Supreme Court Constitutional Law Cases 1963

CONSTITUTIONAL LAW*
As in the past, so also in 1963, constitutional law cases dominated

the scene in the Supreme Court. Out of 1920 pages in the A.I.R.
1963 Supreme Court, 700 pages are devoted to the reporting of
constitutional cases, and out of 321 cases reported in this volume, 67
pertain to constitutional law. It might also be of interest to note
that out of 67 decisions, 55 are unanimous, while in 12 there are
minority opinions, of which 6 have been contributed by Justice Subba
Rao alone. Of the Judges who have participated more actively in
constitutional law cases during the year, and have thus delivered a
large number of opinions, mention may be made of Justice Gajendrag-
adkar (now Chiefjustice), who delivered 12 unanimous and 3 dissenting
opinions, Justice Wanchoo who gave 8 unanimous opinions and Justice
Subba Rao who delivered 4 unanimous and 6 dissenting opinions.
Chief Justice Sinha (as he then was) delivered one unanimous and 3
majority opinions ; the latter were on very important constitutional
issues.1 The subject-wise breakdown of the constitutional law cases
during the year is as follows: Fundamental Rights, 24; Judicial
Review, 16 ; Federalism, 10 ; Civil Service, 9; Citizenship, 2 ; Govern-
ment Rules of Business, 2 ; Governmental Liability, 1 ; and Trade
and Commerce, 3.
A few notable trends discernible from a study of the leading
constitutional law cases in 1963 are sought to be brought out in the
following survey.
Citizenship
The most important pronouncement in this area is State Trading
Corporation v. Commercial Tax Officer.* Before this case, the position
was fluid on the question whether a company or a public
corporation could be regarded as a citizen so as to claim those funda-
mental rights which are available only to citizens as distinguished from
non-citizens. The Supreme Court had not made an unequivocal
pronouncement on the question before the S.T.C. case even though in
* By M. P. Jain, S. B. Wad and V. Krishna Murty,

1. S.T.C. Ltd. v. Commercial Tax Officer, A.I.R. 1963 S.C. 1811; In re Sea
Customs Act, A.I.R. 1963 S.C. 1760; State of West Bengal v. Union of India, A.I.R.
1963 S.C. 1241.
2. A.I.R. 1960 S.C. 1811.
www.ili.ac.in © The Indian Law Institute

M. P. JAIN, S. B. WAD & V. KRISHNA MURTHY 567
several cases it had given relief when approached by persons other

than natural persons, as for instance, in Hamdard Dawakhana case, 3 a
muslim wakf and in the Sholapur case 4 and Express Newspapers v. Union
of India,4a limited companies, were given protection under
Art. 19(l)(g). In none of these cases had the question been finally
decided whether a corporation could be treated as a citizen or not
for the purposes of Art. 19. For the first time in the S.T.C. case, the
Supreme Court held that a private limited company, registered under
the Indian Companies Act, could not claim benefit under Art. 19, as
it could not be regarded as a citizen. The main reasons advanced
by the court for this view were that neither the provisions of the
Constitution in Chapter 2 (defining citizenship) nor those of the Citizen-
ship Act recognise corporations and companies as citizens. In fact, in
s. 2(l)(f) of the Citizenship Act it is specifically stated that the word
"person" does not include any company or association or body of
individuals^whether corporated or incorporated. While drawing a
distinction between citizenship and nationality, the court declared
that though all citizens are nationals of a state, the reverse was not
always true because nationality was a concept of international law
while citizenship was a concept of municipal law. The words
" citizen " and " citizenship " have been used in the Indian Constitu-
tion at a number of places and everywhere the reference is to natural
persons. The S.T.C. case has been reaffirmed by the Court in a later
case, Tata Engineering v. State of Bihar5. The S.T.C. case was concerned
with a government company, whereas in the Tata case a public limited
company having a majority of Indian citizens as shareholders was
involved. Both were treated alike by the court in so far as the funda-
mental rights under Art. 19 are concerned. In the Tata Engineering
case, along with the company, two shareholders also joined in making
the petition. On the basis of the S.T.C. case, it was argued that
fundamental rights under Art. 19 could not be claimed by a corpora-
tion ; nor even the shareholders could claim indirectly what the
corporation could not claim directly. On the other hand, the share-
holder claimed that Tata Engineering Company's corporate veil
should be pierced and its substantial character determined without
reference to the technical doctrine of the corporation's separate
3. A.I.R. 1960 S.C. 554.

4. A.I.R. 1951 S.C. 41.
4-a. A.I.R. 1958 S.C. 578.
5. A.I.R. 1965 S.C. 40.

568 ANNUAL SURVEY—CONSTITUTIONAL LAW
entity. The court held that the corporate veil has been pierced only
in a limited number of exceptional cases, and refused to lift the
corporate veil of the company for the purposes of Art. 32. To accept
the plea of the shareholders, the court held, would be tantamount to
enforcing indirectly what the company cannot claim directly. These
cases are bound to have a deep impact on the industrial life of the
country. Corporations occupy an important place in the country's
economy. They hold large properties and carry on trade and business
on a vast scale. Freedom to hold property and to carry on trade are as
vital to companies as to individuals. These cases withdraw the protec-
tion of Art. 19 from the corporate sector. The Tata case is rather hard
to justify. Its effect is that so long as individuals remain as such,
they are entitled to their fundamental rights, but as soon as they
associate they lose the protection of Art. 19. It is only a fiction of law
to treat a company as separate from its shareholders. 6 It was evolved
to protect the shareholders from liabilities beyond those which they
had assumed by becoming shareholders. The doctrine was useful and
the company became very popular as an instrument to carry on vast
commercial enterprises. In course of time, the fiction has lost much
of its efficacy and a number of exceptions have been engrafted on it.
The Supreme Court has taken the fiction of ' separate entity ' rather
too far and it appears that what was used as a shield to protect the
shareholders once, is now being used against them. It is not possible
to deny that the shareholders have a direct interest in the property
and business of the company, for if the company's career is jeopardiz-
ed, the value of the shares is prejudically affected. There is no
strong reason for not piercing the corporate veil. The court says that
this has been done in exceptional cases. Should not the enforcement
of the fundamental rights be treated as an exceptional situation ? As
there was nothing very clearly against it in the Constitution, piercing
of the veil should not have been denied. In the S.T.C. case, it was a
government company which was claiming the fundamental right.
There, even piercing the veil would not have helped, for one would
find only the Government which cannot claim fundamental rights
against itself. The Tata case was clearly distinguishable as a majority
of its shareholders were Indian citizens. It is too early to say what
effect these judicial pronouncements will have on the future industriali-
6. Sec I.L.I. Proceedings of the seminar on Current Problems of Corporate

Law, Management and Practice, pp. 1-16 (1964).

zation of the country for which growth of the corporate sector is an

inevitable necessity. It is difficult to envisage whether or not these
decisions will retard this development because of the sense of insecurity
that might be created in the minds of the sponsors of the corporate
enterprise. While, perhaps, the S.T.C. case is justifiable because it
involved a government company, the Tata case creates difficulty for
the corporate sector.
A case of lesser importance concerning citizenship is State ofM.P.
v. Peer Mohammad1, where the Supreme Court held that Art. 7 envisages
only those persons who migrated from Pakistan prior to the commence-
ment of the Constitution. It thus means that a person would lose
Indian citizenship by migration to Pakistan between March 1, 1947,
and January 26, 1950. The question of citizenship of persons migrat-
ing to Pakistan after January 26, 1950, has to be decided under the
provisions of the Indian Citizenship Act.
Fundamental Rights
Doctrine of ' Eclipse *
In Mahendralal v. State of U.P.,S the court reiterated its earlier
view that the doctrine of eclipse is applicable only to pre-constitution
laws (Art. 13(1)) and not to post-constitution laws (13 (2)).
Saghir Ahmad's case9 was very clear on the point that post-constitution
law which is void because of its inconsistency with fundamental rights
is void from birth and cannot be revived by the application of the
doctrine of eclipse. Nevertheless, certain statements in BhikajVs case10
created doubt on this point. The importance of the instant case lies
in the fact that it has explained BhikajVs case as being applicable only
to pre-constitution laws and not to post-constitution laws and thus
has set at rest the doubts regarding the scope of the doctrine of
eclipse. 11 In the Mahendra Lai case12, the Supreme Court decided that
the U.P. Land Tenures (Regulation of Transfers) Act, 1952, which
was unconstitutional when enacted, was not revived when Art. 31(2)
was amended later by the Constitution (IVth Amendment) Act, 1955.
7. A.I.R. 1963 S.C. 645. For a pertinent comment on 'Citizenship', see

M. P.Jain, Indian Constitutional Law, pp. 334-339 (1962).
8. A.I.R. 1963 S.C. 1019.
9. A.I.R, 1954 S.C. 728.
10. A.LR. 1955 S.C. 781.
11. SeeM. P.Jain, op. cit. supra note 7, at 354, 355.
12. A.LR. 1963 S.C. 1019.

Equality before Law; Article 14

There have been a number of cases in which Art. 14 has been
invoked to challenge executive or legislative action. Only a few
of the more important decisions may be noted here. In Lachman Das
v. State of Punjab,13 the question of a law dealing with a single person
was again considered with reference to Art. 14. Under s. 3(1) of the
Patiala Recovery of State Dues Act, the debts due to the Patiala State
Bank were considered as ' State Dues'. The Bank's Managing
Director was authorised to determine the amounts payable to the
Bank by the customers and such amounts were recoverable as arrears
of land revenue. Civil Courts were debarred from taking cognisance
of the matters falling within the Managing Director's purview.
The Act was challenged under Art. 14 on the ground that the Patiala
Bank was being given special and favoured treatment. The
Court rejected this contention and held the Act valid because the
Patiala Bank was established with public funds for the benefit of
the general public as distinguished from other Banks which were
run by private individuals with a profit-motive. Relying on the
decision in Mannalal v. Collector of Jhalawar,u the Court, by a majority,
found the classification reasonable. The judgment in Dalmia v.
S. R. Tendolkar,15 holding that a law may be constitutional even though
it relates to a single individual if on account of some special
circumstances or reasons applicable to him and not applicable
to others that single individual may be treated as a class by himself,
weighed heavily with the Court. Subba Rao, J., on the other hand,
dissented from the majority and held that discrimination was writ
large on the face of the Act. He expressed a fear that the rule of
equality might be replaced by the rule of classification if too much
emphasis was laid on the later. There is no doubt that the procedure
challenged in the instant case was too much weighted in favour of the
Bank. It could itself decide the amount due from a client and could
take recourse to the summary and coercive method of realization of
dues, but still the majority upheld it.
In Khandige Sham Bhat v. Agricultural Income-tax Officer 1% the Supreme
Court reviewed the applicability of Art. 14 to tax-laws. As a result
13. A.I.R. 1963 S.C. 222.

