RIGHT TO EQUALITY-ITS NEW DIMENSIONS

     RIGHT TO EQUALITY-ITS NEW DIMENSIONS

By  K P C Rao.,

 LL.B., FCS., FCMA.

Practicing Company Secretary, 
 kpcrao.india@gmail.com

                                                                                                         

Articles 14 to 18 of the Constitution guarantee the right to equality to every citizen of India.  Article 14 embodies the general principles of equality before law and prohibits unreasonable discrimination between persons.  Article 14 embodies the idea of equality expressed in the Preamble. The succeeding Articles 15, 16 17 and 18 lay down specific application of the general rules laid down in Article 14. Article 15 relates to prohibition of discrimination on grounds of religion, case, caste, sex, or place of birth.  Article 16 guarantees equality of opportunity in matters of public employment.  Article 17 abolishes “Untouhability” Article 18 abolishes title.

Equality before Law

Article 14 declares that ‘ the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.  Thus, Article 14 uses two expressions ‘Equality before the law” and “ Equal protection of the law”. The phrase “Equality before the law” finds a place in almost all written constitutions that guarantees fundamental rights.  Both these expressions have, however, been used in the Universal Declaration of Human Rights. The first expression “Equality before law” is of English origin and the second expression has been taken from the American Constitution. Both these expressions aim at establishing what is called “Equality of status” in the Preamble of the Constitution. While both the expressions may seem to be identical, they do not convey the same meaning. While ‘Equality before the law’ is a somewhat negative concept implying the absence of any special privilege in favour of individuals and the equal subject of all classes to the ordinary law. “ Equal protection of the law” is a more positive concept implying equality of treatment in equal circumstances.  However, one dominant idea common to both the expressions is that of equal justice.  In State of West Bengal V Anwar Ali Sarkar [1], Patanjali Sastri, C.J. has rightly observed that the second expression is corollary of the first and it is difficult to imagine a situation in which the violation of the equal protection of laws will not be the violation of the equality before law. Thus, in substance, the two expressions mean one and the same thing.

The concept of equality does not mean absolute equality among human beings which is physically not possible to achieve. It is a concept implying absence of any special privilege by reason of birth, creed, or the like in favour of any individual, and also the equal subject of all individuals and classes to the ordinary law of the land.  As Dr. Jennings puts it “Equality before the law means that among equals the law should be equal and should be equally administered, that like should be treated alike. The right to sue and be sued to prosecuted for the same kind of action should be same for all citizens of full age and understanding without distinctions of race, religion, wealth, social status or political influence.”

Rule of Law

The guarantee of equality before the law is an aspect of what Dicey calls the rule of law in England. It means that no man is above the law and that every person , whatever be his rank or conditions, is subject to the jurisdiction of ordinary courts.  “ with us” Dicey wrote “ every official from the Prime Minister down to constable or a Collector of taxes is under the same responsibility for every act done without legal justification as any other citizen” Rule of law requires that no person shall be subjected to harsh, uncivilized or discriminatory treatment even when the object is the securing of the paramount exigencies of law and order.

Professor Dicey gave three meanings of the Rule of Law thus:

1)     Absence of Arbitrary Power or Supremacy of the law

It means the absolute supremacy of law as opposed to the arbitrary power of the Government. In other words- a man may be punished for breach of law, but he can be punished for nothing else.

2)     Equality before the law

It means subjection of all classes to the ordinary law of the land administered by ordinary law courts. This means that no one is above law with the sole exception of the monarch who can do no wrong. Everyone in England, whether he is an official of the State or a private individuals, is bound to obey the same law. Thus, public officials do not hold a privileged position in Great Britain.  In Great Britain there is one system of law and one system of courts for all i.e for public officials and private persons.

3)     The Constitution is the result of the ordinary law of the land

It means that the source of the right of individuals is not the written constitution but the rules as defined and enforced by the courts.

The first and the second aspects apply to Indian system but the third aspect of the Dicey’s rule of law does not apply to Indian System as the source of rights of individuals is the Constitution of India. The Constitution is the Supreme Law of the land and all laws passed by the legislature must be consistent with the provisions of the Constitution.

Equal protection of the Laws

The guarantee of equal protection of laws is similar to one embodied in the 14^th Amendment to the American Constitution. This has been interpreted to mean subjection to equal law, applying to all in the same circumstances. It only means that all persons similarly circumstances shall be treated alike both in the privileges conferred and liabilities imposed by the laws. Equal law should be applied to all in the same situation and there should be no discrimination between one person and another. As regards the subject matter of the legislation their position is the same. Thus, the rule is that like should be treated alike and not that unlike should be treated alike.

The rule of law imposes a duty upon the State to take special measure to prevent and punish brutality by police methodology. The rule of Law embodied in Article 14 is the “basic feature’ of the Indian Constitution and hence it cannot be destroyed even by an amendment of the Constitution under Article 368 of the Constitution.

The words “any person” in Article 14 of the Constitution denotes that the guarantee of the equal protection of laws is available to any person which includes any company or association or body of individuals. The protection of Article 14 extends to both citizens and non-citizens and to natural persons as well as legal persons. The equality before the law is guaranteed to all without regard to race, colour or nationality. Corporations being juristic persons are also entitled to the benefit of Article.

Exceptions to the Rule of Law

The above rule of equality is, however, not an absolute rule and there are number of exceptions to it:

Firstly ‘Equality before the law does not mean the “powers of the private citizens are the same as the powers of the public officials”. Thus, a police officer has the power to arrest while no private person has this power.  This is not the violation of the rule of law. But the rule of law does require that these powers should be clearly defined by law and that abuse of authority by public officers must be punished by ordinary courts in the same manner as illegal acts committed by private persons. 

Secondly, the rule of law does not prevent certain classes of persons being subject to special rules. Thus, members of the armed forces are controlled by military laws. Similarly, medical practitioners are subjected to the regulations framed by the Medical Council of India, a statutory body and are immune from the jurisdiction of ordinary courts. Article 361 of the Indian Constitution affords an immunity to the President of India and the State Governors.  Article 361 provides that the President or the Governor of State shall not be answerable to any Court for the exercise and performance of the powers and duties of the office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. No criminal proceeding shall be instituted or continued against the President or the Governor of a State in any court during his term of office. No process for the arrest or imprisonment of the President or the Governor of State shall be issued from any Court during his term of office.

Thirdly, the ministers and other executive bodies are given very wide discretionary powers by the statute. A minister may be allowed by law ‘to act as he thinks fit’ or if he is satisfied’. Such power is sometimes abused. Today, a large number of legislation is passed in the form of delegated legislation. i.e rules, orders or statutory instruments made by ministers and other bodies and not directly by Parliament. These rules did not exist in Dicey’s time. 

Fourthly, certain members of society are governed by special rules in their professions. i.e lawyers, doctors, nurses, members of armed forces and police. Such classes of people are treated different from ordinary citizens.

The Constitution itself contains provisions which, under certain circumstances limit the effectiveness of Art.14

1)     The scope of right to equality under Article 14 has been considerably restricted by the 42^nd Amendment Act, 1976. The new Article 31-C added by the Amendment Act provides that laws made by the State for implementing the Directive Principles contained in clause (b) or clause (c) of Article 39 cannot be challenged on the ground that they are violative of  Article 14. In Sanjeev Coke Mfg Co v Bharat Cooking Coal Ltd [2] the Supreme Court has held that “where Article 31-C comes in. Article 14 goes out.”

2)     Art 359(1) provides that where a proclamation of emergency is in operation the President may, by order, declare that the right to move any court for the enforcement of such rights conferred by Part III (except Arts 20 and 21) shall remain suspended. Thus, if the President of India issues an order, where a Proclamation of Emergency is in operation, enforcement of Article 14 may be suspended for the period during which the Proclamation is in force.

3)     Art 361 lays down that the President and the Governors are exempted from any criminal proceeding during the tenure of their office.

4)     Under International law, foreign sovereign and ambassadors enjoy full immunity from any judicial process. This is also available to enemy claims for acts of war.

Article 14 permits classification but prohibits class legislation

The equal protection of laws guaranteed by Article 14 does not mean that all laws must be general in character. It does not mean that the same laws should apply to all persons. It does not mean that every law must have universal application for, all persons are not, by nature, attainment or circumstances in the same position. The varying needs of different classes of persons often require separate treatment[3]. From the very nature of society there should be different laws in different places and the Legislature controls the policy and enacts laws in the best interest of the safety and security of the State. In fact, identical treatment in unequal circumstances would amount to inequality,[4] So, a reasonable classification is not permitted but is necessary if society is to progress[5].

Thus, what Article 14 forbids is class-legislation but it does not forbid reasonable classification. The classification, however, must not be “arbitrary, artificial or evasive” but must be based on some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislation.[6] Article 14 applies where equals are treated differently without any reasonable basis. But where equals and unequals are treated differently. Article 14 does not apply. Class legislation is that which makes an improper discrimination by conferring particular privileges upon a class of persons arbitrarily selected from a large number of persons, all of whom stand in the same relation to the privilege granted that between whom and the persons not so favoured no reasonable distinction or substantial difference can be found justifying the inclusion of one and the exclusion of the other from such privilege. [7]

Test of Reasonable Classification

While Article 14 forbids class legislation, it does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of achieving specific ends. But classification must not be “arbitrary, artificial or evasive”. It must always rest upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislature. Classification to be reasonable must fulfill the following two conditions

1)     The classification must be founded on the intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and

2)     The differentia must have a rational relation to the object sought to be achieved by the Act.[8]

The differentia which is the basis of the classification and the object of the Act are two distinct things. What is necessary is that there must be a nexus between the basis of classification and the object of the Act which makes the classification. It is only when there is no reasonable basis for a classification that legislation making such classification may be declared discriminatory. Thus, the Legislature may fix the age at which persons shall be deemed competent to contract between themselves but no one will claim that competency. No contract can be made to depend upon the stature or colour of the hair. Such a classification will be arbitrary. [9]

The true meaning and scope of Article 14 have been explained in a number of cases[10] by the Supreme Court. In re Special Court Bill case, Chandrachad J (as he then was) reformulated new propositions to be followed regarding the applicability of Article 14.  This has been rightly criticized by Mr. Seervai as making the well-settled principles unsettled and creating confusion and uncertainty and encouraging litigation. The principles laid down by Das J in Dalmia’s case has not been disputed by Chandrachaud J and therefore there was no need to reformulate the same unless it was necessary to add something to the existing principles.  In view of this, the proposition laid down in Dalmia’s case still holds good governing a valid classification and are as follows:

1)     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 itself.

2)     There is always presumption in favour of the constitutionality of a statute and the burden is upon him who attacks it to show that there has been a clear transgression of constitutional principles.

3)     The presumption may be rebutted in certain cases by showing that on the fact of the statute there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class.

4)     It must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to address the problems manifested by experience and that its discriminations are based on adequate grounds.

5)     In order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of report, the history of the times and may assume every state of facts which can be conceived existing at the time of the legislation.

6)     That the Legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest.

7)     While good faith and knowledge of the existing conditions on the part of a Legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances  brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to be hostile or discriminating legislation.

8)     The classification may be made on different basis e.g. geographical or according to objects or occupations or the like.

9)     The classification made by a legislature need not be scientifically perfect or logically complete.[11] Mathematical nicety and perfect equality are not required.[12] Equality before the law does not require mathematical equality of all persons in all circumstances.  Equal treatment does not mean identical treatment.  Similarity, not identity of treatment is enough[13].

10)There can be discrimination both in the substantive as well as the procedural law. Article 14 applies to both.[14]

If the classification satisfies the test laid down in the above propositions, the law will be declared constitutional. The question whether a classification is reasonable and proper or not, must, however, be judged more on commonsense than on legal subtleties[15].

New Concept of equality: Protection against arbitrariness

In E.P. Royappa v State of Tamil Nadu [16] the Supreme Court has changed the traditional concept of equality which was based on reasonable classification and has laid down a new concept of equality. Bhagwati J. delivering the judgment on behalf of himself Chandrachud and Krishna Iyer JJ , propounded the new concept of equality in the following words: “ Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrinaire limits. From a positivistic point of view, equality is a antithesis to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belong to the rule of law in a republic while the other to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14. 

In Maneka Gandhi v Union of India[17] Bhagwati J again quoted with approval the new concept of equality propounded by him in the E.P.Royappa case. He said

“…Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness which legally as well as philosophically, is an essential element of equality or non-arbitrariness , pervades Article 14 like a brooding  omnipresence.”

