Case Laws

Ram Jawaya Kapur v. State of Punjab

Facts
1. This is a petition under article 32 of the Constitution, preferred by six persons, who
purport to carry on the business of preparing, printing publishing and selling text
books for different classes in the schools of Punjab, particularly for the primary and
middle classes, under the name and style "Uttar Chand Kapur & Sons." It is alleged
that the Education Department of the Punjab Government has in pursuance of their
so-called policy of nationalisation of text books, issued a series of notifications since
1950 regarding the printing, publication and sale of these books which have not only
placed unwarrantable restrictions upon the rights of the petitioners to carry on their
business but have practically ousted them and other fellow-traders from the business
altogether. It is said that no restrictions could be imposed upon the petitioners' right to
carry on the trade which is guaranteed under article 19(1)(g) of the Constitution by
mere executive orders without proper legislation and that the legislation, if any, must
conform to the requirements of clause (6) of article 19 of the Constitution.
Accordingly, the petitioners pray for writs in the nature of mandamus directing the
Punjab Government to withdraw the notifications which have affected their rights.
2. In the State of Punjab, all recognised schools have got to follow the course of studies
approved by the Education Department of the Government and the use, by the pupils,
of the text books prescribed or authorised by the Department is a condition precedent
to the granting of recognition to a school. For a long period of time prior to 1950, the
method adopted by the Government for selection and approval of text books for
recognised schools was commonly known as the alternative method and the procedure
followed was shortly this: Books on relevant subjects, in accordance with the
principles laid down by the Education Department, were prepared by the publishers
with their own money and under their own arrangements and they were submitted for
approval of the Government. The Education Department after proper scrutiny selected
books numbering between 3 and 10 or even more on each subject as alternative text
books, leaving it to the discretion of the Head Masters of the different schools, to
select any one of the alternative books on particular subject out of the approved list.
The Government fixed the prices as well as the size and contents of the books and
when these things were done it was left to the publishers to print, publish and sell the
books to the pupils of different schools according to the choice made by their
respective Head Masters. Authors, who were not publishers, could also submit books
for approval and if any of their books were approved, they had to make arrangements
for publishing the same and usually they used to select some one of the publishers
already on the line to do the work.
3. This procedure, which was in vogue since 1905, was altered in material particulars on
and from May 1950. By certain resolutions of the Government passed on or about that
time, the whole of the territory of Punjab, as it remained in the Indian Union after
partition, was divided into three Zones. The text books on certain subjects like
agriculture, history, social studies, etc., for all the zones were prepared and published
by the Government without inviting them from the publishers. With respect to the
remaining subjects, offers were still invited from "publishers and authors" but the
alternative system was given up and only one text book on each subject for each class
in a particular zone was selected. Another change introduced at this time was that the
 Government charged, as royalty, 5% on the sale price of all the approved text books.
The result therefore was that the Government at this time practically took upon
themselves the monopoly of publishing the text books on some of the subjects and
with regard to the rest also, they reserved for themselves a certain royalty upon the
sale proceeds.
4. Changes of a far more drastic character however were introduced in the year 1952 by
a notification of the Education Department issued on the 9th of August, 1952 and it is
against this notification that the complaints of the petitioners are mainly directed. This
notification omitted the word "publishers" altogether and invited only the "authors
and others" to submit books for approval by the Government. These "authors and
others, " whose books were selected, had to enter into agreements in the form
prescribed by the Government and the principal terms of the agreement were that the
copyright in these books would vest absolutely in the Government and the "authors
and others" would only get a royalty at the rate of 5% on the sale of the text books at
the price or prices specified in the list. Thus the publishing, printing and selling of the
books were taken by the Government exclusively in their own hands and the private
publishers were altogether ousted from this business. The 5% royalty, in substance,
represents the price for the sale of the copyright and it is paid to an author or any other
person who, not being the author, is the owner of the copyright and is hence
competent in law to transfer the same of the Government. It is against these
notifications of 1950 and 1952 that the present petition under article 32 of the
Constitution is directed and the petitioners pray for withdrawal of these notifications
on the ground that they contravene the fundamental rights of the petitioners
guaranteed under the Constitution.
Issues
1. “The executive Government of a State is wholly incompetent, without any legislative
sanction, to engage in any trade or business activity.” Is this statement true?
2. “Assuming that the State can create a monopoly in its favour in respect of a particular
trade or business, it cannot be done not by any executive act but by means of a proper
legislation which should conform to the requirements of Article 19(6) of the
Constitution.” Is this statement true?
Holding
1. (Read Articles 73 and 162)
2. Article 73(1) reads as follows:

“Extent of executive power of the Union

Subject to the provisions of this Constitution, the executive power of the Union shall
extend
(a) to the matters with respect to which Parliament has power to make laws; and
(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the
government of India by virtue of any treaty on agreement: Provided that the
executive power referred to in sub clause (a) shall not, save as expressly provided
in this constitution or in any law made by Parliament, extend in any State to
matters with respect in which the Legislature of the State has also power to make
laws”

3. Article 162 reads as follows:

 “Extent of executive power of State
Subject to the provisions of this Constitution, the executive power of a State shall
extend to the matters with respect to which the Legislature of the State has power to
make laws.
Provided that in any matter with respect to which the Legislature of a State and
Parliament have power to make laws, the executive power of the State shall be subject
to, and limited by, the executive power expressly conferred by the Constitution or by
any law made by Parliament upon the Union or authorities thereof Council of
Ministers.”

4. Under Article 162 the executive authority of the State is executive in respect to
matters enumerated in List II of Seventh Schedule. The authority also extends to the
Concurrent List except as provided in the Constitution itself or in any law passed by
the Parliament. Similarly, article 73 provides that the executive powers of the Union
shall extend to matters with respect to which the Parliament has power to make laws
and to the exercise of such rights, authority and jurisdiction as are exercisable by the
Government of India by virtue of any treaty or any agreement. The proviso engrafted
on clause (1) further lays down that although with regard to the matters in the
Concurrent List the executive authority shall be ordinarily left to be State it would be
open to the Parliament to provide that in exceptional cases the executive power of the
Union shall extend to these matters also. Neither of these articles contains any
definition as to what the executive function is and what activities would legitimately
come within its scope. They are concerned primarily with the distribution of the
executive power between the Union on the one hand and the States on the other. They
do not mean, that it is only when the Parliament or the State Legislature has legislated
on certain items appertaining to their respective lists that the Union or the State
executive, as the case may be, can proceed to function in respect to them. On the other
hand, the language of article 162 clearly indicates that the powers of the State
executive do extend to matters upon which the state Legislature is competent to
legislate and are not confined to matters over which legislation has been passed
already. The same principle underlies article 73 of the Constitution.
State of Madhya Pradesh v. Thakur Bharat Singh
Facts
1. On April 24, 1963, the State of Madhya Pradesh made an order in exercise of powers
conferred by Section 3 of the Madhya Pradesh Public Security Act, 1959 directing the
respondent Thakur Bharat Singh-
(i) that he shall not be in any place in the Raipur district;
(ii) that he shall reside in the municipal limits of Jhabua town, district Jhabua,
Madhya Pradesh, and shall proceed there immediately on the receipt of
this order; and
(iii) that he shall notify his movements and report himself personally every day
at 8 a.m. and 8 p.m. to the Police Station Officer, Jhabua."
2. The respondent moved a petition in the High Court of Madhya Pradesh under Arts.
226 & 227 of the Constitution challenging the order on the grounds, inter alia, that
sections 3 & 6 and other provisions of the Act which authorised imposition of
restrictions on movements and actions of person were ultra vires in that they infringed
the fundamental freedoms guaranteed under Article 19(1)(d) & (e) of the Constitution
of India and that the order was "discriminatory, illegal and violated principles of
natural justice.
3. The relevant provisions of the Act may be briefly set out. Section 3 of the Act
provides:
(i) “If the State Government or a District Magistrate is satisfied with respect to
any person that he is acting or is likely to act in a manner prejudicial to the
security of the State or to the maintenance of public order, and that, in order to
prevent him from so acting it is necessary in the interests of the general public
to make an order under this section, the State Government or the District
Magistrate, as the case may be, may make an order-
a. directing that, except in so far as he may be permitted by the provisions of
the order, or by such authority or persons as may be specified therein, he
shall not be in any such area or place in Madhya Pradesh as may be
specified in the order;
b. requiring him to reside or remain in such place or within such area in
Madhya Pradesh as may be specified in the order and if he is not already
there to proceed to that place or area within such time as may be specified
in the order;
c. requiring him to notify his movements or to report himself or both in such
manner, at such times and to such authority or person, as may be specified
in the order;
d. imposing upon him such restrictions as may be specified in the order, in
respect of his association or communication with such persons as may be
mentioned in the order;
e. prohibiting or restricting the possession or use by him of any such article
or articles as may be specified in the order.
(ii) …
(iii) …
(iv) If any person is found in any area or place in contravention of a restriction
order or fails to leave any area or place in accordance with the requirements of
 such an order, then, without prejudice to the provisions of sub-section (5), he
may be removed from such area or place by any police officer.
(v) If any person contravenes the provisions of any restriction order, he shall be
punishable with imprisonment for a term which may extent to one year, or
with fine which may extend to one thousand rupees, or with both."

Issues
1. Whether Section 3(1)(b) of the said Act contravenes the fundamental rights of the
respondent?
2. Are the restrictions imposed by the said Act valid due to the prevalence of
emergency?

Holding
1. The Act does not give any opportunity to the person concerned of being heard before
the place where he is to reside or remain in is selected. The place selected may be one
in which the person concerned may have no residential accommodation, and no
means of subsistence. It may not be possible for the person concerned to honestly
secure the means of subsistence in the place selected. Sub-section 3(1)(b) of the Act
does not indicate the extent of the place or the area, its distance from the residence of
the person concerned and whether it may be habitated or inhabitated. Further, the
clause does not provide that the person directed to be removed shall be provided with
residence, maintenance or means of livelihood in the place selected. Therefore, clause
(b) authorised the imposition of unreasonable restrictions as it required any person to
reside or remain in such place or within such area in Madhya Pradesh as may be
specified in the order.
2. The Act was brought into force before the declaration of the emergency by the
President. Section 3(1)(b) was therefore void when enacted and was not revived when
the proclamation of emergency was made by the President. Article 358 which
suspends the provisions of Article 19 during an emergency declared by the President
under Article 352 is in terms prospective: after the proclamation of emergency
nothing in Article 19 restricts the power of the State to make laws or to take any
executive action which the State but for the provisions contained in Part III was
competent to make or take. Article 358 however does not operate to validate a
legislative provision which was invalid because of the constitutional inhibition before
the proclamation of emergency.
Asif Hameed & Ors. v. State of Jammu & Kashmir
Facts
1. The selection to the MBBS/BDS course for the session 1988-89 in the two
Government medical colleges of Jammu and Kashmir has been set aside in a bunch of
writ petitions by a Division Bench of Jammu and Kashmir High Court on the
following grounds:
a. The selection was not held in accordance with the directions of the said court
given in an earlier case. The High Court directed the State Government to
entrust the selection process of the two medical colleges to a statutory
independent body and till that was done the State Government should entrust
the process of selection to such a body which was to be free from executive
influence. No statutory body was constituted and hence according to the High
Court the selection made by any other authority was in violation of the
directions of the High Court and as such bad in law.
b. The selection was not held by the competent authority as constituted by the
order of the High Court. Under the said order, the competent authority was to
consist of three persons. According to the High Court all the three persons
never met and all of them never scrutinised the cases of the candidates who
appeared in the entrance examination and viva voce and as such the selection
was invalid.
Issue
1. Whether the High Court has the competence to issue directions to the State
Government to constitute a "Statutory Body" for selections to medical colleges and
whether the selection made by any other authority is invalid on that ground alone?

