to Panchayats may be entrusted with the power to implement the schemes for economic development and implement the schemes for economic development and social justice including family welfare and women and social justice including family welfare and women and child development. child development.


To carry out the purpose of the act as well To carry out the purpose of the act as well as the mandate of the Constitution the as the mandate of the Constitution the legislature has made this provision for legislature has made this provision for making a person ineligible to either contest making a person ineligible to either contest for the post of Panch or Sarpanch having for the post of Panch or Sarpanch having more than two children. more than two children.

The provision would serve the purpose of the The provision would serve the purpose of the Act and is, therefore, not violative of Article Act and is, therefore, not violative of Article 14 of the Constitution.14 of the Constitution.

Air India v. Nargesh Meerza, AIR 1981 Air India v. Nargesh Meerza, AIR 1981 SC 1829SC 1829

Regulation 46 provided that an air hostess would Regulation 46 provided that an air hostess would retire from the service of the corporation upon retire from the service of the corporation upon attaining the age of 35 years, or on marriage, if attaining the age of 35 years, or on marriage, if it took place within four years of service or on it took place within four years of service or on first pregnancy, whichever occurred earlier.first pregnancy, whichever occurred earlier.

Under Regulation 47 the Managing Director had Under Regulation 47 the Managing Director had the discretion to extend the age of retirement by the discretion to extend the age of retirement by one year at a time beyond the age of retirement one year at a time beyond the age of retirement upto the age of 45 years if an ar hostess was upto the age of 45 years if an ar hostess was found medically fit.found medically fit.

The court held that the termination of service on The court held that the termination of service on pregnancy was manifestly unreasonable and pregnancy was manifestly unreasonable and arbitrary and was, therefore, clearly violative of arbitrary and was, therefore, clearly violative of Article 14.Article 14.


The regulation did not prohibit marriage after The regulation did not prohibit marriage after four years and if an Air Hostess after having four years and if an Air Hostess after having fulfilled the first condition became pregnant, fulfilled the first condition became pregnant, there was no reason why pregnancy should stand there was no reason why pregnancy should stand in the way of her continuing in service.in the way of her continuing in service.

Having taken in service and after having utilized Having taken in service and after having utilized her services for four years to terminate her her services for four years to terminate her service if she becomes pregnant amounts to service if she becomes pregnant amounts to compelling the poor Air Hostess not to have any compelling the poor Air Hostess not to have any children and thus interfere with and divert the children and thus interfere with and divert the ordinary course of human nature. ordinary course of human nature.

The termination of services of Air Hostesses in The termination of services of Air Hostesses in such circumstances is not only a callous and cruel such circumstances is not only a callous and cruel act but an open insult to Indian womanhood- the act but an open insult to Indian womanhood- the most sacrosanct and cherished institution. most sacrosanct and cherished institution.


Regulation 47Regulation 47 The provision of extension of service of A.H “ at the The provision of extension of service of A.H “ at the

option” of the Managing Director confers a option” of the Managing Director confers a discretionary power without laying down any guidelines discretionary power without laying down any guidelines or principles and liable to be struck down as or principles and liable to be struck down as unconstitutional. unconstitutional.

The option to continue in service may be exercised in The option to continue in service may be exercised in favour of one A.H and not in favour of the other and is favour of one A.H and not in favour of the other and is thus discriminatory.thus discriminatory.

Under the Air India Regualtions the extension of the Under the Air India Regualtions the extension of the retirement of an A.H was entirely at the mercy and the retirement of an A.H was entirely at the mercy and the sweet will of the Managing Director . sweet will of the Managing Director .

The conferment of such a wide and uncontrolled power The conferment of such a wide and uncontrolled power on the Managing Director was violative of Article 14 as on the Managing Director was violative of Article 14 as it suffered from the vice of excessive delegation of it suffered from the vice of excessive delegation of powers.powers.

Important Cases for Self Important Cases for Self StudyStudy Air India v. Nargesh Meerza, AIR 1981 SC 1829Air India v. Nargesh Meerza, AIR 1981 SC 1829

SC struck down the Air India and Indian Airlines SC struck down the Air India and Indian Airlines Regulations on the retirement and pregnancy bar on the Regulations on the retirement and pregnancy bar on the services of air hostesses as unconstitutional on the services of air hostesses as unconstitutional on the ground that the conditions laid down therein were ground that the conditions laid down therein were entirely unreasonable and arbitrary.entirely unreasonable and arbitrary.