In International Airport Authority [18]case Bhagwati J reiterated the same principle in the following words :

“ it must … therefore, now be taken to be well settled that what Article 14 strikes at is arbitrariness because an action that is arbitrary , must necessarily involve negation of equality. The doctrine of classification which is involved by the Court is not paraphrase of Article 14 nor is it the objective and end of that Article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislation or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached”

Thus, according to this doctrine the content and reach of Article 14 cannot be determined on the basis of the doctrine of classification.  Prior to this decision, the view was that Article 14 forbids discrimination and not classification provided the classification fulfilled the two tests: (1) that it was based intelligible differentia, and (2) the differentia has a rational nexus with the object which the law seeks to achieve. This was merely a negative aspect of Article 14.  But according to the new doctrine, the doctrine of classification “is merely a judicial formula for determining whether the legislative or the executive action is arbitrary and, therefore, constitutes a denial of equality”.  Article 14 has rightly activist magnitude and it embodies a guarantee against arbitrariness. The conclusion is that if the action of State is arbitrary it cannot be justified even on the basis of doctrine of classification.  Where an act is arbitrary, it is implicit in it that it is unequal and therefore violative of Article 14.  Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It is attracted where equals are treated differently without any reasonable basis.

The basic postulate of the rule of law is that “justice should not only be done but it must also be seen to be done”.  If there is any reasonable ground, on which a lawyer believes that his matter may not be heard by a particular Judge, it is appropriate for that judge to exclude him from the bench hearing that matter. This step is required to be taken by the learned Judge not because he is likely to give to a reasonable apprehension in the mind of the litigants that the mind of the learned judge may be sub-consciously has been influenced by some extraneous factor in making the decision, particularly if it happens to be in favour of the opposite party. This ruling was given in the case of R.K. Ghosh v J.G.Rajput[19] in which the respondent who was on employee of the Ahmedabad Municipal Corporation filed a writ petition in the Gujarat High Court challenging his suspension . Mr. B.L. Shethana, who had argued his case and obtained a stay order was later appointed a judge of the same High Court.  In 1993, respondent was served with another charge sheet for theft of some municipal property. This charge was not connected with the earlier dispute. However, he filed a petition praying that the said charge-sheet be stayed and the appellant municipal corporation be punished for contempt of the Court and two earlier orders be restored. His petition came up for hearing before the division bench of the High Court comprising R.A. Mehta and B.I. Shethana JJ.  The appellant objected that the matter should not be heard as Mr. Shethana who was on the Bench had earlier appeared as an advocate in the court on behalf of the respondent on 1988. Inspite of this objection the Judge heard the matter and passed the impugned order.

The Supreme Court held that by the action of the Judge, the rule of law was violated and quashed the order of the High Court and sent the matter for fresh hearing in accordance of law.

In D.S. Nakara v Union of India[20]  the Supreme Court struck down Rule 34 of the Central Services (Pension) Rules 1972, as unconstitutional on the ground that the classification made by it between pensioners retiring before a particular date and retiring after that date was not based on any rational principal and was arbitrary and violative of Article 14 of the constitution. In that case Desai J. who spoke for the majority assimilated both the doctrine viz the doctrine of arbitrariness and the doctrine of classification. Re-stating the concept of equality and the test to be applied in order to satisfy the requirement of Article 14 his Lordship said:-

“Thus , the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that the differentia must have a rational nexus to the object sought to be achieved by the statute in question”

The society is composed of unequals and a welfare State has to strive by both executive and legislative action to help the less fortunate and to improve their condition so that economic unequality in the society may be bridged. This would require a law to be made applicable to that group in order to ameliorate their loss. In order to meet that situation the court had evolved the doctrine of classification. Desai J said that the doctrine of classification was evolved to sustain a legislation of State action in order to help weaker sections of the society or some such segments of the society in need of succor. The State, therefore, must satisfy the court that the twin tests have been fulfilled. Applying this test the court held that the pensioners formed a class and the classification between them on the basis of a particular date viz. those retiring before entitled to old rate of pension and those retiring after that date entitled to liberalized rate of pension, was not based on any rational principle nor related to the object that was to help the retired government servants.

In Suneel Jatley v State of Haryana[21] the  reservation of 25 seats for admission to M.B.B.S and B.D.S. course for students who were educated from classes I to VIII in common rural schools was held to be violative of Article 14 and invalid as the classification between the rural educated and urban educated students for this purpose was wholly arbitrary and irrational having no nexus to the object sought to be achieved of providing extra facilities to students coming from rural schools to enter medical college. The same Government prescribes standards of education, equipment, grants and facilities including the qualification of the staff for being employed in urban and rural schools imparting instructions from first to eight standard. Thus, all the students of classes IX to XII, those coming from rural school and those from urban are similarly placed yet they are artificially divided by a reference to a part even wholly unrelated to the object sought to be achieved and hence the reservation based on such classification was held to be constitutionally invalid.

In Mithu v State of Punjab[22] , the Court struck down Section 303 of Indian Penal Code as unconstitutional on the ground that the classification between persons who commit murders whilst under the sentence of the imprisonment and those who commit murders whilst they were not under the sentence or life imprisonment for the purpose of making the sentence of death mandatory in the case of the former class and optional in the latter class was not based on any rational principle. Section 303 prescribes that if a person under a sentence of life imprisonment in jail commit murder he must be awarded sentence of death.  But under Section 302 if a person commits murder he may be awarded either the sentence of death or the sentence of life imprisonment. The discretion as to which sentence is to be awarded is to be exercised by the courts which will determine the matter on the nature of offences committed by an accused.  This judicial discretion is not available to a life convict under Section 303.

In A.K. Abbas v Union of India[23] the validity of Cinematograph Act 1952 was challenged on the ground that it makes unreasonable classification. Under the Act, cinema films are classified into two categories. Viz. “U’ films according to their suitability for adults or young people. ‘U films are meant for unrestricted exhibition while ‘A’ films can only be exhibited to adults. It was argued that motion picture is a form of expression and therefore, entitled to equal treatment with other forms of expression.  The petitioners contended that there are other forms of speech and expression besides the films but none of them have been subjected to any prior restraint.  He claimed that the treatment of motion picture on different footing from other forms of art and expression was invalid classification. The Court held that the treatment of motion picture must be different from that of other forms of art and expression. This arises from the instant appeal of the motion picture, its versatility, realism and its co-ordination of the visual and real senses. The motion picture is able to stir up emotions more deeply than any other product of art. Its effect particularly on children and adolescent is very great since their immaturity makes them more willingly suspend their disbelief than mature men and women. They also remember the action in the picture and try to imitate what they have seen.  Therefore, the classification of films into two categories of ‘U’ films and ‘A’ films is a reasonable classification.  It is also for this reason that motion picture must be regarded differently from other forms of speech and expression.  A person reading a book or other writing or hearing a speech or viewing a painting or sculpture is not so deeply stirred as by seeing a motion picture. Therefore, the treatment of motion picture on a different footing is a reasonable classification.

In Nishu Maghu v State of J.K.[24]  the court held that the classification made on the basis of regional imbalance was vague in absence of identification of areas suffering from such imbalance and accordingly selection of candidates for admission to MBBS course from this category was arbitrary and violative of Article 14 of the Constitution and hence invalid. The order creating this category did not identify the area which suffer from imbalance nor did it supply any guidelines for the selection by Committee But as regards selection of candidates on the basis of “social castes” the Court held that classification was valid as it was based on nature and occupation and not on ‘caste’ and does not offend Article 14 or Article 15.

In Ajay Hasia v Khalid Mujib[25]  the Regional Engineering College made admissions of candidates on the basis of oral interview after a written test. The test of oral interview was challenged on the ground that it was arbitrary and unreasonable because high percentage of marks were allocated for oral test and candidates were interviewed only 2 or 3 minutes. The Court struck down the rule prescribing high percentage of marks for oral test i.e allocation of one third of total marks of oral interview was plainly arbitrary and unreasonable and violative of Article 14 of the Constitution.  It said that the oral interview test cannot be regarded a very satisfactory test for assessing and evaluating the capacity and caliber of candidates as it is subjective and based on first impression and its result is influenced by many uncertain factors and it is capable of abuse. It cannot be the exclusive test. It should be resorted to only as an additional or supplementary test and must be conducted by persons of high integrity, caliber and qualification. The Court suggested that the interview be tape-recorded in order to judge whether it was conducted in an arbitrary manner.  In the instance case a large number of a candidates were admitted on the basis of high marks obtained in interview although they had obtained low marks at the written test but the court declined to quash the admission in view of a lapse of 18 months when the students had almost completed three semesters. A mere suspicion that some candidates had obtained high marks in interview but very low marks in written test did not establish mala fide on the part of the selectors.

Although the court said that an oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and caliber of the candidates because it is subjective and is likely to be abused, but held that in the absence of better test for measuring characteristics and tracts the oral interview test must be regarded as rational or relevant. An oral interview test cannot be relied upon as an exclusive test, but it may be used as an additional or supplementary test. Accordingly, the Court held that allocation of 33⅓ percent of the total marks for oral interview infected the admission procedure with arbitrariness. It was observed that allocation of more than 15 per cent marks to interview will be arbitrary and unreasonable.  The Court, however, did not set aside the previous selections. In Arti Sapru v J & K[26] the Supreme Court has held that the allocation of 30 percent marks for the viva-voce for admission to the medical college was excessive. But in Lila Dhar v Rajasthan [27] where 25 percent of the marks were allotted for interview for the selection of munsifs in the Rajasthan Judicial Service it was held that the selection was not illegal.

In D.V. Bakshi v Union of India[28] the Supreme Court has held that the test was evolved in the case of Ajay Husia and Ashok Kumar Yadav v State of Haryana [29] cannot be applied in every case and particularly in selection of professionals. The test which may be valid for competitive examinations or admission to educational institutions may not hold good where it concerns selection for appointments in public services. No fixed limit can be laid down and much would depend on the nature of performance expected by a candidate. In the present case the petitioners questioned the constitutional validity of Regulations 8 & 9 of the Customs House Agents Licensing Regulations 1984 made under Section 146 of the Customs Act 1962 which provides the securing of at least 50 marks out of 100 for the oral test on the ground that it gives arbitrary powers to the authorities to pick and choose the candidate.  Their contention was based on the ratio of the decision in Ajai Hasia and Ashok Kumar Yadav cases wherein the Court had struck down the rule prescribing high percentage of marks for oral test as violative of Article 14 of the Constitution .  In Lila Dhar v Rajasthan the court had clarified that this test may be valid for admission to medical college but not for entry into public services. The distinction is between competitive examinations or admission to educational institutions and selection for higher posts is clear. In the case of educational institutions the distinction has relevance for the reasons that the candidates are young and their personality has yet to develop and therefore greater weigh has to be given to their performance at the written examination rather than at the oral examination.  The above rule cannot be applied to matters of grant of licence as a custom house  agent where the duties, responsibilities and functions are very special demanding not only a higher degree of probity and integrity but also intellectual skills adaptability, judgment and capacity to take prompt decisions in conformity with the law, rules and regulations. Therefore, in case of selection of professionals higher marks for oral test can be allotted.

In D.V. Bakshi v Union of India[30]  the petitioners challenged the validity of rule allotting 100 marks with 50 pass marks for oral test on the ground that it gives arbitrary powers to the authorities to pick and choose the candidates. The Court distinguished the Ajai Hasia’s case with the present case and held that allotment of maximum marks for oral test is not arbitrary particularly in case of selections of professionals. The test which may be valid for competitive examinations or admissions to educational institutions may not hold good where it concerns selection for appointment in public services. The test laid down in Ajai Hasia’s case cannot apply in the matter of grant of licence as a Custom House Agent. No hard and fast rule can be laid down in this behalf as much would depend on the nature of performance expected for the responsibility to be handled by a candidate after his selection.  The duties, responsibilities and functions of a Custom House Agent are very special, demanding not only a high degree of probity and integrity but also intellectual skills, adaptability, judgment and capacity to take prompt decisions in conformity with the law, rules and regulations. Thus, there is justification for an oral test prescribing 100 marks with 50 per cent as passing marks in selecting such persons.

In Air India v Nargesh Meerza[31]  Supreme Court struck down the Air India and Indian Airlines Regulations on the retirement and pregnancy bar on the services of air hostesses as unconstitutional on the ground that the conditions laid down therein were entirely unreasonable and arbitrary. Regulation 46 provided that an air hostess would retire from the service of the corporation upon attaining the age of 35 years, or on marriage , if it took place within four years of service or on first pregnancy, whichever occurred earlier. Under Regulation 47 the Managing Director had the discretion to extend the age of retirement by one year at a time beyond the age of retirement upto the age of 45 years if an air hostess was found medically fit. The condition that the services of Air Hostesses would be terminated on first pregnancy was the most unreasonable and arbitrary provision and liable to be struck down. The regulation did not prohibit marriage after four years and if an Air Hostess after having fulfilled the first condition became pregnant, there was no reason why pregnancy should stand in the way of her continuing in service. The Court held that the termination of service on pregnancy was manifestly unreasonable and arbitrary and was, therefore, clearly violative of Article 14 of the Constitution. Having taken in service, and after having utilized her services for four years, to terminate her service if she becomes pregnant, amounts to compelling the poor. Air Hostess not to have any children and thus interest with and divert the ordinary course of human nature. The termination of services of Air Hostesses in such circumstances is not only a callous and cruel act but an open insult to Indian womanhood-the most sacrosanct and cherished institution. The provision for extension of service of A.H. “at the option” of the Managing Director confers a discretionary power without laying down any guidelines or principles and liable to be struck down as unconstitutional.  The option to continue in service may be exercised in favour of one A.H. and not in favour of the other and is thus discriminatory under the Air India Regulations the extension of the retirement of an A.H. was entirely at the mercy and the sweetwill of the Managing Director. The conferment of such a wide and uncontrolled power on the Managing Director was violative of Article 14 as it suffered from the vice of excessive delegation of powers.

