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IN SUPREME COURT OF INDIA Page 20 of 25

as a whole. The first sub-section states the principles and
read with the second clause of the nineteenth article it is
quite clearly indicated that the topics of films or their
content should not offend certain matters’there set down.
The Central Government in dealing with the problem of
censorship will have to bear in mind those, principles and
they will be the philosophical compass and the logical
methods of Ahrens. Of course, Parliament can adopt the
directions and put them in schedule to the Act (and that may
still be done), it cannot be said that there is any
delegation of legislative function. If Parliament made a
law giving power to close certain roads for certain
vehicular traffic at stated times to be determined by the
Executive authorities and they made regulations in the
exercise of that power, it cannot for a moment be argued
that this is insufficient to take away the right of
locomotion. Of course, every-thing may be done by
legislation but it is not necessary to do so
4 69
if the policy underlying regulations is clearly indicated.
The Central Government’s regulations are there for
consideration in the light of the guaranteed freedom and if
they offend substantially against that freedom, they may be
struck down. But as they stand they cannot be challeneged
on the ground that any recondite theory of law making or a
critical approach to the separation of powers is infringed.
We are accordingly of the opinion that s. 5-B (2) cannot be
challenged on this ground.
This brings us to the manner of the exercise of control and
restriction by the directions. Here the argument is that
most of the regulations are vague and further that they
leave no scope for the exercise of creative genius in the
field of art. This poses the first question before us
whether the ’void for vagueness’ doctrine is applicable.
Reliance in this connection is placed on Municipal Committee
Amritsar and anr. v. The State of Rajasthan(1). In that
case a Division Bench of this Court lays down that an Indian
Act cannot be declared invalid on the ground that it
violates the due process clause or that it is vague. Shah
J, speaking for the Division Bench, observes:
"...... the rule that an Act of a competent
legislature may be ’struck down’ by the courts
on the ground of vagueness is alien to our
constitutional system. The Legislature of the
State of Punjab was competent to enact
legislation in respect of ’fairs’, vide Entry
28 of List II of the 7th Schedule to the
Constitution. A law may be declared invalid
by the superior courts in India if the
legislature has no power to enact the law or
that the law violates any of the fundamental
rights guaranteed in Part III of the
Constitution or is inconsistent with any
constitutional provision, but not on the
ground that it is vague."
The learned Judge refers to the practice of the Supreme
Court of the United State in Claude C. Caually v. General
Construction Co.(2) where it was observed:
"A statute which either forbids or requires
the doing of an act in terms so vague that men
of common intelligence must necessarily guess
at its meaning and differ as to its
application violates the first essential of
due process of law."
The learned Judge observes in relation to this
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 25
as follows
"But the rule enunciated by the American
Courts has no application under our
constitutional set up. This rule is regarded
as an essential of the ’due process
(1) A.I.R. 1960 S.C. 1100.
3--436SupCI/71
(2) (1926) 70 L. Ed. 332.
47 0
clause’ incorporated in the American
Constitution by the 5th and 14th Amendments.
The courts in India have no authority to
declare a statute invalid on the ground that
it violates ’the due process of law’. Under
our Constitution, the test of due process of
law cannot be applied to the statutes enacted
by the Parliament or the State Legislature".
Relying on the observations of Kania C.J. in A. K. Gopalan
v. The State of Madras(1) to the effect that a law cannot be
declared void because it is opposed to the spirit supposed
to pervade the Constitution but not expressed in words, the
conclusion above set out is reiterated. The learned Judge,
however, adds that the words ’cattle fair’ in act there
considered are sufficiently clear and there is no vagueness.
These observations which are clearly obiter are apt to be
too generally applied and need to be explained. While it is
true that the principles evolved by the Supreme Court of the
United States of America in the application of the
Fourteenth Amendment were eschewed in our Constitution and
instead the limits of restrictions,, on each fundamental
right were indicated in the clauses that follow the first
clause of the nineteenth article, it cannot be said as an
absolute principle that no law will be considered bad for
sheer vagueness. There is ample authority for the
proposition that a law affecting fundamental rights may be
so considered. A very partinent example is to be found in
State of Madhya Pradesh and Anr. v. Baldeo Prasad (2) where
the Central Provinces and Berar Goondas Act 1946 was
declared void for uncertainty. ’the condition for the
application of ss. 4 and 4A was that the person sought to be
proceeded against must be a goonda but the definition of
goonda in the Act indicated no tests for deciding which
person fell within the definition. The provisions were
therefore held to be uncertain and vague.
The real rule is that if a law is vague or appears to be so,
the court must try to construe it, as far as may be, and
language permitting, the construction sought to be placed on
it, must be in accordance with the intention of the
legislature. Thus if the law is open to diverse
construction, that construction which accords best with the
intention of the legislature and advances the purpose of
legislation, is to be preferred. Where however the law
admits of no such construction and the persons applying it
are in a boundless sea of uncertainty and the law prima
facie takes away a guaranteed freedom, the law must be held
to offend the Constitution as was done in the case of the
Goonda Act. This is not application of the doctrine of due
process. The invalidity arises from the
(1) [1950] S. C. R. 88.
(2) [1961] 1. S. C. R. 970 at 979.
4 7 1
probability of the misuse of the law to the deteriment of
the individual. If possible, the Court instead of striking
down the law may itself draw the line of demarcation where
possible but this effort should be sparingly made and only
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PETITIONER:
K. A. ABBAS

Vs.

RESPONDENT:
THE UNION OF INDIA & ANR.