Holding
1. Although the doctrine of separation of powers has not been recognised under the
Constitution in its absolute rigidity, the Constitution makers have meticulously
defined the functions of various organs of the State. Legislature, executive and
judiciary have to function within their own spheres demarcated under the
Constitution. No organ can usurp the functions assigned to another. The Constitution
trusts to the judgment of these organs to function and exercise their discretion by
strictly following the procedure prescribed therein.
2. When a State action is challenged, the function of the court is to examine the action in
accordance with law and to determine whether the legislature or the executive has
acted within the powers and functions assigned under the Constitution and if not, the
court must strike-down the action. While doing so the court must remain within its
self-imposed limits. The court sits in judgment on the action of a coordinate branch of
the Government. While exercising power of judicial review of administrative action,
the court is not an appellate authority. The Constitution does not permit the court to
direct or advise the executive in matters of policy or to sermonize qua any matter
which under the Constitution lies within the sphere of legislature or executive,
provided these authorities do not transgress their constitutional limits or statutory
powers.
3. The legislature is supreme in its own sphere under the constitution. It is solely for the
legislature to consider as to when and in respect of what subject matter, the laws are
to be enacted. No directions in this regard can be issued to the legislature by the
courts. It is entirely a matter for the executive branch of the Government to decide
whether or not to introduce any particular legislation. Of course, any member of the
legislature can also introduce legislation but the court certainly cannot mandate the
 executive or any member of the legislature to initiate legislation, howsoever necessary
or desirable the court may consider it to be. That is not a matter which is within the
sphere of the functions and duties allocated to the judiciary under the Constitution
4. Moreover, the court cannot even indirectly require the executive to introduce a
particular legislation or the legislature to pass it or assume to itself a supervisory role
over the law-making activities of the executive.
5. Directions of the court are mere suggestions and are not enforceable against the state.
In Re Delhi Laws Act Case
Facts
This is a reference made by the President of India under article 143 of the Constitution asking
the Court's opinion on the three questions submitted for its consideration and report. The
three questions are as follows:-
(i) Was section 7 of the Delhi Laws Act, 1912, or any of the provisions thereof and in
what particular or particulars or to what extent ultra vires the Legislature which
passed the said Act?

[Section 7 of the Delhi Laws Act, mentioned in the question, runs as follows- “The
Provincial Government may, by notification in the official gazette, extend with
such restrictions and modifications as it thinks fit to the Province of Delhi or any
part thereof, any enactment which is in force in any part of British India at the date
of such notification."]

(ii) Was the Ajmer-Merwara (Extension of Laws) Act, 1947, or any of the provisions
thereof and in what particular or particulars or to what extent ultra vires the
Legislature which passed the said Act?

[Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, runs as follows-

"Central Government may, by notification in the official gazette, extend to the
Province of Ajmer-Merwara with such restrictions and modifications as it thinks fit
any enactment which is in force in any other Province at the date of such
notification."]

(iii) Is section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof
and in what particular or particulars or to what extent ultra vires the Parliament?

[Section 2 of the Part C States (Laws) Act, 1950, runs as follows-

"The Central Government may, by notification in the Official Gazette, extend to
any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to
any part of such State, with such restrictions and modifications as it thinks fit, any
enactment which is in force in a part A State at the date of the notification and
provision may be made in any enactment so extended for the repeal or amendment
of any corresponding law (other than a Central Act) which is for the time being
applicable to that Part C State.]

Issues
1. Can a legislature which is sovereign or has plenary powers within the field assigned to
it, delegate its legislative
2. functions to an executive authority or to another agency, and, if so, to what extent it
can do so?

Holding
1. In dealing with the issue above, three possible answers may be considered:
a. Delegated legislation is not permissible at all by reason of certain principles of
law which are well-known and well-recognised.
b. Delegated legislation is permissible only within certain limits; and
 c. A legislature which is sovereign in a particular field has unlimited power of
delegation and the content of its power must necessarily include the power to
delegate legislative functions;
2. Consideration I: Delegated legislation is not permissible at all due to the following
principles:
a. Delegatus non-potest delegare (delegated authority cannot be redelegated):
This is a principle of agency, but it has limited application in cases where the
contract is very confidential and where the nature of authority is coupled with
discretion and confidence. Moreover, this contention is problematic because
the Indian Parliament is NOT a delegated authority of the electorate or any
other foreign legislature.
b. Separation of powers: But an absolute rule against delegation of legislative
power cannot be sustained in practice. Moreover, separation of powers does
not necessarily entail a rule against delegation of legislative authority.
c. Constitutional Mandate:
i. No legislative body can delegate to another department of the
government, or to any other authority, the power, either generally or
specially, to enact laws. The reason is found in the very existence of its
own powers. This high prerogative has been intrusted to the
legislature’s own wisdom, judgment, and patriotism, and not to those
of other persons, and it will act ultra vires if it undertakes to delegate
the trust, instead of executing it. [Do not confuse this with ‘delegatus
non-potest delegare’]
ii. The power to delegate legislation does not entail that the legislature
can create and endow with its own capacity a new legislative power
not created by the Act to which it owes its own existence.
iii. This is, by far, is the most logical reason against the rule of delegated
legislation.
3. Consideration II: The power of delegation is implicit in the power of legislation: This
argument is based on the principle of sovereignty of the legislature within its
appointed field. The legal conception of sovereignty simply means the power of law-
making unrestricted by any legal limit.
a. The characteristics of a non-sovereign law-making body are:-
i. the existence of laws which such body must obey and cannot change;
ii. the formation of a marked distinction between ordinary laws and
fundamental laws; and
iii. the existence of some person or persons, judicial or otherwise, having
authority to pronounce upon the validity or constitutionality of laws
passed by such law-making body.
b. The Indian Legislature is a sovereign body as it is not subordinate to any other
foreign or national institution. At most, it is co-ordinate with the other
branches of the government and subject to their checks and balances. It is
supreme in its own field.
c. When the legislature retains its dominant power intact and can, whenever it
pleases, destroy the agency it has created and set up another or take the matter
directly into its own hands, it has not parted with its own legislative power.
d. Conditional legislation [subset of delegated legislation] simply amounts to
entrusting a limited discretionary authority to others, and to seek the aid of
subordinate agencies in carrying out the object of the legislation is ancillary to
 legislation and properly lies within the scope of the powers which every
legislature must possess to function effectively.
e. The question as to the extent to which the aid of subordinate agencies can be
sought by the legislatures and as to how long they should continue them are
matters for each legislature and not for the court of law to decide.
f. A legislature in committing important regulations to others does not efface
itself.
g. The legislature cannot by any form of enactment, create and arm with
legislative authority, a new legislative power not created or authorised by the
Constitution to which it owes its existence.
4. The key features of the legislations in questions are as follows:
a. There is no specification in the Act by way of a list or schedule of the laws out
of which the selection is to be made by the Provincial or the Central
Government, as the case may be, but the Government has been given complete
discretion to adopt any law whatsoever passed in any part of the country,
whether by the Central or the Provincial Legislature.
b. The provisions are not confined merely to the laws in existence at the dates of
the enactment of these Acts but extend to future laws also.
c. The Government concerned has been empowered not only to extend or adopt
the laws but also to introduce such restrictions and modifications as it thinks
fit; and in the Part C States (Laws) Act, 1950, power has been given to the
Central Government to make a provision in the enactment extended under the
Act for the repeal or amendment of any corresponding law (other than Central
Act) which is for the time being applicable to the Part C State concerned.
5. There can be no doubt that the powers which have been granted to the Government
are very extensive; however, the provisions cannot be held to be invalid.
6. The situation with which the respective legislatures were faced when these Act were
passed, was that there were certain State or States with no local legislature and a
whole bundle of laws had to be enacted for them. It is clear that the legislatures
concerned, before passing the Act, applied their mind and decided firstly, that the
situation would be met by the adoption of law applicable to the other Provinces
inasmuch as they covered a wide range of subject approached from a variety of points
of view and hence the requirements of the State or States for which the laws had to be
framed could not go beyond those for which laws had already been framed by the
various legislatures, and secondly, that the matter should be entrusted to an authority
which was expected to be familiar and could easily make itself familiar with the needs
and conditions of the State or States for which the laws were to be made. Thus, every
one of the Acts so enacted was a complete law, because it embodied a policy, defined
a standard, and directed the authority chosen to act within certain prescribed limits
and not to go beyond them. Each Act was a complete expression of the will of the
legislature to act in a particular way and of its command as to how its will should be
carried out. The legislature decided that in the circumstances of the case that was the
best way to legislate on the subject and it so legislated. It will be a misnomer to
describe such legislation as amounting to abdication of powers, because from the very
nature of the legislation it is manifest that the legislature had the power at any
moment of withdrawing or altering any power with which the authority chosen was
entrusted, and could change or repeal the laws which the authority was required to
make applicable to the State or States concerned. What is even more important is that
in each case the agency selected was not empowered to enact laws, but it could only
adapt and extend laws enacted by responsible and competent legislatures. Thus, the
power given to the Governments in those Act was more in the nature of ministerial
than in the nature of legislative power. The power given was ministerial, because all
that the Government had to do was to study the laws and make selections out of them.
Rajnarain Singh v. Chairman, Patna Administration
Facts
1. The petitioner was a resident in the outskirts of Patna. No tax was imposed on the
region where petitioner was residing. However, by a notification of 1951 municipality
imposed a tax on the petitioner and the other inhabitants of that region from 1st April
1951 to 31st March 1952. Petitioners submit that such a notification is an exercise of
delegated legislative power by the executive arising out of Section 3(1)(f) and Section
5 of the Patna Administration Act, 1915 and contests that both the provisions are ultra
vires.
2. Section 3(1)(f) of the Patna Administration Act, 1915 reads as follows:

“The Local Government may extend to Patna the provisions of any section of the
[Bengal Municipality Act, 1884] subject to such restrictions and modifications as the
Local Government may think fit."