14. A.I.R. 1961 S.C. 828.
15. A.I.R. 1958 S.C. 538.
16. A.I.R. 1963 S.C. 591.

of reorganization of the States in 1956, the District of Malabar in

Kerala was formed with areas drawn from the erstwhile States of
Madras and Travancore-Cochin. Section 2-A of the Kerala Agri-
cultural Income Tax Act fixed different dates for different areas for
the assessment of agricultural income for the purposes of taxation, and
the question was whether this amounted to discrimination under
Art. 14. The Supreme Court upheld the provision because the
classification was based on historical reasons and the intention of the
legislature was to bring the agriculturists of the Madras area in line
with those from the rest of the States as regards the liability to pay
agricultural income-tax. The difference between the two areas was
found to have reasonable nexus to the object of the Act. To find
out discrimination, the Court explained, what is decisive is not the
phraseology of a statute that governs the situation but the effect of the
law. A law ex-facie non-discriminatory may yet in effect operate
unevenly on persons or property similarly situated ; if so, it offends
the equality clause. Conversely, a law appearing to be discriminatory
may yet in operation not be so. There appears to be nothing new
about this principle as it has already been applied by the court in an
earlier case, K. T. Moopil Nair v. State of Kerala11. Of some interest is
the Court's reiteration that tax laws are no exception to Art. 14
though in view of the "inherent complexity of fiscal adjustment of
diverse elements", the legislature would be permitted a larger discre-
tion in the matter of classification. Even this is no new principle as
it has been applied in several cases before.18
In Panduranga Rao v. A. P. Public Service Commission,19 Rule 12(h)
made by the Governor of Andhra Pradesh under Arts. 234 and 309
was struck down under Art. 14. The rule disqualified the advocates
practising in courts, other than the Andhra High Court from applying
for the posts of District Munsiff. This discrimination was sought to
be justified on the ground that the advocates of the High Court
would have special knowledge of the local laws and would be subject
to the disciplinary jurisdiction of the High Court. The Supreme
Court could find no rational relation between the object sought to
be achieved and the classification adopted. Special knowledge of
the local laws, the Court held, could be ascertained by way of tests
etc. Loyalty as such was no criterion at all, and in the matter of
17. A.LR. 1961 S.C. 552.

18. Ibid.; Balaji v. Income-tax Officer, A.I.R. 1962 S.C. 123.
19. A.I.R. 1963 S.C. 268.

recruiting persons to judicial services what was more important was

their sense of dedication to the cause of judicial administration. The
case though laying down no new rule is, nevertheless, of interest as it
shows that Art. 14 has not yet lost all its teeth.
A r t i c l e 15 : D e t e r m i n a t i o n of ' b a c k w a r d c l a s s e s '
A question has been posed again and again as to what are the
criteria to determine ' backward classes ' for the purposes of Art. 15(4).
Article 15(4), it may be noted, does not define who the backward
classes are. Can this classificatian be based entirely on the considera-
tion of caste ? Can the State classify 90% of the total population
as ' backward ' so as to make special provisions for them under
Art, 15(4) ? These are some of the questions which were considered
again by the Supreme Court in M. R. Balaji v. State of Mysore.^
The Mysore Government has been endeavouring since 1958 to
make special provisions for the advancement of backward classes.21 The
impugned order made on 31-7-1962 divided backward classes into
* backward classes and more backward classes ' on the basis of castes
and communities and 68% of the seats in Engineering and Medical
Colleges were reserved for them and the scheduled castes and
scheduled tribes combined. Only 32% of the seats were to be avail-
able on merit. On a writ petition, the Supreme Court held the order
not justified by Art. 15(4). According to the Court, the backwardness
under Art. 15(4) is ' social and educational'. To determined this, caste
though not an irrelevant consideration, cannot be the sole basis of
backwardness as that would perpetuate the ' caste ' system. Also, the
test of ' caste ' would break down in relation to those groups which dc
not recognise 'caste* in the conventional sense, e.g., Sikhs, Jains,
Christians etc. Social backwardness, according to the Court is in the
ultimate analysis the result of poverty. To a large extent, occupa
tions may also contribute to social backwardness. The impugned ordei
took caste as the sole test for backwardness, without regard to othei
relevant factors and this was fatal to the validity of the order undei
Art. 15(4). The Court also held that the classification into ' backward'
and ' more backward' classes was not justifiable. Reservation of
seats up to 68% was also inconsistent with Art. 15(4). Article 15 (4)
the Court added, was a proviso or an exception to Arts. 15(1) and
20. A.I.R. 1963 S.C. 649.

21. M. P. Jain, op. cit. note 7, a t p. 381. Relevant cases are : Ramakrishna Singh
Ram Singh v. State of Mysore, A.I.R. 1960 Mys. 338 ; S. A. Partha v. State of Mysore
A.I.R. 1961 Mys. 220.

29(2), and it could not therefore completely eat away " the funda-
mental rights of the citizens constituting the rest of the society." In
view of these factors, the impugned order was struck down as being
" a fraud on the constitutional power conferred on the state by
Art. 15(4). " It was also held that the special provisions envisaged by
Art. 15(4) could be made by an executive order and legislation was
not always necessary for this purpose. The judgment in the case was
delivered by Justice Gajendragadkar (now Chief Justice) and may
be considered as of great significance. Even though he refused to
lay down exhaustively the tests which should go to define ' back-
wardness', nevertheless, he has given enough indication as to what
those tests may be. A great service has been rendered to the cause of
evolution of a casteless society in India by the instant case in so far
as 'caste ' cannot be the sole test for classification. There is no doubt
that the present situation is extremely unsatisfactory. Balaji's case is
going to have a potent effect on the future development of the law
concerning safeguards to backward classes. It is hoped that this case
would channelise in right direction the future policy-making on the
question of how to define ' backward ' classes—a term used in several
provisions of the Constitution.
Article 19(l)(c)—Freedom to form Associations & Unions
In 0. K. Ghosh v. E. K. Joseph, 22 the right of the Government
servants to stage demonstrations and strikes in connection with service
matters was considered by the Court vis-a-vis Art. 19(l)(c).
Rule 4A of the Central Civil Services (Conduct) Rules, 1955,
framed under Art. 309 of the Constitution, banned Government
servants from participating in any demonstration or resorting to any
form of strike in connection with any service matter. Rule 4B
prohibited Government servants from joining any unrecognised
Service Association of Government servants. As regards rule 4A, it
had already been considered by the Court in Kameshwar Prasad v. State
of Bihar,23 and the decisions of the case reiterated in the Ghosh case.
Rule 4 A prohibiting any form of demonstration was held to be violative
:>f the Government servant's rights under Art. 19(l)(a) and (b); but
in so far as the said rule prohibited a strike, it could not be struck
lown because there was no fundamental right to resort to a strike.
Rule 4(b), however, came before the Court for the first time and was
held bad under Art. 19(1) (e) read with 19(4). The Government
22. A.LR. 1963 S.C. 812.

23. A.LR. 1962 S.C. 1166.

servants are entitled to form associations and Rule 4(b) does not
impose a reasonable restriction on that right. The Court distinguished
the term ' public order ' from the term ' security of state ' and inter-
preted it to mean 'public peace, safety and tranquility '. A restriction
can be said to be 'in the interests of public order only if the connection'
between the restriction and the public order is * proximate and
direct', 2 4 and not 'indirect or far-fetched or unreal'. Discipline
amongst the Government employees and their efficiency may be said
to be related to public order. Rule 4(b), however, was bad as there
was no ' direct or proximate or reasonable connection between the
recognition by the Government of the association and the discipline
amongst, and the efficiency of the members of the said association *.
Similarly, it was difficult to see any connection between recognition
and public order.
Articles 19(l)(d) & 21—Freedom of Movement & Personal Liberty
A case of far-reaching importance involving personal liberty of an
individual decided by the Supreme Court in 1963 is Kharak Singh v.
State of U.PP The petitioner alleged that " frequently the chaukidar
of the village, and sometimes police constables, enter his house, knock
and shout at his door, wake him up during the night and thereby
disturb his sleep." He was required to inform about his departure
from the village, destination, and time of return. At the place of his
visit he was again subjected to similar surveillance. The petitioner
challenged all this on the ground that it contravened Arts. 19(l)(d)
and 21.
Ayyangar, J., delivering the majorityjudgment 26 held that the
term ' personal liberty ' used in Art. 21 was ' compendious ' so as to
include within itself all varieties of rights which go to make up the
personal liberties of man other than those dealt with in the several
clauses of Art. 19(1). Waking up a person in the night and disturbing
his sleep by ' domiciliary'visits under Reg. 236(b) were held to be
violative of the petitioner's right under Art. 21, since the impugned
regulation was merely an executive order and could not therefore be
regarded as ' l a w ' .
Taking up the question under Art. 19(l)(d), the Court held that
Art. 21 was a ' r e s i d u e ' of the liberty left after subtraction of the
liberties guaranteed by Art. 19 and so the regulation was held as not
24. Ref: Supdt. Central Prison v. R. M. Lohia, A.LR. 1960 S.C. 633.
25. A.I.R. 1963 S.C. 1295.
26. For Sinha, C.J., Imam, Mudholkar and Ayyangar, JJ.

falling under Art. 19(l)(d) as regards the 'domiciliary visits' are

concerned. Secret picketing of the house of suspects (under Regula-
tion 236(a)) was held as not violative of Art. 19(1) (d) at it did not
infringe the right of movement. Other clauses of the Regulation in
question laying down shadowing of the ' history sheeters' for having a
record of their movements and activities and obtaining information
relating to persons with whom they come in contact were held not to
infringe Art. 19(l)(d). Right of privacy was not a fundamental right
in the Indian Constitution. Attempt to ascertain the movement of an
individual is only a manner in which privacy is invaded and does not
infringe any fundamental right.
In a dissent, Subba Rao and Shah, JJ., held that though ' a right
to privacy' was not a fundamental right, nevertheless, it ' is an
essential ingredient of personal liberty.' ' Personal liberty' in
Art. 21 was broadly defined ' as a right of an individual to be free from
restrictions or encroachments on his person, whether those restrictions
or encroachments are directly imposed or indirectly brought about by
calculated measures'. So, the whole of Regulation 236 was held to
infringe Art. 21. It was also declared bad under Art. 19(1) (d). This
provision of the Constitution was held guaranteeing not mere
' physical' movement but ' free ' movement, and a movement under
surveillance—' the scrutinizing gaze of the policemen '—could not be
described as ' free \ " It can only be a movement of an automaton".
" The whole country is his jail. "
The minority also differed on the question of interrelation
between Arts. 19 and 21. " Both are independent fundamental rights,
though there is overlapping. There is no question of one being carved
out of another ", was the minority view. Therefore, a law may sustain
state action under Art. 21, but it could still be challenged under
Art. 19.
The majority view, it is submitted, is very halting as regards
Art. 19(1) (d). The question whether ' domiciliary visits ' could be
sustained by law remains unanswered. According to the majority,
the restrictions on the person's liberty as envisaged in Reg. 236(b)
might not be bad if based on a law. It is therefore the minority view
which seeks to safeguard personal liberty much more than the majority
view. It may be hoped that in course of time the minority view will
be adopted by the court. To treat 'personal liberty' merely
guaranteed by Art. 21 and to keep Art. 19 out of the picture is not
to give much security to it. It is only when Art. 19 is brought into

the picture that there can be a real safeguard to 'personal liberty',

and so the minority view deserves more attention.
Article 19(1) (f) : Right to acquire, hold & dispose of property :
A number of cases have arisen under Art. 19(l)(f), some of which
do not lay down any new principle. Thus, for example, in Bokaro and
Ramgur Ltd. v. State of Bihar,^* the Court observed that before a party
can complain of an infringement of his fundamental right to hold
property, he must establish that he has a title to that property. An
enquiry into the title of a person to some property cannot be regarded
as an infringement of Art. 19(1) (f). It is only after the establishment
of the title that the question whether his right in or to that property
has been improperly or illegally infringed could arise. In Sindhraj
Bhai v. State of Gujarat,21 the Supreme Court has held that interference
by Government with the right of bare management of an educational
institution does not amount to the infringement of the right to property
under Art. 19(l)(f). The case of Commissioner, H.R.E. v. L.T. Swamiar28,
was distinguished on the ground that there the mahant had
proprietary rights, while in the instant case no such right of the
petitioners was being disturbed. Similarly, Dwarkanath v. State of
Bihar,29 was also distinguishable because it was held there that the
trustees of a school could not be divested of the land and building of
the school merely by an executive order. Provisions for the registra-
tion of endowment were held valid in Anant Prasad v. State of Andhra
Pradesh.^0 In S. M. Transport (P.) Ltd. v. Sankaraswamigal Mutt31, the
Supreme Court finally decided that Art. 19(1) (f) applied equally to
concrete as well as abstract rights of property. The doubt on this
matter had been created by certain observations of Chief Justice
Sastri (as he than was) in State of West Bengal v. Subodh Gopal?1 This
point was not finally decided by the Court until the Sidhraj case
although it had proceeded on that basis all along.
In the Transport case, the Supreme Court further clarified that
this view of Art. 19(l)(f) did not make Art. 31 otiose. The law for
purposes of Art. 31 must be a valid law which means that it must stand
26-Jx. A.LR. 1963 S.C. 516.