DATE OF JUDGMENT:
24/09/1970

BENCH:
HIDAYATULLAH, M. (CJ)
BENCH:
HIDAYATULLAH, M. (CJ)
SHELAT, J.M.
MITTER, G.K.
VAIDYIALINGAM, C.A.
RAY, A.N.

CITATION:
1971 AIR 481 1971 SCR (2) 446
1970 SCC (2) 780
CITATOR INFO :
RF 1973 SC1461 (1709)
R 1980 SC 605 (7)
RF 1988 SC 775 (14,21)

ACT:
Constitution of India Article 19(1) (a) and (2)-Pre-
censorship of films-If unconstitutional-Cinematograph Act,
1952, s. 5-B-Provisions of-Directions under s. 5-B(2)-If
vague and therefore unconstitutional.

HEADNOTE:
The petitioner made a documentary film called "A Tale of
Four Cities" which attempted to portray the contrast between
the life of the rich and the poor in the four principal
cities of the- country. The film included certain shots of
the red light district in Bombay. Although the petitioner
applied to the Board of Film Censors for a ‘U’ Certificate
for unrestricted exhibition of the film, he was granted a
certificate only for exhibition restricted to adults. On an
appeal made to it by the petitioner, the Central Government
issued a direction on July 3, 1969 that a ‘u’ Certificate
may be granted provided certain specified cuts were made in
the film. The petitioner thereafter field the present
petition seeking a declaration that the provisions of Part
11 of the Cinematograph Act, 1952, together with the rules
prescribed by the Central Government on February 6, 1960 in
the exercise of its powers under s. 5-B of the Act were un-
constitutional and void; he further prayed that the
direction dated July 3, 1969 should be quashed. The
petitioner claimed that his fundamental tight of free speech
and expression was denied by the order of the Central
Government and that he was entitled to a ’U’ Certificate for
the film as of right.
At the hearing of the petition the Central Government
indicated it had ,decided to grant a ’U’ Certificate to the
petitioner’s film without the cuts previously ordered. The
petitioner then applied for amendment of the petition so as
toenable him to challenge pre-censorship as offensive to
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PETITIONER:
S. RANGARAJAN ETC

Vs.

RESPONDENT:
P. JAGJIVAN RAM

DATE OF JUDGMENT30/03/1989

BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
SINGH, K.N. (J)
KULDIP SINGH (J)

CITATION:
1989 SCR (2) 204 1989 SCC (2) 574
JT 1989 (2) 70 1989 SCALE (1)812

ACT:
Cinematograph Act, 1952 (Cinematograph (Certificate) Rules,
1983.
Sections 4, 5, 5A, B, C and 8/Guidelines (1)--(3) and
notification dated January 21, 1987.
High Court revoking ’U’ certificate granted by Censor
Board-Validity of High Court order--Duty of Censor
Board--Obligatory duty of state to protect freedom of ex-
pression.
Constitution of India--Articles 19(1)(a) and
19(2)--Freedom of speech and expression--Reasonable restric-
tions must be justified on anvil of necessity and not
quicks--Sand of convenience and expediency--Obligatory
duty of State to protect freedom of expression.

HEADNOTE:
The appellant, S. Rangarajan is a film producer. He
produced a Tamil film "Ore Oru Gramathile" and applied for
certificate for exhibition of the film. The examination
committee upon seeing the film refused to grant the Certifi-
cate but on a reference being made to the 2nd Revising
Committee for review and recommendation, the Committee by a
majority of 5:4 recommended the grant of a ’U’ certificate
subject to deletion of certain scenes.
On 7.12.87 ’U’ certificate was granted which was chal-
lenged in the High Court by means of writ petitions. It was
contended before the High Court that the film is treated in
an irresponsible manner, the reservation policy of the Govt.
has been projected in a biased manner and the so-called
appeal in the film that "India is one" is a hollow appeal
which touches caste sensitivity of the Brahmin forward
caste. It was also asserted that the film would create law
and order problem in Tamil Nadu. The Writ Petitions were
dismissed by the Single Judge but upon appeal they were
allowed and the ’U’ certificate issued to the appellant-
producer was revoked. These two appeals, one by the producer
of the film and the other by the Union of India have been
filed by
205
special leave of challenging the decision of the High Court.
The principal contentions raised on behalf of the appel-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 21
between the interest of freedom of expression and social
interests. But we cannot simply balance the two interests as
if they are of equal weight. Our commitment to freedom of
expression demands that it cannot be suppressed unless the
situations created by allowing the freedom are pressing and
the community interest is endangered. The anticipated danger
should not be remote, conjectural or far fetched. It should
have proximate and direct nexus with the expression. The
expression of thought should be intrinsically dangerous to
the public interest. In other words, the expression should
be inseparably locked up with the action contemplated like
the equivalent of a "spark in a powder keg".
227
Our remarkable faith in the freedom of speech and ex-
pression could be seen even from decisions earlier to our
Constitution. In Kamal Krishna v. Emperor, AIR 1935 Cal 636,
the Calcutta High Court considered the effects of a speech
advocating a change of Government. There the accused was
convicted under sec. 124(A) of Penal Code for making a
speech recommending ’Bolshevik’ form of Government to re-
place the then existing form of Government in Calcutta.
While setting aside the conviction and acquitting the ac-
cused, Lord Williams, J., who delivered the judgment ob-
served (at 637):
"All that the speakers did was to
encourage the youngmen, whom he was address-
ing, to join the Bengal Youth League and to
carry on a propaganda for the purpose of
inducing as large a number of people in India
as possible to become supporters of the idea
of communism as represented by the present
Bolshevik system in Russia. It is really
absurb to say that speeches of this kind
amount to sedition. If such were the case,
then every argument against the present form
of Government and in favour of some other form
of Government might be allowed to lead to
hatred of the Government, and it might be
suggested that such ideas brought the Govern-
ment into contempt. To suggest some other form
of Government is not necessarily to bring the
present Government into hatred or contempt."
To the same effect is the observation by
the Bombay High Court in Manohar v. Government
of Bombay, AIR 1950 BOM 210. There the writer
of an article in a newspaper was convicted for
an offence under the Press (Emergency Powers)
Act, 1931, for incitement to violence. The
writer had suggested the people to follow the
example of China by rising against Anglo-
American Imperialism and their agents. He had
also suggested his readers to pursue the path
of violence, as the Chinese people did, in
order that Anglo-American Imperialism should
be driven out of this country. Chagla C.J.,
while quashing the conviction said (at 2 13):
"It is true that the article does
state that the working class and the coiling
masses can get hold of power through the path
of revolution alone. But the expression ’rev-
olution’ is used here, as is clear from the
context, in contradistinction to reformism or
gradual evolution. The revolution preached is
not necessarily a violent revolution.
228
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PETITIONER:
BHAGUBHAI DULLABHABHAI BHANDARI