3. Section 5 of the Patna Administration Act, 1915 reads as follows:

"The Local Government may at any time cancel or modify any order under section 3."

4. Bihar was severed from Orissa in 1911 and the entire Bengal Municipality Act of
1884 was extended to Patna city. However, in 1915 when Patna Administration Act
was enacted by Bihar Legislature then only few provisions from Bengal Municipality
Act, 1884 were adopted and enforced in a new territory where Patna Administration
housed itself.
5. Later the Bengal Municipality Act, 1884 was repealed and in its place a new Act by
the name of Bihar and Orissa Municipality Act, 1922 was enacted. Now, the Patna
city came directly under the provisions of the new Act as it was under the Bengal
Municipalities Act. At the same time, the provisions of Bengal Municipality Act,
1884 which were incorporated into Patna Administration Act of 1915 continued to
operate. Since Patna Administration Act had a reference to Bengal Municipality Act,
1884 for the purposes of extending its provisions, the Patna Administration Act, 1915
was further amended to swap Bengal Municipalities Act with Bihar and Orissa
Municipality Act.
6. Subsequently a third territory, Patna village was also aimed to be brought within the
domain of the Patna Administration Act, 1915. The Governor came out with a
notification extending few provisions of Bihar and Orissa Municipality Act, 1922 to
this area including a provision on tax by slightly modifying the original provisions.
The modified version of Section 104 reads as follows:
“Assessment of taxes – When the Patna Administration Act, 1915 is first extended to
any place, the first tax on holdings, latrines or water may be levied from the beginning
of the quarter next to that in which the assessment of the tax has been completed in
the area to which the Act is extended.”
7. It is under this provision that municipality has imposed tax on the petitioner and he
feels aggrieved.

Issue
1. Did Sections 3(1)(f) and 5 of the Patna Administration Act. 1915 suffer from
excessive delegation of essential legislative functions?
Holding
1. The action of the Governor in subjecting the residents of the Patna village area to
municipal taxation without observing the formalities imposed by sections 4, 5 and 6
of the Bihar and Orissa Municipal Act of 1922, cuts across one of it essential features
touching a matter of policy and so is bad.
2. The Bihar and Orissa Municipality Act, 1922 applied to the whole of Bihar and Orissa
and one of its essential features was that no municipality competent to tax shall be
thrust upon a locality without giving its inhabitants a chance of being heard and of
being given an opportunity to object.
Shama Rao v. Union Territory of Pondicherry
Facts
1. After the administration in Pondicherry was entirely handed over to the Indian
Government by the French in 1962, the Indian Parliament in 1963 passed a law
setting up a legislature for Pondicherry. This legislature passed General Sales Tax
Act, 1965 which got Presidential assent in May and got published in the Official
Gazette in June.
2. Section 1(2) of the Act provided “that the Act would come into force on such date as
the Government may by notification appoint”.
3. Section 2(1) of the Act provided:

“The Madras General Sales Tax Act, 1959…as in force in the State of Madras
immediately before the commencement of this Act shall extend to and come into
force in the Union Territory of Pondicherry subject to the following modifications and
adaptations..."

4. Meanwhile, the Madras Act was amended by the Legislative Assembly of Madras. In
March 1966, the central executive came out with a notification that from April, 1966
provisions of Madras General Sales Tax Act shall be applicable in Pondicherry. By
the reading of Section 1(2) and Section 2(1) it was the amended version of Madras
General Sales Tax Act which was to be applied.
5. The petitioner, who is a dealer trading in liquor, was served with a notice under the
new Act asking him to get registered. He challenged the impugned notification by the
executive on the ground that it’s an excessive delegation and hence liable to be
quashed.
Issue
1. Whether the notification of the government declaring the operation of the Madras
General Sales Tax Act, 1959 suffers from excessive delegation?
Holding
1. The resolution of the issue stated above depends upon the determination of the
question whether the Act to be adopted in accordance with notification of April, 1966
was the original or amended version of the Act.
2. The ratio from ‘In Re Delhi Laws Act’ case cannot be applied in the instant case.
3. The ‘practical necessity’ [that existed due to the lack of a Legislative Assembly]
required in delegating the nature of delegated legislation on the executive with respect
to Part C states is missing in this case. This was on account of the fact that when such
power was conferred upon the executive in ‘In Re Delhi Laws’ then there wasn’t any
Legislative Assembly existing in any of the Part C States but that isn’t the case in the
Union Territory of Pondicherry.
4. Pondicherry had an assembly of its own which could have later applied its mind
before blindly adopting the provisions of Madras Sales Tax Act, 1959 which are to be
introduced in future.
5. By blindly following the government notification, it is manifest that the Legislative
Assembly of Pondicherry refused to perform the legislative function entrusted to it
under the Act constituting it. It may be that a mere refusal may not amount to
abdication if the legislature instead of going through the full formality of legislation
 applies its mind to an existing statute enacted by another legislature for another
jurisdiction, adopts such an Act and enacts to extend it to the territory under its
jurisdiction. In doing so, it may perhaps be said that it has laid down a policy to
extend such an Act and directs the executive to apply and implement such an Act. But
when it not only adopts such an Act but also provides that the Act applicable to its
territory shall be the Act amended in future by the other legislature, there is nothing
for it to predicate what the amended Act would be. Such a case would be clearly one
of non-application of mind and one of refusal to discharge the function entrusted to it
by the instrument constituting it. It is difficult to see how such a case is not one of
abdication or effacement in favour of another legislature at least in regard to that
particular matter.
6. If any provision confers excessive delegation on the executive then such a provision is
void ab initio or “still born law”.
7. Therefore, the central notification of April, 1966 suffers from excessive delegation
and is void ab inito.
Devi Das Gopal Krishnan & Ors. v. State of Punjab & Ors.
Facts
1. Appellants are mill owners in the Moga district in Punjab. They purchase oil-seeds
and, after crushing the same in their oil mills, sell the oil and the residual oil-cake.
2. Under the Punjab General Sales Tax Act, 1948 as amended in 1958, a purchase tax at
the rate of 2 percent was imposed on them. When they didn’t pay the tax then the
authorities issued a show cause notice on them.
3. Appellants challenged this show cause notice before the Punjab and Haryana High
Court on the ground that purchase tax imposed by the government is excessive
delegation.
4. In another bunch of appeals, five in number, the appellants carry on business in
rolling steel at Gobindgarh. They purchase steel scrap and steel ingots and convert
them into rolled steel sections. Under the Act, the assessing authority imposed
purchase-tax at the rate of 2% on the purchase of steel scrap and steel ingots made by
them during the period April 1, 1958 to March 31, 1959 for making rolled steel
section and selling the same.
5. Next couple of appeals relate to purchase tax on cotton.
6. On behalf of the appellants it was argued that Section 5 of the Punjab General Sales
Tax Act, 1948 is void ab initio as it confers essential legislative power of imposing
any rate of purchase tax on the assesse. Section 5 of the Act reads as follows:
“Subject to the provisions of this Act, there shall be levied on the taxable turnover
every year of a dealer a tax at such rates as the Provincial Government may by
notification direct.”
7. It was further contended that since Section 5 of the Act is a charging section which
cannot be severed from the other provisions, hence the entire Act is void.
8. Moreover, the amending Act of 1952 which amended Section 5 of the Act will not
have any effect as the provisions of a void act cannot be brought to life by a
subsequent amendment to it. Section 2 of the Amending Act which amends Section 5
of the parent Act reads as follows:
“In sub-section (1) of section 5 of the East Punjab General Sales Tax Act, 1948, after
the word ‘rates’ the following words shall be inserted and shall be deemed always to
have been so inserted, namely, ‘not exceeding two piece in a rupee.”
Issues
1. Whether power delegated to the executive to fix the rate of taxes is excessive
delegation or not?
2. Is it necessary for a statute to set out a clear legislative policy? If the power to fix
rates of tax is unguided, would the statute suffer from excessive delegation?
3. Whether excessive delegation (unqualified power to fix rate of taxes) leads to
rendering the provision void ab initio and whether subsequent amendment providing
for an upper cap beyond which executive cannot fix the rate of tax would rectify such
malady?
Holding
1. To prove that Section 5 when enacted was void ab initio and hence a subsequent
amendment made to it wouldn’t help in saving, it is very important to establish that all
three provisions i.e. Sections 4, 5 and 6 of the Act were interconnected and couldn’t
be severed.
2. A charging section is different from a provision which sets out the rate of tax. Both
operate in different spheres and aren’t entwined. Hence, Section 4 of the Act which is
a charging section is not connected to Section 5 of the Act which sets out the rate of
tax in such a manner that they both can’t be severed.
3. When the charging section (Section 4) survives even when Section 5 of the Act
suffers from excessive delegation, the Act survives and isn’t void.
4. While it is true that the tax cannot be realized without it being quantified, the non-
quantification of the liability will not destroy the liability under the charging section.
The liability has to be distinguished from its enforceability.
5. Hence, a subsequent amendment brought into the Act in S. 5 of the Act would be a
valid amendment as the Act survives and is not a ‘still borne’ law.
6. Taxation is an essentially legislative function.
Hamdard Dawakhana v. Union of India
Facts
1. These petitions under Art. 32 of the Constitution raise the question of the
constitutionality of the Drug and Magic Remedies (Objectionable Advertisement) Act
(XXI of 1954). The preamble of the Act may be stated as follows-

“An Act to control the advertisement of drugs in certain cases, to prohibit the
advertisement for certain purposes of remedies alleged to possess magic qualities and
to provide for matters connected therewith.”

