M.M. DUTT, J.

(1) THIS appeal arises out of a suit for specific performance of an agreement for sale. The appellant is the assignee of the original plaintiff Bishnupada Bose.

(2) THE property in suit belonged to one Nemai Chandra Banerjee, the brother of the defendant No. 1 Nirmal chandra Banerjee. By an agreement dated February 24, 1950, Nirmal Chandra Banerjee agreed to sell the property to the plaintiff for a consideration of Rs. 10,000/ -. It is recited in the agreement that his brother Nemai suddenly disappeared on May 21, 1946. He was suffering from various ailments. He made searches for his brother but he could not be traced. He believes that his brother is not alive and that he has committed suicide. Further, it is stated that after the death of his brother he is his only heir and that he has been in enjoyment and possession of the disputed property. In order to be sure as to the death of his brother he agreed to defer the execution of the sale deed till six months after May 21, 1953. On the date of the agreement the plaintiff paid a sum of rs. 2,500/- to his vendor Nirmal Chandra Banerjee on account of earnest money. It is the plaintiff’s case that although he was ready and willing to perform his part of the contract the defendant No. 1 failed and neglected to complete the same by executing the sale deed as agreed. Instead, he transferred the disputed property by a registered deed of conveyance dated October 1, 1954, to the defendant No. 2, the predecessor-in-interest of the defendants Nos. 2 (a) to 2 (d). On the afore said allegations the plaintiff Bishnupada Ghosh prayed for a decree for specific performance of the contract or in the alternative, for refund of the earnest money.

(3) THE suit was contested by the defendant No. 2 and subsequently, after his death, by one of his heirs the defendant No. 2 (a). One of the contentions of the contesting defendant was that the agreement to sell executed by the defendant No. 1 in favour of the plaintiff was hit by the provision of section 6 (a) of the Transfer of Property Act, for what was agreed to be transferred was a mere chance of the vendor to succeed to his brother Nemai. The other defences, which were taken by the defendant, are not relevant for our present purpose.

(4) THE trial court came to the find ing that by the said agreement the defendant No. 1 agreed to transfer spes successionis and it was, therefore, hit by the provision of section 6 (a). In coming to the said finding the trial court took the view that no presumption of the death of Nemai arose on the day the said agreement was executed, for seven years did not pass from the date of his disappearance. Upon the said findings, the trial court dismissed the suit. On appeal by the plaintiff, the lower appellate court took the same view as that of the trial court. The lower appellate court held that the parties were aware of the truth that the defendant was an heir apparent to his elder brother, at the time of the agreement and that the agreement was in substance an agreement to transfer spes successionis which the defendant no. 1 had in the property. Further, it was held that the agreement taken as a whole showed that the vendor was not sure of the death of his elder brother from whom he would inherit the property and that he was conscious of his doubtful or inchoate title. According to the lower appellate court, as the defendant No. 1 was, on the date of the agreement, merely an heir apparent of Nemai, who was the owner of the property in the absence of any presumption under section 108 of the evidence Act, what was transferred by him was mere spes successionis. In that view of the matter, the lower appellate court upheld the judgment of the trial and dismissed the appeal. Hence, this second appeal.

(5) IN our view, both the courts below have misunderstood the legal position. Under section 6 of the Transfer of Property Act, property of any kind may be transferred except as otherwise provided by the Act or by any other law for the time being in force. Clauses (a) to (i) of section 6 enumerates the properties which cannot be transferred. Clause (a) provides that the chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred. What is forbidden by clause (a) is a mere chance of an heir succeeding to an estate or a mere possibility of a like nature. When the transfer is a transfer by an heir-apparent on his chance to succeed to an estate, the transfer will be hit by section 6 (a). But where the transfer is not of the right of expectancy but of the property itself, it cannot be said, to be a transfer of a mere chance to succeed to an estate. The position was made clear long ago in a Bench decision of the Allahabad high Court consisting of Sulaiman, c. J. and Rachhpal Singh, J. (Shyam narain Misir and another v. Mangal prasad Misir and others) reported to a. I. R. 1935 All. , 244. The question that arose for consideration in that case was whether there was a conflict between the illustration to section 43 of the Transfer of Property Act and section 6 (a). Their Lordships observed as follows :

“s. 6 does not prohibit emphatically the transfer of a chance of an heir ; nor does it make it absolutely illegal so as to vitiate the entire contract. It merely lays down that the property of any kind may be transferred, but the chance of an heir cannot be transferred. This is no more than saying that a transfer of a mere chance of an heir is void in law and is of no effect. S. 6 (a) would therefore apply to cases where professedly there is a transfer of a mere spes successionis, the parties knowing that the transferor has no more right than that of a mere expectant heir. The result, of course, would be the same where the parties knowing the full facts fraudulently clothe the transaction in the garb of an out and out sale of the property, and there is no erroneous re presentation made by the transferor to the transferee as to his owner ship. But where an erroneous representation is made by the transferor to the transferee that he is the full owner of the property transferred and is authorised to transfer it and the property transferred is not a mere chance of succession, but immovable property itself, and the transferee acts upon such erroneous representation, then if the transferor happens later, before the contract of transfer comes to an end, to acquire an interest in that properly, no matter whether by private purchase, gift, legacy or by inheritance or otherwise, the previous transfer can at the option of the transferee operate or the interest which has been subsequently acquired, although it did not exist at the time of the transfer. ”

(6) IT is clear from the above observation that unless the transfer is professedly of a mere spes successionis and the parties are aware of the same, it does not come within the purview of section 6 (a). When the property transferred is not a mere chance of succession, but immovable property itself, the transfer is not hit by section 6 (a). In the instant case, the agreement to sell relates to the immovable property, that is, the property in suit, and not a mere chance of succession of the defendant No. 1 to that property as an heir of his elder brother Nemai.

(7) IT is true that on the date the agreement was executed, that is, after 3 years 9 months of the date of disappearance of Nemai, the legal presumption under section 108 of the Evidence act was not available. In our opinion, the provision of section 108 is not relevant. The defendant No. 1 believed that his brother was dead and that be inherited the disputed property as his sole hair. He agreed to transfer the property itself to the plaintiff Bishnupada Bose on the footing of his firm belief that his brother was dead. By no stretch of imagination can it be said that he agreed to transfer his chance of succession. It is true that the execution of the deed of sale or the completion of the sale was deferred till six months after May 21, 1953, that is, after 7 years, in order to avail of that legal presumption. But, in our view that is quite immaterial. That might have been done for the purpose of fortifying or strengthening his sound belief that his brother was dead and also for the purpose of an additional assurance. But that has nothing to do with the question whether he agreed to transfer a mere chance of succession to his brother’s estate. The courts below thought that after the lapse of 7 years, his brother could be said to have died. Section 108 of the Evidence Act does not lay down any such provision. All that has been provided for in that section is that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. It only raises a presumption of death when a person is not heard or for seven years. But it does not say that after the lapse of seven years it can be said that the man is definitely dead. In this connection we may refer to Article 624, page 345, Vol. 15, 3rd Edition of Halsbury’s Laws of england, which is as follows :

“there is no legal presumption either that the person concerned was alive up to the end of the period of not less than seven years, or that he died at any particular point of time during such period, the only presumption being that he was dead at the time the question arose, if he has not been heard of during the preceding seven years. If it is necessary to establish that a person died at any particular date within the period of seven years, this must be proved as a fact by evidence raising that inference ; for example, that when last heard of he was in bad health. or exposed to unusual perils, or had failed to apply for a periodical payment upon which he was dependent for support. ”

(8) APART from the legal presumption under section 108, it can be shown that the man died at any time after his disappearance, even before the expiry of the period of seven years. In this case, the statements in the agreement, which have not been denied or disputed by the defendant, show that nemai was suffering from various aliments and that accordingly, the defendant No. 1 was justified in inferring that his brother was dead.

(9) IT has been already stated that section 108 of the Evidence Act is not relevant for the purpose of considering as to whether the agreement is hit by section 6 (a) of the Transfer of Property Act. All that has to be seen is whether by a contract of transfer or by a deed of transfer, spes successionis is agreed to be transferred or has been transferred. In this case, the defendant No. 1 agreed to transfer the immovable property itself and not his right of expectancy. In the circumstances, in our view, the agreement is not void ad held by the courts below.

(10) IT is not disputed that the defendant No. 2, the predecessor-in-interest of the present contesting respondent, purchased the disputed property from the defendant No. 1 with know ledge of the agreement in favour of the plaintiff Bishnupada Bose. In these circumstances, the sale of the disputed property by the defendant No. 1 to the defendant No. 2 is void. The plaintiff must succeed and he is entitled to a decree as prayed for by him.

(11) IN the result, the judgments and decrees of the courts below are set aside. The suit for specific performance is decreed with costs against the contesting defendant No. 2 (a). The appellant is directed to deposit in the trial court a sum of Rs. 7,500/- (Rupees seven thousand and five hundred), the balance of the consideration money, to the credit of the defendants nos. 2 (a) to 2 (d) within one month of the arrival of the records in the trial court. The appellant shall also put in within the said period, the requisite stamps, draft conveyance and the cost of registration. The defendant No. 1 nirmal Chandra Banerjee is directed to execute and register a deed of sale in respect of the disputed property within two months of the arrival of the records in the trial court. The defendants Nos. 2 (a) to 2 (d) will also join in the sale deed that will be executed by the vender, the defendant no. 1. If the defendants fail to execute the document of sale as directed, the trial court will execute the sale deed on behalf of all the defendants and get the same registered in accordance with law at the cost of the appellant. The defendants Nos. 2 (a) to 2 (d) are also directed to deliver possession of the disputed property to the appellant within two months of the arrival of the records in the trial court, failing which the appellant will be entitled to recover khas possession of the disputed property in execution of the degree. The appeal is allowed, but there will be no order for costs in this Court.

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Munnu Raja & Anr
v.
The State Of Madhya Pradesh
Criminal Appeal No. 227 Of 1972

DATE: 20-11-1975

JUDGMENT

CHANDRACHUD, J.

1. The appellants, Munnu Raja and Chhuttan, were tried by the learned Sessions Judge, Chatarpur on the charge that at about 10 a.m. On April 30, 1969 they committed the murder of one Bahadur Singh. In support of its case, the prosecution relied upon the evidence of Santosh Singh (P.W. 1 ) and Mst. Gumni (P.W. 4) who claimed to be eye witnesses and on three dying declarations alleged to have been made by the deceased. The two eye witnesses were permitted to be cross-examined by the Public Prosecutor as they supported the case of the prosecution only partly. Santosh Singh stated that he saw Chhuttan assaulting Bahadur Singh with a spear but that he did not see Munnu Raja at all. On the other hand, Mst. Gumni stated that it was Munnu Raja and not Chhuttan who assaulted the deceased. Since the two principal witnesses turned hostile, the learned Sessions Judge thought it unsafe to rely on their testimony and, in our opinion, rightly. The learned Judge was also not impressed by any of the dying declarations with the result that he came to the conclusion that the prosecution had failed to establish its case beyond a reasonable doubt. In that view of the matter, the appellants were acquitted by the learned Judge.

2. Being aggrieved by the order of acquittal, the State Government filed an appeal in the High Court of Madhya Pradesh, which was allowed by a Division Bench of that Court by its judgment dated September 8, 1972. The High Court did not discard the evidence of the eye witnesses but utilised it by way of corroboration to the dying declarations alleged to have been made by the deceased. Setting aside the order of acquittal, the High Court has convicted the appellants under s: 302 read with s. 34 of the Penal Code and has sentenced each of them to imprisonment for life. The appellants have filed this appeal under s. 2(1) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.We have heard Mr. Mohan Behari Lal on behalf of the appellants at some length and we have considered each of his submissions care fully. It is however unnecessary to discuss every one of the points made by him because, basically, the scope of this appeal-not for getting that the appellants had a right to file this appeal in this Court-lies within a narrow compass. As we have indicated earlier, no exception can be taken to the view taken by the learned Sessions Judge that it is not safe to place reliance on the testimony of Santosh Singh and Mst. Gumni. They resiled from their police statements and it is evident that they have no regard for truth. Their evidence cannot be used to corroborate-the dying declarations either.

3. We are thus left with the three dying declarations made by Bahadur Singh and since the prosecution has placed great reliance on them, we thought it necessary to hear the learned counsel fully on the facts and circumstances leading to the dying declarations.

4. In regard to these dying declarations, the judgment of the Sessions Court suffers from a patent infirmity in that it wholly overlooks the earliest of these dying declarations, which was made by the deceased soon after the incident in the house of one Barjor Singh. The second statement which has been treated by the High Court as a dying declaration is Ex. P-14, being the first information report which was lodged by the deceased at the police station. The learned Sessions Judge probably assumed that since the statement was recorded as a first information report, it could not be treated as a dying declaration. In this assumption, he was clearly in error. After making the statement before the police, Bahadur Singh succumbed to his injuries and therefore the statement can be treated as a dying declaration and is admissible under section 32(1) of the Evidence Act. The maker of the statement is dead and the statement relates to the cause of his death.The High Court has held that these statements are essentially true and do not suffer from any infirmity. It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated: [see Khushal Rao v. State of Bombay]. The High Court, it is true, has held that the evidence of the two eye witnesses corroborated the dying declarations but it did not come to the conclusion that the dying declarations suffered from any infirmity by reason of which it was necessary to look out for corroboration.

5. It was contended by the learned counsel for the appellants that the oral statement which Bahadur Singh made cannot, in the eye of law, constitute a dying declaration because he did not give a full account of the incident or of the transaction which resulted in his death There is no substance in this contention because in order that the Court may be in a position to assess the evidentiary value of a dying declaration, what is necessary is that the whole of the statement made by the deceased must be laid before the Court, without tampering with its terms or its tenor. Law does not require that the maker of the dying declaration must cover the whole incident or narrate the case history. Indeed, quite often, all that the victim may be able to say is that he was beaten by a certain person or persons. T hat may either be due to the suddenness of the attack or the conditions of visibility or because the victim is not in a physical condition to recapitulate the entire incident or to narrate it at length. In fact, many a time, dying declarations which are copiously worded or neatly structured excite suspicion for the reason that they bear traces of tutoring.It was urged by the learned counsel that after the attack, the deceased was all along accompanied by a large number of persons and one cannot therefore exclude the possibility that he was tutored into involving the appellants falsely. We see no basis for this submission because not even a suggestion was made to any of the witnesses that the de ceased was tutored into making the statement. The deceased, on his own, did not bear any enmity or hostility to the appellants and had therefore no reason to implicate them falsely. Indeed, none of the persons who were in the company of the deceased after he was assaulted, is shown to have any particular animus for implicating the appellants falsely.

6. In regard to the second dying declaration, Ex. P-14, the main objection of the learned counsel is that it was made to the investigating officer himself and ought therefore be treated as suspect. In support of this submission, reliance was placed on a Judgment of this Court in Balak Ram v. State of U.P. The error of this argument consists in the assumption that the dying declaration was made to an investigating officer. The statement, Ex. P.14, was made by Bahadur Singh at the police station by way of a first information report. It is after the information was recorded, and indeed because of its that the investigation commenced and therefore it is wrong to say that the statement was made to an investigating officer. The Station House officer who recorded the statement did not possess the capacity of an investigating officer at the time when he recorded the statement. The judgment on which the counsel relies has therefore no application.

7. We are in full agreement with the High Court that both of these dying declarations are true. We are further of the opinion that considering the facts and circumstances of the case, these two statements can be accepted without corroboration. Bahadur Singh was assaulted in broad day light and he knew the appellants. He did not bear any grudge towards them and had therefore no reason to implicate them falsely. Those who were in the constant company of Bahadur Singh after the assault, had also no reason to implicate the appellants falsely. They bore no ill-will or malice towards the appellants. We see no infirmity attaching to the two dying declarations which would make it necessary to look out for corroboration.We might, however, mention before we close that the High Court ought not to have placed any reliance on the third dying declaration. Ex. P-2, which is said to have been made by the deceased in the hospital. The investigating officer who recorded that statement had undoubtedly taken the precaution of keeping a doctor present and it appears that some of the friends and relations of the deceased were also present at the time when the statement was recorded. But, if the investigating officer thought that Bahadur Singh was in a precarious condition, he ought to have requisitioned the services of a Magistrate for recording the dying declaration. Investigating officers are naturally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of investigation ought not to be encouraged. W e have therefore excluded from our consideration the dying declaration, Ex. P-2, recorded in the hospital.

8. The High Court was, therefore, justified in reversing the order of acquittal passed by the Sessions Court and in convicting the appellants of the offence of which they were charged. In so doing, the High Court did not violate any of the principles governing appeals against acquittal, to which our attention was drawn by the appellants’ counsel from time to time.

9. In the result, we confirm the judgment of the High Court and dismiss the appeal.

10. Appeal dismissed.

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ACT:
Statutory Corporations–Regulations made by, whether have force of law–Whether employees of corporation are servants of Union or State. Constitution of India, Art. 12–Whether statutory corporations are ‘State’ or ‘authority’.

RAY, C.J.

There are two questions for consideration in these appeals. First, whether an order for removal from service contrary to regulations framed under the Oil and Natural Gas Commission Act, 1959; the Industrial Finance Corporation Act, 1948; and the Life Insurance Corporation Act, 1956 would enable the employees to a declaration against the statutory corporation of continuance in service or would only give rise to a claim for damages. Second whether an employee of a statutory corporation is entitled to claim protection of Articles 14 and 16 against the Corporation. In short the question is whether these statutory corporations are authorities within the meaning of Article 12.

The statutes for consideration are the Oil and Natural Gas Commission Act, 1956; the Industrial Finance Corporation Act. 1948; and the Life Insurance Corporation Act, 1956. The question which really falls for decision is whether regulations framed under these statutes have the force of law.

The Oil and Natural Gas Commission Act, 1959 hereinafter referred to as the 1959 Act established the Commission as a body corporate having perpetual succession and a common seal. The composition of the Commission is the Chairman, and not less than two, and not more than eight, other members appointed by the Central Government. One of the members shall be a whole-time, Finance Member in charge of the financial matters relating to the Commission. The Central Government may, if it thinks fit, appoint one, of the members as Vice-Chairman of the Commission. Under sect ion 12 of the 1959 Act the Commission may, for the purpose of performing its functions or exercising its powers, appoint such number of employees as it may consider necessary. The functions and the terms and conditions of service of such employees shall be such as may be provided by regulations made under the 1959 Act. There was an existing Organisation set up in pursuance of a resolution of the Government of India No. 22/29/55-O &G dated 14th August, 1956. Every person employed by the said existing Organisation before the establishment of the Commission became an employee of the Corporation in accordance with the provisions contained in section 13 of the 1959 Act.Sections 31 and 32 of the 1959 Act are important . Section 31 states that the Central Government may, by notification in the Official Gazette, make rules to give effect to the provisions of the Act. The rules provide inter alia for the term of office of, and the manner of filling casual vacancies among the members, and their conditions of service; the disqualifications for membership of the Commission and the procedure to be followed in removing a member who is or becomes subject to any disqualification; the procedure to be followed in the discharge of functions by members; the conditions subject to which and the mode in which contracts may be entered into by or on behalf of the Commission and some other matters. Every rule made under section 31 of the 1959 Act shall be laid as soon as may be before each House of Parliament as mentioned in the section. Both Houses may agree to or annul the rule or modify Under section 32 of the 1959 Act the Commission may, with the previous approval of the Central Government, by notification in the Official Gazette, make regulations not inconsistent with the Act and the rules made thereunder, for enabling it to discharge its functions under the Act. The regulations provide inter alia for the terms and conditions of appointment and service and the scaler, of pay of employees of the Commission the time and place of meetings of the Commission, the procedure to be, followed in regard to the transaction of business at such meetings; the maintenance of minutes of meetings of the Commission and the transmission of copies thereof to the Central Government; the persons by whom, and the, manner in which payments, deposits and investments may be made on behalf of the Commission; the custody of ‘moneys required and the maintenance of accounts. The Central Government may amend, very or rescind any regulation which it has approved, and thereupon the regulation shall have effect accordingly but without prejudice to the exercise of the powers of the Commission under sub-section. (1) of section 32.The Life Insurance Corporation Act, 1956 hereinafter referred to as the 1956 Act established the Corporation under section 3 of the Act. Under section 11 of the 1956 Act existing employees of an insurer whose controlled business was transferred to and vested in the Corporation and who were employed by the insurer wholly or mainly in connection with his controlled business immediately before the appointed day became on and from the appointed day an employee of the, Corporation. Section 11 of the 1956 Act further states that the employees of the Corporation would hold office upon the same on the appointed day. These employees were further to continue terms and with the same rights and duties as they would have held under the 1956 Act unless and until their employment was terminated or until the remuneration, terms and conditions were duly altered by the Corporation.

The two important sections of 1 956 Act are sections 48 and 49. Section 48 states that the Central Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act. The rules inter-alia provide for the term of office and the conditions or service of members; the jurisdiction of the Tribunals constituted under section 17 of the Act, , the manner in which and the persons to whom, any compensation under this Act may be paid; the condition-, subject to which the Corporation may appoint employees. All rules made shall be laid as started in the section before both Houses of Parliament and. shall be subject to such modification as Parliament may make.

Section 49 of the 1956 Act states that the Corporation may, with the previous approval of the Central Government, by notification in the Gazette of India, make regulations not inconsistent With the Act. and the rules made thereunder to provide for all matters for which provision is expedient for the purpose of giving effect to the provisions of this Act. The regulations may provide inter alia for the powers and functions of the Corporation which may be delegated to the Zonal Managers; the method of recruitment of employees and agents of the Corporation and the term s and conditions of service of such employees or agents; the terms and conditions of service of persons who have become employees of the Corporation under section 11 of the Act; the number, term of office and conditions of service of members of Boards constituted under section 22 of the Act; the manner in which the Fund of the Corporation shall be maintained; the form and manner in which policies may be issued and contracts binding on the Corporation may be executed.The industrial Finance Corporation Act, 1948 hereinafter referred to as the 1948 Act establishes the Corporation under section 3 of the Act. The superintendence of the business of the Corporation shall be entrusted to a Board of Directors. Sect ion 42 of the 1948 Act enacts that the Central Government may make, rules in consultation with the Development Bank not inconsistent with the provisions of this Act and to give effect to the provisions of the Act and where there is any inconsistency with rules and regulations the rules shall prevail. The rules under the Act are to be laid before each House of Parliament in the same. manner as in the Oil and Natural Gas Commission Act. section 43 of the 1948 Act enacts that the Board may with the previous approval of the Development Bank make regulations not inconsistent with the Act and the rules made thereunder to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the pro visions of this Act. The Development Bank means the Industrial Development Bank established under the Industrial Development Act, 1964. The shares of the Central Government in the Corporation shall stand transferred to the Deve lopment Bank when the Central Government shall so notify. The regulations provide inter alia for the holding and conduct of elections under this Act including the final decision of doubts or disputes regarding the validity of the election; the ma nner in which and the conditions subject to which the shares of the Corporation may be held and transferred; the manner in which general meeting’s shall be convened, the procedure to be followed thereat; the duties and conduct, salaries, allowances and conditions of service of officers and other employees and of advisers and agents of the Corporation.The contentions on behalf of the State are these. Regulations are framed under powers given by the statute affecting matters o f internal management. Regulations do not have a statutory binding character. Terms and conditions of employees as laid down in the regulations are not a matter of statutory obligations. Regulations are binding not as law but as contract. Regulations have no force of law. Regulations provide the terms and conditions of employment and thereafter the, employment of each person is contractual.

The contentions on behalf of the employees are these. Regulations are made under the statute. The origin and source of the power to make regulations is statutory. Regulations are self binding in character. Regulations have the force of law inasmuch as the statutory authorities have no right to make any departure from the regulations.

Rules, Regulations, Schemes, Bye-laws, orders made under statutory powers are all comprised in delegated legislation The need for delegated legislation is that statutory rules are framed with care and minuteness when the statutory authority mating the rules is after the coming into force of the Act in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experienced and consultation with interests affected by the practical operation of statues.

In England the Statutory Instruments (Confirmatory Powers) Order, 1947 contemplates orders in Council or other instruments which are described as orders. The Rules Publication Act 1893 in England defines “rule making authority” to include every authority authorised to make any statutory rules. Statutory rules are defined there as rules, regulations or by-laws made under any Act of Parliament, in England. Orders are excluded from the statutory definition of statutory rules as being administrative. In England regulation is the term most popularly understood and the one favoured by the Committee on Ministers, Powers, who suggested that regulations should be used for substantive, law and rules for procedural law, while orders should be reserved to describe the exercise of executive power or the taking of a judicial or quasi judicial decision (See Craies on Statute Law, 7th Ed. at p. 303). The validity of statutory instruments is generally a question of vires, i.e., whether or not the enabling power has been exceeded or otherwise wrongfully exercised.Subordinate legislation is made by a person or body by virtue of the powers conferred by a statute. By-laws are mad e in the main by local authorities or similar bodies or by statutory or other undertakings for regulating the conduct of persons within their areas or resorting to their undertakings. Regulations may determine the class of cases in which the exercise of the statutory power by any such authority constitutes the making of statutory rule.

The words “rules” and “regulations” are used in an Act to limit the power of the statutory authority. The powers of statutory bodies are derived, controlled and restricted by the statutes which create them and the rules and regulations framed thereunder. Any action of such bodies in excess of their power or in violation of the, restrictions placed on their powers is ultra vires. The reason is that it goes to the root of the power of such corporations and the declaration of nullity is the only relief that is granted to the aggrieved party.

In England subordinate legislation has, if validly made, tile full force and effect of a statute , but it differs from a statute in that its validity whether as respects form or substance is normally open to challenge in the, Courts.

Subordinate legislation has, if validity made, the, full force, and effect of a statute. That is so whether or not the statute under which it is made provides expressly that it is to have effect as if enacted therein. If an instrument made in the exercise of delegated powers directs or forbids the doing of a particular thing the result of a breach thereof is, in the absence of provision to the contrary, the same as if the command or prohibition had been contained in the enabling statute itself. Similarly, if such an instrument authorises or requires the doing of any act, the principles to be applied in determining whether a person injured by the act has any right of action in respect of the injury are not different from those applicable whether damage results from an act done under the direct authority of a statute, Re Langloi s and Biden, (1891) 1 Q.B. 349 and Kruse v. Johnson, (1898) 2 Q.B. 91.The authority of a statutory body or public administrative body or agency ordinarily includes the power to make or adopt rules and regulations with respect to matters within the province of such body provided such rules and regulations are not inconsistent with the relevant law. In America a “public agency” has been defined as an agency endowed with governmental or public functions. It has been held that the authority to act with the sanction of Government behind it determines whether or not a governmental agency exists. The rules and regulations comprise those actions of the statutory or public bodies in which the legislative element predominates. These statutory bodies cannot use the power to make rules and regulations to enlarge the powers beyond the scope intended by the legislature. Rules and regulations made by reason of the specific power conferred on the statute to make rules and regulations establish the pattern of conduct to be followed. Rules are duly made relative to the subject matter on which the statutory bodies act subordinate to the terms of the statute under which they are promulgated. Regulations are in aid of the enforcement of the provisions of the statute. Rules and regulations have been distinguished from orders or determination of statutory bodies in the sense that the orders or determination are actions in which there is more of the judicial function and which deal with a particular present situation. Rules and regulations on the other hand are actions in which the legislative element predominates. The process of legislation by departmental regulations saves time ‘and is in tended to deal with local variations and the power to legislate by statutory instrument in the form of rules and regulations is conferred by Parliament and can be taken away by Parliament. The legislative function is the making of rules. Some Acts of Parliament decide particular issues and Po not lay down general rules.The justification for delegated legislation in threefold. First, there is pressure on parliamentary time. Second, the technicality of subject matter necessitates prior consultation and expert advice on interests concerned. Third, the need for flexibility is established because it is not possible to foresee every administrative difficulty that may arise to make adjustment that may be called for after the statute has begun to operate. Delegated legislation fills those needs.

The characteristic of law is the manner and procedure adopted in many forms of subordinate legislation. The authority making rules and regulation must specify the source of the rule and regulation making authority. To illustrate, rules are always framed in exercise of the specific power conferred by the statute to make rules. Similarly, regulations are framed in exercise of specific power conferred by the statute to make regulations. The essence of law is that it is made by the law-makers in exercise of specific authority. The vires of law is capable of being challenged if the power is absent or has been exceeded by the authority making rules or regulations.

Another characteristic of law is its content. Law is a rule of general conduct while administrative instruction relates to particular person. This may be illustrated with reference to regulations under the Acts forming the subject matter of these appeals. The Life Insurance Corporation Act as well as the Industrial Finance Corporation Act confers power on the Corporation to make regulations as ‘Lo the method of recruitment of employees and the terms and conditions of service of such employees or agents. The Oil and Natural Gas Commission Act under section 12 states that the functions and terms and conditions of service of employees shall be such as may be provided by regulations under the Act. Regulations under the 1959 Act provide inter alia the terms and conditions of appointment and scales of pay of the employees of the Commission. The regulations containing the terms and conditions of appointment are imperative. The administrative instruction is the entering into contract with a particular person but the form and content of the contract is prescriptive and statutory.The noticeable feature is that these, statutory bodies- have no free hand in framing the conditions and terms of service of their employees. These statutory bodies are bound to apply the terms and conditions as laid down the regulations. The statutory bodies are not free to make such terms as they think fit and proper. Regulations prescribe the terms of appointment, conditions of service and procedure for dismissing employees. These regulations in the statutes are described:as “status fetters on freedom of contract”. The Oil and Natural Gas , Commission Act in section 12 specifically enacts that the terms and , conditions of the employees may be such as may be provided by regulations. There is a legal compulsion on the Commission to comply with the regulations. Any breach of such compliance would be a breach of the regulations which are statutory provisions. In other , statutes under consideration, viz., the Life Insurance Corporation Act and the Industrial Finance Corporation Act though there is no specific provision comparable to sect ion 12 of the 1959 Act the terms and conditions of employment and conditions of service are provided for by regulations. These regulations are not only binding on the authorities but also on the public.

Broadly stated, the distinction between rules and regulations on the one hand and administrative instructions on the other is that rules and regulations can be made only after reciting the source of power whereas administrative instructions are not issued after reciting source of power. Second the executive power of a State is not authorised to frame rules under Article 162. This Court held that the Public Works Department Code was not a subordinate legislation (See G. J. Fernandes v. State of Mysore &Ors. (1967 ) 3 S.C.R. 636. The, rules under Article 309 on the other hand constitute not only the constitutional rights of relationship between the State and the Government servants but also establish that there must be specific power to frame rules and regulations.The Additional Solicitor General submitted that regulations could not have the force of law because these regulations are similar to regulations framed by a company incorporated under the Companies Act. The fallacy lies in equating rules and regulations of a company with rules and regulations framed by a statutory body. A company makes rules and regulations in accordance with the provisions of the Companies Act. A statutory body on the other hand makes rules and. regulations by and under the powers conferred by the Statutes creating such bodies. Regulations in Table-A of the Companies Act are to be adopted by a company. Such adoption is a statutory requirement. A company cannot come into existence unless it is incorporated in Accordance with the provisions of the Companies Act. A company cannot exercise powers unless the company follows the statutory provisions. The provision in the Registration Act requires registration of instruments. The provisions in the Stamp Act contain provisions for stamping of documents. The non-compliance with statutory provisions will render a document to; be of no effect. The source of the, power for making rules and regulations in the case of Corporation created by a statute is the statute itself. A company incorporated tinder the Companies Act is not created by the Companies Act but comes into existence in accordance with the provisions of the Act. It is not a statutory body because it is not created by the statute. It is a body created in accordance with the provisions of the statute.

The character of regulation has been decided by this Court in several decisions. One group of decisions consists of S. R. Tewari v. District Board Agra (1964 ) 3 S.C.R. 55); Life Insurance Corporation of India v. Sunil Kumar Mukherjee (1964) 5 S.C.R. 528); Calcutta Dock Labour Board v. Jaffar Imam (1965) 3 S.C.R. 453); Mafarlal Naraindas Barot v. Divisional Controller S.T.C. (1966) 3 S.C.R. 40); T he Sirsi Municipality v. Cecelia Kom Francis (1973) 1 S.C.C. 409); U.P. State Warehousing Corporation v. C. K. Tyagi (1970) 2 S.C.R. 250) and Indian Airlines Corporation v. Sukhdeb Rai (1971 2 S.C.C. 192).In Naraindas Barot’s case this Court held that the termination of services by Corporation created by a statute without complying with the requirements of the regulations framed by the Corporation under the State Governing conditions of the employees of the Corporation was bad . The reason is that the termination contravened the provisions contained in the regulations.

In Tewari’s case the termination of the employment of Tewari was challenged on the ground that the resolution of the District Board terminating the services was invalid. The High Court dismissed Tewari’s application under Article 226 in limine. This Court held that the Courts are invested with the power to declare invalid the, act of a statutory body, if by doing the act the body has acted in breach of the mandatory obligation imposed by statute. The District Boards Act conferred power upon the State Government by section 172 to make rules under the Act. The District Board relied on a notification headed “Regulation regarding dismissal, removal or reduction of officers and servants of District Board”. It was treated as a rule inasmuch as section 173 (2) of the District Boards Act which conferred power to frame regulations did not confer any power to frame powers regulating the exercise of the power of dismissal of officers of servants of the Board.

This Court held that under the rules dismissal, removal or reduction of an officer or servant might be effected only after affording him a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. In Tewari’s case this Court also said that the order of dismissal involving punishment must be exercised consistently with the rules or regulations framed under the Statute.

In the Life Insurance Corporation case, there were regulations framed under the Act. Clause 4(3) of the Regulations prescribed that in Judging a Field officer’s work, the Corporation shall observe the principles contained in the circular issued by the Managing Director on 2 December, 1957. Paragraph 4(h) of the circular which became an integral part of the regulations inter alia stated that where the Committee of its own decided that the poor performance of a Field Officer was not due to circumstances beyond his control or that he had made no efforts and not shown inclination or willingness to work, the services of such Field Officer would be terminated. There was also in existence a Field Officer’s order which was issued in exercise of the powers conferred on the Central Government by section 11(2) of the Act. Clause 10 of the order provided for penalities and termination of service. The contention of the employee was t hat the termination of service could be brought about only under clause 10 of the Order. This Court held that the regulations to be framed by the Corporation were not to be inconsistent either with the Act or with orders made under section 11 (2) of the Act. The circular which was a part of the regulations under clause 4(3) thereof and clause 10 of the order were reconciled by this Court by stating that paragraph 4(b) of the circular could be availed of to terminate the service s of the officers but such termination was to be effected in the manner prescribed by clause 10. The termination was not in accordance with either clause 10(a) or (b) of the order. Therefore, the termination was invalid. The Life Insurance case (supra) recognised regulations framed under Act to have the force of law.In the Indian Airlines Corporation case this Court said that there being no obligation or restriction in the Act or the rules subject to which only the power to terminate the employment could be exercised the employee could not contend that he was entitled to a declaration that the termination of his employment was null and void. In the Indian Airlines Corporation case reliance was placed upon the decision of Kruse v. Johnson (1898) 2 O.B. 91 for the view that not all by-laws have the force of law. This Court regarded regulation as the same thing as by-laws. In Kruse v. Johnson the Court was simply describing the effect that the county by-laws have on the public. The observations of the Court in Kruse v. Johnson that the by-law “has the force of law within the sphere of its legitimate operation” are not qualified by the words that it is so “only when affecting the public or some section of the public …. ordering some- thing to be done or not to be done and accompanied by some sanction or penalty for its non-observance.” In this view a regulation is not an agreement or contract but a law binding the corporation, its officers, servants and the members of the public who come within the sphere of its operations. The doctrine of ultra vires as applied to statutes, rules and orders should equally apply to the regulations and any other subordinate legislation. The regulations made under power conferred by the statute are subordinate legislation and have the force and effect, if validly made, as the Act passed by the competent legislature.

In U.P. Warehousing Corporation and Indian Airlines Corporation cases the terms of the regulations were treated as terms and conditions of relationship between the Corporation and its employees.’ That does not lead to the conclusion that they are of the same nature and quality as the terms and conditions laid down in the contract of employment. Those terms and conditions not being contractual are imposed. by one kind of subordinate legislation, viz., regulations made in exercise of the power conferred by the statute which constituted that Corporation. Terms of the regulations are not terms of contract. In the Indian Airlines Corporation case under section 45 of the Air Corporations Act, 1953, the Corporation had the power to make regulations not inconsistent with the Act and the rules made by the Central Government thereunder. The Corporation had no power to alter or modify or rescind the provisions of these regulations at its discretion which it could do in respect of the terms of contract that it may wish to enter with its employees independent of these regulations. So far as the terms of the regulations are concerned, the actions of the Corporation are controlled by the Central Government. The decisions of this Court in U.P. Warehousing Corporation and Indian Airlines Corporation are in direct conflict with decision of this Court in Naraindas Barot’s case which was decided by the Constitution Bench.In Sirsi Municipality v. Cecelia Kom Francis Tellis (supra), the dismissal was held to be contrary to rule 143 framed under section 46 of the Bombay District Municipalities Act. This Court held that in regard to the master-servant cases in the employment of the State or of other public or local authorities or bodies created under statute, the court s have decided in appropriate cases the dismissal to be invalid if the dismissal is contrary to rule of natural justice or if the dismissal is in violation of the provisions of the statute. Where a State or a public authority dismisses an employee in violation of the mandatory procedural requirements on grounds which are not sanctioned or sup- ported by statute the courts may exercise jurisdiction to declare the act, of dismissal to be a nullity. The ratio is that the rules or the regulations are binding on the authority.

There is no substantial difference between a rule and a regulation inasmuch as both are subordinate legislation under powers conferred by the statute. A regulation framed under a statute applies uniform treatment to every one or to all members of some group or class. The Oil and Natural Gas Commission, the Life Insurance Corporation and Industrial Finance Corporation are all required by the statute to frame regulations inter alia for t he purpose of the duties and conduct and conditions of service of officers and other employees. These regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the conditions of service. A ny deviation will be enforced by legal sanction of declaration by courts to invalidate actions in violation of rules and regulations. The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude t o that conduct as a standard. The statutory regulations in the cases under consideration give the employees a statutory status and impose restriction on the employer and the employee with no option to vary the conditions. An ordinary individual in a case of master and servant contractual relationship enforces breach of contractual terms. The remedy in such contractual relationship of master and servant is damages because personal service is not capable of enforcement. In cases of statutory bodies, there is no personal element whatsoever because of the impersonal character of statutory bodies. In the case of statutory bodies it has been said that the element of public employment or service and the support of statute require observance of rules and regulations. Failure to observe requirements by statutory bodies is enforced by courts by declaring dismissal in violation of rules and regulations be void. This Court has repeatedly observed that whenever a mans rights are affected by decision taken under statutory powers, the Court would presume the existence of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute.On behalf of the State it is contended that these Corporations cannot be said to be “other authority” contemplated in Article 12 for two principal reasons. First, one of the, attributes of a State is making laws. The State exercises governmental functions and the executive power of the State is co-extensive with the legislative power of the State. Second, authority as contemplated in Article 12 means a body of persons established by statute who are entitled as such body t o command obedience and enforce directions issued by them on pain of penalty for violation. On these grounds it was said that these corporations cannot make laws like a State and cannot enforce directions.

The State undertakes commercial functions in combination with Governmental functions in a welfare State. Governmental function must be authoritative. It must be able to impose decision by or under law with authority. The element of authority is of a binding character. The rules and regulations are authoritative because these rules and regulations direct and control not only the exercise of powers by the Corporations but also all persons who deal with these corporations.

This Court in Rajasthan State Ee letricity Board, Jaipur v. Mohan &Ors. (1967) 3 S.C.A. 377) said that an “authority is a public administrative agency or corporation having quasi-governmental powers and authorised to administer a revenue-producing public enterprise. The expression “other authorities” in Article 12 has been held by this Court in the Rajasthan Electricity Board case to- be wide enough to include within it every authority created by a statute and functioning within the territory of India, or under the control of the Government of India. This Court further said referring to earlier decisions that the expression “Other authorities” in Article 12 will include all constitutional or statutory authorities on whom powers are conferred by law. T he State itself is envisaged under Article 298 as having the right to carry on trade and. business. The State as defined in Article 12 is comprehended to include bodies created for the purpose of promoting economic interests of the people. The circumstance that the statutory body is required to carry on some activities of the nature of trade or commerce does not indicate that the Board must be excluded from the scope of the word “State.” The Electricity Supply Act showed that the Board had power to give directions, the disobedience of which is punishable us a criminal offence. The power to issue directions and to enforce compliance is an important aspect.The concurring Judgment in the Rajasthan Electricity Board case said that the Board was invested by statute with extensive powers of control over electricity undertakings. The power of the Board to make rules and regulations and to administer the Act was said to be in substance the sovereign power of the State delegated to the Board.

In the British Boardcasting Corporation v. Johns (Inspector of Taxes) (1965) 1 Ch. 32) it was said that persons who are created to carry out governmental purposes enjoy immunity like Crown servants. Government purposes include the traditional provinces of Government as well as non- traditional provinces of Government if the Crown has constitutionally asserted that they are to be within the province of government. The British Boardcasting Corporation was held not to be within the province of government because broadcasting was not asserted by the government to be within the province of government. The Wireless Telegraphy Act provided for regulation of wireless telegraphy by a system of licences. The Court gave two reasons as to why the Broadcasting Corporation was not within the province of the government. If the Broadcasting Corporation was exercising functions required and created for the purpose of government. it is difficult to see why a licence was required to be issued to it. Again, it is difficult to understand why in the event of an emergency powers should be given to the Postmaster-General to direct that the broadcasting stations of the Corporation should be deemed to be in possession of Her Majesty if it be the fact that such stations are already used for purposes of exercising functions required and created for purposes of the Government.

A public authority is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private profit. Such an authority is not precluded from making a profit for the public benefit. (See Halsbury’s Laws of England 3rd. Ed. Vol. 30 paragraph 1317-at p.682).The oil-fields (Regulation and Development) Act, 1948 defines oilfield” as any area where any operation for the purpose of obtaining natural g as and petroleum, crude oil, refined oil, partially refined oil and any of the products of petroleum in a liquid or solid state, is to be or is being carried on. Section 4 of the said 1948 Act states that no mining lease shall be granted after the commencement of the Act otherwise than in accordance with the rules made under the Act. Section 5 of the said 1948 Act confers power on the Central Government to make rules for regulating grant of mining leases of prohibiting grant of leases. Section 6 of the said 1948 Act wafers power on the Central Government to make rules for the conservation and development of mineral oils. Mining gas includes natural gas and petroleum. Section 9 of the said 1948 Act states that any rule made under any of the provisions of the Act may provide that any contravention thereof shall be punishable with the imprisonment which may extend to six months or with fine which may extend to one thousand rupees or with both. The Petroleum Concession Rule, 1949 says that the Central Government grants approval for searching, drilling and producing petroleum and licences for exploring and prospecting. The Oil and Natural Gas Commission is given merely the duty to perform the leases.

The 1959 Act speaks in section 14 of the functions of the Commission and in section 15 of the powers of the Commission. The functions of the Commission are to plan, promote, organise and implement programmes for the development of petroleum resources and the production and sale of petroleum and petroleum products produced by it and to perform such functions as the Central Government may, from time to time assign to the Commission. The powers of the Commission are such as may be necessary and expedient for the purpose of carrying out the functions under the Act. The Government acquires land for the Commission. The acquisition is for public purpose. The Commission extracts petroleum from the land. Entry No. 53 in List 1 of the Seventh Schedule speaks of regulation and development of oilfields and mineral oil resources; petroleum and petroleum products; other liquids and substances declared by Parliament by law to be dangerously inflammable. Entry No. 54 in List I speaks of regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest. Section 23 of t he 1959 Act says that the Oil and Natural Gas Commission shall furnish to the Central Government returns and statements and particulars in regard to proposed or existing programme for the development of petroleum resources and the production and sale of petroleum and petroleum products produced by the Commission as the Central Government may require. Section 24 of the 1959 Act speaks of compulsory acquisition of land by the Commission. Section 25 of the 1959 Act confers power on any employee of the Commission authorised by it to eater upon any land or premises and there do such things as may be reasonably necessary for the purpose of lawfully carrying out any of its works or to make survey, examination or investigation preliminary or incidental to the exercise of powers or the performance of functions by the Commission under the Act. The employees of the Commission are deemed by section 27 of the 1959 Act to be public servants under section 21 of the Indian Penal Code.The Oil. and Natural Gas Commission Act, 1959 is an Act to provide for the. establishment of a Commission for the development of petroleum resources and the production and sale of petroleum and petroleum products produced b y it and for matters connected there , with. Article 298 states that the , executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition holding and disposal of property and the making of contracts. Under Article 73 subject to the provisions of the Constitution, the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws; and to the exercise of such rights, authority and juris diction as are exercisable by the Government of India by virtue of any treaty or agreement. The Union is competent to carry on trade and business in mines and mineral resources. The power of the Union is co-extensive with the legislative power of the Parliament. The Oil and Natural Gas Commission is established for the development of petroleum resources and the production and sale of petroleum and petroleum products. The exploitation of the resources is by the Union through the agency of t he statutory commission. The members of the Commission are appointed by the Central Government. If they want to resign, resignation has to be sent to the Central Government. Termination of appointment of members is by the Central Government. The powers and functions of the Commission are those assigned by the statute and such functions as the Central Government may assign. No industry which will use any of the gases produced by the Commission as a raw material shall be set up by the Commission without the previous approval of the Central Government. The capital of the Commission is what has already been incurred by the Central Government as nonrecurring expenditure in connection with the existing Organisation. The Central Government may also provide to the Commission any further capital which may be required by the Commission for carrying on its business. The Commission may, with the previous approval of the Central Government borrow money. The budget is to be in such for m as the Central Government may prescribe. The Commission may not re-appropriate without the previous approval of the Central Government. The reports, accounts are to be audited by the Comptroller and Auditor-General of India and these are not only to be forwarded to the Central Government but are also to be laid before the Parliament. The, audit report is also to be before the Parliament. Any land required by the Commission is to be acquired under the Land Acquisition Act as if it were required by a company. The Commission is empowered to enter upon any land or premises. The dissolution of the. Commission is by the Central Government. All these provisions indicate at each stage that the creation, composition of membership, the functions and powers, the financial powers, the audit of accounts, the returns, the capital, the borrowing powers, the dissolution of the Commission and acquisition of and for the purpose of the company and the powers of entry are all authority and agency of the Central Government.The Life Insurance Act is an Act to provide for the nationalisation of life insurance business in India by transferring all such business to the Corporation established for the purpose and to provide for the regulation and control of the business of the Corporation and for matters connected therewith or incidental thereto. On the appointed day viz.

1 July, 1956, all assets and liabilities appertaining to the controlled business of all insurersrs became transferred to and vested in the Corporation. The service of existing employees of insurers was transferred to the Corporation. It became the duty of very person in possession, custody or control of property appertaining to the controlled business of an insurer to deliver the same to the Corporation forthwith. The Corporation was empowered to reduce the amounts of insurance under contracts of life insurance in such manner and subject to such conditions as it thought fit. In the discharge of functions under the Act, the Corporation is guided by directions in matters of policy involving public interest as the Central Government may give to it. If any question arises whether a direction relates to a matter or policy involving public interest, the decision of the Central Government shall be final.

The Corporation is to submit to the Central Government an account of activities during the financial year. The Corporation has the exclusive privilege of carrying on life insurance business in India. On and from the appointed day, none but the Corporation can carry on life insurance business in India. The sums assured by policies issued by the Corporation including bonuses shall be guaranteed as to payment in cash by the Central Government. No suit, prosecution or other legal proceedings shall lie against any member or employee of the Corporation for anything which is in good faith done or intended t o be done under the Act. The provisions of the life Insurance Corporation Act amply establish that the Corporation has the exclusive privilege of carrying on life insurance business. The policies are guaranteed by the Central Government. If pro fits accrue from any business other than life insurance business then after making provision for reserves and other matters, the balance of profit shall be paid to the Central Government. The report of the activities of the Corporation is to be submitted to the Central Government.The original capital of the Corporation is five crores of rupees provided by the Central Government. The Central Government May reduce the capital of the Corporation. The Corporation may ask for relief in respect of certain transactions of the insurer whose controlled business has been transferred to the Corporation. The relief is granted by the Tribunal. The Tribunal is constituted by the Central Government. The Central office of the Corporation shall be at such place as the Central Government may specify. In the discharge of functions under the Act, the Corporation shall be guided by such directions in matters of policy involving public interest as the Central Government may direct. I f any question arises relating to a matter of policy involving public interest, the decision of the Central Government shall be final. The accounts of the Corporation shall be audited by auditors who will be appointed with the previous approval of the Central Government. The auditors shall submit the report to the Corporation and shall also forward a copy of the report to the Central Government.

If as a result of any investigation undertaken by the Corporation any surplus emerge, & ninety-five per cent of such surplus or such higher percentage thereof as the Central Government may approve shall be allocated to or reserved for the life insurance policy holders Corporation and after meeting the liabilities of the Corporation remainder shall be paid to the Central Government or if that Government so directs be utilised for such purposes and in such manner as that Government may determine. if profits accrue after making provision for reserves and other matters, the balance shall be paid to the Central Government. The Central Government shall cause the report of the auditors, the report of the actuaries and the report giving an account of the activities of the Corporation to be laid before the Parliament. The provisions of the Companies Act do not apply to the Corporation with regard to winding up. The Corporation cannot be placed. in liquidation except by an order of the Central Government.The structure of the Life Insurance Corporation indicates that the Corporation is an agency of the Government carrying on the exclusive business of life insurance. Each and very provision shows in no uncertain terms that the voice is that of the Central Government and the hands are also of the Central Government.

The Industrial Finance Corporation is a body corporate. The authorised capital of the Corporation shall be ten crores of rupees divided into twenty thousand fully paid up shares of five thousand rupees each. Ten thousand shares of the total value of five crores of rupees shall be issued in the first instance. The remaining shares may be issued with the sanction of the Central Government of the capital issued in the first instance, the Central Government and the Re serve Bank of India shall each subscribe for two thousand shares. Scheduled banks may subscribe for two thousand five hundred shares, Insurance companies, investment trusts and other like financial institutions for two thousand five hundred shares and co-operative banks for one thousand shares of the Corporation. It is significant that ordinary citizens cannot be shareholders. All shares of the Corporation held by the Central Government and the Reserve Bank of India shall stand transferred to and vest in the Development Bank. As compensation therefore, the Development Bank shall pay to the Central Government and to the Reserve Bank respectively the face value of the shares held by that Government and by that Bank. The shares of the Corporation shall be guaranteed by the Central Government as to the re-payment of the principal and the payment of the annual dividend at such minimum rate as may be fixed by the Central Government by notification. The Development Bank mean s the Industrial Development Bank of India established under the Industrial Development Bank of India Act, 1964.The Chairman of the Corporation shall be appointed by the Central Government. Four Directors are nominated by the Development Bank; two directors are nominated by the Central Government; two directors are elected by Scheduled Banks; two directors are elected by shareholders of the Corporation other than the Development Bank, Scheduled Banks and the co- operative banks; two directors are elected by co-operative banks. The Central Government may remove the Chairman.

Where any industrial concernt which is under a liability to the corporation makes any default in re-payment or otherwise fails to comply with the terms of the a agreement with the Corporation, the Corporation shall have the right to take over the management or possession or both of the concern as well as the right to transfer by way of lease ‘or sale and realise the property, pledged, mortgaged, hypothecated or assigned to the Corporation.

The Corporation shall furnish to the Central Government statement of assets and liabilities at the close of the year together with profit and loss account and a report of the working of the, Corporation and the report shall be published in the, official Gazette and shall be laid before, Parliament. No provision of law relating to the winding up of companies or corporations shall apply to the Corporation. The Corporation shall not be placed in liquidation save by order of the, Central Government.

The superintendence and the affairs of the Corporation shall be entrusted to a Board. In the discharge of functions, the Board shall be guided by the Development Bank. If any dispute arises between the Development Bank and the Board, the dispute shall be referred to the Central Government whose decision shall be final. The Central Government shall have the power to supersede the Board and appoint a new Board in its place to function until a properly constituted Board is set up.The Corporation may invest its funds in the securities of the Central Government or of any State Government and may with the approval of the Central Government contribute to the initial capital of the Unit Trust of India. The Corporation may also subscribe to or purchase the shares of any financial institution which the Central Government in consultation with the Development Bank may notify in this behalf. The Corporation may issue and sell bonds and debentures. Bonds and debentures of the Corporation shall be guaranteed by the Central Government as to the re-payment of the principal and the payment of interest.

The Central Government may issue directions to auditors requiring them to report to it upon the adequacy of measures taken by the Corporation for the protection of its shareholders and creditors. The Central Government may appoint the Comptroller and Auditor General of India to examine and report upon the accounts of the Corporation and expenditure. Every audit report shall be forwarded to the Central Government and the Government shall cause the same to be laid before both Houses of Parliament.

The Central Government may decide to acquire the shares held by the shareholders other than the Development Bank. The shareholders shall be paid for the shares so acquired an amount equal to the paid up value of the shares together with a premium calculated at the rate of one per cent of the paid up value for every year from the date of issue to the date of acquisition subject to a maximum of ten per cent. After the acquisition of the shares, the Central Government shall transfer the shares to the Development Bank, that Bank paying an amount equal to the amount paid by the Central Government for such acquisition After such acquisition, the Central Government may direct that the entire undertaking of the Corporation shall stand transferred to and vest in the Development Bank. These provisions of the Industrial Finance Corporation Act show that the Corporation is in effect managed and controlled by the Central Government.The Oil and Natural Gas Commission is owned by the Government. It is a statutory body and not a company. The Commission has the exclusive privilege of extracting petroleum. The management is by the Government. It can be dissolved only by the Government.

The Life Insurance Corporation is owned by the Government The life insurance business is nationalised and vested in the Corporation. No other insurer can carry on life insurance business. The management is by the Government. The dissolution can be only by the Government.

The Industrial Finance Corporation is under the complete control and management of the Central Government. Citizens cannot be shareholders. Certain specified institutions like Scheduled Banks, Insurance Companies, Investment Trusts and Co-operative Banks may apply for the shares. The Central Government may acquire shares held by shareholders other than the Development Bank. After such acquisition, the Government may direct that the entire undertaking of the Corporation shall be vested in the Development Bank. The Corporation cannot be dissolved except by the Government.

In the, background of the provisions of the three Acts under consideration, the question arises as to whether these corporations can be described to be authorities with the meaning of Article 12 o f the Constitution. In the Rajasthan Electricity Board case it was said that the power to give directions, the disobedience of which must be punishable as a criminal offence would furnish one of the reasons for characterising the body as an authority within the meaning of Article, 12. The power to make rules or regulations and to administer or enforce them would be one of the elements of authorities contemplated in Article 12. Authorities envisaged in Article 12 are described as inst rumentalities of State action. on behalf of the State it was contended that the Oil and Natural Gas Commission as well as Industrial Finance Corporation was not granted immunity from taxation and therefore the liability to be taxed would indicate that the Corporation was not a State authority. Reference is made to Article 289 which speaks of exemption of property and income of a State from Union taxation. The liability to taxation will not detract from the Corporation being an authority within the meaning of Article 12. Article 289 empowers Union to impose tax in respect of trade or business carried on by or on behalf of a State.The Oil and Natural Gas Commission Act confers power of entry on employees of the Com mission upon any land or premises for the purpose of lawfully carrying out works by the Commission. The members and employees of the Commission are public servants within the meaning of section 21 of the Indian Penal Code. The Commission enjoys protection of action taken under the Act.

The Life Insurance Act provides that if any person lawfully withholds or fails to deliver to the Corporation any property which has been transferred to and vested in the Corporation or wilfully applies them to purposes other than those expressed or authorised by the Act, he shall, on the complaint of the Corporation be punishable with the imprisonment which may extend to one year or with fine which may extend to one thousand of rupees or with both. The Corporation also enjoys protection of action taken under the Act.

The Industrial Finance Corporation Act states that whoever in any bill of lading, warehouse receipt or other instrument given to the Corporation whereby security is given to the Corporation for accommodation granted by it wilfully makes any false statement or knowingly permits any false statement to be made shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to two thousand rupees or with both. Further whoever without the consent in writing of the Corporation uses the name of the Corporation in any prospect or advertisement shall be punishable with imprisonment for a term which may ext end to six months or with fine which may extend to one thousand rupees or with both. The Corporation enjoys protection of action taken under the Act. A , company incorporated under the Indian Companies Act does not enjoy these privileges.For the foregoing reasons, we hold that rules and regulations framed by the Oil and Natural Gas Commission, Life Insurance Corporation and the Industrial Finance Corporation have the force of law. The employees of these statutory bodies have a statutory status and they are entitled to declaration of being in employment when their dismissal or removal is in contravention of statutory provisions. By way of abundant caution we state that these employees are not servants of the Union or the State. These statutory bodies are “authorities& within the meaning of Article 12 of the Constitution.