In A.V. Nachane v Union of India  (popularly known as L.I.C. Bonus case) the Supreme Court upheld the constitutional validity of L.I.C. Amendment Act, 1981 and the Ordinance preceding it and the rules framed thereunder relating to bonus payable to Class III and IV employees. The Act and the rules framed thereunder were challenged by the employees of the Corporation on the ground that they were violative of Article 14 of the Constitution as they suffered from excessive delegation of legislative functions. However, the validity of the Act and Rules thereunder were upheld prospectively, that is, from February 2, 1981, the day the rules were issued in a notification and the Court directed the L.I.C. to pay bonus to its employees upto February 2, 1981 in terms of the 1974 settlement.  Under the settlement, the employees were entitled to bonus at the rate of 15 per cent of their annual salary. The Act and the rules had changed the basis for fixation of dearness allowance and bonus and took it out of the purview of the Industrial Disputes Act. The Rules had stated that the new basis would apply retrospectively i.e from July 1,1979.  This, the Court held, could not be done. The new basis for fixation of D.A. and bonus will apply prospectively i.e from February 2, 1981.  There was no material to show that the rules were violative of Article 14.  The Court held that the 1974 settlement on bonus could only be superseded by a fresh settlement, an industrial award or relevant legislation. But any such supersession could only have future effect and not retrospective effect.

In K. Nagaraj v State of A.P [32]. The validity of A.P. Public Employment (Regulation of Conditions of Service) Ordinance was challenged on the ground that it was violative of Article 14 of the Constitution. By this ordinance, the Government reduced the age of retirement of all Government employees from 58 to 55 years. It was urged that there was no basis for reducing the age of retirement. The Court held that the reduction of age of retirement was not arbitrary and unreasonable and violative of Article 14 as it was taken by the Government after due consideration and with a view to providing employment opportunities to younger sections of society.  The balancing of the claim of the different segments of society involves a question of policy which must be left to the judgment of the executive and the legislature. The fact that the decision to reduce the age of retirement from 58 to 55 was taken by the Telugu Desam Government within one month of the assumption of office by it could not justify the conclusion that the decision was arbitrary on ground of being unscientific in the sense that it was not backed by due investigation. The reasonableness of a decision does not depend upon the time which it takes.

In Surendra Kumar v State of Bihar the Supreme Court quashed the nomination of candidates by the Bihar government for admission to medical colleges in the State of J. and K as violative of Article 14 on the ground that no basis of selection was indicated for nominating candidates. The Court directed the Government to adopt a definite criteria and follow pre-defined norm in such matter. Until such criterion is adopted the nominations must be made on the basis of merit viz. the candidates nominated being those in order of merit who are selected for admission to the Medical College of the Home State.

In Pradeep Jain v Union of India[33] a judgment of far-reaching importance, the Supreme Court held that the wholesale reservation ( all seats) of seats in the MBBS and BDS courses made by State Government of Karnataka, Uttar Pradesh and Union Territory of Delhi on the basis of “domicile” or residence within the State or on the basis of institutional preference for students who have passed the qualifying examination excluding all students not satisfying the residence requirement, regardless of merit, was unconstitutional and as being violative of Article 14 of the Constitution. Delivering the majority judgment Bhagwati  J held that admission in these courses, such as MBBS MS, MD etc should be made primarily on the basis of merit and not on the basis of residential requirement or institutional preference.  The equality of opportunity for employment cannot be made dependent upon where a citizen resides. The object of any valid scheme for admission must be to select the best candidates for admission to medical college. Any departure made from this rule must be justified on the touchstone of Article 14.  Merit cannot be measured in terms of marks alone, but human sympathies are equally important. The heart is as such a factor as the head in assessing the social value of a member of the medical profession. Merit consists of a high degree of intelligence coupled with a keen and incisive mind.  Sound knowledge of the basic subjects and infinite capacity for hard work and also calls for a sense of social commitment and dedication to the cause of the poor. The departure from the rule of merit-based selection can be justified only on the grounds of regions claims of backwardness and State need to provide medical service to the people. But what should be the quantum of reservation based on residential requirement?  This in a particular case the Court held, would depend upon the social and economic factors in the context of educational opportunities but in no case it should exceed more than 70 per cent for MBBS.  The Indian Medical Council was directed to review after every three years this outer limit of 70 per cent and also whether it needed to be reduced. As regards admission to MS MD and like courses the Court held that it should not based on residential requirement at all. There the excellence cannot be compromised by any other considerations because that would be detrimental to the interest of the nation.  However, having regard to the broader considerations of equality of an opportunity the Court directed that a maximum limit of 50 per cent of seats might be reserved on the basis of institutional preference for admission to the post-graduate course i.e in the same medical college or university.  This outer limit of 50 per cent will also be subject to review on the lower side by the Medical Council.  But in regard to admission to the post-graduate courses, the Court said there should be no reservation at all on the basis of institutional preference and admissions should be granted purely on merit and on All India basis.

This is a decision of far-reaching importance. It is to be welcomed. It lays down law which will govern all future admissions to the Medical Colleges of the nation. In the Institutions of higher learning where specialized knowledge is required reservation of seats on the basis of residential or institutional preference is highly objectionable. Bhagwati J , highly nationalist judgment would certainly help foster national unity in the sphere of higher education which is one of the desired goals of our Constitution.

In Y. Srinivasa Rao v J Veeriah[34] it has been held that Government’s policy to give preference to less educated persons over more educated persons in granting licence for running fair price shop was arbitrary and liable to be set aside.  In this case the appellant who was an unemployed graduate with experience of the running fair price shop was not appointed as fair shop dealer whereas matriculate person was given dealership in view of the government policy of giving preference to less educated persons. The Court held that the policy of the Government to prefer an uneducated person over an educated person amounts to allowing premium on ignorance, incompetence and consequently inefficiency, and therefore unconstitutional.

In Indian Council of Legal Aid & Advice v Bar Council of India[35]  the validity of new Rule 9, added by the Bar Council of India in Bar Council Rules which barred the entry of persons who have completed the age of 45 years on the date of application for enrolment as an advocate was challenged as discriminatory and unreasonable and violative of Article 14 of the Constitution  and also Section 24 of the Advocates Act, 1961. On behalf of the Bar Council of India, it was argued that the rules were intended to maintain the dignity and purity of the profession by keeping out those who retire from various Government and quasi-Government and other institutions since they on being enrolled as advocates use their past contacts to canvass for cases and thereby bringing the profession into disrepute and also pollute the minds of young fresh entrants to the profession. The Supreme Court held that the rule is unreasonable and arbitrary.  There is no material to show that the persons mentioned above indulge in undesirable activities of the type mentioned after entering the profession.  Secondly, while the rule debars the group of persons who have crossed the age of 45 years, it allows another group who were enrolled but later taken some jobs and kept their sanads in abeyance to revive their sanads even after they have completed 45 years of age. The choice of the age of 45 years is made after they have completed 45 years of age. The choice of the age of 45 years is made keeping only a certain group in mind ignoring the vast majority of other persons who were in government and other jobs is violative of the rule of equality and is struck down as being ultra vires of Article 14 of the Constitution.  The new Rule 9 is also ultra vires of Sections 24 and 49 of the Advocates Act, which empowers the Bar Council to make rules prescribing conditions for right to practice as an advocate, and not to make rules debarring persons of 45 years of age from enrolment as an advocate.  The rule made by the Bar Council applies only to post enrolment stage and not to pre-enrolment stage. 

In State of Maharasthra v Manubhai Pragaji Vashi [36] the Supreme Court has held that denial of grants-in-aid to recognized private law colleges while extending such benefits to other faculties. Viz. Arts, Science, Commerce, Engineering, Medicine etc by the State of Maharastra is discriminatory and in violation of Art 14 of the Constitution.  The Court, therefore, directed the State of Maharashtra to give the grants-in-aid to recognized private colleges on the same criteria as such grants are given to other faculties. Paucity of funds cannot be the ground for such hostile discrimination as it has no relation with the object sought to be achieved.

No judicial review of Economic Policy of Government

The Supreme Court has consistently taken the view that there can be no judicial review of economic policy of the government unless there is violation of the Constitution or any Act. The Court has thus imposed self restraint on its judicial power.

In BalCo Employees Union (regd) v Union of India [37] this matter came up for the consideration of the Court.  In that case, the employees had challenged the decision of the Central Government to disinvest majority of shares of Bharat Aluminium Co Ltd (BALCO) to private party, which is a public sector undertaking. The Government had taken decision to disinvest majority of shares of BALCO after detailed discussions and had complied with all procedural requirements. The workmen contended that they had been adversely affected by the decision of the Government of India to disinvest 51% of shares in BALCO in favour of a private party and also contended that by reason of disinvestment the workers have lost their right and protection under Arts.14 and 16 of the Constitution and this has an adverse civil consequence and, therefore, they had right to be heard before and during the process of disinvestments. The Attorney General contended that there can be no judicial review of the economic policy of the Government. A five judge Constitution Bench of the Court unanimously held that the process of disinvestment is a policy decision involving complex economic factors and the courts have consistently refrained from interfering with economic decision as it has been recognized that economic expediencies lack adjudicative disposition unless the economic decision based on economic expediencies is shown to be so violative of the constitutional or legal limits of power or so abhorrent to reason. The petitioners have failed to prove that the decision to disinvest in BALCO is any way capricious, arbitrary, illegal or uninformed. Even though the workmen have interest in the manner in which the company is conducting its business in as much as its policy decision may have an impact or workers’ rights, nonetheless.

Article 14 - Legitimate Expectation

The doctrine of legitimate expectation has been described in the following words: "A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice." [38]

The theory of Legitimate Expectation is a branch of Administrative Law. The doctrine of legitimate expectation is a nascent addition to the rules of natural justice. It goes beyond statutory rights by serving as another device for rendering justice. At the root of the principle of legitimate expectation is the constitutional principle of rule of law, which requires ‘regularity’, ‘predictability’ and ‘certainty’ in government's dealings with the public.  The `legal certainty' is also a basic principle of European Community. European law is based upon the concept of "vertrauensschutz" (the honouring of a trust or confidence). It is for these reasons that the existence of a legitimate expectation may even in the absence of a right of private law, justify its recognition in public law. It has been accepted by the English, Irish and Indian Courts but has been outrightly rejected in Australia and Canada. The doctrine of legitimate expectation in Singapore protects both procedural and substantive rights. 

The theory of Legitimate Expectation marches into operation when there is an express promise from any Public Authority / Official that there is a regular practice of a certain thing, which the claimant can reasonably expect to continue. In other words, it consists of either inculcating anticipation in the citizen, or assuring him that under certain rules and schemes he would continue to reap certain benefits of which he would not be deprived unless there is some overriding public interest.   

Legitimate Expectation concerns the relationship between Public Administration and an individual. The principle means that expectations raised by administrative conduct have to be respected and fulfilled lest public interest and betterment demands otherwise. Non-fulfillment can have legal consequences. The role of the Courts in the entire transaction is to safeguard the individual’s expectations in the face of change of policy. They have to ensure that the individual’s expectations are fulfilled mutatis mutandis the Governmental Policies. Precisely speaking, the Government and its Departments, in administering the affairs of the country are expected to honour their statements of policy or intention. The policy statement cannot be disregarded unfairly. Unfairness and arbitrariness are akin to violation of principles of natural justice.  

The concept of "due process of law" has played a major role in the development of administrative law. It ensures fairness in public administration. The administrative authorities who are entrusted with the task of deciding ‘lis’ between the parties or adjudicating upon the rights of the individuals are duty bound to comply with the rules of natural justice, which are multifaceted. The ‘absence of bias in the decision making process’ and ‘compliance of audi alteram partem’ are two of these facets

A formal statement on the doctrine of legitimate expectation can be found in the judgment of House of Lords in Council of Civil Services Union vs. Minister of the Civil Service[39]. In this case the Government tried to forbid trade unionism among civil service. For this, Civil Service Order-in-1982 Council was issued. The Court of appeal declared that the Minister had acted unlawfully in abridging the fundamental right of a citizen to become a member of the trade union. The House of Lords approved the judgment of the Court of appeal and held that such a right could not be taken away without consulting the concerned civil servant.