K.Nagraj v. State of A.P. (1985) 1 SCC 524K.Nagraj v. State of A.P. (1985) 1 SCC 524 Validity of A.P. Public Employment (Regulation of Validity of A.P. Public Employment (Regulation of

Conditions of Service) ordinance which reduced the age Conditions of Service) ordinance which reduced the age of retirement of all Government employees from 58 to of retirement of all Government employees from 58 to 55 years was challenged on the ground that it was 55 years was challenged on the ground that it was violative of Article 14.violative of Article 14.

SC held that the reduction of age of retirement was not SC held that the reduction of age of retirement was not arbitrary and unreasonable and violative of Article 14 as arbitrary and unreasonable and violative of Article 14 as it was taken by the Government after due it was taken by the Government after due considerations and with a view to providing employment considerations and with a view to providing employment opportunities to younger sections of society.opportunities to younger sections of society.

BALCO Employees Union (Regd.) v. Union of BALCO Employees Union (Regd.) v. Union of India, AIR 2002 SC 350India, AIR 2002 SC 350

There can be no judicial review of economic There can be no judicial review of economic policy of the government unless there is policy of the government unless there is

violation of the Constitutionviolation of the Constitution.. Lucknow Development Authority v. Lucknow Development Authority v.

M.K.Gupta, (1994) 1 SCC 243M.K.Gupta, (1994) 1 SCC 243 Arbitrary Action- State liable to pay Arbitrary Action- State liable to pay

compensation to a citizen.compensation to a citizen.

Important Cases for Self Important Cases for Self StudyStudy

Important Cases for Self Important Cases for Self StudyStudy

Central Inland Water Transport Corp. Ltd. v. Brojo Nath, AIR 1986 Central Inland Water Transport Corp. Ltd. v. Brojo Nath, AIR 1986 SC 1571SC 1571

Rules of Natural Justice implicit in Article 14.Rules of Natural Justice implicit in Article 14. Supreme Court held that Service Rules empowering the Supreme Court held that Service Rules empowering the

Government Corporation to terminate Services of permanent Government Corporation to terminate Services of permanent employees without giving reasons on three months’ notice or employees without giving reasons on three months’ notice or pay in lieu of notice period is violative of Article 14 being pay in lieu of notice period is violative of Article 14 being unconstitutional , arbitrary, unreasonable and against public unconstitutional , arbitrary, unreasonable and against public policy as it wholly ignores the audi alteram partem rule.policy as it wholly ignores the audi alteram partem rule.

Delhi Transport Corp. v. D.T.C.Mzdoor Congress, AIR 1991 SC 101Delhi Transport Corp. v. D.T.C.Mzdoor Congress, AIR 1991 SC 101 Supreme Court held that regulation 9(b) of the Delhi Road Supreme Court held that regulation 9(b) of the Delhi Road

Transport Authoirty (Conditon of Appointment and Service) Transport Authoirty (Conditon of Appointment and Service) Regulations, 1952 which conferred power on the authority to Regulations, 1952 which conferred power on the authority to terminate the services of a permanent and confirmed employee terminate the services of a permanent and confirmed employee by issuing without assigning any reasons and without giving by issuing without assigning any reasons and without giving any opportunity of hearing was wholly arbitrary, unreasonable any opportunity of hearing was wholly arbitrary, unreasonable and violative of Article 14 and therefore void.and violative of Article 14 and therefore void.

Doctrine of Legitimate Doctrine of Legitimate ExpectationExpectation

ORIGINORIGIN 'latest recruit' to a long list of concepts 'latest recruit' to a long list of concepts

fashioned by Courts for review of fashioned by Courts for review of administrative actions.administrative actions.