2. The allegation of the petitioners was that various actions had been taken against them
by the respondents which violated their fundamental rights under Art. 19(1)(a) and
19(1)(f) and (g). They also challenged the Act because it contravened the provisions
of Art. 14 and Arts. 21 and 31.
3. The petitioners alleged that soon after the Act came into force they experienced
difficulty in the matter of publicity for their products and various objections were
raised by the authorities in regard to their advertisements. On December 4, 1958, the
Drugs Controller, Delhi, intimated to the petitioners that the provisions of S. 3 of the
Act had been contravened by them and called upon them to recall their products sent
to Bombay and other States. As a result of this, correspondence ensued between the
petitioners and the authorities. On December 4, 1958, the Drugs Controller, Delhi
State, stopped the sale of forty of their products.
4. The Act is assailed on the ground of discrimination under Art. 14, excessive
delegation and infringement of the right of free speech under Art. 19(1)(a) and their
right to carry on trade and business under Art. 19(1)(f) & (g). Objection is also taken
under Arts. 21 and 31.
5. In their counter affidavit the respondents submitted that the method and manner of
advertisement of drugs by the petitioners and others clearly indicated the necessity of
having an Act like the impugned Act and its rigorous enforcement. The allegations in
regard to discrimination and impairment of fundamental rights under Art. 19(1)(a), (f)
& (g) and any infringement of Arts. 21 and 31 were denied and it was stated that:-
a. The restriction is about the advertisement to the people in general. The main
object and purpose of the Act is to prevent people from self-medicating with
regard to various serious diseases. Self-medication in respect of diseases of
serious nature mentioned in the Act and the Rules has a deleterious effect on
the health of the community and is likely to affect the well-being of the
people. Having thus found that some medicines have tendency to induce
people to resort to self-medication by reason of elated advertisements, it was
thought necessary in the interest of public health that the puffing up of the
advertisements is put to a complete check and that the manufacturers are
compelled to route their products through recognised sources so that the
products of these manufacturers could be put to valid and proper test and
consideration by expert agencies."
b. The advertisements were of an objectionable character and taking into
consideration the mode and method of advertising conducted by the petitioners
the implementation of the provisions of the impugned Act was justified.
6. In their rejoinder, the petitioners stated the following:
a. Advertisement is a vehicle by means of which freedom of speech guaranteed
under Art. 19(1)(a) is exercised and the restrictions which are imposed by the
Act are such that they are not covered by clause (2) of Art. 19;
 b. The Act, the Rules made thereunder and the schedule in the rules impose
arbitrary and excessive restrictions on the rights guaranteed to the petitioners
by Art. 19(1)(f) and (g);
c. Section 3 of the Act surrenders unguided and uncanalised power to the
executive to add to the diseases enumerated in s. 3;
d. Power of confiscation under s. 8 of the Act is violative of the rights under
Arts. 21 and 31 of the Constitution; and
e. There has been no violation of Section 3 of the Act, as it was meant to only
strike down abnormal sexual activities. The advertisements merely mentioned
the names of diseases and suggested the drug for the treatment of those
diseases, that the prohibition of such advertisements was an unreasonable
restriction on their fundamental right; that there was nothing indecent in
saying that their medicine was a cure for a particular disease and that the Act
was an undue interference with cure and treatment of disease.
Issues
1. Were the Act and the government’s actions in contravention of Part III of the
Constitution?
2. Assuming that the matter was within clauses (f) & (g) of Art. 19(1), was the restraint
imposed by the Act disproportionate to its purpose, the object sought to be achieved
and the evil sought to be remedied?
3. Did the acts of the government suffer from excessive delegation?

Holding
1. The doctrine of 'pith and substance':
a. It was evolved to determine the constitutionality of an enactment in reference
to the legislative competence of a legislature particularly under a federal
constitution with a distributive system of powers. It has also been evoked in
connection with the determination of the constitutionality of statutes
restricting the rights to carry on certain activities and the consequent
infringement of Article 19(1)(g).
b. The doctrine is primarily used when a law is challenged on the basis that one
level of government (be it provincial or federal) has encroached upon the
exclusive jurisdiction of another level of government.
c. According to this doctrine, if the encroachment of the Legislature is only
incidental to the enactment of the law in question, then there is no effect on the
competence of that legislature to enact that particular law.
2. The object of the Act was not merely to put a curb on advertisements which offend
against decency or morality but to prevent self-medication or treatment by prohibiting
instruments which may be used to advocate the same or which tend to spread the evil.
The intention was that there should be no advertisements for drugs for certain diseases
in order that the general public may not be misled into using them for ailments which
they may imagine they are suffering from and which they might believe to be curable
thereby.
3. An advertisement is no doubt a form of speech but its true character is reflected by the
object for the promotion of which it is employed. It assumes the attributes and
elements of the activity under Art. 19(1) which it seeks to aid by bringing it to the
notice of the public. When it takes the form of a commercial advertisement which has
an element of trade or commerce it no longer falls within the concept of freedom of
speech for the object is not propagation of ideas-social, political or economic or
furtherance of literature or human thought; but as in the present case the
 commendation of the efficacy, value and importance in treatment of particular
diseases by certain drugs and medicines. In such a case, advertisement is a part of
business and it was being used for the purpose of furthering the business of the
petitioners and had no relationship with what may be called the essential concept of
the freedom of speech. It cannot be said that the right to publish and distribute
commercial advertisements advertising an individual's personal business is a part of
freedom of speech guaranteed by the Constitution. Therefore, advertising of
prohibited drugs or commodities of which the sale is not in the interest of the general
public cannot be speech within the meaning of freedom of speech and would not fall
within Art. 19(1)(a).
4. Therefore, the government’s acts do not infringe the fundamental rights of the
individuals.
5. It was next argued that assuming that the matter was within clauses (f) & (g) of Art.
19(1), the restraint was disproportionate to the purpose of the Act, the object sought to
be achieved and the evil sought to be remedied. It was further argued that it could not
be said that the restrictions imposed by the Act were in the interest of the general
public. The basis of this argument was
a. the very wide definition of the word 'advertisement'; and
b. the uncanalised delegated power to add diseases to the schedule
6. However, if the purpose of the Act is to prevent objectionable and unethical
advertisements in order to discourage self-medication and self-treatment it cannot be
said that the definition is too wide keeping in view the object and the purpose of the
Act which have been set out above. It is these evils which the Act seeks to cure and if
the definition of the word 'advertisement' was not so broad and inclusive it would
defeat the very purpose for which the Act was brought into existence. Moreover, the
policy behind the Act is that medication should be on the advice of qualified medical
practitioners. Therefore, it cannot be said that the restrictions laid down in the Act are
in any manner disproportionate to the object sought to be attained by the Act nor that
the restrictions are outside the permissible limits.
7. Any restriction on the fundamental rights of an individual must pass the test of
reasonableness. The question for decision is whether the statute under the guise of
protecting public interests arbitrarily interferes with private business and imposes
unreasonable and unnecessarily restrictive regulations upon lawful occupation.
8. If the true intention of the Act is, as indeed it is, to stop objectionable and unethical
advertisements for the purpose of discouraging self-medication no question of
unreasonable restriction arises
9. It was further contended that the restraint was excessive because the prohibition of a
mere mention of the name of a disease and the suggestion of a cure for that could not
be a reasonable restriction. However, the objection is not to the names but to the
advertisements commending certain medicines as a cure for the same and this is what
the Act is endeavouring to eliminate. Therefore, it cannot be said that the restrictions
were either excessive or disproportionate or were not in the interest of the general
public.
10. The distinction between conditional legislation and delegated legislation is this that in
the former the delegate's power is that of determining when a legislative declared rule
of conduct shall become effective; and the latter involves delegation of rule-making
power which constitutionally may be exercised by the administrative agent. This
means that the legislature having laid down the broad principles of its policy in the
legislation can then leave the details to be supplied by the administrative authority. In
other words, by delegated legislation the delegate completes the legislation by
 supplying details within the limits prescribed by the statute and in the case of
conditional legislation the power of legislation is exercised by the legislature
conditionally leaving to the discretion of an external authority the time and manner of
carrying its legislation into effect as also the determination of the area to which it is to
extend. But the discretion should not be so wide that it is impossible to discern its
limits. There must instead be definite boundaries within which the powers of the
administrative authority are exercisable. Delegation should not be so indefinite as to
amount to an abdication of the legislative function.
11. It was contended that the discretionary powers given to the executive suffered from
excessive delegation. It was held that Parliament had established no criteria, no
standards and has not prescribed any principle on which a particular disease or
condition is to be specified in the Schedule. It was not stated what facts or
circumstances were to be taken into consideration to include a particular condition or
disease.
12. Therefore, the Act confers uncanalised and uncontrolled powers to the Executive and
therefore, such powers are ultra vires.
A.V. Nachane v. Union of India
Facts
1. The Life Insurance Corporation was constituted under the Life Insurance Corporation
Act, 1956 to provide for the nationalisation of life insurance business in India.
2. Section 11 provides:

“Where the Central Government is satisfied that for the purpose of securing
uniformity in the scales of remuneration and the other terms and conditions of service
applicable to employees of insurers whose controlled business has been transferred to
and vested in, the Corporation it is necessary so to do, or that, in the interests of the
Corporation and its policy-holders, a reduction in the remuneration payable, or a
revision of the other terms and conditions of service applicable to employees or any
class of them is called for, the Central Government may, notwithstanding anything
contained in Sub-section (1), or in the Industrial Disputes Act, 1947, or in any other
law for the time being in force, or in any award, settlement or agreement for the time
being in force, alter (whether by way of reduction or otherwise) the remuneration and
the other terms and conditions of service to such extent and in such manner as it
thinks fit; and if the alteration is not acceptable to any employee, the Corporation may
terminate his employment by giving him compensation equivalent to three months'
remuneration unless the contract of service with such employee provides for a shorter
notice of termination.”

3. Two settlements were reached on Jan. 24, 1974 and Feb. 6, 1974 between the Life
Insurance Corporation and its Class III and Class IV employees. Clause 8 of each of
the settlements was as follows:

“No profit sharing bonus shall be paid. However, the Corporation may, subject to
such directions as the Central Government, issue from time to time grants, or any
other kind of bonus to its Class III and IV employees.”

4. In 1975 an Ordinance was promulgated called the Payment of Bonus (Amendment)

Ordinance which was subsequently replaced by the Payment of Bonus (Amendment)
Act, 1976. Section 32(i) of the original Payment of Bonus Act, 1965 made the said
Act not applicable to the employees of the Life Insurance Corporation. Accordingly
payment of bonus for the year 1975-76 to the employees of the Corporation was
stopped under instructions from the Central Government.

5. In a writ petition filed by the employees of the Corporation in the Calcutta High
Court, it was contended on their behalf that the Payment of Bonus (Amendment) Act,
1976 offended Article 31(2) of the Constitution and was void. The court issued a writ
of mandamus directing the Corporation to act in accordance with the terms of the
settlement.

6. On January 31, 1981 the Life Insurance Corporation (Amendment) Ordinance, 1981
was promulgated. In Sub-section (2) of Section 48 of the principal Act a new Sub-
clause (cc) was inserted with retrospective effect. Clause (cc) relates to "the terms and
conditions of service of the employees and agents of the Corporation including those
who became employees and agents of the Corporation on the appointed day under this
Act”.
7. Three new Sub-sections (2A), (2B) and (2C) were added to Section 48.