Vs.

RESPONDENT:
THE DISTRICT MAGISTRATE, THANA& OTHERS(with connected petiti

DATE OF JUDGMENT:
08/05/1956

BENCH:
SINHA, BHUVNESHWAR P.
BENCH:
SINHA, BHUVNESHWAR P.
DAS, SUDHI RANJAN (CJ)
JAGANNADHADAS, B.
AIYYAR, T.L. VENKATARAMA
IMAM, SYED JAFFER

CITATION:
1956 AIR 585 1956 SCR 533

ACT:
Bombay Police Act, 1951 (Bombay Act XXII of 1951), s. 56-
Constitutional validity-Order of externment-Restrictions-
Reasonableness-" Witness", scope of the word in the section-
Whether ,not applicable to members of the police force or
customs department Constitution of India, Art. 19.

HEADNOTE:
Section 56 of the Bombay Police Act, 1951, is not
unconstitutional and does not contravene the provisions of
Art. 19 of the Constitution.
Gurbachan Singh v. State of Bombay ( [1952] S.C.R. 737),
followed.
In order to attract the operation of the section the Officer
concerned should be satisfied that the witnesses are not
willing to come forward to give evidence in public, but it
is not necessary to show that all the witnesses are
unwilling to give evidence. The terms of the section do not
justify any restricted meaning being given to the word
"witnesses" and it is applicable to members of the police
force and employees and officers of the Customs Department
also.
Gurbachan Singh v. State of Bombay ( [1952] S.C.R. 737),
explained.
Under the provisions of s. 56 of the Bombay Police Act,
1951, an order of externment was passed against the
petitioner by which he was directed to remove himself
outside the limits of Greater Bombay and not to enter the
said area for a period of two years without the prescribed
permission; and subsequently he entered Greater Bombay in
order to attend Court in a case pending against him in which
a warrant of arrest had been issued. He was convicted for
committing the breach of the externment order and he
contended that his conviction was in itself an indication of
the unreasonableness of the restriction.
Held, that the restrictions cannot be said to be
unreasonable, as the petitioner could have avoided the
prosecution. and the conviction by obtaining the previous
permission of the prescribed authority.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12
of the public residing therein".
The words "no witnesses" have been emphasized as supporting
the argument that unless all the witnesses before the police
are unwilling to give evidence in open court the provisions
of section 56 cannot be taken recourse to. In our opinion,
it is reading too much into the observations of this Court
quoted above, made by Mukherjea, J. (as he then was). The
learned Judge did not mean to lay down, and we do not
understand him as having laid down, that unless each and
every witness is unwilling to give evidence in open court,
the provisions of section 56 are not available to the
police. The words of section 56 quoted above do not lend
themselves to that extreme contention. If such an extreme
interpretation were to be put on that part of section 56, it
is not difficult to imagine a situation where it will become
almost impossible to apply that section to any case.
It was next contended on behalf of the petitioner in this
case that the section contemplates witnesses other than
members of the police force and employees and officers of
the Customs Department. It is said that it is the duty of
the police force as of the employees of the Customs
Department to brave all danger and to come out in the open
even against desperate criminals to give evidence against
them in court and to subject themselves to cross-
examination. That is a counsel of perfection which every
member
(1) [1952] S.C.R. 787.
71
548
of the police force or every employee of the Customs
Department may not be able to act up to. Furthermore, the
terms of the section do not justify any such restricted
meaning being given to the word "witness". Hence, in our
opinion, there is no justification for the contention that
members of the police force and employees and officers of
the Customs Department must always come in the open and give
evidence against criminals or potential criminals. If the
officer concerned is satisfied that witnesses of whatever
description they may be, are not willing to come out in the
open, one of the essential conditions of the application of
section 56 is fulfilled and it is no more necessary for them
to stop to consider as to which class of persons those
witnesses may come from.
In Petition No. 440 of 1955 the learned counsel for the
petitioner had a more uphill task in view of the fact that
this very order impugned bad been examined in the criminal
prosecution against the petitioner by the Presidency
Magistrate and by the High Court on appeal and the petition
for special leave to appeal to this Court had been refused.
But it was argued on behalf of the petitioner that section
56 itself wag invalid as contravening the provisions of
article 19 of the Constitution-an argument which has already
been dealt-with by this Court in Gurbachan Singh v. State of
Bombay(1) referred to above. In that case, Mukherjea, J.
(as he then was) delivered the judgment of the court after
examining the constitutionality of section 27(1) of the City
of Bombay Police Act, (Bombay Act IV of 1902). The
operative words of that section are almost exactly the same
as those of section 56 of the Act. It is not therefore
necessary to re-examine the constitutionality of those very
provisions in this case. It is enough to point out that no
attempt was made in this Court to ;bake the authority of
that decision.
Shri Dadachanji, who appeared on behalf of the petitioner in
this case faintly suggested that the petitioner had been
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12
proceeded against under the penal sec-
(1) [1952] S.C.R. 737.
549
tion of the Act notwithstanding the fact that he had entered
Greater Bombay in order to look after the case pending
against him in which a warrant of arrest had been issued.
But that is a closed chapter so far as the courts including
this Court also are concerned inasmuch as his conviction
stands conformed as a result of the refusal of this Court to
grant him -special leave to appeal from the, judgment of the
Bombay High Court. He further contended that his conviction
for his’ having entered Greater Bombay itself is an
indication of the unreasonableness of the restriction and of
the law under which the order of externment had been passed
against him. But if the petitioner had only taken the
course indicated by the law, namely, of obtaining the
previous permission of the prescribed authority, he could
have avoided the prosecution and the conviction. It must
therefore be held that there is no merit in this contention
also.
For the reasons aforesaid it must be held that section 56 of
the Act is not unconstitutional -and that the orders passed
against the petitioners are not invalid. These applications
must stand dismissed.
JAGANNADHADAS J.-In view of the decision of this Court in
Gurbachan Singh v. The State of Bombay(1), I agree that
these petitions should be dismissed.
But I think it right to add that if the matter were res
integra I should have felt difficulty in upholding the
validity of section 56(b) of the Bombay Police Act, 1951
(Bombay Act XXII of 1951) in so far as it did not demarcate
the application thereof to the more serious classes of
offences falling within the specified Chapters, serious
either because of the nature of the offence contemplated or
the circumstances under which it is to be committed and so
forth. I should also have felt difficulty in holding a
provision to be reasonable which clothes the executive
officers with an authority to extern a person for so long a
(1) [1952] S.C.R. 737.
550
period as two years. it has been said that there is a power
of cancellation at any time vested in the officer concerned.
Even so, I should have thought that the vesting of a power
to extern, a person out of his home for so long a period
without the obligation to review the order at some stated
periodical intervals, say once in three months or six
months, is prima facie unreasonable. Externment might
appear on the surface -not to be as serious an interference
with personal liberty as detention. But in actual practice
it may be productive of more serious injury to the person
concerned-or the rest of his family if he is the earning
member. An externed person is virtually thrown on the
streets of another place where be has got to seek his
livelihood afresh. He has to start in a new society with
the black-mark -of externment against him and may be driven
thereby to more criminality. On the other hand, in the case
of a person under detention, the State normally takes or is
bound to take care of him, and in appropriate cases provides
also for his family.
In view, however, of the previous decision of this Court
which is binding on me, I am prepared to accept the validity
of section 56 of the Bombay Police Act, 1951, and of the
orders of externment passed thereunder in these two cases.
Petition dismissed.
551
 The Collector Of Customs, Madras vs Nathella Sampathu Chetty And ... on 25 September, 1961