The expression 'legitimate expectation' The expression 'legitimate expectation' appears to have been originated by appears to have been originated by Lord Lord Denning, M.R. Denning, M.R. in the leading decision of in the leading decision of Schmidt v. Secretary of State, [(1969) 1 All ER Schmidt v. Secretary of State, [(1969) 1 All ER 904 904

MEANINGMEANING Halsbury's Laws of England Halsbury's Laws of England A person may have a legitimate expectation of A person may have a legitimate expectation of being treated in a certain way being treated in a certain way by an by an administrative authority administrative authority even though he has even though he has no legal rightno legal right in private law in private law

to receive such treatment. to receive such treatment. The The expectation may arise expectation may arise either from a either from a representationrepresentation or or promisepromise made by the made by the

authority, authority, including an including an implied representationimplied representation, or from , or from

consistent past practice.consistent past practice.


In such situation, if a decision is taken by an In such situation, if a decision is taken by an administrative authority administrative authority adversely affecting adversely affecting his interestshis interests, he may have justifiable , he may have justifiable grievance in the light of the fact of grievance in the light of the fact of continuous receipt of the benefit, legitimate continuous receipt of the benefit, legitimate expectation to receive the benefit or expectation to receive the benefit or privilege which he has enjoyed all privilege which he has enjoyed all throughout. throughout.

In such cases, therefore, the In such cases, therefore, the Court may not Court may not insist an administrative authority to act insist an administrative authority to act judicially but may still insist it to act fairly. judicially but may still insist it to act fairly.


House of Lords in Council of Civil Service Unions & Ors. Vs. Minister for the Civil Service, a locus classicus on the subject, wherein for House of Lords in Council of Civil Service Unions & Ors. Vs. Minister for the Civil Service, a locus classicus on the subject, wherein for the first time an attempt was made to give a comprehensive definition to the principle of legitimate expectation. the first time an attempt was made to give a comprehensive definition to the principle of legitimate expectation.

Enunciating the basic principles relating to legitimate expectation, Lord Diplock observed that for a legitimate expectation to arise, the Enunciating the basic principles relating to legitimate expectation, Lord Diplock observed that for a legitimate expectation to arise, the decision of the administrative authority must affect such person either (a) by altering rights or obligations of that person which are decision of the administrative authority must affect such person either (a) by altering rights or obligations of that person which are enforceable by or against him in private law or (b) by depriving him of some benefit or advantage which either: (i) he has in the past been enforceable by or against him in private law or (b) by depriving him of some benefit or advantage which either: (i) he has in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until some rational ground permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until some rational ground for withdrawing it has been communicated to him and he has been given an opportunity to comment thereon or (ii) he has received for withdrawing it has been communicated to him and he has been given an opportunity to comment thereon or (ii) he has received assurance from the decision-maker that they will not be withdrawn without first giving him an opportunity of advancing reasons for assurance from the decision-maker that they will not be withdrawn without first giving him an opportunity of advancing reasons for contending that they should be withdrawn.contending that they should be withdrawn.


In In Attorney General of Hong Kong v. Ng Attorney General of Hong Kong v. Ng Yuen Shiu, [(1983) 2 All ER 346, Yuen Shiu, [(1983) 2 All ER 346, Lord Fraser Lord Fraser referring to Schmidt stated;referring to Schmidt stated;

"The expectations may be based on some "The expectations may be based on some statement or undertaking by, or on behalf statement or undertaking by, or on behalf of, the public authority which has the of, the public authority which has the duty duty of making the decisionof making the decision, if the authority has, , if the authority has, through its officers, acted in a way that through its officers, acted in a way that would make it unfair or inconsistent with would make it unfair or inconsistent with good administration for him to be denied good administration for him to be denied such an inquiry.such an inquiry.


BASIS OF DOCTRINEBASIS OF DOCTRINE The doctrine is based on the principleThe doctrine is based on the principle that that good administration demands observance of good administration demands observance of

reasonableness and where it has adopted a reasonableness and where it has adopted a particular practice for a long time even in particular practice for a long time even in absence of a provision of law, it should adhere absence of a provision of law, it should adhere to such practice without depriving its citizens to such practice without depriving its citizens of the benefit enjoyed or privilege exercised. of the benefit enjoyed or privilege exercised.