In Civil Appeal No. 2137 of 1972, the declaration granted by the High Court that the order removing Bhagatram Sardarsing Raghuvansi from service is null and void and that he continues in service is upheld. The writ of mandamus issued by the High Court is also upheld.

In Civil Appeal No. 1655 of 1973, the writ of mandamus granted by the High Court is upheld.

In Civil Appeal No. 1879 of 1972, our conclusion is that the Corporation is an authority within the meaning of Article 12 of the Constitution for the reasons Oven in this judgment. The conclusion of the High Court that the regulations have not the force of law is set aside. The conclusion of the High Court that Corporation should not be permitted to enforce the regulations mentioned in clauses (1) and (4) of Regulation 25 is upheld.

In Civil Appeal No. 115 of 1974, the judgment of the High Court is set aside. The Finance Corporation is an authority within the meaning of Article 12. The regulations of the Corporation have the force of law. The conclusion of the High Court that the Association is not entitled to raise a plea of discrimination on the basis of Article 16 is set aside.

The appeals are disposed of accordingly.The parties will pay and bear their own costs in all these appeals.

MATHEW, J.-The question whether a public corporation of the nature of Oil and Natural Gas Commission, Life Insurance Corporation or Industrial Finance Corporation is a ‘state’ within the meaning of Article 12 of the Constitution is one of far reaching importance.

The relevant provisions of the Oil and Natural Gas Commission Act, 1939, have been analysed in the judgment of my Lord the Chief Justice and I do not think, it necessary to set them out here.

In Rajasthan Electricity Board v. Mohan Lai([1967] 3 S.C.R. 377) this Court had occasion to consider the question whether the Rajasthan Electricity Board was an authority within the meaning of the expression “other authorities” in Article 12 of the Constitution. Bhargava, J. delivering the judgment for the majority pointed out that the expression “other authorities” in Article 12 would include all constitutional and statutory authorities on whom powers are conferred by law. The learned judge also said that if any body of persons has authority to issue directions, the disobedience of which would be punishable as a criminal offence, that would be an indication- that that authority is ‘state’. Justice Shah who delivered a separate judgment agreeing with the conclusion reached by the majority preferred to adopt a slightly different meaning to the words “other authorities”. He said that authorities, constitutional or statutory, would fall within the expression ‘state’ as defined in Article 12 only if they are invested with sovereign power of the State, namely, the power to make rules or regulation s which have the force of law.

The test propounded by the majority is satisfied so far as the Oil and Natural Gas Commission (hereinafter referred to as ‘the Commission) is concerned as s. 25 of the Off and Natural Gas Commission Act (hereinafter referred to as ‘the Act’) provides for issuing binding issue binding directions to third parties not to prevent the employees of the Commission from entering upon their property if the Commission so directs. In other words, as s. 25 authorises the Commission to issue binding directions to third parties not to prevent the employees of the Commission from entering into their land and as disobedience of such directions is punishable under the relevant provision of the Indian Penal Cod e since those employees are deemed to be public servants under s. 21 of the Indian Penal Code by virtue of s. 27 of the Act, the Commission is an ‘authority’ within the meaning of the expression “other authorities” in Article 12.Though this would be sufficient to make the Commission a ‘state’ according to the decision of this Court in the Rajasthan Electricity Board Case (supra), there is a larger question which has a direct bearing so far as the other two Corporations are concerned viz., whether, despite the fact that there are no provisions for issuing binding directions to third parties the disobedience of which would entail penal consequence, the corporations set up under statutes to carry on business of public importance or which is fundamental to the life of the people can be considered as ‘state within the, meaning of Article 12

‘That Article reads.

“In this Part, unless the context otherwise requires, ‘the State’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

It is relevant to note that the Article does not define the word ‘state’. It only provides that ‘state’ includes the authorities specified therein. The question whether a corporation set u p under a statute to carry on a business of public importance is a ‘state’ despite the fact that it has no power to issue binding directions has to be decided on other considerations.

One of the greatest sources of our strength in constitutional law is that we adjudge only concrete cases and do not pronounce principles in the abstract. But there comes a moment when the process of , empiric adjudication calls for more rational and realistic disposition than that the immediate case is not different from preceding cases. The concept of state has undergone drastic changes in recent years. Today state cannot be conceived of simply as a coercive machinery wielding the thunderbolt of authority. It has to be viewed mainly as a service corporation.”If we clearly grasp the character of the state as a social agent, understanding it rationally as a form of service and not mystically as an ultimate power, we shall differ only in respect of the limits of its ability to render service.” (see Mac Iver, “The Modern State’, 183).

To some people state is essentially a class-structure, an organization of one class dominating over the other classes’; others regard it as an Organisation that transcends all classes and stands for the whole community. They regard it as a power-system. Some view it entirely as a legal structure, either in the old Austinian sense which made it a relationship of governors and governed, or, in the language of modern jurisprudence, as a community ‘organized for action under legal rules’. Some regard it as no more than a mutual insurance society, others as the very texture of all our life. Some class the state as a great ‘corporation and others consider it as indistinguishable from society itself(see Mac. Iyer, “The Modern State’, pp. 3-4.).

Part IV of the Constitution gives a picture of the services which the state is expected to undertake and render for the welfare of the people. Article 298 provides that the executive power of the Union and State extends to the carrying on of any business or trade. As I said, t he question for consideration is whether a public corporation set up under a special statute to carry on a business or service which Parliament thinks necessary to be carried on in the interest of the nation is an agency or instrumentality of the State and would be subject to the limitations expressed in Article 13(2) of the Constitution. A state is an abstract entity. It can only act through the instrumentality or agency of natural or juridical persons. Therefore, there is nothing strange in the notion of the state acting through a corporation and making it an agency or instrumentality of the State.The chartered corporations of the 17th, 18th and 19th centuries were expected, perhaps required, to perform stated duties to the community like running a ferry, founding a colony or establishing East Indian trade. Performance of these functions and securing whatever revenue the enterprise made to the Crown were the primary reasons why a charter was granted. Corporation in early English Law were in fact, and in legal cognizance, a device by which the political state got something done. They were far more like the bodies corporate we call ‘public authorities’ today. Few in the 17th or 18th century would have disputed that such a corporation was an agency of the state (see generally “The Modern Corporation and Private Property”, Berle &Means, pp. 119-128.).

The Supreme Court of the United States in McCullough v. Mary “(4 Wheat. 315 (US 1819).) held that the Congress has power to charter corporations as incidental to or in aid of govern mental functions. So far as federal corporations are concerned, they are, by hypothesis, agencies of government. With this premise it would follow that action of a federally chartered corporation would be governed by the constitutional limitation imposed on an agency of the Federal Government(see Adolf A. Berle, “Constitutional Limitations on Corporate-Activity, Protection of Personal Rights from invasion through Economic Power”, 100 Univ.of Pennsylvania Law Rev. 933.). The tasks of government multiplied with the advent of the welfare state and consequently, the framework of civil service administration became increasingly insufficient for handling the new tasks which were often of a ‘specialised and highly technical character. At the same time, ‘bureaucracy’ came under a cloud. The distrust of government by civil service, justified or not, was a powerful factor in the development of a policy of public administration through separate corporations which would operate largely according to business priniciples and be separately accountable.The public corporation, therefore, became a third arm of the Government. In Great Britain, the conduct of basic industries through. giant corporation is now a permanent feature of public life.

A public corporation is a legal entity established norm ally by Parliament and always under legal authority, usually in the form of a special statute, charged with the duty of carrying out specified governmental functions in the national interest, those functions being confined to a comparatively restricted field, and subjected to control by the executive, while the corporation remains juristically an independent entity not directly responsible to Parliament(see Garner:”Public Corporations in the United Kingdom” in “Government Enterprise’ ed. W. Freidmann &J. F. Garner, p. 4.). A public corporation is not generally a multi-purpose authority but a functional Organisation created for a specific purpose. It has generally no shares or shareholders. Its responsibility generally is to Government. Its administration is in the hands of a Board appointed by the competent Minister. The employees of. public corporation are not civil servants. It is, in fact, likely that in due course a special type of training for specialized form of public service will be developed and the status of the personnel of public corporation may more and more closely approximate to that of civil service without forming part of it. In so far as public corporations fulfil public tasks on behalf of government, they are public authorities and as such subject to control by government. In France, “An enterprise publique is an enterprise the whole or the majority of whose capital belongs to the State or other public agencies. By reason of its industrial or commercial activities it is basically subject to private law (and particularly to commercial law) as are private enterprises, but, because of its public nature, it finds itself subjected to a certain degree of dependence on and control by public authorities” (Sao “Government Enterprise”, ed. W. Friedmann &J. F. Garner, pp. 107-108.).The motivation for the creation of public corporation naturally plays much larger part in under-developed and poor countries than in industrially advanced countries. This accounts for the emergence of public corporations and the present significance of public enterprise carried on by them. The Government of India resolution on industrial policy dated April 6, 1948 stated, among other things, that “management of state enterprise will as a rule be through the medium of public corporation under the statutory control of the Central Government who will assume such powers as may be necessary to ensure this. The Government of India Resolution on Industrial Policy dated April 30, 1956 stated: (see “Government in Business”, S S. Khera, p. 368 &p. 373.)

“Accordingly, the State will progressively assume a predominant and direct responsibility for setting up new industrial undertakings and for developing transport facilities. It will also undertake State trading on an increasing scale.”

The Constitution was framed on the theory that limitation should exist on the exercise of power by the State. The assumption was that the State alone was competent to wield power. But the essential problem of liberty and equality is one of freedom from arbitrary restriction and discrimination whenever and however imposed. The Constitution, therefore, should, wherever possible, be so construed as to apply to arbitrary application of power against individuals by centres of power. The emerging principle appears to be that a public corporation being a creation of the State is subject to the constitutional limitation as the State itself. The pre- conditions of this are two, namely, that the corporation is created by State, and, the existence of power in the corporation to invade the constitutional right of individual.The advocates of pluralism like Laski and Dr. Figgis pleaded for recognition of social groups within the state in mitigation of the legal and ideological, deification of the State. Today, probably the giant corporations, the labour unions, trade associations and other powerful organisations have taken the substance of sovereignty from the state. We are witnessing another dialectic process in history namely, that the sovereign state having taken over all effective legal and political power from groups surrendered its power to the new massive social groups(see W. Friedmann, “Law in a Changing Society”, p. 298.). The growing power of the industrial giants, of the labour unions and of certain other organized groups, compels a reassessment of the relation between group power and the modern state on the hand and the freedom of the individual on the other. The corporate organisations of business and tabour have long ceased to be private phenomena. That they have a direct and decisive impact , on the social, economic and political life of the nation is no longer a matter of argument. It is an undeniable fact of daffy experience. The challenge to the contemporary lawyer is to translate the social transformation of these organisations from private associations to public organisms into legal terms. In attempting to do so, we have to recognize that both business and tabour currently exercise vast powers. First, they have power over the Millions of men and women whose lives they largely control as employees or as members. Second, they exercise power more indirectly, though not less powerfully, over the unorganized citizens whose lives they largely control through standardized terms of contract, through price policy, through the tempo of production and the terms and conditions of labour. Last, they exercise control over the organized community, represented by the organs of State, in a multitude of ways; direct lobby pressures, control over election and policies of the elected representatives of the peoples and far-reaching control over the mass media of communication, In this sense ‘government, or ‘law-maldng’ by private groups is today an irreversible fact(see “Corporate Power, Government b y Private Groups and the Law’ 57 Columbia Law Rev .156, at 156, 176-177).).Generally speaking, large corporations have power and this power does not merely come from the statutes creating them. They acquire power because they produce goods or services upon which the community comes to rely. The methods by which these corporations produce and the distribution made in the course of their production by way of wages, dividends and interest, as also the profit withheld and used for further capital progress and the manner in which and the conditions under which they employ their workmen and staff are vital both to the lives of many people and to the continued supply line of the country. Certain impertives follow from this. Both big business and big labour unions exercise much quasi-public authority. The problems posed by the big corporation is the protection of the individual rights of the employees. Suggestions are being made that the corporate organisations of big business and labour are no longer private phenomena; that they’ are public- organisms and that constitutional and common law restrictions imposed upon State agencies must be imposed upon them.

The governing power wherever located must be subject to the fundamental constitutional limitations. The need to subject the power centres to the control of constitution require an expansion of the concept of State action. The historical trend in America of judicial decisions has been that of bringing more and more activity within the reach of the limitations of the Constitution . “The next step would be to draw private governments into the tent of state action. This is not a particularly startling proposition, for a number of recent cases have shown that the concept of private action must yield to a conception of state action where public functions are being performed”(see Arthur S. Miller: “The Constitutional Law of the ‘Security State, , “, 10 Stanford Law Rev. 620 at 664.).In Marsh v. Alabama(326 U.S. 501 (1946).), a corporation owned a ‘company town. Marsh, a Jehovah’s witness offered his pamphlets preached his doctrine on one of the town comers. He was arrested for trespassing by one of the company guards, was fined five dollars and the case went all the way up to the Supreme Court. On straight property logic, Marsh, of course was trespassing; he was an unwanted visitor on company’s real estate. But, Court said, operation of a town is a public function. Although private in the property sense, it was public in the functional sense. The substance of the doctrine there laid down is that where a corporation is privately performing a ‘public function’ it is held to the constitutional standards regarding civil right and equal protection of the laws that apply to the state itself. The Court held that administration of private property such a town, though privately carried on, was, nevertheless, in the nature of a ‘public function’, that the private rights of the corporation must therefore be exercised within constitutional limitations, and the conviction for trespass was reversed.

But how far can this expansion go? Except in very few cases, our Constitution does not, through its own force, set any limitation upon private action. Article 13 (2) provides that no State shall make any law which takes away or abridges the right guaranteed by Part III. It is the State action of a particular character that is prohibited. individual invasion of individual right is not, generally speaking, covered by Article 13(2). In other words, it is against State action that fundamental rights are guaranteed. Wrongful individual acts unsupported by State authority in the shape of laws, customs, or judicial or executive proceeding are not prohibited. Articles 17, 23 and 24 postulate that fundamental rights can be violated by private individuals and that the remedy under Article 32 may be available against them. But, by and large, unless an act is sanctioned in some way by the State, the action would not be State action. In other words, until some law is passed or some action is taken through officers or agents of the State, there is Do action by the State. In the Civil Rights Cases(109 U. S. 3.) Bradley, J. s peaking for the majority, took this view of the 14th Amendment. That Amendment provides:”No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

On the other hand, Justice Harlan tried to justify the imposition of civil liability for racial discrimination, effected not only by the normal officers of the State, but also by private individuals. He perceived State action in rules and practices of hotels, inns, taverns, rail roads and places of amusement. He said that inn- keepers are exercising a quasi-public employment and that law gives them special privileges and they are charged with certain duties and responsibilities to the public. As to public conveyances, he read the law of common carriers to require the performance of public duties, and that no matter who is the agent or what is the agency, the function to be performed is that of ‘State’. The investiture of rail road with power of eminent domain made the function of the rail road corporation a public function. I think the later decisions of courts in +.he U.S.A. follow the lead given by Justice Harlen in his dissenting JUDGMENT. Several tests have been propounded to find out whether an action is private or state action. These decision do not rest on the basis that the entity or organization must wield authority in the sense it must have power to issue commands in the Austinian sense, or that it must have the sovereign power to pass laws or regulations having the force of law.

Does any amount of state help, however inconsequential, make an act something more than an individual act ? Suppose, a privately owned and managed operation receives direct financial aid from the State, is an act of such an agency an act of State ? It would be difficult to give a categorical answer to this question. Any operation or purpose of value to the public may be encouraged by appropriation of public money and the resulting publicly supported operation can be characterized as a state operation. But such a rule would seem to go to the extreme. There seems to be no formula which would provide the correct division of cases of this type into neat categories of State action and private action. Some clue however, to the considerations which might impel the court in one direction or the other may be obtained from an examination of the cases in this area. The decisions of the State courts in U.S.A. seem to establish that a private agency, if supported by public money for its operation would be ‘state’.But in all these cases, it has been found that there was an element of , control exercised by the State. Therefore, it may be stated generally that State, financial aid alone does not render the institution receiving , such aid a state agency. Financial aid plus some additional factor might lead to a different conclusion. A mere finding of state control also is not determinative of the question, since a state has considerable measure of control under its police power over all types of business operations. It is not possible to assume that the, panoply of law and authority of a state under which people carry on ordinary business, or their private affairs or own property, each enjoying equaility ‘ in terms of legal capacity would be extraordinary assistance A finding of state financial support plus an unusual degree of control over the management and policies might lead one to characterize an operation as state action.

Another factor which might be considered is whether the operation is an important public function. The combination of state aid and the furnishing of an important public service may resu lt in a conclusion that the operation should be classified as a state agency. If a given function is of such public importance and so closely related to governmental functions as to be classified as a government agency then even the presenc e or absence of state financial aid might be irrelevant in making a finding of state action. If the function does not fall within such a description, then mere addition of state money would not influence the conclusion.

The state may aid a private operation in various ways other than by direct financial assistance. It may give the organization the power of eminent domain, it may grant tax exemptions, or it may give it a monopolistic status for certain purposes. All these are rele vant in making an assessment whether the operation is private or savours of state action(see generally “The Meaning of State Action”, LX Columbia Law Rev. 1083.).An important case on the subject is Kerr v. Enoch Pratt Free Library(149 F. 2d 212 (4th cir.) cert. denied, 326 U. S. 721(1945). ). The library system in question was established. by private donation in 1882, but by 1944, 99 per cent of the system’s budget was supplied by the city; title to the library property was held by the city; employees were paid by the city pay-roll officer; and a high degree, of budget control was exercised or available to the city government. On these facts the Court of Appeals required the trustees managing the system to abandon a discriminatory admissions policy for its library training courses(see LX Columbia Law Review 1083, at 1103.).

Dorsev v. Stuvvesant Town Corporation(299 N. Y. 512.) related to the problem raised by discriminatory action by a private agency receiving state financial aid. Pursuant to New York’s redevelopment laws, the Metropolitan Life Insurance Company organized a redevelopment cornoration to participate in a plan to construct housing. By an investment of some $ 90 , 000, 000, the company constructed a complex of apartments capable of housing 25, 000 people. The power of eminent domain was used to acquire the necessary land and partial tax exemption was granted for the completed project. As a part of the cooperative effort by the city and the private company, the plans for the project were subject to approval of the city and the company’s profits, dividends, and power to dispose of the property ‘were subjected to regulation by state law. When prospective Negro tenants were rejected by the company, they sued to enjoin discrimination as a violation of the Fourteenth Amendment. The majority of the New York Court of Appeals found no exertion of state power directly in aid of discrimination and decided that the private company wag not engaged in a governmental function. Fuld, J. dissented. He said that even the conduct of private individuals would offend against the equal protection clause if the conduct appears in an activity of public importance and if the state has accorded to the activity, either the panoply of its authority or the weight of its power, interest and support(see the No te in XXXV Cornell Law Quarterly, 399.).In America, corporations or associations, private in character, but dealing with public rights, have already been held subject to constitutional standards. Political parties, for example, even though they are not statutory organisations, and are in form private clubs, are within this category. So also are labour unions on which statutes confer the right of collective bargaining. Thus, in Steel v. LOuisville &Nashville R R (323 U. S. 192, 198.) it was observed:

“If …. the (Railway Labour) Act confers this power on the bargaining representative of a craft . . . without any commensurate statutory duty towards its members, constitutional questions arise. For the representative is clothed with power not unlike that of a legislature which is subject to constitutional limitations on its power to deny, restrict, destroy, discriminate against the rights of those for whom it legislates and which is also under a n affirmative constitutional duty equally to protect those rights.”

Institutions engaged in matters of high public interest or performing public functions are by virtue of the nature of the function performed government agencies (see the decisions in Terry v. Adams, 273 U. S. 536 &Nixon v. Condon, 286 U. S. 73.). Activities which are too fundamental to the society are by definition too important not to be considered government function. This demands the delineation of a theory which requires government to provide all persons with all fundamentals of life and the determinations of aspects which are fundamental. The state today has an affirmative duty of seeing that all essentials of life are made available to all persons. The task of the state today is to make possible the achievement of a Good life both by removing obstacles in the path of such achievements and in assisting individual in realizing his ideal of self-perfection Assuming that in- dispensable functions are government functions, the problem remains or defining the line between fundamentals and non- fundamentals. The analogy of the doctrine of “businesses affected with a public interest “immediately comes to mind. The difficulty here is well stated by Justice Holmes in Tyson and Brother v. Banton(272 U.S. 418. 447.) dealing with the constitutionality of a New York statute which limited the fees charged by theatre ticket brokers:”But if we are to yield to fashionable conventions, it seems to me that theatres are as much devoted to public use as anything well can be . . (T) o many people the superfluous is the necessary, and it seems to me that government does not go beyond its sphere in attempting to make life livable for them.”

The difficulty of separating vital government functions from Non-government functions has created further difficulties. Is the distinction between governmental and non-governmental functions which plagued the courts a rational one ? The contrast is between governmental activities which are private and private activities which are governmental. Without the adoption of a radical laissez fare philosophy and the definition of state functions as they were current in the days of Herbert Spencer it is impossible to sort out proper from improper functions. Besides the so-called traditional functions, the modern state operates a multitude of public enterprises. Mr. Justice Holmes said, the Constitution does not enact Herbert Spencer’s social statics. This applies equally to the definition of state function for legal purposes.

In New York v. United States(326 U. S. 572.), the question was whether the state of New York was liable to the federal tax on mineral waters from state-owned and state-operated Saratoga Springs. The judgments of both the majority and the minority agree on the uselessness of the test laid down in Ohio v. Helvering(292 U. S. 360, 366.) that liability to taxation depended upon the distinction between state as government and state as trader. Frankfurter, J. said:

“When this Court came to sustain the federal taxing power upon a transportation system operated by a State, it did so in ways familiar in developing the l aw from precedent to precedent. It edged away from reliance on a sharp distinction between the ‘governmental’ and the ‘trading’ activities of a State, by denying immunity from federal taxation to a State when it “is undertaking a business enterprise of a sort that is normally within the reach of the federal taxing power and is distinct from the usual governmental functions that are immune from federal taxation in order to safe-guard the necessary independence of the State”. Helvering v. Powers, 293 U.S. 214 at 227. But this likewise does not furnish a satisfactory guide for dealing with such a practical problem as the constitutional power of the United States over State activities. To rest the federal taxing power on what is ‘normally’ conducted by private, enterprise in Contradiction to the usual’ governmental functions is too shifting a basis for determining constitutional power and too entanged in expediency to serve as a dependable legal criterion. The essential nature of the problem cannot be hidden by an attempt to separate manifestations of indivisible governmental powers.”Douglas, J. (326 V. S. 572 , at 591.)

“A State’s project is as much a legitimate governmental activity whether it is traditional, or akin to private enterprise, or conducted for profit. Cf. Helvering v. Gerhardt, 304 US 405, 426, 427. A state may deem it as essential to its economy that it own and operate a railroad, a mill, or an irrigation system as it does to own and operate bridges, street lights, or a sewage disposal plant. What hight have been viewed in an earlier day as an, improvident or even dangerous extension of state activities may today be deemed indispensable. But as Mr. Justice White said in his dissent in South Caroling v. United States, any activity in which a State engages within the limits of its police power is a legitimate governmental activity.”

In Pfizer v. Ministry of Health ([1964] 1 Ch. 614, at p. 641 (affirmed 1965 A. C. 512).), Willmer L. J. in the Court of Appeal has recognized that in mid-Victorian times the treatment of patients in hospitals would have been regarded as ‘something quite foreign to the functions of government’ but added that since then there had been ‘a revolution in political thought, and a totally different conception prevails today as to what is and what is, not within the functions of government’.

It has taken English and American Courts many years to concede that the exercise of an industrial or commercial activity on behalf of the state does not deprive such activity of its ‘governmental’ character. But a great many anomalies in common law remain, in particular as regards the immunities and privileges of the Crown in such matters, community from the binding force of statute, debt priority, freedom from axes and other public charges. The recent English cases, appear, it long last, to move towards the abandonment of the totally antiquated notions of ‘proper’ functions of government.In the light of this discussion let us see whether the Life Insurance Corporation and the Industrial’ Finance Corporation would come with in the ambit of ‘state’.

The relevant provisions of the Life Insurance Corporation Act have been very clearly analysed in the judgment of my Lord the Chief Justice and it is unnecessary to repeat them. It is clear from the provisions that the Central Government has contributed the original capital of the Corporation, that part of the profit of the Corporation goes, to that Government, that the Central Government exercises control over the policy of the Corporation, that the Corporation carries on a business having great public importance and that it enjoy a monopoly in the business. I would draw the same conclusions from the relevant provisions of the, Industrial Finance Corporation Act which have also been referred to in the aforesaid judgment. In these circumstances. I think, these corporations are agencies or instrumentalities of the ‘state’ and are, therefore, ‘state within the meaning of Article 12. The fact that these corporations have independent personalities in the eye of law does not mean that they are not subject to the control of government or that they are not instrumentalities of the government. These corporations are instrumentalities or agencies of the state for carrying on businesses which otherwise would have been run by the state departmentally. If the state had chosen to carry on these businesses through the medium of government departments, there would have been no question that actions of these departments would be ‘state actions’. Why then should be actions of these corporations be not state actions?

The Additional Solicitor General submitted that since these corporations have separate personalities, they cannot be regarded as agents or instrumentalities of the state and referred to the decision in Andhra Pradesh State Road Transport Corporation v. The Income Tax Officer and Another([1964] 7 S .C. R. 17.). The question in that case was whether the Road Transport Corporation constituted under the Road Transport Corporations Act, 1950, was carrying on business on behalf of the St ate of Andhra Pradesh and that the income of the Corporation was exempt from liability to pay income tax. This Court took the view that the Road Transport Corporation was a corporate body and has a separate personality and, therefore, the business carried on by it was its own business and the State Government had no beneficial interest in the income.The ultimate question which is relevant for our purpose is whether such a corporation is an agency or instrumentality of the government for carrying on a business for the benefit of the public. In other words, the question is, for whose benefit was the corporation carrying on the. business ? When it is seen from the provisions of that Act that on liquidation of the Corporation, its assets should be divided among the shareholders, namely, the Central and State governments and others, if any, the implication is clear that the benefit of the accumulated income would go to the Central and State governments. Nobody will deny that an agent has a legal personality different from that of the principal. The fact that the agent is subject to the direction of the principal does not mean that he has no legal personality of his own. Likewise, merely because a corporation has legal personality of its own, it does not follow that the corporation cannot be an agent or instrumentality of the, state, if it is subject to control of government in all important matters of policy. No doubt, there might be some distinction between the nature of control exercised by principal over agent and the control exercised by government over public corporation. That, I think is only a distinction in degree. The crux of the matter is that public corporation is a new type of institution which has sprung from the new social and economic functions of government and that it therefore does not neatly fit into old legal categories. In stead of forcing it into them, the later should be adapted to the needs of changing times and conditions.

I do not think there is any basis for the apprehension expressed that by holding that these public corporations are ‘state’ within the meaning of Article 12, the employees of these corporations would become government servants. I also wish to make it clear that I express no opinion on the question whether private corporations or other like organisations, though they exercise power over their employees which might violate their fundamental rights, would be ‘state’ within the meaning of Article 12.The second question for consideration is whether an order of removal or dismissal from service contrary to the regulatio ns framed by these corporations in the exercise of power conferred in that behalf would enable an employee to a declaration against them for continuance in service or would give rise only to a claim for damages.

This will depend upon the question whether the regulations framed by these corporations would have the force of law and even if they have not the force of law, whether the employment is public employment and, for that reason, the employee would obtain a status which would enable hi m to obtain the declaration.

The learned Chief Justice has dealt with the question in his judgment whether the regulations framed by the corporations. have the force of law and he has arrived at the conclusion that the regulations being framed under statutory provisions would have the force of law.

Even assuming that the regulations have no force of law, I think since the employment under these corporations is public employment, an employee would get a status which would enable him to obtain declaration for continuance in service if he was dismissed or discharged contrary to the regulations.

The original concept of employment was that of master and servant. It was therefore held that a court will not specifically enforce a contract of employment. The law has adhered to the age-old rule that an employer may dismiss the employee at will. Certainly, an employee can never expect to be completely free to do what he likes to do. He must face the prospect of discharge for failing or refusing to do his work in accordance with his employer’s directions. Such control by the employer over the employee is fundamental to the employment relationship. But there are innumerable facets of the employee’s life that have little or no relevance to the employment relationship and over which the employer should not be allowed to exercise control. It is no doubt difficult to draw a line between reasonable demands of an employer and those which are unreasonable as having no relation to the employment itself. The rule that an employer can arbitrarily discharge an employee with or without regard to the actuating motive, is a rule, settled beyond doubt. But the rule became settled at a time when the word s ‘master’ and ‘servant’ were taken more literally than they are, now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his later families. The overtones of this ancient doctrine are, discernible in the judicial opinion which rationalised the employer’s absolute right to discharge the employee. Such a philosophy of the employer’s dominion over his employee may have been in tune with the rustic simplicity of by gone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers. The conditions have now vastly changed and it is difficult to regard the contract of employment with large scale industries and government enterprises conducted by bodies which are created under special statutes as mere contract of personal service. Where large number of people are unemployed and it is extremely difficult to find employment, an employee who is discharged from service, might have to remain without means of subsistence for a considerably long time and damages in the shape of wages for a certain period may not be an adequate compensation to the employee for non employment. In other word s, damages would be a poor substitute for reinstatement. The traditional rule has survived because of the sustenance it received from the law of contracts. From the contractual principle of mutuality of obligation, it was reasoned that if the employee can quit his job at will, then so too must the employer have the right to terminate the relationship for any or no reason. And there are a number of cases in which even contracts for permanent employment, i.e. for indefinite terms, have been held unenforceable on the ground that they lack mutuality of obligation. But these cases demonstrate that mutuality is a high sounding phrase of little use as an analytical tool and it would seem clear that mutuality of obligation is not an inexorable requirement and that lack of mutuality is simply, as many courts have come to recognize, an imperfect way of referring to the real obstacle to enforcing any kind of contractual limitation on the employer’s right of discharge , i.e. lack of consideration. If there is anything in contract law which seems likely to advance the present inquiry, it is the growing tendency to protect individuals from contracts of adhesion, from over-reaching terms often found in standard forms of contract used by large commercial establishments. Judicial disfavour of contracts of adhesion has been said to reflect the assumed need to protect the weaker contracting party against the harshness of the common law and the abuses of freedom of contract. The same philosophy seems to provide an appropriate answer to the argument, which still seems to have some vitality, that “the servant cannot complain, as he takes the employment on the terms which are offered to him”(see Justice, Holem nolin Mc Auliffe v. new Bedford, 155 Mass. 216).In Malloch v. Aberdeen Corporation((1971) 1 W. L.R. 1578.). Lord Wilberforce, in speaking about the anomaly created by judicial decision in the area of contractual and statutory employments, has said

“A comparative list of situations in which persons have been held entitled or not entitled to a hearing or to observation of rules of natural justice, according to the master and servant test looks illogical and even bizarre. A specialist surgeon wag denied protection which is given to a hospital doctor; a University professor, as a servant has been denied the right to be heard- a dock Labourer and an, undergraduate have been granted it; examples can be multiplied. One may accept that if there are relationships in which all requirements of the observance of ruler, , of natural justice are excluded (and I do not wish to assume that this is inevitably so), these must be confined to what have been called “pure master and servant cases”, which I take to mean cases in which there is no element of public employment or service, no support by statute, nothing in the nature of an office or a status which is, capable of protection. If any of these elements exist, then, in my opinion, whatever the terminology used, and even though in some inter partes aspects the relationship m ay be called that of master and servant, there may be essential precedural requirements to be observed, and failure to observe them may result in a dismissal being declared to be void.”(at pp. 1595-1596. Emphasis added.)

I think that employment under public corporations of the nature under consideration here is public employment and therefore the employee should have the protection which appertains to public employment.

In McClelland v. Northern Ireland Health Board([1957] 2 All E.R. 129.) the House of Lords, by a majority, , decided that the express term which provided for dismissal in case of misconduct and inefficiency was exhaustive of the grounds of dismissal and, therefore, no further terms as to notice could be implied. Lord Evershed pointed out”Much may turn on the premise to a consideration of the meaning of the conditions whether in a contract of service made in the twentieth century wit h a statutory board such as the respondent board (whose established officers participate in the pension scheme contained in regulations promulgated by the Ministry of Health and Local Government of Northern Ireland), it is correct to regard the common law right of a master to determine his servant’s engagement as of so well-established and paramount character that the contract should be interpreted as necessarily subject to that right (and to a corresponding right on the part of the servant) so that only the clearest express terms will exclude it.”

And he also pointed out that the position of the employer board and one of its servants is very different: ‘The loss or damage to the board occasioned by the departure of one of its servants would, save in very exceptional circumstances, be negligible. To a servant, certainly a servant in the position of the appellant, the security of employment with the board for the period of working life is of immense value.” This approach to public employment goes some way towards the reversal of the common law position. In public employment where there is an appointment to a permanent post, there should be presumption that the employee cannot be given notice and the servant can only be dismissed for misconduct or specified reasons. Lord Evershed in interpreting the word ‘permanent’ in that case said: “it seems to me of considerable importance, in interpreting its use in a contract of service, that such a contract cannot be specifically enforced.” This is an orthodox statement of legal principle but it is nevertheless paradoxical to find it in a judgment which supported the majority view that a declaration should be granted. Declaration is not specific performance but it has the same effect in practice where a public authority is concerned which will invariably act in accordance with the law as declared. Declarations that notices of dismissal were invalid have also been granted in the school teacher cases. (see Sadler v. Sheffield Corporation, (1924) 1 Ch. 483; Martin v. Eccles Corporation, (1919) 1 Ch. 387; &Hanson v. Radcliffe U.D.C., (1922) 2 Ch. 490.)In Hanson v. Radclifie U.D.C.((1922) 2 Ch. 490.), Lord Sterndale M. R. Said “The power of the court to make declarations, when it is a question of determining the rights of two parties to a contract, is now almost unlimited, or limited only by the discretion of the court.” The discretion which should guide the court must be in tune with the modern conditions of life and should result in reversal of present-day attitude. If a job is regarded as analogous to property, it ought to be recognized that a man is entitled to a particular job just as the courts of Equity acknowledged his right to a particular piece of property. Where a public authority is concerned, this can be implemented by a declaration. In the case of private employment English law has devised no suitable remedy. That this is possible is shown by the example of other countries (see Wedderburn: “The Worker and the Law”, p. 89 onwards.). The Court must, therefore, adopt the attitude that declaration is the normal remedy for a wrongful dismissal in case, of public employees which will only be refused in exceptional circumstances. The remedy of declaration should be a ready-made instrument to provide reinstatement in public sector. Once it is accepted that a man’s job is like his property of which he can be deprived of for specific reasons, this remedy becomes the primary one though it will need to be reinforced where private individuals are being sued. The law of master and servant has not kept pace with the modern conditions and the mandate of equality embodied in the Constitution. The law still attaches to the servant a status of inferiority and subjection to his master. Though fundamental reforms can only emanate from the legislature. the principles fashioned by public law if applied to master servant relationship can bring about a change in law to accord with the social conditions of the 20th Century(see generally “Public Law Principles Applicable to Dismissal from Employment” by G. Gan, 30 Modern Law Rev. 288.).That apart, the regulations framed by these corporations were intended to be binding upon them and were the bases on which the employments were made. As the employments were under corporations created by statutes for carrying on businesses of public importance, they were public employment. And even if the regulations have not got the force of law, I think the principle laid down by Justice Frankfurther in Viterelli v. Seaton(359 U. S. 536, at 546-547.) should govern the situation. He said

“An executive agency must be rigorously held to the standards by which it professes its action to be judged…. According, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed.. . . . This judicially evolved rule of, administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword.”

I agree with the conclusions of my Lord t he Chief Justice. ALAGIRISWAMI, J. In his judgment in Writ Petition No. 43 of 1972 as Lord the Chief Justice has quoted with approval the decision of this Court in Praga Tools Corp. v. Imannal (1969 (3) SCR 773), Heavy Engin. Mazdoor Union v. Bihar (196 9 (3) SCR 995), and S. L. Agarwal v. Hindustan Steel (1970 (3) SCR 363). I may also refer to the decision of this Court in Hindustan Antibiotics v. Workmen (1967 (1) SCR 652). The last one was a Government undertaking incorporated under the Indian Companies Act. The entire equity capital of the company was held by the President of India and his nominees and the entire Board of Directors was nominated by Mm. Service conditions of the workmen and other matters were subject to the approval of the President of India. It was pointed out by the Constitution Bench of this Court that though the company was a limited one and therefore had a distinct corporate existence, it was in effect financed and controlled by the Central Government. The conduct of the business of the company was subject to the directives issued from time to time by the President of India and its accounts were audited by the auditors appointed by the Central Government on the advice of the Comptroller and Auditor General of India. The annual report of the working of the company and its affairs along with the Audit Report had to be placed before the Parliament. Dividends declared by the company entirely went to the coffers of the State. Al l the same this Court treated that company like any other company registered ‘under the Indian Companies Act.In Gurushantappa v. Abdul Khaddus (1969 (3) SCR 425) the question whether an employee in a company owned by Government was holding an office of profit was considered. It was a private limited company registered under the name of Mysore Iron &Steel Limited, Bhadravati. The shares of the company were held cent per cent by the Mysore Government . Under the Articles of Association of the company the first Directors of the company were Minister-in Charge of the Industries Portfolio in the Mysore Government, the Secretaries to the Mysore Government in the Finance Department, and in the Commerce and Industries Department, the Managing Director of the Mysore Iron &Steel Ltd., and the Chief Conservator of Forest, ; of the Mysore Government. The Governor of Mysore was entitled to appoint all or a majority of the members of the Board o f Directors so long as the Government of Mysore held not less than 51 per cent of the total paid-up capital of the company or so long as the Governor continued to be interested in any fiduciary capacity. Thus the State Government had considerable control in appointment of Directors of the company as well as in the appointment of the Managing Director who was to be appointed by the Governor from amongst the Directors nominated by him. The Governor was also entitled to appoint from amongst the nominated Directors a Chairman And Vice-Chairman of the Board of Directors. Even the Secretary of the company had to be appointed by the Board of Directors after obtaining approval of the Governor. In respect of other employees of the company, recruitment and service conditions had to be in accordance with the rules which may be prescribed by the Government from time to time. This Court held that the employee was not holding an office of profit under the State Government.In Parga Tools Corporation’s case (supra) the company was incorporated under the Indian Companies Act. The Union Government and the Government of Andhra Pradesh between them held 56 per cent and 32 per cent of its shares respectively. The Union Government had the power to nominate the company’s directors. This Court held that even so, being registered under the Companies Act and governed by the provisions of that Act, the company was a separate legal entity and could not be said to be either a Government corporation or an industry run by or under the authority of the Union Government. In the Heavy Engineering case (supra) the company was one incorporated under the Companies Act. Its entire share capital was contributed by the Central Government and all

its shares were registered in the name of the President of India and certain officers of the Central Government. it was, therefore, a Government company. The Memorandum o f Association and the Articles of Association of the company conferred large powers on the Central Government in-eluding the, power to give directions as regards the functioning of the ‘Company. The wages and salaries of its employees were also deter mined in accordance with the said directions. The Directors of the company were appointed by the President. In its standing orders, the company was described as a Government undertaking. In dealing with the question whether the company could be said to be carrying on its business pursuant to the authority of the Central Government this Court observed:

“An incorporated company, as is well known, has a separate existence and the law recognises it as a juristic person, separate and distinct from its members. This new personality emerges from the moment of its incorporation and from that date the person s subscribing to its memorandum of association and others joining it as members are regarded as a body incorporate or a corporation aggregate and the new person begins to function as an entity. (cf. Salomon v. Solomon &Co.([1897] A. C. 22.). Its rights and obligations are different from those of its shareholders. Action taken against it does not directly affect its shareholders. The company in holding its property and carrying on its business is not the agent of its shareholders. An infringement ‘of its rights does not give a cause of action to its shareholders. Consequently, it has been said that if a man trusts a corporation he trusts that legal persons and must look to its assets for payment; he can call upon t he individual shareholders to contribute only if the Act or charter creating the corporation so provides. The liability of an individual member is not increased by the fact that he is the so le person beneficially interested in the property of the corporation and that the other members have become members merely for the purpose of enabling the corporation to become incorporated and possess only a nominal interest in its property or hold it in trust for him. (of Halbury’s Laws of England, 3rd Ed. Vol. 9, p. 9). Such a company even possesses the nationality of the country under the laws of which it is incorporated, irrespective of the nationality of its members and does not cease to have that nationality even if in times o f war it falls under enemy control (cf. Janson v. Driefontain Consolidated Mines([1902] A. C. 484.) and Kuenigi v. Donnersmarck([1955] 1 Q. D. 516.). The company so incorporated derives its powers and functions from and by virtue of its memorandum of association and its articles of association. Therefore, the mere fact that the entire share capital of the respondent-company was contributed by the Central Government and the fact that all its shares are held by the President and certain officers of the Central Government does not make any difference. The company and the shareholders being, as aforesaid, distinct entities the fact that the President of India and certain officers hold all its shares does not make the company an agent either of the President or the Central Government. A notice to the President of India and the said officers of the Central Government, who hold between them all the shares of the company, would not be a not ice to the company; nor can a suit maintainable by and in the name of the company be sustained by or in the name of the President and the said officers.It is true that besides the Central Government having contributed the entire share capital, extensive powers are conferred on it, including the power to give directions as to how the company should function, the power to appoint directors and even the power to determine the wages and salaries payable by the company to its employees. But these powers are derived from the company’s memorandum of association and the articles of association and not by reason of the company being the agent of the Central Government. The question whether a corporation is an agent of the State must depend on the facts of each case. Where a statute setting up a corporation so provides, such a corporation can easily be identified as the agent of the State as in Graham v. Public Works Commissioners([1901] 2 K.B. 781.) where Phillimore, J. said that the Crown does in certain cases establish with the consent of Parliament certain officials or bodies who are to be treated as agents of the Crown even though they have the power of contracting as principals. in the absence of a statutory provision, however, a commercial corporation acting on its own behalf, even though it is controlled wholly or partially by a Government department, will be ordinarily presumed not to be a servant or agent of the State . The fact that a minister appoints the members or directors of a corporation and he is entitled to call for information, to give directions which are binding on the directors and to supervise over the conduct of the business of the corporation does not render the corporation an agent of the Government, (see The State Trading Corporation of India Ltd. v. The Commercial Tax Officer, Visakhapatnam([1964] 4 S.C.R.99, 188 per Shah, J.) and Tamlin v. Hannaford([1950] 1 K. B. 18, 25-26.). Such an inference that the corporation is the agent of the Government may be drawn where it is performing in substance governmental and not commercial functions (cf. London County Territorial and Auxiliary forces Association v. Nichols([1948] 2 All E. R. 432.).In Hindustan Steel case (supra) it was argued before the Constitution Bench that since it was entirely financed by the Government and its management was directly the responsibility of the President, the post was virtually under the Government of India. Hindustan Steel was a Government company and a private limited comp any. Its Articles of Association as also the Indian Companies Act rendered the ordinary company law inapplicable in certain respects and conferred unlimited powers of management on the President of India and his nominees. It was entirely owned b y the Union of India. This Court held that the Hindustan Steel had its independent existence and by the law relating to corporations it was distinct even from its members, though the question for decision therein was whether Article 311 of the Constitution applied to the employee in question. I shall now compare these cases with those relating to the Oil and Natural Gas Commission, the Life Insurance Corporation of India and the Industrial Finance Corporation with which these four appeals are concerned.

The Oil and Natural Gas Commission consists of the Chairman. and not less than two, and not more than eight , other ‘members appointed by the Central Government. The Central Government may, if it thinks fit, appoint one of the members as Vice-Chairman of the Commission. The Commission may, for the purpose of performing its functions or exercising its powers, appoint such number of employees as it may consider necessary. The functions and the terms and conditions of service of such employees shall be such as may be provided by regulations made under the 1959 Act. The Commission may, with the previous approval of the Central Government, by notification in the Official Gazette, make regulations not inconsistent with the Act and the rules made thereunder, for enabling it to discharge its functions under the Act. The regulations provide inter alia for the terms and conditions of appointment and service and the scales of pay of employees of the Commission; the time and place of meeting of the Commission, the procedure to be followed in regard to the transaction of business at such meetings; the maintenance of minutes of meetings of the Commission and the transmission of copies thereof to the Central Government; the persons by whom, and the manner in which payments, deposits and investments, may be made on behalf of the Commission; the custody of moneys required and the maintenance of accounts. The Central Government may amend, vary or rescind any regulation which it has approved; and thereupon the regulation shall have effect accordingly but without prejudice to the exercise of the powers of the Commission under sub-section (1) of section 32.The Life Insurance Corporation was established by the Life Insurance Corporation Act, 1956. Under s.49 of the Act the Corporation may, with the previous approval of the Central Government, by notification in the Gazette of India, make regulations not inconsistent with the Act and the rules made thereunder to provide for all matters for which provision is expedient for the purpose of giving effect to the provisions of this Act. The regulations may provide inter alia for the powers and functions of the Corporation which may be delegated to the Zonal Managers; the method of recruitment of employees and agents of the Corporation and the terms and conditions of service of such employees or agents; the terms and condition of service of persons who have become employees of the Corporation under section 11 of the Act; the number, term of office and conditions , of service of members of boards constituted under section 22 of the Act; the manner in which the Fund of the Corporation shall be maintained the form and manner in which policies may be issued and contracts binding on the Corporation may be executed.

The Industrial Finance Corporation was set up by the Industrial Finance Corporation Act, 1948. The superintendence of the business of the Corporation is entrusted to a Board of Directors. The Central Government may make rules i n consultation with the Development Bank not inconsistent with the provisions of the 1948 Act and to give effect to the provisions of the Act. Section 43 of the Act enacts that the Board may with the previous approval of the Development Bank regulation s not inconsistent with the Act and the rules made thereunder to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Act. The Development Bank means the Industrial Development Bank established under the Industrial Development Act, 1964. The shares of the Central Government in the Corporation shall stand transferred to the Development Bank when the Central Government shall so notify. The regulations provide inter alia for the holding and conduct of elections under this Act including the final decision of doubts or disputes regarding the validity of the election; the manner in which and the conditions subject to which the shares of the Corporation may be, held and transferred; the manner in which general meetings shall be convened, the procedure to be followed thereat; the duties and conduct, salaries, allowances and conditions of service of officers and other employees and of advisers and agents of the Corp-oration.All these Acts confer rule making power on the central Government and it is not necessary to refer them for the purpose of these cases. It is necessary only to refer to the regulation making power conferred on the three organisations under consideration. On behalf of these organisations the contention advanced was that the regulations relate to internal management, that the terms and conditions of service of employees as laid down in the regulations are not law but merely rules for the purposes of internal management. In so far as the appointments of the various employees of these three organisations are concerned they are appointed by contract and these regulations merely form. part of those contracts. On behalf of the employees the contention was that as the source of the power to make regulations is the statute the regulations are themselves law.

Under cl. (51) of section 3 of the General Clauses Act, 1897 “rule ” means a rule made in exercise of a power conferred by any enactment, and shall include a regulation made as a rule under any enactment.

Section 20 of the General Clauses Act reads as follows

“20. Where, by any Central Act or Regulation, a power to issue any notification, order, scheme, rule, form, or bye-law is conferred, then expressions used in the notification, order scheme, rule, form, or bye-law, if it is made after the commencement of this Act, shall, unless there is anything repugnant in the subject or context, have the same respective meanings as in the Act or Regulation conferring the power.”

The compendious term “Subordinate Legislation” refers to notifications, orders, schemes, rules and bye-laws referred to in ss. 20 and 21 of the General Clauses Act. It would be noticed that the word “order” used in the General Clauses Act is not used in the same sense that word is used in England where orders are excluded from the statutory definition of statutory rules as being administrative. The Committee on Ministers’ Powers suggested that regulations should be used for substantive law and rules for procedural law, while orders should be reserved to describe the exercise of executive power or the taking of a judicial or-quasi-judicial decision. It would be noticed that this scheme is completely different from the Indian legislative practice. The word “order” very often is used in India for certain types of subordinate legislation for various control orders like the “Rationing Order”. There are a number of statutes on the Statute Book in India where the word “regulation” is used to refer to the regulations made by bodies other than the State. The word “rule” is always used to refer to the subordinate regulation made by virtue of powers conferred.The regulations framed under the regulation making were conferred by the three Acts in question am not the regulations defined in the General Clauses Act.’ In interpreting Indian statutes it is unnecessary and might sometimes be misleading to refer to the provisions of English law in connection with subordinate legislation. We have to refer only to the General Clauses Act and the Indian Legislative practice. Though “rule” is defined as including a regulation made as a rule, it cannot be said that regulation making power conferred on the three organisations in question is a rule making power. Under the legislative practice in India the rule making power is conferred on the State and the power to make regulations is conferred on bodies or organisations created by the statute’.

The Air Corporations Act, 1953 which deals with Indian Airlines and Air India International confers power on the Central Government to make rule under section 44 with regard to- terms and conditions of service of the General Manners and such categories of officers as may be specified from time to time under sub-section (1) of section 8. Under sub-section (2) of section. 8 every person employed by each of the Corporations shall be subject to such conditions of service and shall be entitled to such remuneration and privileges as may be determined by regulations made by the Corporation by which he is employed. Under section 45 the Corporations have the power to make regulations among other things regarding terms and conditions of service of officers and other employees of the Corporation other than the General Manager and officers of any other categories referred to in section 44.

Under the All-India Institute of Medical Sciences Act, 1956 the Central Government has the power to make rule under section 28, including the power to make rules regarding the conditions of service of members of the Institute, the allowances to be paid to the President and members of the Institute and the number of officers and employees that may be appointed by the Institute and the manner of such appointment. Under section 29 the Institute has the power to make regulations regarding the allowances, if any, to be paid to the Chairman and the members of the Governing Body and of standing and ad hoc committees and the tenure of office, salaries and allowances and other conditions of service of the Director and other officers and employees of the Institute including teachers appointed by the Institute. On the other hand, under the Central Silk Board Act 1948 it is the Central Government that has the power to make rules regarding the staff which may be employed by the Board and the pay and allowances, leave and other conditions of service of officers and other employees of the Board. The Board has no power to make regulationUnder the Chartered Accountants Act, 1949 it is the Council that has, ‘the power to make regulations about various matters. The Central Government has, however, the power to direct the Council, to make any regulations or to amend or revoke any regulations already made within such period as it May specify in, this behalf. There is however no rule making power conferred on the Central Government.

Under the Indian Coconut Committee Act, 1944 the Central Government has the power to make rules, including many others, the power for regulating grant of pay and leave to officers and servants of the Committee ‘as also the pensions, gratuities, compassionate allowances and travelling allowances. The power of the Committee to make regulations is, however, very limited and relates only to demanding security from officers and servants of the Committee and the Provident Fund.

Under the Coir Industry Act, 1953 the Central Government has power to make rules and the Coffee Board has no power to make any regulations.

Under the Coir Industry Act, 1953 the Central Government has the power to make regulations and the Board to make bye-laws regarding the appointment, promotion and dismissal of its officers and other employees other than the Secretary and the creation and abolition of their posts, as well as the conditions of service of its officers and other employees other than the Secretary including their pay, leave, leave allowances, pensions, gratuities, compassionate allowances and travelling allowances and the establishment and maintenance of a provident fund for them.

Under the Cost and Works Accountants Act, 1959 only the Council has the power to make regulations and the Government has no power to make rules.

Under the Damodar Valley Corporation Act, 1948 the Central Government has the power to make rules and the Corporation to make regulations among other things regarding making of appointments and promotion of its officers and servants, and specifying other conditions of service of its officers an servants.Under the Dentists Act, 1948 the State Gove rnments alone have the power to make rules including rules regarding the term of office and the powers and duties of the Registrar and other officers and servants of the State Dental Council. The State Councils have no powers to make any regulations. The Deposit Insurance Corporation Act, 1961 enables the Corporation to make regulations but confers no power on the Government to make rules.

Under the Electricity (Supply) Act, 1948 the State Governments have the power to make rules and the Board makes Regulations Under the Employees’ State Insurance Act, 1948 the Central Government has the power to make rules in respect of certain matters and the State Governments in respect of certain other matters, but the Corporation has the power to make regulations regarding the method of recruitment, pay and allowances, discipline, superannuation benefits and other conditions of service of officers and servants of the Corporation other than the principal officers. The State Governments have the power to make rules regarding the conditions of service of staff employed in the hospitals , dispensaries and institutions mansions of this Act is that the regulations made by the Corporation- shall be published in t he Gazette of India and thereupon shall have effect as if enacted in the Act. It shows that where the Parliament intended that a regulation should have statutory effect it said so specifically. This also illustrates the provision of Cl. (51) of section 3 of the General Clauses Act which defines ‘rule’ as including a regulation intended to be made as a rule.

The Faridabad Development Corporation Act, 1956 confers the power to make rules on the Central Government but no power is given to the Corporation to make any regulations.The Indian Medicine Central Council Act, 1970 confers the power to make rules on the Central Government and the ‘power to make regulations on the Central Council of Indian Medicine including the power to make regulations regarding the tenure of office, and the powers and duties of the Registrar and other officers and servants of the Council and the appointment, powers, duties and procedure of inspectors and visitors.

The Industrial Development Bank of India Act, 1964 confers powers on the Board of Directors of the Bank to make regulations but no rule making power on the Government.

The International Airports Authority Act, 1971 confers power on the Central Government to make rules and on the Authority to make regulations including regulations regarding the conditions of service and the remuneration of officers and other employees appointed by it.

The Khadi and Village Industries Commission Act, 1956 confers the power to make rules on the Central Government and the power to make regulations on the Commission including regulations regarding the terms and conditions of appointment and service and the scales of pay of officers and servants of the Commission other than the Secretary and the Financial Adviser to the Commission which are to be regulated by rules made by the Government.

Under the Life Insurance Corporation Act, 1956 the power to make rules is with the Central Government and the power to make regulation s with the Corporation.

Under the Major Port Trusts Act, 1963 the Central Government has the power to make rules and the Board of Trustees for the port the power to make regulations including the power regarding the appointment, promotion, suspension, removal and dismissal of its employees, their leave, leave allowances, pensions, gratuities, compassionate allowances and travelling allowances and the establishment and maintenance of a Provident Fund or any other fund for their welfare, and the terms and conditions of service of persons who become employees of the Board.The Marine Products Export Development Authority Act, 1972 enables the Central Government to make rules and the Marine Products Export Development Authority to make regulations. The Indian Medical Council Act, 1956 confers power on the Central Government to make rules and on the Council to make regulations including the tenure of office and the powers and duties of the, Registrar and other officers and servants of the Council, the appointment, powers, duties and procedure of medical inspectors and visitors.

The Monopolies and Restrictive Trade Practices Act, 1969 confers the power to make rules on the Central Government and the power to make regulations on the Monopolies and Restrictive Trade Practices Commission.

The National Co-operative Development Corporation Act, 1962 confers the power to make rules on the Central Government and the power to make regulations on the Corporation.

I have gone through the various statutes only to point out that under the Indian Legislative practice rules are what the Central Government or the State Governments make and the regulations are made by any institution or Organisation estab lished by a statute and where it is intended that the regulation should have effect as law the statute itself says so. It is, therefore, I stated earlier, unnecessary and may be even misleading to refer to the English practice in interpreting the word ‘regulation’.

My learned brothers say that the ‘regulations’ under the Oil &Natural Gas Commission Act provide for the terms and conditions of appointment and service and scales of pay of the employees of the Commission, regulations are imperative and the administrative instruction is the entering into contract with the particular person, but the form and content of the contract is prescriptive and not statutory, . Administrative instructions are not. necessarily in relation to particular person, they may relate to a whole class of persons even as rules and regulations may. To say that because the regulations contained the terms and conditions of appointment they are statutory is to beg the question. I have extracted t he power to make regulations found in the various statutes merely to show that the power to make regulations may be of different kinds. An institution like the Life Insurance Corporation which has its offices and employees all over. the country has necessarily got to have a standard set of conditions of service for its various classes of employees. That is why they are made subject. of regulations. But the mere fact that regulations are made in respect of the conditions of service of the employees of a certain institution or Organisation does not mean that those conditions are statutory. No doubt these are the conditions of service applying to their employees. But if there is breach of those conditions it cannot be said that there is a breach of any statutory provision.While rules are generally made by the Government the regulations are made by a body which is a creature of the statute itself with its powers limited by the statute. While rules apply to all matters covered by the statute, the scope of the regulations is narrower being usually confined to internal matters of the statutory body such as the conditions of service of its employees. When regulations standardise the conditions of service of the employees or purport to formulate them, their character is further diluted by the nature of the subject-matter. For, service or employment is basically a contract which is deeply rooted in private law. A mere standardisation or enumeration of the terms of a service contract is not, therefore, ordinarily sufficient to convert it into a statutory status. For, the statute itself is silent and does not confer any security of tenure on the employee. The Corporation has a complete discretion in framing the regulations and giving such protection thereunder to its employees as it thinks fit. The amount of the protection thus depends on their own discretion, It is not given by a mandatory statutory obligation imposed on the corporation from above. For, the corporation can vary the terms of the regulations at any time thus depriving its employees of the security of tenure of service. The matter is thus one between the employee and the employer which is precisely the case of a service contract. A breach of such conditions is therefore a breach of the service contract remediable by damages rather than an ultra vires action to be set aside by a declaration or mandamus.