In India, the Courts have gradually recognized that while administering the affairs of the State, the Government and its departments are expected to honour the policy statements and treat the citizens without any discrimination. The theory of legitimate expectation first found its mention in Navjyoti Coop. Group Housing Society vs. Union of India[40]. In that case the right of a housing society for right to priority in the matter of registration was recognized in the following words :

"...In the aforesaid facts, the Group Housing Societies were entitled to `legitimate expectation' of following consistent past practice in the matter of allotment, even though they may not have any legal right in private law to receive such treatment. The existence of `legitimate expectation' may have a number of different consequences and one of such consequences is that the authority ought not to act to defeat the `legitimate expectation' without some overriding reason of public policy to justify its doing so. In a case of `legitimate expectation' if the authority proposes to defeat a person's `legitimate expectation' it should afford him an opportunity to make representations in the matter.”

The principle of substantive legitimate expectation has been accepted by the Courts in India

In Food Corporation of India vs. Kamdhenu Cattle Feed Industries[41], the Supreme Court  has  considered whether rejection of the tender of the respondent was vitiated by arbitrariness. The claim of the respondents was negated in the following words : "In the contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to article 14 of the Constitution of which non- arbitrariness is a significant facet. There is no unfettered discretion in public law : A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is `fair play in action'. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision making process in all State actions. To satisfy this requirement of non- arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. The rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise of by judicial review. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non- arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non- arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this context."

In Union of India and others vs. Hindustan Development Corporation and others[42]  the Supreme  Court has considered the doctrine of legitimate expectation and held : "For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense."`

In Punjab Communications Ltd. vs. Union of India[43], the Court observed as under : "The principle of `legitimate expectation' is still at a stage of evolution. The principle is at the root of the rule of law and requires regularity, predictability and certainty in the Government's dealings with the public. The procedural part of it relates to a representation that a hearing or other appropriate procedure will be afforded before the decision is made. However, the more important aspect is whether the decision-maker can sustain the change in policy by resort to Wednesbury principles of rationality or whether the court can go into the question whether the decision-maker has properly balanced the legitimate expectation as against the need for a change. In sum, this means that the judgment whether public interest overrides the substantive legitimate expectation of individuals will be for the decision-maker who has made the change in the policy. The choice of the policy is for the decision-maker and not for the court. The legitimate substantive expectation merely permits the court to find out if the change in policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made."

In Union of India v. Hindustan Development Corporation[44], the Supreme Court has elaborately considered the reverence of this theory. In the estimation of the Apex Court, the doctrine does not contain any crystallized right. It gives to the applicant a sufficient ground to seek judicial review and the principle is mostly confined to the right to a fair hearing before any decision is given. 

In another landmark judgment, M.P. Oil Extraction Co v. State of Madhya Pradesh[45], the Supreme Court was dealing with the license renewal claims of certain industries. It was held in this case that extending an invitation, on behalf of the State, was not arbitrary and the selected industry had a legitimate expectation of renewal of license under the renewal claims. 

In Secretary, State of Karnataka vs. Uma Devi[46], the Constitution Bench referred to the claim of the employees based on the doctrine of legitimate expectation and observed as under : "The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn."

In National Building Constructions Corporation v. S Raghunathan[47], it was held that legitimate expectation is a source of both, procedural and substantive rights. The person seeking to invoke the doctrine must be aggrieved and must have altered his position. The doctrine of legitimate expectation assures fair play in administrative action and can always be enforced as a substantive right.

In Navjyoti Co-op Group Housing Society v Union of India[48] the principle of procedural fairness was applied. In that case the seniority as per existing list of co-operative housing societies for allotment was altered by a subsequent decision. The previous policy was that the seniority amongst housing societies in regard to allotment of land was to be based on the date of registration of the society with the Registrar. But on 20.1.1990 the policy was changed by reckoning seniority as based upon date of approval of the final list by the Registrar. This altered the existing seniority of societies for allotment of land. The Court held that the societies were entitled to a “legitimate expectation” that the past consistent practice in the matter of allotment will be followed even if there was no right in private law for such allotment. The authority was not entitled to defeat the legitimate expectation of the societies as per previous seniority list without some overriding reason of public policy to justify the change in the criterion. No such overriding reason of public policy was shown. According to principle of legitimate expectation, if the authority proposed to defeat a person’s legitimate expectation, it should afford him an opportunity to make a representation in the matter. It was held that the doctrine imposed in essence, a duty to act fairly by taking into consideration all relevant factors, relating to such legitimate expectation.

In Madras City Wine Merchants Association v State of Tamil Nadu [49]the rules relating to renewal of liquor licenses were statutorily altered by repealing existing rules. It was held that the repeal being the result of a change in the policy by legislation the principle of non-arbitrariness was not invocable.

 The protection of ‘legitimate expectation’ does not require the fulfillment of such expectation where an overriding public interest requires otherwise. That is to say, the public interest is overriding. If public interest is not involved, the doctrine of legitimate expectation has its full sway. However, it must be proved that a legitimate authority made a promise, which was acted upon and substantial investment or expenditure was made.

The emerged concept of Legitimate Expectation is gradually gaining importance. The substance of the doctrine is honouring implied commitments without hampering express policies. The doctrine invokes to enforce ‘regularity’, ‘predictability’ and ‘certainty’ in Government’s dealings.

Arbitrary action –State liable to pay compensation to a citizen

In a land mark judgment in Lucknow Development Authority v M.K.Gupta[50] the Supreme Court has held that if loss or injury is caused to a citizen by arbitrary actions of State employees, the State is liable to pay compensation to him. Public Authorities who are entrusted with statutory function cannot act negligently.  Under our Constitution Sovereignty is vested in the people. Every limb of the constitutional machinery is obliged to be people oriented. No functionary in exercise of statutory power can claim immunity, except to the extent protected by the statute itself.  In this case the respondent had applied for registration for allotment of a flat constructed by Lucknow Development Authorities. A flat was allotted to him on April 26, 1988 and he deposited the entire money on July 29, 1988, but the possession of the flat was not given to him because the construction work was not complete. He filed a complaint before the District Forum. The State Commission directed the appellant on February 15, 1990 to handover possession of the flat after completing the work and if it was not possible refund the cost of construction.  The appellant instead of complying with the order, filed an appeal in the National Commission which was dismissed. The Commission held that the action of the appellant amounted to harassment, mental torture and agony of the respondent and therefore directed the appellant to pay ` 10,000 as compensation.  The appellant filed an appeal in the Supreme Court against the order of the national Commission. The Supreme Court upheld the decision of the Commission and dismissed the appeal.

Rules of Natural Justice implicit in Article 14

In a judgment of far reaching importance in Central Inland Water Transport Corpn Ltd v Brojo Nath[51] the Supreme Court has held that Service Rules empowering the Government Corporation to terminate Service of permanent employees without giving reasons on three months’ notice or pay in lieu of notice period is violative of Article 14 being unconscionable, arbitrary, unreasonable and against public policy as it wholly ignores the audi alteram partem rule (i.e hear the parties). The service rule confers an absolute, arbitrary and unguided power upon the corporation to terminate the services of its employees without giving any reasons. This decision will go a long way in protecting lakhs of employees of public corporations working under contract of service from arbitrary termination of their services without assigning any reasons.

Following Central Inland Water Transport Corporation  case the Supreme Court in Delhi Transport Corporation v D.T.C. Mazdoor Congress[52] held that regulation 9(b) of the Deli Road Transport Authority (Conditions of Appointment and Service) Regulations 1952 which conferred power on the authority to terminate the services of a permanent and confirmed employee by issuing a notice without assigning any reasons and without giving any opportunity of hearing was wholly arbitrary, unreasonable and violative and arbitrary power to the authority and thus violated the principles of natural justice as well as right to equality enshrined in Article 14 of the Constitution.

In F.C.I v Kam Dhenu Cattle Feed Industries [53] the appellant Food Corporation of India invited tenders for sale of stocks of damaged food grains in accordance with the terms and conditions contained in the tender notice. The respondent’s bid was the highest but the appellant was not satisfied with the adequacy of the amount offered in the highest tender and therefore instead of accepting any of the tenders submitted, invited all tenderers to participate in the negotiation. The respondent refused to revise the rates offered in the tender. During the negotiation, the appellant who offered an excess amount of ` 20 lakhs i.e ` 1 crore 10 lakh, the highest offer made during negotiation. The respondent filed a writ petition in the High Court challenging the appellant’s refusal to accept the highest tender submitted by it claiming that the appellant having chosen to invite tenders, it could not thereafter dispose of the stocks of damaged foodgrains on the ground that a highest bid was obtained by negotiations. This action of the appellant was arbitrary and therefore violative of Article 14 of the Constitution. The High Court accepted this contention of the respondent and allowed the writ petition. In appeal before the Supreme Court it was contended by the respondent that even though the appellant had the right to reject any tender, including the highest tender, and thereafter negotiate with all the tenderers to procure the highest price for the commodity, yet this right has to be exercised reasonably and not arbitrarily.  In the present case it was held that no cogent reasons were indicated that for rejecting all tenders and deciding to dispose of the commodity by negotiations with the tenderers for procuring a higher price.

The Supreme Court held that the respondent’s higher tender was superseded only by a significantly higher bid made during the negotiations with all tenderers giving them equal opportunity to compete by revising their bids. The fact that it was significantly higher bid obtained by adopting this course is sufficient to demonstrate that the action of the appellant satisfied the requirement of non-arbitrariness, and it was taken for the cogent reasons of inadequacy of the price offered in the highest tender which reason was evident to all tenderers invited to participate in the negotiations and to revise their bids.  The Court accepted that though the highest tenderer can claim no right to have his tender accepted, but the power to reject all tenders cannot be exercised arbitrarily unless there are cogent reasons for such action. The object of inviting tenders for disposal of a commodity is to procure the highest price while giving equal opportunity to all the intending bidders to compete. Procuring highest price for the commodity is undoubtedly in public interest since the amount so collected goes to the public fund. Accordingly, inadequacy of the price offered in the highest tender would be a cogent ground for negotiating with the tenderers giving them equal opportunity to revise their bids with a view to obtain the highest available price.

In contractual sphere, as in all State actions, the State and all its instrumentalities have to conform to the requirements of Article 14 of the Constitution of which non-arbitrariness is one of the important facets.  There is no unfettered discretion in Public Law. A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is fair play in action. Rule of Law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review. The Court allowed the appeal and set aside the order of the High Court.

In B.C.P.P. Mazdoor Sangh v N.T.P.C[54].the appellants who were employees of N.T.P.C. a public sector company had challenged the validity of transfer of their services to Bharat Aluminium Company Limited (BALCO) a private company under the policy of disinvestment as illegal, arbitrary and violative of Article 14 of the Constitution.  The appellants were governed by service terms and conditions as applicable to N.T.P.C. under a bi-partite agreement. They argued that their conditions of service could not be changed without giving them opportunity of hearing.  The Supreme Court held that the conditions of service of employees cannot be changed re-prospectively without giving them opportunity of hearing and this amounted to arbitrary and violative to Section 23 of the Contract Act as well as violative of Article 14 of the Constitution of India.  The employees are neither party to the agreement nor they have been heard before changing their service conditions. Therefore, the action of management is violative of Article 14 of the Constitution of India.

In B.C.P.P. Mazdoor Sangh v N.T.P.C[55]. the appellants who were employees of N.T.P.C. a public sector company, had challenged the validity of transfer of their services to Bharat Aluminium Company Ltd (BALCO) a private company, under the policy of disinvestment as illegal, arbitrary and violative of Article 14 of the Constitution. The appellants were governed by service terms and conditions as applicable to N.T.P.C. under a bi-partite agreement. They argued that their conditions of service could not be changed without giving them opportunity of hearing. The Supreme Court held that the conditions of service of employees cannot be changed reprospectively without giving them opportunity of hearing and this amounted to arbitrary and violative to Section 23 of the Contract Act as well as violative of Article 14 of the Constitution of India. The employees are neither party to the agreement nor they have been heard before changing their service conditions. Therefore, the action of management is violative of Article 14 of the Constitution of India.