DE SMITH’S JUDICIAL REVIEWDE SMITH’S JUDICIAL REVIEW The protection of legitimate expectations is at The protection of legitimate expectations is at

the the root of the constitutional principle of the root of the constitutional principle of the rule of lawrule of law, which requires , which requires REGULARITY, REGULARITY, PREDICTABILITYPREDICTABILITY, and , and CERTAINTYCERTAINTY in in government's dealings with the public.government's dealings with the public.


Jasbir Singh Chhabra & Ors. vs State Of Punjab & Ors. Jasbir Singh Chhabra & Ors. vs State Of Punjab & Ors. 9 March, 20109 March, 2010

The Corporation is a government companyThe Corporation is a government company created for developing infrastructure necessary for created for developing infrastructure necessary for

industrialization .industrialization . State Government acquired land in Mohali and handed over the State Government acquired land in Mohali and handed over the

same to the Corporation. same to the Corporation. After carrying out necessary development, the Corporation After carrying out necessary development, the Corporation

allotted the plots to industrial entrepreneurs.allotted the plots to industrial entrepreneurs. the Corporation submitted a proposal to the State Government the Corporation submitted a proposal to the State Government

to allow it to earmark 20-30% area for Industrial Housing. to allow it to earmark 20-30% area for Industrial Housing. The State Government approved the proposal. The State Government approved the proposal. Although, the above mentioned decision of the State Although, the above mentioned decision of the State

Government did not provide for change of land use from Government did not provide for change of land use from industrial to residential, the Corporation, on its own, framed a industrial to residential, the Corporation, on its own, framed a policy for disposal of residential plots in the existing and up-policy for disposal of residential plots in the existing and up-coming industrial focal points/industrial estates/growth centres.coming industrial focal points/industrial estates/growth centres.

the Corporation advertised 138 freehold plots in focal point, the Corporation advertised 138 freehold plots in focal point, Mohali and allotted the same to those who were declared Mohali and allotted the same to those who were declared successful in the draw held on 8.10.2002successful in the draw held on 8.10.2002

Jasbir Singh Chhabra & Ors. vs State Of Jasbir Singh Chhabra & Ors. vs State Of Punjab & Ors. Punjab & Ors. 9 March, 20109 March, 2010

Some of the industrial entrepreneurs to whom large Some of the industrial entrepreneurs to whom large plots were allotted in focal point, Mohali could not plots were allotted in focal point, Mohali could not fully utilize the same and surrendered the surplus fully utilize the same and surrendered the surplus land. land.

It was decided that It was decided that such land may be utilized for such land may be utilized for carving out residential pockets.carving out residential pockets. This was subject to This was subject to approval of change of land use under the Punjab approval of change of land use under the Punjab Regional and Town Planning and Development Act, Regional and Town Planning and Development Act, 1995 .1995 .

About two months prior to consideration of the issue About two months prior to consideration of the issue relating to disposal of surplus land by Plan Approval relating to disposal of surplus land by Plan Approval Committee of the Corporation, an advertisement was Committee of the Corporation, an advertisement was issued, which was published in `The Tribune' dated issued, which was published in `The Tribune' dated 20.10.2003 inviting applications for 280 residential 20.10.2003 inviting applications for 280 residential plots in Phases VIII-A and VIII-B, focal point, Mohali plots in Phases VIII-A and VIII-B, focal point, Mohali under the Industrial Housing Scheme.under the Industrial Housing Scheme.


In the application form issued by the In the application form issued by the Corporation, the following stipulation was Corporation, the following stipulation was incorporated:incorporated:

The acceptance of application form and earnest The acceptance of application form and earnest money does not place the corporation under money does not place the corporation under any obligation to allot you a plot.any obligation to allot you a plot.

About 3500 persons applied for allotment of About 3500 persons applied for allotment of residential plots in Mohali. residential plots in Mohali.

After five months, another advertisement was issued After five months, another advertisement was issued on 23.3.2004 under the authority of the Managing on 23.3.2004 under the authority of the Managing Director of the Corporation-cum-Chairman, Director of the Corporation-cum-Chairman, Allotment Committee informing the applicants that Allotment Committee informing the applicants that draw of lots for allotment of residential plots will be draw of lots for allotment of residential plots will be held on 31.3.2004. held on 31.3.2004.