Desai, J., extracted earlier and laid particular emphasis on the fact : (a) that gold was held in myriad
forms and for diverse purposes by a sizeable portion of the population of the country, (b) that gold
in its several forms was incapable of being identified as indigenous or imported, or if imported had
paid duty or not. In view of these circumstances he urged that to call upon any person to prove any
thing more, than that his acquisition of the gold was bona fide and without violation of the law
would be to cast an impossible burden upon the possessor. Learned Counsel further urged that the
precise reason for which the burden had been thrown upon the possessor was because of the
inability of the State to establish before the quasi-judicial authorities acting under s. 182 reasonable
proof that the gold seized was smuggled. He therefore submitted that if Government with all its
administrative machinery operating in several fields was unable to lead evidence which could satisfy
the, Collector of Customs that the gold seized had an illicit origin, how could it be reasonable to
expect the individual possessor, who knew nothing beyond how he himself came by the gold, to
establish the negative, viz., that the gold in his possession had not been smuggled but was lawfully
within the country.

Before considering these submissions it is necessary to mention one point suggested in answer by
the learned Solicitor-General which has apparently found favour with the learned Judges of the
Division Bench of the Bombay High Court in Pukhraj Champalal Jain v. D. R. Kohli(1). The point
was this: The Central Board of Revenue lad issued certain administrative instructions as regards the
manner in which the Customs Officers should regulate their procedure before the goods are
adjudged to be confiscated under the provisions of the Sea Customs Act. These are sell-, out at p.
1240 (1) (1959) 61 Bom. L.R. 1230.

of the Report in 61 Bombay Law Reporter and need not be repeated here. The learned
Solicitor-General's argument was that as the section was being administered subject to these
safeguards, the provision must be held to be a reasonable restriction within (6) of Art. 19 of the
Constitution. We are clearly of the opinion that the argument about the relevance of this matter is
incorrect and must be rejected. This Court has held in numerous rulings, to which it is un- necessary
to refer, that the possibility of the abuse of the powers under the provisions contained in any statute
is no ground for declaring the provision to be unreasonable or void. Commenting on a passage in the
judgement of the Court of Appeal of Northern Ireland which stated:

"If such powers are capable of being exercised reasonably it is impossible to say that
they may not also be exercised unreasonably"

and treating this as a ground for holding the statute invalid Viscount Simonds observed in Belfast
Corporation v. O. D. Commission(1):

"It appears to me that the short answer to this contention (and I hope its shortness
will not be regarded as disrespect) is that the validity of a measure is not to be
determined by its application to particular cases............ If it is not so exercised (i.e., if
the powers are abused) it is open to challenge and there is no need for express
provision for its challenge in the statute".