8. Sub-section (2A) says that the regulations and other provisions as in force
immediately before the commencement of the Ordinance with respect to the terms and
conditions of service of the employees and agents of the Corporation shall be deemed
to be rules made under Clause (cc) of Sub-section (2).

9. Sub-section (2B) provides that the power to make rules under Clause (cc) of Sub-
section (2) shall include

a. the power to give retrospective effect to such rules, and

b. the power to amend by way of addition, variation or repeal the regulations and
other provisions referred to in Sub-section (2A) with retrospective effect.

10. Sub-section (2C) reads as follows:

“The provisions of Clause (cc) of Sub-section (2) and Sub-section (2B) and any rules
made under the said Clause (cc) shall have effect, and any such rule made with
retrospective effect from any date shall also be deemed to have had effect from that
date, notwithstanding any judgment, decree or order of any court, tribunal or other
authority and notwithstanding anything contained in the Industrial Disputes Act, 1947
or any other law or any agreement, settlement, award or other instrument for the time
being in force.”

11. By notification dated Feb. 2, 1981 the Central Government in exercise of the powers
conferred by Section 48 of the Life Insurance Corporation Act, 1956 made the rules
called the Life Insurance Corporation of India Class III and Class IV Employees
(Bonus and Dearness Allowance) Rules, 1981. Rule 3 reads as follows:

“Sub-rule (1): No Class III or Class IV employee of the Corporation shall be entitled
to the payment of any profit sharing bonus or any other kind of cash bonus."

Sub-rule (2): Notwithstanding what Sub-rule (1) provides every Class III and Class IV
employee shall be entitled to a payment in lieu of bonus (a) for the period
commencing from July 1, 1979 and ending on Mar. 31, 1980 at the rate of 15 per cent
of his salary; and (b) thereafter for every year commencing on the 1st April and
ending on the 31st day of March of the following year, at such rate and subject to such
conditions as the Central Government may determine having regard to the wage level,
the financial circumstances and other relevant factors.

Provided that (i) no payment in lieu of bonus shall be made to any employee drawing
a salary exceeding Rs. 1,600/- per month; and (ii) where the salary of an employee
exceeds Rs. 750/- per month but does not exceed Rs. 1,600/- per month, the maximum
payment to him in lieu of bonus shall be calculated as if his salary were Rs. 750/- per
month. For the purposes of this Sub-rule, "salary" means basic pay, special pay, if
any, and dearness allowance.
 Sub-rule (3) rescinds Reg. 58 of the Staff Regulations and all other provisions relating
to the payment of bonus to the employee to the extent they are inconsistent with Rule
3.”

12. Subsequently, Section 4 of the Life Insurance Corporation (Amendment) Act, 1981
repealed the Ordinance but provided that

"Notwithstanding such repeal, anything done or any action taken under the principal
Act as amended by the said Ordinance shall be deemed to have been done or taken
under the principal Act as amended by this Act."

Issue

1. Are the Payment of Bonus (Amendment) Ordinance, 1975 [and therefore the Life
Insurance Corporation (Amendment) Act, 1981] and the rules aforesaid invalid due to
the following reasons:
a. That they are violative of Articles 14, 19(1)(g) and 21;
b. That the act suffers from excessive delegation; and
c. That Section 48(2C) permitted the retrospective operation of Section 3 to
override the order of the Court?
Holding
1. A claim based on the 1974 settlements is certainly not a fundamental right that could
be enforced through this Court.
2. There is no basis on which the employees of the Corporation could be said to form a
separate class for denying to them the protection of the Industrial Disputes Act.
3. The preamble of the Amendment Act and the Ordinance is as follows:

“For securing the interests of the Life Insurance Corporation of India and its policy-
holders and to control the cost of administration, it is necessary that revision of the
terms and conditions of service applicable to the employees and agents of the
Corporation should be undertaken expeditiously."

4. The Amendment Act introduced Clause (cc) in Section 48(2) authorizing the Central
Government to make rules in respect of the terms and conditions of service of the
employees and agents of the Corporation. Sub-section (2C) of Section 48 provides
inter alia that rules made under Clause (cc) shall have effect notwithstanding anything
contained in the Industrial Disputes Act, 1947 or any other law for the time being in
force. The argument is that the rules made under Section 48(2)(cc) can virtually repeal
the Industrial Disputes Act and other laws to the extent they are inconsistent with
these rules. Repealing a law, it was submitted, was an essential legislative function
which had been delegated to the Central Government and that the delegation was
therefore excessive.

5. In the instant case Section 48(2C) read with Section 48(2)(cc) authorizes the Central
Government to make rules to carry out the purposes of the Act notwithstanding the
Industrial Disputes Act or any other law. This means that in respect of the matters
covered by the rules the provisions of the Industrial Disputes Act or any other law
will not be operative. The question therefore is, does the Amendment Act of 1981 lay
down no legislative policy or furnish no guidance to indicate the nature and extent of
 the modifications that the rules will be permitted to make in the existing laws to carry
out the purposes of the Life Insurance Corporation Act, 1956 as amended in 1981?

6. Section 48(2C) does not either expressly or by implication repeal any of the
provisions of pre-existing laws neither does it abrogate them. Those laws remain
untouched and unaffected so far as the statute book is concerned. The repeal of a
statute means as if the repealed statute was never on the statute book. It is wiped out
from the statute book. The effect of Section 48(2C) certainly is not to repeal any one
of those laws or abrogate them. Its object is simply to by-pass them where they are
inconsistent with the provisions of the pre-existing laws. In other words, wherever
there is repugnancy in this Amendment Act with the existing laws, then to that extent
the existing laws with regard to those commodities will not operate. By-passing a
certain law does not necessarily amount to repeal or abrogation of that law.

7. Moreover, assuming that the rules framed under the Amendment Act had the effect of
repealing the existing laws, the power to repeal is exercised not by the delegate but by
the Act itself.

8. The question however remains to be answered, does the Life Insurance Corporation
Act, 1956 as amended in 1981 state any policy to guide the rule-making authority?

9. The policy as stated in the preamble of the Amendment Act is that "for securing the
interests of the Life Insurance Corporation of India and its policy-holders and to
control the cost of administration, it is necessary that revision of the terms and
conditions of service applicable to the employees and agents of the Corporation
should be undertaken expeditiously". This statement is sufficient guidance to the
Central Government in exercising its powers under Section 48 (2C).

10. Moreover, Section 48(3) of the Life Insurance Corporation Act requires that every
rule made by the Central Government under this Act shall be laid before each House
of Parliament and that if both Houses agree in making any modification in the rule or
both Houses agree that the rule should not be made, the rule shall thereafter have
effect only in such modified form or be of no effect, as the case may be. This makes it
perfectly clear that Parliament has in no way abdicated its authority, but is keeping
strict vigilance and control over its delegate.

11. Therefore, the contention that the Act is invalid on the ground of excessive delegation
of legislative functions does not stand.
12. By virtue of Rule 1(2), Rule 3 "shall be deemed to have come into force on the 1st
day of July, 1979". The question is can Rule 3 read with Rule 1(2) nullify the effect of
the writ issued by this Court ordering the corporation to comply with the terms of the
settlements?
13. Rule 3 operating retrospectively cannot nullify the effect of the writ issued which
directed the Life Insurance Corporation to give effect to the terms of the 1974
settlements relating to bonus until superseded by a fresh settlement, an industrial
award or relevant legislation. The Life Insurance Corporation (Amendment) Act,
1981 and the Life Insurance Corporation of India Class III and Class IV Employees
(Bonus and Dearness Allowance) Rules, 1981 are relevant legislations. However,
these rules, in so far as they seek to abrogate the terms of the 1974 settlements
relating to bonus, can operate only prospectively, that is, from Feb. 2, 1981, the date
of publication of the rules.
Aeltemeish Rein v. Union of India
Facts
1. The Advocates Act, 1961 received the assent of the President of India on the 19th of
May, 1961. Sub-section (3) of Section 1 of the Act provides that

“The Act shall in relation to the territories other than those referred to in Sub-section
(4) come into force as the Central Government may by notification in the Official
Gazette appoint and different dates may be appointed for different provisions of the
Act.”
2. However, more than 25 years had elapsed from the date of the passing of the Act and
Section 30 had still not been enforced. Section 30 reads as follows:

“Right of advocates to practice Subject to the provisions of this Act: Every Advocate
whose name is entered in the State roll shall be entitled as of right to practice
throughout the territories to which this Act extends-
(i) in all courts including the Supreme Court,
(ii) before any tribunal or person legally authorized to take evidence; and
(iii) before any other authority or person before whom such advocate is by or
under any law for the time being in force entitled to practice.”
Issue
1. It is no doubt true that the Central Government has been given the power by
Parliament to appoint the date on which any of the provisions of the Act shall come
into force by Sub-section (3) of Section 1 of the Act and the said provision does not
lay down any objective standards for the determination of the date on which any of
the specific provisions of the Act should be brought into force. The question for
consideration is whether this Court can issue a writ in the nature of mandamus to the
Central Government to bring Section 30 of the Act into force?
Holding
1. The Parliament having left to the unfettered judgment of the Central Government the
question as regards the time for bringing the provisions into force, it is not for the
Court to compel the Government to do that which, according to the mandate of the
Parliament, lies in its discretion to do when it considers it opportune to do it.
2. The executive is responsible to the Parliament and if the Parliament considers that the
executive has betrayed its trust by not bringing any provision of the law into force, it
can censure the executive.
3. If only the Parliament were to lay down an objective standard to guide and control the
discretion of the Central Government in the matter of bringing the various provisions
of the Act into force, it would have been possible to compel the Central Government
by an appropriate writ to discharge the function assigned to it by the Parliament.
4. It is not open to this Court to issue a writ in the nature of mandamus to the Central
Government to bring a statute or a statutory provision into force when according to
the said statute the date on which it should be brought into force is left to the
discretion of the Central Government.
5. However, every discretionary power vested in the Executive should be exercised in a
just, reasonable and fair way. Therefore, the Court held that this its decision to refrain
from issuing a writ of mandamus to bring a statutory provision into force did not
 come in the way of this Court issuing a writ of mandamus to the Central Government
to consider whether the time for bringing Section 30 of the Act into force has arrived
or not.
6. Even though the power under Section 30 of the Act was discretionary, the Central
Government should have been and was called upon to consider the question whether
it should exercise the discretion one way or the other having regard to the fact that
more than a quarter of century had elapsed from the date on which the Act received
the assent of the President of India.
Indian Council of Legal Aid and Advice v. Bar Council of India & Anr.
Facts

1. The Bar Council of India added Rule 9 in Chapter III of Part VI of the Bar Council of
India Rules. The said newly added rule reads as under:

“A person who has completed the age of 45 years on the date on which he submits his
application for his enrolment as an advocate to the State Bar Council shall not be
enrolled as an advocate.”

