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R. K. Misra*

THE ROLE OF judicial process in ordering the society has so far attract-
ed scant appreciation and a good deal of criticism in India, The
judiciary has often been charged of having impeded speedy and smooth
implementation of high-priority programmes for social and economic
development. The criticism may at times be justified but it only brings
into sharp focus the need for a revaluation of the erstwhile tools and
techniques of judicial process. Greater attention to the study of judi-
cial process would be a prerequisite for this intellectual endeavour.
An attempt has been made here to examine in terms of their ^social
consequences a representative selection of cases decided during the year
with a view to highlighting various facets of judicial process in the


The decision of the Supreme Court in Fazlul Rabbi v. State of West

Bengal1 demonstrates the vital role of judicial process in attaining
value integration in a transitional and plural society. At its present
stage of development, the Indian society presents a complex pheno-
menon. The traditional values are still persisting while a new set of
values, though not very coherent, is being promoted by law and politi-
cal processes. In this situation, the task of arbitrating between the
traditional and modern values calls for judicial statesmanship of the
highest order. Any hasty decision may affect the efficacy of the judi-
cial process itself while the policy to play safe may hamper development
towards the desired direction. The absence of an operational consen-
sus on goal values further adds to the complexity of the problems
of the type which the Fazlul Rabbi case presented for judicial deter-
mination. In this case, the Court was required to decide whether
the wakf property whose income was to be used in substance for the
benefit of the executor and his kith and kin could be deemed to be a
property held under a legal obligation for a "charitable purpose," so
as to exempt it from the operation of the West Bengal Estates Acquisi-
tion Act. According to the orthodox Muslim opinion and under the

* Associate Research Professor, The Indian Law Institute, New Delhi.

1. A.I.R. 1965 S.C. 1722. The Indian Law Institute


Muslim law, the gifts for the benefit of the wakifdmd his family are re-
garded as charity. The claim of the appellant was also supported by
certain precedents to the effect that the term general public utility in-
cludes Muslim wahfs* and that "the standards of customary law and
common opinion amongst the community to which the parties interes-
ted belong" 3 are to be applied in determining the charitable nature
of an endowment. Poised against the authority of religious prescrip-
tions and customary rules was the West Bengal Estates Acquisition Act
which aimed at the abolition of intermediaries between the State and
the raiyat—a crucial part indeed of the land reforms programme. The
Act exempted from its operation the land held exclusively for religious
or charitable purposes. The definition of charitable purpose in the
Act was, however, not exhaustive and therefore the argument that its
meaning should be determined by the notions of personal law could
not be lightly brushed aside. But Hidayatullah, J., preferred to apply
secular standards and held that a "gift to one's own self or kith and kin
may be meritorious and pious but it is not charity in the legal sense of
the term . . . ."* In the absence even of a working agreementon the
goals, the judicial choice between traditional and modern or between
religious and secular becomes extremely difficult — more so when
it involves the sensitive area of the customs and religion of a mino-
rity community. The urge towards modernisation, the imperative
need for economic progress and the constitutional directive regarding
homogeneity in the legal system are some of the factors which could not
but have influenced the Court in arriving at the decision which will
definitely help in formulating a coherent set of jural postulates and
thereby in course of time a theory of justice for our society.
The sociological implications of this judgment are too far-reaching
to be summarised here. A reference may, however, be made to the
deft structuring of arguments through which the Court while rationa-
lising and synthesising the existing law on the subject made a definite
progress towards new views. As already pointed out, there were prece-
dents supporting the contention that charitable purpose is to be deter-
mined according to the notions of Muhammadan law. There were
no doubt a number of decisions of the Privy Council declaring invalid
such wakfs in which the benefits to charity or religion were either illu-
sory or postponed indefinitely till the exhaustion of the family lineage
of the wakif But as a result of the pressure of Muslim public opinion,
these decisions were abrogated by the Mussalman Wakf Validating
Act, 1913, Though the primary purpose of the Act was to take the
Muslim wakfs out of the reach of the rule against perpetuity, it could
as well be interpreted to hold that the Act also applied Muhammadan

2. Tribune Press v. LT. Commr., A.I.R, 1939 P.C. 208.

3. Fatmabibi v. Advocate-General of Bombay, I.L.R. (1882) 6 Bom. 42.
4. Supra note 1, at 1728. The Indian Law Institute


law for the determination of the meaning of the term charitable pur-
pose. The Act, amongst other things, defined a wakf as a permanent
dedication of property for "any purpose recognized by the Mussalman law
as religious, pious or charitable," According to Hidayatullah, J,,
however, the validating Act enlarged the meaning of wakf only so as to
include the wakfs otherwise hit by the rule against perpetuity but not so
as to bring the wakfs within the scope of charitable purposes. He re-
lied on a few High Court decisions to hold that for a purpose to be
deemed charitable, there must be some element of benefit to the public.
An analysis of the law on the point would demonstrate that the existing
legal material and logic could as well be used to arrive at a different
decision in making a choice between the two interpretations. It is
precisely in such cases that the policy considerations tilt the balance in
favour of the interpretation which the judge thinks would promote the
preferred values.
The problem involving tradition versus modernity and secular
versus political institutions was also raised before the Calcutta High
Court in LT. Commr. v. JogendranathP On the substantial point in-
volved, the judgment was on the same lines as in the Fazlul Rabbi case
but on account of the reasoning adopted by the Court, it fails to make
as deep a social impact. Besides, it is doubtful if this decision adds
to the image of judicial process as an effective and powerful means
of directing social change on the desired lines. The question referred
to the High Court in this case related to taxability of the income from
debutter property in the hands of shebaits. This raised several issues
for judicial determination. Firstly, whether a Hindu deity is an "indi-
vidual" or a "person." The income in question could be taxed only
in case the answer was in the affirmative. Secondly, whether all abso-
lute and complete dedications to a deity are to be regarded as for "public
religious purpose" and thus exempt from income tax. The conten-
tion of the assessee was that there could be no "private religious purpose"
under the Hindu law. Lastly, whether a shebait could be regarded
as a trustee for the purpose of taxation under the Income Tax Act. In
the judgment, the erudite exposition of the Hindu concept of God,
deity and endowment goes to such an elaborate length that the problems
of vital importance to law and society involved in the case seem to have
been relegated to background. Besides, the judgment at places is
characterised by notes of despair that the Court did not find it possible
to go back to original Vedic law on the subject and that they had to
decide it the way they did with great reluctance and deep regret. This
approach would have been justifiable had the judgment given some
valid reason for the revival of the original Hindu law on the point and
for the inadequacy of the law they found themselves bound to apply.
In the absence of such an exposition, an impression is likely to be crea-

5. A.I.R. 1965 Cal. 570, The Indian Law Institute


ted that the only reason for lament was the not unusual fascination
for the ancient system. And this does not help in the projection of
the right type of image of the judicial process.
Coming to the specific points raised in the case, while Mukharji,
J., reluctantly conceded that a Hindu deity was, at least for the pur-
poses of Income Tax Act, an individual or a person, Laik, J., was not
prepared to compromise the sanctity of the Hindu deity by declaring
it to be an individual or a person for the purposes of Income Tax Act.
On the second issue, the argument for the Income Tax department
was that the exemption granted by the Income Tax Act to properties
held for charitable purposes was not available in this case as it did not
extend to the income from properties held for"private religious purposes
which does not enure for the benefit of the public." Mukharji, J.,
after regretting that " a valuable original contribution of Hindu juris-
prudence has been lost almost unobtrusively by misapplication of
foreign jurisprudence, " 6 found himself bound to hold that a complete
dedication in favour of a deity does not necessarily amount to a "public
religious purpose." Laik, J., differed on this point as well and did
not agree with the distinction drawn between public and private reli-
gious purposes in case of dedication to deity. On the last point, how-
ever, both the Judges agreed that though a shebait was not a trustee
in the English sense, the duties and obligations of the two were similar
and the income from the property in the hands of the shebait could be
taxed under the Income Tax Act, Here too Laik, J., added that "to
conclude this much is not necessarily to concede that the Hindu deity
as such is liable to income-tax." 7 The decision is unimpeachable in-
sofar as it recognises the power of the state to tax the income from
debuttet property held under a devise in which no element of charity
or public benefit is involved. But the judgment missed the opportunity
provided by the case to contribute towards the evolution of jural
postulates of the emerging society. It presented to the Court an
ideal opportunity to determine the limits within which religious
institutions can claim exemption from the taxing power of the state.
Needless to add that this limit cannot be defined today on the basis of
the ancient notions of Hindu system which did not recognise any distinc-
tion between private and public religious endowments and under
which every religious purpose was deemed to be a charitable purpose.
A modern state with a wide range of functions to perform cannot be
expected to give up its power of taxation unless some countervailing
social interest is promoted in granting an exemption. The exemption
from taxation of property catering to the spiritual, humanitarian or
other needs of the general publio can be justified on this ground. But
no such social interest is discernible in case of a property catering to the

6. Id. at 585.
7. Mat597. The Indian Law Institute


religious needs of only a few individuals or of a family. That the origi-

nal Hindu law treated all religious purposes as charitable purposes is
not very relevant in this context. Whether a purpose is a public or a
charitable purpose and deserves exemption from taxing power can be
determined only in the light of modern conditions. These aspects of
the matter do not appear to have been considered by the Calcutta
High Court in the Jogendranath case. The judgment rather gives the
impression that it is an attempt at striking a balance between the no-
tions of Hindu jurisprudence on the one hand and the needs of the
modern society on the other. This has naturally blurred the real issues
involved in the case.
The jural postulates of the society cannot be formulated by one
stroke of pen. But any opportunity missed to make an advance in
this direction is a positive setback to the emergence of a theory of justice
for the Indian society.