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 The Collector Of Customs, Madras vs Nathella Sampathu Chetty And ... on 25 September, 1961

The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity.
The converse must also follow that a statute which is otherwise, invalid as being unreasonable
cannot be saved by its being administered in a reasonable manner. The constitutional validity of the
statute would have to be determined on the basis of its (1) [1960] A.C. 490, 520-521 provisions and
on the ambit of its operation as reasonably construed. If so judged it passes the test of
reasonableness, possibility of the powers conferred being improperly used is no ground for
pronouncing the law itself invalid and similarly if the law properly interpreted and tested in the light
of the requirements set out in Part III of the Constitution does not pass the test it cannot be
pronounced valid merely because it is administered in a manner which might not conflict with the
constitutional requirements. In saying this we are not to be understood as laying down that a law
which might operate harshly but still be constitutionally valid should be operated always with
harshness or that reasonableness and justness ought not to guide the actual administration of such
laws.

We shall now proceed to examine what in effect is the central point in the argument of the learned
Counsel for the respondent which might be split up into two heads: (1) Under s. 178-A the burden of
proof is cast upon a person from whom the goods have been seized which is impossible for him to
discharge, with the consequence that though in form the impugned section purports to be a rule of
evidence, it is virtually a law which per se effects confiscation in (,very ease to which it is applicable.
(2) Is such a law a reasonable restriction on the right to hold property or on the right to carry on
business within cls. (5) & (6) of Art. 19, but they may be considered together.

Section 178-A operates to cast the burden of proof on the person from whose possession goods
specified in its sub-s. (2) are seized to establish that the goods are not smuggled. It must be apparent
that this will include, in several cases, persons who are concerned in and are charged with being
concerned in the act of illicit importation. In their case, as we have already pointed out, learned
Counsel admits that the onus is properly shifted and that such a provision would be reasonable and
so constitutionally valid, though undoubtedly it might be possible for the State to prove its case even
without the aid of the presumption raised by s. 178A. Again there might be some cases where goods
are seized from a person who is unable to account satisfactorily for his ownership or possession. In
such cases also we did not understand learned counsel for the petitioner to suggest that the shifting
of the burden of proof would be unconstitutional, for surely the principle underlying s. 106 of the
Evidence Act;which, it is conceded, enunciates a just and reasonable principle would serve to sustain
the validity of the impugned provision. The two classes of cases which we have just set out would in
themselves constitute most of the cases in which suspicion or information of the type which leads to
seizure and the ensuing proceedings would occur. Section 178A however does not exhaust those
classes. and that is the ground of complaint by the learned Counsel, and it is precisely on this basis
or for this reason that learned Counsel contends that the entire provision is constitutionally invalid.
This analysis would show that the provisions of the section are constitutionally valid in the sense of
being reasonable restrictions on the right to hold property or to carry on trade or business in the
large percentage of cases to which the section would apply, and. it is only in the marginal cases
already described that, it can, with any justification, be contended that the restriction is
unreasonable. From this position, the question that arises is whether because of the inclusion of this
type of case the impugned provision should be held to be constitutionally invalid. This has to be

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 The Collector Of Customs, Madras vs Nathella Sampathu Chetty And ... on 25 September, 1961

The Collector Of Customs, Madras vs Nathella Sampathu Chetty

And ... on 25 September, 1961

Equivalent citations: 1962 AIR 316, 1962 SCR (3) 786, AIR 1962 SUPREME
COURT 316, 1962 MADLJ(CRI) 1, 1962 (1) SCJ 68, 1962 3 SCR 786,
AIRONLINE 1961 SC 15

Author: N. Rajagopala Ayyangar

Bench: N. Rajagopala Ayyangar, Bhuvneshwar P. Sinha, A.K. Sarkar, M.

Hidayatullah, J.R. Mudholkar

PETITIONER:
THE COLLECTOR OF CUSTOMS, MADRAS

Vs.

RESPONDENT:
NATHELLA SAMPATHU CHETTY AND ANOTHER(And connected cases)

DATE OF JUDGMENT:
25/09/1961

BENCH:
AYYANGAR, N. RAJAGOPALA
BENCH:
AYYANGAR, N. RAJAGOPALA
SINHA, BHUVNESHWAR P.(CJ)
SARKAR, A.K.
HIDAYATULLAH, M.
MUDHOLKAR, J.R.

CITATION:
1962 AIR 316 1962 SCR (3) 786
CITATOR INFO :
R 1962 SC 496 (6)
F 1962 SC1559 (2)
RF 1966 SC1867 (3)
R 1967 SC 737 (1,6)
R 1970 SC 951 (12,13,14,15,16,17,19)
R 1971 SC 454 (7)
RF 1972 SC 689 (16)
RF 1973 SC1461 (1709)
RF 1975 SC 17 (30,31)
R 1979 SC 798 (8)
RF 1981 SC 873 (25)
R 1982 SC 697 (15,16)
RF 1989 SC 222 (3)
RF 1989 SC 516 (49)
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 State Of West Bengal vs Kesoram Industries Ltd. And Ors on 15 January, 2004

State Of West Bengal vs Kesoram Industries Ltd. And Ors on 15

January, 2004

Author: R.C.Lahoti

Bench: V.N.Khare, R.C.Lahoti, B.N.Agarwal, S.B.Sinha, A.R.Lakshmanan

CASE NO.:
Appeal (civil) 1532 of 1993

PETITIONER:
State of West Bengal

RESPONDENT:
Kesoram Industries Ltd. and Ors.