2. All the State Bar Councils in the country were duly informed about the insertion of
the said rule. The legality and validity of the said rule is questioned in this batch of
petitions as inconsistent with Articles 14, 19(1)(g) and 21 of the Constitution and
Section 24 of the Advocates Act, 1961 [hereinafter called 'the Act'].

3. The dictionary of the Act is to be found in Section 2, Clause (a) whereof defines an
Advocate as a person entered in any roll under the provisions of the Act as such and
the term 'roll' according to Clause (k) means a roll of advocates prepared and
maintained under the Act.

4. Section 24(1) to the extent it is relevant for our purpose provides as under :

“Persons who may be admitted as advocates on a State roll - Subject to the provisions
of this Act, and the rules made thereunder, a person shall be qualified to be admitted
as an advocate on a State roll, if he fulfills the following conditions, namely:-

i. he is a citizen of India;

ii. he has completed the age of twenty-one years; and

iii. he has obtained a degree in law.”

5. Unless a person is enrolled as an advocate by a State Bar Council, he shall have no

right to practice in a court of law or before any other Tribunal or authority. Once a
person fulfills the requirements of Section 24 for enrolment, he becomes entitled to be
enrolled as an advocate and on such enrolment he acquires a right to practice as stated
above. Having thus acquired a right to practice he incurs certain obligations in regard
to his conduct as a member of the noble profession. The Bar Councils are enjoined
with the duty to act as sentinels of professional conduct and must ensure that the
dignity and purity of the profession are in no way undermined. Its job is to uphold the
standards of professional conduct and etiquette. Thus every State Bar Council and the
Bar Council of India has a public duty to perform, namely, to ensure that the
monopoly of practice granted under the Act is not misused or abused by a person who
is enrolled as an advocate.

6. It was contended on behalf of the Bar Council of India that the need to uphold
standards of professional conduct and etiquette cannot be over-emphasised. The Act,
besides highlighting the essential functions of the Bar Council of India in this behalf,
provides for the enforcement of the same and sets up disciplinary authorities to
 chastise and, if necessary, punish members of the profession for misconduct. The
punishment may include suspension from practice as well as removal of the name
from the roll of advocates.

7. Section 49(1) confers power on the Bar Council of India to make rules, inter alia, for
discharging its functions under the Act. Section 49(1)(ag) when read with Section 24
of the Act confers wide powers on the Bar Council of India to indicate the class or
category of persons who may be enrolled as advocates which power would include
the power to refuse enrolment in certain circumstances. The obligation to maintain the
dignity and purity of the profession and to punish erring members carries with it the
power to regulate entry into the profession with a view to ensuring that only
profession-oriented and service-oriented people join the Bar and those not so oriented
are kept out.

8. Counsel submitted that a person who has already spent the best years of his life in
pursuing some other profession or occupation cannot be said to have the correct
attitude of a service-oriented professional and cannot be expected to maintain the high
standards of professional conduct.

9. According to the respondent [Bar Council of India] persons who retire from various
government, quasi-government and other institutions when admitted to the legal
profession use their earlier contacts to canvass for cases; a conduct which brings
down the standard of professional ethics expected to be maintained by a member of
the profession and that has a very adverse influence on the minds of young fresh
entrants to the profession. It is no answer to state that disciplinary action can be taken
against those who deviate from the standard of conduct expected of a member of the
Bar because all cases of infraction of the Code of Conduct do not come to the notice
of the Bar Council and behavior leaves a lingering effect on the profession. It is in
order to uphold the high standards of professional morality and integrity that the Bar
Council of India was compelled to enact a rule restricting the entry into the legal
profession by prescribing the age limit of 45 years. The Bar Council of India contends
that it has acted bona fide within the framework of the Act and the Constitution.
According to it the right to practice as an advocate not being a fundamental right but
only a privilege conferred by the Act can always be withdrawn and in any case
reasonable restrictions can be imposed even if it were a fundamental right under
Article 19(1)(g) of the Constitution. The restriction imposed by the newly added rule
is to serve a public purpose and can never be termed as unreasonable, violative of
Article 14 of the Constitution.

Issue

1. Are the restrictions imposed by the Bar Council of India sustainable?

Holding

1. The rule making power of the Central Government is wide enough to embrace matters
for which the Bar Council of India or a State Bar Council has power to make rules.

2. The newly added rule seeks to bar the entry of persons who have completed the age of
45 years on the date of application for enrolment as an advocate from being enrolled
 as such by the concerned State Bar Council. While Section 24 of the Act prescribes
the minimum age for enrolment as twenty-one years complete, there is no provision in
the Act which can be said to prescribe the maximum age for entry into the profession.
Since the Act is silent on this point the Bar Council of India was required to resort to
its rule making power.

3. Clause (ah) of Sub-section (1) of Section 49 of the Act reads as under:

“The conditions subject to which an advocate shall have the right to practice and the
circumstances under which a person shall be deemed to practice as an advocate in a
court.”

4. On the plain language of the said clause it seems clear that under the said provision
the Bar Council of India can lay down the 'conditions' subject to which 'an advocate'
shall have the right to practice. These conditions which the Bar Council of India can
lay down are applicable to an advocate, i.e., a person who has already been enrolled
as an advocate by the concerned State Bar Council. The conditions which can be
prescribed must apply at the post-enrolment stage since they are expected to relate to
the right to practice. They can, therefore, not operate at the pre-enrolment stage. By
the impugned rule, the entry of those who have completed 45 years at the date of
application for enrolment is sought to be barred. The rule clearly operates at the pre-
enrolment stage and cannot, therefore, receive the shelter of Clause (ah) of Section
49(1) of the Act. Under the said clause conditions applicable to an advocate touching
his right to practise can be laid down, and if laid down he must exercise his right
subject to those conditions. But the language of the said clause does not permit laying
down of conditions for entry into the profession.

5. Therefore, Clause (ah) of Section 49(1) of the Act does not empower the Bar Council
of India to frame a rule barring persons who have completed 45 years of age from
enrolment as an advocate. The impugned rule is, therefore, ultra vires the said
provision.

6. As stated earlier the Act in Section 24(1)(b) provides that the person who seeks
enrolment as an advocate must have completed the age of twenty-one years. Nowhere
does the Act provide the maximum age beyond which a person shall not be entitled to
enrolment as an advocate nor does the Act make any specific provision empowering
the Bar Council of India to frame such a rule. Reliance was, however placed on
Clause (ag) of Section 49(1) which reads as under:

“The class or category of persons entitled to be enrolled as advocates.”

7. The question therefore is, can persons who have completed 45 years of age be said to
constitute a class or category to entitle the Bar Council of India to debar them from
being enrolled as advocates?

8. Rule 49(1) empowers the Bar Council of India to make rules for discharging its
functions under the Act. None of the functions specifically provides for laying down
such a condition debarring persons of a certain age group from enrolment as
advocates. The Clause relied upon is couched in positive terms, namely, it says the
rules may prescribe the class or category of persons who may be admitted to the legal
 profession. Therefore, under this rule the class or category of persons 'entitled to be
enrolled' as advocates may be prescribed. The rule can, therefore, specify the class or
category of persons 'entitled' to be enrolled as advocates, but the rule gives no
indication that it can debar persons belonging to a certain age group from being
enrolled as advocates. Where a provision is couched in positive language and is in the
nature of an enabling provision, there is no canon of construction which says that by
necessary implication the rule making authority can make a provision disentitling
admission or enrolment to the profession.

9. The larger question that needs to be answered is whether the said clause applies to
persons belonging to a certain age group?

10. It seems Parliament while enacting the Act created agencies at the State level as well
as at the Central level in the form of State Bar Councils and Bar Council of India and
invested them with rule making powers on diverse matters touching the legal
profession, presumably because it must have realised that matters pertaining to the
profession are best left to informed bodies comprising of members of the said
profession. However, while doing so it provided for basic substantive matters, and
placed them within the domain of a State Bar Council. Thus it is the State Bar Council
which alone must decide on the question of enrolment of an applicant on its roll.
Under Section 24 a person who is a citizen of India and possesses a degree in law
becomes qualified to be admitted as an advocate if he has completed twenty one years
of age, subject of course to the other provisions of the Act. No doubt, apart from a
class or group being declared 'entitled to enrolment', the other conditions or norms
evolved by the State Bar Council for entry of the individual on its role would have to
be satisfied.

11. It is, therefore, within the exclusive domain of the State Bar Councils to admit persons
as advocates on their rolls or to remove their names from the rolls. There is no
provision dealing with admission and enrolment of advocates which restricts the entry
of those who have completed 45 years as advocates. Nor has the State Bar Council
made any such rule under its rule making power.

12. Reliance was placed on the rule making power of the Bar Council of India enshrined
in Section 49. Matters concerning disqualification, even for a limited period, were
considered to be falling outside the ken of rule-making power, being a matter of
public policy. It is difficult to accept the interpretation that all those above the age
group of 45 years constitute a class within the scope of Clause (ag) of Section 49(1) of
the Act to permit the Bar Council of India to debar their entry into the profession for
all times. In the guise of making a rule the Bar Council of India is virtually
introducing an additional clause in Section 24 of the Act prescribing an upper age
ceiling of completed age of 45 years beyond which no person shall be eligible for
enrolment as an advocate or is inserting an additional clause in Section 24A of the Act
prescribing a disqualification.

13. Viewed from either point of view, the rule making power under Clause (ag) of
Section 49(1) of the Act does not confer any such power on the Bar Council of India.
Therefore, the impugned rule is ultra-vires the Act.

14. The next question is, is the rule reasonable or arbitrary and unreasonable?
15. In the first place, there is no reliable statistical or other material placed on record in
support of the inference that ex-government or quasi-government servants or the like
indulge in undesirable activity of the type mentioned after entering the profession.
Secondly, the rule does not debar only such persons from entry into the profession but
those who have completed 45 years of age on the date of seeking enrolment. Thirdly,
those who were enrolled as advocates while they were young and had later taken up
some job in any government or quasi-government or similar institution and had kept
the sanad in abeyance are not debarred from reviving their sanads even after they have
completed 45 years of age. There may be a large number of persons who initially
entered the profession but later took up jobs or entered any other gainful occupation
who revert to practise at a later date even after they have crossed the age of 45 years
and under the impugned rule they are not debarred from practicing. The rule,
therefore, is clearly discriminatory. It is unreasonable and arbitrary as the choice of
the age of 45 years is made keeping only a certain group in mind ignoring the vast
majority of other persons who were in the service of government or quasi-government
or similar institutions at any point of time. Thus, the impugned rule violates the
principle of equality enshrined in Article 14 of the Constitution.