27. A.LR. 1963 S.C. 540.
28. A.I.R. 1954 S.C. 282.
29. A.I.R. 1959 S.C. 249.
30. A.LR. 1963 S.C. 853,861.
31. A.I.R. 1963 S.C. 864.
32. A.I.R. 1954 S.C. 92, 95.

the test of other fundamental rights. This view was already expressed
in the Kochuni case. 3 3
In Commissioner, H.R.E. v. Lakshmindra,u the Supreme Court, had
declared invalid a few clauses of the Madras Hindu Religious Endow-
ments Act, 1951, To meet these objections, the Madras Act was
amended in 1954, which was again questioned in the S. T. Swamiar v.
Commissioner, H. R. & C. E.S5 The removal of a mahant through a
court order for wasting funds or property of the math or to utilise it
for his own personal enjoyment, was held to be valid undei
Art. 19(l)(f).
In Rai Ramkrishna v. State of Bihar^, it was held that the validity o
an act imposing a tax with retrospective effect can be considered witf
reference to Art. 19(l)(f). The Court held, however, that the Biha*
Taxation on passengers and Goods Act, 1961, imposing with effect
from 1950, a tax on passengers and goods carried by public service
motor vehicles was not unreasonable under Art. 19(l)(f), because the
tax was first imposed in 1950 but it was declared bad in 1960, and it
was this tax which was validated by the Act in question. There
was no difficulty, it seems, so far as the tax liability during 1950 and
1960 was concerned, for during this period the tax payers must have
been collecting the tax in question. Difficulty arose regarding the
period 1960-61, when after its invalidation no tax could be collected.
The petitioners did not place on record any data showing how much
their liability was. The tax was held valid on a priori arguments
without going into the question of amounts of the tax liability in-
volved. The importance of the case lies in the fact that for the first
time the court stated explicitly that retroactivity of a tax law can be
adjudged under Art. 19(l)(f). This had not been stated clearly ir
any earlier case until now.
An important case of the year on Art. 19(l)(f), however, is Ran
Sarup v. Munshi,37 decided by a Bench of six judges. In this case wa
considered the validity of the Punjab Pre-emption Act with refere
to pre-emption of agricultural land. Until 1962, there was a differenc
of opinion amongst the High Courts on the question of the validit
~ " 33. AJ.R. 1960 S.C. 1080.

34. A.I.R. 1954 S.C. 282.
35. A.LR. 1963 S.C. 966.
36. A.I.R. 1963 S.C. 1667.
37. A.I.R. 1963 S.C. 553.

of 38 pre-emption vis-a-vis Art. 19 (1) (f), when the Supreme Court

considered the question in Bhav Ram v. Baijnath?9. In the instant
case, the Supreme Court held that the reasonableness of the provision
permitting a son or a brother to pre-empt a sale by his father or brother
could be sustained under Art. 19(l)(f) on two considerations, viz., the
restriction sought to preserve the integrity of the village and the
village community; and it sought to implement the agnatic rule of
succession.
Article 19(6) & Monopolies
Akadasi v. State of Orissa,40 raises an important question about the
scope and effect of Art. 19(6). Gajendragadkar, J . (now Chief Justice)
emphasized that in attempting to construe this provision "a literal con-
struction may not be quite appropriate ", but politico-economic philo-
sophy underlying it should be borne in mind which would involve a
" liberal " and not a " literal" approach. Underlying Art. 19(6), his
Lordship said, was not the "pragmatic approach" but the "doctrinaire
approach which socialism accepts ". Art. 19(6) clearly indicates that
the state monopoly in respect of any trade or business must be presum-
ed to be reasonable and in the interest of the general public so far as
Art. 19(l)(g) is concerned. The presumption, however, would apply
only to those statutory provisions which are "basically and essentially"
necessary for creating the state monopoly and not to those provisions
which are "subsidiary, incidental or helpful " to the operation of the
monopoly; such provisions would not enjoy the immunity of
Art.l9(6)(ii) and would have to satisfy thetwin tests of "reasonableness"
and "public interest." Section 4 of the impugned Act 41 which
enabled the State Government to fix the prices of kendu leaves, the
Court held, was not necessary for the operation of monopoly and so
did not fall under Art. 19(6)(ii). But price fixation in fact protected
the growers as the leaves could not be sold for a lower price, and,
therefore, sec. 4 was valid under Art. 19(6) because it satisfied both
the requirements of reasonableness and public interest. Further,
under the impugned law, the monopoly of the trade in kendu leaves
was sought to be given to the State-appointed agents who were free
from Government control and were their own masters, their profit or
38. M. P. Jain, op. cit. note 7, at 414.

39. A.I.R. 1962 S.C. 1476.
40. A.I.R. 1963 S.C. 1047.
41. The Orissa Kendu Leaves (Control of Trade) Act, 1961.

loss was theirs and not that of the State, and such "agents" were not
really the agents within the meaning of Art. 19(6)(ii).
In this approach, one could discern a subtle attempt to restrict,
in some measure, the operation of Art. 19(6)(ii). Before a law can
claim immunity under that provision, the Court can apply a ' value'
judgment, separate ' essential' monopolistic provisions from the 'non-
essential', and test the validity of the latter under Art. 19(6) as of
any ordinary law affecting Art. 19(l)(g).
Article 20(1) Protection against ex-post-facto laws
This provision bars punishment by an ex-post-facto law. In State
of West Bengal v. S. K. Ghoshi2 the respondent embezzled Government
money between Nov. 1942 and Aug. 25, 1944, when he was suspended.
An Ordinance dated August 23, 1944, provided that from the property
of the convicted person, there should be forfeited so much amount as
was found by the court to have been procured by the person convicted
of, inter alia, embezzlement. The Ordinance was challenged
as being bad under Art. 20(1). The Supreme Court upheld the
validity of the Ordinance on the ground that it did not impose a
penalty within Art. 20(1) but was merely a method of 'recovering'
money belonging to the Government which had been embezzled. The
Government could have filed a suit to recover the money but the
provision impugned provided a speedier remedy to recover the same.
The word ' forfeited ' is ordinarily used in the sense of a penalty, but
in the impugned provision it had been used in the sense of recovering
the Government money embezzled.
Article 31—Right to Property
In Somawanti v. State of Punjab,*3 the petitioner's land was re-
quisitioned to enable the respondent to erect a refrigeration plant on
it. The petitioner—the owner of the land was about to start a paper
factory for which he had obtained a licence when his land was re-
quisitioned. The Government contributed a sum of Rs. 100 only
towards the total compensation of about Rs. 4,50,000 payable to the
petitioner for the land. The question which arose for consideration
was whether Sec. 6(3) of the Land Acquisition Act completely bars
the judicial review of 'public purpose' of an acquisition? The
Supreme Court's answer was in the affirmative, except when the
acquisition was colourable. A declaration by the State that a parti-
cular land was needed for a ' public purpose', made conclusive by
42. A.I.R, 1963 S.C. 255.

43. A.LR. 1963 S.C. 151.

the Land Acquisition Act, did not infringe the Constitution, as being
a pre-constitution Act, it was saved from the operation of Art. 31(2)
by Art. 31(5)(a),43a and Art. 19(1 )(f) was not attracted as was decided
by the Supreme Court in Bhanji Munji's case.43b Thus neither the
"meaning" nor the "existence of public purpose" under the Land
Acquisition Act are justiciable. The "public purpose" is bound to
vary with times and prevailing conditions in a given locality, and the
Government has power to treat one industry more beneficial to the
society than the other. The finding of the Government under
Sec. 6(3) of the Act is conclusive not only regarding the ' public
purpose ' but also regarding its ' need ' and the Government's satisfac-
tion thereon.
In so holding, the Court broke no new ground and stuck to the
position it had taken in earlier cases.44 However, the Court held that
where the acquisition did not serve * any purpose' or where it was for
a ' private purpose' the acquisition could be impeached as being
'colourable'. The token payment of Rs. 100 by the Government
towards the compensation was held to mean acquisition at public
expense ' and was held as not amounting to colourable exercise of the
power. It may be observed that apart from the provision of S, 6(3)
of the Land Acquisition Act, " public purpose " is justiciable under
Art. 31(2), although most of the legislation implementing economic
policy of the State has been upheld by the Supreme Court.
The case reveals once more the satisfactory state of law regarding
land acquisition. The distinction drawn by the Act between"acquisition
for a public purpose, and "acquisition for a company" has been
largely obliterated by the instant case, for here even though the
purpose was to establish a factory as a private venture and the
compensation was to be paid by the company, the Court nevertheless
held that the acquisition was for a "public purpose". This judicial
approach is subject to certain criticisms. Should power of the State be
invoked to acquire land and to pay compensation on a reduced scale,
for establishing private business concerns? Is it not more fair to
require commercial enterprises to acquire land by normal methods at
commercial prices ? Another intricate question which needs considera-
tion is whether the determination o f ' public purpose ' should remain
non-justiciable. In 1894, when the Land Acquisition Act was enacted,
43-a. Babu Barkya Thakur v. State of Bombay, A.I.R. 1960 S.C. 1203.
43-b, State of Bombay v. Bhanji Munji, A.LR. 1955 S.C. 41.
44. Jain, op. cit. note 7, at pp. 489-90.