As argued on be half of the three organisations the regulations are about the conditions of service which are offered to its employees in the form of a contract. The result of accepting the argument that these powers are statutory would be to hold that the employees of the various organisations and institutions which are governed by the various statutes I have enumerated above would be deemed to have their service conditions fixed by statutes. Even assuming that their conditions of service are fixed by staute it does not mean that the removal of an employee contrary to those conditions would necessarily result in the removal having to be declared void. That was the position, for instance, under section 96-B of the Government of India Act, 1919 till section 240 was introduced in the Government of India Act, 1935. (See Venkat Rao’s case, A.I.R. 1937 P.C. 31, and Rangachari’s case, AIR 1937 P.C. 27).It does not seem correct to say that these statutory bodies have no free hand in framing the conditions and terms of service of their employees. It is true that they have to offer terms and conditions as laid down in the regulations. But it is incorrect to say that they are not free to frame such terms and conditions as the y think proper. They are the authorities to make. the regulations and therefore can make any regulations regarding the conditions and terms of service of their employees and also change them as they please. It cannot therefore be said that they are bound by these terms and conditions of service. Indeed there is no obligation on them to make regulations regarding the terms and conditions of service of their employees. It has been held by this Court that in the case of public servants though the Governments have power to make rules under the proviso to Art. 309 or undertake legislation regarding terms and conditions of service of Government servants, they can either by administrative instructions or executive orders also regulate the terms and conditions of their service. Corporations also can do so and even if they make regulations those regulations cannot be said to be law in relation to them. While regulations made by one body which another body is bound to observe can be said to have the effect of law, the regulations which a body makes and can change and which it need not even make cannot be said to have the effect of law in relation to that body.

The learned Additional Solicitor General submitted that regulations could not have the force of law because these regulations are similar to regulations framed by a company incorporated under the Companies Act. My learned brothers say that the fallacy lies in equating rules and regulations of a company with rules and regulations framed by A statutory body. I do not see where the fallacy lies. A company makes rules and regulations in accordance with the provisions of the Companies Act. A statutory body makes regulations under the powers conferred by the statute creating that body. Both stand on the same footing as both derive their authority one from the Companies Act and the other from the Act which creates that body, for instance i n the case of the Life Insurance Corporation from the Life Insurance Corporation Act, 1956. The fact that a Corporation like the Life Insurance Corporation is created by the statute itself and a company come, -, into existence in accordance with the provisions of the Companies Act does not make any difference to this situation. Merely because a body happens to be a statutory body it does not become any the less entitled to frame regulations which could be of the same kind as the regulations made by a company. Whether a corporation or a company is created by a statute or under a statute does not make any difference to this principle.The logic of the three decisions, the validity of which my learned brothers have accepted in their decision in W.P. No. 43 of 1972, requires that it should be applied to the employees of these three organisations. There is no reason in principle why a different result should follow just because a corporation happens to be established by a statute whereas it is different in the case of a company. Whether an institution or Organisation is established by a statute or under a statute in principle there is no difference between their powers. Ultimately unless it should be held that the institution or Organisation in question is an ‘authority’ within the meaning of the term in Article 12 of the Constitution there can be no question of the regulations framed by those organisations being deemed to be law.

In order that an institution must be an ‘authority’ it should exercise part of the sovereign power or authority of the State. See in this connection the definition of the word in the General Clauses Act, which reads is follows

“Local authority” shall mean a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund.”

They are all concerned with exercising part of the powers of the State. that is why a Port Trust is given even the power to make regulations to provide that a breach of its regulations would be punishable. In inch a case it is undoubtedly exercising part of the power of the State. The whole purpose of the provisions of Part III of the Constitution is to confer fundamental rights on the citizen as against the power of the State or those exercising the power of the State. None of these corporations do so and so they cannot be the ‘State’ or ‘authority’.The case in British Broadcasting Corpn. v. Johns [1965 (1) Ch. 32.1 is very much in point. It is not necessary to burden this judgment by quoting extensively from that decision. It was held there that the B.B.C. was not an instrument of Government. It was argued in that case that the Crown was entitled to a monopoly of broadcasting and therefore the Government purposes also include non- traditional provinces of Government if the Crown has constitutionally asserted that they are to be within the province of Government. Willmer. L.J. quoted with approval the remarks of Wilberforce, J., against whose judgment the Court of Appeal was being heard, to the effect

“So I come to the conclusion that however widely one may be inclined to extend the conception of an act or function of government the Crown has not taken the path of engagaing itself in a broadcasting service or of entrusting it to any agent. It has deliberately chosen the alternative of an independent instrument.”

There can be no doubt that that is the position in respect of the three corporations we are dealing with.

The distinction between governmental functions and commercial functions is, therefore, clear enough. Even in t he United States of American this distinction is clearly kept in mind. In New York v. United States (90 L. ed. 326) it was remarked

“That there Ls a Constitutional line between the State as government and the State as trader, was still more recently made the basis of a decision sustaining a liquor tax against Ohio. “If a state chooses to go into the business of buying and selling commodities, its right to do so may be conceded so far as the Federal Constitution is concerned; but the exercise of the right is not the performance of a government rat function …. When a state enters the market place. seeking customers it divests itself of its quasi sovereignty protanto, and takes on the character of a trader so far, at least, as the taxing power of the federal government is concerned.” Ohio v. Helvering, supra (292 US at 369, 78 L. ed 1310, 54 S Ct ‘125). When the Ohio Case was decided it was too late in the day not to recognize the vast extension o f the sphere of government, both State and national, compared with that with which the Fathers were familiar. It could hardly remain a satisfactory constitutional doctrine that only such State activities are immune from federal taxation as were engaged in by the States in 1787. Such a static concept of government denies its essential nature. “The science of government is the most abstruse of all sciences; if, indeed, that can be called a science which has but few fixed principles, and practically consists in little more than the exercise of a sound discretion, applied to the exegencies of the state as they arise. It is the science of experiment.” Anderson v. Dunn. 6 Wheat. (U.S.) 204, 226, 5 L. ed. 242, 247.When this Court came to sustain the federal taxing power upon a transportation system operated by a State, it did so in ways familiar in developing the law from precedent To precede nt. It edged away from reliance on a sharp distinction between the “governmental” and the “trading” activities of a State, by denying immunity from federal taxation to a State when it “is undertaking a business enterprise of a sort that is normally within the reach of the federal taxing power and is distinct from the usual governmental functions that are immune from federal taxation in order to safeguard the necessary independence of the State.” Halvering v. Powers, supra (293 US at 227, 79 L. ed. 296, 55 S Ct 117).

It is, therefore, clear that Article 298 of the Constitution cannot be resorted to for supporting the proposition that when the State enters into non-governmental activities that should also be considered to be a governmental function. In this connection the history of Article 29 8 as it is at present may be noted.

In Ranjit Kumar Chatterjee v. Union India (AIR 1969 cal. 95) Basu, J. dealing with similar contention advanced’ before him, observed as follows:

“(iii) Mr. Dutt, for the petitioner relied strongly upon the provision in Article 298, as amended by the Constitution (Seventh Amendment) Act, 1956, to argue that when Government takes up a business, it does so in the exercise of its ‘executive power’ and, therefore, whatever be the agency through which Government may carry on a business, that is identified with the Government.

This argument, however, overlooks the ‘ object and scope of the Amendment of the Article. Prior to this amendment, it was held in some cases that since there was no express provision empowering the Government to enter into a trade, this could not be done without legislative sanction-Moli Lal v. State of U.P. (AIR 1951 All. 257 FB). This view was overruled by the Supreme Court in the case of Ram Jawaya v. State of Punjab (1955 2 SCR 225: AIR 1955 SC 549) and the Amendment of 1956 simply codifies the effect of the decision in Ram Jawaya’s case (1955 2 SCR 225: AIR 1955 SC 54 9) namely, that legislation is not required to empower a Government to carry on a business, it can do so in the exercise of its executive power, except, of course, where a law is require d by some other provision of the Constitution, say, Article 19(6). But the effect of the amendment is not to convert a commercial function of the Government into a governmental function. It is to be noted that even where a State Government carries on a business, it cannot be treated as a governmental function to claim immunity from Union taxation, without a declaration’ by Parliament by law under Article 289(3)-vide AIR 1964 SC 1486 at p. 1492. If the Central Government carries on a business, it can never be treated as a governmental function to claim immunity from State taxation because Article 285(1) simply speaks of ‘the property of the union and no business.It has been held by the Supreme Court that even when the Government carries on a business departmentally as in the case of Railway, it cannot be treated as a ‘sovereign function’ for the purpose of ‘suability’. But that principle would not apply for the purpose of determining the status of its employees under Article 311. When the business is carried on by a Department of the Government, as in the case of Railways. obviously, the employees hold under the Government and not under any separate juristic entity, and so it has been held in numerous cases of Parshotam v. Union of India (AIR 1958 SC 36), Moti Ram v. N.E.F. Rly. (AIR 1964 SC 600). The reason is obvious, namely, where the employer is a Department of the Government, no question of a separate legal entity arises,

The question, however, becomes different, where the business is carried on through a separate legal person, e.g. a statutory corporation or a company (vide AIR 1966 SC 1364) because in such a case, the employee is a servant of a legal entity other than the Government.”

The reference to Article 297 of the Constitution in relation to the Oil &Natural Gas Commission’s case is not apt either. That Article does not declare t hat all oil wherever found is the property of the Government. It is only the oil found under the land in the territorial waters and the continental shelf that is the property of the Government. This would be also clear if one looks at the Oil Fields (Regulation &Development) Act, 1948.

The decision in Tamlin v. Hannaford (1950 1 KB 18) is very much in point in deciding the questions that arise in the present case.

That case was concerned with the question whether the British Transport Commission was a servant or an agent of the Crown. It was brought into existence by a special statute which had many of the qualities which belonged to corporations of other kinds. It had defined powers which it could not exceed. There were no shareholders to subscribe the capital. The money which the Corporation needed was raised by borrowing and was guaranteed by the Treasury. If it could not repay the loss fell on the Consolidated Fund of the United Kingdom. All those who used the services which it provided and all whose supplies depended on it were concerned in seeing that it was properly run. The protection of the interests of the taxpayer, user and beneficiary was intrusted by Parliament to t he Minister of Transport. He was given powers over this corporation which were as great as those possessed by a man who held all the shares in a private company, subject, however, to a duty to account to Parliament for his stewardship. It was the Minister who appointed the directors, the members of the Commission, and fixed their remuneration. They must give him any information he wanted. He was given power to give them directions of a general nature and they were bound to obey. The Court Appeal said:”These are great powers but still we cannot regard the corporation as being his agent, any more than a company is the agent of the shareholders, or even of a so le shareholder. In the eye of the law, the corporation is its own master and is answerable as fully as any other person or corporation. It is not the Crown and has none of the immunities or privileges of the Crown. Its servants are not civil servants, and its property is not crown property.”

Further on they remarked

“But the carriage of passengers and goods is a commercial concern which hag never been the monopoly of anyone and we do not think that its unification under state control is any ground for conferring Crown privileges upon it.

The only fact in this case which can be said to make the British Transport’ Commission a servant or agent of the Crown is the control over it which is exercised by the Minister of Transport; but there is ample authority both in this Court and in the House of Lords for saying that such control as he exercises is insufficient for the purpose……’In the absence of any such express provision, the proper inference. in the case, at any rate, of a commercial corporation, Is that it acts on its own behalf, even through it is controlled by a government department.”

The ease for considering any one of the three corporations under consideration as a public authority is much weaker than that either of the British Broadcasting Corporation or the British Transport Commission.

In Kruse v. fohnson (1898 2 OB 91) In regard to by-laws it was said:

“But first it seems necessary to consider what is a bylaw. A by-law, of the class we are here considering, I take to be an ordinance affecting the public, or some portion of the public, imposed by some authority clothed with statutory powers ordering something to be done or not to be done, and accompanied by some sanction or penalty for its non-observance. It necessarily involves restriction of liberty of action by persons who come under its operation as to acts which, but for the bye- law, they would be free to do or not do as they pleased. Further, it involves this consequence that if validly made, it has the force of law within the sphere of its legitimate operation.”Contrast these with the effect of the regulations which we are considering. These regulations apply only to the employees of the corporation. They do not affect the public or any portion of the public, they do not order something to be done or not to be done accompanied by some sanction or penalty for its non-observance. Indeed it is this test that was applied in the Rajasthan Electricity Board’s case (19673 SCR 377).

In Halsbury’s Laws of England (3rd ed., Vol. 9, p. 40) the law is set out thus:

“All regulations made by a corporation and intended to bind not only itself and its officers and servants, but members of the public who come within the sphere of their operation, may properly be called “bye-laws.” whether they are valid or invalid in point of law; but the term may also be. applied to regulations binding only on the corporation, its officers and servants.”

The distinction here is brought out between what we would call rules and regulations in our country.

Allen in his work ‘Law and Orders’ (3rd ed., p. 324) refers to the question raised in Tamlin v. Hannaford (supra). After noting t hat it was undoubtedly a public authority with large powers, and a considerable measure of control was exercised over it, under the Transport Act, 1947, by the Minister of Transport; but in its activities, its liabilities, the status of its employees, and its subordination to statute, it was essentially a separate corporate body, in no way comparable to a Government department, goes on to observe:

“It is interesting to note that bad the decision been otherwise everyone of the half- million (approximately) employees of the railways alone would have become a ;’servant or agent” of the Crown, entitled. to the privileges of that status.”That unfortunately would be the effect of what my learned brothers have chosen to do in their judgment. It is now time to refer to the decisions of this Court relevant to, the subject.

In the State Trading Corporation of India Ltd. &Ors. v. The Commercial Tax Officer, Visakhapatnam &Ors. [1964 (4) SCR 99] Justice Shah pointed out that:

The question whether a corporation is an agent or servant of the State must be decided on the facts of each , case. In the absence of any statutory provision, a commercial corporation acting on its behalf, even if it is controlled wholly or partially by a Government department, will be presumed not to be a servant or an agent of the State. Where, however, the corporation is performing in substance governmental.. and not commercial, functions, an interence will readily be made that it is an agent of the Government.”

The case in Tamlin v. Hannaford was relied upon for this proposition.

In Life Insurance Corporation of India v. Sunil Kumar Mukherjee Ors. [1964 (5). SCR 528 ] the order under consideration was one issued by the Central. Government under section 11(2) of the Act in exercise of its powers under that section. By that section it was the Central Government that was given the power to alter (whether by way of reduction or otherwise) the remuneration and other terms and , conditions of service to such an extent and in such manner as it thought fit, That power so conferred was to be exercised notwithstanding any thing 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. The order therefore had statutory effect and the order of termination o f services of the employee was therefore in contravention of the ‘statutory provision. That decision cannot therefore support any argument that regulations made under a statute have statutory effect.In Andhra Pradesh State Road Transport Corporation v. The Income Tax Officer &Anr. [1964 (7) SCR 17] a Constitution Bench , of this Court held that State Road Transport Corporation is not the State. In that judgment the decision in Tamlin v. Hannaford was also referred to and after an exhaustive analysis of the various sections of the Act it was pointed out that

“… all the relevant provisions emphatically bring out the separate personality of the corporation and proceed on the basis that the trading activity is run by the corporation and the profit and loss that would be made as a result of the trading activity would be the profit and loss of the corporation. There is no provision in the Act which has attempted to lift the veil from the face of the corporation and thereby enable , the shareholders to claim that despite the form which the Organisation has taken, it is the shareholders who run the trade and who can claim the income coming from it as their own.

The decision in K. S. Ramamurthi Reddiar v. The Chief Commissioner, Pondicherry [1964 (1) SCR 656] is not helpful in deciding what an authority is because the appellate in that case was a quasi-Judicial authority,

In Kasturilal v. Stale [1966 (1) SCR 375] a Constitution Bench of this Court after an exhaustive reference to all the earlier decisions. pointed out:

It is not difficult to realise the significance and importance of making such a distinction particularly at the present time when, in the pursuit of their welfare ideal, the Governments of the States as well as the Government of India naturally and legitimately enter into many commercial and other undertakings and activities which have no relation with the traditional concept of governmental activities in which the exercise of sovereign power is involved. It is necessary to limit the area of these affairs o f the State in. relation to the exercise of sovereign power, so that if acts are committed by Government employees in relation to other activities. which may be conveniently described as nongovernmental or non-sovereign, citizens who have a cause of action for damages should not be precluded from making their claim against the State. That is the basis on which the area o f the State immunity against such claims must be limited.”It would, therefore, be wrong to consider the, words “other authorities” in Article 12 as including any corporation which does not exercise par, of the governmental functions of the State.

The Rajasthan State Electricity Board v. Mohan Lal (1967 (3) SCR 377) is a very important decision. After noting the meaning of the word “authority” given in Webster’s Third New- International. Dictionary the majority Went on to point out that the dictionary meaning of the word ” authority” was wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasi-governmental functions. The first point to be noted is that- none of the functions with which the three corporations under consideration are concerned, are governmental or quasi-governmental functions. The work done by the Oil &Natural Gas Commission always used to be done by the various oil companies like Burmah Shelf. Standard Vacuum etc. The work done by the Life Insurance Corporation was done by various insurance companies and the Industrial Finance Corporation is merely carrying out functions which any bank can carry on. When the majority further went on to observe

“The expression “other authorities” is wide enough to include within it every authority created by a statute anti functioning within the territory of India , or under the control of the Government of India.”

It can only be with regard to authority exercising governmental or quasi-governmental functions. The clue to the decision is given really in the following passage

“The circumstance that the Board under the Electricity Supply Act is required to carry on some activities of the nature of trade or commerce does not, therefore, give any indication that the Board must be excluded from the scope of the word “State” as used in Art. 12. On the other hand, there are provisions in the Electricity Supply Act which clearly show that the powers conferred on the Board include power to give directions, the disobedience of which is punishable, as a criminal offence…….. The Board was clearly an authority to which the provisions of Part III of the Constitution were applicable.”This makes it clear. that the fact that the Board carried on activities in the nature of trade or commerce could be a ground for excluding it from the scope of word “State” but for th e fact that it was given powers to give directions the disobedience of which was punishable as a criminal offence. We need not-now pause to consider whether where a body carries out functions both with regard to trade and commerce and also exercises powers, which only a State can exercise like giving directions the disobedience of which is punishable as a criminal offence, the obligations and restrictions which are imposed by the Constitution on the exercise of those powers by the State should not be confined to those powers and with regard to the carrying on the trade and commerce it should not be treated as any other ordinary commercial concern.

Justice Shab’s concurring judgment bring out in sharp focus the ration of the decision by the majority. He said

“The Board is an authority invested by statute with certain sovereign powers of the State…… and to issue directions under certain provisions of the Act and to enforce compliance with those directions. The. Board is also invested by statute with extensive powers of control over electricity undertakings. The power to make rules and regulation and to administer the Act is in substance the sovereign power , of the State delegated to the Board. The Board is, in my judgment, “other authority” within the meaning of Art. 12 of the Constitution.

The expression “authority in its etymological sense, :means a body invested with power to command or give an ultimate decision, or enforce obedience, or having a legal , right to command and be obeyed.”. ….. In considering whether a statutory or constitutional body is an authority, within the meaning of Art. 12, it would be necessary to bear in mind not only whether against the authority, fundamental rights in terms absolute arc intended to be enforced, but also ‘whether it was intended by the Constitution-makers that the authority was invested with the sovereign power to impose restrictions on very important and basic fundamental free loms.In my JUDGMENT, authorities constitutional or statutary invested with power by law but not sharing the sovereign power do not fall within the expression “State” as defined in Art. 12. Those authorities which are invested with sovereign power, i.e., power to make rules or regulations and to administer or enforce them to the detriment of citizens and others fall within the definition of “State” in Art. 12, and constitutional or statutory bodies which do not share that sovereign power of the State are not, in my judgment, “State” within the meaning of Art. 12 of the Constitution.”

This is not in any way contrary to what majority decided but only explains and brings out in bold relief what has been laid down by the majority.

In Co-op. Bank v. Indust. Tribunal (1970 (1)SCR 205) it was held

“The principle that rules framed under a statute have the force of statute does not apply to bye-laws of a cooperative society. They merely govern the internal management business or administration of a society and may be binding between the person s effected by them but are neither law nor do they have the force of law. They are just like conditions of service laid down by contract between the parties, or like bye-laws under the Article s of Association of a company under the Companies Act, or Standing Orders certified under the Industrial Employment (Standing Orders) Act, 1946. Therefore, the circumstances that in granting relief, the Tribunal may have to vary the special bye-laws framed by the, Cooperative Banks does not lead to the inference that the Tribunal would be making orders contrary to law and therefore is incompetent to grant the reliefs claimed. The Jurisdiction granted to the Tribunal by the Industrial Disputes Act is not the jurisdiction of merely administering existing laws and enforcing existing contracts. The Tribunal has the jurisdiction even to vary contracts of service between employer and employees. Further in the Andhra Act there is no prohibition that the conditions of service prescribed are not to be altered. Therefore the reliefs could only be granted by the Industrial Tribunal and could not fall with in the Scope of the Registrar’s powers under the Cooperative Societies Act.”The main contention on behalf of the three organisations put forward by the learned Addl. Solicitor General was that if we hold that these corporations are State and the regulations as having the force of law there would be no room for any reference to the Industrial Tribunal under the Industrial Disputes Act, and that would be a great disadvantage from which the labour would suffer.

In Warehousing Core. v. Tyagi (1970 (2) SCR 250) it was held

“A declaration to enforce a contract of personal service will not normally be granted. The exceptions are: (i) appropriate cases of. public servants who have been dismissed from service in contravention of Art. 311; (ii) dismissed workers under industrial and labour law; and (i ii) when a statutory body has acted in breach of a mandatory obligation imposed by a statute.”

On the facts of this case it was held that a breach had been committed by the appellant of regulation 16(3), but such an order made in breach of the regulations would only be contrary to the terms and conditions of relationship between the appellant and the respondent and it would not be in breach of any statutory obligation because the Act does not guarantee any statutory status to the respondent, nor does it impose any obligation on the appellant in such matters. Therefore, the violation of the regulation could not have the effect of treating the employee as still in service or entitling him to reinstatement. This case was rightly relied upon by the learned Addl. Solicitor General as supporting his point.

The decision in I.A.C. v. Sukhdeo Rai (1971 (Supp) SCR 510) had to consider the case of the Indian Airlines which is one of the parties in the cases before us. This Court referred to its earlier decisions in Tewari’s case (1964(3) SCR 55) and Rajasthan State Electricity Board case (supra) and distinguished the case in Life Insurance Corporation. of India v. Mukherjee (supra) it also explained Naraindas Barot’s case (1966 (3) SCR 40).. It then held that”Though made under the power conferred by statute, the regulations merely embody the terms and conditions of service in the Corporation but do not constitute a statutory restriction as to the kind of contracts which the Corporation can make with its servants or the grounds con which it can terminate therm That being so, and the Corporation having undoubtedly power to dismiss its employees, the dismissal of the respondent was with jurisdiction and although it was wrongful in the sense of its being in breach of the terms and conditions which governed the relationship between the Corporation and the respondent, it did subsist.

The present case, therefore, did not fall under any of the three well-recognised exceptions laid down by this Court; hence the respondent was only entitled to damages and not to the declaration that his dismissal was null and void.”

My learned brothers have referred to Naraindas Barot’s case (1966 (3) SCR 40) and state that as it was decided by the Constitution Bench, the U.P. Warehousing Corporation’s case [1970 (2) SCR 250] an d the Indian Airlines’ case (1971 (2) SCR 192: 1971 (Supp) SCR 510) are in direct conflict with former decision in Naraindas Barot’s case. The question whether the Road Transport Corporation was a State within the meaning of that term under Art. 12 of the Constitution was neither raised nor decided there. Nor was the question whether the regulations under consideration in that case were, of a statutory character raised or decided. That case is not an authority for the proposition t hat the Road Transport Corporation was a State or that its regulations had the effect of law. The discussion in this case would therefore have to proceed on the basis that it lays down no ratio and the U. P. Warehousing Corporation and the Indi an Airlines cases are still good law. The Sirsi Municipality case (1973 (1) SCC 409) and Tewari’s case (1964 (3) SCR 55) stand, however, on a different footing. They are both concerned with bodies which were undoubtedly local bodies and there fore a State and they could provide no support for the view which my learned brothers have taken.It only remains to deal with the two points made by the learned Add]. Solicitor General for the Corporations. One was that if the regulations are he ld to be law the remedy under the Industrial Disputes Act would not be available to the employees of these Corporations because under the Industrial Disputes Act the Tribunals have the right to form a new contract for the parties if the employment is a matter of contract but it cannot do, so if it is a matter of statute and the decision that the regulations are law would have the result of causing detriment to the interest of the employees. I do not think that that consideration nee d deter us from holding that the regulations are law if it could be so held on other grounds.

Another argument of his was that these employments are a matter of personal service and therefore the test whether the contract could be specifically enforced should be taken into consideration in deciding whether a declaration that a dismissal of an employee in any case is void and he should be reinstated. I do not think that in the modern commercial and industrial world the idea of person al service has much relevance. It might have had its-place in the context of 19th Century. There is no question of personal service in a large commercial or industrial Organisation and this consideration need not therefore stand in the way of our accepting the employees’ contention if it is otherwise acceptable.

The various provisions contained in respect of the various organisations like the State Road Transport Corporation or the British Transport Commission in Tamlin v. Hannaf ord would show that the power of control or even the financial interest of the State in these Corporations was as high as, if not higher than, that of the State in these corporations under consideration. So none of the considerations mentione d by my learned brothers would help them to reach the conclusion that these corporations are the State. The power of the owner in hire-purchase agreement and the power of the mortgages under S. 69 of the Transfer of Property Act to sell the mortgaged property by exercising his right of private sale can be usefully compared in connection with the powers conferred on the Industrial Finance Corporation. Nor do I think that section 25 of the Oil &Natural Gas Commission Act, 1959 would make .it a State. The test laid down for deciding what is a State in the Rajasthan Electricity Board case, that is of commanding other people to do or not to do a thing on pain of punishment, is not there. I do not see how, as long as that de cision holds the field, it is open to this Bench to take a different view. All the other decisions of this Court have followed only that view. The decision of my learned brothers is unsupportable in principle against the weight of autho rity and frought with serious consequences. Suddenly overnight by the fiat of this Court all these bodies which till yesterday were not considered to be a State or other authority would be considered to be other authority and their employees entitled to provisions of Part III of the Constitution. We would be opening a veritable Pandora’s box. The protection given to Government servants India have no parallels anywhere in the world. They were getting on well enough till t he Government of India Act, 1935. Till then there was no statutory protection given to them [See Venkata Rao’s case (supra) and Rangachari’s case (supra)]. It is a well known fact that it was the lack of confidence of the British Government in the capacity of the Indians to manage their own affairs that-led to section 240 becoming part of the Government of India Act, 1935. This section is a forerunner of the present Article 311 of the Constitution. It is to be wondered why the framers of the Constitution should have copied the provisions of the- Government of India Act 1935 with regard to Government servants. Be that as it may, there at least we have got the saving grace of Article 310. One’s experience in the various High Courts as well as in this Court would have made it amply clear that not merely Art. 311 but Articles 14 and 16 are resorted to by various Government servants to take up matters till the Court of the last resort even in petty matters like seniority, scale of pay and even minor punishments. Many a time have the learned Judges of this Court felt unhappy about the time of the Court being taken for days together by petty matters relating to Government servants and wished that there were a separate Court for dealing with these matters. By deciding that organisations like the ones under consideration in these cases are ‘other authority’ and the regulations they make is law we would at once at one stroke be creating a large mass of neo-Government servants and Articles 14 and 16 would provide amply opportunities for endless litigation. One would readily agree that labour whether employed by private industry or industry run by the Government should be treated equally. But that one class of labour, that is labour employed in industry run by the Government, should be more equal than others is a proposition which no reasonable minded person can agree to. The employees of the public sector industries would get even more advantages than even the Government servants to whom Articles 309, 310 and 311 apply. In the name of industrial action life will be paralysed. They are not subject to same rules and regulations or discipline to which the Government servants are subject, . They would be different from the days when they were treated like employees of private firms and were subject to the ordinary law of master and servant and become entitled to be treated even better than the Government employees. One has only to refer to one’s experience of what has happened to the Life Insurance Corporation or the various nationalised banks since they were nationalised. Misplaced sympathy is sometimes responsible for our attitude to labour. These days labour is not the weak and helpless force that it was in the 19th Century. They are strong, well organised, rich and powerful. In England the Trade Union Congress is able to dictate to successive Governments o n all sorts of matters. In America it is said that industrial in managers have to wait hat-in-hand before the officers of the trade union bosses. George Meany of the A.F.L. and C.I.O. is able to dictate to the Government. one has only to refer to Jimmy Hoffa of the Teamsters’ Union in America to know how powerful trade unions are. To the legitimate armoury of labour like strike and picketing and industrial negotiations this country has dubious distinction of having added ‘ gherao’, a most uncivilised form of wrongful confinement in order to force concessions from managements and even heads of institutions, even educational institutions. There is no question there of any negotiations. The management or the head of the institution has to either surrender or be prevented from eating or even answering calls of nature and to be kept incommunicado with the outside world. These are not dire forebodings of what will happen but merely an enumeration of what is actually happening. With the trade unions coming up to this Court even in matters of minor punishment of a single workman and sometimes even against interim orders of industrial tribunals it would be litigants paradise.I have read the judgment of my learned brother Mathew, J. with great interest and respect for the vast amount of learning and philosophical consideration that he has bestowed on the subject. It is obvious therefrom, however, that he realises that the earlier decisions of this Court do not support the view taken by him or my other learned brethren. What he says about labour and the public service corporations, at best establish that they should be subject to control. But it does not establish that public service corporations owned by the Government should be treated differently from other public service corporations. That is why I said it is reasonable that labour in both cases should be treated alike. It does not establish that labour in public service corporations owned by Government should be treated like Government servants engaged in administering or enforcing functions and duties connected with governmental functions.

I would hold that Oil &Natural Gas Commission, Life Insurance Corporation and the Industrial Finance Corporation are not authorities within the meaning of Article 12 of the Constitution and regulations framed by them have no force of law. The employees of these statutory bodies have no statutory status and they are not entitled to declaration of being in employment when their dismissal or removal is in contravention of statutory provisions.

ORDER

By order of the Court.

Rules and Regulations of the Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation have the force of law.

The employees of these statutory bodies have a statutory status and they are entitled to a declaration of being in employment when their dismissal or removal is in contravention of statutory provisions.

These statutory bodies are authorities within the meaning of Art.12 of the Constitution.In Civil Appeal No. 2137 of 1972, the declaration granted by the High Court that the order removing Bhagatram Sardarsingh Raghuvansi from service is null and void and that he continues in service is upheld. The writ of mandamus issued by the High Court is also upheld.

In Civil Appeal No. 1655 of 1973, the writ of mandamus granted by the High Court is upheld.

In Civil Appeal No. 1655 of 1973, the writ of mandamus granted Corporation is an authority within the meaning of Art. 12 of the Constitution for the reasons given in this judgment. The conclusion of the High Court that the regulations have not the force of law is set aside. The conclusion of the High Court that Corporation should not be permitted to enforce the regulations mentioned in clauses (1) and (4) of Regulation 25 is upheld.

In Civil Appeal No. 115 of 1974, the Judgment of the High Court is set aside. The Finance Corporation is an authority within the meaning of Art. 12. The Regulations of the Corporation have the force of law. The conclusion of the High Court that the Association is not entitled to raise a plea of discrimination on the basis of Art. 16 is set aside. The appeals are disposed of accordingly.

The parties will pay and bear their own costs in all these appeals.

The post Sukhdev Singh and Others Vs. Bagatram Sardar Singh Raghuvanshi and Anr. appeared first on B&B Associates LLP.

ACT:

Constitution of India-Art. 226-Scope of the power of writ of “certiorari”.

Rule of practice-Usefulness of English decisions and when can be considered.

“Aggrieved persons”-Tests for deciding.

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HELD: (1) The founding fathers of the Constitution have designedly couched Article 226 in comprehensive Phraseology to enable the High Court to reach injustice, wherever it is found. In a sense, the scope and nature of the power conferred by the Article is wider than that exercised by the writ courts in England.

Dwarka Nath v. Income Tax Officer, Kanpur [1965] 3 SCR 563, referred to.

(2) The adoption of the nomenclature of English writs with the prefix “nature of” superadded, indicates that the general principles grown over the years in the English courts, can shorn of unnecessary technical procedural restrictions, and adapted to the special conditions of this vast country, in so far as they do met conflict with any provision of the Constitution, or the law declared by this court be usefully considered in directing the exercise of this discretionary jurisdiction in accordance with well recognised rules of practice. [64 D-F]

(3) According to most English decisions, in order to have the locus standi to invoke certiorari jurisdiction the petitioner should be an “aggrieved person”, and in a case of defect of jurisdiction, such a petitioner shall be entitled to a writ of certiorari as a matter of course,, but if he does not fulfil that character and is a “stranger” the court will, in its discretion, deny him this extraordinary remedy, save in exceptional circumstances. [64 F-G]

(4) The expression “aggrieved person” denotes an elastic and to an extent an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent‘ of the statute of which contravention is alleged the specific circumstances of the case, the nature and extent of the prejudice or injury suffered by him. English courts have sometimes put a restricted and sometimes a wide construction on the expression, “aggrieved person”. [64 H. 65 Al

(5) In order to have the ’locus standi’ to invoke the extraordinary jurisdiction under Art. 226 an applicant should ordinarily be one who has a personal or individual right in the subject matter of the application, though in the case of some of the writs like habeas corpus or quo warranto, this rule is relaxed or modified. The expression “ordinarily” indicates that this is not a cast-iron rule. It is flexible enough to take in those cases where the applicant has been prejudicially affected by an act or omission of an authority, even though he has no propriety or even a fiduciary interest in the subject matter. That apart in exceptional cases even a stranger or a person who was not a party to the proceedings before the authority, but has a substantial and genuine interest in the subject matter of the proceedings will be covered by this rule. [10 A, C-D]

(6) In the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) person aggrieved. (ii) stranger. (iii) busybody or meddlesome interloper Persons in the last category are easily distinguishable from those coming under the first two categories inasmuch as they interfere in things which do not concern them, masquerading as crusaders for justice in the name of pro bono publico, though they have no interest of the public or even of their own to protect The distinction between the first and second categories though real, is not always well demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty and a grey outer circle of lessening certainty in a sliding centrifugal scale with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of “persons aggrieved’. In the grey outer-circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outerzone may not be “persons aggrieved”. [71 A-C, D-E]

(7) To distinguish such applicants from “strangers”among them, some broad tests may be deduced from case law, the efficacy of which varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: (1) Whether the applicant is a person whose legal right has been infringed ? (2) Has he suffered a legal wrong or injury, in the sense that his interest recognised by law has been prejudicially and directly affected by the act or omission of the authority complained of ? (3) Is he a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something ? (4) Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public ? (5) Was he entitled to object and be heard by the authority before it took the impugned action ? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority ? (6) Is the statute, in the context of which the scope of the words “person aggrieved” is being considered, a special welfare measure designed to lay down ethical or professional standards of conduct for the community? (7) or is it a statute dealing with private rights of particular individuals ? [71 E-H, 72 A]

Rex v. Taunton St. Mary (1815) 3 M & S 465, King v: Groom & Others Ex parte [1901] 2 K.B. 157, King v. Richmond Confirming Authority Ex parte Howitt [1921] 1 K.B. 157. R. Thomas Magistrates Court Ex Parte Green Baum (1957) 55 LCR. 129, 135, 135-136 in Yardley’s Book of English Administrative Law 2nd Edition p. 228; Rex v. Manchester Legal Aid Committee [1952] 2 QBD 413. Attorney General of Gambia v. N’s Jie [1961] A.C. 617. Maurice v. London County Council [1964] QB 362, 378. Regina v. Liverpool Corporation Ex Parte Liverpool Taxi Fleet Operator’s Association [1972] (2) QB 299; Regina v. Paddington Valuation Officer Ex parte Peachy Property Corporation Ltd. [1966] 1 QB 860; Bar Council of Maharashtra v. M. V. Dabholkar [1976] 1 SCR p. 306 Rex v. Butt I Another Ex parte Brooke vol. xxxviii (1921-22) Times Law Reports 537; Regina v. Brighton Borough Justices Ex parte Jarvia (1954) 1 Weekly Law Reports 203. Burton & others v. Minister of Housing & Local Government [1961] 1 QBD 278. In re Side bottom (1880) 14 ChD. 458 @ 465; Ex parte Scott [1916] 1 KB 7; King v. Middllesex Justices (1832) 37 FR 594-(1832) 3 B & AD 938; R. Bradford an Avan Urban Dt. Council Ex parte Balton [1964] 2 All ER 492; Gregorrey v. Comden London Borough Council (1966) WLR 899; R. v. London O.B. Ex parte West Minister Corporation [1951] 2 K.B. 508; Regina v. Cardiff Justices Ex parte Cardiff Corporation [1962] 2 Q.B. 436; State of Orissa v. Madan Gopal Bangta [1952] SCR 28. Calcutta Gas co. v. The State of West Bengal [1962] Supp. 3 SCR l; Rameshwar Suthoo v. Member, Board of Revenue Orissa [1967] 2 SCR 172; State of Orissa v. Rajashah Chandamall AIR 1972 S.C. 2114. Dr. Satyanarayana Sinha v. M/s. Lal & Co. [1974] 1 SCR 615; Colamen v. Miller [1939] 307 Q.B. 433. Chapman v. Sheriden Wyoming Coal Co. 338 U.S. 621, American Jurisprudence Vol. 2 Ld. at 575 p. 334 Joint Anti Fascist Refugee Committee v. Melarth 341 U.S. 123; United States Cane Sugar Refiners’ Asson. v. McNutt 138 F 2nd 116: 158 ALR 849; United States v. Storer Broadcasting Co. 351 U.S. 192 and Kansas City Power & Light Co. v. McKay 350 U.S. 884, considered.

(8) The Bombay Cinematographic Act and the Rules are not designed to set norms of moral or professional conduct for the community at large or even a section thereof and hence, the expression “person aggrieved” must receive a strict construction. The Act and the Rules do not confer any substantive justiciable right on a rival in cinema trade, apart from the option in common with the rest of the public to lodge an objection in response to the notice published under Rule 4. Section 8A of the Act confers a right of appeal to the State Government, only on any person aggrieved by an order of a licensing authority refusing to grant a licence or revoking or suspending any licence under s 8. Section 8B of the Act provides that the State Government may either of its A own motion or upon an application made by “an aggrieved person” call for and examine the record of any order made by a licensing authority under this Act and passes such order thereon as it thinks just and proper. [72 F-G]

(9) Such harm or loss in business arising out of setting up of a rival cinema house adversely affecting the monopolistic, commercial’ interest of the applicant is not wrongful in the eye of law because, it does not result in injury to a legal right or a legally protected interest the business competition causing it being a lawful activity. juridically harm of this typed is called “damnum sine injuria” the term injuria being here used in its true sense of an act contrary to law. The reason why the law suffers a person knowingly to inflict harm of this description on mother without holding him accountable for it is that such harm done to an individual is a gain to society at large. [73 E-F]

Salmondon jurisprudence referred to.

(10) In the instant case, none of the appellant’s rights orinterests recognised by the general law has been infringed as a result of the grant of ’No Objection certificate’. He has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a, legal wrong. He has suffered no legal grievance. He has no legal peg for a justicable claim to hang on. Therefore, he is not a “person aggrieved” within the meaning of s. 8A or 8B of the Bombay Cinema Rules, 1954 and has no locus standi to challenge the grant of the ’No objection certificate’. [73 C, F-G] D

Rice & Flour Mills case [1970] 3 S.C.R. 846 applied.

(11) Assuming that the appellant is a stranger, and not a busybody, then also there are no exceptional circumstances in the present case which would justify the issue of a writ of certiorari at his instance. On the contrary, the result of the exercise of these discretionary powers, in his favour, will, on balance, be against public policy. It will eliminate healthy competition in business which is so essential to raise commercial morality. it will tend to perpetuate the appellant’s monopoly of cinema business in the town. and above all, it will seriously injure the fundamental rights of respondents 1 and 2 which they have under Article 19(1)(g) of the Constitution to carry on trade or business subject to “reasonable restrictions imposed by law”. [74 C-D]

(12) It is true that in the ultimate analysis, the jurisdiction under Art. 226 is discretionary. But in a country like India where writ petitions are instituted in the High Courts by the thousand many of them frivolous, a strict ascertainment, at the outset, of the standing of the petitioner to invoke this extraordinary jurisdiction must be insisted upon. The broad guidelines indicated coupled with other well established, self-devised rules of practice, such as the availability of an alternative remedy, the conduct of the petitioner etc., can go a long way to help the Courts in weeding out a large number of writ petitions at the initial stage with consequent saving of public time and money. While a Procrustean approach should be avoided, as a rule, the court should not interfere at the instance of a “stranger”unless there are exceptional circumstance involving a grave miscarriage of justice having an adverse impact on public interests.

JUDGMENT:

CIVIL APPELLATE Jurisdiction: Civil Appeal No. 2035 of 1971.

Appeal by Special Leave from the Judgment and order dated the 11th November, 1971 of the Gujarat High Court in S.F.A. No. 158484 of 1 970.

V. N. Tarkunde and Mrs. S. Gopalakrishnan for the Appellant.

Vimal Dave and Miss Kailash Mehta for Respondents 1-2.

G. A. Shah and M. N. Shroff and Girish Chandra for Respondent Nos. 3-4.

The Judgment of the Court was delivered by SARKARIA, J.-

Whether the proprietor of a cinema theatre holding a licence for exhibiting cinematograph films, is entitled to invoke the certiorari jurisdiction ex debito justitiae to get a ’No-objection Certificate’, granted under Rule 6 of the Bombay Cinema Rules, 1954 (for short, the Rules) by the District Magistrate in favour of a rival in the trade, brought up and quashed on the ground that it suffers from a defect of jurisdiction, is the principal question that falls to be determined in this appeal by special leave.

The circumstances giving rise to this appeal are as follows:

Respondents 1 and 2 are owners of a site, bearing Survey No. 98 in the town of Mehmadabad. They made an application under Rule 3 of the Rules to the District Magistrate, Kaira, for the grant of a Certificate that there was no objection to the location of a cinema theatre at this site. The District Magistrate then notified in the prescribed Form, the substance of the application by publication in newspapers, inviting objections to the grant of a No-objection Certificate. In response thereto, several persons lodged objections, but the appellants, who are the proprietors of a cinema house, situated on Station Road, Mehmadabad, were not among those objectors. Some of the objections were that a Muslim graveyard, a Durgah, a compost depot, a school and public latrines were situated in the vicinity of the proposed site.

The District Magistrate (Res. 3 herein) invited the opinions of the Chairman of Nagar Panchayat, Executive Engineer Roads and F, Buildings, and the District Superintendent of Police. These three authorities opined that they had no objection to the grant of the Certificate applied for. The District Magistrate visited the site on 27-7-1970 Thereafter he submitted a report to the State Government (Res. 4) ’that the proposed site was not fit for ’the location of a cinema house. He recommended that the ’No-objection Certificate’ should be refused. The State Government did not agree with the recommendation of the District Magistrate and directed the latter to grant the Certificate. Accordingly, the District Magistrate granted the ’No-objection Certificate’ on 27-11-1970 to Res. 1 and 2.

On 16-12-1970, the appellants filed a writ petition in the High Court under Articles 226/227 of the Constitution praying for the issuance of a writ of certiorari, mandamus, or any other appropriate writ or order directing the Respondents to treat the No-objection Certificate granted to Respondents 1 and 2 as illegal, void and ineffectual They further asked for an injunction restraining Respondents 1 and 2 from utilising the certificate for the purpose of building a cinema theatre.

The main grounds of challenge were: that the impugned Certificate had been issued by the District Magistrate, not in the exercise of his own discretion with due regard to the principles indicated in the Bombay Cinematograph Act, 1918 (for short, the Act) and the Rules, but mechanically at the dictates of the State Government; that Rules S and 6, according to an earlier judgment of the High Court being ultra vires and void, the Government had no power to grant or refuse A the No-Objection Certificate; that such power belonged to the District Magistrate who was the Licensing Authority, and had to be exercised by him objectively, in a quasi judicial manner in accordance with the statutory principles; since it was not so exercised, the grant of the Certificate in question suffers from lack of jurisdiction.

In the affidavit filed in reply, by the District Magistrate (on behalf of Respondents 3 and 4) a preliminary objection was taken that the appellants had no locus standi to file the writ petition because their ,. rights were not in any manner affected by the grant of the ’No-objection Certificate’. It was stated that the deponent had reported the case and submitted the records to the State Government under Rule S, recommending that on account of the location of a graveyard, a church, a temple, a mosque and a school near the proposed site, the no-objection certificate be refused. It was admitted that on receipt of the order of the State Government he granted the No-Objection Certificate to Respondents 1 and 2 in compliance with the Government’s directive. .

The High Court, purporting to rely on this Court’s decision in State of Gujarat v. Krishna Cinema(1) and an earlier decision of its own in Kishore Chander Ratilal v. State of Gujarat(“), held that Rule 5(2) in its entirety, and the words “the previous permission of the Government obtained under Rule S” in Rule 6 being ultra vires and invalid, have to be ignored as non est, with the result that the District Magistrate had to come to his own conclusion on relevant considerations and objective norms whether a No objection Certificate should be granted or refused; that under the Act the District Magistrate and not the Government-is the Licencing Authority, and he was bound to exercise this power, which is an integral part of the process of licensing, in a quasi judicial manner, that since the District Magistrate exercised this power not on his own in accordance with objective principles, but solely at the dictates of the Government, his act in granting the NoObjection Certificate suffers from a patent lack of jurisdiction.

The High Court, however, dismissed the writ petition on the ground that no right vested in the appellant had been infringed, or prejudiced or adversely affected as a direct consequence of the order impugned by him, and as such, he was not an aggrieved person’ having a locus standi in the matter.

Mr. Tarkunde appearing for the appellant, assails the finding of the High Court in regard to the locus standi of the appellant to maintain the writ petition. The burden of his arguments is that apart from a right in common with the general public to object to the grant before the District Magistrate, the appellant was a rival in the same trade and, as such, had a particular interest to see that permission was not granted to another, in contravention of law, to start the same business; consequently, the illegal grant of the No-objection Certificate had prejudicially affected the commercial interest of the appellant who stood in the ll category of an “aggrieved person’ entitled to a writ of certiorari ex debito justitiae. It is submitted that so far as certiorari is concerned, the concept of ’aggrieved person’ is very wide and is not confined to a person who is grieved by an invasion of a legal right vested in him. Anyone-says Mr. Tarkunde-who is personally interested and genuinely grieved by an act of usurpation of jurisdiction or lack of jurisdiction on the part of an administrative tribunal or body, would fall within the category of an ’aggrieved person’, even if such usurpation or lack of jurisdiction had not resulted in infringement of a illegal right or legal interest vested in him; nor would such a person be denied locus standi for the purpose of certiorari merely because he had not lodged any objection or joined the proceedings before the tribunal (District Magistrate, in the present case). In these premises, it is maintained, the High Court was not justified in denying the remedy of certiorari to the appellant. Counsel has cited a number of decisions, mostly of the English Courts, in support of his contentions.

(1) [1971] 2 S.C.R. 110.
(2)Special Civil Application No. 912 of 1970, decided by Gujarat High Court on 25/27th Nov. 1 970.

Article 226 of the Constitution empowers the High Court to issue to any person or authority, including the Government, within its territorial jurisdiction, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of fundamental rights and for any other purpose.

As explained by this Court in Dwarka Nath v. Income-tax officer, Kanpur(1) the founding fathers of the Constitution have designedly couched the Article in comprehensive phraseology to enable the High Court to reach injustice wherever it is found. In a sense, the scope and nature of the power conferred by the Article is wider than that exercised by the writ courts in England. However, the adoption of the nomenclature of English writs, with the prefix “nature of” superadded, indicates that the general principles grown over the years in the English Courts, can, shorn of unnecessary technical procedural restrictions, and adapted to the special conditions of this vast country, in so far as they do not conflict with any provision of the Constitution, or the law declared by this Court, be usefully considered in directing the exercise of this discretionary jurisdiction in accordance with well-recognised rules of practice.

According to most English decisions, in order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an “aggrieved person” and, in a case of defect of jurisdiction, such a petitioner will be entitled to a writ of certiorari as a matter of course, but if he does not fulfil that character, and is a “stranger”, the Court will, in its discretion, deny him this extraordinary remedy, save in very special circumstances.

This takes us to the further question: Who is an “aggrieved per son” and what are the qualifications requisite for such a status ? The expression “aggrieved person” denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of rigid, exact and comprehensive definition. At best, its features can be described in a broad, tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner’s interest, and the nature and extent of the prejudice or injury suffered by him. English Courts have sometimes put a restricted and sometimes a wide construction on the expression “aggrieved person”. However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi or ’standing’ to invoke certiorari jurisdiction. ,,

(1) [19965] 3 S.C.R. 536.

We will first take up that line of cases in which an “aggrieved person” has been held to be one who has a more particular or peculiar interest of his own beyond that of the general public, in seeing that the law is properly administered. The leading case in this line in Queen v. Justices of Surrey(1) decided as far back as 1870. There, on the application by the highway board the Justices made certificates that certain portions of three roads were unnecessary. As a result, it was ordered that the roads should cease to be repaired by the parishes.

E, an inhabitant of one of the parishes, and living in the neighbourhood of the roads, obtained a rule for a certiorari to bring up the orders and certificates for the purpose of quashing them on the ground that they were void by reason of the notices not having been affixed at the places required by law. On the point of locus standi (following an earlier decision Hex v. Taunton St. Mary(2), the Court held that though a certiorari is not a writ of course, yet as the applicant had by reason of his local situation a peculiar grievance of his own, and was not merely applying as one of the public, he was entitled to the writ ex debito justitiae.

The ratio of the decision in Queen v. Justices of Surrey (supra) was followed in King v. Groom and ors. Ex Parte(3). There, the parties were rivals in the liquor trade. The applicants (brewers) had persistently objected to the jurisdiction of the justices to grant the ‘ license to one J. K. White in a particular month. It was held that the applicants had a sufficient interest in the matter to enable them to invoke certiorari jurisdiction.

A distinguishing feature of this case was that unlike the appellants in the present case who did not, despite public notice, raise any objection before the District Magistrate to the grant of the No-objection Certificate, the brewers were persistently raising objections in proceedings before the Justices at every stage. The law gave them a right to object and to see that the licensing was done in accordance with law. They were seriously prejudiced in the exercise of that right by the act of usurpation of the jurisdiction on the part of the Justices.

(1) [1870] S B. 466. (2) [1815] 3 M & S 465.
(3) [1901] 2 K. B. 157.

The rule in Groom’s case was followed in The King v. Richmond Confirming Authority, Ex parte Howitt(1). There, also, the applicant for a certiorari was a rival in the liquor trade. It is significant that in coming to the conclusion that the applicant was a ’person aggrieved’, Earl of Reading C.J. laid stress on the fact that he had appeared and objected before the Justices and joined issue with them, though unsuccessfully, “in the sense that they said they had jurisdiction when he said they had not”.

In R. Toames Magistrate Court Ex parte Greenbaum(2) there were two traders in Goulston St., Stepney. One of them was Gritzman who held a license to trade on pitch No. 4 for S days in the week an pitch No. 8 for the other two days. The other was Greenbaum, who held a licence to sell on Pitch No. 8 for two days of the week, and pitch No. 10 for the other days of the week. A much better pitch, pitch No. 2, in Gulston St. became vacant. Thereupon, both Gritzman and Greenbaum applied for the grant of a licence, each wanted o to give up his own existing licence and get a new licence for pitch No. 2. The Borough Council considered and decided in favour of Greenbaum and refused Gritzman who was left with his pitches 4 and 8.

Gritzman appealed to the magistrate. He could not appeal against the grant of a licence to Greenbaum, but only against the refusal to grant a licence to himself. Before the magistrate, the Borough Council opposed him. The magistrate held that the Council were wrong to refuse the licence of pitch No. 2 to Gritzman. The Council thereupon made out a licence for Gritzman for pitch No. 2 and wrote to Greenbaum saying that his licence had been wrongly issued. Greenbaum made an application for certiorari to court . The court held that the magistrate had no jurisdiction to hear the appeal. An objection was taken that Greenbaum had no locus standi. Rejecting the contention, Lord Denning observed:

“I should have thought that in this case Greenbaum was certainly a person aggrieved, and not a stranger. He was affected by the magistrate’s orders because the magistrate ordered another person to be put on his pitch. It is a proper case for the intervention of the court by means of certiorari.”

It is to be noted that the Council had duly allotted pitch No. 2 to J’’ Greenbaum in the exercise of their administrative power. The Magistrate’s order pursuant to which the Council cancelled the allotment. and re-allotted that pitch to Gritzman, was without jurisdiction By this illegal cancellation and reallotment Greenbaum’s interest to trade on pitch No. 2, which had been duly licensed out to him was directly and prejudically affected by the impugned action. R. v. Manchester Legal Aid Committee(1), is another case belonging to this group. lt was held that the applicants therein were “persons aggrieved” because they were grieved by the failure of the Legal Aid Committee to give them prior notice and hearing to which they were entitled under Regulation 15(2). Thus it could be said that they had suffered a legal wrong.

(1) [1921] I K.B. 248.
(2)[1957] 55 L.G.R. 129-135, 135-136 extracted in Yardley’s book of English Administrative Law. 2nd Edn. at p. 228.

In Regina v. Liverpool Corporation, Ex parte Liverpool Taxi Fleet operators’ Association(“), the City Council in exercise of its powers under the Town Police Clauses Act, 1847, limited the number of licences to be issued for hackney carriages to 300. The Council gave an undertaking to the associations representing the 300 existing licence holders not to increase the number of such licence holders above 300 for a certain period. The Council, disregarding this undertaking, resolved to increase the number. An Association representing the existing licence-holders moved the Queens’ Bench for leave to apply for orders of Prohibition, Mandamus and Certiorari. The Division Bench refused. In the Court of Appeal, allowing the Association’s appeal, Lord Denning M. R. Observed ar pp. 308, 309:

“The taxicab owners’ association come to this Court for relief and I think we should give it to them. The writs of prohibition and certiorari lie on behalf of any person who is a “person aggrieved” and that includes any person whose interests may be pre judicially affected by what is taking place. It does not include a mere busybody who is interfering in things which do not concern him; but it includes any person who has a genuine grievance because something has been done or may be done which affects him: See Attorney-General of the Gambia v. N’Jie [1961] A.C. 617 and Maurice v. London County Council [1964] 2 Q.B. 362, 378. The taxicab owners’ association here have certainly a locus standi to apply for relief.”

It may be noted that in this case, the whole question turned on the effect in law of the undertaking, and whether the applicants had been treated fairly.

Emphasising the “very special circumstances” of the case, the court read into the statute, a duty to act fairly in accordance with the principles of natural justice. Thus, a corresponding right to be treated fairly was also imported, by implication, in favour of the’ applicants. Viewed from this standpoint, the applicants had an interest recognised in law, which was adversely affected by the impugned action. They had suffered a wrong as a result of the unfair treatment on the part of the corporation.

In Regina v. Paddington Valuation Officer, Ex Parte Peachy Property Corporation Ltd.,(3), ratepayers were held to have the locus standi to apply for certiorari, notwithstanding the fact that it could not be said that the actual burdens to be borne by the applicants fell more heavily on them than on other members of the local community. Hl

(1) (1952) 2 W.B.D. 413.
(2) [1972] 2 Q.B.299.
(3)[1966]1 Q.B. 880.

In Bar Council of Maharashtra v. M. V. Dabholkar(1), Bench of seven learned Judges of this Court considered the question whether the Bar Council of a State was a ’person aggrieved’ to maintain an appeal under s. 38 of the Advocates’ Act, 1961. Answering the question in the affirmative, this Court, speaking through Ray C.J., indicated how the expression “person aggrieved” is to be interpreted in the context of a statute, thus:

“The meaning of the words “a person aggrieved” may vary according to the context of the statute. One of the meanings is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one “a person aggrieved”. Again a person is aggrieved if a legal burden is imposed on him. The meaning of the words “a person aggrieved” is sometimes given a restricted meaning in certain statutes which provide remedies for the protection of private legal rights. The restricted meaning requires denial or deprivation of legal rights. A more liberal approach is required in the back ground of statutes which do not deal with property rights but deal with professional conduct and morality. The role of the Bar Council under the Advocates’ Act is comparable to the role of a guardian in professional ethics. The words “person aggrieved” in sections 37 and 38 of the Act are of wide import and should not be subjected to a restricted inter pretation of possession or denial of legal rights or burdens or financial interests.