The Indian law recognises the social interest in general morals by

penalising the sale etc. of obscene literature and objects. 8 In accom-
plishing the unenviable task of determining what is obscene, the courts
are faced with innumerable problems. How are the socially approved
standards of public morals to be ascertained may itself raise a number
of issues. An equally important question is whether the courts should
punish only the deviations from the established standards or should
they also lay down the standards in this area. In any case, the court
has to lay down a workable judicial test to determine obscenity. The
test, however, should neither be so general as to be of no guidance in
future nor can it be so rigid as to freeze the current notions of public
morality and impose them on the coming generations. Lastly may be
mentioned the paramount problem involved in balancing the social
interest in general morals with the no less important social interest in
cultural and political progress. The decision of the Supreme Court in
Ranjit D. Udeshi v. State of Maharashtra* declaring Lady Chatterlefs
Lover to be obscene has to be examined in this background. Hidaya-
tullah, J., speaking for a unanimous Court, dismissed at the outset the
oral evidence of an eminent art critic and writer produced by the defence
to establish that the impugned novel was "a work of considerable literary
merit and a classic and not obscene." 10 According to the learned
Judge the question did not "altogether" depend on oral evidence be-
cause the book and the impugned portions had to be judged by the
Court in the light of the relevant section of the Penal Code and the

8. Section 292, Indian Penal Code.

9. A.I.R. 1965 S.C. 881.
10. Id. at 884. The Indian Law Institute


provisions of the Constitution. But as the judgment itself proceeds to

state, the Penal Code nowhere defines the word "obscene" and the
"delicate task of how to distinguish between that which is artistic and
that which is obscene is to be performed by the courts, and in the last
resort by us." 1 1 As an assertion of the legal position, the statement
is unexceptionable but it offers no answer to the question as to how will
the courts decide the ''delicate" question if the oral evidence of the
critics and writers is not to be taken into account, What is more baffling
is that the judgment, after an erudite comment on the theme of the
novel and the motivations of its author and his philosophy of life, quotes
the opinions of English litterateurs like Priestley and Murray to con-
clude that the novel was obscene. Considering the fact that not all
cases under section will reach the Supreme Court or even the High
Courts, it may not prove to be a salutary procedure to rely solely on the
published opinions of eminent critics and writers in complete disre-
gard of oral evidence. Judgment on works of art and literature may,
it is apprehended, be given by the court without a full consideration
of all the aspects if the court has not had the advantage of examining
the experts on the subject unless, as is rarely the case, the counsels on
both the sides have the aptitude and competence to debate the literary
and artistic merits of the book in question. The standards of social
morality should not be laid down on the basis of empirically derived
beliefs or the intuitive responses of the judges. Besides, it will be diffi-
cult to strike a proper balance between the two social interests involved
—the one in general morals and the other in cultural and political pro-
gress—in the absence of expert opinion on the merits of an impugned
The judgment, in holding the book to be obscene, takes fully into
account the "community standards,"^ "community mores" 13 and
"the interests of our contemporary society." 14 The traffic between
law and society, however, is not a oneway traffic. It is apparent from
the judgment in Ranjit Udeshi that the Court has not just mechani-
cally applied what it considered to be the socially accepted noims.
The likely influence of the judgment on the society was not overlooked.
A complete insight in the judicial mind, however, is not available as
out of a number of considerations, acknowledged by the Court to
be relevant, only the likely impact o£ the principle laid down on the
future growth of Indian literature is specifically mentioned. The
justification for adopting a strict rule—if one calls it strict— was the
anxiety of the Court to save the Indian literature from being "perver-
ted" under the influence of liberally determined limits of decency.

11. M a t 887.
12. Id. at 891.
13. Id. at 889.
14. Id. at 888. The Indian Law Institute


The distinct possibility, however, of inhibition of free expreision at

the desired level cannot be ruled out under this approach. Besides,
is it prudent to impose certain standards on the contemporary society
simply in order to save the future development of literature from appre-
hended dangers which, in the face of changing notions of morality,
may or may not come true?
In determining the obscenity of an object, the courts in India
have been applying the test laid down—significantly during the reign of
Queen Victoria—by Cockburn, C.J., in R v. Hicklin.15 Its authority
had never been questioned in the Indian courts till the appellant in
the Ranjit Udeshi case urged the Court to reject it. The Hicklin rule,
true to the spirit of the times, is overweighed in favour of the social
interest in general morals by holding obscene such matter as has the
tendency "to deprave and corrupt those whose minds are open to such
immoral influences and into whose hands a publication of this sort may
fall" and "would suggest . . . thoughts of a most impure and libidinous
character." 16 The application of this rule today would overlook
the equally important social interest in cultural and political progress
which has been constitutionally protected, 17 That Hidayatullah,
J., refused to discharge the Hicklin rule should not be taken to mean
that he did not consider the claims of social interest in cultural and politi-
cal progress. In fact, the learned Judge found it necessary to bear in
mind in this context "the claims of society to allow free speech." 18 But
since such a plea was not raised in the case, it did not get the detailed
consideration it deserved. While dealing, however, with the plea re-
garding the validity of section 292, Hidayatullah, J., observed that
a "balance should be struck between freedom of speech and expres-
sion and public decency and morality" adding that "but when the
latter is substantially transgressed the former must give way." l s But
in view of the finding that the book had no message and that "in treat-
ing with sex the impugned portions viewed seperately and also in the
setting of the whole book pass the permissible limits judged of from
our community standards," 20 the book was held to be obscene.
Hidayatullah, J., rejected the defence plea to discharge the Hicklin
test but the standards he set for himself to determine obscenity of
the book leave no doubt that the Hicklin rule is on its way out. The
nearest he comes to suggesting an alternative judicial test is in the follow-
ing passage:
15. (1868) 3 Q.B. 360.
16. Id. at 371.
17. Article 19(l)(a) guarantees freedom of speech and expression which is made
subject to reasonable restrictions to be imposed on the grounds mentioned in article
18. Supra note 9, at 887.
19. Id. at 889.
20. Id. at 891. The Indian Law Institute


In our opinion, the test to adopt in our country (regard being had to our
community 'mores') is that obscenity without a preponderating social pur-
pose or profit cannot have the constitutional protection of free speech
and expression and obscenity is treating with sex in a manner appealing to
the carnal side of human nature, or having that tendency.21

The decision is welcome insofar as it requires the community

mores and standards to be taken into account while judging the obs-
cenity of a book. But by undermining the importance of expert opi-
nion and by leaving the dividing line between pure art and obscenity
to be drawn by the courts, the Supreme Court may have introduced
an element of uncertainty which may not have as happy an impact on
the literary development in the country as the Court intended.
The criminal sanctions for the enforcement of certain categories
of public morality have been in use for sufficiently long time so that the
levels of interaction between law and morals can be identified with a fair
degree of certainty. With the emergence, however, of welfare state in
India, criminal sanctions are being extended to control new areas of life
which throws for judicial determination numerous problems involving
moral and ethical considerations. In Buddha Pitai v. S.D.O.^ where
the legislature had disqualified those convicted of an offence "involv-
ing moral turpitude" from holding an office in Gaon Sabha, the point
to be decided was whether a person convicted under the Prevention
of Food Adulteration Act for mixing prohibited colour in the sweets
was so disqualified. The three judgments in the case bring out
different judicial attitudes to the problem of law and morality. Desai,
C.J., evidently visualised the role of law in this area as no more than
reflecting the norms well established in the society. He held that
there was "nothing inherently immoral in using a colouring matter
other than that prescribed in respect of the article in which it is used.
It is only a prohibited act and it is an offence simply because it is
prohibited act." 23 The Chief Justice took the view that the laws
are not necessarily based on the idea of what is moral and what
is immoral. According to him, an act even though declared by
law to be an offence could not be deemed immoral unless it is "a de-
parture from the standards of conduct laid down by the society or from
accepted social norms or is frowned upon by the society." 24 Sharma,
J., in his concurring judgment laid down a similar test to determine
the nature of an offence. An offence, according to him, would involve
moral turpitude if "it shocks the conscience of, or is scorned at by,
the public or society at large." 26 On the question whether the

21. Id. at 889.

22. 1965 (2) Cri. LJ. 306.
23. Id. at 310.
24. Id. at 311.
25. Id. at 324. The Indian Law Institute


mixing of colour amounted to an offence "involving moral turpitude,"