M. P. JAIN, S. B, WAD & V. KRISHNA MURTHY 581
there was not so much industrial activity and state acquisition of land
was within modest proportions, but today the scene has changed.
There is enormous economic activity going on in the country needing
vast state acquisitions. There is quite a good deal of opportunity for
wrong use of power. It therefore stands to reason whether or not the
land be received and the necessary safeguards incorporated therein
against undue deprivation of private property for commercial
ventures. This point has been briefly touched by Subba Rao, J.,
in his dissent.
Minority rights
In Sri Govindlalji v. State of Rajasthan,^ the Supreme Court was
called upon to adjudicate upon the validity of the Rajasthan
Nathdwara Temple Act, 1959, inter alia with reference to Arts. 25 and
26. The Act in question sought to vest the management of the Nathd-
wara and its properties in a Board of trustees. The Court held that the
right of the Tilkayat to manage the temple's property could not be
regarded as a religious practice for the purposes of Art. 25(1). This is a
purely secular matter. It was further held that Art. 26(d) recognised
the right of a denomination to administer its property in accordance
with law. Thus the legislature is competent to make a law in this
connection though under the guise of regulating the administration of
the property by the denomination, the denomination's right must not
be altogether extinguished. In the proposed board of management,
the denomination was adequately and fairly represented. The Court
also held that the doctrine of cy-pres could be applied with respect to
surplus funds after exhausting the purposes specified by the settlor.
Explaining Ratilal Panachand's case46 the Court said that what was
held bad there, was the diversion of trust funds, although the original
objects of the trust could still be carried out. T h a t was an un-
warrantable encrochment on the freedom of religious institutions in
regard to the management of religious affairs, but the same considera-
tions would not apply to the diversion of surplus funds. A minor
provision in the Act authorising the State Government to make rules
prescribing qualifications of the ' goswamis ' was held bad as this was
a religious and not a secular matter.
The highlight of the case is a discussion by Justice Gajendragad-
kar (now C.J.) of the concept of religious practices or an 'affair in matters
of religion'—which alone are safeguarded by the Constitution. A purely
45. A.LR. 1963 S.C. 1638.

46. Ratilal Panachand Gandhi v. State of Bombay, A.I.R. 1954 S.C. 388.

secular affair or practice is not protected. The test of whether a

practice is religious or not is whether it is treated as an essential and
integral part by the said religion. This is a matter for the Court to
decide on the basis of the evidence adduced before it as to the
conscience of the community and the tenets of its religion. In Venkata-
ramana Devaru v. State of Mysore,47 Justice Ayar had said that the
matters of religion in Art. 26(b) include even practices regarded by
the community as part of its religion. In the present Nathdwara case,
Justice Gajendragadkar (now Chief Justice) has qualified this doctrine,
inasmuch as there may be conflicting evidence on some practice in dis-
pute and it is ultimately for the Court to decide whether a practice is
religious or secular. Though the Court says that where conflicting
evidence is produced the Court will decide, it is doubtful whether
the power of the Court would remain so limited. In the instant case
itself the Court has at several places characterised practices as secular.
The problem of encroachment on the minority rights by the
Government under the veil of regulating ' education ' was the subject-
matter of Sidhrajbhai v. State of Gujarat48. The Government of Gujarat
had ordered reservation of 80% of seats for the Government deputed
candidates in private training colleges. On refusal to comply, these
colleges were threatened with stoppage of grants-in-aid and withdrawal
of recognition. On being challenged by the United Church of
Northern India, 49 the Supreme Court held that Regulations 11 and 14
of the Education Code under which the orders were issued were
violative of Art. 30(1), Article 30(1) was absolute in its terms and not
subject to any restrictions. The right cannot be whittled down by
the so-called regulative measures conceived in the interest, not of
the minority educational institution, but of the public or the nation
as a whole.
Article. 30(1) would become illusory if every order—while main-
taining the formal character of a minority institution destroys the
power of administration, and may not be in its interest as an edu-
cational institution—is held justifiable in the ' public or national
interest.'
47. A.I.R. 1958 S.C. 255.

48. A.I.R. 1963 S.C. 540.
49. The petitioners ran 42 primary schools and a training college for teachers
conducted for the benefit of the particular religious denomination though admission
was not denied to students of other religions.

Regulations which may lawfully be imposed either by the legis-

lative or executive action as a condition of receiving grant or
of recognition must be directed to making the institution effective as
an educational institution, while retaining its character as a minority
institution. Such regulations must satisfy a dual test—(i)that they are
reasonable and (ii) that they are regulative of the educational character
of the institution and conducive to making it an effective vehicle of
education for the minority community and for other persons who may
resort to it. In so paraphrasing the permissible scope of the restric-
tions under Art. 30(1), the Court practically followed the Kerala case,50
where it had observed that Art. 30(1) did not militate against the
claim of the State to insist that in order to grant aid the state may
prescribe reasonable regulations to ensure the excellence of the insti-
tution to be aided. The Supreme Court refuted the proposition
advanced by the Government that all regulative measures which are
not destructive or annihilative of the character of the institution
established by the minority, provided the regulations are in the
national or public interest, are valid. The conditions attached to
grants have to be reasonable and it is for the Court to decide whether
the conditions are reasonable or not. Article 30(1) is absolute in its
terms but by the process of judicial interpretation State has been
conceded powers of regulation of minority institutions, though only
within certain limits, as mentioned above.
Judicial review
The right to move the Supreme Court for the enforcement of
fundamental rights (Art. 32) is itself a fundamental right and it cannot
be diluted or restricted. The sanctity of this right was reinforced by
the Supreme Court in Prem Chand v. Excise Commissioner^1 in which it
struck down O. 35, R. 12 of the Supreme Court Rules which required
the furnishing of security to move the Supreme Court under Art. 32,
as it sought to restrict the fundamental right under Art. 32. The Court
held that the rule-making power of the Court under Art. 145 could
not be exercised so as to affect the fundamental right in question.
However, rules framed under Article 32, governing the practice and
procedure of the petitions under it with the object of aiding and
facilitating the orderly course of their presentation and further
progress until their decision, cannot be said to contravene Art. 32. In
50. In re Kerala Education Bill, A.I.R, 1958 S.C. 956.

51. A.I.R. 1963 S.C. 996.

Mahendralalv.StateofU.P.,62 the Supreme Court observed that the

principle applicable to civil suits that all parties interested in the
subject-matter of the suit should be made parties, is not applicable to
petitions under Art. 32. If the petitioner has a right to maintain the
petition, the fact that he has not made another person having equal
right with him to maintain the petition even a party to it would not
mean that his petition be thrown out on that ground alone and he be
refused relief in the matter of enforcing his fundamental rights. In
Kharak Singh v. State of Z7.P.,5a the Supreme Court reiterated the
principle that to invoke the Supreme Court's jurisdiction under
Art. 32, it is not necessary for the applicant to establish that he has
no other remedy adequate or otherwise or that he has exhausted such
remedies as the law affords without being able to obtain proper
redress. When once it is proved to the Court's satisfaction that the
fundamental right of the petitioner has been infringed, it is not only
the right but the duty of the court to afford relief to him under
Art. 32.
During the year under review, the famous Ujjambai case,54
decided by the Supreme Court in 1962, figured several times in the
Court decisions under Art, 32. In that case, the Supreme Court decided
by a majority that an assessment made by an authority, acting within
jurisdiction, could not be challenged under Art. 32, as no question of
breach of fundamental rights would arise merely because the authority
concerned misinterpreted the law. This case was explained and applied
by the Supreme Court in the Pioneer Traders v. Chief Controller of
Imports and Exports.55 The Government of India, by a statutory
order, 56 applied the Sea Customs and other relevant Acts to
Pondicherry. The SRO saved " all things done or omitted to be
done before November 1, 1954," from the mischief of the Acts being
applied. The petitioner placed orders for imports before the said date
but the Customs Collector seized the consignments received after the
said date and imposed a heavy penalty. The petitioner sought to move
a petition under Art. 32 alleging an infringement of Art. 19(l)(g) on
the ground that the Customs Collector acted without jurisdiction.
52. A.I.R. 1963 S.C. 1019.

53. A.I.R. 1963 S.C. 1295.
54. A.LR. 1962 S.C. 1621. For a comment on the case, see 4 J.I.L.I. pp. 452-458
(1962).
55. A.I.R. 1963 S.C. 734.
56. SRO of October 30, 1954.

The Ujjambai case, the Court stated, laid down that the Supreme
Court's jurisdiction under Art. 32 could be invoked when a funda-
mental right is violated (1) by a quasi-judicial authority acting under
an ultra vires law ; (2) or when the assessing authority seeks to impose
the tax on a transaction, the taxation of which is prohibited by the
Constitution; (3) or where the Statute is ultra vires but the authority
acts under it without inherent jurisdiction ; or (4) where the action
taken is procedurally ultra vires. Further, the majority in the Ujjambai
case held, though for different reasons, that when an order is
made by quasi-judicial authority in the exercise of its jurisdiction
under an intra-vires law, but where it misconstrues the provision of
law, no question of the breach of the fundamental right arises and
therefore no petition under Art. 32 could be moved. In the Pioneer
case, the majority held that in seizing the consignment the Customs
Collector was discharging a quasi-judicial function and was acting
within its jurisdiction. He was either taking a wrong view of the
facts or was misconstruing the SRO in question, and in none of these
situations could the Supreme Court interfere under Art. 32; in the
latter event because of the UjjambaVs case. Das Gupta, J., however,
dissenting from the majority took the view that the present case was
not a case of misinterpretation of law but of the Customs Collector
acting without jurisdiction and, therefore, the Ujjambai case did not
apply.
In S.T.C. of India Ltd. v. State of Mysore,57 an assessment of
sales tax on interstate sale of cement was sought to be quashed
through a petition under Art. 32. The Supreme Court held that the
petition was not barred by the Ujjambai case as the taxing officer
had no jurisdiction to tax interstate sales because under the
Constitution a state is prohibited to do so and the officer could not
give himself a jurisdiction to do so by deciding a collateral fact
wrongly.58
These two cases show vividly the difficulties of challenging quasi-
judicial orders on the ground of infringement of the fundamental
right through an Art. 32 petition. The law is becoming very
technical, since much has now come to depend on the question
whether the particular authority was acting without jurisdiction or
within jurisdiction but on a wrong view of the law. In the latter
57. A.I.R. 1963 S.C. 548.

58. Id. at 550.

event, a distinction will be drawn whether what is being misinter-

preted is statutory law or the Constitution, for if it is the latter, the
remedy under Art. 32 will not be barred. Perhaps, it may be
advisable in future to challenge quasi-judicial decisions either under
Art. 226 or under Art. 136 where a much wider ground of challenge
is permissible than under Art. 32. This in a way is anomalous for while
Art. 32 is a guaranteed right in the Constitution, Art. 226 is not so.
In K. S. Rama Murthy v. Chief Commissioner, Pondicherry52 the
question directly involved was whether the Supreme Court could
issue a writ, under Art. 32, to the Appellate Authority functioning
under the Motor Vehicles Act in Pondicherry at a time when Pondi-
cherry was not dejure a part of the Indian territory though it was
being administered by the Government of India. The question was
whether under Art. 12 this body could be treated as an "authority
under control of the Government of India." The Chief Commissioner
of Pondicherry, an appointee of the Government, was acting as the
authority in question.
The Court held that it could not be so treated, and in conse-
quence, no writ could be issued. The authority in question thus was
held to be not subject to judicial review. The Court held the
authority not being under the control of the Government of India.
The reason was not because Pondicherry was not an Indian territory,
but because the authority concerned was a quasi-judicial authority
and not an executive or administrative body. The mere fact that
the authority was appointed and was subject to the disciplinary
action by the Government, was not determinative of the question of
'control'. What was necessary was a control of functions of the
authority; the Government should be in a position to give directions
to the authority "to function in a particular manner with respect to
such functions." The Government could do so only if the authority
concerned is either administrative or executive. It could not
however direct a quasi-judicial body to decide a matter in a
particular manner. In the opinion of the court, "where rule of law
prevails, it is not open to the Government...to direct a quasi-judicial
or judicial authority to declare a particular matter before it in a
particular manner". 6 0 This case, therefore, brings forth the question
59. A.LR. 1963 S.C. 1464. For comment on the case, see 5 J.I.L.I. p. 522
(1963,.
60. For this the Court relied on Masthan Saheb's case (A.LR. 1962 S.C. 797)
though the specific point was not decided there.