In Rex v. Butt and anr. Ex Parte Brooke(2), a person who was merely a resident of the town, was held entitled to apply for certiorari. Similar is the decision in Regina v. Brighton Borough Just ices Ex Parte Jarvis(3). Typical of the cases in which a strict construction was put on the expression “person aggrieved”, is Buxton and ors. v. Minister of Housing and Local Government(4). There, an appeal by a Company against the refusal of the Local Planning Authority of permission to develop land owned by the Company by digging chalk, was allowed by the Minister. Owners of adjacent property applied to the High Court under s. 31(1) of the Town and Country Planning Act, 1959 to quash the decision of the Minister on the ground that the proposed operations by the company would injure their land, and that they were ’persons aggrieved’ by the action of the Minister. It was held that the expression ’person aggrieved’ in a statute meant a person who had suffered a legal grievance; anyone given the right under s. 37 of the Act of 1959 to have his representation considered by the Minister was a person aggrieved, thus section 31 applied, if those rights were infringed; but the applicants had no right under the statute, and no legal rights had been infringed and therefore they were not entitled to challenge the Minister’s decision. Salmon J. quoted with approval these observations of James T. J. in In Re Sidebothem(1).

(1) [1976]1 S.C.R. 306.
(2) Vol. XXXVIII(1921-22) Times Law Reports 537.
(3) (1954)1,Weekly Law Reports 203.
(4) [1961] 1 Q.B.D. 278.

“The words ’person aggrieved’ do not really means a man who is disappointed of a benefit which he might have received if some other order had been made. A ’person aggrieved’ must be a man who has suffered a legal grievance,‘a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrong fully refused him something, or wrongfully affected his title to something.”

Ex Parte Stott(2), is another illustration of a person who had no legal grievance, nor had he sufficient interest in the matter. A licensing authority under the Cinematography Act, 1901, granted to a theatre proprietor a licence for the exhibition of cinematograph films at his theatre. The licence was subject to the condition that the licensee should not exhibit any film if, he had notice that the licensing authority objected to it. A firm who had acquired the sole right of 1 exhibition of a certain film in the district in which the theatre was situated entered into an agreement with the licensee for the exhibition of the film at his theatre. The licensing authority having given notice to the licensee that it objected to the exhibition of the film, the film applied for a writ of certiorari to bring up the notice to be quash ed on the ground that the condition attached to the licence was unreasonable and void, and that they were aggrieved by the notice as ’being destructive of their property. It was held that whether the condition was unreasonable or not, the applicants were not persons who were aggrieved by the notice and had no locus standi to maintain the application.

Similarly, King v. Middlesex Justices(3), it was held that the words “person who shall think himself aggrieved”appearing in the statute governing the grant of licences to innkeepers mean a person immediately aggrieved as by refusal of a licence to himself, and not one who is consequently aggrieved, and that though the Justices had granted a licence to a party to open a public house, not before licensed, within a very short distance of a licensed public house, the occupier of the latter house could not appeal against such grant.

Other instances of a restricted interpretation of the expression “person aggrieved” are furnished by R. v. Bradford on-Avon Urban District Council Ex Parte Boulton(4); Gregory v. Camden London Borough Council(1); R. v. London O.E. Ex parte West-Minister Corporation(2); Regina v. Cardiff Justices Ex parte Cardiff Corporation(3).

(1) [1880] 14Ch.D.458,at p.465. (2) [1916] 1K B.7
(3) (1832) 37 R. R. 594-(1832) 3 & Ad. 938.
(4) (1964) 2 All. E. R. 492.

This Court has laid down in a number of decisions that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226, an applicant should ordinarily be one who has a personal or individual right in the subject matter of the application, though (1) the case of some of the writs like habeas corpus or quo warranto this rule is relaxed or modified. In other words, as a general rule, in fringement of some legal right or prejudice to some legal interest in hearing the petitioner is necessary to give him a locus standi in the matter see The State of orissa v. Madan Gopal Rungta(4); Calcutta . Gas Co. v. The State of West Bengal(5); Ram Umeshwari Suthoo v. Member, Board of Revenue, orissa(6); Gadda Venkateshwara Rao v. Government of Andhra Pradesh(7); State of orissa v. Rajasaheb Chandanmall(8); Dr. Satyanarayana Sinha v. M/s. S. Lal & Co.(9)].

The expression “ordinarily” indicates that this is not a cast-iron rule. It is flexible enough to take in those cases where the applicant has been prejudicially affected by an act or omission of an authority, r even though he has no proprietary or even a fiduciary interest in the subjectmatter. That apart, in exceptional cases even a stranger or a person who was not a party to the proceedings before the authority, but has a substantial and genuine interest in the subject matter of the proceedings will be covered by this rule. The principles enunciated in the English cases noticed above, are not inconsistent with it.

In the United States of America, also, the law on the point is substantially the same. “No matter how seriously infringement of the Constitution may be called into question, “said Justice Frankfurter in Coleman v. Miller(10) “this is not the tribunal for its challenge except by those who have some specialized interest of their own to vindicate apart from a political concern which belongs to all”. To have a “standing to sue”, which means locus standi to ask for relief in a court independently of a statutory remedy, the plaintiff must show that he is injured, that is, subjected to or threatened with a legal wrong. Courts can intervene only where legal rights are invaded(11). “Legal wrong” requires a judicially enforceable right and the touch stone to justiciability is injury to a legally protected right. A nominal or a highly speculative adverse affect(12) on the interest or right of a person has been held to be insufficient to give him the “standing to sue” for judicial review of administrative action(18). Again the “adverse affect” requisite for “standing to sue” must be an “illegal effect’’(l). Thus, in the undermentioned cases, it was held that injury resulting from lawful competition, not being a legal wrong, cannot furnish a “standing to sue” for judicial relief(2).

(1) (1966) 1 W. L. R.899 (2) [1951] 2K.B. 508.
(3) [1962] 2 QB 436.
(4) [1952] S.C.R.28.
(5) [1962] Supp.3 S.C.R. 1.
(6) [1967] 1, S.C. Appeals 413.
(7) A.I.R. 1966 S.C.828-[1966] 2 S.C.R.172.
(8) A.T.R.1972 S.C.2112.
(9) A.I.R.1973 S.C.2720-(1974) I S.C.R 615.
(10)(1939) 307 U.S. 433.
(11)Chapman v. Sheridan-Wyoming Coal Co. 338 U. S.621.
(12)American Jurisprudence Vol. 2 d ss. 575. p. 334 Joint Anti Fascist Refugee. Committee v. MeGarth 341 U.S.123.
(13)United States Cane Sugar Refiners. Assoen. v. MeNutt 138 2nd 116: 1518 A.L.R.849.

It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) ’person aggrieved’; (ii) ’stranger’; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.

The distinction between the first and second categories of applicants, though real, is not always well-demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of ’persons aggrieved’. In the grey outer-circle the. bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outerzone may not be “persons aggrieved.

To distinguish such applicants from ’strangers’, among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: Whether the applicant is a person whose legal right has been infringed ? Has he suffered a legal wrong or injury, in the sense that his interest, recognised by law. has been prejudicially and directly affected by the act or omission of the authority, complained of ? Is he a person who has suffered a legal grievance, a person “against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something” ? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public ? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority ? Is the statute, in the context of which the scope of-the words “person aggrieved” is being considered. a social welfare measure designed to lay down ethical or professional standards of conduct for the community ? or is it a statute dealing with private rights of particular individuals ?

(1) United States v.Storer Broadcasting Co.351 U.S.192.
(2) Kansas City Power & light Co. v. McKay 350 U. S. 884. 6-390SCr/76

Now let us apply these tests to the case in hand. The Act and the Rules with which we are concerned, are not designed to set norms of moral or professional conduct for the community at large or even a section thereof. They only regulate the exercise of private rights of an individual to carry on a particular busness on his property. In this context, the expression “person aggrieved” must receive a strict construction.

Did the appellant have a Legal right under the statutory provisions or under the general law, which has been subjected to or threatened with injury. ? The answer in the circumstances of the case must necessarily be in the negative.

The Act and the Rules do not confer any substantive justiciable right on a rival in cinema trade, apart from the option in common with the rest of the public, to lodge an objection in response to the notice published under Rule 4. The appellant did not avail of this option. He did not lodge any objection in response to the notice, the due publication of which was not denied. No explanation has been given as to why he did not prefer any objection to the grant of the Objection Certificate before the District Magistrate or the Government. Even if he had objected before the District Magistrate and failed, the Act would not give him a right of appeal. Section 8A of the Act confers a right of appeal to the State Government, only on any person aggrieved by an order of a licensing authority refusing to grant a license, or revoking or suspending any licence under section 8. Obviously, the appellant was not a “person aggrieved” within the contemplation of Section 8A

Section 8B of the Act provides that the State Government may either of its own motion, or upon an application made by “an aggrieved person”, call for and examine the record of any order made by a licensing authority under this Act, and pass such order thereon as it thinks just and proper. Assuming that the scope of the words “aggrieved person” in Section 8B is wider than the ambit of the same words as used in Sec. 8A, then also, the appellant cannot, in the circumstances of this case, be regarded as a “person aggrieved’ having. the requisite legal capacity to invoke certiorari jurisdiction.

The Act and the Rules recognise a special interest of persons residing, or concerned with any institution such as a school, temple, mosque etc. located within a distance of 200 yards of the site on which a cinema house is proposed to be constructed. The appellant does not fall within the category of such persons having a special interest in the locality. It is not his case that his cinema house is situated anywhere near the site in question, or that he has any peculiar interest in his personal, fiduciary or representative capacity in any school, temple etc. situated in the vicinity of the said site. It cannot therefore be said that the appellant is “a person aggrieved” on account of his having a particular and substantial interest of his own in the subject matter of the litigation, beyond the general interest of the public. Moreover the appellant could not be said to have been, in fact, aggrieved. As already noticed, he, despite adequate opportunity, never lodged any objection with the District Magistrate, nor went in revision before the State Government. Thus the present case is not in line with the decisions which are within the ratio of Queen v, Justices of Surrey (supra).

Having seen that the appellant has no standing to complain of injury, actual or potential, to any statutory right or interest, we pass on to consider whether any of his rights or interests, recognised by the general law, has been infringed as a result of the grant of No-objection Certificate to the respondents ? Here, again, the answer must be in the negative.

In Paragraph 7 of the writ petition, he has stated his cause of action, thus:

“The petitioner submits that .. he owns a cinema theatre in Mehmadabad which has about a small population of 15000 persons as stated above and there is no scope for more than one cinema theatre in the town. He has, there fore, a commercial interest in seeing to it that other persons are not granted a no- objection certificate in violation of law.”

Thus, in substance, the appellant’s stand is that the setting up of a rival cinema house in the town will adversely affect his monopolistic commercial interest, causing pecuniary harm and loss of business from competition. Such harm or Loss is not wrongful in the eye of law, because it does not result in injury to a legal right or a legally protected interest, the business competition causing it being a lawful activity. Juridically, harm of this description is called demnum sine injuria, the term injuria being here used in its true sense of an act contrary to law(1). The reason why the law suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an individual is a gain to society at large.

In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He ’has no legal peg for’ a justiciable claim to hang on. Therefore he is not a ’person aggrieved’ and has no locus standi to challenge the grant of the No-objection Certificate.

lt is true that, in the ultimate analysis, the jurisdiction under Article 226 in general, and certiorari in particular, is discretionary.

(1) Salmond on Jurisprudence by Fitz-Gerald. p. 357 para 85.

But in a country like India where writ petitions are instituted in the High Courts by the thousand, many of them frivolous, a strict ascertainment, at the outset, of the standing of the petitioner to invoke this extraordinary jurisdiction, must be insisted upon. The broad guide lines indicated by us, coupled with other well established self-devised rules of practice, such as the availability of an alternative remedy, the conduct of the petitioner etc., can go a long way to help the courts in weeding out a large number of writ petitions at the initial stage with consequent saving of public time and money.

While a Procrustean approach should be avoided, as a rule the Court should not interfere at the instance of a ’stranger’ unless there are exceptional circumstances involving a grave miscarriage of justice having an adverse impact on public interests. Assuming that the appellant is a ’stranger’, and not a busybody, then also, there are no exceptional circumstances in the present case which would justify the issue of a writ of certiorari at his instance. On the contrary, the result of the exercise of these discretionary powers, in his favour, will, on balance, be against public policy. It will eliminate healthy competition in this business which is so essential to raise commercial morality; it will tend to perpetuate the appellant’s monopoly of cinema business in the town; and above all, it will, in effect, seriously injure the fundamental rights of respondents 1 and 2, which they have under article 19(1) (g) of the Constitution, to carry on trade or business subject to ’reasonable restrictions’ imposed by law.

The instant case falls well-nigh within the ratio of this Court’s decision in Rice and Flour Mills v. N. T. Gowda(1), wherein it was held that a rice mill-owner has no locus standi to challenge under Article 226, the setting up of a new rice-mill by another even if such setting up be in contravention of s. 8(3)(c) of the Rice Milling Industry (Regulation) Act, 1958 because no right vested in such an applicant is infringed.

For all the foregoing reasons, we are of opinion that the appellant had no locus standi to invoke this special jurisdiction under article 226 of the Constitution. Accordingly, we answer the question posed at the commencement of this judgment, in the negative, and on that ground, without entering upon the merits of the case, dismiss this appeal with costs.

S.R. Appeal dismissed.

(1) [1970] S.C.R. 846.

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Sambasiva Rao, Ag. C.J.

1. Though the judgment of Venkatrama Sastry J., which is sought to be appealed against, is an affirming one. Sri P. Rama Rao learned counsel for the appellants-defendants raises many points in support of the appeal.

2. Firstly, he argues that the plaintiff-respondent who filed the suit for partition as the heir of her husband, had lost the status of wife, and so, she could not claim a share. That is on the ground that on 28th day of July, 1962, a decree for judicial separation was passed at the instance of the husband against the respondent. She was provided maintenance at the rate of Rs.200 per month. In execution of this decree for maintenance, she even applied for the arrest of the husband. Without anything more happening, he died in the year 1967 and she filed the suit for partition in 1968. Sri Rama Rao maintains that all the requirements of sub-section (1-A) of Section 13 of the Hindu Marriage Act (1955) have existed in this case, since there was a decree for judicial separation and there is no evidence of resumption of cohabitation between the spouse for a period of two years or upwards after passing of the decree. So, it is contended that it must be deemed that a dissolution of marriage has occurred under Section 13. It is not possible to accept this contention because dissolution or divorce can be granted only under a decree of the court . Sub-section (1-A) provides only a ground for applying for the dissolution of marriage. If the circumstances enumerated in that sub-section existed, then either party to be marriage can apply for dissolution. There was no such application in this case, much less a decree. Therefore, it cannot be said that there was a dissolution of marriage, thereby the plaintiff-respondent losing the status as wife.

3. It is then submitted that even judicial separation has the effect of depriving the plaintiff-respondent of the status of wife. Once again, in our opinion, it is untenable agreement. If such were the intention of the legislature, there could not have been separate provisions for judicial separation and divorce. In fact, if sub-section (1-A) of Section 13 is read, it is quite manifest that the Act postulates resumption of marital relations between the spouse even after a decree for judicial separation has been passed. If a resumption has taken place, then the judicial separation comes to an end. If it does not, then it provides a ground for application by either party to a marriage for divorce. This clearly leads to the conclusion that judicial separation does not put an end to the marital status of the party, with the result, the plaintiff-respondent continues to enjoy the status of the wife.

4. The third contention is that the husband had left a will bequeathing all his properties to the defendants-appellants. On a thorough examination of the evidence, our learned brother agreed with the trial court in holding that the will was not proved. We have no reason to disagree with that conclusion.

5. The last submission is about the movables It complains that the learned Judge has not considered the question of movables. Obviously, it was not pressed before the learned Judge for the reason that a Commissioner was appointed to take an inventory of all the movables. He prepared an inventory, Ex. A-13 of the movables and only a share of such movables as mentioned in Ex. A-13 was given to the plaintiff-respondent by the trial court. In regard to the jewels, the Commissioner was prevented from making an inventor of the articles in the iron safe. So, the trial court drew an adverse inference that the jewels mentioned in the ‘C’ Schedule to the plaint were also existing. In view of the circumstances stated above, we think the defendants-appellants did not press their case in regard to movables.

6. Thus, we find no substance in any of the contentions raised by Mr. Rama Rao. The Letters Patent Appeal is dismissed.

7. Appeal dismissed.

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CHANDRACHUD, Y.V., SARKARIA, RANJIT SINGH GUPTA, A.C.

CITATION: 1976 AIR 109 1976 SCR (2) 164 1976 SCC (3) 142

ACT:

Income Tax Act, 1922-Section 2(9)-Hindu Undivided Family as an assessee-coparcenary and Hindu Undivided Family-In the absence of a nucleus whether H.U.F. can consist of one male member-Presumption of Union of a Hindu family-Composition of H.U.F. whether relevant for assessment in case where property belong to subsisting undivided family or in case where property is thrown into common hotchpotch for the first time-Whether assessment to be made depending on the nature and character of the property under the personal law.
(1) Even in the absence of an antecedent history of jointness, the appellant could constitute a joint Hindu Family with his wife and unmarried daughter. True that the appellant could not constitute a coparcenary with his wife and unmarried daughter but under the Income Tax Act a Hindu undivided family, not a coparcenary is taxable unit. A Hindu coparcenary is a much narrower body than the joint family.

[170F, 171B] (2) The joint family with all its incidents, is a creature of law and cannot be created by act of parties except to the extent to which a stranger may be affiliated to the family by adoption. The appellant, however, was not by contract seeking to introduce in his family strangers not bound to the family by the tie of a sapindaship. That it does not take more than one male to form a joint Hindu family with females, is well established. [172A & G] (3) The contention of the Department that since prior to the declaration. the family hotchpotch in the instant case was empty and there was nothing with which the property or its income could be blended and therefore, the declaration is ineffective to convert that property into joint family property was not raised before the Tribunal, and the same was not pressed in the High Court. It was, therefore, not open to the department to take before this Court a contention which in the first place does not arise out of the reference and which the department’s counsel in the High Court raised but did not press.

[173G-H, 174A-C] (4) The cases of Kanji and Sewdas in Kalyanji’s case furnish a near parallel to the present case. Though the property in their hands was assumed to be ancestral, income which Kanji and Sewdas received from it was treated as their separate property, as neither of them had a son who could take interest in the ancestral property by birth. Applying that analogy, even if Kathoke lodge were to be an ancestral asset, its income would still have to be treated as the appellant’s separate property as he had no son who could take interest in that property by birth. The ratio of Kalyanji’s case would, therefore, apply to the instant case.

The reason why the case of Kanji and Sewdas furnished a close parallel is the very reason for which their cases were held by this Court to be distinguishable from Lakshmi Narain’s case. In Lakshmi Narain’s case the property was ancestral in the hands of the father, the son had acquired an interest by birth therein there was a subsisting Hindu Undivided family during the lifetime of the father and since that family did not come to an end on the death of the father, the Bombay High Court rightly held that the income continued to be the income of the joint family and was liable to be taxed as such. The property of a joint family does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of property may possess.

[176-D-G, 177A, 178, G-H, 179A] (5) There are thus two classes of cases each requiring a different approach. In cases where the property belongs to a subsisting undivided family the property does not cease to have that character merely because the family is represented by a sole surviving coparcener who possesses rights which an owner of property may possess, or for that matter even if the family for the time being consists only of widows of deceased coparceners. In cases where the property did not belong to a subsisting undivided family, whether any property has acquired the 166 character of joint family property has acquired the character of joint family property in the hands of an assessee depends on the composition of the family. A joint Hindu family can consist of a man, his wife and daughter but the mere existence of a wife or daughter will not justify the assessment of income from the joint family property in the status of the head as a manager of the joint family.

Once it is realised that there are two distinct classes of cases which require a different approach there would be no difficulty in understanding the implications of the apparently conflicting tests evolved as guides for deciding the two classes of cases. Kathoke Lodge was not an asset of a pre-existing joint family. It became an item of joint family property for the first time when the appellant threw what was his separate property into the family hotchpotch.

The appellant had no son. His wife and unmarried daughter were entitled to be maintained by him from out of the income of Kathoke Lodge while it was his separate property. Their rights in that property are not enlarged for the reason that the property was thrown into the family hotchpotch. Not being co-parceners of the appellant, they have neither a right by birth in the property nor the right to demand partition nor indeed the right to restrain the appellant from alienating the property for any purpose whatsoever. The property which the appellant has put into the common stock may change its legal incidence on the birth of a son but until that event happens, the property in the eyes of Hindu Law is really his. He can deal with it as a full owner, unrestrained by considerations of legal necessity or benefit of the estate. He may sell it mortgage it or make a gift of it. Even a son born or adopted after the alienation shall have to take the family hotchpotch as he finds it.

[180-G, H, 181 A-D, 182-E-H, 183A] (7) Since the personal law of the appellant regards him as the owner of Kathoke lodge and the income therefrom as his income even after the property was thrown into the family hotchpotch, the income would be chargeable to income tax as his individual income and not that of the family.

[183B-C]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1819- 1821 of 1970.

Appeals by Special Leave from the Judgment and Order dated the 8/9th July 1969 of the High Court at Bombay in Income Tax Reference No. 29 of 1963.

G.C. Sharma, O.P. Dua, Annoop Sharma and P.K. Mukherjee for the Appellants.

S.T. Desai, P.L. Juneja and S.P. Nayar for the Respondent.

The Judgment of the Court was delivered by CHANDRACHUD, J.-The appellant, Surjit Lal Chhabda, had three sources of income. He had a share in the profits of two partnership firms, he received interest from Bank accounts and he received rent from an immovable property called “Kathoke Lodge”. These were his self-acquired properties and until the assessment year 1956-57, he used to be assessed as an individual in respect of the income thereof. On January 26, 1956 he made a sworn declaration before a Presidency Magistrate in Bombay that he had thrown the property Kathoke Lodge into the ‘family hotchpot’ in order to impress that property with the character of joint family property and that he would be holding that property as the Karta of the joint Hindu family consisting of himself, his wife and one child. That child was an unmarried daughter.

In the assessment proceedings for 1957-58, the appellant contended that since he had abandoned all separate claims to Kathoke Lodge, 167 the income which he received from that property should be assessed in the status of a Hindu Undivided Family. The income-tax authorities and the Income-tax Appellate Tribunal rejected that contention for varying reasons. The Income-tax Officer held that in the absence of a nucleus of joint family property, there was nothing with which the appellant could mingle his separate property and secondly, that there could not be a Hindu undivided family without there being undivided family property. The appellant carried the matter in appeal to the Appellant Assistant Commissioner who differed from the Income-tax Officer on both the points but dismissed the appeal on two other grounds. The A.A.C. held that even after the declaration, the appellant was dealing with the income of Kathoke Lodge in the same way as before which showed that the declaration was not acted upon and secondly, that even assuming that the property was thrown into the common stock and was therefore joint family property, the income from that property could still be taxed in the appellant’s hands as he was the sole male member of the family. The Tribunal accepted the declaration as genuine and differed from the A.A.C.’s finding that it was not acted upon. The appellant, according to the Tribunal, was the Karta of the joint Hindu family and it was irrelevant as to how he dealt with the joint family income. The Tribunal however held that the appellant had invested his separate property with the character of joint family property, he being a sole surviving coparcener continued to have the same absolute and unrestricted interest in the property as before and therefore, in law, the property had to be treated as his separate property.

The appellant moved the Tribunal for referring five questions to the High Court while the respondent applied for the reference of one other question. The Tribunal referred the following question only for the opinion of the Bombay High Court under section 66(1) of the Income-tax Act, 1922:

“Whether, on the facts and in the circumstances of the case, the income from property known as ‘Kathoke Lodge’ was to be assessed separately as the income of the Hindu undivided family of which the assessee was karta?” In the High Court, it was contended on behalf of the appellant that it is open to a male member of a joint Hindu family to convert his self-acquired property into joint family property by throwing it into the common hotchpot;

that for effectuating this purpose it is neither necessary that there should be an ancestral or joint family nucleus nor that there should be more than one male in the joint family; and since Kathoke Lodge was impressed with the character of joint family property, its income belonged to the joint Hindu family of which the appellant was the Karta, the other members being his wife and unmarried daughter.

On the other hand, the Department contended that it was contrary to the basic concept of a Hindu Undivided Family that a single male along with females could form a joint Hindu family; that though a joint Hindu family could include a wife and unmarried daughters, a 168 sole male member could not constitute a joint Hindu family along with females; and that it was necessary for the formation of a joint Hindu family that there should be more than one male capable of claiming partition of the joint family property. In the alternative, it was urged by the Department that a single male could form a joint Hindu family along with a coparcener’s widow who is capable of making an adoption to her deceased husband but not with his own wife and unmarried daughter. The argument that the existence of ancestral or joint family property was an essential pre-requisite to throwing the self-acquired property into the common stock was raised but was not pressed in the High Court.

On these contentions, the real controversy before the High Court was whether a single male can form a joint Hindu family with his wife and unmarried daughter; if yes, whether the Karta of such a family can impress his self-acquired property with the character of joint family property by throwing it into the family hotchpot; and, lastly, whether the income of such property can be assessed as the income of the joint family. The High Court did not enter into these questions and made its task simple by saying:

“Several authorities were referred to on either side in support of their respective contentions. We do not, however, propose in deciding this reference to go into the larger question as to whether the property of the assessee, which was originally self-acquired property, assumed the character of a Hindu undivided family property, as to what are the incidents of a Hindu undivided family property and under what circumstances can separate property become Hindu undivided family property. Some of these questions have been directly answered in the authorities which were cited before us.

“The question referred is confined to the ‘income’ from Kathoke Lodge. We would, therefore, without going into these larger questions, prefer to rest our decision on the short point whether the income from the property known as Kathoke Lodge after the declaration was the income of a Hindu undivided family and in this respect whether the principle laid down by the Privy Council in Kalyanji’s case was correctly applied.” The High Court assumed for the purposes of argument that there need not be more than one male member for forming a joint Hindu family as a taxable unit and that a joint Hindu family could lawfully consist of a single male member, his wife and unmarried daughter. On these assumptions the High Court concluded that Kathoke Lodge, from the date of the declaration by which it was thrown into the common stock, was the Property of the Hindu undivided family. It, however, held:

“But the assessee has no son and therefore no undivided family. His ownership of the property and its income in fact remains the same as before. The fact of the existence of a wife or of a wife and daughter would make no difference 169 to his ownership of that property… His position as a member of the joint family after the declaration would be the same as that of a sole surviving coparcener, but it is now settled law that a person who for the time being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if it were his separate property……That is the position which the assessee held so far as his property is concerned. So far as the income is concerned, he has the complete power of disposal over the income and, even assuming that he is the karta of a joint Hindu family, there is no one who can question his spending, i.e., whether or not it is for legal necessity or other justifiable purpose. If then, his right to the income remains under his personal law the same as it was before he made the declaration, the question arises whether under the Income-tax Act it must be held to be the income of the karta of the Hindu undivided family. That is precisely the question which the Privy Council answered against the assessee in Kalyanji’s case…..In our opinion, therefore, the assessee’s case would fall squarely within the principle enunciated by their Lord ships of the Privy Council in Kalyanji’s case and upon that view the income in the hands of the assessee would be liable to be assessed as his individual income.” The Privy Council decision on which the High Court relies is Kalyanji Vithaldas v. Commissioner of Income-tax.(1) The judgment of the High Court is reported in 75 I.T.R. 458.

Before examining the validity of the High Court’s reliance on Kalyanji’s case and the correctness of its conclusion that the instant case falls within the ratio of that decision, it is necessary to have regard to the principles of Hindu Law governing joint families. The High Court did not examine those principles, calling them “larger questions”, and preferred wholly to rely on, so to say, the magic touch of Kalyanji’s case. It assumed that a joint family may consist of a single male, a wife and daughter which means that it assumed that the appellant was a member of a joint Hindu family consisting of himself, his wife and daughter. However, in the very next breath the High Court concluded: “But the assessee has no son and therefore no undivided family.” An examination of fundamentals might have saved the High Court from the inconsistency that a single male can constitute a “joint family” with his wife and daughter but if that male has no son, there can be no “undivided family”. In the first place, joint family and undivided family are synonymous terms. Secondly, when one says that a joint Hindu family consists of a single male, his wife and daughter, one implies necessarily that there is no son. If there were a son, there would be two males.

For our limited purpose, fundamentals do not any more require a study of Sastric texts, digests and commentaries because judicial decisions rendered over the last century and more have given a legalistic form to what was in a large measure a mingling of religious and 170 moral edicts with rules of positive laws. Hindu law today, apart from the piecemeal codification of some of its branches like the laws of marriage, succession, minority, guardianship, adoption and maintenance is Judge-made law, though that does not detract from the juristic weight of Smritis like the Yajnavalkya Smriti nor from the profundity of Vijnaneshwara’s Commentary on it, the critique bearing the humble title of ‘Mitakshara’.

The appellant is governed by the Mitakshara school of Hindu law but that is not of any particular consequence for the purposes of this appeal. The differences between the Mitakshara and Dayabhaga schools on the birth-right of coparceners and the rules of inheritance have no bearing on the issues arising in this appeal, particularly on the question whether a single male can constitute a joint or undivided family with his wife and unmarried daughter. A joint Hindu family under the Dayabhaga is, like a Mitakshara family, normally joint in food, worship and estate. In both systems, the property of joint family may consist of ancestral property, joint acquisitions and of self acquisitions thrown into the common stock(1). In fact, whatever be the school of Hindu law by which a person is governed, the basic concept of Hindu undivided family in the sense of who can be its members is just the same.

Section 2(9) of the Income-tax Act, 1922 defines a “person” to include inter alia a “Hindu undivided family”.

Under sections 3 and 55 of that Act, a Hindu undivided family is a taxable unit for the purposes of income-tax and super-tax. The expression ‘Hindu undivided family’ finds reference in these and other provisions of the Act but that expression is not defined in the Act. The reason of the omission evidently is that the expression has a well-known connotation under the Hindu Law and being aware of it, the legislature did not want to define the expression separately in the Act. Therefore, the expression ‘Hindu undivided family must be construed in the sense in which it is under stood under the Hindu law(1).

There is no substance in the contention of the respondent that in the absence of an antecedent history of jointness, appellant cannot constitute a joint Hindu family with his wife and unmarried daughter. The lack of such history was never before pleaded and not only does it find no support from the record but such an assumption ignores the plain truth that the joint and undivided family is the normal condition of Hindu society. The presumption therefore is that the members of a Hindu family are living in a state of union, unless the contrary is established.(3) The strength of the presumption may vary from case to case depending upon the degree of relationship of the members and the farther one goes from the founder of the family, the 171 weaker may be the presumption. But, generally speaking, the normal state of every Hindu family is joint and in the absence of proof of division, such is the legal presumption.

Thus, a man who separates from his father or brothers may, nevertheless continue to be joint with the members of his own branch. He becomes the head of a new joint family, if he has a family, and if he obtains property on partition with his father and brothers, that property becomes the ancestral property of his branch, qua him and his male issue.

It is true that the appellant cannot constitute a coparcenary with his wife and unmarried daughter but under the Income-tax Act a Hindu undivided family, not a coparcenary, is a taxable unit. A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property and these are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, that is to say, the three generations next to the holder in unbroken male descent. Since under the Mitakshara Law, the right to joint family property by birth is vested in the male issue only, females who come in only as heirs to obstructed heritage (sapratibandha days), cannot be coparceners. But we are concerned under the Income-tax Act with the question whether the appellant’s wife and unmarried daughter can with him be members of a Hindu undivided family and not of a coparcenary. In the words of Sir George Rankin who delivered the opinion of the Judicial Committee in Kalyanji’s case :

“The phrase `Hindu undivided family’ is used in the statute with reference, not to one school only of Hindu law, but to all schools; and their Lordships think it a mistake in method to begin by pasting over the wider phrase of the Act the words `Hindu co- parcenary’, all the more that it is not possible to say on the face of the Act that no female can be a member.” (p. 95).

Outside the limits of coparcenary, there is a fringe of persons, males and females, who constitute an undivided or joint family. There is no limit to the number of persons who can compose it nor to their remoteness from the common ancestor and to their relationship with one another. A joint Hindu family consists of persons lineally descended from a common ancestor and includes their wives and unmarried daughters. The daughter, on marriage, ceases to be a member of her father’s family and becomes a member of her husband’s family. The joint Hindu family is thus a larger body consisting of a group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption. “The fundamental principle of the Hindu joint family is the sapindaship. Without that it is impossible to form a joint Hindu family. With it as long as a family is living together, it is almost impossible not to form a joint Hindu family. It is the family relation, the sapinda relation, which distinguishes the joint family, and is of its very essence.”(1) 172 The joint Hindu family, with all its incidents, is thus a creature of law and cannot be created by act of parties, except to the extent to which a stranger may be affiliated to the family by adoption. But the absence of an antecedent history of jointness between the appellant and his ancestors is no impediment to the appellant, his wife and unmarried daughter forming a joint Hindu family. The appellant’s wife became his sapinda on her marriage with him. The daughter too, on her birth, became a sapinda and until she leaves the family by marriage, the tie of sapindaship will bind her to the family of her birth. As said by Golapchandra Sarkar Sastri in his “Hindu Law” (Eighth Ed., p. 240), “Those that are called by nature to live together, continue to do so” and form a joint Hindu family. The appellant is not by contract seeking to introduce in his family strangers not bound to the family by the tie of sapindaship. The wife and unmarried daughter are members of his family. He is not by agreement making them so. And as a Hindu male, he himself can be the stock of a fresh descent so as to be able to constitute an undivided family with his wife and daughter.

That it does not take more than one male to form a joint Hindu family with females is well-established. In Gowli Buddanna v. Commissioner of Income-tax, Mysore, Bangalore(1), one Buddappa, his wife, his two unmarried daughters and his adopted son Buddanna were members of a Hindu undivided family. On Buddappa’s death a question arose whether the adopted son who was the sole surviving coparcener could form a joint Hindu family with his mother and sisters and could accordingly be assessed in the status of a manager of the Hindu undivided family. Speaking for the Court, Shah J. observed :

“The plea that there must be at least two male members to form a Hindu undivided family as a taxable entity also has no force. The expression `Hindu undivided family’ in the Income-tax Act is used in the sense in which a Hindu joint family is understood under the personal law of Hindus. Under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members, and apparently the Income-tax Act does not indicate that a Hindu undivided family as an assessable entity must consist of at least two male members.” In N. V. Narendranath v. Commissioner of Wealth-tax, Andhra Pradesh, Hyderabad(2), the appellant filed returns for Wealth Tax in the status of a Hindu undivided family which at the material time consisted of himself, his wife and two minor daughters. The claim to be assessed in the status of a Hindu undivided family rested on the circumstance that the wealth returned consisted of ancestral property received or deemed to have been received by the appellant on partition with his father and brothers. The High Court held that as the appellant’s family did not have any other male coparcener, the assets must 173 be held to belong to him as an individual and not to the Hindu undivided family. That decision was set aside by this Court on the ground that a joint Hindu family could consist under the Hindu law of a single male member, his wife and daughters and that it was not necessary that the assessable unit should consist of at least two male members.

In both of these cases, Gowli Buddanna’s and Narendranath’s the assessee was a member of a pre-existing joint family and had, in one case on the death of his father and in the other on partition, become the sole surviving coparcener. But the decision in those cases did not rest on the consideration that there was an antecedent history of jointness. The alternative argument in Gowli Buddanna’s case (p. 266) was an independent argument uncorrelated to the pre-existence of a joint family. The passage which we have extracted from the judgment of Shah J. in that case shows that the decision of this Court did not proceed from any such consideration. The Court held in terms categorical that the Hindu undivided family as an assessable entity need not consist of at least two male members. The same is true of the decision in Narendranath’s case (see p. 886).

Thus the contention of the Department that in the absence of a pre-existing joint family the appellant cannot constitute a Hindu undivided family with his wife and unmarried daughter must fail. The view of the High Court that the appellant has “no son and therefore no undivided family” is plainly unsound and must also be rejected.

Accordingly, the question whether the income of the Kathoke Lodge can be assessed in the hands of the appellant as a Karta or manager of the joint family must be decided on the basis that the appellant, his wife and unmarried daughter are members of a Hindu undivided family.

By the declaration of January 26, 1956, the appellant threw Kathoke Lodge into the family hotchpot abandoning all separate claims to that property. The genuineness of that declaration was accepted by the Tribunal. The High Court too decided the reference on the footing that the appellant had thrown the property into the common hotchpot and that `after the declaration, the property …. would be property of a Hindu undivided family in the hands of the assessee” (p.

471). Learned counsel for the Department attempted to raise a new contention before us that there is no such thing under the Hindu law as impressing separate property with the character of joint, family property, that the only doctrine known in this behalf to Hindu law is the doctrine of blending and since, prior to the declaration the family hotchpot in the instant case was empty, there was nothing with which the Kathoke Lodge or its income could be blended and therefore, the declaration is ineffective to convert that property into joint family property. Learned counsel for the appellant cited several decisions of the High Courts to controvert the Department’s contention. But apart from the merits of the point we ruled that the contention was not open to the Department. The statement of case framed by the Tribunal shows that such a contention was not raised before the Tribunal. The Commissioner of Income-tax himself asked for the reference of a question to the High 174 Court for its opinion. That question concerns the point whether having regard to the conduct of the appellant his self-acquired property could be said to be impressed with the character of joint family property. The question did not cover the contention raised before us on behalf of the Department. But above all, though an argument was raised in the High Court on behalf of the Department that for the operation of the doctrine of blending it was essential that there should exist not only a coparcenary but also a coparcenary property, learned counsel who appeared for the Department in the High Court “did not, after some discussion, press that there should necessarily be coparcenary property.” This was not a concession on a question of law in the sense as to what the true legal position was. What the Department’s counsel stated in the High Court was that he did not want to press the particular point. In our opinion, it is not open to the Department to take before us a contention which in the first place does not arise out of the reference and which the Department’s counsel in the High Court raised but did not press.

Having examined the true nature of an undivided family under the Hindu law and in view of the findings of the Tribunal and the High Court on the second aspect, two points emerge clear : Firstly that the appellant constituted a Hindu undivided family with his wife and unmarried daughter and secondly that Kathoke Lodge which was the appellant’s separate property was thrown by him in the family hotchpot.

It remains now to consider whether the income of Kathoke Lodge must be assessed in the hands of the appellant as an individual or whether it can be assessed in his status as manager of the Hindu undivided family.

Since the conclusion reached by the High Court that the income of Kathoke Lodge cannot be assessed in the appellant’s status as a manager of the Hindu undivided family is based wholly on the decision in Kalyanji’s case and since that decision also loomed large in the arguments before us, it is necessary to examine it closely.

The relevant facts of that case are these : One Sicka had two sons, Moolji and Purshottom. From his first wife, Moolji had two sons, Kanji and Sewdas both of whom were married but neither of whom had a son. From his second wife, Moolji had a son Mohan Das. Kanji had a wife and a daughter while Sewdas had a wife but no issue. Moolji, Kanji and Sewdas separated from one another in about 1919. In the same year Moolji made gifts of capital to Kanji and Sewdas.

Moolji continued to live jointly with his second wife and the son Mohan Das born of her. Purshottom had a wife, a son and a daughter.

There was another family of which the head was one Vithaldas. He had three sons, Kalyanji, Chaturbhuj and Champsi. Kalyanji had a wife, three sons and a daughter while Chaturbhuj had a wife and daughters.

Moolji and Purshottom, the two sons of Sicka, who had already separated from each other started in 1912 a business called Moolji Sicka and Company in partnership with Kalyanji, the son of Vithaldas.

175 The three partners employed their self-acquired properties for the purpose of that business. In course of time, Moolji’s sons Kanji and Sewdas, and Vithaldas’ sons Chaturbhuj and Champsi were taken into the partnership with the result that by 1930 the partnership came to consist of seven partners : Moolji, his sons Kanji and Sewdas; Moolji’s brother Purshottom; and Vithaldas’s sons Kalyanji, Chaturbhuj and Champsi. The interest of Kanji and Sewdas in the firm was a gift from their father Moolji and that of Chaturbhuj a gift from his brother Kalyanji. Those of the partners whose interest in the firm was separate property were not shown to have thrown that property or the receipts therefrom into the common stock.

The Privy Council had six appeals before it which were filed by the partners of the firm except Chapsi. The appeals related to the assessment year 1931-32. The controversy was whether the partners should each be assessed to super-tax upon his share of the profits as an individual or whether the six shares should each be assessed as income of a Hindu undivided family.

Three partners out of the six, namely, Moolji, Purshotom and Kalyanji, were each members of a Hindu undivided family. Each of these three partners had a son or sons from whom he was not divided. But the income which these partners received from the firm was their separate and self-acquired property. Since the income was not thrown into the common stock, the Privy Council held that it could not be regarded as the income of the respective joint families.

The fourth partner Chaturbhuj had no son. His interest in the firm was obtained from his brother Kalyanji and therefore the income which he received from his share in the profits of the firm was a self-acquired and not ancestral property. The Privy Council observed that even if Chaturbhuj were to have a son, that son would have taken by birth no interest in the income which fell to Chaturbhuj’s share and therefore the income was assessable in the hands of Chaturbhuj as his separate income and not that of the joint Hindu family.

According to the Privy Council, in none of the cases of these four partners was the result affected by the fact that any partner had a wife and a daughter or a wife and more than one daughter. If the mere existence of a son did not make a father’s self-acquired property joint family property, it was untenable that the existence of a wife or a daughter could do so.

In the case of the remaining two partners, Kanji and Sewdas, their interest in the firm was obtained under a gift from their father. The Privy Council assumed, without deciding the question, that such an interest was ancestral property in the hands of the sons so that if either Kanji or Sewdas had a son, the son would have taken interest in the property by birth. But neither Kanji nor Sewdas had a son.

Kanji’s family consisted of himself, his wife and daughter while Sewdas’s family consisted of himself and his wife. The Privy Council held that the wife and daughter may be entitled to be maintained out of a person’s separate as well as joint family property but the mere existence of a wife or daughter did not make ancestral property joint.

176 The crucial facts in Kalyanji’s case on which the ultimate decision rested are these : (i) In regard to three partners, Moolji, Purshottom and Kalyanji, though each of them was the head of his joint family which included in every case a son or sons, the income which each received from the firm was his separate and self-acquired property which was not thrown into the common stock. (ii) In regard to Chaturbhuj, though he had no son, that fact was irrelevant because his interest in the firm was his self- acquired or separate property in which the son could have taken no interest by birth. (iii) And in regard to Kanji and Sewdas, even if their interest in the firm was assumed to be ancestral property, the income which they received from the firm was their separate property as neither of them had a son who could take interest in the ancestral property by birth.

The appeals of the six partners before the Privy Council fall into two classes. Those of Moolji, Purshottom, Kalyanji and Chaturbhuj fall in one class while those of Kanji and Sewdas fall in another class. There is a point of distinction between the cases of the four partners falling within the first class on one hand and that of the appellant on the other. But the point of distinction is not that Moolji, Purshottom and Kalyanji had a son or sons and the appellant has none, because though the three partners were heads of their respective joint families which included in every case a son or sons, the income which each received from the firm was his separate and self-acquired property which was not thrown into the common stock. The mere existence of a son or sons in a joint Hindu family does not make the father’s separate or self-acquired property joint family property. Though Chaturbhuj had no son that fact would not by itself bring his case on par with the appellant’s because Chaturbhuj’s interest in the firm was his separate property which also was not thrown in the common stock. If the mere fact that Moolji, Purshottom and Kalyanji had each a son or sons did not make their separate property joint family property, the mere existence of a wife or daughter could not bring about that result in Chaturbhuj’s case.

As contrasted with the cases of these four partners, Kathoke Lodge which was once the separate property of the appellant was thrown by him in the common stock, which raises the question whether that circumstance is sufficient to justify the assessment of the income from that property in the appellant’s status as the manager of the joint family. On this point the cases of Kanji and Sewdas furnish a near parallel. They did not have to throw their interest in the firm in the common stock because that interest was, on assumption, their ancestral property. But even though the property was ancestral, the income which they received from it was treated as their separate property as neither of them had a son who could take interest in the ancestral property by birth. Applying that analogy, even if Kathoke Lodge were to be an ancestral asset, its income would still have to be treated as the appellant’s separate property as he has no son who could take interest in that property by birth. On this reasoning, the effect of the appellant throwing Kathoke Lodge into the family hotchpot could not be more telling than if that property was his ancestral property.

177 But then it is urged by the learned counsel for the appellant that the Privy Council was in error in its decision on the nature of income received by Kanji and Sewdas from what was assumed to be ancestral property and therefore the decision on that aspect of the matter ought not to be followed in determining the true nature of the income received by the appellant from Kathoke Lodge. This submission is founded on the disapproval by this Court of certain observations made by the Privy Council in Kalyanji’s case.

The Privy Council, in its judgment in Kalyanji’s case, referred in passing to “Laxminarayan’s case” and observed that “The Bombay High Court on the other hand, in Lakshminarayan’s case having held that the assessee his wife and mother were a Hindi undivided family, arrived too readily at the conclusion that the income was the income of the family”. The decision of the Bombay High Court which the Privy Council had in mind is Commissioner of Income-tax, Bombay v. Gomedalli Lakshminarayan (3 I.T.R. 367). There is a fundamental distinction between Lakshminarayan’s case and Kalyanji’s case which, with respect the Privy Council failed to notice. In Lakshminarayan’s case the joint Hindu family consisted of a father, his wife, their son and the son’s wife. The property of the joint family was ancestral in the hands of the father and the son’s had acquired by birth an interest therein. (See the Judgment of Rangnekar J. at p.

369). There was a subsisting undivided family during the father’s life-time and that undivided family did not come to an end on the father’s death. The same undivided family continued after the death of the father, with the son, his mother and his wife as its members. The effect of the father’s death was merely this that the son, instead of the father, became the manager of the joint family. The income from ancestral property was the income of the joint family during the father’s life-time and after his death it continued to be the income of the self-same joint family.

The only change that had come about was that one link in the chain was snapped by death. But the death of a member of a joint Hindu family does not ordinarily disrupt the joint family. The Bombay High Court therefore held that the income of the ancestral property should be assessed in the son’s status as a manager of the undivided family and not in his individual capacity. When Lakshminarayan’s case came up before the Privy Council in appeal(1), it regarded itself as bound by the interpretation put in Kalyanji’s case on the expression “Hindu undivided family” as employed in section 55 of the Indian Income-tax Act and observed that the facts of the case were not materially different from the facts of Kalyanji’s case. The Privy Council therefore answered the question by holding that “the income received by right of survivorship by the sole surviving male member of a Hindu undivided family can be taxed in the hands of such male member as his own individual income for the purposes of assessment to super-tax under Sec. 55 of the Indian Income Tax Act, 1922”.

The decision of the Privy Council in Lakshminarayan’s case and the observations made by it in Kalyanji’s case regarding the view taken 178 by the Bombay High Court in Lakshminarayan’s case were expressly disapproved by this Court at least in two cases.

In Gowli Buddanna’s case(1), after discussing the decisions in Kalyanji’s case and Lakshminarayan’s case this Court observed :

“It may however be recalled that in Kalyanji Vithaldas’s case income assessed to tax belonged separately to four out of six partners; of the remaining two it was from an ancestral source but the fact that each such partner had a wife or daughter did not make that income from an ancestral source income of the undivided family of the partner, his wife and daughter. In Gomedalli Lakshminarayan’s case the property from which income accrued belonged to a Hindu undivided family and the effect of the death of the father who was a manager was merely to invest the rights of a manager upon the son. The income from the property was and continued to remain the income of the undivided family. This distinction which had a vital bearing on the issue falling to be determined was not given effect to by the Judicial Committee in A. P.

Swamy Gomedalli’s case.” In Narendranath’s(2) case too this Court disapproved of the Privy Council decision in Lakshminarayan’s case and pointed out that the Privy Council had failed to notice the distinction between the facts of Kalyanji’s case and those of Lakshminarayan’s case in observing that the Bombay High Court “arrived too readily at the conclusion that the income was the income of the family”.

The appellant’s counsel is thus right in his submission that the observations made by the Privy Council in Kalyanji’s case as regards the correctness of the Bombay view in Lakshminarayan’s case is not good law. In fact, the decision of the Privy Council in appeal from the judgment of the Bombay High Court in Lakshminarayan’s case has itself been disapproved by this Court. But that does not affect the correctness of the Privy Council decision in Kalyanji’s case itself as regards the nature of the income received by the six partners from the firm. That part of the judgment in Kalyanji’s case has never been doubted and is open to no exception. For the matter of that, the error of the Privy Council’s decision in Lakshminarayan’s case consisted in overlooking the factual distinction between that case and Kalyanji’s case, as a result of which the ratio of Kalyanji’s case came to be wrongly applied to Lakshminarayan’s case.

The ratio of Kalyanji’s case would therefore apply to the instant case, the parallel being furnished by the cases of Kanji and Sewdas. But a word of explanation is necessary in the interests of clarity. The reason why the cases of Kanji and Sewdas furnish a close parallel is the very reason for which their cases were held by this Court to be distinguishable from Lakshminarayan’s case. In Lakshminarayan’s case the property was ancestral in the hands of the father, the son had acquired an interest by birth therein, there was a subsisting Hindu un- 179 divided family during the life-time of the father and since that family did not come to an end on the death of the father, the Bombay High Court had rightly held that the income continued to be income of the joint family and was liable to super-tax as such income. In regard to Moolji, Purshottom, Kalyanji and Chaturbhuj no such question arose as their interest in the firm was their separate property which was not thrown into the common stock. As regards Kanji and Sewdas, they were divided from their father Moolji at least since 1919 in which year Moolji made gifts of capital to them. Kanji joined the firm in 1919 and Sewdas in 1930.

The assessment year in reference to which the dispute arose was 1931-32. Thus the gifted property of which the income was to be charged to super-tax was not the ancestral or joint family property of a subsisting Hindu undivided family consisting of Moolji, Kanji and Sewdas. Were it so, the case would have fallen within the ratio of the judgment of the Bombay High Court in Lakshminarayan’s case. As in the cases of Kanji and Sewdas, so here, the property of which the income is to be brought to tax was not the joint family property of a subsisting Hindu undivided family which had devolved on a sole surviving coparcener. In that latter class of cases the view has been consistently taken, except for the decision of the Privy Council in Lakshminarayan’s case, that property of a joint family does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of property may possess. The decision of the Privy Council in Attorney General of Ceylon v. A. R.

Arunachalam Chettiar and Others(1), the decisions of this Court in the cases of Gowli Buddanna and Narendranath and the decision of the Bombay High Court in Lakshminarayan’s case fall within that class and are not to be confused with cases like the one on hand, which fall within the rule in Kalyanji’s case.

In Arunachalam Chettiar’s case, a father and son constituted a joint Hindu family along with females including the widow of a pre-deceased son. On the death of the son in 1934 the father became the sole surviving coparcener. By a Ceylonese Ordinance, property passing on the death of a member of a Hindu undivided family was exempt from payment of Estate Duty. On the death of the father a question arose whether, in view of the ordinance, his estate was liable to Estate Duty. The Privy Council held that the father was at his death a member of a Hindu undivided family, the same undivided family of which his son, when alive was a member, and of which the continuity was preserved after the father’s death by adoptions made by the widows who were members of the family. In Gowli Buddanna’s case, there was a subsisting Hindu undivided family between a father, his wife, two unmarried daughters and an adopted son. In respect of the income from dealings of the family, the father was assessed during his life-time in the status of a manager of the Hindu undivided family. After the death of the father the adopted son contended that he should be assessed as an individual. This contention was rejected uniformly at all stages. After examining various authorities including Kalyanji’s case, Lakshminaryan’s case and Arunachalam’s case, this Court held that property which belongs to a Hindu undivided family does not cease to belong 180 to it because of the temporary reduction of the coparcenary unit to a single individual, who possesses rights which an owner of property may possess. A similar view was taken by this Court in Narendranath’s case which raised a question under the Wealth Tax Act. Narendranath’s family consisted, at the material time, of his wife and two minor daughters.

Since the wealth returned consisted of ancestral property received by him on partition with his father and brothers, it was held by this Court that his status was that of a Hindu undivided family and not that of an individual.

While dealing with the question whether the assets which came to Narendranath’s share on partition ceased to bear the character of joint family properties and became his individual property, this Court observed :

“In this connection, a distinction must be drawn between two classes of cases where an assessee is sought to be assessed in respect of ancestral property held by him : (1) where property not originally joint is received by the assessee and the question has to be asked whether it has acquired the character of a joint family property in the hands of the assessee and (2) where the property already impressed with the character of joint family property comes into the hands of the assessee as a single coparcener and the question required to be considered is whether it has retained the character of joint family property in the hands of the assessee or is converted into absolute property of the assessee.” After referring to Kalyanji’s case and noticing the observation of the Judicial Committee that income from an ancestral source does not necessarily become the income of the undivided family consisting of a man, his wife and daughter, this Court held :

“Different considerations would be applicable, where property already impressed with the character of joint family property comes into the hands of a single coparcener. The question to be asked in such a case is whether the property retains the character of joint family property or whether it sheds the character of joint family property and becomes the absolute property of the single coparcener.” In the result the Court concluded that the case fell within the rule in Gowli Buddanna’s case.

There are thus two classes of cases, each requiring a different approach. In cases falling within the rule in Gowli Buddanna’s case, the question to ask is whether property which belonged to a subsisting undivided family ceases to have that character merely because the family is represented by a sole surviving coparcener who possesses rights which an owner of property may possess. For the matter of that, the same question has to be asked in cases where the family, for the time being, consists of widows of deceased coparceners as in Commissioner of Income-tax, Madras v. Rm. Ar. Ar. Veerappa Chettiar(1), so long as the property which was originally of the joint Hindu family 181 remains in the hands of the widows of the members of the family and is not divided amongst them. In cases falling within the rule in Kalyanji’s case, the question to ask is whether property which did not belong to a subsisting undivided family has truly acquired the character of joint family property in the hands of the assessee. In this class of cases, the composition of the family is a matter of great relevance for, though a joint Hindu family may consist of a man, his wife and daughter, the mere existence of a wife and daughter will not justify the assessment of income from the joint family property in the status of the head as a manager of the joint family. The appellant’s case falls within the rule in Kalyanji’s case since the property, before it came into his hands, was not impressed with the character of joint family property. It is of great relevance that he has no son and his joint family consists, for the time being, of himself, his wife and daughter.

Once it is realised that there are two distinct classes of cases which require a different approach, there would be no difficulty in understanding the implications of the apparently conflicting tests evolved as guides for deciding the two classes of cases. In Kalyanji’s case the Privy Council observed:

“In an extra legal sense, and even for some purposes of legal theory, ancestral property may perhaps be described, and usefully described, as family property; but it does not follow that in the eye of the Hindu law it belongs save in certain circumstances, to the family as distinct from the individual. By reason of its origin a man’s property may be liable to be divested wholly or in part on the happening of a particular event, or may be answerable for particular obligations, or may pass at his death in a particular way; but if, in spite of all such facts, his personal law regards him as the owner, the property as his property and the income therefrom as his income, it is chargeable to income-tax as his, i.e., as the income of an individual. In their Lordships’ view it would not be in consonance with ordinary notions or with a correct interpretation of the law of the Mitakshara, to hold that property which a man has obtained from his father belongs to a Hindu undivided family by reason of having a wife and daughters.” On the other hand, in Arunachalam’s case which falls within the rule in Gowli Buddanna’s case, the Privy Council observed:

“But though it may be correct to speak of him (the sole surviving coparcener) as the ‘owner’, yet it is still correct to describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son it assumes a different quality: it is such too, that female members of the family (whose members may increase) have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. And these are incidents which arise, notwithstanding his so-called ownership, just because the property has been and has not ceased to be 182 joint family property…. it would not appear reasonable to impart to the legislature the intention to discriminate, so long as the family itself subsists, between property in the hands of a single coparcener and that in the hands of two or more coparceners.” Holding that it was an irrelevant consideration that a single coparcener could alienate the property in a manner not open to one of several coparceners, the Privy Council said:

“Let it be assumed that his power of alienation is unassailable: that means no more than that he has in the circumstances the power to alienate joint family property. That is what it is until he alienates it, and, if he does not alienate it, that is what it remains. The fatal flaw in the argument of the appellant appeared to be that, having labelled the surviving coparcener ‘owner’, he then attributed to his ownership such a congeries of rights that the property could no longer be called ‘joint family property’. The family, a body fluctuating in numbers and comprised of male and female members, may equally well be said to be owners of the property, but owners whose ownership is qualified by the powers of the coparceners. There is in fact nothing to be gained by the use of the word ‘owner’ in this connection. It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as ‘joint property’ of the undivided family.” These two sets of tests, both evolved by the Privy Council govern two distinct sets of cases and there is no inconsistency between the two tests. The test evolved in Kalyanji’s case, not in Arunachalam’s or Gowli Buddanna’s case, has to be applied to the instant case.