Sharma, J., preferred to give benefit of doubt to the appellant. He
referred to the possibility of the appellant having purchased the colour
without actually knowing that it was a prohibited colour. In the absence
of the proof of motive, he was not prepared to hold that the act of the
appellant in mixing the colour was "vile, base or depraved to the extent
of making his offence as one involving moral turpitude" 2 6 This assumes
that even though mens rea was not an ingredient of the offence, the ques-
tion of motive became relevant in determining whether the offence
involved moral turpitude. It is not clear if Sharma, J., wanted to
determine the morality or otherwise of an act exclusively on the basis
of the mental attitude of the doer and would completely disregard its
social consequences as evaluated in the light of community standards.
Further, as the dissenting judgment of Beg, J., points out, the impor-
tant question in such cases is not the ingredients of the offence but the
reaction of the community at large. According to him, the act of
selling edibles "without caring to apprise oneself of the restrictions im-
posed by the rules regarding the ingredients of the foodstuff to be sold
itself discloses a reckless disregard for public welfare and health and is
to be regarded as highly blameworthy." 27 Beg, J., gave a broad
interpretation to the term "moral turpitude" and would include within
it any act "which constitutes a breach of the social obligation which a
man owes to another" 28 and observed that "any act involving a breach
of any rule of good conduct or deriliction from principles of honesty,
integrity and fairness in business matter would involve moral
turpitude." 29 The positive judicial attitude adopted by Beg, J., would
go a long way in fulfilling the objects of the legislation.
The majority view is not based on an adequate appreciation of
role of law in aiding the evolution of the standards of morality valid
for the emerging pattern of society. It was hardly necessary for the
Chief Justice to quote Pound in support of his view that law may at
times deal with morally indifferent matters. In fact, the legislature
itself by using the words "offences involving moral turpitude" recog-
nised two distinct categories of offences —the ones involving moral
turpitude and those not involving. But while dealing with welfare
legislation it is not possible to exclude altogether the ethical considera-
tions. The majority set out a rather narrow definition when it insisted
on strong social disapproval—"frowned upon by" or "shocks the cons-
cience of" or "scorned at by" the society—as the prerequisite before
an act could be determined as one involving moral turpitude. This

26. Ibid. (Emphasis supplied).

27. M a t 318.
28. Id. at 317.
29. Ibid. The Indian Law Institute


may at best be described a negative approach in the context of a society

where the task before the law is not so much to balance the conflicting,
demands, as in the West, but to create a structure of demands. 30 There
can be no doubt that the mixing of colour in the sweets is something
looked down upon by the society. If the disapproval is not so strong
as to mzct the requirement of the test laid down by the majority, it is
only due to a lack of consciousness amongst the masses of its effect on
public health. Under these circumstances, it is exceedingly necessary
that the courts play a creative role and help in the articulation of the
norms of public morality. The technical arguments regarding
the mens rea cannot be raised in a case where the motive of the
person in mixing the colour is to make money at the cost of public
It is obvious that religion and the notion of sin cannot be the re-
ferential norms for the determination of moral standards in the areas
of life sought to be regulated by welfare legislation. It follows that
the norms of morality in such cases can only be relative. In the
instant case, the objects of Prevention of Food Adulteration Act are
indeed relevant though only the dissenting judgment of Beg, J., has
given due consideration to these objects. This act, however, only
makes it an offence to adulterate foodstuff. More relevant for this
case would be the scheme and the objects of the U.P. Panchayat Raj
Act which disqualified a person convicted of an offence involving moral
turpitude. The vital question would be as to what standards of
morality does this Act visualise. It is well known that this Act was an
attempt to carry the democracy to grassroots through the revival of
certain familiar institutions. The legislature, therefore, provided that
the leadership of these institutions should be in the hands of persons
enjoying high moral stature. Looking to the objects of the Act, these
standards cannot be determined in a narrow fashion and besides the
intrinsic wrong in the impugned act, the stigma attached in the Indian
mind to prosecution and conviction cannot be overlooked.


The erstwhile dependence on English law as the*framework of

reference to guide the Indian legal development poses in the changed
social context a big challenge to the judicial process. Though not
fully integrated in the Indian social system, the present legal system
imported from England has been in force too long to be wished out
of existence. While working within the given system, the imperative
need, however, of making such adjustments as will abridge the gap
between law and society cannot be denied. A number of judicial deci-
sions do reveal a definite awareness of this problem. Indicative of this
30. See Stone, Human Law and Human Justice 278-79 (1965). The Indian Law Institute


trend are the following observations of Hidayatullah, J., in Fazlul Rabbi

v. State of West Bengal ; 31

We do not say that the English authorities should be taken as the guide
as was suggested in some of the cases at one time.

In deciding the scope of the term "charitable purposes," the Court

instead sought guidance from an analogous provision in the Income
Tax Act. In /. T. Commr. v. Andhra Chamber of Commerce^ again, the
problem before the Court was whether to accept for the purpose oi
exemption under the Income Tax Act the definition of charity laid down
in the Pemsel case. 33 The argument for the appellant was that the ob-
ject of the respondent body to protect, promote, and develop trade,
commerce and industry in the country in general and in Andhra Pradesh
in particular was not a charitable purpose in terms of the Pemsel rule
and hence the income from the property in question was not entitled to
exemption under section 4(3) of the Income Tax Act. Shah, J., found
that Lord Macnaghten's definition in the Pemsel case viz*, "purposes
beneficial to the community" was not followed by the legislature in
India which has used the words "advancement of any other, general
object of public utility." On the face of it, the difference between
the two is not very significant but would provide sufficient basis to a
court inclined to depart from the English rule for policy reasons. Any
observer of the Indian economic scene would agree that this case in-
volved those insurgent forces clamouring for recognition which—
one may well argue—do deserve recognition at this stage of develop-
So deeply entrenched is the English law in the traditions of the
legal profession that English principles are invoked even in situations
where the scheme of statute is different and is intended for application
in different conditions. In Shiva Ram v. State?* the Court was urged
to apply the English rule regarding the distinction between civil and
criminal negligence to a case involving the interpretation of section
304 A of the Penal Code. Beg, J., while rejecting the contention, warned
against following the English precedents relating to the offence of
manslaughter and thereby reading in the language of the section terms
like "grossly" or of a "high degree" to qualify the kind of negligence
required under the section. Similarly, the Madras High Court in H.J.
Bhagat v. L.I. Corpn™ refused to follow the English principles regarding
the presumption of continuance of life. Though section 107 and 108
of the Indian Evidence Act are based on the English law, the Court

31. Supra note 1, at 1728.

32. A.I.R. 1965 S.C. 1281.
33. 1891 A.C. 531.
34. 1965 (1) Cri. L.J. 514.
35. A.I.R. 1965 Mad. 440. The Indian Law Institute


did not consider the later to be an infallible guide in the Indian

While the need for revaluation of the applicability of the principles
of English law in India cannot be over-emphasised, it may not always
be possible to reject by one stroke of pen a rule well-established in India.
This seems to have been the situation before the Supreme Court in
Ranjit D. Udeshi v. State of Maharashtra,^ where the appellant urged
the Court to discard the Hicklin rule. No wonder, Hidayatullah, J.,
did not agree to discharge outright the rule which had been "uniformly
applied in India." 3 7 But the observations that follow suggest that it
was more a matter of judicial caution than the reluctance to evolve a
test of obscenity in the light of "our community mores" 38 and "the
interest of our contemporary society." 39 Even while passing the final
verdict, the book was "judged of from our community standards." 49
The judgment only illustrates the limitations under which the judicial
process has to operate. Substitution of a long established judicial test
by a new one can be accomplished not by one but by a series of judicial
decisions. There is no doubt that the Ranjit Udeshi case is a positive
step in that direction.
The large-scale reliance on English law in India is as much due
to the historical reasons as to the training of our lawyers and judges.
But to put the record straight it has to be mentioned that, in some cases
at least, the judge may have no choice but to apply the common law
irrespective of his feelings in the matter. In Indian Airlines v. Madhuri
Chowdhuri^1 the Calcutta High Court must have found itself in such a
position. The Court, while holding that the exemption clause in the
agreement with the air carrier was a complete bar to the claims of the
deceased's widow, laid down that the liability of an internal air carrier
in India was not to be determined under the Indian Contract Act but
under the common law relating to public employment for reward.
One may have sympathies for the widow of the air passenger who died
in the air crash but the Court could not have overlooked the rulings of
the Privy Council placing the matter beyond the scope of the Contract
Act. 42 Another factor, which must have inhibited the Court from
granting relief in this case, was that the Central Government had not,
despite the power delegated to it, extended to internal air travel the

36. Supra note 9.

37. Id. at 887.
38. Id, at 889.
39. Id. at 888.
40. /(/.at 891.
41. A.I.R. 1965 Cal. 252
42. Irrawadi Flotilla Co. v. Bugwandass, 18 LA. 121. Under article 225 of the
Constitution of India, the High Courts are bound by the pre-Constitution rulings of
the Privy Council. The Indian Law Institute


provisions of the Warsaw Convention of 1929 which proscribes exemp-

tion clauses in the agreements for air carriage.
Not in all cases, however, the courts find themselves so help-
less. In fact, the cases are legion where the English law has been followed
without an adequate examination of its social consequences. A number
of cases involving determination of Indian citizenship bring this out.
The question of citizenship in India often depends on the determina-
tion of domicile of the person concerned 43 and it is here [that the
English principles are pressed into service although the citizenship of a
person under English law is not related to his domicile. Besides, in
India, due to the massive migration between India and Pakistan
following partition and none-too-happy relations between the two
countries, the judicial determination of domicile and thereby of citizen-
ship may have far-reaching social and political implications which may
extend at times even to security of the state. Dr. Sarkar has ably
demonstrated 44 that by applying in this area the technical rules of
English conflict of laws, the judicial decisions have given rise to situa-
tions which are "not merely bizzare but may be fraught with danger." 45
In Mukhtar Ahmad v. State of C/./>.,40 the petitioner at the age of 14 in
1948 had migrated to Pakistan leaving his parents in India who be-
came Indian citizens at the commencement of the Constitution. After
having been in Pakistan for six years and at the age of 20, the petitioner
declared himself to be a Pakistani national and obtained a Pakistani
passport on which he came to India in 1954. Uniyal, J., applied the
English rule of unity of domicile between the father and his minor
child and held that the petitioner being a minor at the time of his migra-
tion could not have acquired Pakistani domicile in 1948 and as such
continued to have the domicile of his father. The learned Judge
thought it fit to apply the English rule despite certain exceptions made
to it in the country of its origin, 47 overlooking the guidance available
both in the Indian statutes and in judicial precedents. The Indian
Succession Act, which provides for the termination of the unity of domi-
cile, could have been referred to even though not applicable in terms
to domicile for purposes other than succession. It was also open to the
judge to rely on the judgment of the Supreme Court in State of Bihar
v. Amar Singh** where Jagannadhadas, J., not only discarded the rule
of unity of domicile between husband and wife but criticised the High
Court for having applied this rule of English law and for having
overlooked the provisions of article 7 of the Constitution. 49 Evidently,
43. Article 5, Constitution of India.
44. Sarkar,"Conflict of Laws," infra at p. 113 et.seq.
45. A/.atll7.
46. A.I.R. 1965 All. 191.
47. Cheshire, Private International Law 165 (7th ed. 1965).
48. A.I.R. 1955 S.C. 282.
49. Id. at 285. The Indian Law Institute


English law is applied in India not only in the absence of adequate

guidelines in the Indian law but for reasons rooted in long tradition
and judicial traditions, it is well-known, die hard.