of relationship between quasi-judicial bodies and the Administration

which appoints them and thus has an important bearing on the
development of the entire system of tribunals in the country. The
question how far the quasi-judicial bodies are autonomous, and how
far the administration can influence their decisions, are major
questions in today's administrative law. The Court has held that a
quasi-judicial body is not subject to the direction of the Government.
The natural implications of this statement would be that if in a case
it is found that a quasi-judicial authority, while deciding a matter,
sought directions or guidance from the Govenment, then that
determination of the body would be vitiated. The great potentiality
of this proposition concerning its influence on the future develop-
ment of the Indian law needs, therefore, to be underlined.
So far as Article 32 is concerned, the proposition now appears to
be well established that in case of an authority of an executive or
administrative nature, functioning in foreign territory, a writ can be
issued to the Government directing it to give effect to the decision of
the Court by exercise of its power of control over the authority. But
the same cannot be done when the authority involved is of a quasi-
judicial character.
Article 136—Appellate Jurisdiction of the Supreme Court
In a number of cases, the Supreme Court's appellate authority
under Art. 136 has been invoked. Apart from the cases in which
principles already well-established have only been reiterated and
applied, there remains one case which deserves to be mentioned here.
In Jaswant Sugar Mills v. Lakshmi Chand61, the Court was called upon to
consider the question whether an appeal lies to it under Art. 136
from a direction issued by the Conciliation Officer while disposing of
an application under the U.P. Industrial Disputes Act, 1950. The
Court reiterated a well established principle that the Supreme Court
would not hear an appeal from purely administrative or executive
direction, but only from a determination or order of a judicial or
quasi-judicial nature. In order to determine whether an authority
acts judicially or not, the Court again stated an oft-repeated test that
a judicial decision is "the act of a body or authority invested by law
with authority to determine questions or disputes affecting the rights
of the citizens and under a duty to act judicially." The court thus
laid great emphasis on the duty to act "judicially" before an authority
61. A.I.R. 1963 S.C. 677.

can be designated as quasi-judicial. This test, it would seem, is

circular in its terms. 63 The court held that in passing the particular
order in question the Conciliation Officer had to act judicially.
Nevertheless, the Court refused to hear the appeal because, as it held,
under Art. 136, appeals lie from adjudications of 'courts and
tribunals' only; and every authority required to act judicially is not
necessarily a tribunal for purposes of Art. 136. To be a tribunal, the
body concerned must be "invested with the judicial power of the
state". In deciding whether an authority may be regarded as a
tribunal the principal incident is the "investiture of the trappings of a
court". By applying certain tests like "sitting in public", "formal
pleadings", "power to compel attendance of witnesses", the Court
came to the conclusion that the conciliation officer, though
undoubtedly acting judicially in making the order in question, is,
however, not a 'tribunal' as he is "not invested with the judicial
power of the State."
The above-mentioned decision of the Court is in line with the process
of erosion of the efficacy of Art. 136 in which the Supreme Court
has been constantly engaged over the last several years as is depicted
by the Daryao and Ujjambai cases.63 In the modern administrative age,
when quasi-judicial authorities affecting the rights of the people are
multiplying everyday, the Supreme Court's effort to seek to give up
its control over these bodies is very depressing. The process initiated
in the Ujjambai case with reference to quasi-judicial bodies has been
taken a step ahead in the instant case. There is no fixed connota-
tion of the word 'tribunal', and therefore, till now it was widely
assumed that quasi-judicial bodies were subject to the Supreme Court's
appellate jurisdiction under Art. 136. It now appears that it is not
so. It is strange that a body which is acting "judicially", may yet be
held to be deficient in the 'trappings of the Court' while in many
cases the latter concept has been applied to find out whether a
particular body acts judicially or not. Curiously, the Supreme Court
has mentioned customs authorities, income-tax and sales tax officers
as examples of bodies bound to act judicially but not being tribunals
for purposes of Art. 136. This goes against a number of cases in
which the Supreme Court has heard appeals from them. If the
formula of being invested with the judicial power of the State were
62. M. P. Jain op. cit. note 7, at p. 209.

63. A.I.R. 1962 S.C. 1621.

to be taken literally, it will refer only to courts, which certainly is

not the intention of Art. 136.
The effect of the decision is bound to be to increase the number
of writ petitions before the High Court under Art. 226 and then
appeals to the Supreme Court. Even though Supreme Court's work
eventually may not decrease, nevertheless those in quest of justice
will be put to much greater difficulty by passing through an additional
stage of going to the High Court first before eventually coming to the
Supreme Court. Another difficulty of the situation is that the scope
of judicial review on writ petitions is narrower than in appeals. If
the Supreme Court hears appeals under Art. 136, it could have gone
into many more problems, but when the High Courts hear writ
petitions, they can take into cognisance only a limited number of
grounds and the Supreme Court can look into those grounds only
which have been raised before the High Courts. Thus, in effect
there is a curtailment of judicial review not only procedurally but
even substantively.
In Engineering Mazdoor Sab ha v. Hind Cycles Ltd.u the Supreme
Court refused to hear an appeal under Art. 136 from the arbitrator
appointed under s. 10-A of the Industrial Disputes Act. The tenor
of the arguments was the same as in the case mentioned above, viz.9
the adjudicating body should be invested by the State with "its
inherent judicial power" before it becomes a tribunal for purposes of
Art. 136. So far as the instant case is concerned, one cannot find
any fault with the Supreme Court's view that such an arbitrator being
a nominee of the private parties and not that of the State, does not
fall within the purview of Art. 136. But the general trend of
the Court's reasoning regarding the connotation of the word
'tribunal' in Art. 136 remains disturbing as it tends to put beyond
Art. 136 a large number of quasi-judical bodies which daily affect
substantive rights and interests of private parties by their adjudica-
tions*
Article 166—Rules of Government business
Article 166 was involved in Bachhittar Singh v\ State of Punjab,63
Bachhittar Singh was dismissed from the PEPSU State Service after
an inquiry by the Secretary of the Department concerned. On appeal
to the Minister, the Minister wrote on the file that although the
64. A.I.R. 1963 S.C. 874.

65. A.I.R. 1963 S.C. 395, for a comment on the case see 5 J.I.L.I. p. 418.

charges proved against the appellant were grave, nevertheless, he

might be reverted to a lower rank, rather than be dismissed, because
he was a refugee and had a large family to support. No formal order,
however, was communicated to him in terms of the Minister's noting.
After PEPSU's merger with Punjab, the Revenue Minister re-examined
the file and sought the advice of the Chief Minister who confirmed
the dismissal.
The question was whether the earlier noting by the PEPSU
Minister could be deemed to be an order of the Government and
thus not subject to review by the Chief Minister. The Court held
that any action sought to be taken against a Government servant
found guilty of misconduct is a judicial order and as such "cannot be
varied at the will of the authority who is empowered to impose the
punishment". The Court held the order of the PEPSU Minister not to
be the order of the Government which alone was competent to decide
the appeal from the Secretary's order. Before something amounts
to an order of the State Government, two things are necessary, viz.*
the order has to be expressed in the name of the Governor as required
by Art. 166 (1), and secondly, it has to be communicated. Until the
order is communicated, the Minister may go on changing his views,
and his order on the file could not be regarded as anything more than
provisional in character. It, however, appears from the judgment
that had the order in question been communicated then the form of
the order would not have been important, in view of the holding in
the Dattatreyam case that Art. 166(1) requiring expression of all
executive action in the Governor's name is only directory and not
mandatory. In State of Rajasthan v. Sripal61 the Supreme Court held
that any defect of form in the order would not necessarily make it
illegal, as the only consequence of the order not being in proper form
under Art. 166 is that the burden is thrown on the Government to
show that the order was passed by it. In the Bachhittar Singh case, the
lacuna was not a defect of form but the absence of a formal communi-
cation of the so-called order.
Government contracts
The Union of India v. Rallia Ram68 may be regarded as aland
mark in the development of the law relating to Government
contracts. Though the case involved s. 175(3) of the Government of
66. Dattatraya Moreshwar v. State of Bombay, A.LR. 1952 S.C. 181.

67. A.I.R. 1963 S.C. 1323,
68. A.I.R. 1963 S.C. 1685.

India Act, 1935, that does not lessen its relevance to-day in any way
as Art. 299 of the constitution is akin to the old provision.
The Chief Director of Purchases (Disposals, Food Department,
Government of India) invited tenders for purchase of some cigarettes.
The respondent submitted his tender which was accepted. The
acceptance letter was signed by the Chief Director of Purchases and
contained an arbitration clause. The question which arose for the
consideration of the Supreme Court was whether the terms of the
acceptance letter, which confirmed the contract between the parties,
complied with the requirements in section 175(3) of the Government
of India Act, 1935. Referring to Bhikhraj Jaipuria v. Union ofTndiam, the
Supreme Court held that Section 175(3) was mandatory and a contract
which did not conform to it could not produce legally enforceable
obligations. Section 175(3) does not in terms stipulate that only a
formal document executed on behalf of the Dominion of India with
the other contracting party is effective. In the absence of any
direction by the Governor-General under Section 175(3) of the
Government of India Act, prescribing the manner, a valid contract
may result from correspondence if the requisite conditions are fulfilled.
The contracts for sale of "war disposal" goods were not directed by
the Governor-General to be made by a formal document executed on
behalf of the Governor-General as well as by the purchasing party.
It is true that Section 175(3) uses the expression "executed" but that
does not by itself contemplate the execution of a formal contract by
the contracting parties. A tender for purchase of goods in pursuance
of an invitation issued by, or in writing which is expressed to be made
in the name of, the Governor-General and is executed on his behalf
by a person authorised in that behalf would conform to the require-
ments of Section 175(3).
In the instant case, after a review of the circumstances, the Court
held that "the correspondence between the parties ultimately
resulting in the acceptance note, amounted to a contract expressed to
be made on behalf of the Governor-General..."
As the law has come to be, it appears that the mere fact that the
signing officer fails to mention that he was signing on behalf of the
Governor-General (or President now) is not an infirmity, fatal to the
validity of the contract. 70 Nor is it now necessary that there be a
69. A.LR. 1962 S.C. 113.