16. In the view taken on the aforesaid points it is not necessary to examine the larger
question whether or not the impugned rule violates Article 19(1)(g) of the
Constitution.

17. In the result, these petitions succeed. The new Rule 9 inserted is struck down as ultra
vires the Act and opposed to Article 14 of the Constitution. The Bar Council of India
and the State Bar Councils were directed not to implement the said rule.
Air India v. Nergesh Meerza & Ors.

Facts

1. By virtue of Section 3 of the Air Corporation Act, 1953 the Central Government, by a
notification published in the official Gazette, created two Corporations known as
Indian Airlines and Air India International.
2. It is manifest therefore from a perusal of the various provisions of the 1953 Act that
A. I. and I. A. C. were established as a single entity which was divided into two units
in view of the nature of the duties that each Corporation had to perform. Both these
units were to be controlled by the Central Government.
3. It appears that there was a good deal of disparity between the pay-scales and the
promotional avenues of the male cabin crew consisting of AFPs, FPs and In-flight
pursers on the one hand and the AHs, Check AH, Deputy Chief AH, Addl. Chief AH
and Chief AH on the other.
4. There was also a dispute regarding the retirement age. The retirement age of the Air
India employees was governed by Service Regulations Nos. 46 and 47.

5. Regulation 46 states as follows:

“ Retiring Age: Subject to the provisions of Sub-regulation (ii) hereof an employee

shall retire from the service of the Corporation upon attaining the age of 58 years,
except in the following cases when he/she shall retire earlier:

(c) An Air Hostess, upon attaining the age of 35 years or on marriage if it takes place
within four years of service or on first pregnancy, whichever occurs earlier.”

6. Regulation 47 reads as follows:

“Extension of Service: Notwithstanding anything contained in Regulation 46, the

services of any employee, may, at the option of the Managing Director but on the
employee being found medically fit, be extended by one year at a time beyond the age
of retirement for an aggregate period not exceeding two years, except in the case of
Air Hostesses and Receptionists where the period will be ten years and five years
respectively.”

7. Thus, an AH under A.I. was retired from service in the following contingencies:

a. on attaining the age of 35 years;

b. on marriage if it took place within 4 years of the service, and

c. on first pregnancy.

8. The age of retirement of AH could be extended upto ten years by granting yearly
extensions at the option of the Managing Director. Thus, if the Managing Director
 chose to exercise his discretion under Regulation 47 an AH could retire at the age of
45 years.

9. Thus, the only difference regarding the service conditions pertaining to the age of
retirement or termination is that whereas the services of an I.A.C. AH could be
extended upto 40 years, those of the A.l. AH could be extended upto 45 years, subject
to the conditions indicated above.

10. The AH’s raised the following six contentions:

a. The AHs employed by one Corporation or the other form the same class of
service as the AFPs and other members of the cabin crew. Both the male
pursers and the AHs are members of the same cabin crew, performing
identical or similar duties and hence any discrimination made between these
two members who are similarly circumstanced is clearly violative of Article
14 of the Constitution of India.

b. Even if the AHs are a separate category or class, there is an inter se

discrimination between the AHs posted in the United Kingdom and those
serving in the other Air India flights.

c. That the AHs have been particularly selected for hostile discrimination by the
Corporation mainly on the ground of sex or disabilities arising from sex and
therefore, the regulations amount to a clear infraction of the provisions of
Article 15(1) and Article 16 of the Constitution of India.

d. The termination of the services of AHs on the ground pregnancy or marriage

within four years is manifestly unreasonable and wholly arbitrary and violative
of Article 14 of the Constitution and should, therefore, be struck down.

e. The contention that a woman in view of strenuous work that she is called upon
to perform, becomes tired or incapable of doing the work of catering to the
passengers is based on pure speculation and being against the well-established
facts and norms set up by the Geneva Convention is clearly inconsistent with
the concept of emancipation of women. No material has been placed before
the Court to prove that the efficiency of the AHs is in any way impaired at the
age of 40 or 45 years so as to make a gross discrimination between the male
pursers and AHs.

f. Apart from the discrimination regarding the age of retirement, the AHs have
been completely deprived of promotional opportunities available to the male
members of the cabin crew.

11. For the aforesaid reasons, it was contended that Regulations 46 and 47 of Air-India
Employee's Service Regulations and Regulation No. 12 of the Indian Airlines (Flying
Crew) Service Regulations must be struck down as being discriminatory and ultra
vires.

12. Air India countered the above-mentioned contentions as follows:

 a. Having regard to the nature of job functions, the mode of recruitment of AHs,
their qualifications, their promotional avenues and the circumstances in which
they retire AHs fall within a category separate from the class to which the
pursers belong and if AHs from a separate class or category by themselves,
then there can be no question of discrimination or contravention of Article 14
which would apply if there is discrimination between the members of the same
class inter se.

b. The recruitment of the AHs is actually sex based recruitment made not merely
on the ground of sex alone but swayed by a lot of other considerations: hence
Article 15(2) of the Constitution was not attracted.

c. Having regard to the circumstances prevailing in India and the effects of

marriage, the bar of pregnancy and marriage is undoubtedly a reasonable
restriction placed in public interest.

d. If the bar of marriage or pregnancy is removed, it will lead to huge practical

difficulties as a result of which very heavy expenditure would have to be
incurred by the Corporations to make arrangements for substitutes of the
working AHs during their absence for a long period necessitated by pregnancy
or domestic needs resulting from marriage.

e. The court should take into consideration the practical aspects of the matter
which demonstrate the fact that a large number of AHs do not stick to the
service but leave the same well before the age of retirement fixed under the
Regulation.

Issues

1. Are Regulations 46 and 47 of Air-India Employee's Service Regulations and

Regulation No. 12 of the Indian Airlines (Flying Crew) Service Regulations
discriminatory and ultra vires Constitution?

Holding

1. It is undisputed that what Article 14 prohibits is hostile discrimination and not

reasonable classification. In other words, if equals and un-equals are differently
treated, no discrimination at all occurs so as to amount to an infraction of Article 14
of the Constitution. A fortiori if equals or persons similarly circumstanced are
differently treated, discrimination results so as to attract the provisions of Article 14.

2. Therefore, the inescapable conclusion that follows is that if there are two separate and
different classes having different conditions of service and different incidents, the
question of discrimination does not arise. On the other hand, if among the members of
the same class, discriminatory treatment is meted out to one against the other, Article
14 is doubtlessly attracted.

3. Though the differing procedures might involve disparity in the treatment of the
persons tried under them, such disparity is not by itself sufficient to outweigh the
presumption and establish discrimination unless the degree of disparity goes beyond
 what the reason for its existence demands as, for instance, when it amounts to a denial
of a fair and impartial trial.

4. A distinction should be drawn between 'discrimination without reason' and

'discrimination with reason'. The whole doctrine of classification is based on this
distinction and on the well-known fact that the circumstances which govern one set of
persons or objects may not necessarily be the same as those governing another set of
persons or objects, so that the question of unequal treatment does not really arise as
between persons governed by different conditions and different sets of circumstances.

5. A person setting up a grievance of denial of equal treatment by law must establish that
between persons similarly circumstanced, some were treated to their prejudice and the
differential treatment had no reasonable relation to the object sought to be achieved
by the law.

6. Equality is only for equals and even in cases of promotion Article 14 would apply
only if promotional facility is denied to equals within the same class.

7. In order to judge whether a separate category has been carved out of a class of
service, the following circumstances have generally to be examined:

a. the nature, the mode and the manner of recruitment of a particular category
from the very start;

b. the classifications of the particular category;

c. the terms and conditions of service of the members of the category;

d. the nature and character of the posts and promotional avenues; and

e. the special attributes that the particular category possess which are not to be
found in other classes, and the like.

8. It is difficult to lay down a rule of universal application but the circumstances

mentioned above may be taken to be illustrative guidelines for determining the
question.

9. If the basic requirements of the two classes, viz., AFP and AH, for entry into service
are absolutely different and poles apart, then even though both the classes may during
the flight work as cabin crew, they would not become one class of service. Thus, from
a comparison of the mode of recruitment the classification, the promotional avenues
and other matters which we have discussed above, we are satisfied that the AHs form
an absolutely separate category from that of AFPs in many respects having different
grades, different promotional avenues and different service conditions.

10. AHs employed by A.I. in U.K. have different conditions of service from AHs serving
A.I. in countries other than U.K. Doubtless this distinction is there but this is really a
fortuitous circumstance because A.I. was forced to comply with the local laws of U.K.
in order to increase the age of retirement of AHs posted in England. Surely, we cannot
expect A.I. to commit an offence by violating the laws of U.K.
11. An important argument was put forward by the Corporation that the class of AHs is a
sex-based recruitment and, therefore, any discrimination made in their service
conditions has not been made on the ground of sex only but due to a lot of other
considerations also.

12. What Articles 15(1) and 16(2) prohibit is that discrimination should not be made only
and only on the ground of sex. These Articles of the Constitution do not prohibit the
State from making discrimination on the ground of sex coupled with other
considerations.

13. Article 14 is general and must be read with the other provisions which set out the
ambit of fundamental rights. Sex is a sound classification and although there can be
no discrimination in general on that ground, the Constitution itself provides for
special provisions in the case of women and children.

14. We cannot universalise or dogmatise that men and women are equal in all occupations
and all situations and cannot exclude the need to pragmatise where the requirements
of particular employment, the sensitivities of sex or the peculiarities of societal
sectors or the handicaps of either sex may compel selectivity. Save where the
differentiation is demonstrable, the rule of equality must govern.

15. Therefore, the argument that the conditions of service with regard to retirement, etc.,
amount to discrimination on the ground of sex only is overruled and it is held that the
conditions of service indicated above are not violative of Article 16 on this ground.

16. This brings us to the next limb of the argument which pertains to the question as to
whether or not the conditions imposed on the AHs regarding their retirement and
termination are manifestly unreasonable or absolutely arbitrary. Even though the
conditions mentioned above may not be violative of Article 14 on the ground of
discrimination but if it is proved that the conditions laid down are entirely
unreasonable and absolutely arbitrary, then the provisions will have to be struck
down.