That advertisement carried the following note:That advertisement carried the following note:

““The above draw of lots for allotment of residential plots is The above draw of lots for allotment of residential plots is being held being held provisionallyprovisionally and the and the applicants declared applicants declared successful will be placed on a provisional listsuccessful will be placed on a provisional list for allotment for allotment of plots subject to the final decision on the aforesaid of plots subject to the final decision on the aforesaid Industrial Housing Scheme at Focal Point, Mohali. Industrial Housing Scheme at Focal Point, Mohali.

It is clarified that placement of successful applicants on It is clarified that placement of successful applicants on the provisional list for allotment of plots the provisional list for allotment of plots will not confer will not confer any legal right either to claim interest on the earnest any legal right either to claim interest on the earnest money remaining with the Corporation money remaining with the Corporation or for the allotment or for the allotment of residential plots on the basis of their having been of residential plots on the basis of their having been declared successful in the draw of lots declared successful in the draw of lots and no claim in this and no claim in this behalf shall be entertainable on any account whatsoever. behalf shall be entertainable on any account whatsoever.

It is further clarified that any applicant found successful in It is further clarified that any applicant found successful in the draw of lots and not agreeable to above conditions, the draw of lots and not agreeable to above conditions, may seek refund of their earnest money any time till the may seek refund of their earnest money any time till the letter of allotment is issued by PSIEC.letter of allotment is issued by PSIEC.


Writ petitioners had invoked the doctrines of promissory estoppel and legitimate expectation and urged that even though the application form contained a stipulation that acceptance of application and earnest money will not put the Corporation under an obligation to allot a plot to the applicant, they were reasonably sure of getting residential plots because in 2002 the Corporation had undertaken a similar exercise and allotted 138 freehold plots in focal point, Mohali by inviting applications and holding draw of lots.


State’s ContentionState’s Contention The writ petitioners are not entitled to invoke the The writ petitioners are not entitled to invoke the

doctrines of promissory estoppel and legitimate doctrines of promissory estoppel and legitimate expectation because expectation because at the time of submitting at the time of submitting applicationsapplications, they were very much aware of the , they were very much aware of the stipulation contained in the format of application stipulation contained in the format of application that the Corporation will not be obliged to allot that the Corporation will not be obliged to allot plots to them and this was made more explicit by plots to them and this was made more explicit by incorporating a note in incorporating a note in advertisement dated advertisement dated 23.3.2004 23.3.2004 that that the draw of lots will be provisional the draw of lots will be provisional and the same would not confer any right upon and the same would not confer any right upon the successful applicants to claim allotment of the successful applicants to claim allotment of plot or interest on the earnest money.plot or interest on the earnest money.


SUPREME COURT HELDSUPREME COURT HELD The plea of the writ petitioners that they had The plea of the writ petitioners that they had

legitimate expectation of being allotted legitimate expectation of being allotted residential plots in Mohali because in 2002, residential plots in Mohali because in 2002, 138 plots were allotted to the successful 138 plots were allotted to the successful applicants sans merit. applicants sans merit.

Writ petitioners had submitted applications Writ petitioners had submitted applications knowing fully well that the same would not knowing fully well that the same would not obligate the Corporation to allot plots to them.obligate the Corporation to allot plots to them.

The writ petitioners cannot, by any stretch of The writ petitioners cannot, by any stretch of imagination, claim that they had a legitimate imagination, claim that they had a legitimate expectation in the matter of allotment of plots expectation in the matter of allotment of plots despite the fact that change of land use was yet despite the fact that change of land use was yet to be sanctioned.to be sanctioned.

Navjyoti Co-op. Group Housing Society v. Navjyoti Co-op. Group Housing Society v. Union of India, AIR 1993 SC 155Union of India, AIR 1993 SC 155

The seniority as per existing list of cooperative The seniority as per existing list of cooperative housing societies for allotment was altered by a housing societies for allotment was altered by a subsequent decision.subsequent decision.

The previous policy was that the seniority amongst The previous policy was that the seniority amongst housing societies in regard to the allotment of land housing societies in regard to the allotment of land was to be was to be based on the date of based on the date of registration of the registration of the society with the Registrar.society with the Registrar.