DATE OF JUDGMENT: 15/01/2004

BENCH:
V.N.Khare CJI & R.C.Lahoti & B.N.Agarwal & S.B.Sinha & A.R.Lakshmanan

JUDGMENT:

JUDGMENT DELIVERED BY:

R.C.LAHOTI, J.

S.B.SINHA, J.

WITH Civil Appeal Nos. 3518-3519 and 5149-54 of 1992, 1532-1533 and 2350 of 1993
and 7614 of 1994 and C.A. Nos. 297, 298 and 299 of 2004 (Arising out of SLP (C)
Nos. 3986 of 1993, 11596 and 17549 of 1994) with W.P. (C) Nos. 262, 515, 641 and
642 of 1997, 347 and 360 of 1999, 50 and 553 of 2000, 207, 288 and 389 of 2001 and
81 of 2003 and Civil Appeal Nos. 5027, 6643 to 6650 and 6894 of 2000 and 1077 of
2001 Decided On: 15.01.2004 JUDGMENT R.C. Lahoti, J.

This batch of matters, some appeals by special leave under Article 136 of the Constitution and some
writ petitions filed in this Court, raise a few questions of constitutional significance centering
around Entries 52, 54 and 97 in List I and Entries 23, 49, 50 and 66 in List II of the Seventh
Schedule to the Constitution of India as also the extent and purport of the residuary power of
legislation vested in the Union of India. Cesses on coal bearing land, levied in exercise of the power
conferred by State Legislation, have been struck down by a Division Bench of the Calcutta High
Court. In exercise of the same power conferred by State legislation whereunder cesses were levied on
coal bearing land, cesses have also been levied on tea plantation land which are the subject-matter
of writ petitions filed in this Court. The Bengal Brickfield Owners' Association have also come up to

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 State Of West Bengal vs Kesoram Industries Ltd. And Ors on 15 January, 2004

is conceded that green tea leaves would come within the purview of definition of 'tea',
it is inconceivable as to how impost of excise duty on tea in terms of Sub-section (2)
of Section 25 of the Act will have no bearing on the subject. By reason of Sub-section
(2) of Section 25, additional excise duty is levied. Excise duty in terms of the Central
Excise Act, it is trite, can not only be levied on finished products but also the products
at intermediary stages.

Unfortunately, in Goodricke's case (supra), the learned Judges did not consider the
matter from this angle.

'Goodricke' also runs counter to India Cement as also Kannadasan. Effect of the
expression "immovable property" in Cess Act, 1880 was also not brought to its notice
and had the same been done, there would not have been a conclusion that tea estate
would be treated as an unit as therefrom the standing crops and structures were
required to be excluded. Goodricke Group of case dos not, therefore, lay down a good
law and should be overruled.

INTERPRETATION IN THE LIGHT OF INTERNATIONAL TREATIES :

It is true that the doctrine of 'Monism' as prevailing in the European countries does
not prevail in India. The doctrine of 'Dualism' is applicable. But, where the municipal
law does not limit the extent of the statute, even if India is not a signatory to the
relevant International Treaty or Covenant, the Supreme Court in a large number of
cases interpreted the statutes keeping in view the same.

A treaty entered into by India cannot become law of the land and it cannot be
implemented unless Parliament passes a law as required under Article 253.

The executive in India can enter into any Treaty be it bilateral or multilateral with
any other country or countries.

As regard Article 253 vis-a-vis Article 51 of the Constitution, we may notice that in
the case of Kesavananda Bharati v. State of Kerala, Sikri CJ referred to Article 51 in
the following words:

"It seems to me that, in view, of Article 51 of the Directive Principles, this Court must
interpret language of the Constitution, if not intractable, which is after all a
Municipal Law, in the light of the United Nations Charter and solemn declarations
subscribed to by India."

The learned Chief Justice also relied on the observation made by Lord Denning in
Corocraft v. Ram American Airways (1969) All ER 82), that it is the duty of the courts
to construe our legislation so as to be conformity with International Law and not in
conflict with it. It is one thing to say that legislation may be interpreted in conformity

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 Vishaka & Ors vs State Of Rajasthan & Ors on 13 August, 1997

needed assistance to the Court which has enabled us to deal with this unusual matter in the manner
considered appropriate for a cause of this nature.

Apart from Article 32 of the Constitution of India, we may refer to some other provision which
envisage judicial intervention for eradication of this social evil. Some provisions in the Constitution
in addition to Articles 14, 19(1)(g) and 21, which have relevance are:

Article 15:

"15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of

birth.-

(1) The State shall not discriminate against any citizen on only of religion, race, caste,
sex, place of birth or any of them. (2) xxx xxxx xxxx (3) Nothing in this article shall
prevent the State from making any special provision for women and children.

(4) xxxx xxxx

xxxx"
Article 42:

"42. Provision for just and humane conditions of work and maternity relief - The
State shall make provision for securing just and humane conditions of work and for
maternity relief."