The decisions of the Supreme Court in the U.P. Parliamentry Privileges

case 50 and in Sajjan Singh v. State of Rajasthan^1 reveal a lack of consensus
even on the fundamentals regarding the respective roles of the judicial
and legislative processes in the society. The impression is inesca-
pable that the two processes are poised in an uneasy confrontation
against each other. This is bound to impair. the efficacy of both
in the pursuit of common objectives. It will be unrealistic, however,
to expect that a viable pattern of adjustment could be evolved merely
on the basis of deductions from the constitutional provisions. Nor
can a formula be laid down which will hold good for all times to come.
The stage of social development at a given time looked in the context
of the objectives to be attained and the values to be upheld will largely
determine the extent to which the judicial process can play a useful role.
The Presidential reference in the U.P. Parliamentary Privileges case
was made to solve the constitutional stalemate arising in the sensitive
area of the scope of judicial power to review the punishment imposed
by the legislature for the breach of its privileges. Even if one agrees
with the majority opinion in this case, 52 it is doubtful if the unhappy
episode culminating in the verdict of the Supreme Court improved in
any manner the efficacy of the judicial process in the country. Perhaps
the case involved an area which was not amenable to regulation by
judicial process and should rather be left to be regulated by conven-
tions to be evolved in course of time by resort to auto-limitation on the
parts of both the legislature and the judiciary. The Supreme Court
could have avoided the situation by refusing to entertain the reference
—a power it undoubtedly has. In this case at least, there was more
than one valid ground on which the Court could have declined to give
its opinion. For one thing, 53 the reference involved directly a matter
which was aready sub judice before a High Court. Besides, The U. P.
Assembly had declined beforehand to accept the jurisdiction
of the Court in the matter. Its counsel stated very categorically that
whatever this Court may say will not preclude the House from deciding
for itself the points under reference. As not totally unexpected, the

50. In re, under Art. 143 Constitution of India, A.I.R. 1965 S.C. 745.
51. A.I.R. 1965 S.C. 845
52. See Shukla, "Constitutional Law," infra at p. 18-20. See also Tripathi,
"Constitutional Interpretation," 8 J.I.L.L 479, at 532 et. seq. (1966) for a critical
analysis of the majority opinion.
53. Sarkar, J., in his dissenting opinion expressed doubts about the competence
of the reference and the desirability of entertaining it. Supra note 50, at 810. The Indian Law Institute


opinion of the Court did not h e l p in b r e a k i n g the s t a l e m a t e . O n e inter-

esting point in this connection is t h a t t h e Allahabad H i g h Court 5 4 while
l a t e r d e c i d i n g t h e w r i t petition out of w h i c h arose the entire controversy
m a d e no reference at all in its j u d g m e n t to the opinion of the S u p r e m e
Court nor did it follow t h e interpretation given b y the S u p r e m e C o u r t
in the advisory opinion.
I n its a t t e m p t to divest the p r o b l e m of the political overtones it
h a d a c q u i r e d as a "legislature-judiciary conflict," the majority opi-
nion considered the question u n d e r reference as one of conflict b e t w e e n
the fundamental rights a n d p a r l i a m e n t a r y privileges. This was hardly
a realistic approach in view of the national d e b a t e the question h a d
evoked and also in view of the implications of t h e decision on t h e legis-
lature a n d the judiciary. T o a p p r o a c h t h e m a t t e r thus would not b e
sound logic either. A privilege is d e e m e d to b e a n exception to or a n
exemption from the right vested in a n o t h e r . No b a l a n c e , it is obvious,
can b e struck b e t w e e n a rule a n d a n exception. W h e t h e r the situation
calls for the application of the r u l e or of the exception is a choice to b e
m a d e on policy considerations. I n a situation like the one u n d e r r e -
ference, the choice can b e m a d e only after weighing the likely effect
of the j u d g m e n t on t h e two institutions a n d particularly their relative
suitability for social ordering a t t h e p r e s e n t stage of evolution. Unfortu-
nately the majority opinion seems to h a v e relied exclusively on t h e
constitutional provisions regarding t h e power of judicial review a n d r e -
garding t h e restrictions o n the legislative power. T h e opinion of
Gajendragadkar, C.J., (for the majority) does m e n t i o n t h a t the legis-
latures " a r e playing a significant role in t h e pursuit of the ideal of a wel-
fare state. . . a n d t h a t naturally gives t h e legislative c h a m b e r s a high
place in t h e making of history t o d a y . " 5 5 But evidently h e thought
that the denial of the privilege claimed by t h e H o u s e will not impair
its efficacy. On the o t h e r h a n d , Sarkar, J . , in his dissenting opinion,
did not believe t h a t "safety lay only in judicial correctives." 5 6 R a t h e r ,
h e a d d e d , " s u c h correctives m a y p r o d u c e frictions a n d cause m o r e
h a r m t h a n good." 5 7 I t is h o p e d t h a t h e m e a n t h a r m b o t h to legis-
lative a n d judicial processes. T h e following observations of Holmes,
J . , m a y well b e thought of as a n a p t c o m m e n t o n t h e opinion of the
majority in the Parliamentary Privileges case:

Great cases like hard cases make bad laws. For great cases are called
great, not by reason of their real importance in shaping the law for the
future, but because of some accident of immediate over-whelming in-
terest which appeals to the feeling and distorts the judgment. These
immediate interests exercise a kind of hydraulic pressure which makes

54. Keshav Singh v. Speaker, Legislative Assembly, A.I.R. 1965 All. 349.
55. Supra note 50, at 763.
56. Id. at 810.
57. Ibid. The Indian Law Institute


what previously was clear seem doubtful, and before which even well settled
principles of law will bend.68

The judicial review of the constitutional amendments is the other

area of crucial importance in which the Supreme Court by its decision
in Sajjan Singh v. State of Rajasthan59 has introduced an element of
uncertainty regarding the legislature—judiciary equation evolved ear-
lier in the Shankari Prasad v. Union of India *° The two questions dealt
with in the Sajjan Singh case were :
(i) Whether the Constitution (Seventeenth Amendment) Act
could claim legitimacy as having been enacted in accordance
with the prescribed procedure.
(ii) Whether the amending power under article 368 is limited in
scope and extent, and if so, whether the said amendment
was within the area of power of the enacting authority.
The main argument for the petitioner in Sajjan Singh was that the
amendment Act insofar as it affected the jurisdiction of the High Courts
and the Supreme Court was void for not having been enacted in accor-
dance with the special procedure laid down in the proviso to article
368. The Supreme Court unanimously rejected the contention as,
according to Gajendragadkar, G.J., the impugned Act had for its ob-
ject the amendment of the fundamental rights and its effect on the
judicial power was only "incidental" and "of an insignificant order."*i
In doing so, the Chief Justice purported to follow Shankari Prasad
but actually, by introducing the doctrine of pith and substance, he
considerably widened the scope of judicial power to review amendments
on the ground of procedural defects. The clear implication of Shankari
Prasad was that an amendment in the fundamental rights will not re-
quire the application of special procedure if it did not "either in terms
or in effect seek to make any change in Art. 226 or in Arts. 132 and
136." 62 In Sajjan Singh, however, Gajendragadkar, C J . , reserved to the
court the power to examine in each case whether an amendment in
its pith and substance is confined to fundamental rights or also makes
"substantial inroads" 6 3 in the powers of the High Court, To lay down
a broad rule together with a flexible test for future while upholding the
validity of an impugned legislation is a familiar judical technique adop-
ted in order to exercise restraining influence on the legislature without
obstructing in the case at hand implementation of the legislative policy.