70. Ref. State of Bihar v. Karam Chand, A.I.R. 1962 S.C, 110, Bhikraj
Jaipuria v. Union of India, supra note 69.

formal order, rule or notification to confer authority on the officer

concerned to enter into the contract. Further, it is not even necessary
that there be a formal document of contract, the same can even be
inferred from the correspondence between the parties concerned in
the context of the attending circumstances. There is no doubt that
these principles have been evolved by the judiciary to safeguard the
interests of unsuspecting and unwary parties entering into contracts
with Government officials without fulfilling all the formalities laid
down in the Constitution. A strict compliance with them would
have been inequitable to private parties, at the same time making
day-to-day operation of the Government difficult.
Federalism
The year 1963 has witnessed a number of important judicial
pronouncements on several aspects of Indian Federalism.
In Anant Prasad v. State of Andhra Pradesh11 the doctrine of
territorial nexus was discussed and applied. The doctrine emerges
from Art. 245 and is very pertinent to State legislation. Ordinarily,
a State Legislature is empowered to make laws for the State concerned.
Its law can be challenged on the ground of extra-territorial operation
as a state law having operation outside the State is not valid. To
decide, however, whether a state law has an extra-territorial opera-
tion or not, the principle of territorial nexus is applied, which means
that the state law can apply to an object which, though not physically
located within the State, has some territorial connections with the
State. 72 In Anant Prasad's case the facts were that a public temple
situated in Hyderabad in the State of Andhra Pradesh had income-
yielding properties attached to it in the State of Madhya Pradesh.
The trust was registered in the M.P. State under the law relating
to public trusts. The question for the consideration of the Supreme
Court was whether the Hyderabad Endowments Regulations could
apply to it so as to regulate the administration of the trust. It was
argued that as the trust was registered in the M.P. State, the
Hyderabad law could not apply to it, nor could it affect property of
the temple situated in Madhya Pradesh. These contentions were
rejected in view of the clear authority of State of Bihar v. Sm. Charusila
Dasin and State of Bihar v. Bhabaporitananda.14 In the instant case,
71. A.I.R. 1963 S.C 853.

72. M . P.Jain, op. cit. note 7 at 226-228.
73. A.I.R. 1959 S.C. 1002.
74. A.I.R. 1959 S.C. 1073.

M. P . JAIN, S. B. WAD & V. KRISHNA MURTHY 593
the Hyderabad law was held applicable because the trust was situated
there. The Court held that it would make no difference that some of
the trust properties were outside the State of Andhra Pradesh; even
the registration of the trust in Madhya Pradesh could not exclude the
operation of the Hyderabad law, as the trust was situated in Hydera-
bad. Referring to the Madhya Pradesh Law, the court held that the
State of Madhya Pradesh could not, and obviously did not, intend to
legislate with respect to the public trusts situated outside the State
and, therefore, the Hyderabad trust in question was not covered by
the Madhya Pradesh law. As to where the public trust is situated
this is a question to be determined in accordance with the Supreme
Court's decision in the Charusila case, and, accordingly, the public trust
in question in the instant case was held to be situated in the State of
Andhra Pradesh and not in the State of Madhya Pradesh.
Legislative entries: In Rai Ramkrishna v. State of Bihar75, the
Supreme Court reiterated some of the principles, already well
established, to interpret the legislative entries in the three Lists
dividing legislative powers between the Centre and the States 76 . These
entries are to be interpreted broadly. Further, a legislature under
these entries can make a law either prospectively or retrospectively,
A legislature can make a valid law not only to take effect at a future
date but also provide for the retrospective operation of the same.
Even a tax can be levied under a tax entry with retrospective effect,77
subject, however, to the condition that the effect of the retroactive
operation of law does not completely alter its character so that it falls
outside the limits of the entries which gave competence to the
legislature to enact the law. It was further held that the legislative
power derived from the entries includes subsidiary or auxiliary powers
to validate laws which have been found to be invalid. If a law
passed by a legislature is struck down by the Courts as invalid for one
infirmity or another it would be competent for the legislature to cure
such infirmity by passing a law validating the earlier law so as to
make it effective from the day it was passed originally. This position
is not new as it was firmly established by the Federal Court in
75. A.LR. 1963 S.C. 1667.

76. M. P. Jain, op. cit. note 7 at 228-et. seq.
11. This proposition has been laid down in S. T. Swamiar v. Commissioner
H.R.C.E., A.I.R. 1963 S.C. 966. Also, in J. K. Jute Mills Co., Ltd. v. State of U.P.,
A.I.R. 1961 S.C. 1534; Union of India v. Madan Gopal, A.LR. 1954 S.C. 158;
M, P. V. Sundararamier v. State of A.P., A.LR. 1958 S.C. 468.

U.P. v. Mst. Atiqa Begum78 in which it was held that the U.P. State
Legislature could enact, under the entry 'remission of rent', legislation
validating certain executive orders remitting rent but found to be
without any legal authority. Legislation validating executive orders
is necessarily to be regarded as subsidiary or ancillary to the power of
legislating on the particular subjects in respect of which the executive
orders might have been issued. In the Rai Ramkishan case, the State
legislature sought to validate the collection of a tax retrospectively?
which the Court had declared to have been wrongly collected and
this law was held to be valid as falling under the entry giving power
to the legislature to levy that particular tax.
In Waverly Jute Mills Ltd. v. Raymond & Co.79, the Supreme Court
was called upon to consider the question whether Parliament could
enact the Forward Contracts Act. The answer to the question
depended upon whether the Act fell under entry 48 in List I or entry
26 in List II and also on the mutual relationship between the two
entries. It was argued that the words "Futures Markets" in entry 42
referred to the "places of the business" and therefore a forward
contract cannot fall within those words. Rejecting the contention,
the Court held that in the modern parlance the word "market" means
not only the "place of business" but also "business", and, in this sense
forward contracts would be a legislation on futures markets. As
regards the relationship of the two entries, the Court held that the
"entry 26 in List I I " was general and broad whereas "entry 48 in
List I " was of a specific character and according to the well established
canons of interpretation, the general entry cannot eat away the
specific entry. On the other hand, the general entry should be
restrictively interpreted so that the specific entry can be kept alive.
The words "Trade & Commerce" in entry 26 could not, therefore, be
interpreted broadly so as to make the words "Futures Markets" in
list I entry 48, nugatory or futile. The legislation on forward markets
was therefore held to fall under entry 48 in List I and thus
competently enacted by Parliament. Earlier in Duni Chand Rateria's
case80 it was held that the West Bengal Jute Goods Future Ordinance,
1949, fell under "Trade & Commerce" in List II and not under
"Contracts" in List I I I . In the Waverley case, the Court refused to
follow this decision, for it arose under the Government of India Act,
78. A.I.R. 1941 F.C. 16.

79. A.LR. 1963 S.C. 90.
80. Dunichand v. Bhuwalka Bros., A.I.R. 1955 S.C. 182.

1935, in which there was no entry parallel to entry 48 in List I. In

Dunichand's case, the contest was between "Trade & Commerce" in
List II and "contracts" in List III while in the Waverley case the
contest was between the specific entry in List I and the general entry
m List II. The court also held that entry 7 in List I I I being general
in terms could not prevail upon the specific entries such as 48 in List
I or 26 in List II.
In Burmah Shell Co. v. Belgau.n Municipality^, a question was raised
about the interpretation of entry 52, List II, which runs as follows •
•Taxes on the entry of goods into a local area for consumption, use,
or sale . The Burmah Shell Company used to bring petrol within
the municipal limits of Belgaum and consume a part of it sell a part
of it to consumers within the municipal limits to consume the goods
outside, and export the rest to points outside the municipal limits
The question was whether these transactions fell within the entry
mentioned above and thus became taxable by the municipality The key
to the riddle was the word 'consumption' in the entry. In its primary
sense, this word means the act of consuming and, in ordinary parlance
it means the use of an article in a way which destroys,wastes or uses up
that article. But in the instant case the Supreme Court gave a wider
connotation to the word consumption and interpreted it as including
'distribution' and 'use' of an article. The Court held that the
Constitution makers used the word 'consumption' to connote any kind
of user which is ordinarily spoken of as comnumption of that parti
cular commodity. Even if the commodity was sold, the consumer
might not consume the whole of it, within the municipal limits but
consume a part of it outside those limits. That would still be
consumption within the municipal limits, e.g., when a motorist buys
petrol within the municipal area and goes outside it for a drive it
would be regarded as consumption within the municipal area ' i t
would be sufficient, therefore, if the goods are brought inside the area
to be delivered to the ultimate consumer in that area because the
taxable event is the entry of goods which are meant to reach an
ultimate user or consumer in the area. The goods must be regarded
as having been brought in for the purpose of consumption when a
person brings them either for his own use or consumption, or puts
them in the way of others in the area, who are to use and consume
On this view of the matter, the Court held that excepting the last
81. A.LR. 1963 S.C. 906.

transaction, i.e., exporting petrol to points outside the municipal

limits, all other transactions were taxable by the municipal body under
the entry above-mentioned. When the goods were sold in the local
area to a consumer who bought them for the purpose of use or
consumption, or even for resale to others for the purpose of use or
consumption by them in the area, it became taxable. It was only
when the goods were re-exported out of the area that the tax could
not be levied.
A very significant case which is bound to have a great influence
on the future course of university education in India is Gujarat
University v. Shri Krishna.^ The highlight of the case is the discussion
by the Supreme Court on the relative spheres of responsibility
between the Centre and the States in the area of university education.
Education in India is a divided area between the Centre and the
States. The question raised for consideration in the instant case was
whether States were competent to legislate prescribing Gujarati and
Hindi as the exclusive medium of instruction at the universities in
place of English. The relevant entries in the legislative lists in the
Constitution bearing on the question in issue were, entry 66 List I,
"to maintain the standards of Higher Education" and entry 11 in
List II—"Education". The Court held that the power to legislate in
respect of medium of instruction arises from entry 11 in list II, but
that is subject to entry 66 in List I. The validity of a State law on
university education would depend upon whether it prejudicially
affects 'co-ordination 5 and 'determination* of standards. The most
notable aspect of the case is the rejection by the Court of the narrow
view of entry 66. The Court has given it a road connotation. The
power to 'co-ordinate' is a power not merely to 'evaluate' but to
'harmonize'. It can thus be used to legislate for preventing the
occurrence, or for removal, of disparities in standards. It also
implies power to prevent of disparate or unequal standards. The
validity of the state law fixing a regional language or Hindi as an
exclusive medium of instruction and examination in the universities,
superseding English to that extent, would depend on the question
whether it would necessarily result in the falling of standards.
The importance of the case in the present Indian context
cannot be overemphasized. Under entry 66, List I, Parliament's
power is preventive as well as curative. The Centre can legislate
82. A.LR. 1963 S.C. 703. See on this M. P. Jain, Central-State Jurisdiction
in Higher Education in India, 2 Journal of University Education 181 (1964).

to prevent the creation of disparity of standards; it can take action

to remove them. The Centre may lay down conditions subject
to which only a state may adopt a regional language as a medium in
the interests of "co-ordination and maintenance of standards." If the
Centre remains inactive, it is for the courts to adjudge the validity
of a state law regarding university education from the view point
whether or not it will affect the standards adversely. Thus, the
courts can act as the sentinel to keep watch on state laws having a
tendency to affect standards adversely. To some extent, the case will
put a brake on the state programmes of prescribing regional languages
as media of instruction at the university level, without proper
preparation, for the states are now required, while doing so, to take
care that there are available adequate text books, qualified teachers
and a body of students having capacity to comprehend instruction in
that medium. These precautions are necessary to safeguard against
falling of standards.
State of West Bengal v. Union of Indiam is a significant case of the
year. Its importance lies not only in the fact that it involved issues
of great moment in the area of federalism, but also because it is the
first case on the original side of the Supreme Court and represents the
first direct confrontation between the Centre and a State on the
question of legislative competence of the former. It may be noted
that during the last several years that the Indian Constitution has
been in force, there have been a large number of cases in which
questions of interpretation of legislative entries have arisen but almost
all of such cases arose on a challenge of the concerned law by private
individuals whose interests were being affected. The present case
was different because it was a State which came as a plaintiff against
the Centre.
The State of West Bengal challenged the competence of the
Union Parliament to enact S. 47 of the Coal-Bearing Areas
(Acquisition and Development) Act84 which sought to acquire coal
bearing lands, and rights over them, belonging to the States. On
being challenged by the State of West Bengal, the Supreme Court
"83."A.LR. 1963 S.C. 1241.