Article 51A:

"51A. Fundamental duties. - It shall be the duty of every citizen of India, -

(a) to abide by the Constitution and respect its ideals and institutions, ...

xxxx xxxx
xxxx

(e) to promote harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic and regional or sectional diversities;
to renounce practices derogatory to the dignity of women;

xxx xxxx
xxxx"

Before we refer to the international conventions and norms having relevance in this
field and the manner in which they assume significance in application and judicial
interpretation, we may advert to some other provisions in the Constitution which
permit such use. These provisions are:

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 Vishaka & Ors vs State Of Rajasthan & Ors on 13 August, 1997

Article 51 :

"51. Promotion of international peace and security - The State shall endeavour to -

xxxx xxxx
xxxx
(c) foster respect for
international law and treaty

obligations in the dealings of organised people with one another;

and xxx xxx xxx"

Article 253 :

"253. Legislation for giving effect to international agreements - Notwithstanding

anything in the foregoing provisions of this Chapter, Parliament has power to make
any law for the whole or any part of the territory of India for implementing any
treaty, agreement or convention with any other country or countries or any decision
made at any international conference, association or other body."

Seventh Schedule :

"List I - Union List:

xxxx xxxx
xxxx

14. Entering into treaties and agreements with foreign countries and implementing of
treaties, agreements and conventions with foreign countries.

xxx xxx
xxx"

In the absence of domestic law occupying the field, to formulate effective measures to
check the evil of sexual harassment of working women at all work places, the contents
of International Conventions and norms are significant for the purpose of
interpretation of the guarantee of gender equality, right to work with human dignity
in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual
harassment implicit therein. Any International Convention not inconsistent with the
fundamental rights and in harmony with its spirit must be read into these provisions
to enlarge the meaning and content thereof, to promote the object of the
constitutional guarantee. This is implicit from Article 51(c) and enabling power of the
Parliament to enact laws for implementing the International Conventions and norms
by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of
the Constitution. Article 73 also is relevant. It provides that the executive power of
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 Vishaka & Ors vs State Of Rajasthan & Ors on 13 August, 1997

Vishaka & Ors vs State Of Rajasthan & Ors on 13 August, 1997

Equivalent citations: AIR 1997 SUPREME COURT 3011, 1997 AIR SCW 3043,
1997 LAB. I. C. 2890, 1997 CRILR(SC MAH GUJ) 749, 1997 LAB LR 991, (1997)
3 ALLCRILR 283, (1997) 2 CHANDCRIC 112, (1997) 24 CRILT 455, (1997) 7 JT
384 (SC), 1997 SCC(CRI) 932, (2013) 3 KANT LJ 546, 1998 (1) BLJR 228, 1998
BLJR 1 228, 1997 CRILR(SC&MP) 749, 1997 (5) SCALE 453, 1997 (6) SCC 241,
(1997) 3 RECCRIR 187, 1997 CHANDLR(CIV&CRI) 25, (1997) 77 FACLR 297,
(1997) 3 SCJ 584, (1997) 3 CURCRIR 126, (1997) 2 CORLA 321, (1997) 5
SCALE 453, (1997) 5 ANDH LT 14, (1997) 3 CRIMES 188, (1997) 2 MADLW(CRI)
604, (1997) 13 OCR 305, (1997) 2 EASTCRIC 574, (1997) 3 ALLCRILR 819,
(1997) 3 RAJ LW 373, (1997) 7 SUPREME 323, (1997) WRITLR 823, (1998) 2
LAB LN 965

Bench: Chief Justice, Sujata V. Manohar, B. N. Kirpal

PETITIONER:
VISHAKA & ORS.

Vs.

RESPONDENT:
STATE OF RAJASTHAN & ORS.

DATE OF JUDGMENT: 13/08/1997

BENCH:
CJI, SUJATA V. MANOHAR, B. N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T Verma, CJI:

This Writ Petition has been filed for the enforcement of the fundamental rights of
working women under Articles 14, 19 and 21 of the Constitution of India in view of
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declared by the Supreme Court in Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1 paras 61, 62 &
63.
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63.
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declared by the Supreme Court in Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1 paras 61, 62 &
63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
founded in the nature of things, non-rational, not done or acting

according to reason or judgment, depending on the will alone.

37. In Bombay Dyeing & Manufacturing Co. Ltd. (3) v. Bombay

Environmental Action Group & Ors. AIR 2006 SC 1489, this Court

held that arbitrariness on the part of the legislature so as to make the

legislation violative of Article 14 of the Constitution should ordinarily

be manifest arbitrariness.

38. In cases of Bidhannagar (Salt Lake) Welfare Assn. v.

Central Valuation Board & Ors. AIR 2007 SC 2276; and Grand

Kakatiya Sheraton Hotel and Towers Employees and Workers

Union v. Srinivasa Resorts Limited & Ors. AIR 2009 SC 2337, this

Court held that a law cannot be declared ultra vires on the ground of

hardship but can be done so on the ground of total unreasonableness.

The legislation can be questioned as arbitrary and ultra vires under

Article 14. However, to declare an Act ultra vires under Article14, the

Court must be satisfied in respect of substantive unreasonableness in

the statute itself.

IX. AMENDING ACT-IF STRUCK DOWN-WHETHER OLD

LAW WILL REVIVE:

4
 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.6015-6027/2011

State of Tamil Nadu & Ors. …..

Appellants

Versus

K. Shyam Sunder & Ors. …..Respondents

JUDGMENT

Dr. B.S. CHAUHAN, J.

1. These appeals have been preferred against the judgment and

order dated 18.7.2011 of the High Court of Judicature at Madras in

Writ Petition Nos.12882, 12890, 13019, 13037, 13038, 13227, 13293,

13296, 13345, 13381, 13390, 13547 of 2011 and W.P.(M.D.)