58. Northern Securities Co. v. United States, 193 U.S. 197, 400-01 (1903).
59. Supra note 51. See Shukla, "Constitutional Law," infra at p.35 for the facts
and the judgment.
60. A.I.R. 1951 S.C. 458.
61. Supra note 51, at 853.
62. Supra note 60, at 464.
63. Supra note 51, at 851. The Indian Law Institute


As it is, the rule regarding procedural safeguards spelled out by

the Chief Justice gives to the courts ample power to review the validity
of amendments without hampering at the same time operation of legis-
lative process. In view of this, it was perhaps not necessary for the
Court to have considered the question of the scope of the amending
power as distinct from the mode of its exercise. At least the petitioners
had not raised this plea. On this point, the Chief Justice, speaking
for the majority, stated most categorically that " a specific, unquali-
fied and unambiguous power to amend the Constitution" 64 is contained
in article 368 and that it would be "untenable" and "unreasonable"
to hold that this article lays down only "the mechanics of the procedure
to be followed in amending the Constitution." 65 In this view of the
matter, the Chief Justice held, the prohibition in article 13(2} against
enactment of laws taking away or abridging fundamental rights would
not apply to an amendment act passed under article 368. On these
points, the ChiefJustice expressed his full concurrence with the decision
in Shankari Prasad. It was unfortunate, however, that the Chief Justice
preferred to rely solely on logic and legalism to support his view. That
this can recoil is demonstrated by the judgments of Hidayatullah and
Mudholkar, JJ., who adopt the same technique to counter each one
of the arguments of the Chief Justice. The structuring of arguments
by the Chief Justice intended to strengthen Shankari Prasad had actu-
ally the effect of making that decision quite vulnerable. The rest is
done by Hidayatullah and Mudholkar, JJ., who expressed in their
separate judgments grave doubts about the correctness of the deci-
sion in Shankari Prasad without expressing, however, a final opinion
on the amendability of fundamental rights. 66 Hidayatullah, J., was
very clear that article 368 lays down only "the manner of amendment
and the necessary conditions for the effectiveness of the amendment." 67
He was not prepared to accept the view that "Fundamental Rights
were not really fundamental but were intended to be within the
powers of amendment in common with the other parts of the Consti-
tution...." 68 Article 368, according to him, "nowhere says that the
preamble and every single article of the Constitution can be amended
by two-thirds majority despite any permanence in the language and despite
any historical fact or sentiment."69 Mudholkar, J., agreed with Hidaya-
tullah, J., that article 368 does not confer a power to amend the Consti-
tution, which according to him, "has to be ascertained from the pro-

64. Id. at 857.

65. M a t 856.
66. For a detailed analysis of the judgment, see Blackshield, "Fundamental
Rights and the Supreme Court," 8 J.LL.I. 139 (1966); Tripathi "Constitutional Inter-
pretation," SJ.LL.I. 575-83 (1966).
67. Supra note 51, at 862.
68. Ibid.
69. Ibid. (Emphasis supplied) The Indian Law Institute


vision sought to be amended or other relevant provisions or the pream-

ble." 7 0 He also raised the question whether it was not intended "to
give a permanence to the basic features of the Constitution." 71
No purpose will be served by trying to impeach the logical tena-
bility of the arguments advanced in the two judgments; nor does it
lead us anywhere to dismiss the observations regarding the legal limits
on the area of amending power as mere obiter dicta—which they un-
doubtedly are. The judgment in Sajjan Singh throws open those fun-
damental questions on whose answer will depend not only the future
role of judicial and legislative processes but also the viability of the legal
order and democratic system in the country. Needless to say that no
realistic and acceptable answer to these questions can be arrived at
merely by logical deductions from the constitutional provisions, much
less from the wordings of articles 13 and 368 alone.
The most obvious consequence of making certain constitutional pro-
visions immutable is the imposition of an absolute disability on the
capacity of the legal order (as distinct from its particular organs) to
create certain types of legal norms. This is a novel doctrine indeed for
any modern state whose emergence was characterised by the release
of the state from the bondage of supra-state institutions like the church,
feudalism and natural law. It is axiomatic that sovereignty is an essen-
tial attribute of a modern state and freedom from all legal restraints
its hallmark. Legal restraints are applied only on the particular organs
of the state under a democratic system. There is nothing in the Indian
Constitution which may go against this. The provision in article
13(2) that the "state shall not make any law..." need not be taken at
its face value. The definition of the term "state" in article 12 leaves
no doubt that the term does not refer to the political and sociological
entity but has been used to impose certain legal restraints on the or-
gans of the state enumerated in article 12. In fact, it would be diffi-
cult to find out an exception in a modern state to the aphorism of Max
Weber that "any legal norm can be created or changed by a proce-
durally correct enactment." 72 No generalisation can be made on the
basis of the immutability imparted to isolated provisions in certain
constitutions. 73 Such provisions in most of the cases are only for gui-
dance and for educational value and do not lay down justiciable legal
restraints of the type the minority opinion in Sajjan Singh would impose.
The dissenting opinion refers to the "permanency in the language"
and "historical fact or sentiment" 74 behind certain provisions in order

70. Id. at 864.

71. Ibid.
72. Quoted in Rienhard Bendix, Max Weber 438 (Anchor Books ed. 1962).
73. See, for example, article 89, French Constitution (1958); article 139, Italian
Constitution (1947); article 9, Turkish Constitution (1961).
74. Supra note 51, at 862. The Indian Law Institute


to make them immutable. Mudholkar, J., also draws a distinction

between the basic features of the Constitution which, according to
him, are intended to be given permanency and "the implemental
and subordinate provisions of the Constitution." 75 It is well
known that a constitution as a whole is supposed to be permanent and
ever-enduring. At least the legal processes have to work within this
assumption. But it is equally true that no constitution has so far been
able to stand the impact of social changes and the pressure of political
processes. The very existence of the constitution would be in jeopardy
if it is sought to be made immune from amendments. What moral
authority will a constitution have to obedience by the people if it can-
not be changed by the people—either acting directly or through their
representatives? Immutability of a constitution or of some parts
thereof will provide a moral justification to those disobeying or trying
to subvert it.
Assuming that certain provisions in the Constitution are or should
be immutable, can this immutability be attained and maintained by
the judical process? The judicial process in some of the countries
has, no doubt, proved to be a valuable instrument of attaining changes
in the constitution to better suit the social needs. But this obviously
cannot do away altogether with the need for formal amendments
because there is a limit beyond which the judicial process cannot be
effective in achieving constitutional changes. These limitations on the
judicial capacity must of necessity be greater in India where the Cons-
titution is so elaborate and detailed that formal amendments will have
to be more frequent than in a brief constitutional document leaving
enough scope for adjustments in course of application. In ultimate
analysis, judicial review of the area of amending power is either un-
necessary or impractical. No amendment is possible in a provision
which has the support of an overwhelming majority while judicial
restraints will be ineffective in those cases where an organised majority
is bent upon amending the constitution. This, however, is not to sug-
gest that the judiciary has absolutely no role to play in this area. The
courts can make sure that an amendment is made after due deliberations
and caution but this power can be adequately exercised by the review
of the amendments on the grounds of forms and procedure. Any-
thing more than that, even if theoretically desirable, will be impossible
to achieve in practice. If the social forces desperately want an amen-
ment—and even if the two-thirds majority in Parliament and a majo-
rity in half of the States is perverted enough to prepetrate a preposte-
rous amendment—judical process, by venturing in the hopeless task of
rescuing the constitution, will only damage its own efficacy besides
jeopardising the future of constitutionalism in the society. Judicial

75, Id at 866. The Indian Law Institute


process can apply the brakes but can never be a substitute for the poli-
tical processes.
There is no known instance of the courts in any country claiming
the power to determine, specially in the absence of a specific constitu-
tional provision to that effect, as to what parts are immutable and which
ones are within the area of amending power. This must compel us to
pause and consider whether the time is ripe in India for the judicial
process to perform this role particularly when the forces that provide
vigour and virility to judicial process in the West have not come up as
yet in India. The main source of strength of judicial process in the
Western countries is the right-consciousness in the people as a result
of which the claims and demands are pressed for satisfaction on the
legal system, to be adjudicated upon ultimately by the courts. In
India, however, the demands are either not articulate enough or are
pressed against the traditional organisations. The legislative process
is eminently suited to and is actually making vigorous efforts to create
and articulate the demands. 76 Until a structure of demands is created,
judicial process can perform a limited role in the society. Besides,
the fundamental rights guaranteed in the Constitution can have a
meaning only after certain social and economic conditions have
emerged. The entire scheme of the Constitution is oriented towards
strengthening the efforts of the legislative process to create these con-
ditions. Too rigid an interpretation of fundamental rights at this
stage will neither promote social justice nor protect individual liberty.
It will, moreover, stifle the normal gowth of constitutional morality
and political processes in the society.
In these politically or emotionally surcharged areas involving
fundamentals regarding the nature of our polity, the judiciary has to
act with due caution, deliberation and rectitude. The social accept-
ance of judicial process as an objective and rational agency oi
social ordering depends on the intrinsic merit of the judicial prono-
uncements and their social consequences. As such, judicial process
occupies an extremely vulnerable position insofar as one false step on
its part may do irreparable damage to it. Legislative process, on the
other hand, dervies its strength from periodical mandate from the people
and therefore can afford to take risks. Any damage done to it is likely
to be made good in course of time by the operation of political processes
and also by its being subject to judicial review and in some cases by


It would be rash to make generalisations regarding the judicial

trends on the basis of a few decisions however much they may call for
76. See Stone, supra note 30. The Indian Law Institute


critical comments. With the commencement of the Constitution, the

judiciary in India was suddenly required to undertake a heavy res-
ponsibility though the limitations under which it had to function were
formidable. The legal system itself under which it has to work was
evolved in an entirely different social context and was desigried for an
altogether different purpose. Another great handicap which inhibits
reception of new ideas is the initial training in and continued allegiance
of the Indian lawyer to the common law traditions of the ninteenth
century. Further, the judiciary was till very recently not associated
with determination of policy questions and even now it is not fully trus-
ted when it decides upon such questions. Despite this unfavourable
climate and despite the outdated tools and techniques which it inherited,
the judiciary has by and large tried to adjust itself to the new role and
has shown social awareness while dealing with diverse problems
coming up before it.