But on 20-1-90 the But on 20-1-90 the policy was changed by reckoning policy was changed by reckoning seniority as based seniority as based upon date of approval of the final upon date of approval of the final list by the Registrarlist by the Registrar..

This altered the existing seniority of societies for This altered the existing seniority of societies for allotment of land.allotment of land.

The Supreme Court heldThe Supreme Court held that the societies were that the societies were entitled to a “legitimate expectation” that the past entitled to a “legitimate expectation” that the past consistent practice in matter of allotment will be consistent practice in matter of allotment will be followed even if there was no right in private law for followed even if there was no right in private law for such allotment.such allotment.

Navjyoti Co-op. Group Housing Society v. Navjyoti Co-op. Group Housing Society v. Union of India, AIR 1993 SC 155Union of India, AIR 1993 SC 155

The authority was not entitle to defeat the legitimate The authority was not entitle to defeat the legitimate expectation of the societies as per previous seniority expectation of the societies as per previous seniority list without some overriding reason of public policy list without some overriding reason of public policy to justify the change in the criterion. to justify the change in the criterion.

No such overriding reason of public policy was No such overriding reason of public policy was shown.shown.

According to principle of legitimate expectation, if According to principle of legitimate expectation, if the authority proposed to defeat a person’s the authority proposed to defeat a person’s legitimate expectation, legitimate expectation, it should afford him an it should afford him an opportunity to make a representation in the matteropportunity to make a representation in the matter..

It was held that the doctrine imposed in essence, a It was held that the doctrine imposed in essence, a duty to act fairly by taking into consideration all duty to act fairly by taking into consideration all relevant factors, relating to such legitimate relevant factors, relating to such legitimate expectations.expectations.

Punjab Communications Ltd. Vs. Union of Punjab Communications Ltd. Vs. Union of India & OrsIndia & Ors

Supreme Court observed that a Supreme Court observed that a change in policy change in policy can defeat a substantive legitimate expectation can defeat a substantive legitimate expectation if it can be justified on reasonableness. if it can be justified on reasonableness.

The decision maker has the choice in the The decision maker has the choice in the balancing of the pros and cons relevant to the balancing of the pros and cons relevant to the change in policy. change in policy.

Therefore, the choice of the policy is for the Therefore, the choice of the policy is for the decision maker and not for the Court. decision maker and not for the Court.

The The legitimate substantive expectation merely legitimate substantive expectation merely permits the Court to find out if the change in permits the Court to find out if the change in policy which is the cause for defeating the policy which is the cause for defeating the legitimate expectation is irrational or perverse legitimate expectation is irrational or perverse or one which no reasonable person could have or one which no reasonable person could have made.made.


An examination of decisions shows that the An examination of decisions shows that the golden thread running through all these golden thread running through all these decisions is that a case for applicability of the decisions is that a case for applicability of the doctrine of legitimate expectationdoctrine of legitimate expectation, now accepted , now accepted in the subjective sense as part of our legal in the subjective sense as part of our legal jurisprudence, jurisprudence, arises when an administrative arises when an administrative body by reason of a representation or by past body by reason of a representation or by past practice or conduct aroused an expectation which practice or conduct aroused an expectation which it would be within its powers to fulfill unless it would be within its powers to fulfill unless some overriding public interest comes in the way. some overriding public interest comes in the way.

However, However, a person who bases his claim on the a person who bases his claim on the doctrine of legitimate expectation, in the first doctrine of legitimate expectation, in the first instance, has to satisfy that he has relied on the instance, has to satisfy that he has relied on the said representation and the denial of that said representation and the denial of that expectation has worked to his detriment. expectation has worked to his detriment.


The Court could interfere only if the decision The Court could interfere only if the decision taken by the authority was found to be taken by the authority was found to be arbitrary, unreasonable or in gross abuse of arbitrary, unreasonable or in gross abuse of power or in violation of principles of natural power or in violation of principles of natural justice and not taken in public interest. justice and not taken in public interest.

But a claim based on mere legitimate But a claim based on mere legitimate expectation without anything more cannot ipso expectation without anything more cannot ipso facto give a right to invoke these principles. facto give a right to invoke these principles.