In Mahesh v Reigonal Manager UPFC[56] the appellant, managing partner of a firm, owned two plots of land (No. 208 and 220/2). In plot No. 208 a rice mill was constructed by the firm. The plot No. 220/2 remained vacant. The firm hypothecated the rice mill and the open plot to the U.P.Financial Corporation for a loan. A loan of ` 4,28,000 was sanctioned in 1979 but only ` 3,70,660 were disbursed in 1990 which was repayable in eleven annual installments  upto 1991.  The appellant repaid a sum of ` 9,000 in 1981 but due to non-cooperation of other partners and lack of working capital due to failure of release of balance loan, defaults in payment were committed. Finding that the interest was mounting, the appellant requested the corporation to release the plot No.220 so that by selling it along with his two more plots he could pay off the debt. Instead of releasing the plot, the Corporation took possession of the hypothecation and got valued as ` 3,28,717.97 and published for sale inviting tenders. The last date to receive the tenders was Jan.13,1987 and respondent 3 and his sons respondents had submitted  the tender on March 25,1987 for a sum of ` 2,00,000 which was on negotiation accepted for ` 2,55,000 as no further respondent  was forthcoming. The Corporation agreed to receive 25 per cent of the consideration namely ` 63,750 as initial payment and the balance consideration in four years in equal half yearly installments. Before accepting the tenders no notice nor an opportunity was given to the appellant. The appellant challenged the action of the Corporation as arbitrary and violative and violative of Article 14 of the Constitution. The Supreme Court held that the action of the Corporation in accepting the tender of the respondents 3 to 5 ignoring the appellant was unjust and unfair and no reasonable prudent owner would have accepted such offer. The appellant himself long prior to sale, had offered to pay ` 5 lakhs. Any prudent business man with the least acumen would have agreed to the proposal of the release to the plot for sake of recovering its debts.  Instead of agreeing to receive ` 5 lakhs in lump-sum, it opted for ` 2,50,000 that too in four yearly installments. It was neither business principle, nor in the interest of commerce and industry, nor good of general public. A reasonable approach is not only desirable but necessary, while dealing with such matters. Instead it adopted an attitude which was contrary to the spirit and scheme of Section 24 of the Act. The Corporation deals with public money for public benefit. The approach has to be public oriented, helpful to the loanee.  Without loss to the Corporation, Section 24 of the Act itself required the Board to discharge its functions on business principles, having regard to the interest of industry, commerce and general public.

The Court held that every wide power the exercise of which has wide repercussion has inherent limitation on it. It should be exercised to give effect to the purpose of the Act. In legislations enacted for general benefit and common good the responsibility is far greater. The exercise of discretion should be objective. It demands purposeful approach Test of reasonableness is more strict. Section 29 confers very wide power to the Corporation to ensure payment by arriving it with effective measures to realize the arrears. From notice to pay arrears it extends to taking the management and even possession with a right to transfer it by sale. Power under Section 29 of the Act to take possession of a defaulting unit and transfer it by sale requires the authority to act continuously, honestly fairly and reasonably. The Court held that the Corporation was guilty of not acting in accordance with law either at the stage of takeover or in transferring the unit.  The Corporation before accepting the tender of respondent 3 an opportunity should have been given to the appellant. Section 29 does not exclude the application of the principles of natural justice.

In Kumaon Mandal Vikas Nigam Ltd v Girji Shanar[57] Pant the Supreme Court has explained the scope of the principles of natural justice and held that doctrine of natural justice is synonym of fairness. The doctrine is not capable of exact definition. Its compliance depends on facts and circumstances of each case.  In the instant case the respondent working as General Manager (Tourism) in the Nigam. He was dismissed from service by the Managing Director in a peculiar circumstances. The Managing Director left on an official tour to Tibet.  On the very next day after he returned, the Managing Director passed an order withdrawing all powers and authority and duties of respondent as a General Manager (Tourism).  On the third day a show cause notice containing 13 allegations without any documentary support therefor was served on the respondent. Despite request copies of documents were not made available to him on the plea that the same were already placed before the Inquiry Officer. An Inquiry officer who was directly under supervision of the Managing Director was appointed even before explanation on show cause notice was received. The Inquiry Officer on supposed examination of the records and admittedly without giving any notice and without fixation of any date or time venue for inquiry or for examination of witnesses and without appointing presenting officer proceeded to complete the inquiry.   The Inquiry Officer himself dealt with the matter. Copy of the Inquiry report was sent to the respondent with a request to give reply thereto positively on the next day at 10.30 a.m. the respondent was directed to produce his defence at 11.00 a.m. on the same day without, however, permission to summon his defence witnesses. Subsequently, personal hearing was offered by the Managing Director and within hours of the personal hearing an eighteen page order was passed dismissing the respondent from services at about 7.30 p.m.

The Supreme Court held that the order of dismissal of the respondent from service was passed in hottest haste and also suffered from bias of Managing Director. The language used in the show cause notice cum charge sheet clearly showed that the Managing Director had a mind-set even at the stage of framing charges. The Managing Director admittedly was not well disposed of towards the respondent and therefore he withdrew all powers and authority of the respondent. It was the self-same Managing Director who leveled 13 charges against the respondent leveled appointed the Inquiry Officer, but afforded a pretended hearing himself late in the afternoon and communicated the order of termination consisting of 18 pages by early morning. Thus, the chain of events was complete and prejudice stood proved.

As regards the natural justice, the Court held that it is a fundamental requirement of law that the doctrine of natural justice be complied with and it is an integral part of administrative jurisprudence of this country. The judicial process itself embraces a fair and reasonable opportunity to defend. While it is true that in a departmental proceeding the disciplinary authority is the departmental judge of facts and the High Court may not interfere with the factual findings but the availability of judicial review in case of departmental proceeding cannot be doubted. Judicial review has its application to its fullest of extent in even departmental proceedings where it is found that the recorded findings are totally pervesee.  Referring the instant case, the Court held that the facts of the matter under consideration is ‘singularly singular’. The entire chain of events smacks of some personal clash and adaptation of a method unknown to law in hottest of haste, the whole issue has been dealt with in such a way that it cannot be termed to be totally devoid of any justifiable reason and amounts to a total miscarriage of justice.

In State of Karnataka v B. Suvarana[58] the validity of R.2(B)of the Karnataka State Civil Services (Absorption of Persons working as Part Time Lecturers in Karnataka Education Department of College Education Special Rules 1996 enacted under the Karnataka State Civil Services Act, 1990 providing for regularizing part time lecturers was challenged through a PIL by intending candidates for the post of lecturers on the ground that it was violative of Art14 of the Constitution and sought to legalise back door entrants. The Rules were enacted by the Government on the basis of recommendations of the High Power Committees. The Karnataka Administrative Tribunal struck down Rule 2(b) (iii) of the Karnataka State Absorption Rule. The High Court upheld the Administrative Tribunal’s decision. The Supreme Court held that the rules regarding part time lecturers was not discriminatory and violative of Art .14 of the Constitution on the ground that part time lecturers are backdoor entrants and their regularization would affect rights of regular entrants. More so, when such regularization has been made as legislative measure and also as a onetime measure and at the same time insisting upon the essential qualifications to be duly complied with by the persons intended to be absolved on regular basis. Part time lecturers having been formed a class by themselves and for some reason or the other they having been deprived of the benefits of the earlier direction of the Supreme Court on account of inaction on the part of the State Government. The concept of equality before the law does not involve the idea of absolute equality which is an impossibility among human being. All that Art. 14 guarantees is a similarity of treatment contradistinguished from identical treatment. Equality before the law means that among equals the law should be equal and should be equally administered and that like should be treated alike. Equality before the law does not mean that things which are different shall be treated as though they are the same. The Court held that when the absorption rules are examined from the aforesaid standpoint and the circumstances under which the said rules were made to solve a human problem and were put to objections to the general public and even Public Service Commission was consulted and finally the State Legislature gave its concurrence by enacting the said rules the High Court was in error in striking down the rules on the ground that it was discriminatory. In view of this, the Court set aside the judgment of the Tribunal and the High Court and held that the absorption rules were valid. However, the Court directed that the State Government must insist upon the candidates to pass the NET (National Education Test) test as required by the University Grants Commission within three years and it is only on passing of such test, the absorbed employees will be entitled in the scale of pay available for the regular qualified lecturers. Failure on their part to pass the NET test would debar them from being absorbed and regularized.

Exclusion of Rule of natural Justice

In Madras City Wine Merchants Association v State of Tamil Nadu[59] it has been held that legislative action plenary or subordinate is not subject to natural justice rules. Accordingly, the Supreme Court upheld the repeal of the Tamil Nadu Liquor (Vending in Bar) Rules 1992 under the T.N. Prohibition Act, 1937 and non-renewal of the licences granted to the retail venders for selling liquor in Bars. The appellants challenged the validity of the Government order on the ground that the sudden change of policy not to renew the licences was arbitrary and violative of Art.14 of the Constitution. It was submitted that due consideration of every legitimate expectation (that licence may be renewed) in the decision making powers is a requirement of rule of non-arbitrariness.  A change of policy should not be done arbitrarily.

The Court, however, held that the G.O. of the Government was not violative of Art.14 as there was no unfairness on the part of the State. The Government had received complaints that the consumption of liquor in Bars resulted in law and order problems, women folk being harassed and therefore it took a policy decision to repeal the grant of bar licences. It was in public interest.

No distinction between quasi-judicial function and administrative function for purpose of application of rules of natural justice

In a judgment of far reaching importance in D.K. Yadav v JMA Industries[60] , the Supreme Court has held that termination of the service of a worker without giving reasonable opportunity of hearing is unjust, arbitrary and illegal.  The Court held that the right to life enshrined under Article 21 of the Constitution includes the right to livelihood and an order of termination of service of an employee visits with civil consequences of depriving of his livelihood and, therefore, fair play requires that before taking such an action a reasonable opportunity must be given to him to explain his case. The procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and so it must be right, just and fair and not arbitrary, fanciful or oppressive.  Even the administrative order which involves civil consequences must be made consistent with the rules of natural justice.  The substantive and procedural laws and action taken under them will have to pass the test under Article 14.  There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as quasi-judicial inquiry is the same that is to arrive at a just decision and if the rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice it is difficult to see why it should only apply to quasi-judicial enquiry and not to administrative enquiry.  It must logically apply to both, their Lordships declared: The principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable.

In the instant case, the appellant was removed from service by the management of M/s

JMA Industries Ltd on the ground that he had willfully absented from duty continuously for more than 8 days without leave or prior information or previous permission from the management and, therefore “deemed to have left the service of the company under clause 13(2)(iv) of the Certified Standing Order.  On the other hand, the appellant contended that despite his reporting duty on Dec.3, 1980 and everyday continuously thereafter he was prevented entry at the gate and he was not allowed to sign the attendance register. He was not allowed to join duty without assigning any reason. The Labour Court of Faridabad in Haryana upheld the termination of the appellant from service as legal and valid. The Supreme Court, following the Delhi Transport Corporation case, allowed his appeal and held that although the management had the power under clause 13 of the Standing Order to terminate the service of the appellant, but in exercising this power the principles of natural justice must be read into the Standing order otherwise it would become arbitrary, unjust and unfair violating Article 14 of the Constitution. The Court set aside the Labour Court award and ordered the appellant’s reinstatement with 50 per cent back wages.

In Sukumar Mukherjee v State of W.B[61]. the appellant challenged the validity of the West Bengal State Health Services Act 1990 on the ground that it was discriminatory and violative of Article 14 of the Constitution.  Under the Act two separate services were proposed to be constituted viz. West Bengal Medical Education Service (WBMES) and West Bengal Health Service (WBHS).  Section 12 of the Act gave option to the Doctors of the former WBHS who were holding teaching posts to opt for WBMES or WBHS. On May25, 1990 WEBMES was constituted and 90 days time was given to the doctors or to join WBHS.  Section 9 prohibited private practice by the members of WBMES, but not prohibiting the same by the members of WBHS and holders of contracted posts. The teacher doctors and the WBHS Association challenged the validity of the WBSHS Act, 1990. The Court held that the Act was not violative of Article 14 as there was a reasonable classification between the two classes the WBMES and WBHS and it was based on the nature of duties performed by the persons belonging to the two different classes. The purpose of the two services and the duties and functions of their members are different and hence their service conditions also differ.  If the teachers, doctors are allowed to have their private practice they would find no time for studies and research and thus be up-to-date in their subjects which is essential for them.  The State Government found that the teacher doctors were paying more attention to their private practice and as a result they were absent from the teaching rooms and neglecting their duties towards the hospitals attached to the teaching institutions with a view to arrest the deteriorating standards of medical Education in the State and therefore in order to improve its quality the State Government decided as a matter of policy to bifurcate the existing unified service and create a separate service known as WBMES for Doctors engaged in teaching and debarred them from private practice.

In Director General of Police v Mritynjoy Sarkar[62] , the respondents were discharged from service on the ground that they had produced a fake list.  The respondent was appointed as constables in the State Armed Police on the basis of the list furnished by the Employment Exchange. No opportunity of representation in inquiry was given to the respondent. The High Court had set aside the discharge order. The Supreme Court upheld the judgment of the High Court and held that the principles of the natural justice require that they should have been given reasonable opportunity of representation in the inquiry to be conducted an appropriate order with reasons in support thereof.  Since this procedure was nto followed the order of discharge was illegal and liable to be set aside.