A. Criminal Law

(1) Public Welfare Offences

The growing use of criminal sanctions to create and maintain
certain social and economic conditions has of late given rise to a new
class of offences, described as "public welfare offences." The nature
of acts sought to be penalised and the social interests involved therein
are quite different from those normally covered by criminal law. Not
surprisingly the aptness of the traditional doctrines of criminal law for
the decision of the cases under this new class of offences is often
questioned before the courts. 77 It would indeed be unrealistic
to apply the traditional standards and try to measure the degree of
individual guilt when the act itself is being penalised not so much
for its intrinsic wrong as for the attainment of certain social objectives.
This was evidently the approach of Ayyangar, J., when he rejected the
defence based o n t h e lack of mens rea in State of Maharashtra v. George JB
The accused was charged of being in possession of 34 kilos of gold which
he had not declared as required by a notification issued under the
Foreign Exchange Regulation Act. The defence plea was that the
accused could not have known of the notification published in India
three days before he left Zurich. Ayyanagar, J., speaking for the
majority, felt that in the interpretation of an Act intended to deal with
a grave economic situation, the object of the Act, viz, conservation of
foreign exchange, could not be overlooked. He was not prepared to
read conditions in the Act if that would frustrate its purpose. Subba
Rao, J«J i n hi s dissenting opinion, though agreeing that the pre-
77. See also the section on Mens Rea and Economic Crimes in Sarkar <& Kelkar,
"Criminal Law," infra at p. 40.
78. A.I.R. 1965 S.C. 722. The Indian Law Institute


vention of smuggling and conservation of foreign exchange was a

laudable object, refused to dispense on that ground with the requirement
of mens rea. The judgment of Subba Rao, J., seems to have included
within the concept of mens rea the ignorance of law, which, if excused,
will affect interpretation not only of the welfare offences but of other
offences as well. Besides, is it realistic to insist on the proof of guilty
mind in judging an act which has been declared to be an offence
not for its "criminality" but for the promotion of an essential social
interest ?
Similarly, the Madhya Pradesh High Court in State of Madhya
Pradesh v. Jogilal79 did not reqire a proof of mental element and imposed
maximum fine on the accused who was found to be in possession of 155
maunds of rice without licence as required under the M.P. Foodgrain
Dealers Licensing Order. Krishnan, J., took into account the fact
that the control laws were for public benefit and were intended "to
arrest tendencies which the Legislature considers most dangerous to
public interest." 80 It would really be incongruous to insist on the
requirement of mens rea under a law which aims at the elimination of
well-known evils of hoarding and blackmarketing in foodgrains. The
judgment, however, was not without a dissent. Sen, J., would treat
the possession without licence as a nominal offence as there was no
mens rea.
It is obvious that the rules for the interpretation of penal laws
evolved in the context of law and order offences would hardly
meet the requirements of the welfare offences. Happily, the courts
are in such cases placing greater reliance on the objects and purposes
of the statute involved than on the technical ingredients of criminality.
The same judicial approach is evident in the cases relating to pure food
laws. In Public Prosecutor v. Palanisami,81 a grocer was prosecuted
under the Prevention of Food Adulteration Act for being in possession
of adulterated asafoetida. The trial court acquitted him in the absence
of evidence that the asafoetida was being sold for human consumption.
The Madras High Court set aside the judgment on the ground that the
article in question was intrinsically an article of food and irrespective
of the understanding regarding the purpose for which it was being sold
its sale did constitute a danger to public health.

(2) Punishment
In the sphere of punishment, the trend is towards greater indivi-
dualisation of justice or what Stone describes as "multiplication of
legal categories." 82 The observations of Naik, J., in State of M.P.

79. 1965 (1) Cri, LJ. 43.

80. Id. at 46.
81. 1965 (1) Cri. LJ. 309.
82. Stone, Legal System and Lawyer's Reasonings 852 (1964). The Indian Law Institute


v. Sharman** that "punishment is to be determined not only by the

gravity of the crime but by the nature of the criminal" 8 * are illustrative
of the judicial policy to tailor the punishment to suit the particular offen-
der. The learned Judge further held that punishment is not to be view-
ed as a "mechanicaf retribution provided by the statute divorced from
its social purpose." 85 The purpose of punishment in the Sarman case
was described by Naik, J., as "the regeneration of the individual as an
effective and useful member of the society." 86 Another case exhibit-
ing a similar judicial approach is Jogi Nahak v. Stated where a young
boy of 15 was found guilty of voluntary causing hurt in committing
robbery. The High Court while upholding the conviction reduced the
sentence to the period already undergone as a longer stay of the young
boy in the company of criminals, Das, J., felt, would "turn him to be
a hardened criminal." 88
The judicial decisions also reflect the shift in the emphasis from
"deterrent or retributive aspect of punishment to its reformative
aspect." 89 The Probation of Offenders Act enacted under the influence
of reformatory theory has been liberally interpreted so as to extend
its application to a larger number of cases. The Supreme Court in
Rattan Lai v. State of Punjab^ extended the benefit of the Act even to
those cases where the Act was enforced after the conviction of the accus-
ed by the trial court but before the disposal of the appeal. There is
yet another direction in which the Supreme Court extended the appli-
cation of the Act although it had to depart from its normal practice in
order to do so. The accused in Rattan Lai case had not made a plea
for the application of the Probation of Offenders Act until the appeal to
the sessions court and the revision petition to the High Court had been
disposed of. It was only after the dismissal of both that he filed a peti-
tion before the High Court requesting that an order under the Act
be passed in the case. After this petition was rejected, the accused
approached the Supreme Court by its special leave. Despite its prac-
tice of not allowing a party to raise a point for the first time before it
and despite the failure of the accused to have brought the provisions
of the Act to the notice of the lower courts, the Supreme Court allowed
the appeal and directed that an order under the Act be passed.
It is unfortunately not possible to do away altogether with deter-
rent punishment and cases do come up in which the reformatory theory
will be found to be inadequate. Deterrent punishment has consequent-

83. 1965 (1) Cri. LJ. 5U

84. Ibid.
85. Id. at 512.
86. Id. at 511.
87. 1965 (2) Cri. L.J. 51.
88. Id. at 53.
89. Supra note 83, at 511.
90. 1965(1) Cri. LJ. 560. The Indian Law Institute


ly b e e n a w a r d e d w h e r e t h e C o u r t found the offence to have b e e n pre-

m e d i a t e d a n d as showing u t t e r disregard for h u m a n life 9 1 or w h e r e the
court felt t h a t , " i n o r d e r to suppress.,.fantastic criminal conduct," 9 2
it was necessary to impose t h e most severe penalty. Besides, in some
of t h e cases regarding t h e economic offences, t h e courts have followed
t h e d e t e r r e n t theory. I n State of Madhya Pradesh v. Jogilal?z Newaskar,
J . , in imposing t h e m a x i m u m fine for t h e b r e a c h of M . P . Foodgrain
Dealers Licensing O r d e r , observed t h a t " t h e sentence a w a r d e d ought
to h a v e a d e t e r r e n t effect a n d should prevent others from emulating
t h e e x a m p l e of t h e guilty person w i t h i m p u n i t y . " 9 4

B. Contract

T h e r e c e n t g r o w t h of monopolies in the public sector, though an

economic imperative in t h e p r e s e n t situation, m a y in the absence of
favourable j u d i c i a l policy cause hardships to a n individual who has
to enter into a g r e e m e n t w i t h such a n organisation. T o a d h e r e to the
concept of freedom of contract would u n d e r these circumstances b e
simply unfair particularly w h e n the terms of the a g r e e m e n t have also
b e e n standardised u n d e r statutory authority or otherwise. T h e consi-
deration of justice has influenced t h e courts to give to the terms of such
a g r e e m e n t s a construction favourable to t h e weaker p a r t y . I n Life
Insurance Corpn. v. Paravathavardhini^5 t h e M a d r a s H i g h C o u r t required
from t h e Corporation a strict proof of misrepresentation w h e n the latter
w a n t e d to r e p u d i a t e a policy after it h a d b e c o m e a claim. T h e follow-
ing observations in t h e j u d g m e n t a r e significant:

The business of life insurance has been nationalised and in the matter of its
business activities, the Corporation has a great responsibility to the public.
Whenever the claims are repudiated and disputes come to court of law,
the Life Insurance Corporation should not put up fight on the pattern
of ordinary litigants. But it must be on a higher plane so as to inspire
confidence in the public 96

This, besides b e i n g a welcome d e p a r t u r e in the interest of justice from

the principle of formal equality b e t w e e n parties, illustrates the use of
the law of contract to aid a n d p r o m o t e t h e social a n d economic
policies in p u r s u a n c e of w h i c h t h e Corporation was set u p . Similarly
in Shiv Nath v. Union of India®7 t h e S u p r e m e C o u r t imposed on the
railways t h e d u t y to take reasonable c a r e of the goods even though the