84. In 1956, Parliament by a resolution declared a blue print of the Industrial
Policy for India. The Coal-Bearing Areas (Acquisition and Development) Act was
passed in 1957.

held the provision valid under the powers conferred on Parliament by

item 42 in List III 8 5 and items 52 and 54 in List I. 86
The State of West Bengal had challenged the power of the
Union to acquire the State property, inter alia, on the ground of the
sovereignty of the States (Units) in the Indian polity. The Supreme
Court rejected this argument 87 by invoking the processes of history.
Throughout the British period, notwithstanding the Government of
India Act of 1935, the administration of India was highly centralized;
it functioned as an agent of the British Parliament and the Provinces
then were never treated as sovereign. Under the present Constitution,
sovereignty is vested in the people of India. Further, examining
the structure of the Constitution, the majority held that it would be
difficult to hold that Parliament "which is competent to destroy a
state" 8 8 is on account of some assumption as to absolute sovereignty
of the state incompetent effectively to acquire state property by
legislation for governmental purposes." The Court also rejected the
doctrine of immunity of instrumentality. Referring to several
entries in List I 89 under which Parliament can directly legislate in
respect of property in the States, the Court held that to deny to
Parliament, while granting these extensive power of legislative
authority, power to legislate in respect of property situated within the
state, and even of the state, would render the constitutional
machinery practically unworkable.
The Court held that in the ultimate analysis the matter was one
of legislative competence. The Court concluded by holding that the
necessary power under entry 42, List I I I , which may be exercised by
Parliament in respect of all property—private as well as state-owned
and is meant for the effectuation of entries 52 and 54 of List I, is not
incapable of being exercised in respect of property of the States, as
there was no constitutional interdict against it. Power to legislate for
the regulation and development of mines and minerals under the
control of the Union would, by necessary implication, include the
85. Item 42 of List III empowers the Parliament to pass a law for the aquisition
and requisitioning of property.
86. Entry 52 of List I vests the Parliament with a plenary power to decide
which industries should it control and how in the public interest. The Coal Bearing
Areas Act was passed to control mines and minerals (Entry 54 List I).
87. Sinha, C J., Imam, Shah, Ayyangar & Mudholkar, JJ.
88. Articles 2 & 3.
89. Articles 22, 23, 24, 26, 27, 30, 32, 52, 53, 54, 56, 57.

power to acquire mines and minerals. Power to acquire property of

the State cannot be denied to Parliament if it be exercised consistently
with the protection afforded by Article 31.
In a dissent, Subba Rao, J., expressed the opinion that
" Sovereign powers are distributed between the Union and the States*
within the spheres allotted to them." From this he concluded that
" o n e cannot encroach upon the governmental functions or instru-
mentalities of the other, unless the Constitution expressly provides
for such interference," and " there is no provision which enables one
unit to take away the property of another except by agreement," 90
This pronouncement by the Supreme Court is of momentous
importance. The Supreme Court very correctly rejected the doctrine
of State sovereignty, otherwise this might have been used by the
States in future, to claim further and further rights as against the
Centre ultimately weakening the Indian Constitutional fabric. The
doctrine of immunity was also rightly rejected; it is running into heavy
weather even in the country of its origin and has been rejected in
other countries as well. 91 The Indian Constitution seeks to provide
a federal structure with a strong bias towards the Centre. This posi-
tion, it is suggested, should not be corroded by any process - whether
judicial interpretation or otherwise. 92
Another pronouncement of equal importance in the area of
Central-State relationship is the advisory opinion of the Supreme
Court In re Sea Customs Act, Section 20{2).^ It has settled an issue of
prime significance to Indian Federalism. The Supreme Court was
called upon to advise the President 94 whether the Centre could levy
customs and excise duties on import and export, and on goods pro-
duced or manufactured, by a State Government. The Court by a 5 to
4 opinion upheld such a power in the Centre. 95 It held that
Article 289 did not preclude the Union from imposing, or authorising
the imposition of, customs duties on import or export of property of
a State used for purposes other than those specified in clause 2 of that
90. Ibidat\218.
91. For general discussion, see M. P. Jain & S. N. Jain, Inter-governmental Tax
Immunity in India, 2 J.I.L.I., p. 101.
92. For related discussion, see Review of M. P.Jain's Indian Constitutional Law,
by Sharma, 73 Tale Law Journal 913 (1964).
93. A.I.R. 1963 S.C. 1760.
94. Under Article 143.
95. Sinha, CJ. Gajendragadkar, Wanchoo, Shah & Ayyangar, JJ., as against
Das, Sarkar, Das Gupta and Hidayatullah, JJ.

Article. Similarly, for the levy of excise duties by the Centre on pro-
duction or manufacture of goods by the States, Article 289 bars
central taxes directly on property or income of the States and not those
taxes which may indirectly affect income or property. Excise is a tax
on ' manufacture ' and customs on ' import or export' of goods and
not on property as such. The minority opinion is in line with what
has been held to be the position in other federal countries. 96
A r t i c l e 301 : F r e e d o m of T r a d e
In Firm Mehtab Majid & Co. v. State of Madras,91 applying
Article 304 the Supreme Court invalidated a rule which discriminated
against inter-State commerce in favour of intra-State commerce.
Madras State made a rule the effect of which was that tanned hides or
skins imported from outside the State and sold within the State were
subject to a higher rate of tax than that imposed on hides or skins
tanned and sold within the State, inasmuch as the sales tax on the
imported hides or skins tanned outside the State was on their sale
price, while the tax on hides or skins tanned within the State was on
their sale price when purchased in the raw condition which was
substantially less than their sale price in the tanned form. Similarly,
on the hides or skins imported from outside the State after purchase
in their raw condition and then tanned inside the State, the tax was
higher than on hides or skins purchased in the raw condition in the
State and tanned within the State, as the tax on the former was on
the sale price of the tanned hides or skins and on the latter it was on
the sale price of the raw hides or skins.
It was argued in favour of the impugned rule that the sales tax
does not come within the purview of Article 304(a) as it is not a tax
on the import of goods at the point of entry. Rejecting it, and refer-
ring to several previous precedents, 98 the court held that the taxing
laws can be restrictions on trade, commerce and intercourse, if they
hamper the flow of trade and if they are not compensatory taxes or
regulatory measures. 99 Sales tax, of the kind under consideration
here, is neither a regulatory nor compensatory tax levied for the use
of trading facilities. Sales tax having the effect of discrimination
between goods of one State and goods of another may affect the free
96. M. P. Jain & S. N. Jain, op. cit. supra note 91.

97. A.I.R. 1963 S.C. 928.
98. AHabari Tea Co. Ltd, v. State of Assam, A.I.R. 1961 S.C. 232; Automobile
Transport v. State of Rajastan, A.I.R. 1962 S.C. 1406.
99. Automobile Transport v. State of Rajasthan, supra note 98.

flow of trade and it will then offend against Article 301, and will be
valid only if it falls within the purview of Article 304(a). This Article
enables a State Legislature to make laws affecting trade, commerce
and intercourse. It enables the imposition of taxes on goods from
other states if similar goods in the state are subjected to similar
taxes so as not to discriminate between the goods manufactured or
produced in that State and the goods which are imported from other
States. This means that if the effect of the sales tax on tanned hides
or skins imported from outside is that the latter becomes subject to a
higher tax, then the tax is discriminatory and unconstitutional and
must be struck down.
The court rejected the contention that Article 304(a) is attracted
only when the impost is at the border, i.e., when the goods enter the
State on crossing the border of the State. Article 304(a) allows the
State Legislature to impose taxes on goods imported from other States
and does not support the contention that the imposition must be at
the point of entry only.
The discrimination alleged was not visible on the surface of the
rule impugned. It could be detected only by a study and analysis of
its provisions and their effect. The Supreme Court did so and found
that the rule was discriminatory as alleged. It is one of those few
cases where the constitutional provisions concerning freedom of trade
and commerce contained in Articles 300-304 appear to become vivid.
Federalism connotes one big common market and an economic area
irrespective of the State boundaries. This dream has been a motive
force for the creation of such federations as the U.S.A. Canada and
Australia. It was to achieve these objectives that the Indian Consti-
tution enacted Articles 300-304. The situation dealt with in the
instant case proves the wisdom and the justification of these constitu-
tional provisions. In the absence of such restrictions in the
Constitution, there was a danger that the States would raise all kinds
of barriers against the free flow and movement of goods across Seatt
boundaries. 100
Civil Service (Articles 309 to 311)
In State of Assam v. Bimal Kumar,1Q1 the Supreme Court discussed
elaborately the scope and function of the second opportunity of hear-
100. M. P. Jain, op. cit. supra note 7, at 575.

101. A.LR. 1963 S.C. 1612.

ing under Article 311(2).102 The main question raised was that how
specific must the second notice be in its enumeration of the grounds on
which the action is proposed to be taken. It is now well-settled that a
public officer, before being awarded a major punishment, 1 0 3 is entitled
to have two oppartunities of hearing. At the first stage, the delin-
quent officer is apprised of the charges against him and the allegations
on which those charges are based. He should have a full opportunity
to deny his guilt and establish his innocence. The officer concerned is
entitled to defend himself by adducing his evidence and test and
rebut the evidence produced by the Government by cross-examining
the witnesses concerned. This inquiry must be conducted in accord-
ance with the rules prescribed for the purpose and with the principles
of natural justice. After the enquiry is over, and the enquiry officer
submits his report, the disciplinary authority concerned has to consider
the report. It then issues a notice to the delinquent officer asking him
to show cause against the punishment proposed to be awarded to him.
The second opportunity enables the officer concerned to plead that no
case had been made out against him, or that the conclusion of facts
drawn from the evidence are incorrect or that the action proposed to
be taken is either unduly severe or not called for.104 In the instant
case, the second notice issued did not specifically say that the autho-
rity concerned had accepted the findings contained in the report of
the Enquiry Officer. The notice enclosed a copy of the Enquiry
Report and proposed a provisional punishment to be awarded to the
delinquent officer. It was claimed on behalf of the officer concerned
that the notice should expressly state the conclusions of the dismissing
authority that it has accepted the conclusions of the Enquiry Officer,
as in the absence of that the officer concerned would not be able to
make an adequate or effective representation. As the notice in ques-
tion did not say so, it was asserted that it was defective. The Supreme
Court rejected the argument. It held that though it might be
desirable that the disciplinary authority should indicate in the second
notice its concurrence with the conclusions of the Enquiry Officer,
yet that was not absolutely necessary. The very fact that the notice
102. This article in its original form was worded as follows: "No such person
as aforesaid shall be dismissed or removed or reduced in rank until he has been
given a reasonable opportunity of showing cause against the action proposed to be
taken in regard to him.'*
103. Dismissal, removal, reduction in rank,
104. M. P, Jain, op. cit. supra note 7, at 530-546.

was issued indicating the provisional conclusions of the dismissing

authority as to the punishment that should be imposed on the delin-
quent officer implies that the findings recorded against him by the
enquiry officer have been accepted. If the disciplinary authority
differs from the findings recorded in the enquiry report, then it is
necessary that the provisional conclusions reached by it should be
specified in the second notice. But where the disciplinary authority
purports to proceed to issue the notice against the officer concerned
after accepting the enquiry report in its entirety, it is not necessary,
though desirable, for the authority concerned to say that it has so
accepted the report.
In Bachhittar Singh's case,105 the Supreme Court clarified that both
the stages form part of one continuous proceeding and are equally
judicial in character. It is not correct to say that while the first is
judicial, the second is administrative. Consequently, the order passed
by the Government at the second stage cannot be varied at will by the
authority concerned.
It has also been well-settled through a number of authorities that
probationers and temporary Government Servants cannot seek the
protection of Article 311(2) unless their termination of service is by
way of punishment. 106 The Supreme Court reiterated this proposition
in Ranendra Chandra v. Union of India.101 In this case, the services of a
Programme Assistant on probation in the All India Radio were termi-
nated on the ground of his unsuitability for the job, after giving him a
show cause notice as required by Rule 55B, Civil Services (Classifi-
cation, Control and Appeal) Rules (1930).108 The Supreme Court
held that he was not entitled to the elaborate procedural safeguards
under Article 311 as his termination was not by way of punishment.
In Madan Gopal v. State of Punjab,109 the Supreme Court held that
where the employment of a temporary government servant, liable to
105. Bachhittar Singh v. State of Punjab, A.I.R. 1963 S.C. 395.