Kathoke Lodge was not an asset of a pre-existing joint family of which the appellant was a member. It became an item of joint family property for the first time when the appellant threw what was his separate property into the family hotchpot. The appellant has no son. His wife and unmarried daughter were entitled to be maintained by him from out of the income of Kathoke Lodge while it was his separate property. Their rights in that property are not enlarged for the reason that the property was thrown into the family hotchpot. Not being coparceners of the appellant, they have neither a right by birth in the property nor the right to demand its partition nor indeed the right to restrain the appellant from alienating the property for any purpose whatsoever. Their prior right to be maintained out of the income of Kathoke Lodge remains what it was even after the property was thrown into the family hotchpot: the right of maintenance, neither more nor less. Thus, Kathoke Lodge may be usefully described as the property of the family after it was thrown into the common stock but it does not follow that in the eye of Hindu Law it belongs to the family, as it would have, if the property were to devolve on the appellant as a sole surviving coparcener.

183 The property which the appellant has put into the common stock may change its legal incidents on the birth of a son but until that event happens the property, in the eye of Hindu Law, is really his. He can deal with it as a full owner, unrestrained by considerations of legal necessity or benefit of the estate. He may sell it, mortgage it or make a gift of it. Even a son born or adopted after the alienation shall have to take the family hotchpot as he finds it. A son born, begotten or adopted after the alienation has no right to challenge the alienation.

Since the personal law of the appellant regards him as the owner of Kathoke Lodge and the income therefrom as his income even after the property was thrown into the family hotchpot, the income would be chargeable to income-tax as his individual income and not that of the family.

For these reasons, we dismiss the appeal but there will be no order as to costs.

P.H.P. Appeal dismissed.

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IN THE SUPREME COURT OF INDIA
NARAYAN GANESH DASTANE …PETITIONER
Vs.
SUCHETA NARAYAN DASTANE …RESPONDENT
DATE OF JUDGMENT: 19/03/1975
BENCH: CHANDRACHUD, Y.V. GOSWAMI, P.K. UNTWALIA, N.L.
CITATION:
1975 AIR 1534 1975 SCR (3) 967
1975 SCC (2) 326
CITATOR INFO :
RF 1988 SC 121 (7,10)

ACT: Hindu Marriage Act–Section 10(1)(b) and 23(1)(a)(b)–Meaning of cruelty–Burden of proof in matrimonial matters–Whether beyond reasonable doubt– Condonation–of cruelty–Whether sexual intercourse amounts to condonation–Whether condonation is conditional–Revival of cruelty.

Code of Civil Procedure–Section 100 and 103–Powers of High Court in second appeal.

Evidence Act–Section 3–Proof, meaning of.

HELD (i) Normally this Court would not have gone into evidence especially as the High Court itself could not have gone into the evidence in second appeal. Section 100 of the C.P.C. restricts the jurisdiction of the High Court in second appeal to questions of law or to substantial errors or defects in the procedure which might possibly have produced error or defect in the decision of the case upon merits. The High Court came to the conclusion-that both the courts below had failed to apply the correct principles of law in determining the issue of cruelty. Accordingly the High Court proceeded to consider evidence for itself. Under s. 103 C.P.C. the High Court can determine any issue of fact if the evidence on the record is sufficient but if the High Court takes upon itself the duty of determining an issue of fact, its powers to appreciate evidence would be subject to the same restraining conditions to which the power of any court of facts is ordinarily subject. The limits of that power are not wider for the reason that the evidence is being appreciated by the High Court and not by the District Court. While appreciating evidence, inferences may and have to be drawn but courts of facts have to remind themselves of the line that divides an inference from guess work.

Normally this Court would have remanded the matter to the High Court for a fresh consideration of the evidence but since the proceedings were pending for 13 years the Court itself went into the evidence. [973 F-974 H] (ii) The burden of proof in a matrimonial petition-must lie on the petitioner because ordinarily the burden lies on the party which affirms a fact, not on the party which denied it. This principle accords with commonsense, as it is much easier to prove a positive than a negative. The petitioner must, therefore. prove that the respondents had treated him with cruelty within; the meaning of r. 10(1)(b) of the Act.

But the High Court was wrong in holding that the petitioner must prove his case beyond a reasonable doubt. The normal rule which governs civil proceedings is that a fact is said to be established if it is proved by preponderance of probabilities. Under s. 3 of the Evidence Act a act is said to be. proved when the court either believes it to exist or if considers its existence so probable that a prudent man ought, in the circumstances, to act upon the supposition that it exists. The first step in this process to fix the probabilities. the second to weigh them. The impossible is weeded 968 out in the first stage, the improbable in the second.

Within the wide range, of probabilities the Court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like the status of parties demand closer scrutiny than those like the loan on a promissory note. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving enquiries into issues of quasi-criminal nature. It is wrong to import such considerations in trials of a purely civil nature. Neither s.10 nor s. 23 of the Hindu Marriage Act requires that the petitioner must prove his case beyond reasonable doubt S. 23 confers on the court the power to pass a decree if it is satisfied on the matters mentioned in Clauses (a) to (e) of that Section.

Considering that proceedings under the Act are essentially of a civil nature the word ‘satisfied’ must mean satisfied on a preponderance of probabilities and not satisfied beyond a reasonable doubt. The society has a stake in the institution of marriage and, therefore, the erring spouse is treated not as a mere defaulter but as an offender. But this social philosophy, though it may have a bearing on the need to have the clearest proof of an allegation before it is accepted as a ground for- the dissolution of marriage, it has no bearing on the standard of proof in matrimonial cases. In England, a view was at one time taken that a petitioner in a matrimonial petition must establish his or her case beyond a reasonable doubt but the House of Lords in Blyth v. Blyth has held that the grounds of divorce or the bars to the divorce May be proved by a preponderance of probability. The High Court of Australia has also taken a similar view. [975 A-976 B] (iii) On the question of condonation of cruelty, a specific provision of a specific enactment has to be interpreted, namely s. 10(1) (b). The enquiry, therefore, has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent. It is not necessary, as under the English Law, that the cruelty must be of such a character as to cause danger to life, limb or health or as to give rise to a reasonable apprehension of such a danger.

It is risky to rely on English decisions in this field although awareness of foreign decisions can be a useful guide in interpreting our laws. The apprehension of the petitioner that it will be harmful or injurious to live with the other party has to be reasonable. It is, however, wrong to import the concept of a reasonable man as known to the law of negligence for judging matrimonial relations. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities but whether it would have that effect on the aggrieved spouse. That which may be cruel to one person may be laughed off by another and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances. The Court has to deal not with an ideal husband and an ideal wife but with the particular man and woman before it. The only rider is that of s. 23(1)(a) of the Act that the relief prayed for can be decreed only if the petitioner is not taking advantage of his own wrong. [977 D-G; 978 C-F; 979 A] (iv) Acts like the tearing of the Mangal Sutra, locking out the husband when he is due to arrive from the office, rubbing of chilly powder on the tongue of an infant child, beating a child mercilessly while in high fever and switching on the light at night and sitting by the bedside of the husband merely to nag him are acts which tend to destroy the legitimate ends and objects of matrimony. The conduct of wile amounts to cruelty within the meaning of s.

10(1) (b) of the Act. The threat that she would put an end to her own life or that she will set the house on fire, the threat that she will make the husband lose his job and have the matter published in newspapers and the persistent abuses and insults hurled at the husband and his parents are all of so grave an order as to ‘imperil the appellant’s sense of personal safety, mental happiness, job satisfaction and reputation. [985 B-E] (v) In any proceeding under the Act, whether defended or not, the relief prayed for can be decreed only if the petitioner has not condoned the cruelty. The wife did not take up the plea of condonation in her written statement.

The Trial Court did not frame any issue of condonation. The District Court 969 did not address itself on the question of condonation since it did not find the conduct of the wife to be cruel. The High Court held that the conduct of the wife was not cruel and in any case it was condoned. S. 23 (1) (b) casts obligation on the court to consider the question of condonation. Condonation means forgiveness of the matrimonial offence and restoration of spouses to the same position as he or she occupied before the matrimonial offence was committed. Cruelty generally does not consist of a single isolated act. It consists in most cases of a series of acts spread over a period of time. Law does not require that at the first appearance of a cruel act, the other spouse must leave the matrimonial home lest the continued coharbitation be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the benign purpose of marriage laws. The evidence on condonation consists in this case in the fact that spouse led a normal sexual life despite the various acts of cruelty. This is not a case where the spouse after separation indulge in stray acts of sexual intercourse in which case the necessary intent to forgive and restore may be said to be lacking. Such stray acts may bear more than one explanation but if during cohabitation the spouses uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterised normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status way reasonably be inferred. There is then no scope for imagining that the conception of the child could be the result of a single act of sexual intercourse and that such an act could be a stark animal act unaccompanied by the nobler graces of marital life. Sex plays an important role in married life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment. Therefore, evidence showing that the spouse led a normal sexual life even after serious acts of cruelty by one spouse is proof that the other spouse condoned that cruelty. Intercourse in circumstances as obtained here would raise a strong inference of condonation. That inference stands uncontradicted. the husband not having explained the circumstances In which hecame to lead and live a normal sexual life, [985 G-987 B] (vi) But condonation of a matrimonial offence is not to be likened to a Presidential pardon which once granted wipes out the guilt beyond the possibility of revival.

Condonation is always subject to the implied condition that the offending spouse will not commit a further matrimonial offence either of the same variety as the one condoned or of any other variety. No matrimonial offence is erased by condonation. It is obscured but not obliterated. Condoned cruelty can, therefore, be revived. For revival of condonation it is not necessary that the conduct should be enough by itself to found a degree for judicial separation.

The wife in not allowing the husband access to the children cannot be said to have revived the earlier cruelty since the children were of tender age and the only person who could escort them had left or had to leave the matrimonial home for good. The subsequent conduct of the wife has to be assessed in the context in which the husband behaved. The husband persistently accused the wife of insanity and refused to maintain her. In that context, the allegations made by the wife in her letter to the Government cannot revive the original cause of action, though it is true that more serious the original offence the less grave need be the subsequent act to constitute revival.

[987 C; 988 C-D, G-H; 991 E-H] Held, dismissing the appeal, That the wife was guilty of cruelty but the husband condoned it and the subsequent conduct of the wife was not such as to amount to revival of the original cause of action. [992 B-C]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2224 of 1970.

From the judgment and order dated the 19th February, 1969 of the Bombay High Court in Second Appeal No. 480 of 1968.

V. M. Tarkunde, S. Bhandare, P. H. Parekh and Manju Jaitely, for the appellant.

V. S. Desai, S. B. Wad and Jayashree Wad, for the respondents.

970 The Judgment of the Court was delivered by CHANDRACHUD, J.-This is a matrimonial dispute arising out of a petition filed by the appellant for annulment of his marriage with the respondent or alternatively for divorce or for judicial separation. The annulment was sought on the- ground of fraud, divorce on the ground of unsoundness of mind and judicial separation on the ground of cruelty.

The spouses possess high academic qualifications and each one claims a measure. of social respectability and cultural sophistry. The evidence shows some traces of these. But of this there need be no doubt,: the voluminous record which they have collectively built up in the case contains a fair reflection of their rancour and acrimony, The appellant, Dr. Narayan Ganesh Dastane, passed his M.Sc.

in Agriculture from the Poona University. He was sent by the Government of India to Australia in the Colombo Plan Scheme. He obtained his Doctorate in Irrigation Research from an Australian University and returned to India in April, 1955. He worked for about 3 years as an Agricultural Research Officer and in October, 1958 he left Poona to take charge of a new post as an Assistant Professor of Agronomy in the ‘Post-Graduate School, Pusa Institute, Delhi. At present be is said to be working on a foreign assignment.

His father was a solicitor-cum lawyer practising in Poona.

The respondent, Sucheta, comes from Nagpur but she spent her formative years mostly in Delhi. Her father was transferred to Delhi in 1949 as an Under Secretary in the Commerce Ministry of the Government of India and she came to Delhi along with the rest of the family. She passed her B.Sc.

from the Delhi University in 1954 and spent a year in Japan where her father was attached to the Indian Embassy. After the rift in her marital relations, she obtained a Master’s Degree in Social Work. She has done field work in Marriage Conciliation and Juvenile Delinquency. She is at present working in the Commerce and Industry Ministry, Delhi.

In April, 1956 her parents arranged her marriage with the appellant. But before finalising the proposal, her father- B. R. Abhyankarwrote two letters to the appellant’s father saying in the first of these that the respondent “had a little misfortune before going to Japan in that she had a bad attack of sunstroke which affected her mental condition for sometime”. In the second letter which followed at an interval of two days, “cerebral malaria” was mentioned as an additional reason of the mental affectation. The letters stated that after a course of treatment at the Yeravada Mental Hospital, she was cured : “you find her as she is today”. The respondent’s father asked her appellant’s father to discuss the matter, if necessary, with the doctors of the Mental Hospital or with one Dr. P. L. Deshmukh, a relative of the respondent’s mother. The letter was written avowdely’in order that the appellant and his people “should not be in the dark about an important episode” in the life of the respondent, which “fortunately, had ended happily”.

Dr. Deshmukh confirmed what was stated in the letters and being content with his assurance, the appellant and his father made no enqui- 971 ries with the Yeravada Mental Hospital. The marriage was performed at Poona on May 13, 1956. The appellant was then 27 and the respondent 21 years of age.

They lived at Arbhavi in District Belgaum from June to October, 1956. On November 1, 1956 the appellant was transferred to Poona where the two lived together till 1958.

During this period a girl named Shubha was born to them on March 11, 1957. The respondent delivered in Delhi where ,her parents lived and returned to Poona in June, 1957 after an absence, normal on such occasions, of about 5 months. In October, 1958 the appellant took a job in the Pusa Institute of Delhi, On March 21, 1959 the second daughter, Vibha, was born. The respondent delivered at Poona where the appellant’s parents lived and returned to Delhi in August, 1959. Her parents were living at this time in Djakarta, Indonesia.

In January, 1961, the respondent went to Poona to attend the marriage of the appellant’s brother, a doctor-by profession, who has been given an adoption in the Lohokare family. A fortnight after the marriage, on February 27, 1961 the appellant who had also gone to Poona for the marriage got the respondent examined by Dr. seth, a Psychiatrist in charge of the Yeravada Mental Hospital. Dr. Seth probably wanted adequate data to make his diagnosis and suggested that he would like to have a few sittings exclusively with the respondent. For reasons good or bad, the respondent was averse to submit herself to any such scrutiny. Either she herself or both she and the appellant decided that she should stay for some time with a relative of bers, Mrs-.

Gokhale. On the evening of the 27th, she packed her tit- bits and the appellant reached her to Mrs. Gokhale’s house.

There was no consultation thereafter with Dr. Seth.

According to the appellant, she had promised to see Dr, Seth but she denies that she made any such promise. She believed that the appellant was building up a case that she was of unsound mind and she was being lured to walk into that trap.

February 1961 was the last that they lived together-. But on the day of parting she was three months in the family way. The third child, again a girl, named Pratibha was born on August 19, 1961 when her parents were in the midst of a marital crisis.

Things had by then come to an impossible pass. And close relatives instead of offering wise counsel were fanning the fire of discord that was devouring the marriage. A gentleman called Gadre whose letter-head shows an “M.A.

(Phil.) M.A. (Eco.) LL.B.”, is a maternal uncle of the respondent. On-March 2, 1961 he had written to tile appellant’s father a pseudonymous letter now proved to be his, full of malice and sadism. He wrote :

“I on my part consider myself to be the father of ‘Brahmadev …………. This is only the beginning. From the spark of your foolish and half-baked egoism, a big conflagration of family quarrels will break out and all will perish therein This image of the mental agony suffered by all your kith and’ kin gives me extreme happiness…… You worthless person, who cherishes a desire to spit on my face, now behold that all the world is going to spit on your old cheeks.

972 So why should I loose the opportunity of giving you a few severe slaps on your cheeks and of fisting your ear. It is my earnest desire that the father-in-law should beat your son with foot-ware in a public place.” On March 11, 1961 the appellant returned to Delhi all alone.

Two days later the respondent followed him but she went straight to her parents’ house in )Delhi. On the 15th, the appellant wrote a letter to the police asking for protection as he feared danger to his life from the respondent’s parents and relatives. On the 19th, the respondent saw the appellant but that only gave to the parties one more chance to give vent to mutual dislike and distrust. After a brief meeting, she left the broken home for good. On the 20th, the appellant once again wrote to the police renewing his request for protection.

On March 23, 1961 the respondent wrote to the appellant com- plaining against his conduct and asking for money for the maintenance of herself and the daughters. On May 19, 1961 the respondent wrote a letter to the Secretary, Ministry of Food and Agriculture, saying that the appellant had deserted her, that he had treated her with extreme cruelty and asking that the Government should make separate provision for her maintenance. On March 25, her statement was recorded by an Assistant Superintendent of Police, in which she alleged desertion and ill-treatment by the appellant. Further statements were recorded by the police and the Food Ministry also followed up respondent’s letter of May 19 but ultimately nothing came out of these complaints and cross- complaints.

As stated earlier, the third daughter, Pratibha, was born on August 19, 1961. On November 3, 1961 the appellant wrote to respondent’s father complaining of respondent’s conduct and expressing regret that not even a proper invitation was issued to him when the naming ceremony of the child was performed. On December 15, 1961 the appellant wrote to respondent’s father stating that he had decided to go to the court for seeking separation from the respondent. The proceedings out of which this appeal arises were instituted on February 19, 1962.

The parties are Hindus but we do not propose, as is commonly done and as has been done in this case, to describe the respondent as a “Hindu wife in contrast to non-Hindu wives as if wotmen professing this or that particular religion are exclusively privileged in the matter of good sense, loyalty and conjugal kindness. Nor shall we refer to the appellant as a “Hindu husband” as if that species unfailingly projects the image of tyrant husbands. We propose to consider the evidence on its merits, remembering of course the peculiar habits, ideas, susceptibilities and expectations of persons belonging to the strata of society to which these two belong. All circumstances which constitute the ,occasion or setting for the conduct complained of have relevance but we think that no assumption can be made that respondent is the oppressed and appellant the oppressor. The evidence in any case ought to bear a secular examination.

The appellant asked for annulment of his marriage by a decree of nullity under section 12(1) (c) of ‘The Hindu Marirage Act’, 25 of 973 1955, (“The Act”) on the ground that his consent to the marriage was obtained by fraud. Alternatively, he asked for divorce under section 13 (1) (iii) on the ground that the respondent was incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition. Alternatively, the appellant asked for Judicial separation under section 10(1) (b) on the ground that the respondent had treated him with such cruelty as to cause a reasonable apprehension in his mind that. it would be harmful or injurious for him to live with her.

The appellant alleged that prior to the marriage, the respondent was treated in the Yeravada Menfal Hospital for Schizophrenia but her father fraudulently represented that she was treated for sun-stroke and cerebral malaria. The trial court rejected this contention. It also rejected the contention that the respondent was of unsound mind.It,however, held that the respondent was guilty of cruelty and on that ground it passed a decree for judicial separation.

Both sides went in appeal to the District Court which dismissed the appellant’s appeal and allowed the respondent’s, with the result that the petition filed by the appellant stood wholly dismissed.

The appellant then filed Second Appeal No. 480 of 1968 in the Bombay High Court. A learned single Judge of that court dismissed that appeal by a judgment dated February 24, 1969.

This Court granted to the appellant special leave to appeal, limited to the question of judicial separation on the ground of cruelty.

We are thus not concerned with the question whether the appellant’s consent to the marriage was obtainede by fraud or whether the respondent bad been of unsound mind for the requisite period preceding the presentation of the petition.

The decision-of the-High Court on those questions must be treated as final and can not be reopened.

In this appeal by special leave, against the judgment rendered by the High Court in Second Appeal, we would not have normally permitted the parties to take us through the evidence in the case. Sitting in Second Appeal, it was not open to the High Court itself to reappreciate evidence.

Section 100 of the Code of Civil Procedure restricts the jurisdiction of the High Court in Second appeal to questions of law or to substantial errors or defects in the procedure which may possibly have produced error or defect in the decision of the case upon the merits. But the High Court came to the conclusion that both the courts below had “failed to apply the correct principles of law in determining the issue of cruelty”. Accordingly, the High Court proceeded to consider the evidence for itself and came to the conclusion independently that the appellant had failed to establish that the respondent had treat him with cruelty. A careful consideration of the evidence by the High Court ought to be enough assurance that the finding of fact is correct and it is not customary for this Court in appeals under Article 136 of the Constitution to go into minute details of evidence and weigh them one against the other, as if for the first time. Disconcertingly, this normal process is beset with practical difficulties.

974 In judging of the conduct of the respondent, the High Court assumed that the words of abuse or insult used by the respondent “could not have been addressed in vacuum.

Every abuse, insult, remark or retort must have been probably in exchange for remarks and rebukes from the husband…………. a court is bound to consider the probabilities and infer, as I have done, that they must have been in the context of the abuses, insults, rebukes and remarks made by the husband and without evidence on the record with respect to the conduct of the husband in response to which the wife behaved in a particular way on each occasion, it is difficult, if not impos- sible to draw inferences against the wife.” We find this approach difficult to accept. Under section 103 of the Code of Civil Procedure, the High Court may, if the evidence on the record is sufficient, determine any issue of ‘fact necessary for the disposal of the appeal which has not been determined by the lower appellate court or which has been wrongly determined by such court by reason of any illegality, omission, error or defect such as is referred to in sub-section (1) of section 100. But, if the High Court takes upon itself the duty to determine an issue of fact its power to appreciate evidence would be subject to the same restraining conditions to which the power of any court of facts is ordinarily subject. The limits of that power are not wider for the reason that the evidence is being appreciated by the High Court and not by the District Court. While appreciating ,evidence, inferences may and have to be drawn but courts of facts have to remind themselves of the line that divides an inference from guess- work. If it is proved, as the High Court thought it was, that the respondent had uttered words of abuse and insult, the High Court was entitled to infer that she had acted in retaliation, provided of course there was evidence, direct or circumstantial, to justify such an inference. But the High Court itself felt that there was no evidence on the record with regard to the conduct of the husband in response to which the wife could be said to have behaved in the particular manner. The High Court reacted to this situation by saying that since there was no evidence regarding the conduct of the husband, “it is difficult, if not impossible, to draw inferences against the wife”. If there was no evidence that the husband had provoked the wife’s utterances, no inference could be drawn against the husband.

There was no question of drawing any inferences against the wife because, according to the High Court, it was established on the evidence that she had uttered the particular words of abuse and insult.

The approach of the High Court is thus erroneous and its findings are vitiated. We would have normally remanded the matter to the High Court for a fresh consideration of the evidence but this proceeding has been pending for 13 years and we thought that rather than delay the decision any further, we should undertake for ourselves the task which the High Court thought it should undertake under section 103 of the Code. That makes it necessary to consider the evidence in the case.

975 But before doing so, it is necessary to clear the ground of certain misconceptions, especially as they would appear to have influenced the judgment of the High Court. First, as to the nature of burden of Proof which rests on a petitioner in a matrimonial petition under the Act. Doubtless, the burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it., This principle accords with commonsense as it is so much earlier to prove a positive than a negative. The petitioner must therefore prove that the respondent has treated him with cruelty within the meaning of section 10 (1) (b) of the Act.

But does the law require, as the High Court has held, that the petitioner must prove his case beyond a reasonable doubt ? In other words, though the burden lies on the petitioner to establish the charge of cruelty, what is the standard of proof to be applied in order Lo judge whether the burden has been discharged ? The normal rule which governs civil proceedings is that a fact can be said to be estabilshed if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, section 3, a fact issaid to be proved when the court either believes it to exist or considersits existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where. the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note “the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue”(1) ; or as said by Lord Denning, “the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear” (2).

But whether the issue is one of cruelty or of a loan on a promote, the test to apply is whether on a preponderance of robabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged.

Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so’ nicely balanced that a reasonable, (1) Per Dixon,J.in Wright v.Wright (1948)77 C.L.R.191at p.210.

(2) Blyth v. Blyth, [1966] 1 A.E.R. 524 at 536.

976 not a vascillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature.

Neither section 10 of the Act which enumerates the grounds on which a petition for judicial separation may be presented nor section 23 which governs the jurisdiction of the court to pass a decree in any proceeding under the Act requires that the petitioner must prove his case beyond a reasonable doubt. Section 23 confers on the court the power to pass a decree if it is “satisfied” on matters mentioned in clauses (a) to (e) of the section. Considering that proceedings under the Act are essentially of a civil nature, the word “satisfied” must mean “satisfied on a preponderance of probabilities” and not “satisfied beyond a reasonable doubt”. Section 23 does not alter the standard of proof in civil cases.

The misconception regarding the standard of proof in matrimonial cases arises perhaps from a loose description of the respondent’s conduct in such cases as constituting a “matrimonial offence”. Acts of a spouse which are calculated to impair the integrity of a marital union have a social significance. To mar’ or not to marry and if so whom, may well be a private affair but the freedom to break a matrimonial tie is not. The society has a stake in the institution of marriage and therefore the erring spouse is treated not as a mere defaulter but as an offender. ]But this social philosophy, though it may have a bearing on the need to have the clearest proof of an allegation before it is accepted as a ground for the dissolution of a marriage, has no bearing on the standard of proof in matrimonial cases.

In England, a view was at one time taken that the petitioner in a matrimonial petition must establish his case beyond a reasonable doubt but in Blyth v. Blyth(P), the House of Lords held by a majority that so far as the grounds of divorce or the bars to divorce like connivance or condonation are concerned, “the case; like any civil case, may be proved by a preponderance of probability”. The High Court of Austraila in Wright v. Wright (2) , has also taken the view that “the civil and not the criminal standard of persuasion applies to matrimonial causes, including issues of adultery”. The High Court was therefore in error in holding that the petitioner must establish the charge of cruelty “beyond reasonable doubt”. The High Court adds that “This must be in accordance with the law of evidence”, but we are not clear as to the implications of this observation.

Then, as regards the meaning of “Cruelty”. The High Court on this question begins with the decision in Moonshee Bazloor Rubeem v. Shamsoonnissa Begum(3), where the Privy Council observed:

“The Mohomedan law, on a question of what is legal cruelty between Man and Wife, would probably not differ materially from our own of which one of the most recent exposition is the following :- ‘There must be actual violence (1) [1966] A.E.R. 524 at 536.

(2) [1948] HCA 33; 1948, 77 C.L.R. 191 at 210.

(3) 11 Moore’s Indian Appeals 551.

977 of such a character as to endanger personal health or safety; or there must be a reasonable apprehension of it’.” The High Court then refers to the decisions of some of the Indian Courts to illustrate “The march of the Indian Courts with the Englishs Courts” and cites the following passage from D. Tolstoy’s “The Law and Practice of Divorce and Matrimonial Causes” (Sixth Ed., p. 61):

“Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger.” The High Court concludes that “Having regard to these principles and the entire evidence in the case, in my judgment, I find that none of the acts complained of against the respondent can he considered to be so sufficiently grave and weighty as to be described as cruel according to the matrimonial law.” An awareness of foreign decisions could be a useful asset in interpreting our own laws. But it has to be remembered that we have to interpret in this case a specific provision of a specific enactment, namely, section 10(1) (b) of the Act.

What constitutes cruelty must depend upon the terms of this statute which provides :

“10(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation on the ground that the other party- (b) has treated the petitioner with such cruelty as to cause areasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party;” The inquiry therefore has to be whether the conduct charged a,.- cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent.

It is not necessary, as under the English law, that the cruelty must be of such a character as to cause “danger” to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly, danger to life, limb or health or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to live with the other.

The risk of relying on English decisions in this field may be shown by the learned Judge’s reference to a passage from Tolstoy (p. 63) in which the learned author, citing Horton v. Horton(1), says :

“Spouses take each other for better or worse, and it is not enough to show that they find life together impossible, even if there results injury to health.” (1) [1940] P. 187.

978 If the danger to health arises merely from the fact that the spouses find it impossible to live together as where one of the parties shows an attitude of indifference to the other, the charge of cruelty may perhaps fail. But under section 10(1) (b), harm or injury to health, reputation, the working career or the like, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. Plainly, what we must determine is not whether the petitioner has proved the charge of cruelty having regard to the principles of English law, but whether the petitioner proves that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent.

One other matter which needs to be clarified is that though under section 10(1) (b), the apprehension of the petitioner that it will be harmful or injurious to live with the other party has to be reasonable, it is wrong, except in the context of such apprehension, to import the concept of a reasonable man as known to the law of negligence for judging of matrimonial relations. Spouses are undoubtedly supposed and expected to conduct their joint venture as best as they might but it is no function of a court inquiring into a charge of cruelty to philosophise on the modalities of married life. Some one may want to keep late hours to finish the day’s work and some one may want to get up early for a morning round of golf. The court cannot apply to the habits or hobbies of these the test whether a reasonable man situated similarly will behave in a similar fashion. “The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person com- plaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse,. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circums- tances may be extreme cruelty under another set of circumstances.”(1) The Court has to deal, not with an ideal husband and ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to drown their differences, their ideal attitudes may help them over- look or gloss over mutual faults and failures. As said by Lord Reid in his speech in Gollins v. Gollins (2).

“In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make bout them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people.” We must therefore try and understand this Dr. Dastane and his wife Sucheta as nature has made them and as they have shaped their lives.

(1) American Jurisprudence, 2nd Ed., Vol. 24, p. 206.

(2) [1963] UKHL 5; [1963] 2 A.E.R. 966,970.

979 The only rider is the interdict of section 23 ( 1 ) (a) of the Act that the relief prayed for can be decreed only if the court is satisfied that the petitioner is not in any way taking advantage of his own wrong. Not otherwise.

We do not propose to spend time on the trifles of their married life. Numerous incidents have been cited by the appellant as constituting cruelty but the simple trivialities which can truly be described as the reasonable, wear and tear of married life have to be ignored. It is in the context of such trivialities that one says that spouses take each other for better or worse. In many marriages each party can, if it so wills, discover many a cause for complaint but such grievances arise mostly from temperamental disharmony. Such disharmony or incompatibility is not cruelty and will not furnish a cause for the dissolution of marriage. We will therefore have regard only to grave and weighty incidents and consider these to find what place they occupy on the marriage canvas.

The spouses parted company on February 27, 1961, the appellant filed his petition on February 19, 1962 and the trial began in September, 1964. The 3-1/2 years’ separation must naturally have created many more misunderstandings and further embitterment. In such an atmosphere, truth is a common casualty and therefore we consider it safer not to accept the bare word of the appellant either as to what the respondent said or did or as to the genesis of some of the more serious incidents. The evidence of the respondent too would be open to the same criticism but the explanation of her words and deeds, particularly of what she put in cold print, must come from her oral word and that has to be examined with care.

The married life of these spouses is well-documented, almost incredibly documented. They have reduced to writing what crossed their minds and the letters which they have written to each other bear evidence of the pass to which the marriage had come. Some of these were habitually written as the first thing in the morning like a morning cup (if tea while some were written in the silence of mid-night soon after the echo of harsh words had died down. To think that this young couple could indulge in such an orgy of furious letter-writing is to have to deal with a problem out of the ordinary for it is seldom that a husband and wife, while sharing a common home, adopt the written word as a means of expression or communication.

The bulk of the correspondence is by the wife who seems to have a flair for letter-writing. She writes in some style and as true as “The style is the man”, her letters furnish a clue to her personality. They are a queer mixture of confessions and opprobrious accusations. It is strange that almost every one connected with this couple his a penchant for writing. The wife, apart from her voluminous letters, has written an autobiographical account of her unfortunate experiences in the Yeravada Hospital, calling it “Mee Antaralat Tarangat Asta” (“while I was floating in space”).

The husband’s father idealised the Shiva-Parvati relationship in a book called : “Gauriharachai Goad Kahani” (“The sweet story of Gaurihar”). Quite a few of the wifes relatives including a. younger sister of hers and of course her maternal 980 uncle have set their pen to paper touching some aspect or the other of her married life. Perhaps, it was unfortunate that the promised millennium that did not come began with a letter. That was the letter of April 25, 1956 which the wife’s lather wrote to the husband’s father while the marriage negotiations were in progress. The marriage took place on May 13, 1956.

Nothing deserving any serious notice happened till August, 1959 except that the letters Exs. 556, 238, 243 and 244 show that quite frequently the respondent used to get into fits of temper and say things for which She would express regret later. In the letter Ex. 556 dated November 23, 1956 she admits to having behaved “very badly”; in Ek. 238 dated March 26, 1959 she admits that she was behaving like an “evil star” and had harassed the appellant; in Ex. 243 dated May 5, 1959 she says that she was aware of her “lack of sense” and asks for forgiveness for having insulted the appellant, his parents, his sister and her husband; and in Ex. 244 dated May 22, 1959 she entreats the appellant that he should not feel guilty for the insults hurled by her at his parents.

The period from August 1959 to March 1960 was quite critical and the correspondence covering that period shows that an innate lack of self-control had driven the respondent to inexorable conduct. By the letter. Ex. 256 dated February 16, 1960 the appellant complained to the respondent’s father who was then in Indonesia that the respondent kept on abusing him, his parent and sister and that he was extremely unhappy. The appellant says in the letter that differences between a husband and wife were understandable but that it was impossible to tolerate the respondent constantly accusing him and his relatives of wickedness. The appellant complains that the respondent used to say that the book written by his father should be burnt to ashes, that the appellant should apply the ashes to his forehead, that the whole Dastane family was utterly mean and that she wished that his family may be utterly ruined. The appellant was gravely hurt at the respondent’s allegation that his father’s ‘Sanad’ bad been once forfeited. The appellant tells the respondent’s father that if he so desired he could ask her whether anything stated in the letter was untrue and that he had conveyed to her what be was stating in the letter. It may be stated that the respondent admits that the appellant had shown her this letter before it was posted to her father. On March 21. 1960 the respondent wrote a letter (Ex. 519) to the appellant’s parents admitting the truth of the allegations made by the appellant in Ex. 256.

On June 23, 1960 the respondent made a noting in her own hand stating that she had accused the appellant of being a person with a beggarly luck, that she had said that the food eaten at his house, instead of being digested would cause worms in the stomach and that she had given a threat :

“murder shall be avenged with murder”.

During June 1, 1960 to December 15, 1960 the marital relations were subjected to a stress and strain which ultimately wrecked the marriage. In about September, 1960 the appellants father probably offered to mediate and asked the appellant and the respondent to submit to him their respective complaints in writing. The appellant’s bill of complaints is at Ex. 426 dated October 23, 1960. The letter much 981 too long to be reproduced, contains a sorry tale. The gist of the more important of the appellant’s grievances in regard to the period prior to June, 1960 is this : (1)’ The respondent used to describe the appellant’s mother as a boorish woman; (2) On the day of ‘Paksha’ (the day oil which oblations are offered to ancestors) she used to abuse the ancestors of the appellant; (3) She tore off the ‘Mangal- Sutra’; (4) She beat the daughter Shubha while she was running a high temperature of 104′; (5) One night she started behaving as if she was ‘possessed’. She tore off the Mangal-Sutra once again and said that she will not put it on again; and (6) She used to switch on the light at midnight and sit by the husband’s bedside nagging him through the night, as a result he literally prostrated himself before her on several occasions.

The gist of the incidents from May to October, 1960 which the appellant describes as ‘a period of utmost misery’ is this. (1) The respondent would indulge in every sort of harassment and would blurt out anything that came to her mind; (2) One day while a student of the appellant called Godse was sitting in the outer room she shouted : “You are not a man at all”; (3) In the heat of anger she used to say that she would pour kerosene on her body and would set fire to herself and the house; (4) She used to lock out the appellant when he was due to return from the office. On four or five occasions he had to go back to the office without taking any food; (5) For the sheer sake of harassing him she would hide his shoes, watch, keys and other things.

The letter Ex. 426 concludes by saying : , “She is a hard headed, arrogant, merciless, thoughtless, unbalanced girl devoid of sense of duty. Her ideas about a husband are : He is a dog tied at doorstep who is supposed to come and go at her beck and call whenever ordered. She behaves with the relatives of her husband as if they were her servants.

When I see her besides herself with fury, I feel afraid that she may kill me at any moment. I have become weary of her nature of beating the daughters, scolding and managing me every night uttering abuses and insults.” Most of these incidents are otherwise, supported, some by the admissions of the respondent herself, and for their proof we do not have to accept the bare word of the appellant.

On July 18, 1960 the respondent wrote a letter (Ex. 274) to the appellant admitting that within the bearing of a visitor she had beaten the daughter Shubha severely. When the appellant protested she retorted that if it was a matter of his prestige, be should not have procreated the children.

She has also admitted in this letter that in relation to her daughters she bad said that there will be world deluge be- cause of the birth of those “ghosts”. On or about July 20. 1960 she wrote another letter (Ex. 275) to the appellant admitting that she had described him as “a monster in a human body”, that she had and that be’should not have procreated children. that he should “Pickle them and preserve them in a jar” and that she had given a threat that she would see to it that he loses his job and then she would publish the news in the Poona newspapers. On December 15, 1960 the appellant wrote a 982 letter (Ex. 285) to the respondent’s father complaining of the strange and cruel behaviour not only of the respondent but of her mother. He says that the respondent’s mother used to threaten him that since she was the wife of an Under Secretary she knew many important persons and could get him dismissed from service, that she used to pry into his correspondence in his absence and that she even went to the length of saying that the respondent ought to care more for her parents because she could easily get another husband but not another pair of parents.

The respondent then went to Poona for the appellant’s brother’s marriage, where she was examined by Dr. Seth of the Yeravada Hospital and the spouses parted company on February 27, 1961.

The correspondence subsequent to February 27, 1961 shall have to be considered later in a different,, though a highly important, context. Some of those letters clearly bear the stamp of being written under legal advice. The parties had fallen out for good and the domestic war having ended inconclusively they were evidently preparing ground for a legal battle.

In regard to the conduct of the respondent as reflected in her admissions, two contentions raised on her behalf must be considered. It is urged in the first place that the various letters containing admissions were written by her under coercion. There is no substance in this contention. In her written statement, the respondent alleged that the appellant’s parents had coerced her into writing the letters. At the trial she shifted her ground and said that the coercion proceeded from the appellant himself. That apart, at a time when the marriage had gone asunder and the respondent sent to the appellant formal letters resembling a lawyer’s notice, some of them by registered post, no alle- gation was made that the appellant or his parents had obtained written admissions from her. Attention may be drawn in this behalf to the letters Exs. 299 and 314 dated March 23 and May 6, 1961 or to the elaborate complaint Ex. 318 dated May 19, 1961 which she made to the Secretary to Government of India, Ministry of Food and Agriculture.

Prior to that on September 23, 1960 she had drawn up a list of her complaints (Ex. 424) which begins by saying : “He has oppressed me in numerous ways like the following.” But she does not speak therein of any admission or writing having been obtained from her. Further, letters like Exs. 271 and 272 dated respectively June 23 and July 10, 1960 which besides containing admissions on her part also contain allegations against the appellant could certainly not have been obtained by coercion. Finally, considering that the respondent was always surrounded by a group of relatives who had assumed the role of marriage-counsellors, it is unlikely that any attempt to coerce her into making admissions would have been allowed to escape unrecorded. After all, the group here consists of greedy letter-writers.

The second contention regarding the admissions of the respondent is founded on the provisions of section 23(1)(a) of the Act under which the court cannot decree relief unless it is satisfied that “the petitioner is not in any way taking advantage of his own wrong’. The fulfilment of the conditions mentioned in, section 23(1) is so imperative 983 that the legislature has taken the care to provide that “then, and in such a case, but not otherwise, the court shall decree such relief accordingly”. It is urged that the appellant is a bigoted and egocentric person who demanded of his wife an impossibly rigid standard of behaviour and the wife’s conduct must be excused as being in selfdefence. In other words, the husband is said to have provoked the wife to say and act the way she did and he cannot be permitted to take advantage of his own wrong. The appellant, it is true, seems a stickler for domestic discipline and these so-called perfectionists can be quite difficult to live with. On September 22, 1957 the respondent made a memorandum (Ex. 379) of the instructions given by the appellant, which makes interesting reading:

“Special instructions given by my husband.

(1) On rising up in the morning, to look in the minor.

(2) Not to fill milk vessel or tea cup to the brim.

(3) Not to serve meals in brass plates cups and vessels.

(4) To preserve carefully the letters received and if addresses of anybody are given therein to note down the same in the note book of addresses.

(5)After serving the first course during meals, not to repeatedly ask ‘what do you want?’ but to inform at the beginning of the meals how much and which are the courses.

(6)As far as possible not to dip the fingers in any utensils.

(7) Not to do any work with one hand.

(8) To keep Chi. Shuba six feet away from the primus stove and Shegari.

(9) To regularly apply to her ‘Kajal’ and give her tomato juice, Dodascloin etc. To make her do physical exercise, to take her for a walk and not to lose temper with her for a year.

(10) To give him his musts and the things he requires when he starts to go outside.

(11) Not to talk much.

(12) Not to finish work somehow or the other; for example to write letters in good hand writing, to take a good paper, to write straight and legibly in a line.

(13) Not to make exaggerations in letters.

(14) To show imagination in every work. Not to note down the milk purchased on the calendar.” 984 Now, this was utterly tactless but one cannot say that it called for any attack in self-defence. The appellant was then 28 and the respondent 22 years of age. In that early- morning flush of the marriage’ young men and women do entertain lavish expectations of each other do not and as years roll by they see the folly of. their ways. But we think that the wife was really offended by the instructions given by the appellant. The plea of self-defence seems a clear after-thought which took birth when there was a fundamental failure of faith and understanding.

Reliance was then placed on certain letters to show that the husband wanted to assert his will at any cost, leaving the wife no option but to retaliate. We see no substance in this grievance either. The, plea in the written statement is one of the denial of conduct alleged and not of provocation. Secondly, there are letters on the record by which the wife and her relatives had from time to time complimented the husband and his parents for their warmth, patience and understanding.

Counsel for the respondent laid great emphasis on the letter, Ex. 244 dated May 22, 1959 written by her to the appellant in which she refers to some “unutterable question” put by him to her. It is urged that the appellant was pestering her with a demand for divorce and the “unutterable question” was the one by which he asked for divorce. No such inference can in our opinion be raised. The respondent has not produced the letter to which Ex. 244 is reply; in the written statement there is hardly a suggestion that the appellant was asking her for a divorce; and the appellant was not asked in his evidence any explanation in regard to the “unutterable question”.

These defences to the charge of cruelty must accordingly be rejected. However, learned counsel for the respondent is right in stressing the warning given by Denning L.J., in Kaslefsky v. Kaslefsky that : “If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament. This is an easy path to tread especially in undefended cases. The temp- tation must be resisted test we slip into a state of affairs where the institution of marriage itself is imperilled.” But we think that t1o hold in this case that the wife’s conduct does not amount to cruelty is to close for ever the door of cruelty so as to totally prevent any access thereto. This is not a case of mere austerity of temper, petulance of manners, rudeness of language or a want of civil attention to the needs of the husband and the household. Passion and petulance have perhaps to be suffered in silence as the price of what turns out to be an injudicious selection of a partner. But the respondent is the mercy of her inflexible temper. She delights in causing misery to her husband and his relation-, and she willingly suffers the calculated insults which her relatives hurled at him and his parents :

the false accusation that, “the pleader’s Sanad of that old bag of your father was forfeited”; “I want to see the ruination of the whole Dastane dynasty”, “burn (1)[1950] 2 A.E.R. 398,403.

985 the book written by your father and apply the ashes to your forehead”; “you are not a man” conveying that the children were not his; “you are a monster in a human body. “I will make you lose your job and publish it in the Poona newspapers”-these and similar outbursts are not the ordinary wear and tear of married life but they became, by their regularity a menace to the peace and well-being of the household. Acts like the tearing of the Mangal-Sutra, locking out the husband when he is due to return from the office, rubbing chillie powder on the tongue of an infant child, beating a child mercilessly while in high fever and switching on the light at night and sitting by the bedside of the husband merely to nag him are acts which tend to destroy the legitimate ends and objects of matrimony.

Assuming that there was some justification for occasional sallies or show of temper, the pattern of behaviour which the respondent generally adopted was grossly excessive.

The conduct of the respondent clearly amounts to cruelty within the meaning of section 10(1) (b) of the Act. Under that provision, the relevant consideration is to see whether the conduct is such as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for him to live with the respondent. The threat that she will put an end of her own life or that she will set the house on fire, the threat that she will make him lose his job and have the matter published in newspapers and the, persistent abuses and insults hurled at the appellant and his parents are all of so grave an order as to imperil the appellant’s sense of personal safety. mental, happiness, job satisfaction and reputation. Her once-too-frequent.

apologies do not reflect genuine contrition but were merely impromptu device to tide over a crisis temporarily.

The next question for consideration is whether the appellant had at any time condoned the respondent’s cruelty. Under section 23(1) (b) of the Act, in any proceeding under the Act whether defended or not, the relief prayed for can be decreed only and only if “where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty”.

The respondent did not take up the plea in her written statement that the appellant bad condoned her cruelty.

Probably influenced by that omission, the trial court did not frame any issue on condonation. While granting a decree of judicial separation on the ground of cruelty, the learned Joint Civil Judge, Junior Division, Poona, did not address himself to the question of condonation. In appeal, the learned Extra Assistant Judge, Poona, having found that the conduct of the respondent did not amount to cruelty, the question of condonation did not arise. The High Court in Second Appeal confirmed the finding of the 1st Appellate Court on the issue of cruelty and it further held that in any case the alleged cruelty was condoned by the appellant.

The condonation, according to the High Court, consisted in the circumstance that the spouses co-habited till February 27, 1961 and a child was born to them in August, 1961.

986 Before us, the question of condonation was argued by both the sides. It is urged on behalf of the appellant that there is no evidence of condonation while the argument of the respondent is that condonation is implicit in the act of co-habitation and is proved by the fact that on February 27, 1961 when the spouses parted, the respondent was about 3 months pregnant. Even though condonation was not pleaded as a defence by the respondent it is our duty, in view of the provisions of section 23(1) (b), to find whether the cruelty was condoned by the appellant. That section casts an obligation on the court to consider the question of condonation, an obligation which has to be discharged even in undefended cases. The relief prayed for can be decreed only if we are satisfied “but not otherwise”, that the petitioner has not in any manner condoned the cruelty. It is, of course, necessary that there should be evidence on the record of the case to show that the appellant had condoned the cruelty.

Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things : forgiveness and restoration(1). The evidence of condonation in this case is, in our opinion, as strong and satisfactory as the evidence of cruelty. But that evidence does not consist in the mere fact that the spouses continued to share a common home during or for some time after the spell of cruelty. Cruelty, generally, does not consist of a single, isolated act but consists in most cases of a series of acts spread over a period of time. Law does not require that at the first appearance of a cruel act, the other spouse must leave the matrimonial home lest the continued co-habitation be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the benign purpose of marriage laws.

The evidence of condonation consists here in the fact that the spouses led a normal sexual life despite the respondent’s Acts of cruelty. This is not a case where the spouses, after separation, indulged in a stray act of sexual intercourse, in which case the necessary intent to forgive and restore may be said to be lacking. Such stray acts may bear more than one explanation. But if during co-habitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. There is then no scope for imagining that the conception of the child could be the result of a single act of sexual intercourse and that such an act could be a stark animal act unaccompanied by the nobler graces of marital life. One might then as well magine that the sexual act was undertaken just in order to kill boredom or even in a spirit of revenge. Such speculation is impermissible. Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment. Therefore, evidence showing that the spouses led a normal sexual life even after a series of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty. Intercourse, of course, is not a necessary ingre-

1. The Law and Practice of Divorce and Matrimonial Causes by D. Tolstoy sixth Ed., p. 75.

987 dient of condonation because there may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into the position previously occupied in the home. But intercourse in circumstances as obtain here would raise a strong inference of condonation with its dual requirement, forgiveness and restoration. That inference stands uncontradicted, the appellant not having explained the circumstances in which he came to lead and live a normal sexual life with the respondent, even after a series of acts of cruelty on her part.

But condonation of a matrimonial offence is not to be likened to a full Presidential Pardon under Article 72 of the Constitution which, once granted, wipes out the guilt beyond the possibility of revival. Condonation is always subject to the implied condition that the offending spouse will not commit a fresh matrimonial offence, either of the same variety as the one condoned or of any other variety.

“No matrimonial offence is erased by condonation. It is obscured but not obliterated” (1). Since the condition of forgiveness is that no further matrimonial offence shall occur, it is not necessary that the fresh offence should be ejusdem generis with the original offence(2). Condoned cruelty can therefore be revived, say, by desertion or adultery.” Section 23 (1) (b) of the Act, it may be urged, speaks of condonation but not of its revival and therefore the English doctrine of revival should not be imported into matters arising under the Act. Apparently, this argument may seem to receive some support from the circumstances that under the English law, until the passing of the Divorce Reform Act, 1969 which while abolishing the traditional bars to relief introduces defences in the nature of bars, at least one matrimonial offence, namely, adultery could not be revived if once condoned (3). But a closer examination of such an argument would reveal its weakness. The doctrine of condonation was established by the old ecclesiastical courts in Great Britain and was adopted by the English Courts from the canon law. ‘Condonation’ is a technical word which means and implies a conditional waiver of the right of the injured spouse to take matrimonial proceedings. It is not ‘forgiveness’ as commonly understood (4). In England condoned adultery could not be received because of the express provision contained in section 3 of the Matrimonial Causes Act, 1963 which was later incorporated into section 42(3) of the Matrimonial Causes Act, 1965. In the absence of any such provision in the Act governing the charge of cruelty, the word ‘condonation’ must receive the meaning which it has borne for centuries in the world of law(“).

‘Condonation’ under section 23 (1) (b) therefore means conditional forgiveness, the implied condition being that no further matrimonial offence shall be committed.

(1) See Words and Phrases Legally Defined (Butterworths) 1969 Ed., Vol I, p. 305, (“Condonation”).

(2) See Halsbury’s Laws of England, 3rd Ed., Vol. 12, p.3061.

(3) See Rayden on Divorce, 11th Ed. (1971) pp. 11, 12, 23, 68, 2403.

(4) See Words and Phrases Legally Defined (Butterworths) 1969 Ed., p. 306 and the Cases cited therein.

(5) See Ferrers vs Ferrers [1791] EngR 1310; (1791) 1 Hag. Con 130 at pp. 130, 131.

988 It therefore becomes necessary to consider the appellant’s argument that even on the assumption that the appellant had condoned the cruelty, the respondent by her subsequent conduct forfeited the conditional forgiveness, thereby reviving the original cause of action for judicial separation on the ground of cruelty. It is alleged that the respondent treated the appellant with cruelty during their brief meeting on March 19, 1961, that she refused to allow to the appellant any access to the children, that on May 19, 1961 she wrote a letter (Ex. 318) to the Secretary to the Government of India, Ministry of Food and Agriculture, New Delhi, containing false and malicious accusations against the appellant and his parents and that she deserted the appellant and asked the Government to provide her with separate maintenance.

These facts, if proved, shall have to be approached and evaluated differently from the facts which were alleged to constitute cruelty prior to its condonation. The incidents on which the appellant relied to establish the charge of cruelty had to be grave and weighty. And we found them to be so. In regard to the respondent’s conduct subsequent to condonation, it is necessary to bear in mind that such conduct may not be enough by itself to found a decree for judicial separation and yet it may be enough to revive the condoned offence. For example, gross familiarities short of adultery(1) or desertion for less than the statutory period (2) may be enough to revive a condoned offence.

The incident of March 19, 1961 is too trifling to deserve any notice. That incident is described by the appellant himself in the complaint (Ex. 295) which he made to the police on March 20, 1961. He says therein that on the 19th morning, the respondent went to his house with some relatives, that those relatives-instigated her against him, that they entered his house though he asked them not to do so and that she took away certain household articles with her. As shown by her letter (Ex. 294) dated the 19th itself, the articles which she took away were some petty odds and ends like a do]], a slate, a baby hold-all, two pillows, a bundle of clothes and a baby-cart. The police complaint made by the appellant betrays some hypersensitivity.

As regards the children, it does seem that ever since February 27, the appellant was denied a chance to meet them.

His letters Exs. 307. 309 and 342 dated April 20, April 21 and November 23, 1961 respectively contain the grievance that the children were deliberately not allowed to see him., From his point of view the grievance could be real but then the children, Shubha and Vibha, were just 4 and 2 years of age in February, 1961 when their parents parted company.

Children of such tender age need a great amount of looking after and they could not have been sent to meet their father unescorted. The one person who could so escort them was the mother who bad left or bad to leave the matrimonial home for good. The appellant’s going to the house of the respondent’s parents where he was living was in the circumstances an impracticable proposition. Thus, the wall that divided the parents denied to the appellant access to his children.

(1) Halsbury’s Law-, of England, 3rd Ed., Vol. 12, p. 306, para 609.

(2) Beard vs. Beard [1945] 2 A.E.R. 306.

989 The allegations made by the respondent in her letter to the Government, Ex. 318 dated May 19, 1961 require a close consideration. It is a long letter, quite an epistle, in tune with the, respondent’s proclivity as a letter-writer.

By that letter, she asked the Government to provide separate maintenance for herself and the children. The allegations contained in the letter to which the appellant’s counsel has taken strong exception are these : (1) During the period that she lived with the appellant, she was subjected to great harassment as well as mental and physical torture; (2) The appellant had driven her out of the house on February 27, 1961; (3) The appellant had deserted her and had declar- ed that he will not have any connection with her and that he will not render any financial help for the maintenance of herself and the children. He also refused to give medical help to her in her advanced stage of pregnancy; (4) The appellant had denied to her even the barest necessities of life like food and clothing; (5) The parents of (he appellant were wicked persons and much of her suffering was due to the influence which they had on the appellant; (6) The appellant used to threaten her that he would divorce her, drive her out of the house and even do away with her life, (7) The plan to get her examined by Dr. Seth of the Peravada Mental Hospital was an insincere wicked and evil move engineered by the appellant, his brother and his father, (8) On her refusal to submit to the medical examination any further, she was driven out of the house with the children after being deprived of the valuables on her person and in her possession; and (9) The appellant had subjected her to such cruelty as to cause a reasonable apprehension in her mind that it would be harmful or injurious for her to live with him.

Viewed in isolation, these allegations present a different and a somewhat distorted picture. For their proper assessment and understanding, it is necessary to consider the context in which those allegations came to be made. We will, for that purpose, refer to a few letters.

On March 7, 1961 the respondent’s mother’s aunt, Mrs.

Gokhale wrote a letter (Ex. 644) to the respondent’s mother.

The letter has some bearing on the events which happened in the wake of the separation which took place on February 27, 1961. It shows that the grievance of the respondent and her relatives was not so much that a psychiatrist was consulted as that the consultation was arranged without any prior intimation to the respondent. The letter shows that the appellant’s brother Dr. Lohokare, and his brother-in-law Deolalkar, expressed regret that the respondent should have been got examined by a psychiatrist without previous intimation to any of her relatives. The letter speaks of a possible compromise between the husband and wife and it sets out the terms which the respondent’s relatives wanted to place before the appellant. The terms were that the respondent would stay at her parents’ place until her delivery but she would visit the appellant off and on; that the children would be free to visit the appellant; and that in case the appellant desired that the respondent should live with him, he should arrange that Dr. Lohokare’s mother should stay with them in Delhi for a few days. The last term of the proposed compromise Was that instead of digging the past the husband and wife should live in peace and happiness. The letter bears mostly the handwritting 990 of the respondent herself and the significance of that circumstance is that it was evidently written with her knowledge and consent. Two things are clear from the letter : one, that the respondent did not want to leave the appellant and two, that she did not either want to prevent the children from seeing the appellant. The letter was written by one close relative of the respondent to another in the ordinary course of events and was not, so to say,, prepared in order to create evidence or to supply a possible defence. It reflects a genuine attitude, not a makebelieve pose and the feelings expressed therein were shared by the, respondent whose handwriting the letter bears.

This letter must be read along with the letter Ex. 304 which the respondent sent to the appellant on April 18, 1961. She writes :

“I was sorry to hear that you are unwell and need treatment. I would always like never to fail in my wifely duty of looking after you, particularly when you are ailing, but you will, no doubt, agree that even for this, it will not be possible for me to join you in the house out of which you have turned me at your father’s instance. ‘This is, therefore, just to keep you informed that if you come to 7/6 East Patel Nagar, I shall be able to nurse you properly and my parents will ever be most willing to afford the necessary facilities under their care to let me carry out this proposal of mine.” There is no question that the respondent had no animus to desert the appellant and as stated by her or on her behalf more than once, the appellant had on February 27, 1961 reached her to Mrs. Gokhale’s house in Poona, may be in the hope that she will cooperate with Dr. Seth in the psychiatric exploration. She did not leave the house of her own volition.

But the appellant had worked himself up to believe that the respondent had gone off her mind. On March 15, 1961 he made a complaint (Ex. 292) to the Delhi Police which begins with the recital that the respondent was in the Mental Hospital before marriage and that she needed treatment from a psychiatrist. He did say that the respondent was “a very loving and affectionate person” but he qualified it by say- ing : “when excited, she appears to be a very dangerous woman, with confused thinking”.