It is well settled that the concept of legitimate It is well settled that the concept of legitimate expectation has no role to play where the State expectation has no role to play where the State action is as a public policy or in the public action is as a public policy or in the public interest unless the action taken amounts to an interest unless the action taken amounts to an abuse of power. abuse of power.


The court must not usurp the discretion of the public The court must not usurp the discretion of the public authority which is empowered to take the decisions authority which is empowered to take the decisions under law and the court is expected to apply an under law and the court is expected to apply an objective standard which leaves to the deciding objective standard which leaves to the deciding authority the full range of choice which the authority the full range of choice which the legislature is presumed to have intended. legislature is presumed to have intended.

Even in a case where the decision is left entirely to Even in a case where the decision is left entirely to the discretion of the deciding authority without any the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the and objectively, the court will not interfere on the ground of procedural fairness to a person whose ground of procedural fairness to a person whose interest based on legitimate expectation might be interest based on legitimate expectation might be affected. affected.

Therefore, a legitimate expectation can at the most Therefore, a legitimate expectation can at the most be one of the grounds which may give rise to judicial be one of the grounds which may give rise to judicial review but the granting of relief is very much review but the granting of relief is very much limited.limited.

Godawat Pan Masala Godawat Pan Masala Products I.P.Ltd. Versus Products I.P.Ltd. Versus

Union of India 2004 Union of India 2004 FactsFacts The validity of notifications issued by the Food The validity of notifications issued by the Food

(Health) Authority under Section 7(iv) of the (Health) Authority under Section 7(iv) of the Prevention of Food Adulteration Act, 1954 Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the 'Act') by which the (hereinafter referred to as the 'Act') by which the manufacture, sale, storage and distribution of pan manufacture, sale, storage and distribution of pan masala and gutka (pan masala containing tobacco) masala and gutka (pan masala containing tobacco) were banned for different periods.were banned for different periods.

The appellants manufacture gutka within the state The appellants manufacture gutka within the state of Maharashtra, which is stored in convenient of Maharashtra, which is stored in convenient godowns and sold both within and outside the state godowns and sold both within and outside the state of Maharashtra. of Maharashtra.

By a notification dated 23rd July, 2002 issued by the By a notification dated 23rd July, 2002 issued by the Commissioner, Food and Drug Administration and Commissioner, Food and Drug Administration and Food (Health) Authority for the State of Food (Health) Authority for the State of Maharashtra, the manufacture, sale, storage and Maharashtra, the manufacture, sale, storage and distribution of pan masala and gutka (pan masala distribution of pan masala and gutka (pan masala containing tobacco) were banned for a period of five containing tobacco) were banned for a period of five years with effect from 1st August, 2002. years with effect from 1st August, 2002.


Union of India 2004Union of India 2004 The appellants challenged the validity of The appellants challenged the validity of

this notification by a writ petition No. 2024 this notification by a writ petition No. 2024 of 2002 before the High Court of Judicature of 2002 before the High Court of Judicature at Bombay. at Bombay.

By its Judgement dated 18th/19th By its Judgement dated 18th/19th September, 2002, the division bench of the September, 2002, the division bench of the Bombay High Court dismissed the writ Bombay High Court dismissed the writ petition upholding the validity of the petition upholding the validity of the notification. notification.

Aggrieved thereby, the appellants challenge Aggrieved thereby, the appellants challenge the said Judgement by the present appeal.the said Judgement by the present appeal.

Godawat Pan Masala Products I.P.Ltd. Versus Godawat Pan Masala Products I.P.Ltd. Versus Union of India 2004Union of India 2004

The broad grounds of challenge formulated by the The broad grounds of challenge formulated by the appellants/petitioners are as under: appellants/petitioners are as under:

(1) The Act vests the power to declare a substance (1) The Act vests the power to declare a substance as injurious to health only with the Central as injurious to health only with the Central Government under Section 23 of the Act and no Government under Section 23 of the Act and no such power is vested with the State Government. such power is vested with the State Government.