91. In re Valuchami Thevar, 1965 (1) Cri. LJ. 184.

92. Masalti v. State o\ Uttar Pradesh, 1965 (1) Cri. L J . 226, 233
93. Supra note 79.
94. Id. at 48.
95. A.I.R. 1965 Mad. 357.
96. Id. at 360.
97. A.I.R. 1965 S.C. 1667. The Indian Law Institute


legislation provided for liability only in case of misconduct. The consi-

gnment in this case was lost in the communal disturbances but the
railway administration was held liable for the loss even in the absence
of a definite proof of misconduct on the part of its employees. Evidently
the courts expect these monopolies in the public sector to maintain
a high standard of service to the people.
In Indian Airlines v. Madhuri Chowdhuri^ however, the Court did not
find itself in a position to give relief against the appellant-Corporation
becauseof the exemption clause in the contract for air carriage. The posi-
tion regarding the contracts for air carriage is not very happy in India.
An air passenger has hardly any bargaining power inasmuch as he has
to sign on the dotted line. His freedom of contract is empty and formal.
To permit, under these circumstances, the stronger party to contract
out of liability in case of loss or injury to the weaker paty is neither just
nor fair. Perhaps the courts are helpless in the matter because
the Government has not taken the necessary steps to proscribe exemp-
tion clauses from the contracts for air carriage. 99 The American courts
have, however, evolved, even in the absence of legislation, a principle
that a common carrier cannot validly exempt itself by contract from
liability for negligence. 100

C. Industrial Relations

The judicial task of balancing the conflicting interests in the area

of industrial relations proves to be an extremely difficult one in view of
the sharply divided and vociferously pressed rival claims. The problems
arising here have, besides the social and economic implications, political
overtones. The situation becomes further complicated by the number
of "isms" that are pressed into service to solve the problems. The
courts have avoided dogmatic approach in adjudicating the labour-ma-
nagement conflicts and have instead adopted a pragmatic approach. 101
While conceding to the labour their rightful claim to wage-rise and
security of tenure, the courts have not overlooked the economic interests
of the society. The consideration of larger social interest prevented
Hidayatullah, J., from accepting the plea for wage-rise in All India
R.B.E. Assocn. v. Reserve Bank of India102- although he was sympathetic
to the demand for rise to the level of minimum need-based wage. He
specifically referred to the likely effect on the cost of production and
consequential decline in exports as some of the factors to be weighed
against the interest of the labour.

98. Supra note 4\.

99. See supra at xvi.
100. See Friedmann, Law in a Changing Society 104 (1959).
101. See Anand Prakash, "Labour Law," infra at p. 93-96.
102. (1965) II L.LJ. 175. The Indian Law Institute


Similarly, the interest in the security of tenure which alone can

ensure an efficient labour force has been balanced by the Supreme Court
with the interest in the maintenance of discipline in theindustry. Need-
less to add that both are equally important for economic progress. In
Dunlop Rubber Co. (India) Ltd. v. Their Workmen™ and in Workmen of Moti'
pur Sugar Factory v. Motipur Sugar Factory ,1(H the Supreme Gourt upheld the
dismissal of a number of employees since the charge of misconduct and
indiscipline was clearly made out against the concerned workmen. But
the Supreme Gourt would not countenance victimisation of workmen
or perpetration of unfair labour practise. The Court gave in Hind
Constrn. & Engng. Co. v. Their Workmen105 due relief to the workmen
when the employers claimed a final right to determine the quantum of
punishment once misconduct on the part of workmen was proved.
Similarly in Calcutta Dock Labour Board v. Jaffer Imam,10Q the Court set
aside the dismissal of the workmen even when it was based on the de-
tention of the workmen under the Preventive Detention Act. Gagendra-
gadkar, C.J., held that the detention would not be a sufficient justifica-
tion for the termination of services since the detention under the Act
is permissible on mere suspicion.

D. Taxation: Augmentation of State Resources

The survey of the cases in this area reveals adequate judicial aware-
ness of the need to augment the financial resources of the state. This
is most welcome at a time when the future of the nation depends to a
great extent on its ability to pool and utilise all the available resources
for economic development. The individual rights and group interests
have not been permitted to unduly interfere with the realisation of state
revenues. In Jsfavnit Lai v. I.T. App. Commr.^ the Supreme Court
upheld the validity of the law which gave for the purposes of taxation
an extended meaning to the term "dividend" so as to include the loan
advanced by the company to a shareholder. The plea made on the
basis of constitutional guarantee of freedom of trade was rejected by
the Court. This will go a long way to curb the growing practice of
giving benefits to the shareholders out of capitalised profits with a view
to evade the due tax on the income of the company. Rejecting the
tests evolved in earlier cases to determine income character, Gajendra-
gadkar, C.J., held that anything was income if it could rationally be
regarded so in the economically beneficial sense of an increase in wealth,
money, resources or enrichment. This flexible approach is particularly
suited to meet the ingenious devices being used to evade taxation.
103. (1965) II L.LJ. 426.
104. (1965) II L.L.J. 162.
105. (1965) I L.LJ. 462.
106. (1965) II L.L.J. 112.
107. A.I.R. 1965 S.C. 1375. The Indian Law Institute


I t was the group interest t h a t was p l e a d e d in Banarasi Dass v. Wealth

Tax Officer1*** to resist t h e levy of w e a l t h t a x . T h e Supreme Court
rejected the plea m a d e , o n the basis of a literal interpretation of the
constitutional provision, for such an exemption. As it is, the H i n d u
undivided family enjoys a n u m b e r of tax privileges 1 0 9 a n d no social
interest is p r o m o t e d by a d d i n g o n e m o r e to it particularly w h e n t h e
institution has hardly any significant role to play in t h e n e w o r d e r of
T h e anxiety to ensure t h e availability of a d e q u a t e resources to the
state is t h e only possible basis on w h i c h t h e decision of the S u p r e m e
Court in Builder Supply Corpn. v. Union of India110 can b e explained.
T h e Court h e l d t h a t the common law doctrine of priority of crown
debts is applicable in I n d i a even after t h e c o m m e n c e m e n t of the Consti-
tution. T h e question of the applicability in I n d i a of this doctrine was
discussed mainly as resting on t h e d e t e r m i n a t i o n of the legal issue viz,
w h e t h e r it was a " l a w in force" within t h e m e a n i n g of article 372 a n d ,
if so, w h e t h e r it h a d not b e e n superseded b y legislation. I n one passage,
however, Gajendragadkar, C.J., referred to the "basic justification"
for the claim for priority m a d e by t h e S t a t e . H e h e l d t h a t :

It is essential that as a Sovereign, the State should be able to discharge its

primary governmental functions efficiently, it must be in possession of
necessary funds, and this consideration emphasises the necessity and the
wisdom of conceding to the state the right to claim priority in respect of
its tax dues.i11
" T a x a t i o n , as t h e source of the public r e v e n u e " is universally r e -
garded as " a foundation of all political i n s t i t u t i o n s / ' 1 1 2 I n I n d i a ,
where the State has u n d e r t a k e n a n ambitious p r o g r a m m e of economic
development, this also involves the social interest in economic progress.
T h e priority a c c o r d e d to tax dues over t h e rights of a creditor is not
only justifiable b u t exceedingly necessary.
I n Patnaik & Co. v. State of Orissallz the transaction sought to b e
taxed by the state as a sale fell o n t h e borderline of a sale a n d a contract
of work and labour. By applying t h e established principles, it m a y
have as well b e e n possible to hold it a contract of work a n d labour,
as actually Shah, J . , did in his dissenting j u d g m e n t . But this would
have m e a n t t h a t sales tax could not h a v e b e e n levied o n it. This might
have influenced the j u d g m e n t of Sikri, J . , w h o , speaking for the majority,
held it to b e a sale a n d therefore liable to sales tax. I t is not c e r t a i n
108. A.I.R. 1965 S.C. 1378.
109. See Gulati and Gulati, Hindu Joint Family. A Study of its Tax Privileges
110. A.I.R. 1965 S.C. 1061.
111. Id. at 1069.
112. Stone, Social Dimensions of Law and Justice 423 (1966).
113. A.I.R. 1965 S.C 1665. For facts, see Avtar Singh, "Mercantile Law," infra
at p. 158, The Indian Law Institute


if the transaction would have been deemed a sale, had the case involved
the rights and obligations of the parties to a contract rather than the
right of the state to levy tax.

E. Property Relations

Property relationship is the foremost of the constituent elements

of the social order and as such makes a deep impact on other social
arrangements. The scheme of property relations arrived at in India
during the period preceding Independence was a result of historical
accidents. It acquired legitimacy not because of its being an outcome
of the Indian philosophy of life but because it suited the interests of the
rulers as well as the elite which itself was a creation of the ideas imported
from the West. A revision of the erstwhile pattern of property relations
became inevitable in view of the revolution of expectations unleashed
in the post-World War years. The specific measures taken by the
government as part of the comprehensive plan for socio-economic deve-
lopment have, however, met with difficulties in course of their
review by the courts. Despite the three amendments necessitated,
according to the government, in order to spell out more clearly the
constitutional vision regarding property relations, the courts and the
legislators do not seem to have come near the other's view about the
role of property in the society. Hence the feeling that the courts are
expanding the scope of the individual right to property notwithstanding
the amendments vouchsafing a wider power of social control over private
property. During the year under survey, the Supreme Court did en-
large the scope of the right to property :

(1) In Jeejeebhoy v. Asst. Collector* Thana11^ the Supreme Court

held that the requirement to compensate on the just equivalent
basis as laid down in Bella Banerjee115 would apply even to a pre-
Constitution law enacted under the Government of India Act,
1935. The exemption granted in clause (5) (a) to "existing law"
will not be available as the Act of 1935 also required the law to
make a provision for compensation.
(2) In State of Madras v. D. Namasivaya11® the Bella Banerjee inter-
pretation of compensation was extended to a law passed in 1953
even though the property was acquired after the adequacy of com-
pensation was made non-justiciable by the Fourth Amendment.
The Supreme Court took the view that the validity of such a law
is to be examined in the light of the Constitution as it stood on the
date of the enactment of the impugned law.