On April 20, 1961 the appellant wrote a letter (Ex. 305) to the respondent charging her once again of being in an “unsound state of mind”. The appellant declared by that letter that he will not be liable for any expenses incurred by her during her stay in her parents’ house. On the same date he wrote a letter (Ex. 307) to the respondent’s father reminding him that he, the appellant, had accepted a girl “who had returned from the Mental Hospital”. On April 21, 1961 he wrote it letter (Ex. 309) to the Director of Social Welfare, Delhi Administration, in which he took especial care to declare that the respondent “was in the Poona Mental Hospital as a lunatic before the marriage”. The relevance of these reiterations regarding the so-called insanity of the 991 respondent, particularly in the last letter, seems only this, that the appellant was preparing ground for a decree of divorce or of annulment of marriage. He was surely not so naive as to believe that the Director of Social Welfare could arrange to “give complete physical and mental rest” to the respondent. Obviously, the appellant was anxious to disseminate the information as widely as possible that the respondent was of unsound mind.

On May 6, 1961 the respondent sent a reply (Ex. 314) to the appellant’s letter, Ex. 305, dated April 20, 1961. She expressed her willingness to go back to Poona as desired by him, if he could make satisfactory arrangements for her stay there. But she asserted that as a wife she was entitled to live with him and there was no purpose in her living at Poona “so many miles away from Delhi, without your shelter”.

In regard to the appellant’s resolve that he will not bear the expenses incurred by her, she stated that not a pie remitted by him will be illspent and that, whatever amount he would send her will be, accounted for fully.

It is in this background that on May 19, 1961 the respondent wrote the letter Ex. 318 to the Government. When asked by the Government to offer his explanation, the appellant by his reply Ex. 323 dated July 19, 1961 stated that the respondent needed mental treatment, that she may have written the letter Ex. 318 in a “madman’s frenzy” and that her father had “demoralised” her. In his letter Ex. 342 dated November 23 , 1961 to the respondent’s father, he described the respondent as “‘your schizophrenic daughter”.

Considered in this context, the allegations made by the respondent in her letter Ex. 318 cannot revive the original cause of action. These allegations were provoked by the appellant by his persistent and purposeful accusation, repeated times without number, that the respondent was of unsound mind. He snatched every chance and wasted no oppor- tunity to describe her as a mad woman which, for the purposes of this appeal, we must assume to be wrong and unfounded. He has been denied leave to appeal to this Court from the finding of the High Court that his allegation that the respondent was of unsound mind is baseless. He also protested that he was not liable to maintain the respondent.

It is difficult in these circumstances to accept the appellant’s argument either that the respondent deserted him or that she treated him with cruelty after her earlier conduct was condoned by him.

It is true that the more serious the original offence, the less grave need be the subsequent acts to constitute a revival(1) and in cases of cruelty, “very slight fresh evidence is needed to show a resumption of the cruelty. for cruelty of character is bound to show itself in conduct and behaviour, day in and day out, night in and night out”. But the conduct of the respondent after condonation cannot be viewed apart from the conduct of the appellant after condonation. Condonation is conditional forgiveness but the grant of such forgiveness does not give (1) Cooper vs. Cooper (1950) W.N. 200 (H.L.) (2) Per Scott L. J. in Batram vs. Batram (1944) p. 59 at p. 60.

992 to the condoning spouse a charter to malign the other spouse. If this were so, the condoned spouse would be required mutely to submit to the cruelty of the other spouse without relief or remedy. The respondent ought not to have described the appellant’s parents as “wicked” but that perhaps is the only allegation in the letter Ex. 318 to which exception may be taken. We find ourselves unable to rely on that solitary circumstance to allow the revival of condoned cruelty.

We therefore hold that the respondent was guilty of cruelty but the appellant condoned it and the subsequent conduct of the respondent is not such as to amount to a revival of the original cause of action. Accordingly, we dismiss the appeal and direct the appellant to pay the costs of the respondent.

P. H. P. Appeal dismissed.

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IN THE SUPREME COURT OF INDIA
STATE OF U.P. …PETITIONER
Vs.
RAJ NARAIN & ORS. …RESPONDENT
DATE OF JUDGMENT: 24/01/1975
BENCH: RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN ALAGIRISWAMI, A. SARKARIA, RANJIT SINGH UNTWALIA, N.L.
CITATION:
1975 AIR 865 1975 SCR (3) 333
1975 SCC (4) 428
CITATOR INFO :
MV 1982 SC 149 (452,454,1184)
RF 1988 SC 782 (43,44)
RF 1989 SC 144 (4,5)

ACT:
Indian Evidence Act, ss. 123 and 162–Scope of.

HELD : The foundation of the law behind ss. 123 and 162 of the Evidence Act is the same as in English Law.It isthat injuryto public interest is the reason for the exclusion from disclosure of documents whose contents, if disclosed, would injure public and national interest. Public interest which demands that evidence be 23SC/75 334 withheld is to be weighed against the public interest in the administrationof justice that courts should havethe fullestpossible access to all relevant materials. When public interest outweighs the latter, the evidence cannot be admitted. The Court will proprio motu exclude evidence, the production of which is contrary to public interest. It is in public interestthatconfidentialityshallbe safeguarded. Confidentiality is not a head of privilege. it is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of a class which demandprotection.

[348E-H] Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reasonfor its rejection. Admissibility presupposesrelevancy.

Admissibility also denotes the absence of any applicable rule of exclusion. Facts should not be received in evidence unless they are both relevant and admissible. The principal rules of exclusion under which evidence becomes inadmissible are two fold : (1)Evidence of relevantfactsis inadmissible when itsreception offends against public policyor a particular rule of law. A party is sometimes estopped from proving facts and these facts are therefore inadmissible; (2) Relevant facts are, subject to recognised exceptions, inadmissible unless they are proved by thebest or theprescribed evidence.Secrets of State. State papers,confidential official documents and communications betweenthe Government and its officers or between such officers are privileged from production on the ground of public policy or as being detrimental to the public interest or service. [343H; 344A-C] Conwayv. Rimmer & Anr. [1968] UKHL 2; [1968] 1 A.E.R. 874 &[1968]A.C.

910; Duncan v. Cammell Laird & Co. [1942] A.C. 642and Rogers v. Home Secretary [1973] A.C. 388, referred to.

(1) It is now the well settled practice in our country that an objection is raised by an affidavit affirmed by theHead of the Department. The Court may also require a Minister to affirman affidavit.Where no affidavit was filed, an affidavit could be directed to be filed later on. [349B] (2) It is for the Court to decide whether the affidavit is clear in regard to objection about the nature of documents.

The Court can direct further affidavit in that behalf.If the Court is satisfied with the affidavits, the Courtwill refuse disclosure. If the Court, in spite of the affidavit, wishes to inspect the document the Court may do so. [349E] Grosvenor Hotel, London [1963] 3 A.E.R. 426, referred to.

(3) Inthe present case it cannot be said that theBlue Book is a published document.Any publication of parts of the Blue Book which may be described as an innocuous part of the document will not render the entire document a published document. [349H] (4) Inthe instant case it is apparent that the affidavit affirmed by the Chief Secretary is an affidavit objecting to the production of the documents. The oral evidence ofthe witnessas well as the aforesaid affidavitshowsthat objection was taken at the first instance. [349D] (5) Ifthe Court is satisfied with the affidavit evidence that the document should be protected in public interest from production the matter ends there.If the Court would yet like to satisfy itself, the Court may see the document.

Objection asto productionas well as admissibility contemplated in s. 162 of the Evidence Act is decided by the Court in the enquiry. [349B-C] State of Punjab v. Sodhi Sukhdev Singh [1960] INSC 196; [1961] 2 S.C.R.371, followed.

Per Mathew, J. (Concurring) :

1(a) The foundation of the so called privilege is thatthe information cannot be disclosed without injury to public interest and not that the documentis confidential or official, which alone is no reason for its non-production.

[353C-D] AsiaticPetroleum Company Ltd. v. Anglo Persian OilCo.

[1916]1 K.B. 822 at 830; Conway v. Rimmer [1968] UKHL 2; [1968] 1All, E.R. 874 at 899 and Duncan v. Cammell Lavid &Co. [1942] UKHL 3; [1942] A.C. 624, referred to.

335 (b) A privilege normally belongs to the parties and can be waived.But where a fact is excluded fromevidence by considerations of public policy, there is no power to waive in the parties. [353F-G] Murlidhar Agarwal v. State of U.P. [1974] INSC 128; [1974] 2 S.C.C. 472 at 483, referred to.

In the instant case the mere fact that the witness brought the documents to Court in pursuance to the summons anddid not file a proper affidavit would not mean that the right to object to any evidence derived from an unpublished official record relating to affairs of State had been for ever waived and asno affidavit had been filed it mightbe that a legitimate inference could be made that the Minister orthe Head of the Department concerned permitted the production of the document or evidence being given derived from it, if there was no other circumstance. If the statement made by the witness that the document was a secret one and that he had nobeen permitted by the Head ofthe Department to produce it, was not really an objection to the production of the document which could be taken cognizance of by the Court under s. 162 of the Evidence Act, it was an intimation to the Court that the Head of the Department had not permitted the production of the document in Court or evidence derived from it being given.Whatever else the statement might indicate, it does not indicate that the Head ofthe Department had permitted the production or disclosure of the document. [355D-F] (2) Section 123 enjoins upon the Court the duty to see that no oneis permitted to giveany evidence derivedfrom unpublished official records relating to affairs of State unlesspermitted by the officer atthe Head ofthe Department. The Court therefore, had a duty not to permit evidence derived from a secret document being given. Before the arguments were finally concluded and before the Court decidedthe question the Head of the Department filed an affidavit objecting to the production of the documentand statingthat the document in questionrelated to secret affairsof State, and the Court-should have consideredthe validity of that objection under s. 162 of the Evidence Act.

[355G-A; 356A-B] Crompton Ltd. v. Custom & Excise Commrs. [1972] 2 Q.B.102 at 134 and Conway v. Rimmar & Anr. [1968] UKHL 2; [1968] A.C. 910, referred to.

(3) There is no substance in the argument that sincethe Blue Book had been published in parts, it must be deemed to have been published as a whole, and, therefore, the document could not be regarded as an unpublished official record relating to affairs of, State. Ifsome parts ofthe document which are innocuous have been published, itdoes not follow that the whole document has been published.

Since the High Court did not inspect the Blue Book,the statement by the Court that the materials contained inthe file produced by the Superintendent of Policewere taken from the Blue Book was not warranted. [362B-C; E] (4) The mere label given to a document by the executive is not conclusive in respect of the questionwhether it relatesto affairs of State or not. If the disclosure of the contents of the document wouldnot damage public interest the executive cannot label it in such a manner as to bring it within the class of documents which are normally entitled to protection. [362E-F] 5(a) It is difficult to see how the Court can find, without conducting an enquiry as regards the possible effect ofthe disclosure ofthe document upon public interest, that a document is one relating toaffairs of State as, ex hypothesis, a document can relate to affairs of Stateonly if its disclosure will injure public interest.But in cases where the documents do not belong to the noxious classand yet their disclosure would be injurious to public interest, the inquiry to be conducted under s. 162 is an enquiryinto the validity of the objection that the document is anun- published official record relating to affairs of Stateand.

therefore, permission to give evidence derived from it is declined. [357H; 358A-B] (b) Section 162 visualises an inquiry into that objection and empowers the Court to take evidence for deciding whether the objectionis valid. TheCourt,therefore, has to consider two things : (i) whether the documentrelates to secretaffairsof State; and (ii) whether therefusal to permitevidence derived from it being givenwas in the public interest. [358C] 336 (c) Even though the Head of the Department refused to grant permission, it was open to the Court to go into the question after examining the document and find out whether, the disclosure ofthe document would be injurious to public interest and the expression “as be thinks fit” in the latter part of s. 123 need not deter the Court from decidingthe question afresh as s. 162 authorities the Court to determine the validity of the objection finally. [358F] State of Punjab v. Sodhi Sukhdev Singh [1960] INSC 196; [1961] 2 S.C.R.371, followed.

(d) When a question of national security is involvedthe Court may not be the proper forum to weigh thematterand that is the reason why a Minister’s certificate is taken as conclusive. As the executive is solely responsiblefor national security, including foreign relations, no other organ could judge so well ofsuch matters.Therefore, documents in relation to these matters might fall into a class which per se might require protection. [359B-C] (e) But the executive is not the organ solelyresponsible for public interest. There are other elements. Onesuch element is the administration of justice. The claim ofthe executive to exclude evidence is more likely to operate to subserve a partial interest, viewedexclusively from a narrowdepartmental angle. It is impossible for it tosee or give equal weight to another matter, namely, that justice shouldbe done and seen to be done. When there aremore aspects of public interest to be considered the Court will, with referenceto the pending litigation, be in a better position to decide where the weightof public interest predominates. It seems reasonable to assume that a Court is better qualified than the Minister to measure the importance of thepublic interest in the case before it.Oncecon- siderations of national security are left out. there are few matters of _public interest which cannot safely be discussed in public. [139C-D; F-G] Arguments for the Appellant The principle behind s. 123 is the overriding and paramount character of public interest and injury to public interest is the sole foundation of the section.In cases wherethe document in question obviously relates to affairs of State it is the duty of the Court to prevent the productionand admission of the document in evidence suo motu to safeguard publicinterest Matters of State referred to in the second clauseof s.162 are identical with affairs of State mentioned in s. 123. An objection against the production of document should be raised in the form of an affidavit by the Minister or the Secretary. When an affidavit was made by the Secretary, the Court may, in a proper case, requirethe affidavit of the Minister. If theaffidavit is found unsatisfactorya further affidavit may be called, and in a propercase the person making the affidavit should be summoned to face an examination to the relevant point.Here too this Court did not consider that any party can raise the objection and it is the duty of the Court to act suo moru in cases where the documents in question obviously relate to affairsof State. Therefore, the Court cannot hold an inquiryinto the possible injury to public interest.That is a matter for the authority to decide. But the Court is bound to holda preliminaryenquiry and determinethe validity of the objections which necessarilyinvolves an inquiry into the question as to whether the evidence relates to anaffair of State under s. 123. In thisinquirythe Court has todetermine the characterand class ofthe document. The provisions of s. 162 make a departurefrom Englishlaw in one material particular and that isthe authority given to the Court to hold a preliminary enquiry into the character of the document. Under s. 162 ofthe Evidence Act the Court has the overriding power to disallow a claim of privilege raised by the State in respect of an unpublished document pertaining to matters of State, but in its discretionthe Court will exercise its power only in exceptional circumstances when public interest demands, that is, when thepublic interestservedby the disclosure clearly outweighs that served by the nondisclosure. In this case the Chief Secretary filed an affidavitwhereasthe Minister would have done it. This claim of privilege is not rejected on account of this procedural defect.

Arguments for the Respondent in thepresent case the affidavit was not filed atthe relevant time,nor is it clear that the Secretary orthe Minister of the Department concerned ever applied their mind at the relevant time. The Supreme Court in Sukhdeo Singh’s case held that 337 the objection to the production or admissibility of document of which privilege is claimed, should be taken by himself by means of an affidavit. Section 162 of the EvidenceAct indicates thatthe objection should be filed on thedate which is fixed for the production of document so thatthe Court may decide the validity of such objection.Such objection must be by, means of an affidavit. In A mar Chand Butail v. Union of India the Supreme Court held that asthe affidavit wasnot filed, no privilegecouldbe claimed.

This Court also looked to the document and on merits itwas held that thedocument wasnot such document whose, disclosure was not in the public interest. On that ground also, the claim for privilege was disallowed. Inthe present case the question does not arise as the summonswas issued to the Head of the Department who was asked to appear in person or through some other officer authorised byhim for the purpose of giving-evidenceand for producing documents. The Head of the Department was, therefore, under obligation to comply with the summons of the Court and to file his affidavit if he wanted to claim privilege. The High Court was right in drawing inference from non-filing of the affidavitof the. Head of theDepartment that no privilege was claimed.The Court has a right to look to the document itself and take a decisionas towhetherthe document concerned was such which at all related toany affairsof the State.The Court has the power of having a judicial review overthe opinion of the Head ofthe Department.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1596 of 1974.

Appealby Special Leave from the Judgment andOrder dated the 20th March, 1974 of the Allahabad High Court in Election Petition No. 5 of 1971.

Niren De, Attorney General of India, B. D. Agarwala, and 0.

P. Rana, for the appellant.

Shanti Bhushan and J. P. Goyal, for respondent no. 1.

Yogeshwar Prasad, S. K. Bagga and S. P. Bagga for respondent no. 2.

The Judgment of A. N. Ray, C.J., A. Alagiriswami, R. S.

Sarkaria and N. L. Untwalia, JJ, was delivered by A. N. Ray, C.J. K. K. Mathew, J. gave his separate Opinion.

RAY, C.J.-Thisis an appeal by special leave fromthe judgment dated 20 March, 1974 of the learned Single Judge of the High Court at Allahabad, holding that no privilegecan be claimed by the Government of Uttar Pradesh under section 123 of the Evidence Act in respect of what is describedfor the sake of brevity to be the Blue Book summoned fromthe Government of Uttar Pradesh and certain documents summoned from the Superintendent of Police,Rae Bareli, Uttar Pradesh.

Shri Raj Narain, the petitioner in Eelection Petition No. 5 of 1971. in the High Court of Allahabad, made an application on 27 July, 1973 for summoning certain witnesses alongwith documents mentioned in the application. Thesummonswas inter alia for the following witnesses along with following documents First the Secretary, General Administration, State of Uttar PradeshLucknow or any officer authorisedby him was summoned to produce inter alia (a) circulars receivedfrom the Home Ministry and the Defence Ministry of the Union Government regarding the security and 338 tour arrangements of Shrimati IndiraNehru Gandhi,’the respondent in Election Petition for the tour programmes of Rae Bareli District on 1, 24 and 25 February., 1971 orany generalorderfor securityarrangement; and (b)All correspondencebetween the State Government andthe Government of India and between the Chief Minister andthe Prime Minister regarding Police arrangement for meeting of the Prime Minister by State Government and in regard to their expenses.

(a) Second, the Chief Secretary,: Government of Uttar Pradesh, Lucknow was also summoned along with inter alia the documents, namely, circulars received from the Home Ministry and Defence Ministry of the Union Government regardingthe security and tour arrangements of Shrimati Indira Nehru Gandhi for the tour programmes of Rae Bareli District for 1, 24 and 25 February, 1971; (b) All correspondence between the State Government and the Government of India and between the Chief Ministerand the Prime Minister, regardingthe arrangement of Police for the arrangement of meeting for the Prime Minister by State Government and in regard to their expenses.

Third, the Head Clerk of the office of the Superintendent of Police of District Rae Bareli was summoned along with inter alia the following (a) all documents relating to thetour programof Shkimati Indira Nehru Gandhi of DistrictRae Barelifor 1 and 25 February, 1971; (b) all the documents relating to arrangement of Police and other security measures adopted by the Police and all documents relating to expenses incurred on the Police personnel, arrangements of the Police, arrangements forconstructions of Rostrum, fixation of loudspeakers andother arrangements through Superintendent of Police, District Rae Bareli.

On 3 September, 1973the summons was issued tothe Secretary, General Administration. The summons was endorsed to the Confidential Department by the General Department on 3 September, 1973 as will appear from paragraph 5 ofthe affidavit of R. K. Kaul, Commissionerand Secretaryin- charge.On 5 September, 1973 there was an application by the Chief Standing Counsel on behalf of the Chief Secretary, Uttar Pradesh, Lucknow for clarification to the effectthat the Chief Secretary is not personally required to appear pursuant to the summons. The learned Judge made an order on that day that the Chief Secretary need not personally attend and that the papers might be sent through some officer.On 6 September,1973 S. S.Saxena,UnderSecretary, Confidential Department, was deputed by R. K.Kaul,Home Secretary as well as Secretary, Confidential Department, to go tothe High Court with the documents summoned and to claim privilege. This will appear from the application of S. S. Saxena dated 19 September, 1973.

In paragraph 4 of the said application it is stated that in compliance with the summons issued by the High Courtthe Home Secretary deputed the applicant Saxena to go tothe Court with the documents summoned withclearinstructions that privilegeis to be claimed under section 123 ofthe Evidence Act in regard to the documents, namely, the Booklet issued by the Government of India containing Rules and 339 Instructions for the protection of the Prune Ministerwhen on tour and in travel, and the correspondence exchanged between the two Governments and between the Chief Minister, U.P. and thePrime Ministerin regard tothe Police arrangements for the meetings of the Prime Minister.

Saxena was examined by the High Court on 10 September, 1973.

On 10 September, 1973 there was an application on behalf of the Election Petitioner that the claim of privilege by Saxena evidence be rejected.In theapplication it is statedthat during the course of his statement Saxena admitted thatcertain instructions were. issued bythe CentralGovernment for the arrangement of Prime Minister’s tour which are secret and hence he is not in a position to file those documents.The witness claimed privilege in respectof that document. It is stated by the election petitioner that no affidavit claiming privilege hasbeen filed by the Head of the Department and that the documents do not relate to the affairs of the State.

On 11 September, 1973 there was an order as follows.The application of the election petitioner for rejection ofthe claim for privilege be put up for disposal. The arguments might take some time and therefore the papers should be left by Saxena ina sealed cover in the Court. In casethe objection would be sustained, the witness Saxena. would be informed to take back the sealed cover.

On 12 September, 1973 an application was filed by Ram Sewak Lal Sinha on an affidavit that the Superintendent of Police.

Rae Bareli claimed privilegeunder-section123 ofthe Evidence-Act. The witness was discharged. On behalf of the election petitioner it was said that an objection would be filed to make a request that the Superintendent of Police, Rae Bareli be produced before the Court for cross exami- nation.The election petitioner filed the objection tothe affidavit claiming privilege by theSuperintendentof Police, Rae Bareli.

On 13September, 1973 the learnedJudge orderedthat arguments on the question of privilege would be heard on 19 September, 1973. S.S. Saxena filed anapplication supported by an affidavit of R. K. Kaul. The deponent R. K.

Kaul in his affidavit affirmed on 19 September,1973 stated that the documents summoned are unpublished official records relating to affairs of the State and their disclosurewill be prejudicial to public interest for the reasons setout therein. The secrecy of security arrangement was one of the reasons mentioned. Another reason was that arrangements of the security of the Prime Minister,the maintenance of public order and law and order on the occasion of the visits of the Prime Minister are essentially in nature such that to make them public would frustrate the object intended to be served by these Rules and Instructions.

On 20 September 1973 the case was listed for argumentsfor deciding preliminaryissuesand onthe questionof privilege. on 20 September, 1973 an objection was madethat the Chief Standing Counsel had no locus standi to file an objection claiming privilege. on 21 September, 1973the arguments in the matter of privilege were heard. On 24 September, 1973 further arguments on the question of 340 privilege were adjourned until 29 October,1973.23 October, 1973 was holiday. On 30 October, 1973 arguments were not concluded.On 30 October,1973 the Advocate Generalappeared and made a statement regarding the Blue Book to the effect that the witness Saxena was authorised by the Head of the Department R. K. Kaul, Home Secretary to bring the Blue Book to the Court and the documents summoned by the Court and the Head of the Department did not permit Saxena to file the same. The witness was permitted toshow to the Court if the Court so needed. Further arguments on the question of privilege were heard on 12, 13 and 14days of March, 1974 The judgment was delivered on 20 March, 1974.

The learned Judge on 20 March, 1974 made an order as follows “No privilege can be claimed inrespect of three sets of paper allowed to be produced.

The three sets of papers are as follows.The first set consists of the Blue Book, viz., the circulars regarding the securityarrangements of the tour programme of Shrimati Indira Nehru Gandhi and instructions received from the Government of India and the Prime Minister’s Secretariat on the basis of which Police arrangement forconstructions of Rostrum, fixationofloudspeakersand other arrangements were made, and the correspondence between the State Government & the Government of India regarding the police arrangements for the meetings ofthe Prime Minister.The second set also relates to circulars regarding securityand tour arrangementsof Shrimati Indira Nehru Gandhi for the tour programme of Rae Bareli and correspondence regardingthe arrangement of police for the meetings ofthe Prime Minister.The third set summonedfrom the Head Clerk of the Office ofthe Superintendent of Police relates to the same.” The learned Judge expressed the following view. Under section 123 of the Evidence Act the Minister or the head of the department concerned must file an affidavit at the first instance. No such affidavitwas filed atthe first instance. The Court cannot exercise duty under section123 of the Evidence Act suo motu.The court can functiononly after a privilege has been claimed by affidavit. It is only when permission has been withheld under section 123 ofthe Evidence Act that the Court will decide. Saxena inhis evidence did not claim privilege even after theLaw Department noted in the filethat privilege should be claimedSaxena was allowed to bring the Blue Book without being sealed in a cover. The head of the department should have sent the Blue Book under sealed cover along with an application and an affidavit to the effect that privilege was being claimed. No privilege was claimed at the first instance.

The learned Judge further held as follows. The Blue Book is not anunpublished official record within themeaning of section 123 of the Evidence Act because Rule 71(6) ofthe Blue Book wasquotedby a Member of Parliament.The Minister did not object or deny they correctness of’the quotation. Rule 71(6) of the Blue Book has been 341 filed in the election petition by therespondent tothe election petition Extracts of Rule 71(6) of the BlueBook were filed by the Union Government in a writ proceeding. If a portion of the Blue Book had been disclosed, it was not an unpublished official record. The respondent to the election petition hid no right to file even a portion of theBlue Book in support of her defence.When a portion of theBlue Book had been used by her in her defence it cannot besaid that the BlueBook had not been admitted in evidence.

Unless the Blue Book is shown to the election petitioner he cannot show the correctness or otherwise of the said portion of the Blue Book and cannot effectively cross-examinethe witnesses or respondent to the election petition. Even if it be assumed that the Blue Book has not beenadmitted in evidence and Kaul’s affidavit could be takeninto consi- deration, theBlue Book is not an unpublished official record.

With regard to documents summoned from the Superintendent of Policethe High Court said that because these owe their existence to the Blue Book which is not a privileged document and the Superintendent of Police did not giveany reason why the disclosure of the documents would be against publicinterest, the documents summonedfromthe Superintendentof Police cannot beprivilege documents either.

The High Court further said that in view of the decisions.

of this Court in State of Punjab v. Sodhi Sukhdev Singh(1);

Amar Chand Butail v. Union of India(2) andthe English decision in Conway v. Rimmer & Anr. (3) the Court has. power to inspect the document regarding which privilegeis claimed. But because the Blue Book is not anunpublished official record, there is no necessity to inspect theBlue Book.

The English decisions in Duncan v. Cammell Laird & Co.(4);

Conwayv. Rimmer & Anr. (supra); and Rogers v.Home Secretary(5) surveyedthe earlier law on the rule of exclusion of documents from production on the ground of public policy or as being detrimental to the public interest or service. In theCammellLairedcase (supra)the respondent objected to produce certain documents referred to in the Treasury Solicitors letter directing the respondent not toproduce the documents.It was stated that ifthe letter was not accepted as sufficient to found a claim,for privilege theFirst Lord ofAdmirality would make an affidavit. Hedid swear an affidavit. On summonsfor inspection ofthe documents it was held thatit isnot uncommon in modern practice for the Minister’s objection to be conveyed to the Court at any rate in the first instance by an official of the department who produces a certificate which the Minister has signed stating what is necessary. If the Court is not satisfied by this method theCourtcart request the Minister’s personal attendance.

(1) (1961] 2 S.C.R. 371.(2) A.I.R. 1964 S.C.,1658.

(3) [1968] 1 A.E.R- 874 : [1968] UKHL 2; [1968] A C 910.

(5) [1973] AC 388.

(4) [1942] A C- 642.

342 Grosvenor Hotel, London(1) group of cases turned on an order for mutual discovery of documents and an affidavit ofthe respondent, the British Railway Board, objecting to produce certaindocuments. The applicant challenged thatthe objection of the respondent to produce the document wasnot properly made.The applicant asked for leave to cross- examinethe Minister.The Minister was ordered to swear a further affidavit. That order of the learned-Chamber Judge was challenged in appeal. The Court of Appeal refused to interfere withthe discretion exercised bythe Chamber Judge.The Ministerfiled a further affidavit.That affidavit was again challenged before the learned Chamber Judge as not being in compliance with, the order. Itwas, held that the affidavit was in compliance withthe order.

The learned Judge held that Crown privilege is not merely a procedural matter and it may be enforced by the courts in the interest of the State without the intervention ofthe executive, though normally the executive claims it.The matterwas taken up to the Court of Appeal, which heldthe order of the Chamber Judge. It was observed that the nature of prejudice to the public interest should be specified in the Minister’s affidavit except in case where the prejudice is so obvious that it would be unnecessary to state it.

in the Cammell Laird case (supra) the House ofLordssaid that documents are excluded from production ifthe public interest requires that they should be withheld. Two tests were propounded for such exclusion. The first is in regard to the contents of the particular document. The second is the fact thatthe document belongs to a class which on grounds of public interest must as a class be withheldfrom production. This statement of law in the Cammell Laird case (supra)was examined in Conway v. Rimmer & Anr. In Conway v. Rimmer & Anr. (supra) it was held thatalthough an objection validly taken to production on thegroundthat this would be injurious to the public interest is conclusive it isimportant to remember that the decisionruling out such document is the decision of the Judge. The reference to ‘class’ documents in the Cammell Laird case (supra)was said in Conway v. Rimmer & Anr. (supra) to be, obiter.The Minister’s claim of privilege in theCammellLairdcase (supra) was at a time of total war when the slightest escape to thepublic of the most innocent details ofthe latest design of submarine founders might be a source of danger to the State.

In Conway v. Rimmer & Anr. (supra) the test propounded in Asiatic Petroleum Co. Ltd. v. Anglo Persian Oil Co. Ltd.(2) was adopted that the information cannot be disclosed without injuryto the public interest and- not that the documents are confidential or official.With regard to particular class of documents for which privilege was claimed itwas said that the Court would weigh in the balance on theone side the public interest to be protected and on the other the interest of the subject who wanted production of some (1) (1963) 3 A E R 426:(1964) 1 A E R 92 :(1964) 2 A E R 674 and (1964) 3 A E R 354.

(2) [1916] 1 K B 830.

343 documents which he believed would support his own or defeat his adversary’s case. Both were said in Conway v. Rimmer & Anr. case (supra) to be matters of public interest.

In this background it was held in Conway v. Rimmer &Anr.

(supra)that a claim made by a Minister on thebasisthat the disclosure of the contents would be prejudicial tothe publicinterest must receive the greatest weight; buteven here the Minister should go as far as he properlycan withoutprejudicing the public interest in saying whythe contents require protection.In Conway v. Rimmer &Anr.

(supra)it was said “in such cases it would be rare indeed for the court to overrule the Minister but it has the legal power to do so, first inspecting the documentitselfand then ordering its production”.As to the “class” cases it was said in Conway v. Rimmer & Anr.(supra) thatsome documents by their Very nature fall into aclass which requires protection.These are Cabinet papers, Foreign Officedispatches, the security of the State,high level interdepartmental minutes and correspondence and documents pertaining tothe general administration ofthe naval, military and air force services. Such documents would be the subject of privilege by reason of their contentsand also by their ‘class’.No catalog can be compiled forthe ‘class’ cases.The reason is that it would be wrongand inimical to the functioning of the public service ifthe publicwere to learn of these high level communications, howeverinnocent of prejudice to the Statethe actual comments of any particular document might be,.

In Rogers v. Homer Secretary (supra) witnesses were summoned to give evidence and to produce certain documents. The Home Secretary gave a certificate objecting to the production of documents. There was an application for certiorari to quash the summons issued to the witnesses. On behalf of theHome Secretary it was argued that the Court couldof itsown motionstop evidencebeing given for documents to be produced. The Court said that the real question was whether the public interest would require that the documents should not be produced. The Minister is an appropriate person to assertpublic interest. The public interest which demands that the evidence be withheld has to be weighed againstthe public interest in the administration of justice that courts shouldhave the fullest possible access to all relevant material. Once the public interest is found to demandthat the evidence should be withheld then the evidence cannot be admitted. In proper cases the Court will exclude evidence the productionof which, it sees iscontrary to public interest. In short, the position in law in an–‘ is that it is ultimately for the court to decide whether or not it is in the public interest that the documentshouldbe disclosed. Anaffidavit is necessary. Courts havesome times held certain class of documents and information to be entitled in the public interest to be immune from disclosure.

Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reasonfor its rejection. Admissibility presupposesrelevancy.

Admissibility also denotes the absence of any applicable rule of exclusion. Facts should not be received in evidence unless they are both relevant and admissible.

344 The principalrules of exclusion under which evidence becomesinadmissible are two-fold.First,evidence of relevant facts is inadmissible when its reception offends againstpublicpolicy or a particular rule oflaw.Some mattersare privileged from disclosure. A party is some- times estoppedfrom proving facts and these factsare therefore inadmissible. The exclusion of evidenceof opinionand of extrinsic evidence of the contents ofsome documents is again a rule of law. Second, relevant facts are, subject to recognised exceptionsinadmissible unless they are proved by the best or the prescribed evidence.

A witness, though competent generally to give evidence,may in certain cases claim privilege as a ground for refusing to disclose matter which is relevant to the issue.Secrets of state,papers, confidential official documentsand communicationsbetween .he Government and its officersor- between such officers are privileged from production onthe groundof public policy or as beingdetrimental tothe public interest or service.

The meaning of unpublished official records was discussed in the Cammell Laird case (supra). It was argued-therethat the documents could not be withheld because-they had already been produced before the Tribunal of Enquiry into theloss of the “Thetis’. The House of Lords held that if a claim was validly made in other respects to, withhold documents in connection with the pending action on the, ground ,of public policyit would not be defeated by thecircumstancesthat they had beengivena limited circulation at such an enquiry, because special precautions might have been taken to avoid injury and the tribunal’s sittings might be secret.

In Conway v. Rimmer & Anr. (supra) it was said that it would not matter that some details of a document might havebeen disclosed at an earlier enquiry. It was said that ifpart of a documentis innocuous but part of it isof such a naturethat its disclosure would be undesirable it should seal up the latter part and order discovery of the rest, provided that this would not give a distorted or misleading impression.

This Court in Sukhdev Singh’s case (supra) held thatthe principle behind section 123 of the EvidenceAct isthe overriding and paramount character of public interestand injuryto public interest is the sole foundation ofthe section. Section 123 states that no one shall be permitted to give any evidence derivedfrom unpublished official recordsrelating to_ any affairs of State except withthe permission ofthe Officer at the headof the department concerned, who shall give or withhold such permission as he thinksfit. The expression “Affairs ,of State” in section 123 was explained with reference to section162 ofthe Evidence Act.Section 162 is in three limbs.The first limb states that a witness summoned to producea document shall, if it is in his possession or power, bring it tothe Court,notwithstanding any objection which there may be to its production or to its admissibility.The validity of an such objection shall decided by the Court. The secondlimb of section 162 says that the, Court,, if it sees fit,may ‘inspect the document unless it refers to matters of state, or take other evidence to enable it to determine onits admissibility.’the third limb 345 speaksof translation of documents which is not relevant here. In Sukhdev Singh’s case (supra) this Court saidthat the first limb of section 162 required a witness to produce a document tobring it to the Courtand then raise an objection against its production or its admissibility.The secondlimb refers to the objection both as to production and admissibility. Matters of State in the second limb of section 162 were said by this Court in Sukhdev Singh’scase (supra)to be identical with the expression”affairs of State?’ in section 123.

In Sukhdev Singh’s case (supra) itwas said that an objection against the production of document should bemade in the form Of an affidavit by the Minister orthe Secretary. When an affidavit is made by the Secretary,the Court may, in a proper case, require the affidavit ofthe Minister. Ifthe affidavit is found unsatisfactory, a furtheraffidavit may be called. In a proper case,the personmakingthe affidavit can be summonedto face an examination. In Sukhdev Singh’s case. (supra)this Court laid down these propositions. First, it is a matter for the authority to decide whether the disclosure would cause injury to public interest. The Court would enquire into the question as to whether the evidence sought tobe excluded from production relates to an affair of State.The Court has todetermine the character and class of documents.

Second, the harmonious construction of sections 123 and162 shows there is a power conferred on the Court under section 162 to hold a preliminary enquiry into the character ofthe document. Third, the expression “affairs of State” in section123 is not capable ofdefinition.Many illustrations are possible. “If the proper functioning of the public service would be impaired by the disclosure of any document or class of documents such document orsuch class of documents may also claim the status of documents relating to public affairs’.Fourth, the second limb of section162 refers to the objection both as tothe production andthe admissibility of the document. Fifth, reading sections 123 and 162 together the Court cannothold an enquiry into the possible injury to public interest which may result from the disclosure of document in question.

That is a matter for the authority concerned to decide.But the Court is competent and is bound to hold apreliminary enquiry and determine the validity of the objection toits production. That necessarily involves an enquiry intothe question as to whether the evidence relates to an affairs of State under section 123 or not.

in Sukhdev Singh’s case (supra) this Court said thatthe power to inspect the documents cannot be exercised where the objection relates to a documents having reference to matters of State and it is raised under section 123 (See (1961) 2 S.C.R.at page 839). The view expressed by this Court is that the Court is empowered to take other evidence to enable it to determine the validity of the objection.The Court, it is said, can take other evidence in lieu of inspection of the document in dealing with a privilege claimed or an objection raised even under section 123. It is saidthat the Court may take collateral evidence to determine the character or class of documents. In Sukhdev Singh’scase (supra) it has also been. said that if the Court 346 finds that the document belongs to what is said to bethe noxious class it will leave to the discretion of the head of the department whether to permit its production or not.

The concurring views in Sukhdev Singh’s case (supra)also expressed the opinion that under no circumstances the court can inspect such a document or permit giving secondary evidence of its contents.

In Amar Chand Butail’s case (supra) the appellant called upon the respondents the Union and the Stateto produce certain documents. The respondents claimed privilege.This Court saw the documents and was satisfied that the claim for privilege was not justified.

In Sukhdev Singh’s case (supra) the majorityopinionwas given by Gajendragadkar, J. In Amar Chand Butail’scase (supra)Gagendragadkar, C.J.spoke for theCourt in a unanimous decision. In the later case this Court sawthe document. In Sukhdev Singh’s case (supra) this Courtsaid that an enquiry would be made by the ‘Court as to objections to produce document. It is said thatcollateral evidence could be taken. No oral evidence can be given of thecon- tents of documents. In finding out whether the document is a noxious document which should be excluded from production on the .ground that it relates to affairs of State, itmay sometimes be difficult for the Court to determinethe character of the document without the court seeing it.The subsequent Constitution Bench decision inAmar Chand Butail’s case- (supra) recognised the power of inspection by the Court of the document.

In Slob-Divisional Officer, Mirzapur v. Raja Sri Niwas Prasad Singh(1) this Court in a unanimous Constitution Bench decision askedthe Compensation Officer to decide inthe light of the decisions of this Court whether the claimfor privilege raised by the State Government should be sustained or not.This Court gave directions for filing of affidavits by the heads of the department. This direction was given about 10 years after the State Governmenthad claimed privilege in certain proceedings. Inthe Sub-Divisional Officer; Mirzapur case (supra) therespondent filed objections todraftcompensationassessment rolls.

Compensation was awarded to the respondent.The State appliedfor reopening of the objection cases.The respondent asked for production of some documents.The State claimed privilege. The District Judge directedthat compensation cases should be heard bythe Sub-Divisional Officer. Therespondent’s application for discoveryand production was rejected by the Compensation Officer.The District Judge thereafter directed that compensation cases shouldbe heard bythe Sub-Divisional Officer.The respondent again filed applicationsfor discoveryand inspection of these documents.The State Government again claimedprivilege. The respondent’sapplicationswere rejected. Therespondent then filed a petition under Article 226 of theConstitution for a mandamusto Compensation Officer to bear and determine the applications.

The High Court said (1) [1966] 2 SC R- 970, 347 that the assessment rolls had become final and could not be opened.This Court on appeal quashed the order of theSub Divisional Officer whereby the respondent’s applications for discovery and production had been rejected and directed the, Compensation Officer to decide the matter on a proper affidavit by the State.

On behalf of the election petitioner it was said thatthe firstsummonsaddressed totheSecretary, General Administration required him or an officer authorised byhim to give evidence and to produce the documents mentioned therein. Thesecondsummons was addressed to theHome Secretary to give evidence on 12 September, 1973. The third summonswas addressed to the Chief Secretary to giveevi- dence on 12September, 1973 and to produce certain documents. The first summons, it is said on behalf ofthe election petitioner, related to the tour programmes ofthe Prime Minister.The election petitioner, it is said, wanted the documents for two reasons.First, that these documents would have a bearing on allegations of corrupt practice, viz., exceeding the prescribed limits of election expenses.

The, electionpetitioner’scaseis that rostrum, loudspeakers, decoration would be within the expenditure of the candidate. Second, the candidate had the assistance of the Gazetted Officer for furthering the prospects ofthe candidate’s election.

On behalf ofthe election petitioners it is saidthat objection was taken with regard to certain documents inthe first summons on the ground that these were secret papers of the State, but no objection was-taken by an affidavit by the head of the department. With regard to the other documents which the Superintendent of Police was called to produce the contention on behalf of the election petitioner is thatthe Superintendentof Police is not the head of the department and either the Minister orthe Secretary shouldhave affirmed an affidavit.

Counselon behalf of the election petitionerput inthe forefront that it was for the Court to decidewhetherthe disclosure and production of documents by theState would cause prejudice to public interest or whether non-disclosure of documents would cause harm to the interest of the subject and tothe public interest that justice should bedone betweenlitigating parties. This submission was amplified by counsel for the election petitioner by submitting that it had tobe found out at what stage and itwhat manner privilege was to be claimed and in what circumstancesthe Court could look into the document to determine the validity of the claim to privilege raised under section123.The, other contention on behalf of the election petitionerwas that if a part of the document was made public by lawful custodian of the document the question waswhetherthe document could stillbe regarded a-, anunpublished document. It was also said if there was a long document and if parts thereof were noxious and therefore privileged whether the unanimous part could still be brought onthe record of the litigation.

348 Counselfor the election petitioner leaned heavily onthe decision in Conway v. Rimmer & Anr. (supra) that the Court is tobalance the rival interests of disclosure andnon- disclosure.

the first question which falls for decision is whetherthe learnedJudge was right in holding that privilege wasnot claimed by filing an affidavit at the first instance.

Counsel on behalf of the election petitioner submittedthat in a case in which evidence is sought to be led in respect of matters derived from unpublished recordsrelating to affairsof State at a stage, of the proceedings whenthe head of the department has not come into picture and has not had an opportunity of exercising discretion under section 123 to claim privilege it will be the duty of the court. to give effect to section 123 and prevent evidence beingled till the head of the department has had the opportunity of claiming privilege. _But in case in which documents are sum- moned,it is said by counsel for the electionpetitioner, the opportunity of claiming privilege in a legal mannerhas already been furnished when summons is received by thehead of thedepartment and if he does not claim privilegethe court is under no legal duty to ask him or to givehim another opportunity.

The documents in respect of which exclusion from production is claimed are the blue book being rules andinstructions for the protection of the Prime Minister when on tour and in travel.Saxena came to court and gave evidence thatthe blue book was a document relating to the affairs of State and was not to be disclosed. TheSecretary filed an affidavit on 20 September, 1973 and claimed privilege in respectof the blue book by submitting that the document relatedto affairs of Stateand should, therefore, be excluded from production.

The several decisions to which reference has alreadybeen made establishthat the foundationof thelaw behind sections 123 and 162 of the Evidence Act is the same as in Englishlaw. It is that injury to public interest isthe reason for the exclusion from disclosure of documents whose contents if disclosedwould injure public and national interest. Public interest which demands thatevidence be withheld is to be weighed against the public interest in the administrationof justice that courts should havethe fullestpossible access to all relevant materials.When publicinterest outweigh’s the latter, the evidence cannot be admitted. The court will proprio motu exclude evidence the production of which is contrary to public interest.It is inpublicinterest thatconfidentiality shallbe safeguarded. The reason is that such documents become subject to privilege by reason of their contents Confidentialityis not a head of privilege. It is a consideration to bear in mind.It is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of class which demand protection. (See Rogers v.Home Secretary (supra) at p. 405).To illustrate the class of documents would embrace Cabinet papers, Foreign Office dispatches, papers regarding the security to the Stateand high level interdepartmentalminutes. In the ultimate analysis the contents of the 349 document are so described that it could be seen at once that in thepublic interest the documents are to be withheld.

(See Merricks and Anr. v. Nott Bower & Anr.(1).

It is now the well settled Practice in our country that an objection is raised by an affidavit affirmed by the head of the department. The Court may also reunite aMinister to affirman affidavit. That will arise in the course ofthe enquiryby the Court as to whether the document should be withheld from disclosure. If the Court is satisfiedwith the affidavitevidence, that the documentshouldbe protected in public interest from production the matter ends there.If the Court would yet like to satisfy itselfthe Court may see the document. This will be the inspection of the, document by the Court. Objection as to production as well as admissibility contemplated in section 162 ofthe Evidence Act is decided by the Court in theenquiry as explained by this Court in Sukhdev Singh’s case (supra).

In thefacts and circumstances of the present case it is apparent that the affidavit affirmed by R. K.Kaul, Chief Secretary on 20 September, 1973 is an affidavit objecting to the productionof the documents. The oralevidence of Saxenaas well as the aforesaid affidavitshowsthat objection was taken at the first instance.

This Court has said that where no affidavit was filed an affidavit could be directed to be filed later on.The Grosvenor Hotel, London group of cases (supra)in England shows that if an affidavit is defective an opportunitycan be given to file a better affidavit. It is for the court to decide whether the affidavit is clear in regard to objection about the nature of documents. The Court can direct further affidavit in that behalf. If the Court is satisfiedwith the affidavitsthe Court will refuse disclosure. Ifthe Court in spite of the affidavit wishes toinspectthe document the Court may do so.

The next question is whether the learned Judge was right in holdingthat the blue book is not an unpublished official record. On behalf of the election petitioner, it was-said that a part of the document was published by the Government, viz., paragraph 71(6) in a writ proceeding. It is also said that the respondent to the election petition referred to the blue book in the answer filed in the Court. in the Canmell Laird case, it was said that though some of the papershad been producedbefore the Tribunal ofEnquiryand though reference was made to those papers in the Enquiry Report yet a privilege could be claimed. Two reasons were given.One is that special precaution may have been taken to avoid publicinjuryand the otheris that portions ofthe Tribunal’s sittings may have been secret. Inthe present case, it cannot be, said that the blue book is a published document. Any publication of parts of the blue book which may be described the innocuous part of the document will not render the entire document a published one.

(1) [1964] 1 A E R 717 8-423SCI/75 350 For these reasons, the judgment of the High Court isset aside.The learned judge will consider theaffidavit a firmedby R.K. Kaul. The learned Judge will give, an opportunity to the head of the department to file affidavit in respect of the documents summoned to be produced bythe Superintendent of Police. The, learned Judge, will consider the affidavits. If the learned Judge will be satisfied On the affidavits that the documents require protectionfrom production, the matter will end there.If the learned Judge will feel inclined in spite of the affidavits to inspect the documents to satisfy himself about the real nature ofthe documents, the learned Judge will be pleased to inspectthe same and pass appropriate orders thereafter,. If the Court will find oninspection that any part of a document is innocuous in the sense that it does not relate to affairs of State the Court could order disclosure of the innocuous part provided thatwould not give a distorted or misleading impression. Where the Courtordersdisclosure ofan innocuous partas aforesaid the Court should seal upthe other parts which are said to be noxious because their disclosure would be undesirable. Parties will pay andbear their own costs.

MATHEW,J. During the trial of the election petition filed by respondent No. 1 against respondent No. 2, respondent No.

1 applied to the Court for summons to the Secretary, General Administrationand the Chief Secretary, Government ofU.P.

and the Head Clerk, Office of the Superintendent of Police, Rai Bareily, for productionof certain documents.In pursuance to summonsissuedto theSecretary, General Administration and the Chief Secretary, Government of U.P., Mr. S. S. Saxena appeared in court with the documentsand objected to produce:

(1) Ablue book entitled”Rulesand Instructions forthe Protection of Prime Minister when on tour or in travel;

(2) Correspondence exchanged between the two governments viz., the Government of Indiaand the Government of U.P. in regard to the police arrangements forthe meetings of the Prime Minister; and (3) Correspondence exchanged betweenthe Chief Minister, U.P. and the Prime Minister in regard to police arrangements for the meetings of the latter;

without filing an affidavit of the Minister concerned or of the head of the department.

Saxenawas examined by Court on 10-9-1973. The 1stres- pondent filed an application on that day praying that as 351 no privilege was claimed by Saxena, he should be directed to produce these documents. The Court passed an order on 11-9- 1973 that theapplication be put upfor disposal.As Saxena’s examination was not over on 10-9-1973, the Court kept the documents in a sealed cover stating that incase the claim forprivilege was sustained, Saxena would be informed so, that hecouldtake back the documents.

Examination of Saxena was over on 12-9-1973. On thatday, the, Superintendent of Police, RaiBareily, filedan affidavit claiming privilege in respect of the documents summoned from his office. The Court adjourned the argument in regard to privilege and directed that it be heardthe next day. On 13-9-1973 the Court adjourned the hearing to 14-9-1973 on which date the hearing was. again adjourned to 20-9-1973. On 20-9-1973, Saxena filed inCourtan application and the Home Secretary tothe Government of U.P., Shri R,K. Kaul, the head ofthe department in question an affidavit claiming privilege for the documents.

The argument was concluded on 14-3-1974 and the Court passed the order on 20-3-1974 rejecting the claims for privilege.

This appeal, by special leave, is against that order.

The first question for consideration is whetherthe privilege was lost as no affidavit sworn by the Minister in charge or the Head of the Department claiming privilegewas filed in the first instance.

In State of Punjab v. Sodhi Sukhdev Singh(1) this Court held that the normal procedure to be followed when an officer is summoned as witness to produce a document and when he takes a plea of privilege, is, for the Minister in charge orthe head of the department concerned to Me an affidavit showing that he had read and considered the document in respect of which privilege is claimed and containing the general nature of the document and the particular danger to which the State would be, exposed by its disclosure. According tothe Court, this was required as a guarantee. that the statement of theMinister or the head of the department whichthe Court is asked to accept is one that has not been expressed casually or lightly or as a matter of departmental routine, but isone put forward withthe solemnitynecessarily attaching to a sworn statement.

In response to the summons issued to the Secretary, General Administration and the Chief Secretary, Government of U.P., Saxeiia was deputed to take the documents summoned tothe Court and he stated in his evidence that he could not Me the blue book as it was marked ,secret, and ashe wasnot permitted by the Home Secretary to produce it in Court.As no affidavit of theMinister or of the Head ofthe Department was filed claiming Privilege under s. 123 ofthe Evidence Act in the first instance, the Court said thatthe privilege was lost and the affidavit filed on 20-9-1973 by Shri R. K. Kaul, Home Secretary, claiming privilege, was of no avail. The Court distinguished the decision in Robinson v. State of South Australia(2) where their Lordships ofthe Privy Council said that it would be contrary to the public (1) [1960] INSC 196; [1961] 2 S C R 371.

(2) AIR 1931 PC 254.

352 interest to deprive the state of a further opportunity of regularising its claim for protection by producing an affidavit of the description already indicated by saying that these observations have no application as,no affidavit, albeit defective, was filed in this case inthe first instance.The Court further observed that it was only when a proper affidavit claiming privilege wasfiledthat the Court hasto find whether the documentrelated to unpublished official record of affairs of State, that a duty was cast on the Minister to claim privilege and that,duty could not be performed by Court, nor would the Court be justified in suo motu ordering that the document should be disclosed. The Courtthen quoted a passage fromthe decision of this Court in Sodhi Sukhdev Singh’s case (supra) to theeffect that court has no power to holdan enquiry into the possible injury to the public interest whichmay resultfrom the disclosure of the document asthat is a matterfor the authority concerned to decide but thatthe court is competent and indeed bound to hold apreliminary enquiry and determine the validity of the objection and that necessarily involves an enquiry into ‘the question whether the document relates to an affair of state under s. 123 or not.

The second ground on which the learned judge held that no privilege could be claimed in respect of the, Blue Bookwas that since portions of it had in fact been published, it was not an unpublished official record relating toaffairs of state.He relied upon three circumstances to showthat portions of the Blue Book were published. Firstly,the Union Government had referred to a portion of it (Rule 71/6) in an affidavit filed in Court.Secondly, respondent No. 2 had obtained a portion of the Blue Book (Rule 71/6) andhad produced it in court along with her written statement in the case and thirdly that Shri Jyotirmoy Bosu, a Member of Parliament had referred tothis particular rulein Parliament.

The learned Judge, however, did notconsider or decide whetherthe Blue Book related to any affair of state, perhaps, in view of his conclusion that itwas not an unpublished official record.

Section 123 of the Evidence Act states from unpublished official records relating to any affairs ofstate,except withthe permission of the Officer at the head ofthe department concerned, who shall giveor withhold such permission as be thinks fit.” Section 162 of the Evidence Act provides that when a witness bringsto court a document in pursuance tosummonsand raises an objection to its production or admissibility,the Court has to- determine the validity of the objection to the production or admissibility and, for so doing, the court can inspectthe documentexcept in the case ofa document relating to affairs of state or, take such other evidence as may be necessary to determine its admissibility.

353 Having regard to the view of the High Court that since the’.

privilege wasnot claimed in the first instance by an affidavit of the Minister or of the head of the department concerned, the privilege could not thereafterbe asserted and that no inquiry into the question whether the disclosure of thedocument would injure public interest can becon- ductedby thecourtwhen privilegeis claimed, it is necessary to see the scope of s. 123 and s.162 ofthe Evidence Act.

The ancient proposition that the public has a right to every man’s evidence has been reiterated by the Supreme Court of U.S.A. in its recent decision in United States v. Nixon.

This duty and its equal application to the executivehas never been doubted except in cases where it can legitimately claim that the evidence in its possession relates to secret affairsof state and cannot be disclosed without injury to public interest.

The foundationof the so-called privilege is thatthe information cannot be disclosed without injury to public interest and not that the documentis confidential or official which alone is no reason for its non-production(1).

In Durcan v. Cammel Lavid & Co.(2) Lord Simon saidthat withholding ofdocuments on the ground thattheirpub- lication wouldbe contrary to the public interest isnot properly to be regarded as a branch of the law of privilege connected with discovery and that ‘Crown privilege’ is,for this reason, not a happy expression.

Dealingwith the topics of exclusion of evidence onthe groundof estate interest, Cross says that this head of exclusion of evidence differs from privilege, as privilege can be waived, but that an objection on the score of public policy must be taken by the Judge if it is not raised by the parties or the Crown.(3) Phipsondealswith the topic under the general category “Evidence excluded by public policy”.He then lists as an entirely separate category: “Facts excluded byprivilege,” and deals there with the subject oflegalprofessional communication, matrimonial communication, etc., topics dealt with by sections 124-131 of the Evidence Act(4).

A privilege normallybelongs to the partiesand can be waved.But where a fact isexcluded fromevidence by considerations of public policy, there is no power to waive in the parties see in this connection Murlidhar Aggarwal v.

State of U.P. (5).

Lord Reid in Beg v. Lewas(6) said that the expression ‘Crown privilege is wrong and may be, misleading and that there is no question of any privilege in the ordinary sense ofthe word, as the real question is whether the public interest requires that a document shall not be produced and, whether the public interest is so strong as to override (1) gee Asiatic Petroleum Company Ltd. v Anglo PersianOil Co. [1916] 1 K B 822, at 830; and Conway v Rimmer [1968] UKHL 2; (1968) 1 All ER 874, at 899.

(2) [1942] A– C 624.(3) “Evidence”, 3rd ed p 251.

(4) “see Phipson on Evidence” (5) [1974] 2 S7 C C 472, at 483.

(6) [1973] A C at, 388.

354 the ordinary right and interest of a litigant that he shall be able to Ibefore a court of justice all relevant evidence. In the same case, Lor Pearson observed thatthe expression ‘Crown privilege’ is not accur though sometimes convenient. Lord Simon of Claisdale observed in that case :

“…. .’Crown privilege’ is a misnomer and apt to be misleading.’It refers to the rule that certain evidence is hadmissible on the ground that its adduction would be contrary tothe public interest.It is not a privilege which may be waived by the Crown (see Marks v.

Bayfus, 25 Q.B.D. 494 at p. 500) or by anyone else. The Crown hasprerogatives,not previlege.” I am not quite sure whether, in this area, there wasany antithesi between prerogatives and privilege.I thinkthe source of this privilege was the prerogatives of the Crown.