17. The work of an air hostess involves running hither and thither and flying at the same
time. In case of an air hostess, her appearance, glamour and weight are important. The
working hours are also odd. She has to walk up and down the aisles and has to be
away from home for a number of days at a time. All this will not suit an Indian
married woman and also places the category of an air hostess on an entirely different
level from all those employed in a pharmaceutical concern.

18. A perusal of the Regulations shows that the normal age of retirement of an AH is 35
years or on marriage, if it takes place within four years of service, or on first
pregnancy whichever occurs earlier. Leaving the age of retirement for the time being,
let us examine the constitutional validity of the other two conditions, viz., termination
if marriage takes place within four years or on first pregnancy. So far as the question
of marriage within four years is concerned, the provision does not suffer from any
constitutional infirmity. According to the regulations an AH starts her career between
the age of 19 to 26 years. Most of the AHs are not only SSC, which is the minimum
qualification, but possess even higher qualifications and there are very few who
decide to marry immediately after entering the service. Thus, the Regulation permits
 an AH to marry at the age of 23 if she has joined the service at the age of 19 which is
by all standards a very sound and salutary provision. Apart from improving the health
of the employee, it helps a good in the promotion and boosing up of our family
planning programme. Secondly, if a woman marries near about the age of 20 to 23
years, she becomes fully mature and there is every chance of such a marriage proving
a success, all things being equal. Thirdly, it has been rightly pointed out to us by the
Corporation that if the bar of marriage within four years of service is removed then
the Corporation will have to incur huge expenditure in recruiting additional AHs
either on a temporary or on ad hoc basis to replace the working AHs if they conceive
and any period short of four years would be too little a time for the Corporation to
phase out such an ambitious plan.

19. Coming now to the second limb of the provisions according to which the services of
AHs would stand terminated on first pregnancy, it is held that this is a most
unreasonable and arbitrary provision. The Regulation does not prohibit marriage after
four years and if an AH after having fulfilled the first condition becomes pregnant,
there is no reason why pregnancy should stand in the way of her continuing in service.

20. The Corporations represented that pregnancy leads to a number of complications and
to medical disabilities which may impediment the efficient discharge of the duties by
the AHs. It was said that even in the early stage of pregnancy some ladies are prone to
get sick due to air pressure, nausea in long flights and such other technical factors.
This, however, appears to be purely an artificial argument because once a married
woman is allowed to continue in service then under the provisions of the Maternity
Benefit Act, 1961 and The Maharashtra Maternity Rules, 1965 (these apply to both
the Corporations as their Head offices are at Bombay), she is entitled to certain
benefits including maternity leave. In case, however, the Corporations feel that
pregnancy from the very beginning may come in the way of the discharge of the
duties by some of the AHs, they could be given maternity leave for a period of 14 to
16 months and in the meanwhile there could be no difficulty in the Management
making arrangements on a temporary or ad hoc basis by employing additional AHs.
The argument of the Corporation that a woman after bearing children becomes weak
in physique or in her constitution is neither legally nor medically proven.

21. The termination of the services of an AH under such circumstances is not only a
callous and cruel act but an open insult to Indian womanhood the most sacrosanct and
cherished institution. Such a course of action is extremely detestable and abhorrent to
the notions of a civilised society. Such a provision, therefore, is not only manifestly
unreasonable and arbitrary but contains the quality of unfairness and exhibits naked
despotism and is, therefore, clearly violative of Article 14 of the Constitution.

22. The pregnancy disability exclusion amounts to downgrading women's role in labour
force.

23. If the Corporation has permitted the AHs to marry after the expiry of four years then
the decision to terminate the services on first pregnancy seems to be wholly
inconsistent and incongruous with the concession given to the AHs by allowing them
to marry.
24. Sex, like race and national origin, is an immutable characteristic determined solely by
the accident of birth. Therefore, the imposition of special disabilities upon the
members of a particular sex, because of their sex, would seem to violate the basic
concept of our system that legal burdens should bear some relationship to individual
responsibility. Pregnancy is not a disability but a natural consequence of marriage and
is an immutable characteristic of married life. Any distinction therefore, made on the
ground of pregnancy cannot but be held to be extremely arbitrary.

25. The ability of any particular pregnant women to continue at work past any fixed time
in her pregnancy is very much an individual matter. It cannot be doubted that a
substantial number of women are fully capable of working well into their last
trimester of pregnancy and of resuming employment shortly after childbirth. By
making pregnancy a bar to continuance in service of an AH the Corporation seems to
have made an individualised approach to a women's physical capacity to continue her
employment even after pregnancy which undoubtedly is a most unreasonable
approach.

26. There is nothing to show that married women would necessarily be more likely to be
absent than unmarried women or widows. If it is the presence of children which may
be said to account for greater absenteeism among married women, that would be so
more or less in the case of widows with children also.

27. Legislation, which arbitrarily or excessively invades the right, cannot be said to
contain the quality of reasonableness, and unless it strikes a proper balance between
the freedom guaranteed under Article 19(1)(g) and the social control permitted by
Clause (6) of Article 19, it must be held to be wanting in reasonableness.

28. Equality and arbitrariness are sworn enemies; one belongs to the rule of law in a
republic, while the other, to the whim and caprice of an absolute monarch. Where an
act is arbitrary, it is implicit in it that it is unequal both according to political logic and
constitutional law and is therefore violative of Article 14.

29. Official arbitrariness is more subversive of the doctrine of equality than statutory
discrimination. In respect of a statutory discrimination one knows where he stands,
but the wand of official arbitrariness can be waved in all directions indiscriminately.

30. For the reasons given above, the last portion of Regulation 46(i)(c) is struck down and
it is held that the provision 'or on first pregnancy whichever occurs earlier' is
unconstitutional, void and is violative of Article 14 of the Constitution and will,
therefore, stand deleted.

31. The next provision which has been the subject matter of serious controversy between
the parties, is the one contained in Regulation 46(i)(c). According to this provision,
the normal age of retirement of an AH is 35 years which may at the option of the
Managing Director be extended to 45 years subject to other conditions being satisfied.

32. The question of fixation of retirement age of an AH is to be decided by the authorities

concerned after taking into consideration various factors such as the nature of the
work, the prevailing conditions, the practice prevalent in other establishments and the
like.
33. There is no doubt that in fixing the age of retirement no hard and fast rule can be laid
down. The decision on the question would always depend on a proper assessment of
the relevant factors and may conceivably vary from case to case.

34. The factors to be considered must be relevant and bear a close nexus to the nature of
the organisation and the duties of the employees. Where the authority concerned takes
into account factors or circumstances which are inherently irrational or illogical or
tainted, the decision fixing the age of retirement is open to serious scrutiny.

35. As the distinction regarding the age of retirement made by the Regulation between
AHs and AFPs cannot be said to be discriminatory [because AHs have been held to be
a separate class] we will have to examine the provision from other points of view.

36. AI contended that Air Hostesses are recruited for providing attractive and pleasing
service to passengers in a highly competitive field and consequently stress is laid on
their appearance, youth, glamour and charm.

37. This contention seems to suggest that AHs should by their sweet smiles and pleasant
behaviour entertain and look after the passengers which cannot be done by women of
older age. This argument seems to be based on pure speculation and an artificial
understanding of the qualities of the fair sex and, if we may say so, it amounts to an
open insult to the institution of our sacred womanhood. Such a morbid approach is
totally against our ancient culture and heritage as a woman in our country occupies a
very high and respected position in the society as a mother, a wife, a companion and a
social worker. It is idle to contend that young women with pleasing manners should
be employed so as to act as show pieces in order to cater to the varied tastes of the
passengers when in fact older women with greater experience and goodwill can look
after the comforts of the passengers much better than a young woman can. Even if the
Corporation had been swayed or governed by these considerations, it must
immediately banish or efface the same from its approach. More particularly such
observations coming from a prestigious Corporation like A.I. appear to be in bad taste
and is proof positive of denigration of the role of women and a demonstration of male
chauvinism and verily involves and discloses an element of unfavourable bias against
the fair sex which is palpably unreasonable and smacks of pure official arbitrariness.

38. It is difficult to agree that the service conditions which apply to foreign airlines,
should pro tanto apply to the employees of A.I. because the conditions of service
including the age of retirement depend on various geographical and economic factors.
Sometimes a small country may be rich enough or in view of limited number of
flights or small population, it can afford to keep the AHs in service for a longer time.
Local influences, social conditions and legal or political pressures may account for the
terms and conditions to be fixed in the case of the AHs employed by international
airlines other than A.I. In view of these diverse factors, it is not possible to easily infer
unfavourable treatment to the petitioners because certain more favourable conditions
of service are offered by international airlines of other countries. Moreover, in an
award entered into by both the parties at an earlier stage, the stand taken by the AHs
was merely that their age of retirement should be extended to 45 years. They never
put forward or suggested any claim to increase the retirement age to 58. If the AHs
were really serious in getting their retirement age equated with that of the AFPs, i.e.
58, they would not have failed to put forward this specific claim before the Tribunal.
 This is yet another ground on which the claim of the AHs to be retired at the age of 58
cannot be entertained because the Award binds the parties even though its period may
have expired.

39. In the instant case, the Corporations have placed good material before us to show
some justification for keeping the age of retirement at 35 years (extendable upto 45
years) but the regulation seems to us to arm the Managing Director with uncanalized
and unguided discretion to extend the age of AHs at his option which appears to us to
suffer from the vice of excessive delegation of powers. It is true that a discretionary
power may not necessarily be a discriminatory power but where a statute confers a
power on an authority to decide matters of moment without laying down any
guidelines or principles norms the power has to be struck down as being violative of
Article 14.

40. The Regulation does not provide any guidelines, rules, or principles which may
govern the exercise of the discretion by the Managing Director. Similarly, there is
also no provision in the Regulation requiring the authorities to give reason for
refusing to extend the period of retirement of AHs. The provision does not even give
any right of appeal to higher authorities against the order passed by the Managing
Director. Under the provision, as it stands, the extension of the retirement of an AH is
entirely at the mercy and sweet will of the Managing Director. The conferment of
such a wide and uncontrolled power on the Managing Director is clearly violative of
Article 14, as the provision suffers from the vice of excessive delegation of powers.

41. For these reasons, that part of Regulation 47 which gives the option to the Managing
Director to extend the service of an AH is struck down as invalid. The effect of
striking down this provision would be that an AH, unless the provision is suitably
amended to bring it in comfirmity with the provisions of Article 14 would continue to
retire at the age of 45 years and the Managing Director would be bound to grant
yearly extensions as a matter of course, for a period of ten years if the AH is found to
be medically fit. This will prevent the Managing Director from discriminating
between one AH and another.