114. A.I.R. 1965 S.C. 1096.

115. State of W.B. v. Mrs. Bella Banerjee, A.I.R. 1954 S.C. 170.
116. A.I.R. 1965 S.C. 190. The Indian Law Institute


(3) The exemption from the operation of fundamental rights

granted under article 31A to the laws acquiring "estates" has been
confined by Vajravelu v. Sp. Dy, Collector™ only to such laws as are
intended for agrarian reforms.
(4) The Supreme Court in the Vajravelu case also laid down that
notwithstanding the adequacy of compensation having been
made non-justiciable by the Fourth Amendment, the courts have
the power to examine whether the principles for determining com-
pensation are relevant to the value of the property.
(5) As if this were not enough, the views of Hidayatullah and
Mudholkar, JJ., in Sajjan Singh v. State of Rajasthan118 would
freeze this position and would not permit amendments in the re-
levant constitutional provisions.

Most of the difficulties in this area stem from the ideological ambi-
valence in the Constitution which provides little guidance as regards
the concept of property it wanted to protect. The Constitution, it is
well known, is a result of compromises between various forces, interests
and opinions119 and article 31 is an unfortunate outcome of this process.
It is difficult to believe that article 31, as it stood in 1950, was en-
acted by the same body which laid down the Directive Principles of
State Policy. But there were forces which wanted no interference
with the erstwhile arrangements regarding private property. 120 Of
course, the urge for land reforms could not be overlooked and the exemp-
tion in clause (4) to the laws passed during the specified period was
meant to protect the pending or contemplated land legislation. Even
the constitutional amendments did not aim at revising the basic
principle embodied in article 31(2) but only carved out areas and pro-
vided for their exemption from the main clause. This reluctance to
touch the basic framework of article 31 intended to protect status quo
has contributed to the climate in which it was found possible by the
courts 1o build up further on the principles embodied therein and to cut
down the application of the exemption clauses to a narrow area.
Despite the lack of ideological clarity in the Constitution, it may
still have been possible for the courts to evolve out of the constitutional
provisions a concept of property relations more in keeping with the
objectives of our social growth. But there is an inbuilt pro-property
bias in our judicial system introduced initially by Lord Cornwallis under
the inspiration of the Whig philosophy of government. The best safe-
guard against the administrative maladies and misuse of power,

117. A.I.R. 1965 S.C. 1017.

118. A.I.R. 1965 S.C. 845.
119. See inpassim Austin, The Indian Constitution: Cornerstone of a Nation (1966)
120. Id. at 87-99. The Indian Law Institute


according to this view, was the introduction of private property rights

in land and a Western system of law to uphold them. 121 The function
of the government under this system was to be "no more than the im-
partial administration of fixed and equal laws for the maintenance of
the private property rights." 1 2 2 A legal system which has emerged
out of this notion of law, property and judicial administration can hardly
be expected to play a creative role in the reconstruction of property
relations which will inevitably affect the vested property interests.
It is again the absence of ideological clarity in the Constitution
which has prevented determination of priorities and preferences amongst
the various rights guaranteed in the Constitution. Evidently the judi-
ciary too was not very keen to evolve any scheme of ''preferred freedoms"
in which the right to property will necessarily have to receive a low
valuation compared to the rights like personal liberty and freedom of
speech so vital for the functioning of democracy. This has helped in a
disproportionately high valuing of property rights. The democratic
opinion in favour of the sanctity of fundamental rights has been deli-
berately marshalled to strengthen the right to property which of all
the rights is most vigorously pressed for enforcement.
In the interpretation of article 31, the judicial attitude has been
dominated by what has been termed as "verbal magic" 123 as distinct
from legal functionalism. The gloss provided by the Supreme Court
to the word "compensation" particularly illustrates the policy of treat-
ing the words used in a statute or a judgment "not as vehicles for the
expression of functional legal principles and procedures, but as sacrosanct
formulae whose every comma is mysteriously law-charged...." 1 2 4
Otherwise there would be no justification for treating, as the Supreme
Court has done, "compensation" as a closed category with its meaning
finally and conclusively determined in the cryptic judgment of Bella
Banerjee. Further, this master category is applied in every case irres-
pective of the purpose or context of the impugned Act. The word
"compensation" would, according to the Supreme Court, carry the
same fixed meaning whether it is used in the Act of 1935 or in article
31 of the Constitution. Even the Fourth Amendment making the
adequacy of compensation non-justiciable would make no difference in
the meaning of the term. The only effect of the amendment, according
to Subba Rao, J., in the Vajravelu case, would be that the courts will
now have the power to examine, not the adequacy of the compensation
but, the principle laid down by the impugned law to determine compen-
sation with a view to find out whether the principle is relevant to the
property acquired or to the value of the property at or about the time of its

121. Stokes, English Utilitarians and India 5 (1959).

122. Id. at 6.
123. Blackshield, supra note 66, at 142.
124. Ibid, The Indian Law Institute


acquisition. One might question as to how can the "relevance" of

the principle laid down or of the amount fixed be decided upon without
going into the question of its adequacy unless the Court meant that "ade-
quate" means more than "just equivalent." The Court has insisted
that the principle should be relevant to the property and its value.
If this be so how can a principle "relevant" to the value yield a result
which is different from "adequate." The only choice it seems to be
leaving to the legislature is to determine the method of calculating
"compensation" and even here the court will have the power to exa-
mine whether the method chosen is relevant to the value of the property.
This does not take us very far from where we were after the Bella Banerjee
case and before the Fourth Amendment.
The judicial interpretation of the provisions relating to property
rights may have been good logic but makes hardly any contribution
towards evolving a scheme of property relations valid in the emerging
pattern of society. The standards of legitimacy evolved in a laissez
faire society which had attained within itself an economic equilibrium
cannot hold good for a society yet struggling to fulfil the minimum
of the material needs of its people. It is not a question of social philo-
sophy but of sheer survival. In the present stage of development, no
plan for providing the minimum needs of the people or for economic
growth can be implemented without disturbing the erstwhile balance
of property relations. This would be an economic impossibility if
the state is required to compensate on the basis of a principle "relevant"
to the value of the property every time it acquires private property.
The abolition of Zamindari without payment of compensation at the
market rate amply demonstrates it. The judiciary did offer some
resistance in the beginning to the interference with the property rights
of the Zamindars. Since the First Amendment, however, the courts
seem to have reconciled themselves to the vital social need of resource
distribution in the rural sector. The decision of the Supreme Court
this year in Ranjit Singh v. State of Punjab12** is further indicative of this
judicial trend. In this case, the Supreme Court gave a liberal inter-
pretation to the term "estate" so as to extend the protection of article
31A to a law which took away without payment of compensation land
commonly owned by the proprietors and reserved it for the Panchayat
to be used for certain community purposes by proprietors and non-
proprietors alike. The judgment shows full awarness of the problems
of rural development, which, according to Hidayatullah, J., "today
envisages not only equitable distribution of land ... but envisages also
the raising of economic standards and bettering rural health and
social conditions." 126 Unfortunately, in dealing with the numerous
problems arising due to the pressure of urbanisation and industrialisa-

125. A..I.R. 1965 S.C. 632.

126. Id. at 638. The Indian Law Institute


tion, the courts have not adopted a similar approach. The judicial
notion regarding property in the urban sector seems to be still based on
the claims of the individual without regard to its social utility.
The comments made on judicial decisions relating to property
rights need not lead us to the conclusion that a reconstruction of the
property relations is not possible within the framework of the present
Constitution. No doubt, there are certain inbuilt problems. The task
has been made more difficult by "willing to hurt but afraid to strike"
attitude adopted in the original article 31 as also in the amendments.
It would therefore be unfair to pass the entire blame to the judiciary
which has been playing safe and adopted the techniques of logic and
legalism in order not to undertake the responsibility of disturbing the
status quo in the property relations. But it is the judicial process alone
which can evolve a solution out of this stalemate. The need of a theory
of social justice which will provide a workable standard to the courts
to review the laws aimed at the readjustment of property relations
cannot be over-emphasised. The policy of the Supreme Court so far
has been to evolve this standard from within the fundamental rights. If
the role of law is not to protect the status quo but to accelerate social
change, no rigid judicial formula can do justice in the present social
situation. The factors like objectives of social growth, the purpose
for which the property is being acquired and the position of the person
being deprived are to be taken into account in order to evolve the theory
which may be fair not only to the person deprived of property but also
to the society as a whole. By doing so the judiciary will have
indicated an orderly and democratic path for the process of social
reconstruction under way in India.
The role of judicial process in regulating property relations is a
part ofthe wider process of action and reaction between social change
and legal development. .The rapidity of this change in India and
the enormity of the problems sought to be tackled by law pose a
challenge for the judicial process. If the judiciary has at times not
proved equal to the task, it is a measure ofthe failure ofthe legal pro-
fession and more so of the jurists to offer meaningful alternatives out
of which functional choices could be made. The Indian Law Institute