“The source ofthe Crown’& privilegein relation to production of documents in asuit betweensubject andsubject (whether production is sought from a party or from some other) can, nodoubt,be traced tothe prerogative right to prevent the disclosure of State secrets, or evenof preventingthe escape of inconvenient intelligence, regarding Court intrigue. As is pointed out in Pollock and Maitland’s History of English Law(2nd ed., Vol. I, p. 5 17), “the King has power to shield those who do unlawful acts in his name, and can withdraw from the ordinary course of justice cases in which he has any concern. If the King disseises A and transfers the land to X, thenX when he is sued will say that he cannot answer without the King, and the action will be stayed until the King orders that it shall proceed.”We findsimilar principles applied to the non-disclosure of documents in the seventeenth and eighteenth centuries.In the report of Layer’s Case (1722), (16 How St.

Tr. p. 294) the Attorney General claimedthat minutes of the Lords of the Council should not be produced; and Sir John PrattL.C.J.sup- ported the claim, additing that “it would be for the disservice of the King to have these things disclosed”. We recall Coke’s useful principle: Nihil quodinconvenienceest licitum. It is true that in the preceding century the privilege was not upheld either in Strafford’s case (1640) 3 How, St. Tr. 1382, or in the case of Seven Bishops (1638) 12 How.

St. Tr. 183, but these decisions were made in peculiar circumstances.” [see “Documents Privilegedin Public Interest”(1)] But, with the growth of democratic government, the interest of theCrown in these matters developed intoand became identified with public interest.

(1) 39 Law Quarterly Rev. 476, at pp 476-477.

355 In the early days of the nineteenth century, when principles of ‘public policy’ received broad and generous interpretation we findthe privilegeof documentsrecognized onthe ground of public interest. At this date, public policy and the interest of the public were to all intents synonymous”.

(see “Documents Privilegedin Public Interests” (supra) The rule that the interest of the state must )not be put in jeopardy by producing documents which would injure it is in principle quite unconnected with the interests or claims of particular parties in litigation and indeed, it is a matter on which the judge should, if necessary, insist, even though no objection.is taken at all.This would showhow remote the rule is from the branch of jurisprudence relating, to discovery of documents or even to privilege(1).

So the mere fact that Saxena brought the documents to court in pursuance, to the summons and did not file an affidavit of the Minister or of the head of the department concerned claiming privilege would not mean that the right to object to any evidence derived from an unpublished official record relating to affair of state has been for ever waived. As no affidavit of the Minister or of the head of the department claiming privilege had been filed, it mightbe that a legitimate inteference could be made that theMinister or the head ofthe departmentconcerned permittedthe production of the document or evidence being given derived from it, if there was no other circumstance.But, Saxena statedthat the Blue Book was a secret document and hehad not been permitted by the head of the department to produce it. Though that statement was not really an objection to the production of the document which could be taken cognizance of by the court under s. 162 of the Evidence Act, it wasan intimation to the Court that the head of the department had not permitted the production of the document in Court or evidence.derived from it being given. Whatever else the statement might indicate, it does not indicate that the head of the department had permitted the production or the disclosure of the document. In other words, fromthe statement of Saxena that the document was a ‘secret’ one and that he was not permitted to produce it in court, it is impossible toinfer that the Minister or the head ofthe department badpermitted the document to beproduced in court or evidence derived from it being given.Section123 enjoinsupon the court the duty to see thatno one is permitted to give any evidence derived fromunpublished official records relating toaffairs of state unless permitted by the officer at the head of the department.The court, therefore, had a duty, if the Blue Bookrelated to secret affairs of state, not to permit evidence derived from it being given.And, in fact, ‘the Court did not allowthe production ofthe document, for, we find a note inthe proceedings ofthe Court on 10-9-1973 stating thatthe “question about the production of this document in Court shall be decided after argument of the parties on the point is finally (1)see: J.K.S. Simon, “Evidence Excluded by Consideration of State Interest”, (1955) Cambridge L Journal, 62.

356 heard”.And before the arguments werefinally concluded, Kaul, the officer at the head of the department, filed an affidavit claiming privilege.As the privilege couldnot have been waived, and as, before the objection tothe production of the document raised by Saxena-whether tenable in lawor not-was decided by the Court, an affidavitwas filed by Kaul objecting to the production of the document and stating that the document in question related to secret affairsof state, the Court should have consideredthe validity of that objection under S. 162 of the Evidence Act.

In Crompton Ltd. v. Customs & Excise Comrs. (C.A.) (1), Lord Denning M.R. said that if a document is the subject of Crown Privilege, it cannot be adduced by either of the parties, that even if neither of the parties takes the objection, the Attorney General can come to the Court and take it andthat the judge himself must take the objection if it appears to him that the production of the document would be injurious to public interest. In Copway v. Binger & Anther(2) itwas observed :

“I do not doubt that it is proper to prevent the useof any document, wherever it comes from, ifdisclosure ofits contents would really injure the national interest and I do not doubt that it is proper topreventany witness whoeverbe may be, from disclosing facts which in the national interest ought not to be disclosed. Moreover, it is the duty of the court to do this without theintervention of any Minister, if possible serious injury to the national interest is ,really apparent.

“I do not accept thatin soimportant a matter, it could properly playaboutwith formalities or regard itself as entering forbidden territory merely because a doorhad not been formally locked.” The question then arises as to what exactly is the meaning of the expression “affairs of state”.

According to Phipson(3), witnesses may not beasked,and will not be allowed, to state facts or to produce documents the disclosure of which would be prejudicial to the public service, and this exclusion is not confinedto official communicationsor documents, but extends toall others likely to prejudice the public interest, even when relating to commercial matters.He thinks that it is the duty of the court to prevent disclosure of facts where serious injury to the national interest would possibly be. caused, that in deciding whether a claim for Crown privilege should apply to a document, there are two kinds of public interest to be considered bythe court, and they are : (1)the public interest that harm shall not be done to the nation orthe public service; and (2) thepublicinterest thatthe administrationof justice shall not be frustrated bythe withholding of documents which must be produced if justice is to be done; and that if a judge decided that, on balance, the (1) [1972] 2 Q.B 102, at 134.

(3) “Phipson on Evidence”, 11th ed. p. 240.

(2) [1968] UKHL 2; [1968] A.C. 910.

357 documents probably ought to be produced, it would generally be, best that he should see them before ordering production.

Cross says(1) that relevant evidence must be excluded if its reception would be contrary to state interest;but “state interest” is an ominously vague expressionand it is necessary to turn to the decided cases in order to ascertain the extent towhich this objection to the reception of relevant evidence has been taken. According to him, broadly speaking, the decisions fall under two heads-those in which evidence has been excluded because its disclosure would be injurious to national security (an expression which may be taken to include national defence and good diplomatic relations), and those in which evidence has been excluded becauseits receptionwould be injurious tosome other national interest andthat although the first group of decisions has not excited much comment, some of the cases included in the second may be thought toindicate an excessive concern for unnecessary secrecy.

In Sodhi Sukhdev Singh’s case (supra) this Court heldthat there are three views possible on the matter.The first view is that it is the head of the department who decides to which class the document belongs. If he comes tothe conclusion that the document is innocent, he cangive permission to its production. If, however, he comes tothe conclusion that the document is noxious, he will withhold that permission. In any case, the Court does not materially come into the picture.The second view is that it isfor the court to determine the character of the document and if necessary to enquire into the possible consequence ofits disclosure. On this view, the jurisdiction of the court is very much wider. A third view which does not accept either of thetwo extreme positions would be that the courtcan determine the character of the document and if it comes to the conclusion that the document belongs tothe noxious class,it may leave it to the head ofthe department to decidewhether its production should be permitted ornot, for, it is not the policy of s. 123 that in the case of every noxiousdocument the head of the departmentmust alwayswithhold permission.The Court seems tohave accepted the third view as the correct one and has said “Thus, our conclusion is that reading ss.123 and 162together the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question. That is a matter for the authority concerned to decide; but the Court is competent, and indeed is bound, to hold a preliminary enquiry and determinethe validity of the objections to itsproduction, and that necessarily involves an enquiryinto the question asto whether the evidence relates to an affairs of State under s. 123 or not.” As it was held in that case that the Court has no power to inspectthe document, it is difficult to see how the Court can find, without conducting an enquiry asregardsthe possible effect of the disclosure ofthe documentupon public interest, that a document is one relating to affairs of state as, ex- hypothesis a document can relate to affairs of state only if its disclosure will injure public interest.

It might be that there are certain classes of documents which are per se noxio s in the sense (1) “Evidence” 3rd ed, p. 252.

358 that, without conducting an enquiry, it might be possible to say that by virtue of their character their disclosure would be injurious to public interest. But there are other documents which do not belong to the noxious class andyet their disclosure would be injurious to public interest.The enquiry to be conducted under s. 162 is an enquiry intothe validity of the objection that the document isan unpublished official record relaing to affairs of stateand therefore, permission to give evidence derived from it is declined. The objection would be that the document relates to secret affairs of state and its disclosure cannot be permitted; for, why should the officer at the head ofthe department raise an objection to the production of a document if he is prepared to permit its disclosureeven thoughit relates to secret affairs of state ? Section162 visualises an enquiry into that objection and empowersthe court to take evidence for deciding whether the objection is valid.The court, therefore, has to considertwo things;

whether the document relates to secret affairs of state; and whether the refusal to permit evidence derived from it being given was in the public interest. Nodoubt,the, words used-ins. 123 “as he thinks fit” conferan absolute discretion on the head of the department to give or withhold such permission. AsI said, it is only ifthe officer refusesto permit the disclosure of adocument thatany question can arise in a court and then s. 162 of theEvi- dence Act will govern the situation. An overriding power in expresstermsis conferred on the court unders. 162 to decide finally on the validity of the objection. The court will disallow the objection if it comes to the conclusion that the document does not relate to affairs of state or that the public interest does not compel its non-disclosure or that the public interest served by the administration of justice in a particular case overrides all other aspects of publicinterest. This conclusion flows from the factthat in the first part of s. 162 of the Evidence Act there is no limitation on the scope of the court’s decision, though in the second part, the mode of enquiryis hedged inby- conditions. It is, therefore, clear that eventhoughthe head of the department has refused to grant permission, it is open to the court to go into the question after examining the document and find out whether thedisclosure ofthe document wouldbe injurious to public interest andthe expression “as he thinks fit” in the latter part of section 123 need not deter the court from deciding the question afreshas s.162 authorises the court to determinethe validity of the objection finally (see the concurring judgment of Subba Rao, J. in Sukhdev Singh’s case).

It israther difficult to understand, after a courthas inquired into the objection and found that disclosure of the document would be injurious to public interest, what purpose would be served by reserving to the head of the department the power to permit its disclosure because, the question to be decided by him would practically be the same, namely, whether the disclosure of the document would be injurious to public Interests question already decided by the court.In other words, if injury to public interest is the foundation of this so-called privilege,when once the courthas enquired into the question and found that the disclosure of the document will injure public interest and therefore it is a document relating to affairs of state, itwould be a futile exercise for the Minister or the head ofthe department toconsider and decide whether its disclosure should be permitted as be would be making an 359 enquiryinto the identical question.It is difficult to imaginethat a headof thedepartment would takethe responsibilityto come to a conclusion different fromthat arrivedat by a court as regards the effect of the dis- closure of the document on public interest unless he has or can have a different concept of public interest.

Few would question the necessity of the rule to exclude that whichwould cause serious prejudice to the state. When a question of national security is involved, the court may not be theproper forum to weigh the matter and that isthe reason why a Minister’s certificate is taken asconclusive.

“Those who are responsible for the national security must be the sole judges of what national security requires”(1).As the executive is solely responsible for national security including foreign relations, no other organ could judge so well of such matters. Therefore, documents in relation to these mattersmight fall into a class which per se might requireprotection. But the executive is not the organ solely responsible for public interest.It representsonly an important element in it; but there are other elements, One such element is the administration of justice.The claim of the executive to have exclusive and conclusive power to determine what is in public interest is a claim based on the assumption that the executive alone knowswhat is best for the citizen. C The claim of the executive to excludeevidence is more likely to operate tosubserve a partialinterest, viewed exclusively froma narrow departmental angle. It is impossible for it to see orgive equal weight to another matter, namely, that justice should be done and seen to be done. When there are more aspects of publicinterest to be considered, the courtwill,with reference to the pending litigation, be in a better position to decide where the weight of public interest predominates.

The power reserved to the court is a order productioneven thoughpublicinterest is tosome ‘extent prejudicially affected. This amounts to a recognition that more thanone aspectsof public interest will have to be surveyed.The interests of government’ for which the Minister speaks do not exhaust the whole public interest.Another aspect of that interestis seen in the needfor impartialad- ministration of justice. It seems reasonable to assume that a court is better qualified than the Minister to measure the importance ofthe public interest in the casebeforeit.

The court has to make an assessment of the relative claims of these different aspect of public interest.While there are overwhelming arguments for giving to the executivethe power to determine what matters may prejudice public security, those arguments give no sanction togivingthe executive an exclusive power to determine what mattersmay affectpublicinterest. Once considerations of national security are left out, there are fewmatters of public interest which cannot safely be discussed in public. The administrationitselfknows of many classesof security documents ranging from those merely reserved for official use tothosewhich can be seen only by ahandful of Ministers of officials bound by oath of secrecy.

According to Wigmore, the extent to which this privilege has gone beyond “secretsof State” inthe militaryor international sense is by (1) Lord Parker of Weddington in The Zemora [1916] 2A C 77, at 107.

360 no means clearly defined and therefore its scope and bearing are open to careful examination in the light of logicand policy. According to him, in a community under a system of representative government, there can be only few facts which requireto be kept secret with that solidity which defies even the inquiry of courts of justice. (1) In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, therecan but few secrets. The people ofthis countryhave a right to know every public act,everything, that is done in a public way, by their public functionaries.

They are entitled to know the particulars of every public transaction in all its bearing.The right to know, which is derived from the concept of freedom of speech,thoughnot absolute, is a factor which should make onewary,when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security (2) . To coverwith veil secrecy the common routine business, isnot inthe interest of the public.Such secrecy can seldom be legiti- mately desired.It is generally desired for the purpose of partiesandpolitics or personalself-interestor bureaucratic routine.The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.

“Whetherit is the relations of the Treasury to the Stock Exchange, or the dealings of ;the InteriorDepartment with publiclands,the facts must constitutionally be demandable, sooner or later, on the floor of Congress. TO concede to them a sacrosanct secrecy in a court ofjustice is to attribute to them a characterwhich for other purposes is never maintained a character which appears tohave been advanced only when it happens to have served some undisclosed interest to obstruct investigation into facts which might reveal a liability(3)” To justify a privilege, secrecy must be indispensable to inducefreedom of official communication or efficiency in the transaction of official business and it must be further a secrecy which hasremained or would have remained inviolable but for the compulsory disclosure.In howmany transactions of official business is there ordinarily such a secrecy? If there arises at any time a genuine instance of such otherwiseinviolate secrecy, letthe necessity. of maintaining it be determined on its merits (4).

Lord Blanesburgh saidin Robinson v. State of South Australia (4) the privilege is a narrow one, most sparingly to be exercised, that its foundation is that the information cannotbe disclosed withoutinjuryA, to the public interests andnot that the documents are confidential or ,official which alone is no reason for their non-production.

He further said that in view of the increasing extension of state activities intospheres of trading, businessand commerce, and of the claim of privilege in (1) see “Evidence”, 3rd ed, Vol 8, p 788.

(2) see New york Times Co V. United States, [1971] USSC 145; 29 L Ed822, 403 U S 713.

(3) gee “Wigrnore on Evidence”, 3rd ed-, Vol 8, page 790.

(4) [1931] A. C. 704 at 798.

361 relation to liabilities arising therefrom, the courtsmust duly safeguard genuine public interests and that theymust see to it that the scope of the admitted privilege isnot extended in such litigation.

There was some controversy as to whether the courtcan inspectthe documentfor the purposeof coming tothe conclusion whether the document relates to affairs of state.

In Sodhi Sukhdev Singh’s case, this Court has said thatthe court has nopower to inspect thedocument. Inthe, subsequent case (Amar Chand Butail v. Union of Indiaand Others(1), this Courtheld that the normal method of claiming privilege was by an affidavit sworn by the head of the department and that, if no proper affidavit was filed, the claim for privilege was liable to be rejected.But, this Court inspected the document to see whether it related to affairs of state. It might be that the court wanted to make sure that public interest is protected, but whatever be the reason, the court did exercise the power to inspect the document.

In England, it is now settled by the decision in CO Rimmer (2) that there is residualpower in court to decide disclosure of a document is in the interest ofthe public purpose, if necessary, to inspect the document, and that the of the, head of the department that the disclosure would injure public interest is not final.

In Robinson’s case, (Supra) the Privy Council took theview that the court has power to inspect the (document in order to decide the question whether it belongs to one category or the other.

It isalso noteworthy that Lord Denning, M.R, inhis dissenting judgment in the Court of Appeal in Conway v.

Rimmer has referred to the decision in Amar Chand Butail v.

Union of India and Others’ (supra) and said that the Supreme Court of India also has come round to the view that there is a residual power in the court to inspect adocument to decidewhether its production in court or disclosure would be injurious to public interest.

Probably the only circumstances in which a court willnot insiston inspectionof the document is that stated by Vinson, C. J. in United States v. Revenolds(3) :

“Regardless of how it is articulated,some like formula of compromise mustbe applied here. Judicial control over evidence in a case cannot be abdicated to thecaprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possibleto satisfy the court from all the circumstances ofthe base, that there is a reasonable dangerthat compulsion of evidence will expose military matters which, in the interestof national security, should not be divulged When this is the case, the occasion for the privilege (1) A I R 1964 SC 1658.

(2) [1968] UKHL 2; [1968] 1 All E R 874.

(3) [1953] USSC 31; [1952] 345 U S 1.

362 is appropriate,and the courtshouldnot jeopardize the security which the privilege is meant to protect by insisting uponan examination of the evidence, even by the judge alone in chambers.” I do not think thatthereis much substance inthe contention that since, the Blue Book had been published in parts,it must be deemed to have been published as a whole and, therefore, the document could not be regarded as an unpublished official record relating to affairs of state.

If some parts of the document which are innocuous havebeen published, it does not follow that the whole documenthas been published. No authority has been cited forthe proposition that if a severable and innocuous portion of a document is published, the entire document shall be deemed to have been published for the purpose of S. 123.

In regard tothe claim of privilege for the document summoned from the office of the Superintendentof Police, Rai Bareily, the High Court has only said that allthe instructions contained in the fileproduced by the Superintendent of Police were the same as those contained in the Blue Book and since no privilege in respect of theBlue Book could be claimed, the Superintendent of Police could not claim any privilege, in respect of those documents.It is difficult to under:stand how the High Court got theidea that the papers brought from the office ofthe Superintendentof Police contained only instructions or materials taken from the Blue Book. Since the court did not inspectthe Blue Book, the statement by the court thatthe materials containedin the fileproduced bythe Superintendent of Police were ,taken from the Blue Bookwas not warranted.

I am not satisfied that a mere label given to a document by the .executiveis conclusive in respect of the question whether it relates to affairs of state or not. Ifthe disclosure of the contents of the document would not damage publicinterest, the executive cannot label it in such a manneras to bring ‘it within the class of documents which ,are normally entitled to protection.N6 doubt, “thevery description-ofthe documentsin theclassmay suffice sometimes to show that they should not be produced such as Cabinetpapers” (seeper Lord Danning, M.R. in In re Grosvenor Hotel, London (No. 2) (1). Harman, L. J. said(2) in that case : “the appellants’ real point isthat since Duncan’s Case(3) there has grown up a practice tolump documents together and treat them as a class for which privilege is claimedand that thisdepends on dicta pronounced onwhat is reallya different subject-matter which are not binding on the court and are wrong.” In Conway v. Rimmer(4) Lord Reid said : “I do not doubt that there are certain classes of documents which ought not to be disclosed whatever their content may be” andreferred to cabinetminutes as belonging to that class.Lord Upjohn said(5) if privilege is (1) [1965] 1 Ch- 1210, at 1246.

(2) ibid at p 1248.

(3) [1948] A: C– 624.

(4) [1968] UKHL 2; [1968] 1 All E R 874, at 888.

(5) ibid at p 915.

363 claimedfor a document on the ground of ‘class’ the judge, if he feels any doubt about the reason for its inclusion as a class document, should not hesitate to call forits production forhis private inspection, and to orderand limit its production if he thinks fit.” In the samecase Lord Hodson said(1) : “I do not regardthe classification which places all documents under theheading either of contents or class to be wholly satisfactory. The plans of warships, as in Duncan’s case and documents exemplified by cabinetminutes are to be treated, I think, as cases to which Crown privilege can be properly applied as a class withoutthe necessity of thedocuments being considered individually.The documents in this case, class documents thoughthey may be, are in a different category, seeking protection, not as State documents of political or strategic importance, but,as requiring protection on the groundthat ‘candour’ must be ensured.” I would set aside the order of the High Court and direct it to consider the matter afresh.The High Court will have to consider the question whether the documents inrespect of which privilege had been claimed by Mr. R. K.Kaul,Home Secretary and the Superintendent of Police relate to affairs of state and whether public interest would beinjuriously affected by their disclosure.

If the averments in the affidavits are not full or complete, the court will be at liberty to call for further affidavits.

If, onthe basis of the averments in the affidavits,the court is satisfied that the Blue Book belongs to a class of documents, like the minutes of theproceedings ofthe cabinet, which is per se entitled to protection, no further question will arise in respect of that document. Insuch case, no question of inspection of that document by court will also arise. If, however, the court is not satisfied that the Blue Book does not belong to that class andthat averments in the affidavits and the evidence adduced are not sufficient to enable the Court to make up its mind thatits disclosure will injure public interest, it will be open to the court to inspect the document for deciding the question whetherit relates to affairs of state and thatits disclosure will injure public interest. In respect ofthe other documents, the court will be at libertyto inspect them, if on the averments in the affidavits or other evidence, it is not able to come to a conclusion thatthey relate to affairs of state or not.

if, on inspection, the court holds that any part of the Blue Book or other document does not relate to affairs of state and that its disclosure would not injure public interest, the court will be free to (1) bid at p. 905.

364 disclose that part and uphold the objection as regardsthe rest providedthat this will notgive amisleading impression. Lord Pearce said in Conway v. Rimmer(1) “if part of a document is innocuous butpart is of such a nature that its disclosure would be undesirable, it should seal up the latter part and order discovery of the rest, provided that this willnot give a distortedor misleading impression.” The principleof the rule ofnon-disclosureof records relating to affairs of state is theconcernfor public interest and the rule will be applied no further thanthe attainment of that objective requires(2).

I would allow the appeal.

P.B.R.

Appeal allowed.

(1) [1968] UKHL 2; [1968] 1 All E.R. 874, at 911.

(2) see Taylor on Evidence, p. 939.STATE OF U.P. V. RAJ NARAIN & ORS [1975] INSC 16; AIR 1975 SC 865; 1975 (3) SCR 333; 1975 (4) SCC 428 (24 January 1975)
RAY, A.N. (CJ) RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN ALAGIRISWAMI, A.

SARKARIA, RANJIT SINGH UNTWALIA, N.L.

CITATION: 1975 AIR 8651975 SCR (3) 333 1975 SCC (4) 428

CITATOR INFO :

MV1982 SC 149(452,454, 1184) RF1988 SC 782(43, 44) RF1989 SC 144(4,5)

ACT:

Indian Evidence Act, ss. 123 and 162–Scope of.

HEADNOTE:

Section 123 of the Evidence Act states that no one shall be permitted to give any evidence derived fromunpublished official records relating to any affair of State except with the permission of the Officer at the Head of the Department concerned who shall give or withhold such permission as he thinks fit. Section 162 provides that when a witness brings to Court a document in pursuance, of summons and then raises an objection to its production or admissibility the Court has todetermine the validity of the objection tothe production or admissibility and for so doing the Courtcan inspectthe document except in the cage of a document re- latingto the affairs of State or take such other evidence as may be necessary to determine its admissibility.

In connection with his election petition the respondent made an applicationbeforethe High Courtfor summoningthe Secretary, General Administration and Chief Secretary of the State Government and the head clerk of the office ofthe Superintendent of Police of the District for the production of the Blue Book entitled “rules and instructions forthe protection ofthe Prime Minister when on tour orin.

travel”, and certain other correspondence exchanged between the Governmentof India and the State Government inthat connection. The Home Secretary deputed one of his officers to go to the court alongwith the documents butwith clear instructions that he should claim privilege inrespect of those documents under s. 123 of Evidence Act. No affidavit of the Minister concerned or the Head of the Department was, however, filed, at that time. In the course ofexamination the witness claimed privilege in respect of the documents.

The election petitioner thereupon contended that the Head of the Department had not filed an affidavit claiming privilege and that the documents did not relate to the affairs ofthe State.The documents in respect of which privilegewas claimedwere seated and kept in the custody ofthe Court.

When the matter came up for hearing,however, theHome Secretary to the State Government,filed an affidavit claiming privilege for the documents.In respect ofthe documents summoned from the office of the Superintendent of Policean affidavit claiming privilege under s. 123 ofthe Evidence Act was filed by the Superintendent of Police.

The High Court held that (i) under s. 123 of the Evidence Act the Minister or the, Head of the Department concerned must file an affidavit in the first instance and since no such affidavithad been filed in thefirst instancethe privilege was lost and the affidavit filed later claiming privilege wasof no avail, (ii) that it woulddecidethe question of privilege only when permission to produce a document had been withheld under s. 123; (iii) that the Blue Book in respect of which privilege was claimed was not an unpublished official record relating to the affairs ofthe State because the Union Government had referred to a portion of it in one of its affidavits and a member of Parliament had referred to a particular rule ofthe Blue Book in Parliament; (iv) thatno reasons were given whythe disclosure ofthe documentswouldbe against public interest; and (v) that it had power to inspect the documents in respect of which privilege was claimed.

Allowing the appeal to this Court, (per A. N. Ray, C.J., A.

Alagiriswami, R..S. Sarkaria and N. L. Untwalia, JJ) :

HELD : The foundation of the law behind ss. 123 and 162 of the Evidence Act is the same as in English Law.It isthat injuryto public interest is the reason for the exclusion from disclosure of documents whose contents, if disclosed, would injure public and national interest. Public interest which demands that evidence be 23SC/75 334 withheld is to be weighed against the public interest in the administrationof justice that courts should havethe fullestpossible access to all relevant materials. When public interest outweighs the latter, the evidence cannot be admitted. The Court will proprio motu exclude evidence, the production of which is contrary to public interest. It is in public interestthatconfidentialityshallbe safeguarded. Confidentiality is not a head of privilege. it is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of a class which demandprotection.

[348E-H] Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reasonfor its rejection. Admissibility presupposesrelevancy.

Admissibility also denotes the absence of any applicable rule of exclusion. Facts should not be received in evidence unless they are both relevant and admissible. The principal rules of exclusion under which evidence becomes inadmissible are two fold : (1)Evidence of relevantfactsis inadmissible when itsreception offends against public policyor a particular rule of law. A party is sometimes estopped from proving facts and these facts are therefore inadmissible; (2) Relevant facts are, subject to recognised exceptions, inadmissible unless they are proved by thebest or theprescribed evidence.Secrets of State. State papers,confidential official documents and communications betweenthe Government and its officers or between such officers are privileged from production on the ground of public policy or as being detrimental to the public interest or service. [343H; 344A-C] Conwayv. Rimmer & Anr. [1968] UKHL 2; [1968] 1 A.E.R. 874 &[1968]A.C.

910; Duncan v. Cammell Laird & Co. [1942] A.C. 642and Rogers v. Home Secretary [1973] A.C. 388, referred to.

(1) It is now the well settled practice in our country that an objection is raised by an affidavit affirmed by theHead of the Department. The Court may also require a Minister to affirman affidavit.Where no affidavit was filed, an affidavit could be directed to be filed later on. [349B] (2) It is for the Court to decide whether the affidavit is clear in regard to objection about the nature of documents.

The Court can direct further affidavit in that behalf.If the Court is satisfied with the affidavits, the Courtwill refuse disclosure. If the Court, in spite of the affidavit, wishes to inspect the document the Court may do so. [349E] Grosvenor Hotel, London [1963] 3 A.E.R. 426, referred to.

(3) Inthe present case it cannot be said that theBlue Book is a published document.Any publication of parts of the Blue Book which may be described as an innocuous part of the document will not render the entire document a published document. [349H] (4) Inthe instant case it is apparent that the affidavit affirmed by the Chief Secretary is an affidavit objecting to the production of the documents. The oral evidence ofthe witnessas well as the aforesaid affidavitshowsthat objection was taken at the first instance. [349D] (5) Ifthe Court is satisfied with the affidavit evidence that the document should be protected in public interest from production the matter ends there.If the Court would yet like to satisfy itself, the Court may see the document.

Objection asto productionas well as admissibility contemplated in s. 162 of the Evidence Act is decided by the Court in the enquiry. [349B-C] State of Punjab v. Sodhi Sukhdev Singh [1960] INSC 196; [1961] 2 S.C.R.371, followed.

Per Mathew, J. (Concurring) :

1(a) The foundation of the so called privilege is thatthe information cannot be disclosed without injury to public interest and not that the documentis confidential or official, which alone is no reason for its non-production.

[353C-D] AsiaticPetroleum Company Ltd. v. Anglo Persian OilCo.

[1916]1 K.B. 822 at 830; Conway v. Rimmer [1968] UKHL 2; [1968] 1All, E.R. 874 at 899 and Duncan v. Cammell Lavid &Co. [1942] UKHL 3; [1942] A.C. 624, referred to.

335 (b) A privilege normally belongs to the parties and can be waived.But where a fact is excluded fromevidence by considerations of public policy, there is no power to waive in the parties. [353F-G] Murlidhar Agarwal v. State of U.P. [1974] INSC 128; [1974] 2 S.C.C. 472 at 483, referred to.

In the instant case the mere fact that the witness brought the documents to Court in pursuance to the summons anddid not file a proper affidavit would not mean that the right to object to any evidence derived from an unpublished official record relating to affairs of State had been for ever waived and asno affidavit had been filed it mightbe that a legitimate inference could be made that the Minister orthe Head of the Department concerned permitted the production of the document or evidence being given derived from it, if there was no other circumstance. If the statement made by the witness that the document was a secret one and that he had nobeen permitted by the Head ofthe Department to produce it, was not really an objection to the production of the document which could be taken cognizance of by the Court under s. 162 of the Evidence Act, it was an intimation to the Court that the Head of the Department had not permitted the production of the document in Court or evidence derived from it being given.Whatever else the statement might indicate, it does not indicate that the Head ofthe Department had permitted the production or disclosure of the document. [355D-F] (2) Section 123 enjoins upon the Court the duty to see that no oneis permitted to giveany evidence derivedfrom unpublished official records relating to affairs of State unlesspermitted by the officer atthe Head ofthe Department. The Court therefore, had a duty not to permit evidence derived from a secret document being given. Before the arguments were finally concluded and before the Court decidedthe question the Head of the Department filed an affidavit objecting to the production of the documentand statingthat the document in questionrelated to secret affairsof State, and the Court-should have consideredthe validity of that objection under s. 162 of the Evidence Act.

[355G-A; 356A-B] Crompton Ltd. v. Custom & Excise Commrs. [1972] 2 Q.B.102 at 134 and Conway v. Rimmar & Anr. [1968] UKHL 2; [1968] A.C. 910, referred to.

(3) There is no substance in the argument that sincethe Blue Book had been published in parts, it must be deemed to have been published as a whole, and, therefore, the document could not be regarded as an unpublished official record relating to affairs of, State. Ifsome parts ofthe document which are innocuous have been published, itdoes not follow that the whole document has been published.

Since the High Court did not inspect the Blue Book,the statement by the Court that the materials contained inthe file produced by the Superintendent of Policewere taken from the Blue Book was not warranted. [362B-C; E] (4) The mere label given to a document by the executive is not conclusive in respect of the questionwhether it relatesto affairs of State or not. If the disclosure of the contents of the document wouldnot damage public interest the executive cannot label it in such a manner as to bring it within the class of documents which are normally entitled to protection. [362E-F] 5(a) It is difficult to see how the Court can find, without conducting an enquiry as regards the possible effect ofthe disclosure ofthe document upon public interest, that a document is one relating toaffairs of State as, ex hypothesis, a document can relate to affairs of Stateonly if its disclosure will injure public interest.But in cases where the documents do not belong to the noxious classand yet their disclosure would be injurious to public interest, the inquiry to be conducted under s. 162 is an enquiryinto the validity of the objection that the document is anun- published official record relating to affairs of Stateand.

therefore, permission to give evidence derived from it is declined. [357H; 358A-B] (b) Section 162 visualises an inquiry into that objection and empowers the Court to take evidence for deciding whether the objectionis valid. TheCourt,therefore, has to consider two things : (i) whether the documentrelates to secretaffairsof State; and (ii) whether therefusal to permitevidence derived from it being givenwas in the public interest. [358C] 336 (c) Even though the Head of the Department refused to grant permission, it was open to the Court to go into the question after examining the document and find out whether, the disclosure ofthe document would be injurious to public interest and the expression “as be thinks fit” in the latter part of s. 123 need not deter the Court from decidingthe question afresh as s. 162 authorities the Court to determine the validity of the objection finally. [358F] State of Punjab v. Sodhi Sukhdev Singh [1960] INSC 196; [1961] 2 S.C.R.371, followed.

(d) When a question of national security is involvedthe Court may not be the proper forum to weigh thematterand that is the reason why a Minister’s certificate is taken as conclusive. As the executive is solely responsiblefor national security, including foreign relations, no other organ could judge so well ofsuch matters.Therefore, documents in relation to these matters might fall into a class which per se might require protection. [359B-C] (e) But the executive is not the organ solelyresponsible for public interest. There are other elements. Onesuch element is the administration of justice. The claim ofthe executive to exclude evidence is more likely to operate to subserve a partial interest, viewedexclusively from a narrowdepartmental angle. It is impossible for it tosee or give equal weight to another matter, namely, that justice shouldbe done and seen to be done. When there aremore aspects of public interest to be considered the Court will, with referenceto the pending litigation, be in a better position to decide where the weightof public interest predominates. It seems reasonable to assume that a Court is better qualified than the Minister to measure the importance of thepublic interest in the case before it.Oncecon- siderations of national security are left out. there are few matters of _public interest which cannot safely be discussed in public. [139C-D; F-G] Arguments for the Appellant The principle behind s. 123 is the overriding and paramount character of public interest and injury to public interest is the sole foundation of the section.In cases wherethe document in question obviously relates to affairs of State it is the duty of the Court to prevent the productionand admission of the document in evidence suo motu to safeguard publicinterest Matters of State referred to in the second clauseof s.162 are identical with affairs of State mentioned in s. 123. An objection against the production of document should be raised in the form of an affidavit by the Minister or the Secretary. When an affidavit was made by the Secretary, the Court may, in a proper case, requirethe affidavit of the Minister. If theaffidavit is found unsatisfactorya further affidavit may be called, and in a propercase the person making the affidavit should be summoned to face an examination to the relevant point.Here too this Court did not consider that any party can raise the objection and it is the duty of the Court to act suo moru in cases where the documents in question obviously relate to affairsof State. Therefore, the Court cannot hold an inquiryinto the possible injury to public interest.That is a matter for the authority to decide. But the Court is bound to holda preliminaryenquiry and determinethe validity of the objections which necessarilyinvolves an inquiry into the question as to whether the evidence relates to anaffair of State under s. 123. In thisinquirythe Court has todetermine the characterand class ofthe document. The provisions of s. 162 make a departurefrom Englishlaw in one material particular and that isthe authority given to the Court to hold a preliminary enquiry into the character of the document. Under s. 162 ofthe Evidence Act the Court has the overriding power to disallow a claim of privilege raised by the State in respect of an unpublished document pertaining to matters of State, but in its discretionthe Court will exercise its power only in exceptional circumstances when public interest demands, that is, when thepublic interestservedby the disclosure clearly outweighs that served by the nondisclosure. In this case the Chief Secretary filed an affidavitwhereasthe Minister would have done it. This claim of privilege is not rejected on account of this procedural defect.

Arguments for the Respondent in thepresent case the affidavit was not filed atthe relevant time,nor is it clear that the Secretary orthe Minister of the Department concerned ever applied their mind at the relevant time. The Supreme Court in Sukhdeo Singh’s case held that 337 the objection to the production or admissibility of document of which privilege is claimed, should be taken by himself by means of an affidavit. Section 162 of the EvidenceAct indicates thatthe objection should be filed on thedate which is fixed for the production of document so thatthe Court may decide the validity of such objection.Such objection must be by, means of an affidavit. In A mar Chand Butail v. Union of India the Supreme Court held that asthe affidavit wasnot filed, no privilegecouldbe claimed.

This Court also looked to the document and on merits itwas held that thedocument wasnot such document whose, disclosure was not in the public interest. On that ground also, the claim for privilege was disallowed. Inthe present case the question does not arise as the summonswas issued to the Head of the Department who was asked to appear in person or through some other officer authorised byhim for the purpose of giving-evidenceand for producing documents. The Head of the Department was, therefore, under obligation to comply with the summons of the Court and to file his affidavit if he wanted to claim privilege. The High Court was right in drawing inference from non-filing of the affidavitof the. Head of theDepartment that no privilege was claimed.The Court has a right to look to the document itself and take a decisionas towhetherthe document concerned was such which at all related toany affairsof the State.The Court has the power of having a judicial review overthe opinion of the Head ofthe Department.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1596 of 1974.

Appealby Special Leave from the Judgment andOrder dated the 20th March, 1974 of the Allahabad High Court in Election Petition No. 5 of 1971.

Niren De, Attorney General of India, B. D. Agarwala, and 0.

P. Rana, for the appellant.

Shanti Bhushan and J. P. Goyal, for respondent no. 1.

Yogeshwar Prasad, S. K. Bagga and S. P. Bagga for respondent no. 2.

The Judgment of A. N. Ray, C.J., A. Alagiriswami, R. S.

Sarkaria and N. L. Untwalia, JJ, was delivered by A. N. Ray, C.J. K. K. Mathew, J. gave his separate Opinion.

RAY, C.J.-Thisis an appeal by special leave fromthe judgment dated 20 March, 1974 of the learned Single Judge of the High Court at Allahabad, holding that no privilegecan be claimed by the Government of Uttar Pradesh under section 123 of the Evidence Act in respect of what is describedfor the sake of brevity to be the Blue Book summoned fromthe Government of Uttar Pradesh and certain documents summoned from the Superintendent of Police,Rae Bareli, Uttar Pradesh.

Shri Raj Narain, the petitioner in Eelection Petition No. 5 of 1971. in the High Court of Allahabad, made an application on 27 July, 1973 for summoning certain witnesses alongwith documents mentioned in the application. Thesummonswas inter alia for the following witnesses along with following documents First the Secretary, General Administration, State of Uttar PradeshLucknow or any officer authorisedby him was summoned to produce inter alia (a) circulars receivedfrom the Home Ministry and the Defence Ministry of the Union Government regarding the security and 338 tour arrangements of Shrimati IndiraNehru Gandhi,’the respondent in Election Petition for the tour programmes of Rae Bareli District on 1, 24 and 25 February., 1971 orany generalorderfor securityarrangement; and (b)All correspondencebetween the State Government andthe Government of India and between the Chief Minister andthe Prime Minister regarding Police arrangement for meeting of the Prime Minister by State Government and in regard to their expenses.

(a) Second, the Chief Secretary,: Government of Uttar Pradesh, Lucknow was also summoned along with inter alia the documents, namely, circulars received from the Home Ministry and Defence Ministry of the Union Government regardingthe security and tour arrangements of Shrimati Indira Nehru Gandhi for the tour programmes of Rae Bareli District for 1, 24 and 25 February, 1971; (b) All correspondence between the State Government and the Government of India and between the Chief Ministerand the Prime Minister, regardingthe arrangement of Police for the arrangement of meeting for the Prime Minister by State Government and in regard to their expenses.

Third, the Head Clerk of the office of the Superintendent of Police of District Rae Bareli was summoned along with inter alia the following (a) all documents relating to thetour programof Shkimati Indira Nehru Gandhi of DistrictRae Barelifor 1 and 25 February, 1971; (b) all the documents relating to arrangement of Police and other security measures adopted by the Police and all documents relating to expenses incurred on the Police personnel, arrangements of the Police, arrangements forconstructions of Rostrum, fixation of loudspeakers andother arrangements through Superintendent of Police, District Rae Bareli.

On 3 September, 1973the summons was issued tothe Secretary, General Administration. The summons was endorsed to the Confidential Department by the General Department on 3 September, 1973 as will appear from paragraph 5 ofthe affidavit of R. K. Kaul, Commissionerand Secretaryin- charge.On 5 September, 1973 there was an application by the Chief Standing Counsel on behalf of the Chief Secretary, Uttar Pradesh, Lucknow for clarification to the effectthat the Chief Secretary is not personally required to appear pursuant to the summons. The learned Judge made an order on that day that the Chief Secretary need not personally attend and that the papers might be sent through some officer.On 6 September,1973 S. S.Saxena,UnderSecretary, Confidential Department, was deputed by R. K.Kaul,Home Secretary as well as Secretary, Confidential Department, to go tothe High Court with the documents summoned and to claim privilege. This will appear from the application of S. S. Saxena dated 19 September, 1973.

In paragraph 4 of the said application it is stated that in compliance with the summons issued by the High Courtthe Home Secretary deputed the applicant Saxena to go tothe Court with the documents summoned withclearinstructions that privilegeis to be claimed under section 123 ofthe Evidence Act in regard to the documents, namely, the Booklet issued by the Government of India containing Rules and 339 Instructions for the protection of the Prune Ministerwhen on tour and in travel, and the correspondence exchanged between the two Governments and between the Chief Minister, U.P. and thePrime Ministerin regard tothe Police arrangements for the meetings of the Prime Minister.

Saxena was examined by the High Court on 10 September, 1973.

On 10 September, 1973 there was an application on behalf of the Election Petitioner that the claim of privilege by Saxena evidence be rejected.In theapplication it is statedthat during the course of his statement Saxena admitted thatcertain instructions were. issued bythe CentralGovernment for the arrangement of Prime Minister’s tour which are secret and hence he is not in a position to file those documents.The witness claimed privilege in respectof that document. It is stated by the election petitioner that no affidavit claiming privilege hasbeen filed by the Head of the Department and that the documents do not relate to the affairs of the State.

On 11 September, 1973 there was an order as follows.The application of the election petitioner for rejection ofthe claim for privilege be put up for disposal. The arguments might take some time and therefore the papers should be left by Saxena ina sealed cover in the Court. In casethe objection would be sustained, the witness Saxena. would be informed to take back the sealed cover.

On 12 September, 1973 an application was filed by Ram Sewak Lal Sinha on an affidavit that the Superintendent of Police.

Rae Bareli claimed privilegeunder-section123 ofthe Evidence-Act. The witness was discharged. On behalf of the election petitioner it was said that an objection would be filed to make a request that the Superintendent of Police, Rae Bareli be produced before the Court for cross exami- nation.The election petitioner filed the objection tothe affidavit claiming privilege by theSuperintendentof Police, Rae Bareli.

On 13September, 1973 the learnedJudge orderedthat arguments on the question of privilege would be heard on 19 September, 1973. S.S. Saxena filed anapplication supported by an affidavit of R. K. Kaul. The deponent R. K.

Kaul in his affidavit affirmed on 19 September,1973 stated that the documents summoned are unpublished official records relating to affairs of the State and their disclosurewill be prejudicial to public interest for the reasons setout therein. The secrecy of security arrangement was one of the reasons mentioned. Another reason was that arrangements of the security of the Prime Minister,the maintenance of public order and law and order on the occasion of the visits of the Prime Minister are essentially in nature such that to make them public would frustrate the object intended to be served by these Rules and Instructions.

On 20 September 1973 the case was listed for argumentsfor deciding preliminaryissuesand onthe questionof privilege. on 20 September, 1973 an objection was madethat the Chief Standing Counsel had no locus standi to file an objection claiming privilege. on 21 September, 1973the arguments in the matter of privilege were heard. On 24 September, 1973 further arguments on the question of 340 privilege were adjourned until 29 October,1973.23 October, 1973 was holiday. On 30 October, 1973 arguments were not concluded.On 30 October,1973 the Advocate Generalappeared and made a statement regarding the Blue Book to the effect that the witness Saxena was authorised by the Head of the Department R. K. Kaul, Home Secretary to bring the Blue Book to the Court and the documents summoned by the Court and the Head of the Department did not permit Saxena to file the same. The witness was permitted toshow to the Court if the Court so needed. Further arguments on the question of privilege were heard on 12, 13 and 14days of March, 1974 The judgment was delivered on 20 March, 1974.

The learned Judge on 20 March, 1974 made an order as follows “No privilege can be claimed inrespect of three sets of paper allowed to be produced.

The three sets of papers are as follows.The first set consists of the Blue Book, viz., the circulars regarding the securityarrangements of the tour programme of Shrimati Indira Nehru Gandhi and instructions received from the Government of India and the Prime Minister’s Secretariat on the basis of which Police arrangement forconstructions of Rostrum, fixationofloudspeakersand other arrangements were made, and the correspondence between the State Government & the Government of India regarding the police arrangements for the meetings ofthe Prime Minister.The second set also relates to circulars regarding securityand tour arrangementsof Shrimati Indira Nehru Gandhi for the tour programme of Rae Bareli and correspondence regardingthe arrangement of police for the meetings ofthe Prime Minister.The third set summonedfrom the Head Clerk of the Office ofthe Superintendent of Police relates to the same.” The learned Judge expressed the following view. Under section 123 of the Evidence Act the Minister or the head of the department concerned must file an affidavit at the first instance. No such affidavitwas filed atthe first instance. The Court cannot exercise duty under section123 of the Evidence Act suo motu.The court can functiononly after a privilege has been claimed by affidavit. It is only when permission has been withheld under section 123 ofthe Evidence Act that the Court will decide. Saxena inhis evidence did not claim privilege even after theLaw Department noted in the filethat privilege should be claimedSaxena was allowed to bring the Blue Book without being sealed in a cover. The head of the department should have sent the Blue Book under sealed cover along with an application and an affidavit to the effect that privilege was being claimed. No privilege was claimed at the first instance.

The learned Judge further held as follows. The Blue Book is not anunpublished official record within themeaning of section 123 of the Evidence Act because Rule 71(6) ofthe Blue Book wasquotedby a Member of Parliament.The Minister did not object or deny they correctness of’the quotation. Rule 71(6) of the Blue Book has been 341 filed in the election petition by therespondent tothe election petition Extracts of Rule 71(6) of the BlueBook were filed by the Union Government in a writ proceeding. If a portion of the Blue Book had been disclosed, it was not an unpublished official record. The respondent to the election petition hid no right to file even a portion of theBlue Book in support of her defence.When a portion of theBlue Book had been used by her in her defence it cannot besaid that the BlueBook had not been admitted in evidence.

Unless the Blue Book is shown to the election petitioner he cannot show the correctness or otherwise of the said portion of the Blue Book and cannot effectively cross-examinethe witnesses or respondent to the election petition. Even if it be assumed that the Blue Book has not beenadmitted in evidence and Kaul’s affidavit could be takeninto consi- deration, theBlue Book is not an unpublished official record.

With regard to documents summoned from the Superintendent of Policethe High Court said that because these owe their existence to the Blue Book which is not a privileged document and the Superintendent of Police did not giveany reason why the disclosure of the documents would be against publicinterest, the documents summonedfromthe Superintendentof Police cannot beprivilege documents either.

The High Court further said that in view of the decisions.

of this Court in State of Punjab v. Sodhi Sukhdev Singh(1);

Amar Chand Butail v. Union of India(2) andthe English decision in Conway v. Rimmer & Anr. (3) the Court has. power to inspect the document regarding which privilegeis claimed. But because the Blue Book is not anunpublished official record, there is no necessity to inspect theBlue Book.

The English decisions in Duncan v. Cammell Laird & Co.(4);

Conwayv. Rimmer & Anr. (supra); and Rogers v.Home Secretary(5) surveyedthe earlier law on the rule of exclusion of documents from production on the ground of public policy or as being detrimental to the public interest or service. In theCammellLairedcase (supra)the respondent objected to produce certain documents referred to in the Treasury Solicitors letter directing the respondent not toproduce the documents.It was stated that ifthe letter was not accepted as sufficient to found a claim,for privilege theFirst Lord ofAdmirality would make an affidavit. Hedid swear an affidavit. On summonsfor inspection ofthe documents it was held thatit isnot uncommon in modern practice for the Minister’s objection to be conveyed to the Court at any rate in the first instance by an official of the department who produces a certificate which the Minister has signed stating what is necessary. If the Court is not satisfied by this method theCourtcart request the Minister’s personal attendance.

(1) (1961] 2 S.C.R. 371.(2) A.I.R. 1964 S.C.,1658.

(3) [1968] 1 A.E.R- 874 : [1968] UKHL 2; [1968] A C 910.

(5) [1973] AC 388.

(4) [1942] A C- 642.

342 Grosvenor Hotel, London(1) group of cases turned on an order for mutual discovery of documents and an affidavit ofthe respondent, the British Railway Board, objecting to produce certaindocuments. The applicant challenged thatthe objection of the respondent to produce the document wasnot properly made.The applicant asked for leave to cross- examinethe Minister.The Minister was ordered to swear a further affidavit. That order of the learned-Chamber Judge was challenged in appeal. The Court of Appeal refused to interfere withthe discretion exercised bythe Chamber Judge.The Ministerfiled a further affidavit.That affidavit was again challenged before the learned Chamber Judge as not being in compliance with, the order. Itwas, held that the affidavit was in compliance withthe order.

The learned Judge held that Crown privilege is not merely a procedural matter and it may be enforced by the courts in the interest of the State without the intervention ofthe executive, though normally the executive claims it.The matterwas taken up to the Court of Appeal, which heldthe order of the Chamber Judge. It was observed that the nature of prejudice to the public interest should be specified in the Minister’s affidavit except in case where the prejudice is so obvious that it would be unnecessary to state it.

in the Cammell Laird case (supra) the House ofLordssaid that documents are excluded from production ifthe public interest requires that they should be withheld. Two tests were propounded for such exclusion. The first is in regard to the contents of the particular document. The second is the fact thatthe document belongs to a class which on grounds of public interest must as a class be withheldfrom production. This statement of law in the Cammell Laird case (supra)was examined in Conway v. Rimmer & Anr. In Conway v. Rimmer & Anr. (supra) it was held thatalthough an objection validly taken to production on thegroundthat this would be injurious to the public interest is conclusive it isimportant to remember that the decisionruling out such document is the decision of the Judge. The reference to ‘class’ documents in the Cammell Laird case (supra)was said in Conway v. Rimmer & Anr. (supra) to be, obiter.The Minister’s claim of privilege in theCammellLairdcase (supra) was at a time of total war when the slightest escape to thepublic of the most innocent details ofthe latest design of submarine founders might be a source of danger to the State.

In Conway v. Rimmer & Anr. (supra) the test propounded in Asiatic Petroleum Co. Ltd. v. Anglo Persian Oil Co. Ltd.(2) was adopted that the information cannot be disclosed without injuryto the public interest and- not that the documents are confidential or official.With regard to particular class of documents for which privilege was claimed itwas said that the Court would weigh in the balance on theone side the public interest to be protected and on the other the interest of the subject who wanted production of some (1) (1963) 3 A E R 426:(1964) 1 A E R 92 :(1964) 2 A E R 674 and (1964) 3 A E R 354.

(2) [1916] 1 K B 830.

343 documents which he believed would support his own or defeat his adversary’s case. Both were said in Conway v. Rimmer & Anr. case (supra) to be matters of public interest.

In this background it was held in Conway v. Rimmer &Anr.

(supra)that a claim made by a Minister on thebasisthat the disclosure of the contents would be prejudicial tothe publicinterest must receive the greatest weight; buteven here the Minister should go as far as he properlycan withoutprejudicing the public interest in saying whythe contents require protection.In Conway v. Rimmer &Anr.

(supra)it was said “in such cases it would be rare indeed for the court to overrule the Minister but it has the legal power to do so, first inspecting the documentitselfand then ordering its production”.As to the “class” cases it was said in Conway v. Rimmer & Anr.(supra) thatsome documents by their Very nature fall into aclass which requires protection.These are Cabinet papers, Foreign Officedispatches, the security of the State,high level interdepartmental minutes and correspondence and documents pertaining tothe general administration ofthe naval, military and air force services. Such documents would be the subject of privilege by reason of their contentsand also by their ‘class’.No catalog can be compiled forthe ‘class’ cases.The reason is that it would be wrongand inimical to the functioning of the public service ifthe publicwere to learn of these high level communications, howeverinnocent of prejudice to the Statethe actual comments of any particular document might be,.

In Rogers v. Homer Secretary (supra) witnesses were summoned to give evidence and to produce certain documents. The Home Secretary gave a certificate objecting to the production of documents. There was an application for certiorari to quash the summons issued to the witnesses. On behalf of theHome Secretary it was argued that the Court couldof itsown motionstop evidencebeing given for documents to be produced. The Court said that the real question was whether the public interest would require that the documents should not be produced. The Minister is an appropriate person to assertpublic interest. The public interest which demands that the evidence be withheld has to be weighed againstthe public interest in the administration of justice that courts shouldhave the fullest possible access to all relevant material. Once the public interest is found to demandthat the evidence should be withheld then the evidence cannot be admitted. In proper cases the Court will exclude evidence the productionof which, it sees iscontrary to public interest. In short, the position in law in an–‘ is that it is ultimately for the court to decide whether or not it is in the public interest that the documentshouldbe disclosed. Anaffidavit is necessary. Courts havesome times held certain class of documents and information to be entitled in the public interest to be immune from disclosure.

Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reasonfor its rejection. Admissibility presupposesrelevancy.

Admissibility also denotes the absence of any applicable rule of exclusion. Facts should not be received in evidence unless they are both relevant and admissible.

344 The principalrules of exclusion under which evidence becomesinadmissible are two-fold.First,evidence of relevant facts is inadmissible when its reception offends againstpublicpolicy or a particular rule oflaw.Some mattersare privileged from disclosure. A party is some- times estoppedfrom proving facts and these factsare therefore inadmissible. The exclusion of evidenceof opinionand of extrinsic evidence of the contents ofsome documents is again a rule of law. Second, relevant facts are, subject to recognised exceptionsinadmissible unless they are proved by the best or the prescribed evidence.

A witness, though competent generally to give evidence,may in certain cases claim privilege as a ground for refusing to disclose matter which is relevant to the issue.Secrets of state,papers, confidential official documentsand communicationsbetween .he Government and its officersor- between such officers are privileged from production onthe groundof public policy or as beingdetrimental tothe public interest or service.

The meaning of unpublished official records was discussed in the Cammell Laird case (supra). It was argued-therethat the documents could not be withheld because-they had already been produced before the Tribunal of Enquiry into theloss of the “Thetis’. The House of Lords held that if a claim was validly made in other respects to, withhold documents in connection with the pending action on the, ground ,of public policyit would not be defeated by thecircumstancesthat they had beengivena limited circulation at such an enquiry, because special precautions might have been taken to avoid injury and the tribunal’s sittings might be secret.

In Conway v. Rimmer & Anr. (supra) it was said that it would not matter that some details of a document might havebeen disclosed at an earlier enquiry. It was said that ifpart of a documentis innocuous but part of it isof such a naturethat its disclosure would be undesirable it should seal up the latter part and order discovery of the rest, provided that this would not give a distorted or misleading impression.

This Court in Sukhdev Singh’s case (supra) held thatthe principle behind section 123 of the EvidenceAct isthe overriding and paramount character of public interestand injuryto public interest is the sole foundation ofthe section. Section 123 states that no one shall be permitted to give any evidence derivedfrom unpublished official recordsrelating to_ any affairs of State except withthe permission ofthe Officer at the headof the department concerned, who shall give or withhold such permission as he thinksfit. The expression “Affairs ,of State” in section 123 was explained with reference to section162 ofthe Evidence Act.Section 162 is in three limbs.The first limb states that a witness summoned to producea document shall, if it is in his possession or power, bring it tothe Court,notwithstanding any objection which there may be to its production or to its admissibility.The validity of an such objection shall decided by the Court. The secondlimb of section 162 says that the, Court,, if it sees fit,may ‘inspect the document unless it refers to matters of state, or take other evidence to enable it to determine onits admissibility.’the third limb 345 speaksof translation of documents which is not relevant here. In Sukhdev Singh’s case (supra) this Court saidthat the first limb of section 162 required a witness to produce a document tobring it to the Courtand then raise an objection against its production or its admissibility.The secondlimb refers to the objection both as to production and admissibility. Matters of State in the second limb of section 162 were said by this Court in Sukhdev Singh’scase (supra)to be identical with the expression”affairs of State?’ in section 123.

In Sukhdev Singh’s case (supra) itwas said that an objection against the production of document should bemade in the form Of an affidavit by the Minister orthe Secretary. When an affidavit is made by the Secretary,the Court may, in a proper case, require the affidavit ofthe Minister. Ifthe affidavit is found unsatisfactory, a furtheraffidavit may be called. In a proper case,the personmakingthe affidavit can be summonedto face an examination. In Sukhdev Singh’s case. (supra)this Court laid down these propositions. First, it is a matter for the authority to decide whether the disclosure would cause injury to public interest. The Court would enquire into the question as to whether the evidence sought tobe excluded from production relates to an affair of State.The Court has todetermine the character and class of documents.