In Revathi v Union of India [63]the constitutional validity of Section 198(2) Cr.P.C. and Section 497 , IPC which disables the wife from prosecuting her husband for the offence of adultery was challenged on the ground that it was violative of Article 14 of the Constitution . Under these sections, the right to prosecute the adulterer is only given to the husband of the adulteress but has not been given to the wife of the adulterer.  The Supreme Court held that there was no discrimination based on sex and these provisions were valid. The underlying object of these sections appear to be that as between the husband and wife social good will be served by permitting them ‘to make up’ or break up’ the matrimonial tie rather than to drag each other to the criminal court. They can either condone the offence in a spirit of ‘forgive and forget’ and live together or separate by appropriate action in a matrimonial court. It does not arm the two spouses to hit each other with the weapon of criminal law. The offence of adultery can only be committed by a man, not by a woman. The wife cannot be punished even as an abettor.

In Arti Gupta v State of Punjab[64] it has been held that reduction of minimum qualifying marks from 35% to 25% in order to accommodate more SCs. and STs candidates to fulfill the reserved quota is not arbitrary and violative of Article 14 of the Constitution.

In Bhagwati v Union of India [65], it has been held that the classification between marriage during service and marriage after retirement for the purpose of giving family pension is arbitrary and violative of Article 14.  Pension is payable on the consideration of past services rendered by the government servant. Same consideration applies to family pension. So there is no justification to keep post-retirement marriage out of the purview of the definition of the term ‘family’ in Pension Rule. The social purpose for which family pension is given is frustrated if children born after retirement are excluded from the benefit of the family pension. Family pension for children born after retirement is most necessary.  In 1955 his wife died and he was married to the petitioner.  The husband of the petitioner died in 1985. The petitioner who had two minor children applied for family pension which was denied and hence she filed the present writ petition. It was held that the limitation in Pension Rule 5(14)(b) that the word ‘family’ does not include’ son or daughter” born after retirement is ultra vires of Article 14and therefore unconstitutional.

In P& T SC/ST Employees Welfare Association v Union of India [66] the validity of the new policy or promotion was challenged. Under the new policy which was adopted in place of the scheme of reservation all employees whether belonging to the general category or to the category of the SC’s and ST’s were to be promoted to a higher post on the completion of 16 years.  Under the old scheme of reservation the SC’s and ST’s employees could get promotions to the higher cadre within 10 to 12 years while other employees had to wait for 20 to 23 years.  This benefit is being enjoyed by SC and ST employees in other departments and only the employees of the P&T department are being deprived of it. The court held that this was discriminatory and violative of Article 14 as others who were similarly situated in other departments were allowed to enjoy it. The withdrawal of reservations for SC’s and ST’s candidates in promotion while similar reservations still prevailing in other government departments was discriminatory and unconstitutional.

In Deepak Sibal v Punjab University[67] the appellants challenged the constitutional validity of the admission rule in the evening classes of the three years LL.B course of the Punjab University on the ground that it was violative of Article 14 of the Constitution. By the rule, admission to evening classes was restricted only to regular employees of Government/Semi-Government institutions etc and not employee in general including private sector employees. The appellants were employees in the private sector and hence they were denied admission. It was held that there was no reasonable basis for classification of employees between government and semi-government employees and private sector employees for the purpose of admission to LLB. course. Both of them stand on the same footing and there is no difference between the two. It is true that the service conditions of employees of Government/Semi-Government institutions etc are different and they may have greater security of service, but that hardly matters for the purpose of admission in the evening classes. The possibility of production by employees of private establishments of bogus certificates and insecurity of their service are not such circumstances as will justify the exclusion of such employees from the evening classes. It was held that the classification between the Government /Semi-Government employees for the purpose of admission to evening classes to the exclusion of the other employees was unreasonable and unjust and therefore the rule was struck down as discriminatory and violative of Article 14 of the Constitution.

In Mahabir Auto Store v Indian Oil Corporation [68]the Supreme Court has held that the mandate of Article 14 also applies to exercise of State’s executive power under Article 298 in entering or not entering to contracts with individual parties. The decisions of the State under Article 298 is an administrative decision and can be challenged on the ground that it is arbitrary or violative of Article 14.  In this case, the respondent, Indian Oil Corporation, is a statutory body incorporated under the Companies Act, 1956 carrying on monopoly business in lubricants etc. The appellants firm was carrying on the business of sale and distribution of all types of lubricants for 18 years. The supplies of lubricants to the firm was stopped suddenly. No notice was given by the Indian Oil Corporation. This, according to the applicants, amounted to black listing and was arbitrary and against the principles of natural justice, fair play and unreasonableness and thereby was violative of Article 14 of the Constitution.  The Supreme Court held that the decision of the State/public authority under Article 298 is an administrative decision and can be impeached on the ground that the decision is arbitrary or violative of Article 14 on any of the grounds available in public field.  The Court said “Every action of the State Executive authority must be subject to rule of law and must be informed by reason”. So whatever be the activity of the public authority, it should meet the test of Article 14 of the Constitution. If a governmental action even in matter of entering or not entering into contracts, fails to satisfy the test of reasonableness the same would be unreasonable. The Indian Oil Corporation was held to be an organ of the State or an instrumentality of a State within the meaning of Article 12 and hence its action was liable to be impeached on the ground of violation of Article 14 of the Constitution.

In Shrilekha Vidyathi v State of U.P[69] , the validity of Uttar Pradesh Government Legal Remembrancer’s Manual (1975) under which the Government had terminated the appointment of all District Government Counsels without assigning any reason was challenged as violative of Article 14 of the Constitution. Following the case of Mahabir Auto Stores v Indian Oil Corporation it was held that the termination of the appointment of all D.G.C. without assigning any reason was arbitrary and violative of Article 14, was illegal. Article 14 applies to matters of governmental policy and if the policy or any action of the government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. It is implicit in Article 14 that a change in policy must be made fairly. The appointment of D.G.C. by the State Government is not merely a professional engagement like that between a private client and his lawyer nor purely contractual. A public element is attached to the ‘office’ or ‘post’. There is an element of continuity of the appointment unless the appointee is found to be unsuitable. The expression ‘without assigning any cause’ merely means without communicating any cause to the appointee and not to be equated with ‘without existence of any cause’.

In Charan Lal Sahu v Union of India[70]  the Constitutional validity of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 was challenged. The Act empowers the Central Government to take over the conduct of all litigations on behalf of the victims of Bhopal Gas Tragedy. The validity of the Act was challenged on the ground that the deprivation of the claimants individual rights to legal remedy against the Union Carbide Company was violative of Article 14 of the Constitution. The Court held that the Act is valid as the State is in a capacity of parents patriae (parent of the country) for protecting the disabled victims of Bhopal Gas disaster is competent to represent the victims. It is the duty of the State to protect the rights and privileges of its citizens and where the citizens are not in a position to assert and secure their rights the State must come into picture and protect and fight for the rights of the citizens.

In Dr. K.R.Lakshmann v State of T.N[71]. the validity of the T.N. Horse Races (Abolition and Wagering or Betting) Act 1974 was challenged on the ground that the amended Act had brought the horse racing within the definition of ‘gaming’ which was not prohibited by two earlier Acts. The High Court held that horse racing was a game of chance and as such was gambling and, therefore, could be prohibited. The Madras Race Club is an Association registered as a company under the Companies Act, 1956. According to its Memorandum and Articles, the principal object of the Club is to carry out the business of a race-in the running of horse-races. The Club filed an appeal in the Supreme Court against the order of the High Court. During the pendency of the appeal the T.N. Legislature enacted the Madras Race Club (Acquisition and Transfer of Undertaking) Act, 1986 and acquired the Club and its property. The Supreme Court held that horse racing is a game of skill within the meaning of Section 49 of the Police Act and Section 11 of the Gambling Act.  The horse racing is neither gaming nor “gambling” as defined in these Acts and therefore, the penal provisions of these Acts are not applicable to the horse racing which is a game of skill.

The Club does not earn any income from the betting money except 5 per cent commission. There is no question whatsoever of the club owning or controlling the material resources of the community or in any manner contributing towards the operation of the economic system resulting in the concentration of wealth and means of production to the common detriment. Reference to Art 39(b) and (c) of in the aims and objects and in Section 2 of the Act is nothing but a mechanical reproduction of a constitutional provision in a totally inappropriate context.  There is no nexus between the Act of 1986 and the objectives contained in Article 39(b) and (c) of the Constitution. Therefore, its protection is not available to the T. N. Act. The Court held that the provisions of the Act of 1986 are discriminatory and arbitrary and as such violative of Art. 14 of the Constitution and therefore liable to be struck down.

In Anukul Chandra Pradhan v Union of India[72] it has been held that the debarment of persons who are in prison or police custody under Section 5 of the Representation of the Peoples Act ,1951, to vote in an election, but not of persons under preventive detention is not discriminatory and violative of Article 14 of the Constitution. Section 5 makes an exceptions in this matter as regards the persons detained under preventive detention. The object of this provision is to prevent criminalization of politics and maintain probity in elections. Any provision enacted with a view to promote this object must be welcome and upheld as sub-serving the constitutional purpose. Criminalisation of policies is the bane of society and negation of democracy. It is subversive of free and fair election which is a basic feature of the Constitution, said Verma C.J. who delivered the judgment of the Court. Preventive detention differs from imprisonment on conviction or during investigation of crime of an accused which permits separate classification of the detenues. Preventive detention is to prevent beach of law while imprisonment on conviction or during investigation is subsequent to the commission of the crime. This distinction permits separate classification of a person subjected to preventive detention.

In an important judgment the Supreme Court has held that the government cannot discriminate among women on account of marriage. The Court allowed an appeal by Mr. Savita Samvedi and her father challenging a Railway Board circular which provided that the married daughter of retiring official was eligible to obtain regularization of Government quarter if her retiring father has no son. The Court said that “ there is no occasion for the Railways to be regulating the choice in favour of the son who is not able to maintain his parents. The Railway Minister’s Circular in this regard is thus wholly unfair, gender biased and unreasonable and liable to be struck down under Art.14 of the Constitution. Observing that “ a son is a son until he gets his wife and a daughter is a daughter throughout her life” the Court said that the retiring official’s expectation in old age for care and attention from one of his children could not be faulted, or his hopes dampened by limiting his choice. Accordingly, the Court set aside the judgment of the Central Administrative Tribunals which was of the view that when there were two major sons of the appellant gainfully employed but not in railway, it did not alter the terms Railway under which regularization was only possible in case of unmarried daughter or married daughter who did not have any brother.

Guidelines to prevent sexual harassment of working woman

In a landmark judgment in Vishaka v State of Rajasthan [73] the Supreme Court has laid down exhaustive guidelines to prevent sexual harassment of working women in places of their work until a Legislation is enacted for this purpose.  The petition was filed by a social worker by way of public interest litigation for the enforcement of rights of working women under Articles 14, 19 and 21 of the Constitution and in finding suitable methods for realisation of the true concept of ‘gender equality’. Gender equality includes protection from sexual harassment and right to work with dignity, which is universally recognized basic human right.  International conventions and norms are of great importance in the formulation of the guidelines to achieve this purpose. The Court has laid down the following guidelines:

1)     All employers or persons incharge of work place in the public and private sector, should take appropriate steps to prevent sexual harassment without prejudice to the generality of his obligation he should take the following steps :-

a)     Express prohibition of sexual harassment, which include physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornographic or any other unwelcome physical, verbal or non-verbal conduct of sexual nature should be noticed, published and circulated in appropriate ways.

b)     The rule and regulation of government and public sector bodies relating to conduct and discipline should include rules prohibiting sexual harassment and provide for appropriate penalties against the offender.

c)     As regard to private employees, the above prohibitions should be included in the Standing Order under the Indian Employment (Standing Orders) Act 1946

d)     Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work place and no employee women should have reasonable ground to believe that she is disadvantaged in connection with her employment.

2)     Where such conduct amounts to specific offences, under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law making a complaint with appropriate authority.

3)     The victim of sexual harassment should have option to seek transfer of the perpetrator or their own transfer.

Equal pay for Equal work

In Randhir Singh v Union of India[74] the Supreme Court has held that although the principle of ‘equal pay for equal work’ is not expressly declared by our Constitution to be a fundamental right, but it is certainly a constitutional goal under Articles 14,16 and 39(c) of the Constitution. This right can, therefore be enforced in cases of unequal scales of pay based on irrational classification. The decision in Randhir Singh’s case has been followed in a number of cases by the Supreme Court.