No.6143/2011 whereby the High Court has struck down Section 3 of

The Tamil Nadu Uniform System of School Education (Amendment)

SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.
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© 2024 Eastern Book Company. The text of this version of this judgment is protected by the law
declared by the Supreme Court in Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1 paras 61, 62 &
63.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.
Page 1 Saturday, March 09, 2024
Printed For: Pranchal Rathi, Nirma University
SCC Online Web Edition: http://www.scconline.com
© 2024 Eastern Book Company. The text of this version of this judgment is protected by the law
declared by the Supreme Court in Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1 paras 61, 62 &
63.
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 State Bank'S Staff Union Madras vs Union Of India & Ors on 15 September, 2005

in itself, but which they were not able to enforce on account of defects in the law or its
omission to provide the relief necessary to secure such right."

Craies on Statute Law (7th Edn.) at p. 396 observes that:

"If a statute is passed for the purpose of protecting the public against some evil or
abuse, it may be allowed to operate retrospectively, although by such operation it will
deprive some person or persons of a vested right."

Thus public interest at large is one of the relevant considerations in determining the constitutional
validity of a retrospective legislation.

The above position was elaborately noted in Virendra Singh Hooda and Ors. v. State of Haryana &
Anr. (2004 (12) SCC 588).

Curative Statutes are by their very nature intended to operate upon and affect past transactions.
Curative and validating statutes operate on conditions already existing and are therefore wholly
retrospective and can have no retrospective operation.

Blackstone J in Nicol v. Verelst (1779 (26) E.R. 751) held that "declaratory do not prove that law was
otherwise before, but rather the reverse".

There is no quarrel and in fact in our opinion rightly that legislature cannot by a mere declaration,
without anything more, directly overrule, reverse or override a judicial decision. However, it may, at
any time in exercise of the plenary powers conferred on it by the Constitution render a judicial
decision ineffective by enacting a valid law on a topic within its legislative field, fundamentally
altering or changing with retrospective, curative or neutralizing effect the condition on which such
decision is based (see: I.N. Saxena etc. v. State of Madhya Pradesh (1976 (4) SCC 750).

As noted in Indira Nehru Gandhi v. Raj Narain (1975 (suppl.) SCC 1) rendering ineffective of
judgments or orders of competent Courts or Tribunals by changing their basis by legislative
enactment is a well known pattern of all validating Acts. Such validating legislation which removes
the causes for ineffectiveness or invalidity of actions or proceedings is not an encroachment on
judicial power. There is a distinction between encroachment on the judicial power and nullification
of the effect of a judicial decision by changing the law retrospectively. As noted by this Court in M/s.
Tirath Ram Rajindra Nath, Lucknow v. State of U.P. and Anr. (1973 (3) SCC 585) the former is
outside the competence of the legislature but the latter is within its permissible limits.

It has to be noted that the legislature, as a body, cannot be accused of having passed a law for
extraneous purpose. If no reasons are stated as appear from the provisions enacted by it, its reasons
for passing a law are those stated in the Objects and Reasons. Even assuming that the Executive, in a
given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of
the law mala fide. This kind of "Transferred malice" is unknown in the field of legislation. (See K.
Nagaraj and Ors. v. State of Andhra Pradesh and Anr. (AIR 1985 SC 551) and G.C. Kanungo v. State

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 State Bank'S Staff Union Madras vs Union Of India & Ors on 15 September, 2005

State Bank'S Staff Union Madras vs Union Of India & Ors on 15

September, 2005

Equivalent citations: AIR 2005 SUPREME COURT 3446, 2005 AIR SCW 4622,
2005 LAB. I. C. 4257, (2005) 6 ALL WC 5172, (2005) 5 CTC 629 (SC), 2005 (9)
SRJ 45, 2005 (7) SLT 173, 2005 (7) SCALE 296, 2005 (7) SCC 584, (2005) 8 JT
315 (SC), 2005 (5) CTC 629, 2005 SCC (L&S) 994, (2005) 3 LABLJ 854, (2005)
107 FACLR 737, (2005) 4 LAB LN 391, (2006) 1 SCT 472, (2005) 7 SCJ 368,
(2005) 5 SERVLR 731, (2005) 6 SUPREME 522, (2005) 7 SCALE 296, (2005) 2
WLC(SC)CVL 754, (2006) 1 CURLJ(CCR) 329, (2005) 3 CURLR 817

Author: Arijit Pasayat

Bench: Arijit Pasayat, H. K. Sema

CASE NO.:
Appeal (civil) 3396 of 2001

PETITIONER:
State Bank's Staff Union Madras

RESPONDENT:
Union of India & Ors.

DATE OF JUDGMENT: 15/09/2005

BENCH:
ARIJIT PASAYAT & H. K. SEMA

JUDGMENT:

J U D G M E N T ARIJIT PASAYAT, J.

Challenge in this Appeal is to judgment of a Division Bench of Madras High Court holding that
customary bonus was not payable by the State Bank of India (in short the 'Bank') after Banking Laws
(Amendment) Act, 1984 (Central Act No. 64 of 1984) (in short the 'Amendment Act') was enacted.
Appellant has questioned constitutional validity of the said amendment before the Madras High
Court by filing a writ petition which was dismissed.

Factual position which is almost undisputed is as follows:-

By the Amendment Act, State Bank of India Act, 1955 (in short the 'State Bank Act')
and State Bank of India (Subsidiary Banks) Act, 1959 (in short the 'Subsidiary Act')
and Banking Companies (Acquisition and Transfer of Undertakings) Acts, 1970 and

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