(2) Each of the manufacturers has been issued a (2) Each of the manufacturers has been issued a licence to manufacture the banned product by the licence to manufacture the banned product by the Central Government under the provisions of the Central Government under the provisions of the Act. As long as the conditions stipulated in the Act. As long as the conditions stipulated in the licence are fulfilled, and there is no violation of licence are fulfilled, and there is no violation of the terms of the licence or the provisions of the the terms of the licence or the provisions of the concerned statute, it is not open to the state concerned statute, it is not open to the state Government, by any administrative order, to Government, by any administrative order, to prohibit the manufacture of the concerned prohibit the manufacture of the concerned product undertaken under a licence issued by the product undertaken under a licence issued by the Central Government.Central Government.


Union of India 2004Union of India 2004 (3) The power of the State (3) The power of the State

Government to frame rules under Government to frame rules under Section 24 of the Act is extremely Section 24 of the Act is extremely narrow and limited to the field narrow and limited to the field which is not covered by Section 23, which is not covered by Section 23, the exclusive domain of the Central the exclusive domain of the Central Government. Government.

(4) The Act is concerned with the (4) The Act is concerned with the prevention of adulterated articles prevention of adulterated articles of food and not intended to of food and not intended to prohibit any article used as food or prohibit any article used as food or otherwise.otherwise.


Union of India 2004Union of India 2004 (5) The impugned notification dated 23rd July, (5) The impugned notification dated 23rd July, 2002, issued by the State of Maharashtra operates 2002, issued by the State of Maharashtra operates extra territorially, and, to that extent, is ultra extra territorially, and, to that extent, is ultra vires of the powers of the State. vires of the powers of the State.

(6) By enacting the Cigarettes and Other Tobacco (6) By enacting the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, (Act 34 of Supply and Distribution) Act, 2003, (Act 34 of 2003), Parliament has occupied the whole field 2003), Parliament has occupied the whole field with regard to prohibition of advertisement and with regard to prohibition of advertisement and regulation of trade and commerce, production, regulation of trade and commerce, production, supply and distribution of tobacco products. supply and distribution of tobacco products.

While the central legislation prohibits the sale of While the central legislation prohibits the sale of tobacco products only to persons below age of 18 tobacco products only to persons below age of 18 years, the impugned notification purports to years, the impugned notification purports to impose a wholesale ban without any qualification. impose a wholesale ban without any qualification. Thus, there is a conflict between the powers Thus, there is a conflict between the powers exercisable under two central statutes dealing exercisable under two central statutes dealing with the same subject and, therefore, provisions of with the same subject and, therefore, provisions of the Act 34 of 2003 must prevail.the Act 34 of 2003 must prevail.


Union of India 2004Union of India 2004 S.C upheld the contentions of the appellants S.C upheld the contentions of the appellants

and held that the impugned notification of the and held that the impugned notification of the state Government is ultra vires of the power of state Government is ultra vires of the power of the State and is invalid. the State and is invalid.

The The Central act occupied the whole fieldCentral act occupied the whole field with with regard to prohibition of advertisement and regard to prohibition of advertisement and regulation of trade and commerce, production, regulation of trade and commerce, production, supply and distribution of tobacco products.supply and distribution of tobacco products.

Central Legislation prohibits sale of tobacco Central Legislation prohibits sale of tobacco products only to persons below age of 18 years.products only to persons below age of 18 years.

The The impugned notification purports to impose a impugned notification purports to impose a wholesale ban without any qualificationwholesale ban without any qualification..


Union of India 2004Union of India 2004 The Central Legislation is a special Act intended The Central Legislation is a special Act intended

to deal with tobacco products particularly; while to deal with tobacco products particularly; while the State Act is a general enactment intended to the State Act is a general enactment intended to deal with local emergencies. deal with local emergencies.

The power to ban an article of food on the The power to ban an article of food on the ground that it is injurious to health vests in ground that it is injurious to health vests in the Central Government to be exercised in the Central Government to be exercised in accordance with the rules made under accordance with the rules made under Section 23 of the Act.Section 23 of the Act.

The impugned notification of the State The impugned notification of the State Government are unconstitutional and void Government are unconstitutional and void as violating the fundamental rights of the as violating the fundamental rights of the appellants guaranteed under Articles 14 of appellants guaranteed under Articles 14 of the Constitution being arbitrary and the Constitution being arbitrary and excessive in nature.excessive in nature.

article 14 right to equality

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