In Frank Anthony Public School Employee’s Association v Union of India[75] the Court struck down section 12 of the Delhi School Education Act as unconstitutional on the ground that it was violative of Article 14.  Sections 8 to 12 of the Act lays down the terms and conditions of service of employees of recognized private schools.  Section 10 requires that the scales of pay etc of the employees of recognized private school must not be less than those of Government Schools. Section 12 excludes the operation of Sections 8-11 to unaided minority schools.  The Court held that the teachers and employees of Frank Anthony Public School are entitled to parity in pay scales and other conditions of service with those available to their counterparts in government schools. The discrimination made by Section 12 of the Act in pay and other conditions of service of school teaches merely on the ground of aided schools and unaided minority schools is violative of Article 14.

In Dhirendra Chamoli v State of U.P.[76] it has been held that the principle of equal pay for equal work is also applicable to casual works employed on daily wage basis.  Accordingly, it was held that persons employed in Nehru Yuwak Kendra in the country as casual works on daily wage basis were doing the same work as done by class IV employees appointed on regular basis and therefore entitled to the same salary and conditions of service. It makes no difference whether they are appointed in sanctioned posts or not. It is not open to the Government to deny such benefit to them on the ground that they accepted the employment with full knowledge that they would be paid daily wages. Such denial would amount to violation of Article 14.  A welfare State committed to a socialist pattern of society cannot be permitted to take such an argument.

In Daily Rated Casual labour v Union of India [77]it has been held that the daily rated casual labourers in P & T department who were doing similar work as done by the regular works of the department were entitled to minimum pay in the pay scale of the regular workers plus D.A but without increments. Classification of employees into regular employees and casual employees for the purpose of payment of less than minimum pay is violative or Articles 14 and 16 of the Constitution. It is also opposed to the spirit of Article 7 of the International Covenant of Economic, Social and cultural Rights 1966.  Although the directive principle contained in Articles 38 and 39(d) is not enforceable by virtue of Article 37, but they may be relied upon by the petitioners to show that in the instant case they have been subjected to hostile discrimination.  Denial of minimum pay amounts to exploitation of labour. The government cannot take advantage of its dominant position. The Government should be a model employer.

However, in F.A.I.C. and C.E.S v Union of India[78] the Supreme Court has held that different pay scales can be fixed for government servants holding same post and performing similar work on the basis of difference in degree of responsibility, reliability and confidentiality and as such it will not be violative of the principle of equal pay for equal work, implicit in Article 14.  The Court said:

Equal pay must depend upon the nature of the work done. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility.  Functions may be the same but the responsibilities make a difference. Equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of the right.  Accordingly, the Court held that difference pay scales fixed for stenographers Grade I working in Central Secretariat and those attached to the heads of the subordinate offices on the basis of recommendation of the Third Pay Commission was not violative of Article 14.  Although the duties of the petitioners and respondents are identical, their functions are not identical. The Stenographers Grade I formed a distinguishable class as their duties and responsibilities are of much higher nature than that of stenographers attached to the subordinate offices.

Article 14 mandates that the State shall not deny equality before law and equal protection of laws to any person within the territory of India. By incorporating in Article 14 the British doctrine of rule of law as propounded by Prof. Dicey and the "equal protection of law" clause of 14th Amendment of the U.S. Constitution, the framers of our Constitution had in their zeal infused extra vigour and vitality in the right to equality. However, Parliament has repeatedly tried to curtail the scope and vigour of Article 14 in order to carry out the welfare programmes.[79] Apart from it, the Supreme Court had sapped some of the vigour of Article 14 by showing "fanatical reverence" to the theory of classification or the nexus tests". Finally in 1974 the Supreme Court evolved the new doctrine that Article 14 is a guarantee against arbitrariness[80] Thus the Supreme Court has evolved two different and distinct doctrines for tackling attack on State action on the ground of violation of Article 14.

It is only understandable that our Supreme Court should have applied the theory of classification, evolved by the American Supreme Court for giving content and true meaning to right to equality. According to this doctrine "equal protection of laws" prohibits class legislation but permits reasonable classification of persons or things.[81] By expressly incorporating in the second part of Article 14 the language of the 14th Amendment of the U.S. Constitution, the Constituent Assembly impliedly had approved the interpretation of that clause by the U.S. Supreme Court. Hence, from the very beginning the Indian Supreme Court has had no hesitation in applying the theory of classification while testing the Constitutional vires of legislations and State actions impugned on the basis of their being violative of Article 14. The classic nexus test was enunciated by S.R. Das, J. in the Anwar Ali Sarkar case[82], thus:

"In order to pass the test of permissible classification two conditions must be fulfilled viz. (i) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others left out of the group, and (ii) that the differentia must have a rational relation to the objects sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct and what is necessary is that there must be nexus between them."

On the basis of these tests, better known as nexus tests, innumerable cases have been decided by the Supreme Court and various State High Courts. Supreme Court has from time to time tried to summarise the principles enunciated by it in its previous decisions under Article 14.[83]

These classic tests of permissible classification have been repeated so many times that the Supreme Court in 1960 remarked that "they now sound platitudinous".[84] Apart from staleness of repetition, it was feared that the fanatical reverence shown to these tests might ultimately replace the doctrine of equality and rob Article 14 of its "glorious content".[85]

Some academic literature regarding the right to equality also appeared pointing out the shortcomings of the nexus tests are:

K.K. Mathew, J. highlighted the negative concept of the doctrine of "equality before the law", as traditionally understood and posed the question whether the command of Article 14 is merely to ban creation of equality or to eliminate inequalities? According to him "Formal equality before the law has been found to be a sham in many areas".[86]Thus, legal thinking in the country was slowly moving towards giving a positivistic or activist twist to the right to equality.

Prof. P.K. Tripathi in his lectures on "Right to Equality" attempted a more comprehensive study of the right to equality. After careful analysis of several decisions of the Supreme Court applying nexus tests he concluded that these tests were inappropriate in certain fields. He pointed out that the theory of classification has three aspects which he chose to call " 'Why', 'What' and 'Whom' elements respectively." He also observed that, the nexus tests notice only the object and criterion of classification and their mutual relation but ignore the "what" element and the relationship of this element with the other two, resulting in the "what" element being confused with the other "why" or "whom" elements, specially when the "object" or "why" element is not expressly and clearly indicated in the statute itself. He further concluded that nexus tests are not suitable at all for tackling certain situations. These are: (i) where the statute indicates the policy or purpose to be fulfilled and also the special treatment to be given to selected persons or things but leaves it to the executive to make actual selection of the persons or things in fulfillment of the legislative policy; (ii) to "one person" statutes; (iii) where legislature gives broad indication of the kind of cases to be subjected to differential treatment and (iv) to statutes which leave the executive free to pick and choose individuals towards the fulfillment of statutory policy. In short it may be stated that nexus tests were found inadequate to meet the situation where very wide or unbridled discretion was given to the authorities to pick and choose persons for giving different treatment through indicating clearly the legislative policy for achieving other objects of legislation in the statute itself. No doubt in this sphere the Supreme Court has not shown consistency even according to H.M. Seervai.[87]

Prof. Tripathi in the end expressed his hope that "the Supreme Court will sooner rather than later free itself from the shackles of this dogma".[88]

As a result of the aforesaid, well informed criticism of the nexus tests, the Supreme Court freed itself from the shackles of this dogma. However, at first in Maganlal Chaganlal v. Municipal Corpn., Greater Bombay[89], the Supreme Court overruled its previous decision in Northern India Caterers Ltd. v. State of Punjab[90] without applying nexus tests. Finally the Supreme Court adopted the positivistic or activist stance in E.P. Royappa v. State of Tamil Nadu.[91] Bhagwati, J. stated :

"Equality is a dynamic concept with many aspects and it cannot be 'cribbed, cabined and confined' within the traditional and doctrinaire limits. From the positivistic point of view equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies.... Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14...."

On the basis of this new activist theory of equality a few decisions[92] were made by the Supreme Court and ultimately it was unanimously approved by the Supreme Court in Ajai Hasia v. Khalid Mujib.[93] After reiterating that equality is a dynamic concept with many aspects which could not be confined to traditional and doctrinaire limits, Bhagwati, J. had in Maneka Gandhi proceeded to examine the 'content and reach' of the 'great equalising principle' enshrined in Article 14. He observed that:

"It is indeed the pillar on which rests securely the foundation of our democratic republic. And therefore, it must not be subject to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate it’s all embracing scope and meaning, for, to do so would be to violate its activistic magnitude.... Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally and philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence.''

This was again reiterated by the Supreme Court in the International Airport Authority case.[94]

Thus the new doctrine of equality that "Article 14 embodies a guarantee against arbitrariness" has become established. However, this does not mean that the nexus tests have been abandoned by the Supreme Court altogether.

However, the new doctrine of equality has its own critics.[95] Seervai has taken exception to Bhagwati, J.'s description of the classification theory as "doctrinaire" because according to him "there is nothing unpractical about a doctrine which effectively secures equal protection of law to persons by declaring the law based on impermissible classification to be void while leaving to the State a wide field for making laws based on permissible classification". He does not stop here but goes on to challenge the very validity of the new doctrine in the following terms:

"The new doctrine hangs in that air because it propounds a theory of equality without reference to the terms in which Article 14 confers rights to equality." After pointing out that Article 14 has two limbs, he observes that: "Equality before law, broadly speaking, means that except in a very limited class of cases a court administering justice is not concerned with the status or position of the parties appearing before it. The law is no respecter of persons." As regards the second limb he observes that "the U.S. Supreme Court had evolved the doctrine of classification to explain and give a content to equal protection of laws."[96] He has further stated that the new doctrine suffers from "fallacy of undistributed middle".[97] Jagdish Swaroop has also found "it difficult to agree" with the observations of Bhagwati, J. in the Ajay Hasia case that it was for the first time in Royappa case that the Supreme Court laid bare a new dimension to Article 14 and that it was a guarantee against arbitrariness. He has pointed out that: "From the very beginning the Supreme Court held that while Article 14 forbids class legislation, it does not forbid reasonable classification." If any statute is found not to comply with the two important requirements of Article 14, it will be struck down as void and no act of the legislature could be termed "arbitrary". He further points out that: "Any order passed independent of a rule or without adequate determining principle would be arbitrary. Here the valid determining principle is valid classification. Article 14 is not really a guarantee against arbitrariness, classification would be arbitrary if it does not follow and is contrary to the norms laid down by the Supreme Court in regard to classification."[98] Thus in substance the objection of Jagdish Swaroop to the new doctrine is that it fails to lay down any "determining principle for finding out whether or not a particular state action is arbitrary". In substance he agrees with H.M. Seervai that "the new doctrine hangs in the air".

It is humbly submitted that, by and large the old doctrine of classification or nexus tests is more satisfactory and must be retained because, on the basis of the old doctrine challenge to State action as being violative of Article 14 can be successfully tackled by the courts in a large majority of cases. It is only in the limited sphere of conferment of unbridled or too wide a discretion on executive authorities to pick and choose persons or things for giving different treatment that, the doctrine of classification has not yielded satisfactory results and resulted in inconsistency in Supreme Court decisions. The new doctrine of equality, therefore, can be usefully employed in plugging this loophole. On the contrary, if the theory of classification is replaced by the new doctrine of equality viz. non arbitrariness, it would lead to highly unsatisfactory results because shorn of its rhetoric[99] the new doctrine is vague and uncertain. Patanjali Sastri, C.J.'s warning may be usefully recalled here, that "dangerously wide and vague language of equality clause to the concrete facts of life, a doctrinaire approach should be avoided[100]". The chief merit of the new doctrine is, that it has freed the Supreme Court of the "shackles of the dogma of classification" in the limited sense that the Judges should not make sustained efforts to find some basis of classification where none is perceptible from the language of the Act. However, the new doctrine or test of non-arbitrariness does not evolve a more satisfactory test than the nexus tests. Even Prof. P.K. Tripathi, a critic of nexus tests has expressed his concern regarding the new development. He has observed that "arbitrariness by Article 14 is the arbitrariness or unreasonableness in discriminating between one person and another and if there is no discrimination, there is no arbitrariness in the sense of Article 14".[101]

To sum up, it is submitted that the approach of the courts should not be doctrinaire towards either of the doctrines of equality. Where a State action appears ex facie arbitrary as found in a recent case[102], it should be decided on the basis of the new doctrine. Again cases pertaining to conferment of unbridled or too wide discretion on executive authorities should also be tackled on the basis of the doctrine of non-arbitrariness but other challenges to State action should still be tackled by applying the old nexus tests. It is heartening to note that Supreme Court has not totally abandoned the nexus tests[103] though the new theory of non-arbitrariness has also been applied where state action has been found to be "patently" arbitrary.[104]

[This material is put online to further the educational goals of ‘Study in Law’. This material may be used freely for educational and academic purposes. It may not be used in any way for profit.]