106. Parshotham Lai Dhingra v. Union of India, A.I.R, 1958 S.C. 36.
107. A.LR. 1963 S.C. 1552.
103. This rule states: "Where it is proposed to terminate the employment of a
probationer whether during or at the end of the period of probation, for any specific
fault or on account of his unsuitability for the service, the probationer shall be
apprised of the grounds of such proposal and given an opportunity to show cause
against it, before orders are passed by the authority competent to terminate the
employment."
109. A.LR. 1963 S.C. 531.

be terminated with one month's notice, is, in fact, terminated after

an enquiry for misconduct, e.g., accepting illegal gratification, the
termination of service is a punishment amounting to a stigma. In
such a case, the Government Servant is entitled to the protection of
Article 311(2). I n so holding, the Court followed the reasoning in the
earlier case, State of Bihar v. Gopi Kishore,n0 in which a similar protec-
tion was extended to a probationer.
Constitutional amendments
Remarkable among the Constitutional developments during the
year are the XVth and XVIth Constitutional amendments. The
XVth amendment is omnibus as it affects a number of provisions
in the Constitution.
XVth Amendment: Prior to the amendment, no High Court could
issue a writ so as to run beyond its territorial jurisdiction. Article 226
was given a literal interpretation in Saka Venkata Rao U 1 and Khajoor
Singh's cases 112 signifying that the location or residence of the autho-
rity or person alone was taken into consideration rather than where
the cause of action has arisen. On this view, the Punjab High Court
alone could issue writs against the Government of India which has its
seat at New Delhi. Although a person anywhere in India may be
injured by an action of the Government of India, he could not go to
any High Court except that of Punjab for having a writ issued against
the Government of India. This anamoly has now been removed by
adding Clause 1-A in Article 226, which provides that a High Court
within whose jurisdiction a ' cause of action ' arises can issue a writ.
This has been a very useful amendment as now any High Court within
whose jurisdiction a cause of action arises can issue a writ against the
Government of India. It will help the common man in pursuing his
remedy against the Central Government without being required to
come to New Delhi.
The retiring age of a High Court Judge has been raised from
60 to 62. Certain difficulties regarding the authority and procedure
to clear doubts about ascertaining the age of the High Court and
Supreme Court Judges, have been removed by this amendment.
For the first time, the concept of continental shelf has been
brought into the Constitution by amending Article 297. All lands,
110. A.LR. 1960 S.C. 689.

111. A.LR. 1953 S.C. 210.
112. 1961 S.CJ. 235.

minerals and other things of value underlying the continental shelf

shall now vest in the Union of India.
The XVth Amendment also modifies Article 311. Article 311 has
been a very fruitful source of litigation between the government and
its servants. A body of principles has been developed by the courts
with regard to the procedural formalities which must be fulfilled
before a major punishment is awarded to a civil servant, e.g., dis-
missal, removal or reduction in rank. As stated earlier, 113 the courts
have held that the accused servant should have opportunity to defend
himself at two stages. The XVth amendment referred to the second
stage envisaged by Article 311. The proposal, to start with, was to do
away with the second stage and so the proposed amendment read as
follows:
" No such person as aforesaid shall be dismissed or removed
except after an inquiry in which he has been informed of the charges
against him and given a reasonable opportunity of being heard in
respect of those charges."
When the proposed amendment was placed before Parliament it
ran into heavy weather and it underwent a change. The ' second
opportunity ' was retained though its scope was sought to be curtailed.
The position now is that whereas formerly second opportunity was
based on judicial pronouncements only, it has to-day come to be based
on a specific constitutional provision.
The only restriction, if it can be said to be a restriction at all, is
that the second representation should seek to refer only to the evidence
produced at the time of the enquiry and should not throw in any fresh
evidence. The question arises whether it is worthwhile to amend the
Constitution for such a minor matter. The article even after the
amendment remains as it was before without its operation or effect
having been curtailed in any significant manner.
XVIth Amendment: The Sixteenth Amendment enables the State
to impose reasonable restrictions on the exercise of rights to freedom
of speech and expression, to assemble peaceably and to form
associations or unions in the interest of the " sovereignty and integrity
of India ". It also adds the words "upholding the sovereignty and
integrity " to the oath to be taken by the Ministers, Judges, etc. The
interesting feature of the amendment is that such an oath is to be
subscribed at a stage when the candidate is being nominated for
election to the Parliament and the state legislatures.
113. Supra notes 103 & 105.

Acts, ordinances and regulations

The most important Constitutional legislation of 1963 is the
Government of Union Territories Act. 114 The Act applies to Hima-
chal Pradesh, Manipur, Tripura, Goa, Daman, Diu and Pondi-
cherry. 115 The object of the Act is to introduce some does of demo-
cracy and of parliamentary government in these territories. The
Status of the Union Territories has not yet been fully assimilated to
that of the states. They are much more directly controlled by the
Centre.
Each Territory is to have a unicameral legislature. Privileges of
the members are to be the same as those of the members of the House
of Commons. 116 Courts cannot inquire into the proceedings of the
Assembly. However, courts can examine the validity of a privilege
in case it contravenes the chapter on Fundamental Rights in the
Constitution or is inconsistent with the provisions of the principal
Act.117
As regards the extent of the legislative power, any Assembly in
the Union Territories may make laws with respect to any of the matters
enumerated in the State List and Concurrent List in so far as they are
applicable to Union Territories. But the power of Parliament to
pass laws for Union Territories is preserved. In case of inconsistency
between a law of Parliament and that of Assembly the law of
Parliament prevails. 118 This is the plenary power of Parliament
and is not hedged by any provision similar to Article 293(1) and (2)
applicable to the State Legislatures.
The Administrator and his Council of Ministers shall be under the
general control of the Union. They must comply with the directions
of the President. 119 The Administrator of the border territories shall
act in his discretion in performance of his special responsibility for the
security of the border. 120 He is not bound by the aid and advice of
his Minister when he is acting in his discretion. 121 In case of emer-
114. Act X X of 1963.

115. The Act is not applicable to Delhi and Andaman-Nicobar Islands,
mentioned as Union Territories in See. 1 to the Constitution.
116. Section 16(3). Wordings of the section are similar to Art. 194(3).
117. Section. 37 same as Arts. 122 and 212. Principal Act means the Act under
discussion.
118. Section. 18.
119. Section 50.
120. Section 44.
121. Section 44(1).

gency, the President can suspend the operation of the Act, i.e., the
working of the representative institutions. Even if there is no failure
of the constitutional machinery, the operation of the Act can be
suspended if it is found necessary or expedient. 122 The Administrator
in such contingency administers the Territory as the agent of the
President under the provision of Article 239(1) of the Constitution.
The Union Territories are not juristic personalities like the States,
therefore the President of India can be sued for the liabilities of the
Union Territories.
The Official Language Act, 1963 : Article 343(3) empowers Parlia-
ment to pass a law for the continuation of the use of the English
language and Devanagari numerals after a period of 15 years from the
commencement of the Constitution (i.e., after 1965). Article 240
provides for the use of English language for proceedings in the
Supreme Court and the High Courts and for purposes of Acts and
Regulations of Parliament and the State Legislatures so long as Parlia-
ment does not pass any law to the contrary. Against this background,
it is easier to appreciate the changes brought about by the Official
Language Act, 1963.
The Act states that the English language may be continued to be
used in addition to Hindi after the appointed day. 123 This change is
significant as English can no more enjoy the status of official language
at par with Hindi. It is further provided that the copies of the Bills
in Parliament be furnished in Hindi, after the appointed day. 124 The
Governor of a State is empowered to authorise the use of the Hindi
language for the judgments and orders of the High Court, with the
previous permission of the President. But such orders or judgments
should be accompanied by a copy in English. 125
122. Section 51(6).

123. Section 3.
124. Section 5(2).
125. Section 7.

Supreme Court Constitutional Law Cases 1963

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CONSTITUTIONAL LAW*

As in the past, so also in 1963, constitutional law cases dominated

* By M. P. Jain, S. B. Wad and V. Krishna Murty,

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several cases it had given relief when approached by persons other

3. A.I.R. 1960 S.C. 554.

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6. Sec I.L.I. Proceedings of the seminar on Current Problems of Corporate

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zation of the country for which growth of the corporate sector is an

7. A.I.R. 1963 S.C. 645. For a pertinent comment on 'Citizenship', see

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Equality before Law; Article 14

13. A.I.R. 1963 S.C. 222.

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of reorganization of the States in 1956, the District of Malabar in

17. A.LR. 1961 S.C. 552.

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recruiting persons to judicial services what was more important was

20. A.I.R. 1963 S.C. 649.

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22. A.LR. 1963 S.C. 812.

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falling under Art. 19(l)(d) as regards the 'domiciliary visits' are

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the picture that there can be a real safeguard to 'personal liberty',

26-Jx. A.LR. 1963 S.C. 516.

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~ " 33. AJ.R. 1960 S.C. 1080.

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of 38 pre-emption vis-a-vis Art. 19 (1) (f), when the Supreme Court

38. M. P. Jain, op. cit. note 7, at 414.

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42. A.I.R, 1963 S.C. 255.

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45. A.LR. 1963 S.C. 1638.

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secular affair or practice is not protected. The test of whether a

47. A.I.R. 1958 S.C. 255.

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Regulations which may lawfully be imposed either by the legis-

50. In re Kerala Education Bill, A.I.R, 1958 S.C. 956.

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Mahendralalv.StateofU.P.,62 the Supreme Court observed that the

52. A.I.R. 1963 S.C. 1019.

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57. A.I.R. 1963 S.C. 548.

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event, a distinction will be drawn whether what is being misinter-

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of relationship between quasi-judicial bodies and the Administration

61. A.I.R. 1963 S.C. 677.

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can be designated as quasi-judicial. This test, it would seem, is

62. M. P. Jain op. cit. note 7, at p. 209.

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to be taken literally, it will refer only to courts, which certainly is

64. A.I.R. 1963 S.C. 874.

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charges proved against the appellant were grave, nevertheless, he

66. Dattatraya Moreshwar v. State of Bombay, A.LR. 1952 S.C. 181.