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[1] State of West Bengal V Anwar Ali Sarkar ( AIR 1952 SC 75

[2] Sanjeev Coke Mfg Co v Bharat Cooking Coal Ltd(1983 1 SCC 147

[3] Chiranjit Lal v Unon of India, AIR 1951 SC 41

[4] Abdul Rehman v Pinto, AIR 1951 , Hyd.11

[5] Jagjit Singh v State, AIR 1954 Hyd 28

[6] R.K.Garg v Union of India, AIR 1981 SC 2138

[7] Monoponier Co v City of Los Angeles ,33 Cal Ap.675

[8] K. Thimmappa v Chairman Central Board of Directors SBI, AIR 2001 SC 467

[9] Anwar Ali’s case AIR 1952 SC 75

[10] Ramakrishna Dalmia v Justice Tendolkar AIR 1958 SC 538

[11] Kedar Nath v State of West Bengal , AIR 1953 SC 404 ; 1954 SCR 30

[12] Kameshwar Singh v State of Bihar, AIR 1954  Pat.91

[13] State of Bombay v F.N. Balsara, AIR 1951 SC 318

[14] State of West Bengal v Anwar Ali AIR 1952 SC 75

[15] Sagir Ahmad v State, AIR 1954 All 257

[16] E.P. Royappa v State of Tamil Nadu, AIR 1974 SC 555 ; Maneka Gandhi v Union of India, AIR 1978, R.D. Shetty v Airport Authority, AIR 1979 SC 1628

[17] Maneka Gandhi v Union of India ,AIR 1978 SC 597

[18] R.D.Shetty v Airport Authroity, AIR 1979 SC 1628

[19] R.K. Ghosh v J.G.Rajput,1996 6 SCC 744

  [20] D.S. Nakara v Union of India, AIR 1983 Sc 130 

,[21] Suneel Jatley v State of Haryana,AIR 1981 SC 130

[22] Mithu v State of Punjab, AIR 1983 SC 473  (1983)2 SCC 278

[23] A.K. Abbas v Union of India, AIR 1971 SC 481

[24] Nishu Maghu v State of J.K, AIR 1980 SC 1975

[25] Ajay Hasia v Khalid Mujib, AIR 1981 SC 487

[26] Arti Sapru v J & K, AIR 1981 SC 1009

[27] Lila Dhar v Rajasthan, AIR 1981 SC 1777

[28] D.V. Bakshi v Union of India,(1993) 3 SCC 662

[29] Ajay Husia and Ashok Kumar Yadav v State of Haryana(1985) SSC 417

[30] D.V. Bakshi v Union of India,(1993) 3 SCC 663

[31] Air India v Nargesh Meerza,AIR 1981 SC 1829

[32] K. Nagaraj v State of A.P., (1985) 1 SCC 524

[33] Pradeep Jain v Union of India,AIR 1985 SC 87 ; Suman Gupta v State of Jammu and Kashmir, AIR 1983 SC 1235 followed.

 [34] Y. Srinivasa Rao v J Veeriah,AIR 1993 Sc 929

[35] Indian Council of Legal Aid & Adice v Bar Council of India,(1995) 1 SCC 732

[36] State of Maharasthra v Manubhai Pragaji Vashi,(1995) 5 SCC 730

[37] BalCo Employees Union (regd) v Union of India, AIR 2002 SC 350

[38]  Halsbury's laws of England 

 [39] Council of Civil Services Union vs. Minister of the Civil Service; [1985 AC 374 (HL]

[40] Navjyoti Coop. Group Housing Society vs. Union of India; [1992 (4) SCC 477]

[41] Food Corporation of India vs. Kamdhenu Cattle Feed Industries; [1993 (1) SCC 71]

[42] Union of India and others vs. Hindustan Development Corporation and others; [1993 (3) SCC 499]

[43] Punjab Communications Ltd. vs. Union of India; [1999 (4) SCC 727]

[44] Union of India v. Hindustan Development Corporation; AIR 1994 SC 988

[45] M.P. Oil Extraction Co v. State of Madhya Pradesh; (1997) 7 SCC 592

[46] Secretary, State of Karnataka vs. Uma Devi ; 2006 (4) SCC 1

[47] National Building Constructions Corporation v. S Raghunathan; AIR 1998 SC 2776

[48] Navjyoti Co-op Group Housing  Society v Union of India ,AIR 1993 SC 155 ; 1992 (4) SCC 477

  [49] Madras City Wine Merchants Association v State of Tamil Nadu(1994)5 SCC 509

[50] Lucknow Development Authority v M.K.Gupta,(1994) 1 SCC 243

[51] Central Inland Water Transport Corpn Ltd v Brojo Nath, AIR 1986 SC 1571

[52] Delhi Transport Corporation v D.T.C. Mazdoor Congress,AIR 1991 Sc 101

[53] F.C.I v Kam Dhenu Cattle Feed Industries,(1993)1 SCC 71

[54] B.C.P.P. Mazdoor Sangh v N.T.P.C., AIR 2008 SC 336

[55] B.C.P.P. Mazdoor Sangh v N.T.P.C,AIR 2008 SC 336

[56] Mahesh v Reigonal Manager UPFC (1993) 2 SCC 229

[57] Kumaon Mandal Vikas Nigam Ltd v Girji Shanar,AIR 2001 SC 24

[58] State of Karnataka v B. Suvarana,AIR 2001 Sc 606

[59] Madras City Wine Merchants Association v State of Tamil Nadu, (1994) 5 SCC 509

[60] D.K. Yadav v JMA Industries(1993) 3 SCC 258

[61] Sukumar Mukherjee v State of W.B,(1993) 3 SCC 724

[62] Director General of Police v Mritynjoy Sarka,AIR 1997 SC 249

[63] Revathi v Union of India, AIR 1988 SC 835; Seel also Sowmithri Vishnu v Union of Inida, AIR 1985 SC 1618

[64] Arti Gupta v State of Punjab,AIR 1988 SC 481

[65] Bhagwati v Union of India, AIR 198 Sc 2038

[66] P& T SC/ST Employees Welfare Association v Union of India, AIR 1989 SC 139

[67] Deepak Sibal v Punjab University, AIR 199 SC 139

[68] Mahabir Auto Store v Indian Oil Corporation

[69] Shrilekha Vidyathi v State of U.P.,(1991) 1 SCC 212

[70] Charan Lal Sahu v Union of India ,(1990) 1 SCC 663

[71] Dr. K.R.Lakshmann v State of T.N,(1996) 2 SCC 266

[72] Anukul Chandra Pradhan v Union of India,AIR 1997 2814

[73] Vishaka v State of Rajasthan,AIR 1997 SC 3014

[74] Randhir Singh v Union of IndiaAIR 1982 SC 879; D.S.Nakara v Union of India, AIR 1983 SC 130

[75] Frank Anthony Public School Employee’s Association v Union of India(1986)4 SCC 707

[76] Dhirendra Chamoli v State of U.P.(1986) 1 SCC 637

[77] Daily Rated Casual labour v Union of India,(1988) 1 SCC 123

[78] F.A.I.C. and C.E.S v Union of India(1988) 3 SCC 91

[79] Constitution (First Amendment) Act, 1951 blunted the attack on the ground of violation of Article 14 for allowing smooth passage of Zamindari Abolition Acts of various States. Constitution (25th Amendment) Act introduced Article 31-C for giving overriding effect to Articles 39(a) and (b) over fundamental rights enshrined in Articles 14, 19 and 31. Later on this overriding effect was given by 42nd Amendment to all the Directive Principles over these articles.

[80] E.P. Royappa v. State of Tamil Nadu, (l974) 4 SCC 3.

[81] Cf. Prof. Willis, 'CONSTITUTIONAL LIMITATIONS'. "The guarantee of equal protection of laws means protection of equal laws. It forbids class legislation but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation which is limited either in the objects to which it is directed or by the territory within which it is to be operated. It merely requires that all persons subject to such legislation shall be treated alike, under like circumstances and conditions both in privileges conferred and in the liability. Similarity and not identity of treatment is enough."

[82] State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75.

[83] (a) State of Bombay v. F.N. Balsara, AIR 1951 SC 318. (b) R.K. Dalmia v. Justice Tendolkar, AIR 1958 SC 538. (c) In re Special Courts Bill, 1978, (1979) 1 SCC 380.

[84] Chandrachud. C.J. in Special Courts Bill, 1978, Re, (1979) 1 SCC 380, 423 : "As far back as 1960 it was said by this Court in Kangsari Haldar that the proposition applicable to cases arising under Article 14 have been repeated so many# times that they now sound platitudinous. If it was so in 1960, it would be even more true in 1979."

[85] LachmanDas v. State of Punjab, AIR 1963 SC 222. Subba Rao J.,:"The doctrine of classification is only a subsidiary rule evolved by courts to give content to the said doctrine (equality before law). Over-emphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the article of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality: the fundamental right to equality before the law and equal protection of the laws may be replaced by the doctrine of classification."

[86] K.K. Mathew : Democracy, Equality and Freedom, p. 63.

[87] H.M. Seervai, Constitution Law of India, 3rd Edn. Vol. I, p.382, 9.114 (Commenting with reference to the power of exemption conferred by most of the statutes on the executive he has said "on this question the attitude of the Supreme Court is not consistent"

[88] Cited in Mahendra P. Singh (Ed.): Comparative Constitutional Law, p. 485.

[89] Maganlal Chaganlal v. Municipal Corpn., Greater Bombay ; (1974) 2 SCC 402.

[90] Northern India Caterers Ltd. v. State of Punjab ; AIR 1967 SC 1581

[91] .P. Royappa v. State of Tamil Nadu ; (1974) 4 SCC 3, 38

[92] Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Ramana Dayaram Shetty v. Airport Authority, (1979) 3 SCC 489.

[93]Ajai Hasia v. Khalid Mujib;  (1981) 1 SCC 722.

[94] International Airport Authority case ; (1979) 3 SCC 489 at 511

[95] H.M. Seervai, former Advocate-General of Maharashtra (1957-1974) and Jagdish Swaroop, former Solicitor-General of India, in their commentaries on the Constitution of India.

[96] H.M. Seervai: Constitutional Law of India, 3rd Edn.,vol. I, p. 275

[97] Ibid., at p. 277. He has demonstrated the fallacy thus: All arbitrary actions are violative of equality. Some laws violate equality, Middle term "equality" remains undistributed in both the# aforesaid major and minor premises. Therefore, according to him, "if a conclusion were drawn namely, therefore some laws are arbitrary actions'' it would be an inaccurate conclusion

[98] Jagdish Swaroop: Constitution of India vol. I para 10.6.

[99]  H.M. Seervai in 'CONSTITUTIONAL LAW OF INDIA' at p. 274, vol. I, 3rd Edn. "However, stripped of rhetoric, and the use of fashionable phrases like 'dynamic aspects' and 'activist magnitude' (whose appropriateness we need not stop to examine), it is claimed for the new doctrine that it explains, as the doctrinaire theory of classification does not, the scope of the right to equality. One of the risks which judges run by being 'dynamic' or 'active' is that at times their activity may carry them away from the truth and reality and this is precisely what has happened to Bhagwati, J. and his brother Judges in propounding the new theory. It is submitted that the old theory is the only doctrine which brings out the full scope of "the equal protection of law" guaranteed to every person by Article 14.... new doctrine is untenable...."

[100] Lachman Das v. State of Bombay, AIR 1952 SC 239.

[101] P.K. Tripathi, The Fiasco of Overruling, A.K. Gopalan and worse. Cited by Mahendra P. Singh in Comparative Constitutional Law at p. 480.

[102] Km. Shrilekha Vidyarathi v. State of U.P., (1991) 1 SCC 212. "However, where no plausible reason or principle is indicated nor is it discernible and the impugned State action, therefore, appears ex facie,# arbitrary, the initial burden to prove the arbitrariness is discharged by shifting onus on the State to justify its action as fair and reasonable. If State is unable to produce material to justify its action as fair and reasonable, the burden on the person alleging arbitrariness must be held to be discharged." Removal en bloc of all District Government Counsel by State Government was held to be arbitrary as no common reason applicable to all of them justifying their termination in one stroke on a reasonable ground was shown.

[103] Supreme Court Employees Welfare Association v. Union of India, (1989) 4 SCC 187; Kerala Hotel and Restaurant Assn. v. State of Kerala, (1990) 2 SCC 502. (The scope for classification permitted in taxation is greater and unless the classification made can be termed to be palpably arbitrary, it must be left to the legislative wisdom to choose the yardstick for classification, in the background of the fiscal policy of the State to promote economic equality as well.)

[104] Sushma Gosain v. Union of India, (1989) 4 SCC 468. The widow of a store-keeper in the department of Director-General Border Road (DGBR) had applied after the death of her husband in 1982 for employment on compassionate ground, on the post of L.D.C. She had also passed the trade test but she was not given appointment and was told that her case was under consideration. Her application was, however, rejected in 1985 when a ban on appointment of ladies was imposed. The Supreme Court held that denial of appointment to her was 'patently' arbitrary and had to be set aside