Second, the harmonious construction of sections 123 and162 shows there is a power conferred on the Court under section 162 to hold a preliminary enquiry into the character ofthe document. Third, the expression “affairs of State” in section123 is not capable ofdefinition.Many illustrations are possible. “If the proper functioning of the public service would be impaired by the disclosure of any document or class of documents such document orsuch class of documents may also claim the status of documents relating to public affairs’.Fourth, the second limb of section162 refers to the objection both as tothe production andthe admissibility of the document. Fifth, reading sections 123 and 162 together the Court cannothold an enquiry into the possible injury to public interest which may result from the disclosure of document in question.

That is a matter for the authority concerned to decide.But the Court is competent and is bound to hold apreliminary enquiry and determine the validity of the objection toits production. That necessarily involves an enquiry intothe question as to whether the evidence relates to an affairs of State under section 123 or not.

in Sukhdev Singh’s case (supra) this Court said thatthe power to inspect the documents cannot be exercised where the objection relates to a documents having reference to matters of State and it is raised under section 123 (See (1961) 2 S.C.R.at page 839). The view expressed by this Court is that the Court is empowered to take other evidence to enable it to determine the validity of the objection.The Court, it is said, can take other evidence in lieu of inspection of the document in dealing with a privilege claimed or an objection raised even under section 123. It is saidthat the Court may take collateral evidence to determine the character or class of documents. In Sukhdev Singh’scase (supra) it has also been. said that if the Court 346 finds that the document belongs to what is said to bethe noxious class it will leave to the discretion of the head of the department whether to permit its production or not.

The concurring views in Sukhdev Singh’s case (supra)also expressed the opinion that under no circumstances the court can inspect such a document or permit giving secondary evidence of its contents.

In Amar Chand Butail’s case (supra) the appellant called upon the respondents the Union and the Stateto produce certain documents. The respondents claimed privilege.This Court saw the documents and was satisfied that the claim for privilege was not justified.

In Sukhdev Singh’s case (supra) the majorityopinionwas given by Gajendragadkar, J. In Amar Chand Butail’scase (supra)Gagendragadkar, C.J.spoke for theCourt in a unanimous decision. In the later case this Court sawthe document. In Sukhdev Singh’s case (supra) this Courtsaid that an enquiry would be made by the ‘Court as to objections to produce document. It is said thatcollateral evidence could be taken. No oral evidence can be given of thecon- tents of documents. In finding out whether the document is a noxious document which should be excluded from production on the .ground that it relates to affairs of State, itmay sometimes be difficult for the Court to determinethe character of the document without the court seeing it.The subsequent Constitution Bench decision inAmar Chand Butail’s case- (supra) recognised the power of inspection by the Court of the document.

In Slob-Divisional Officer, Mirzapur v. Raja Sri Niwas Prasad Singh(1) this Court in a unanimous Constitution Bench decision askedthe Compensation Officer to decide inthe light of the decisions of this Court whether the claimfor privilege raised by the State Government should be sustained or not.This Court gave directions for filing of affidavits by the heads of the department. This direction was given about 10 years after the State Governmenthad claimed privilege in certain proceedings. Inthe Sub-Divisional Officer; Mirzapur case (supra) therespondent filed objections todraftcompensationassessment rolls.

Compensation was awarded to the respondent.The State appliedfor reopening of the objection cases.The respondent asked for production of some documents.The State claimed privilege. The District Judge directedthat compensation cases should be heard bythe Sub-Divisional Officer. Therespondent’s application for discoveryand production was rejected by the Compensation Officer.The District Judge thereafter directed that compensation cases shouldbe heard bythe Sub-Divisional Officer.The respondent again filed applicationsfor discoveryand inspection of these documents.The State Government again claimedprivilege. The respondent’sapplicationswere rejected. Therespondent then filed a petition under Article 226 of theConstitution for a mandamusto Compensation Officer to bear and determine the applications.

The High Court said (1) [1966] 2 SC R- 970, 347 that the assessment rolls had become final and could not be opened.This Court on appeal quashed the order of theSub Divisional Officer whereby the respondent’s applications for discovery and production had been rejected and directed the, Compensation Officer to decide the matter on a proper affidavit by the State.

On behalf of the election petitioner it was said thatthe firstsummonsaddressed totheSecretary, General Administration required him or an officer authorised byhim to give evidence and to produce the documents mentioned therein. Thesecondsummons was addressed to theHome Secretary to give evidence on 12 September, 1973. The third summonswas addressed to the Chief Secretary to giveevi- dence on 12September, 1973 and to produce certain documents. The first summons, it is said on behalf ofthe election petitioner, related to the tour programmes ofthe Prime Minister.The election petitioner, it is said, wanted the documents for two reasons.First, that these documents would have a bearing on allegations of corrupt practice, viz., exceeding the prescribed limits of election expenses.

The, electionpetitioner’scaseis that rostrum, loudspeakers, decoration would be within the expenditure of the candidate. Second, the candidate had the assistance of the Gazetted Officer for furthering the prospects ofthe candidate’s election.

On behalf ofthe election petitioners it is saidthat objection was taken with regard to certain documents inthe first summons on the ground that these were secret papers of the State, but no objection was-taken by an affidavit by the head of the department. With regard to the other documents which the Superintendent of Police was called to produce the contention on behalf of the election petitioner is thatthe Superintendentof Police is not the head of the department and either the Minister orthe Secretary shouldhave affirmed an affidavit.

Counselon behalf of the election petitionerput inthe forefront that it was for the Court to decidewhetherthe disclosure and production of documents by theState would cause prejudice to public interest or whether non-disclosure of documents would cause harm to the interest of the subject and tothe public interest that justice should bedone betweenlitigating parties. This submission was amplified by counsel for the election petitioner by submitting that it had tobe found out at what stage and itwhat manner privilege was to be claimed and in what circumstancesthe Court could look into the document to determine the validity of the claim to privilege raised under section123.The, other contention on behalf of the election petitionerwas that if a part of the document was made public by lawful custodian of the document the question waswhetherthe document could stillbe regarded a-, anunpublished document. It was also said if there was a long document and if parts thereof were noxious and therefore privileged whether the unanimous part could still be brought onthe record of the litigation.

348 Counselfor the election petitioner leaned heavily onthe decision in Conway v. Rimmer & Anr. (supra) that the Court is tobalance the rival interests of disclosure andnon- disclosure.

the first question which falls for decision is whetherthe learnedJudge was right in holding that privilege wasnot claimed by filing an affidavit at the first instance.

Counsel on behalf of the election petitioner submittedthat in a case in which evidence is sought to be led in respect of matters derived from unpublished recordsrelating to affairsof State at a stage, of the proceedings whenthe head of the department has not come into picture and has not had an opportunity of exercising discretion under section 123 to claim privilege it will be the duty of the court. to give effect to section 123 and prevent evidence beingled till the head of the department has had the opportunity of claiming privilege. _But in case in which documents are sum- moned,it is said by counsel for the electionpetitioner, the opportunity of claiming privilege in a legal mannerhas already been furnished when summons is received by thehead of thedepartment and if he does not claim privilegethe court is under no legal duty to ask him or to givehim another opportunity.

The documents in respect of which exclusion from production is claimed are the blue book being rules andinstructions for the protection of the Prime Minister when on tour and in travel.Saxena came to court and gave evidence thatthe blue book was a document relating to the affairs of State and was not to be disclosed. TheSecretary filed an affidavit on 20 September, 1973 and claimed privilege in respectof the blue book by submitting that the document relatedto affairs of Stateand should, therefore, be excluded from production.

The several decisions to which reference has alreadybeen made establishthat the foundationof thelaw behind sections 123 and 162 of the Evidence Act is the same as in Englishlaw. It is that injury to public interest isthe reason for the exclusion from disclosure of documents whose contents if disclosedwould injure public and national interest. Public interest which demands thatevidence be withheld is to be weighed against the public interest in the administrationof justice that courts should havethe fullestpossible access to all relevant materials.When publicinterest outweigh’s the latter, the evidence cannot be admitted. The court will proprio motu exclude evidence the production of which is contrary to public interest.It is inpublicinterest thatconfidentiality shallbe safeguarded. The reason is that such documents become subject to privilege by reason of their contents Confidentialityis not a head of privilege. It is a consideration to bear in mind.It is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of class which demand protection. (See Rogers v.Home Secretary (supra) at p. 405).To illustrate the class of documents would embrace Cabinet papers, Foreign Office dispatches, papers regarding the security to the Stateand high level interdepartmentalminutes. In the ultimate analysis the contents of the 349 document are so described that it could be seen at once that in thepublic interest the documents are to be withheld.

(See Merricks and Anr. v. Nott Bower & Anr.(1).

It is now the well settled Practice in our country that an objection is raised by an affidavit affirmed by the head of the department. The Court may also reunite aMinister to affirman affidavit. That will arise in the course ofthe enquiryby the Court as to whether the document should be withheld from disclosure. If the Court is satisfiedwith the affidavitevidence, that the documentshouldbe protected in public interest from production the matter ends there.If the Court would yet like to satisfy itselfthe Court may see the document. This will be the inspection of the, document by the Court. Objection as to production as well as admissibility contemplated in section 162 ofthe Evidence Act is decided by the Court in theenquiry as explained by this Court in Sukhdev Singh’s case (supra).

In thefacts and circumstances of the present case it is apparent that the affidavit affirmed by R. K.Kaul, Chief Secretary on 20 September, 1973 is an affidavit objecting to the productionof the documents. The oralevidence of Saxenaas well as the aforesaid affidavitshowsthat objection was taken at the first instance.

This Court has said that where no affidavit was filed an affidavit could be directed to be filed later on.The Grosvenor Hotel, London group of cases (supra)in England shows that if an affidavit is defective an opportunitycan be given to file a better affidavit. It is for the court to decide whether the affidavit is clear in regard to objection about the nature of documents. The Court can direct further affidavit in that behalf. If the Court is satisfiedwith the affidavitsthe Court will refuse disclosure. Ifthe Court in spite of the affidavit wishes toinspectthe document the Court may do so.

The next question is whether the learned Judge was right in holdingthat the blue book is not an unpublished official record. On behalf of the election petitioner, it was-said that a part of the document was published by the Government, viz., paragraph 71(6) in a writ proceeding. It is also said that the respondent to the election petition referred to the blue book in the answer filed in the Court. in the Canmell Laird case, it was said that though some of the papershad been producedbefore the Tribunal ofEnquiryand though reference was made to those papers in the Enquiry Report yet a privilege could be claimed. Two reasons were given.One is that special precaution may have been taken to avoid publicinjuryand the otheris that portions ofthe Tribunal’s sittings may have been secret. Inthe present case, it cannot be, said that the blue book is a published document. Any publication of parts of the blue book which may be described the innocuous part of the document will not render the entire document a published one.

(1) [1964] 1 A E R 717 8-423SCI/75 350 For these reasons, the judgment of the High Court isset aside.The learned judge will consider theaffidavit a firmedby R.K. Kaul. The learned Judge will give, an opportunity to the head of the department to file affidavit in respect of the documents summoned to be produced bythe Superintendent of Police. The, learned Judge, will consider the affidavits. If the learned Judge will be satisfied On the affidavits that the documents require protectionfrom production, the matter will end there.If the learned Judge will feel inclined in spite of the affidavits to inspect the documents to satisfy himself about the real nature ofthe documents, the learned Judge will be pleased to inspectthe same and pass appropriate orders thereafter,. If the Court will find oninspection that any part of a document is innocuous in the sense that it does not relate to affairs of State the Court could order disclosure of the innocuous part provided thatwould not give a distorted or misleading impression. Where the Courtordersdisclosure ofan innocuous partas aforesaid the Court should seal upthe other parts which are said to be noxious because their disclosure would be undesirable. Parties will pay andbear their own costs.

MATHEW,J. During the trial of the election petition filed by respondent No. 1 against respondent No. 2, respondent No.

1 applied to the Court for summons to the Secretary, General Administrationand the Chief Secretary, Government ofU.P.

and the Head Clerk, Office of the Superintendent of Police, Rai Bareily, for productionof certain documents.In pursuance to summonsissuedto theSecretary, General Administration and the Chief Secretary, Government of U.P., Mr. S. S. Saxena appeared in court with the documentsand objected to produce:

(1) Ablue book entitled”Rulesand Instructions forthe Protection of Prime Minister when on tour or in travel;

(2) Correspondence exchanged between the two governments viz., the Government of Indiaand the Government of U.P. in regard to the police arrangements forthe meetings of the Prime Minister; and (3) Correspondence exchanged betweenthe Chief Minister, U.P. and the Prime Minister in regard to police arrangements for the meetings of the latter;

without filing an affidavit of the Minister concerned or of the head of the department.

Saxenawas examined by Court on 10-9-1973. The 1stres- pondent filed an application on that day praying that as 351 no privilege was claimed by Saxena, he should be directed to produce these documents. The Court passed an order on 11-9- 1973 that theapplication be put upfor disposal.As Saxena’s examination was not over on 10-9-1973, the Court kept the documents in a sealed cover stating that incase the claim forprivilege was sustained, Saxena would be informed so, that hecouldtake back the documents.

Examination of Saxena was over on 12-9-1973. On thatday, the, Superintendent of Police, RaiBareily, filedan affidavit claiming privilege in respect of the documents summoned from his office. The Court adjourned the argument in regard to privilege and directed that it be heardthe next day. On 13-9-1973 the Court adjourned the hearing to 14-9-1973 on which date the hearing was. again adjourned to 20-9-1973. On 20-9-1973, Saxena filed inCourtan application and the Home Secretary tothe Government of U.P., Shri R,K. Kaul, the head ofthe department in question an affidavit claiming privilege for the documents.

The argument was concluded on 14-3-1974 and the Court passed the order on 20-3-1974 rejecting the claims for privilege.

This appeal, by special leave, is against that order.

The first question for consideration is whetherthe privilege was lost as no affidavit sworn by the Minister in charge or the Head of the Department claiming privilegewas filed in the first instance.

In State of Punjab v. Sodhi Sukhdev Singh(1) this Court held that the normal procedure to be followed when an officer is summoned as witness to produce a document and when he takes a plea of privilege, is, for the Minister in charge orthe head of the department concerned to Me an affidavit showing that he had read and considered the document in respect of which privilege is claimed and containing the general nature of the document and the particular danger to which the State would be, exposed by its disclosure. According tothe Court, this was required as a guarantee. that the statement of theMinister or the head of the department whichthe Court is asked to accept is one that has not been expressed casually or lightly or as a matter of departmental routine, but isone put forward withthe solemnitynecessarily attaching to a sworn statement.

In response to the summons issued to the Secretary, General Administration and the Chief Secretary, Government of U.P., Saxeiia was deputed to take the documents summoned tothe Court and he stated in his evidence that he could not Me the blue book as it was marked ,secret, and ashe wasnot permitted by the Home Secretary to produce it in Court.As no affidavit of theMinister or of the Head ofthe Department was filed claiming Privilege under s. 123 ofthe Evidence Act in the first instance, the Court said thatthe privilege was lost and the affidavit filed on 20-9-1973 by Shri R. K. Kaul, Home Secretary, claiming privilege, was of no avail. The Court distinguished the decision in Robinson v. State of South Australia(2) where their Lordships ofthe Privy Council said that it would be contrary to the public (1) [1960] INSC 196; [1961] 2 S C R 371.

(2) AIR 1931 PC 254.

352 interest to deprive the state of a further opportunity of regularising its claim for protection by producing an affidavit of the description already indicated by saying that these observations have no application as,no affidavit, albeit defective, was filed in this case inthe first instance.The Court further observed that it was only when a proper affidavit claiming privilege wasfiledthat the Court hasto find whether the documentrelated to unpublished official record of affairs of State, that a duty was cast on the Minister to claim privilege and that,duty could not be performed by Court, nor would the Court be justified in suo motu ordering that the document should be disclosed. The Courtthen quoted a passage fromthe decision of this Court in Sodhi Sukhdev Singh’s case (supra) to theeffect that court has no power to holdan enquiry into the possible injury to the public interest whichmay resultfrom the disclosure of the document asthat is a matterfor the authority concerned to decide but thatthe court is competent and indeed bound to hold apreliminary enquiry and determine the validity of the objection and that necessarily involves an enquiry into ‘the question whether the document relates to an affair of state under s. 123 or not.

The second ground on which the learned judge held that no privilege could be claimed in respect of the, Blue Bookwas that since portions of it had in fact been published, it was not an unpublished official record relating toaffairs of state.He relied upon three circumstances to showthat portions of the Blue Book were published. Firstly,the Union Government had referred to a portion of it (Rule 71/6) in an affidavit filed in Court.Secondly, respondent No. 2 had obtained a portion of the Blue Book (Rule 71/6) andhad produced it in court along with her written statement in the case and thirdly that Shri Jyotirmoy Bosu, a Member of Parliament had referred tothis particular rulein Parliament.

The learned Judge, however, did notconsider or decide whetherthe Blue Book related to any affair of state, perhaps, in view of his conclusion that itwas not an unpublished official record.

Section 123 of the Evidence Act states from unpublished official records relating to any affairs ofstate,except withthe permission of the Officer at the head ofthe department concerned, who shall giveor withhold such permission as be thinks fit.” Section 162 of the Evidence Act provides that when a witness bringsto court a document in pursuance tosummonsand raises an objection to its production or admissibility,the Court has to- determine the validity of the objection to the production or admissibility and, for so doing, the court can inspectthe documentexcept in the case ofa document relating to affairs of state or, take such other evidence as may be necessary to determine its admissibility.

353 Having regard to the view of the High Court that since the’.

privilege wasnot claimed in the first instance by an affidavit of the Minister or of the head of the department concerned, the privilege could not thereafterbe asserted and that no inquiry into the question whether the disclosure of thedocument would injure public interest can becon- ductedby thecourtwhen privilegeis claimed, it is necessary to see the scope of s. 123 and s.162 ofthe Evidence Act.

The ancient proposition that the public has a right to every man’s evidence has been reiterated by the Supreme Court of U.S.A. in its recent decision in United States v. Nixon.

This duty and its equal application to the executivehas never been doubted except in cases where it can legitimately claim that the evidence in its possession relates to secret affairsof state and cannot be disclosed without injury to public interest.

The foundationof the so-called privilege is thatthe information cannot be disclosed without injury to public interest and not that the documentis confidential or official which alone is no reason for its non-production(1).

In Durcan v. Cammel Lavid & Co.(2) Lord Simon saidthat withholding ofdocuments on the ground thattheirpub- lication wouldbe contrary to the public interest isnot properly to be regarded as a branch of the law of privilege connected with discovery and that ‘Crown privilege’ is,for this reason, not a happy expression.

Dealingwith the topics of exclusion of evidence onthe groundof estate interest, Cross says that this head of exclusion of evidence differs from privilege, as privilege can be waived, but that an objection on the score of public policy must be taken by the Judge if it is not raised by the parties or the Crown.(3) Phipsondealswith the topic under the general category “Evidence excluded by public policy”.He then lists as an entirely separate category: “Facts excluded byprivilege,” and deals there with the subject oflegalprofessional communication, matrimonial communication, etc., topics dealt with by sections 124-131 of the Evidence Act(4).

A privilege normallybelongs to the partiesand can be waved.But where a fact isexcluded fromevidence by considerations of public policy, there is no power to waive in the parties see in this connection Murlidhar Aggarwal v.

State of U.P. (5).

Lord Reid in Beg v. Lewas(6) said that the expression ‘Crown privilege is wrong and may be, misleading and that there is no question of any privilege in the ordinary sense ofthe word, as the real question is whether the public interest requires that a document shall not be produced and, whether the public interest is so strong as to override (1) gee Asiatic Petroleum Company Ltd. v Anglo PersianOil Co. [1916] 1 K B 822, at 830; and Conway v Rimmer [1968] UKHL 2; (1968) 1 All ER 874, at 899.

(2) [1942] A– C 624.(3) “Evidence”, 3rd ed p 251.

(4) “see Phipson on Evidence” (5) [1974] 2 S7 C C 472, at 483.

(6) [1973] A C at, 388.

354 the ordinary right and interest of a litigant that he shall be able to Ibefore a court of justice all relevant evidence. In the same case, Lor Pearson observed thatthe expression ‘Crown privilege’ is not accur though sometimes convenient. Lord Simon of Claisdale observed in that case :

“…. .’Crown privilege’ is a misnomer and apt to be misleading.’It refers to the rule that certain evidence is hadmissible on the ground that its adduction would be contrary tothe public interest.It is not a privilege which may be waived by the Crown (see Marks v.

Bayfus, 25 Q.B.D. 494 at p. 500) or by anyone else. The Crown hasprerogatives,not previlege.” I am not quite sure whether, in this area, there wasany antithesi between prerogatives and privilege.I thinkthe source of this privilege was the prerogatives of the Crown.

“The source ofthe Crown’& privilegein relation to production of documents in asuit betweensubject andsubject (whether production is sought from a party or from some other) can, nodoubt,be traced tothe prerogative right to prevent the disclosure of State secrets, or evenof preventingthe escape of inconvenient intelligence, regarding Court intrigue. As is pointed out in Pollock and Maitland’s History of English Law(2nd ed., Vol. I, p. 5 17), “the King has power to shield those who do unlawful acts in his name, and can withdraw from the ordinary course of justice cases in which he has any concern. If the King disseises A and transfers the land to X, thenX when he is sued will say that he cannot answer without the King, and the action will be stayed until the King orders that it shall proceed.”We findsimilar principles applied to the non-disclosure of documents in the seventeenth and eighteenth centuries.In the report of Layer’s Case (1722), (16 How St.

Tr. p. 294) the Attorney General claimedthat minutes of the Lords of the Council should not be produced; and Sir John PrattL.C.J.sup- ported the claim, additing that “it would be for the disservice of the King to have these things disclosed”. We recall Coke’s useful principle: Nihil quodinconvenienceest licitum. It is true that in the preceding century the privilege was not upheld either in Strafford’s case (1640) 3 How, St. Tr. 1382, or in the case of Seven Bishops (1638) 12 How.

St. Tr. 183, but these decisions were made in peculiar circumstances.” [see “Documents Privilegedin Public Interest”(1)] But, with the growth of democratic government, the interest of theCrown in these matters developed intoand became identified with public interest.

(1) 39 Law Quarterly Rev. 476, at pp 476-477.

355 In the early days of the nineteenth century, when principles of ‘public policy’ received broad and generous interpretation we findthe privilegeof documentsrecognized onthe ground of public interest. At this date, public policy and the interest of the public were to all intents synonymous”.

(see “Documents Privilegedin Public Interests” (supra) The rule that the interest of the state must )not be put in jeopardy by producing documents which would injure it is in principle quite unconnected with the interests or claims of particular parties in litigation and indeed, it is a matter on which the judge should, if necessary, insist, even though no objection.is taken at all.This would showhow remote the rule is from the branch of jurisprudence relating, to discovery of documents or even to privilege(1).

So the mere fact that Saxena brought the documents to court in pursuance, to the summons and did not file an affidavit of the Minister or of the head of the department concerned claiming privilege would not mean that the right to object to any evidence derived from an unpublished official record relating to affair of state has been for ever waived. As no affidavit of the Minister or of the head of the department claiming privilege had been filed, it mightbe that a legitimate inteference could be made that theMinister or the head ofthe departmentconcerned permittedthe production of the document or evidence being given derived from it, if there was no other circumstance.But, Saxena statedthat the Blue Book was a secret document and hehad not been permitted by the head of the department to produce it. Though that statement was not really an objection to the production of the document which could be taken cognizance of by the court under s. 162 of the Evidence Act, it wasan intimation to the Court that the head of the department had not permitted the production of the document in Court or evidence.derived from it being given. Whatever else the statement might indicate, it does not indicate that the head of the department had permitted the production or the disclosure of the document. In other words, fromthe statement of Saxena that the document was a ‘secret’ one and that he was not permitted to produce it in court, it is impossible toinfer that the Minister or the head ofthe department badpermitted the document to beproduced in court or evidence derived from it being given.Section123 enjoinsupon the court the duty to see thatno one is permitted to give any evidence derived fromunpublished official records relating toaffairs of state unless permitted by the officer at the head of the department.The court, therefore, had a duty, if the Blue Bookrelated to secret affairs of state, not to permit evidence derived from it being given.And, in fact, ‘the Court did not allowthe production ofthe document, for, we find a note inthe proceedings ofthe Court on 10-9-1973 stating thatthe “question about the production of this document in Court shall be decided after argument of the parties on the point is finally (1)see: J.K.S. Simon, “Evidence Excluded by Consideration of State Interest”, (1955) Cambridge L Journal, 62.

356 heard”.And before the arguments werefinally concluded, Kaul, the officer at the head of the department, filed an affidavit claiming privilege.As the privilege couldnot have been waived, and as, before the objection tothe production of the document raised by Saxena-whether tenable in lawor not-was decided by the Court, an affidavitwas filed by Kaul objecting to the production of the document and stating that the document in question related to secret affairsof state, the Court should have consideredthe validity of that objection under S. 162 of the Evidence Act.

In Crompton Ltd. v. Customs & Excise Comrs. (C.A.) (1), Lord Denning M.R. said that if a document is the subject of Crown Privilege, it cannot be adduced by either of the parties, that even if neither of the parties takes the objection, the Attorney General can come to the Court and take it andthat the judge himself must take the objection if it appears to him that the production of the document would be injurious to public interest. In Copway v. Binger & Anther(2) itwas observed :

“I do not doubt that it is proper to prevent the useof any document, wherever it comes from, ifdisclosure ofits contents would really injure the national interest and I do not doubt that it is proper topreventany witness whoeverbe may be, from disclosing facts which in the national interest ought not to be disclosed. Moreover, it is the duty of the court to do this without theintervention of any Minister, if possible serious injury to the national interest is ,really apparent.

“I do not accept thatin soimportant a matter, it could properly playaboutwith formalities or regard itself as entering forbidden territory merely because a doorhad not been formally locked.” The question then arises as to what exactly is the meaning of the expression “affairs of state”.

According to Phipson(3), witnesses may not beasked,and will not be allowed, to state facts or to produce documents the disclosure of which would be prejudicial to the public service, and this exclusion is not confinedto official communicationsor documents, but extends toall others likely to prejudice the public interest, even when relating to commercial matters.He thinks that it is the duty of the court to prevent disclosure of facts where serious injury to the national interest would possibly be. caused, that in deciding whether a claim for Crown privilege should apply to a document, there are two kinds of public interest to be considered bythe court, and they are : (1)the public interest that harm shall not be done to the nation orthe public service; and (2) thepublicinterest thatthe administrationof justice shall not be frustrated bythe withholding of documents which must be produced if justice is to be done; and that if a judge decided that, on balance, the (1) [1972] 2 Q.B 102, at 134.

(3) “Phipson on Evidence”, 11th ed. p. 240.

(2) [1968] UKHL 2; [1968] A.C. 910.

357 documents probably ought to be produced, it would generally be, best that he should see them before ordering production.

Cross says(1) that relevant evidence must be excluded if its reception would be contrary to state interest;but “state interest” is an ominously vague expressionand it is necessary to turn to the decided cases in order to ascertain the extent towhich this objection to the reception of relevant evidence has been taken. According to him, broadly speaking, the decisions fall under two heads-those in which evidence has been excluded because its disclosure would be injurious to national security (an expression which may be taken to include national defence and good diplomatic relations), and those in which evidence has been excluded becauseits receptionwould be injurious tosome other national interest andthat although the first group of decisions has not excited much comment, some of the cases included in the second may be thought toindicate an excessive concern for unnecessary secrecy.

In Sodhi Sukhdev Singh’s case (supra) this Court heldthat there are three views possible on the matter.The first view is that it is the head of the department who decides to which class the document belongs. If he comes tothe conclusion that the document is innocent, he cangive permission to its production. If, however, he comes tothe conclusion that the document is noxious, he will withhold that permission. In any case, the Court does not materially come into the picture.The second view is that it isfor the court to determine the character of the document and if necessary to enquire into the possible consequence ofits disclosure. On this view, the jurisdiction of the court is very much wider. A third view which does not accept either of thetwo extreme positions would be that the courtcan determine the character of the document and if it comes to the conclusion that the document belongs tothe noxious class,it may leave it to the head ofthe department to decidewhether its production should be permitted ornot, for, it is not the policy of s. 123 that in the case of every noxiousdocument the head of the departmentmust alwayswithhold permission.The Court seems tohave accepted the third view as the correct one and has said “Thus, our conclusion is that reading ss.123 and 162together the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question. That is a matter for the authority concerned to decide; but the Court is competent, and indeed is bound, to hold a preliminary enquiry and determinethe validity of the objections to itsproduction, and that necessarily involves an enquiryinto the question asto whether the evidence relates to an affairs of State under s. 123 or not.” As it was held in that case that the Court has no power to inspectthe document, it is difficult to see how the Court can find, without conducting an enquiry asregardsthe possible effect of the disclosure ofthe documentupon public interest, that a document is one relating to affairs of state as, ex- hypothesis a document can relate to affairs of state only if its disclosure will injure public interest.

It might be that there are certain classes of documents which are per se noxio s in the sense (1) “Evidence” 3rd ed, p. 252.

358 that, without conducting an enquiry, it might be possible to say that by virtue of their character their disclosure would be injurious to public interest. But there are other documents which do not belong to the noxious class andyet their disclosure would be injurious to public interest.The enquiry to be conducted under s. 162 is an enquiry intothe validity of the objection that the document isan unpublished official record relaing to affairs of stateand therefore, permission to give evidence derived from it is declined. The objection would be that the document relates to secret affairs of state and its disclosure cannot be permitted; for, why should the officer at the head ofthe department raise an objection to the production of a document if he is prepared to permit its disclosureeven thoughit relates to secret affairs of state ? Section162 visualises an enquiry into that objection and empowersthe court to take evidence for deciding whether the objection is valid.The court, therefore, has to considertwo things;

whether the document relates to secret affairs of state; and whether the refusal to permit evidence derived from it being given was in the public interest. Nodoubt,the, words used-ins. 123 “as he thinks fit” conferan absolute discretion on the head of the department to give or withhold such permission. AsI said, it is only ifthe officer refusesto permit the disclosure of adocument thatany question can arise in a court and then s. 162 of theEvi- dence Act will govern the situation. An overriding power in expresstermsis conferred on the court unders. 162 to decide finally on the validity of the objection. The court will disallow the objection if it comes to the conclusion that the document does not relate to affairs of state or that the public interest does not compel its non-disclosure or that the public interest served by the administration of justice in a particular case overrides all other aspects of publicinterest. This conclusion flows from the factthat in the first part of s. 162 of the Evidence Act there is no limitation on the scope of the court’s decision, though in the second part, the mode of enquiryis hedged inby- conditions. It is, therefore, clear that eventhoughthe head of the department has refused to grant permission, it is open to the court to go into the question after examining the document and find out whether thedisclosure ofthe document wouldbe injurious to public interest andthe expression “as he thinks fit” in the latter part of section 123 need not deter the court from deciding the question afreshas s.162 authorises the court to determinethe validity of the objection finally (see the concurring judgment of Subba Rao, J. in Sukhdev Singh’s case).

It israther difficult to understand, after a courthas inquired into the objection and found that disclosure of the document would be injurious to public interest, what purpose would be served by reserving to the head of the department the power to permit its disclosure because, the question to be decided by him would practically be the same, namely, whether the disclosure of the document would be injurious to public Interests question already decided by the court.In other words, if injury to public interest is the foundation of this so-called privilege,when once the courthas enquired into the question and found that the disclosure of the document will injure public interest and therefore it is a document relating to affairs of state, itwould be a futile exercise for the Minister or the head ofthe department toconsider and decide whether its disclosure should be permitted as be would be making an 359 enquiryinto the identical question.It is difficult to imaginethat a headof thedepartment would takethe responsibilityto come to a conclusion different fromthat arrivedat by a court as regards the effect of the dis- closure of the document on public interest unless he has or can have a different concept of public interest.

Few would question the necessity of the rule to exclude that whichwould cause serious prejudice to the state. When a question of national security is involved, the court may not be theproper forum to weigh the matter and that isthe reason why a Minister’s certificate is taken asconclusive.

“Those who are responsible for the national security must be the sole judges of what national security requires”(1).As the executive is solely responsible for national security including foreign relations, no other organ could judge so well of such matters. Therefore, documents in relation to these mattersmight fall into a class which per se might requireprotection. But the executive is not the organ solely responsible for public interest.It representsonly an important element in it; but there are other elements, One such element is the administration of justice.The claim of the executive to have exclusive and conclusive power to determine what is in public interest is a claim based on the assumption that the executive alone knowswhat is best for the citizen. C The claim of the executive to excludeevidence is more likely to operate tosubserve a partialinterest, viewed exclusively froma narrow departmental angle. It is impossible for it to see orgive equal weight to another matter, namely, that justice should be done and seen to be done. When there are more aspects of publicinterest to be considered, the courtwill,with reference to the pending litigation, be in a better position to decide where the weight of public interest predominates.

The power reserved to the court is a order productioneven thoughpublicinterest is tosome ‘extent prejudicially affected. This amounts to a recognition that more thanone aspectsof public interest will have to be surveyed.The interests of government’ for which the Minister speaks do not exhaust the whole public interest.Another aspect of that interestis seen in the needfor impartialad- ministration of justice. It seems reasonable to assume that a court is better qualified than the Minister to measure the importance ofthe public interest in the casebeforeit.

The court has to make an assessment of the relative claims of these different aspect of public interest.While there are overwhelming arguments for giving to the executivethe power to determine what matters may prejudice public security, those arguments give no sanction togivingthe executive an exclusive power to determine what mattersmay affectpublicinterest. Once considerations of national security are left out, there are fewmatters of public interest which cannot safely be discussed in public. The administrationitselfknows of many classesof security documents ranging from those merely reserved for official use tothosewhich can be seen only by ahandful of Ministers of officials bound by oath of secrecy.

According to Wigmore, the extent to which this privilege has gone beyond “secretsof State” inthe militaryor international sense is by (1) Lord Parker of Weddington in The Zemora [1916] 2A C 77, at 107.

360 no means clearly defined and therefore its scope and bearing are open to careful examination in the light of logicand policy. According to him, in a community under a system of representative government, there can be only few facts which requireto be kept secret with that solidity which defies even the inquiry of courts of justice. (1) In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, therecan but few secrets. The people ofthis countryhave a right to know every public act,everything, that is done in a public way, by their public functionaries.

They are entitled to know the particulars of every public transaction in all its bearing.The right to know, which is derived from the concept of freedom of speech,thoughnot absolute, is a factor which should make onewary,when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security (2) . To coverwith veil secrecy the common routine business, isnot inthe interest of the public.Such secrecy can seldom be legiti- mately desired.It is generally desired for the purpose of partiesandpolitics or personalself-interestor bureaucratic routine.The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.

“Whetherit is the relations of the Treasury to the Stock Exchange, or the dealings of ;the InteriorDepartment with publiclands,the facts must constitutionally be demandable, sooner or later, on the floor of Congress. TO concede to them a sacrosanct secrecy in a court ofjustice is to attribute to them a characterwhich for other purposes is never maintained a character which appears tohave been advanced only when it happens to have served some undisclosed interest to obstruct investigation into facts which might reveal a liability(3)” To justify a privilege, secrecy must be indispensable to inducefreedom of official communication or efficiency in the transaction of official business and it must be further a secrecy which hasremained or would have remained inviolable but for the compulsory disclosure.In howmany transactions of official business is there ordinarily such a secrecy? If there arises at any time a genuine instance of such otherwiseinviolate secrecy, letthe necessity. of maintaining it be determined on its merits (4).

Lord Blanesburgh saidin Robinson v. State of South Australia (4) the privilege is a narrow one, most sparingly to be exercised, that its foundation is that the information cannotbe disclosed withoutinjuryA, to the public interests andnot that the documents are confidential or ,official which alone is no reason for their non-production.

He further said that in view of the increasing extension of state activities intospheres of trading, businessand commerce, and of the claim of privilege in (1) see “Evidence”, 3rd ed, Vol 8, p 788.

(2) see New york Times Co V. United States, [1971] USSC 145; 29 L Ed822, 403 U S 713.

(3) gee “Wigrnore on Evidence”, 3rd ed-, Vol 8, page 790.

(4) [1931] A. C. 704 at 798.

361 relation to liabilities arising therefrom, the courtsmust duly safeguard genuine public interests and that theymust see to it that the scope of the admitted privilege isnot extended in such litigation.

There was some controversy as to whether the courtcan inspectthe documentfor the purposeof coming tothe conclusion whether the document relates to affairs of state.

In Sodhi Sukhdev Singh’s case, this Court has said thatthe court has nopower to inspect thedocument. Inthe, subsequent case (Amar Chand Butail v. Union of Indiaand Others(1), this Courtheld that the normal method of claiming privilege was by an affidavit sworn by the head of the department and that, if no proper affidavit was filed, the claim for privilege was liable to be rejected.But, this Court inspected the document to see whether it related to affairs of state. It might be that the court wanted to make sure that public interest is protected, but whatever be the reason, the court did exercise the power to inspect the document.

In England, it is now settled by the decision in CO Rimmer (2) that there is residualpower in court to decide disclosure of a document is in the interest ofthe public purpose, if necessary, to inspect the document, and that the of the, head of the department that the disclosure would injure public interest is not final.

In Robinson’s case, (Supra) the Privy Council took theview that the court has power to inspect the (document in order to decide the question whether it belongs to one category or the other.

It isalso noteworthy that Lord Denning, M.R, inhis dissenting judgment in the Court of Appeal in Conway v.

Rimmer has referred to the decision in Amar Chand Butail v.

Union of India and Others’ (supra) and said that the Supreme Court of India also has come round to the view that there is a residual power in the court to inspect adocument to decidewhether its production in court or disclosure would be injurious to public interest.

Probably the only circumstances in which a court willnot insiston inspectionof the document is that stated by Vinson, C. J. in United States v. Revenolds(3) :

“Regardless of how it is articulated,some like formula of compromise mustbe applied here. Judicial control over evidence in a case cannot be abdicated to thecaprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possibleto satisfy the court from all the circumstances ofthe base, that there is a reasonable dangerthat compulsion of evidence will expose military matters which, in the interestof national security, should not be divulged When this is the case, the occasion for the privilege (1) A I R 1964 SC 1658.

(2) [1968] UKHL 2; [1968] 1 All E R 874.

(3) [1953] USSC 31; [1952] 345 U S 1.

362 is appropriate,and the courtshouldnot jeopardize the security which the privilege is meant to protect by insisting uponan examination of the evidence, even by the judge alone in chambers.” I do not think thatthereis much substance inthe contention that since, the Blue Book had been published in parts,it must be deemed to have been published as a whole and, therefore, the document could not be regarded as an unpublished official record relating to affairs of state.

If some parts of the document which are innocuous havebeen published, it does not follow that the whole documenthas been published. No authority has been cited forthe proposition that if a severable and innocuous portion of a document is published, the entire document shall be deemed to have been published for the purpose of S. 123.

In regard tothe claim of privilege for the document summoned from the office of the Superintendentof Police, Rai Bareily, the High Court has only said that allthe instructions contained in the fileproduced by the Superintendent of Police were the same as those contained in the Blue Book and since no privilege in respect of theBlue Book could be claimed, the Superintendent of Police could not claim any privilege, in respect of those documents.It is difficult to under:stand how the High Court got theidea that the papers brought from the office ofthe Superintendentof Police contained only instructions or materials taken from the Blue Book. Since the court did not inspectthe Blue Book, the statement by the court thatthe materials containedin the fileproduced bythe Superintendent of Police were ,taken from the Blue Bookwas not warranted.

I am not satisfied that a mere label given to a document by the .executiveis conclusive in respect of the question whether it relates to affairs of state or not. Ifthe disclosure of the contents of the document would not damage publicinterest, the executive cannot label it in such a manneras to bring ‘it within the class of documents which ,are normally entitled to protection.N6 doubt, “thevery description-ofthe documentsin theclassmay suffice sometimes to show that they should not be produced such as Cabinetpapers” (seeper Lord Danning, M.R. in In re Grosvenor Hotel, London (No. 2) (1). Harman, L. J. said(2) in that case : “the appellants’ real point isthat since Duncan’s Case(3) there has grown up a practice tolump documents together and treat them as a class for which privilege is claimedand that thisdepends on dicta pronounced onwhat is reallya different subject-matter which are not binding on the court and are wrong.” In Conway v. Rimmer(4) Lord Reid said : “I do not doubt that there are certain classes of documents which ought not to be disclosed whatever their content may be” andreferred to cabinetminutes as belonging to that class.Lord Upjohn said(5) if privilege is (1) [1965] 1 Ch- 1210, at 1246.

(2) ibid at p 1248.

(3) [1948] A: C– 624.

(4) [1968] UKHL 2; [1968] 1 All E R 874, at 888.

(5) ibid at p 915.

363 claimedfor a document on the ground of ‘class’ the judge, if he feels any doubt about the reason for its inclusion as a class document, should not hesitate to call forits production forhis private inspection, and to orderand limit its production if he thinks fit.” In the samecase Lord Hodson said(1) : “I do not regardthe classification which places all documents under theheading either of contents or class to be wholly satisfactory. The plans of warships, as in Duncan’s case and documents exemplified by cabinetminutes are to be treated, I think, as cases to which Crown privilege can be properly applied as a class withoutthe necessity of thedocuments being considered individually.The documents in this case, class documents thoughthey may be, are in a different category, seeking protection, not as State documents of political or strategic importance, but,as requiring protection on the groundthat ‘candour’ must be ensured.” I would set aside the order of the High Court and direct it to consider the matter afresh.The High Court will have to consider the question whether the documents inrespect of which privilege had been claimed by Mr. R. K.Kaul,Home Secretary and the Superintendent of Police relate to affairs of state and whether public interest would beinjuriously affected by their disclosure.

If the averments in the affidavits are not full or complete, the court will be at liberty to call for further affidavits.

If, onthe basis of the averments in the affidavits,the court is satisfied that the Blue Book belongs to a class of documents, like the minutes of theproceedings ofthe cabinet, which is per se entitled to protection, no further question will arise in respect of that document. Insuch case, no question of inspection of that document by court will also arise. If, however, the court is not satisfied that the Blue Book does not belong to that class andthat averments in the affidavits and the evidence adduced are not sufficient to enable the Court to make up its mind thatits disclosure will injure public interest, it will be open to the court to inspect the document for deciding the question whetherit relates to affairs of state and thatits disclosure will injure public interest. In respect ofthe other documents, the court will be at libertyto inspect them, if on the averments in the affidavits or other evidence, it is not able to come to a conclusion thatthey relate to affairs of state or not.

if, on inspection, the court holds that any part of the Blue Book or other document does not relate to affairs of state and that its disclosure would not injure public interest, the court will be free to (1) bid at p. 905.

364 disclose that part and uphold the objection as regardsthe rest providedthat this will notgive amisleading impression. Lord Pearce said in Conway v. Rimmer(1) “if part of a document is innocuous butpart is of such a nature that its disclosure would be undesirable, it should seal up the latter part and order discovery of the rest, provided that this willnot give a distortedor misleading impression.” The principleof the rule ofnon-disclosureof records relating to affairs of state is theconcernfor public interest and the rule will be applied no further thanthe attainment of that objective requires(2).

I would allow the appeal.

P.B.R.

Appeal allowed.

(1) [1968] UKHL 2; [1968] 1 All E.R. 874, at 911.

(2) see Taylor on Evidence, p. 939.

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GOVIND …PETITIONER:
Vs.
STATE OF MADHYA PRADESH & ANR. …RESPONDENT

DATE OF JUDGMENT : 18/03/1975

BENCH: MATHEW, KUTTYIL KURIEN KRISHNAIYER, V.R. GOSWAMI, P.K.

CITATION:
1975 AIR 1378 1975 SCR (3) 946
1975 SCC (2) 148

CITATOR INFO :
RF 1981 SC 760 (5)
R 1982 SC 710 (21)

ACT:

Madhya Pradesh Police Regulations, 855 and 856, made under s. 46 (2)(c) of Police Act, 1961–If violative of Arts.

HELD : (1) The Regulations were framed under s. 46(2)(c) of the Police Act and have the force of law. The paragraph provides that the State Government may make rules generally for giving effect to the provisions of the Act; and one of the objects of the Act is to prevent the commission of crimes. The provision regarding domiciliary visits is intended to prevent commission of offences, because, their object is to see if the individual is at home or gone out of it for commission of offences. [949 F-G, H-950 A] (2) (a) Too broad a definition of privacy will raise serious questions about the propriety of judicial reliance on a right that is not explicit in the Constitution. The right to privacy will, therefore, necessarily, have to go through a process of case by case development. Hence, assuming that the right to personal liberty. the right to move freely throughout India and the freedom of speech create an independent fundamental right of privacy as an emanation from them it could not he absolute. It must be subject to restriction on the basis of compelling public interest. But the law infringing it must satisfy the compelling state interest test. [954 B-C, H-955 B; 956 B-C] (b) Drastic inroads directly into privacy and indirectly into fundamental right will be made if the Regulations were to be read too widely. When there are two interpretations.

one wide and unconstitutional, and the other narrower but within constitutional bound,;, the Court will read down the over flowing expressions to make them valid. [955 D-E; 956 G] (c) As the Regulations have force of law, the petitioner’s fundamental right under Art. 21 is not violated. [955 H] (d) It cannot be said that surveillance by domiciliary visit-, would always be an unreasonable restriction upon the right of privacy. It is only persons who are suspected to be habitual criminals and those who are determined to lead a criminal life that are Subjected to surveillance. If ‘crime’ in this context is confined to such acts as involve public peace or security, the law imposing such a reasonable restriction must be upheld as valid. [956 C-D, F-H] [Legality apart, these regulations ill-accord with the essence of personal freedoms and the State will do well to revise these old Police Regulations. Domiciliary visits and picketing by the police should be reduced to the clearest cases of community security and should not become routine follow up at the end of a conviction or release from jail, or at the whim of a police officer.] [957 A-C] 947 Kharak Singh v. The State of U.P. & Ors., [1964] 1 S.C.R.

332, Griswold v. Connecticut, [1965] USSC 128; 381, U.S. 479, 510; Jane Roe v. Henry Wade, [1973] USSC 43; 410 U.S. 113 and Olmstead v. United States.

[1928] USSC 133; 277 U.S. 438. 471. referred to.

ORIGINAL JURISDICTION : Writ Petition No. 72 of 1970.

Petition under Article 32 of the Constitution of India. A.

K. Gupta and R. A. Gupta for the Petitioner.

Rant Punjwani, H. S. Parihar and I. N. Shroff, for the Res- pondents.

The Judgment of the Court was delivered by MATHEW, J. The petitioner is a citizen of India. He challenges the validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations purporting to be made by the Government of Madhya Pradesh under s.46(2)(c) of the Police Act, 1961.

The petitioner alleges that several false cases have been filed against him in criminal courts by the police but that he was acquitted in all but two cases. He says that on the basis that he is a habitual criminal, the police have opened a history sheet against him and that he has been put under surveillance.

The petitioner says that the police are making domiciliary visits both by day and by night at frequent intervals, that they are secretly picketing his house and the approaches to his house, that his movements are being watched by the patel of the village and that when the police come to the village for any purpose, he is called and harassed with the result that his reputation has sunk how in the estimation of his neighbours. The petitioner submits that whenever he leaves the village for another place he has to report to the Chowkidar of the village or to the police station about his departure and that he has to give further information about his destination and the period within which he would return.

The petitioner contends that these actions of the police are violative of the fundamental right guaranteed to him under Articles 19(1)(d) and 21 of the Constitution, and he prays for a declaration that Regulations 855 and 856 are void as contravening his fundamental rights under the above Articles.

In the return filed, it is stated that “the petitioner has managed to commit many crimes during the period 1960 to 1969. In the year 1962 the petitioner was convicted in one case under Section 452 IPC and was fined Rs. 100/- in default rigorous imprisonment of two months and in another case he was convicted under Section 456 IPC and was fined Rs. 501- and in default rigorous imprisonment of one month.

In the year 1969 the petitioner was convicted under Section 55/109 Cr.P.C. and was bound over for a period of one year by SDM, Jatara. In the year 1969, the petitioner cot compounded a case pending against him under Section 325/147/324 IPC. Similarly, he also got another case under Section 341/324 ][PC compounded.” 948 The case of the respondent in short is that the petitioner is a dangerous criminal whose conduct shows that he is determined to lead a criminal life and that he was put under surveillance in order to prevent him from committing offences.

Regulation 855 reads:

“855. Surveillaance proper, as distinct from general supervision, should be restricted to those persons, whether or not previously convicted, whose conduct shows a determination to lead a life of crime. The list of persons under surveillance should include only those persons who are believed to be really dangerous criminals. When the entries in a history sheet, or any other information at his disposal, leads the District Superintendent to believe that a particular a ndividual is leading a life of crime, he may order that his name be entered in the surveillance register.

The Circle Inspector will thereupon (open a ?) history sheet, if one is not already in existence, and the man will be placed under regular surveillance.” Regulation 856 provides:

“856. Surveillance may, for practical purposes, be defined as consisting of the following measures :

(a) Thorough periodical enquiries by the station-house officer as to repute, habits, association, income, expenses and occupation.

(b) Domiciliary visits both by day and night at frequent but irregular intervals.

(c) Secret picketing of the house and approaches on any occasion when the surveillance (surveillant?) is found absent.

(d) The reporting by patels, mukaddams and kotwars ,of movements and absences from home.

(e) The verification of such movements and absences by means of bad character rolls.

(f) The collection in a history sheet of all information bearing on conduct.

It must be remembered that the surest way of driving a man to a life of crime is to prevent him from earning an honest living.

Surveillance should, therefore, never be an impediment to steady employment and should not be made unnecessarily irksome or humiliating.

The person under surveillance should, if possible be assisted in finding steady employment, and the practice of warning persons against employing him must be strongly discouraged.” 949 In Kharak Singh v. The State of U.P. and Others(1) this Court dad occasion to consider the validity of Regulation 236 of the U.P. Police Regulations which is in pari materia with Regulation 856 here. There it was held by a majority that regulation 236(b) providing for domiciliary visits was unconstitutional for the reason that it abridged the fundamental right of a person under Article 21 and since Regulation 236(b) did not have the force of law, the regulation was declared bad. The other provisions of the regulation were held to be constitutional. Teh decision that the regulation in question there was not taw was based upon a concession made on behalf of the State of U.P. that the U.P. Police Regulations were not framed under any of the provisions of the Police Act.

The petitioner submitted that as the regulations- in question here were also not framed under any provision of the Police Act, the provisions regarding domiciliary visits in regulations 855 and 856 must be declared bad and that even if the regulations were framed under s.46(2)(d) of the Police Act, they offended the fundamental right of the petitioner under Article 19(1)(d) as well as under Article 21 of the Constitution.

So far as the first contention is concerned, we are of the view that the regulations were framed by the Government of Madhya Pradesh under s.46(2) (c) of the Police Act. Section 46(2) states that the State Government may, from time to time, by notification in the official gazette, make rules consistent with the Act- “(c) generally, for giving effect to the provisions of this Act.” The petitioner contended that rules can be framed by the State Government under s.46(2)(c) only for giving effect to the provisions of the Act and that the provisions in Regulation 856 for domiciliary visits and other matters are not for the purpose of giving effect to any of the provisions of the Police Act and therefore regulation 856 is ultra vires.

We do not think that the contention is right. There can be no doubt that one of the objects of the Police Act is to prevent commission of offences. The preamble to the Act states :

“Whereas it is expedient to re-organise the police and to make it a more efficient instrument for the prevention and detection of crime.” And, s. 23 of the Act (so far as it is material) reads “It shall be the duty of every police officer.lll . to prevent the commission of offences and public nuisances… “.

We think that the provision in regulation 856 for domiciliary visits and other actions by the police is intended to prevent the commission of offences. The object of domiciliary visits is to see that (1) [1964] 1 S.C.R. 332.

950 the person subjected to surveillance is in his home and has not gone out of it for commission of any offence. We are therefore of opinion that Regulations 855 and 856 have the force of law.

The next question is whether the provisions of regulation 856 offend any of the fundamental rights of the petitioner.

In Kharak Singh v. The State of U.P. & Others (supra) the majority said that ‘personal liberty’ in Article 21 is comprehensive to include all varieties of rights which go to make up the personal liberty of a man other than those dealt with in Article 19(1)(d). According to the Court, while Article 19(1)(d) deals with the particular types of personal freedom, Article 21 takes in and deals with the residue.

The Court said “We have already extracted a passage from the judgment of Field J. in Munn v. Illinois [1876] USSC 149; (1877) 94 U.S. 113, 142, where the learned Judge pointed out the,,, ‘life’ in the 5th and 14th Amendments of the U.S. Constitution corresponding to Art. 21 means not merely the right to the continuance of a person’s animal existence, but a right to the possession of each of his organs-his arms and legs etc. We do not entertain any doubt that the word ‘life’ in Art. 21 bear,., the same signification. Is then the word ‘personal liberty’ to be construed as excluding from its purview an invasion on the part of the police of the sanctity of a man’s home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire neecessity for human existence even as an animal ? It might” not be in appropriate to refer here to the words of the preamble to the Constitution that it is designed to, “assure the dignity of the individual” and therefore of those cherished human value as the means of ensuring his full development and evolution.

We are referring to these objectives ,of the framers merely to draw attention to the concepts underlying the constitution which would point to such vital words as ‘personal liberty’ having to be construed in a reasonable manner and to be attributed that sense which would promote and achieve those objectives and by no means to stretch the meaning of the phrase to square with any preconceived notions or doctrinaire constitutional theories.

The Court then quoted a passage from the judgment of Frankfurter J. in Wolf v. Coloradol(1) to the effect that the security of one’s privacy against arbitrary intrusion by the police is basic to a free society and that the knock at the door, whether by day or by night, as a prelude to a search, without authority of law’ but solely on the authority of the Police, did not need the commentary of recent history to be condemned as inconsistent-with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples.

The Court then said that at Common Law every man’s- house is his castle and that embodies an abiding (1) [1949] USSC 101; [1949] 338 U.S. 25.

951 principle transcending mere protection of property rights and expounds a concept of ‘personal liberty’ which does not rest upon any element of feudalism or any theory of freedom which has ceased to exist. The Court ultimately came to the conclusion that regulation 236(b) which authorised domiciliary visits was violative of Article 21 and “as there is no ‘law’ on the basis of which the same could be justified, it must be struck down as unconstitutional”. The Court was of the view that the other provisions in regulation 236 were not bad as no right of privacy has been guaranteed by the Constitution.

Subba Rao, J. writing for the minority was of the opinion that the word ‘liberty’ in Article 21 was comprehensive enough to include privacy also. He said that although it is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the right is an essential ingredient of personal liberty, that in the last resort, a person’s house where he lives with his family, is his ‘castle’s that nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy and that all ,,he acts of surveillance under Regulation 236 infringe the fundamental right of the petitioner under Article 21 of the Constitution. And,as regards Article 19(1)(d), he was of the view that that right also Was violated. He said that the right under that sub- Article is not mere freedom to move without physical obstruction and observed that movement under the scrutinizing gaze of the policemen cannot be free movement, that the freedom of movement in cl. (d) therefore must be a movement in a free country, i.e., in a country where he can do whatever he likes, speak to whomsoever he wants, meet people of his own choice without any apprehension, subject of course to the law of social control and that a person under the shadow of surveillance is certainly deprived of this freedom. He concluded by say in that Surveillance by domiciliary visits and other acts is -an abridgement of the fundamental right guaranteed under Article 19 (1)(i) and under Article 19(1) (a). He however did not specifically consider whether regulation 236 could be justified as a reasonable restriction in public interest falling within Article 19(5).

It was submitted on behalf of the petitioner that right to privacy is itself a fundamental right and that that right is violated as regulation 856 provides for domiciliary visits and other incursions into it. The question whether right to privacy is itself a fundamental right ‘lowing from the other fundamental rights guaranteed to a citizen under Part III is not easy of solution.

In Griswold v. Connecticut(1), a Connecticut statute made the use of contraceptives a criminal offence. The executive and medical directors of the Planned Parenthood League of Connecticut were convicted in the Circuit Court on a charge of having violated the statute as accessories by giving information, instruction and advice to married persons as to the means of preventing conception. The appellate Division of the Circuit Court affirmed and its judgment was ‘affirmed by the Supreme Court of Errors of Connecticut. On appeal the (1) [1965] USSC 128; 381 U. S. 479, 510.

952 Supreme Court of the United States reversed. In an opinion by Douglas, J., expressing view of five members of the Court, it was held that the statute was invalid as an unconstitutional invasion of the right of privacy of married persons. He said that the right of freedom of speech press includes not only the right to utter or to print but also the right to disribute, the right to receive, the right to read and that without those peripheral rights the specific right would be less secure and that likewise, the other specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance, that the various guarantees create zones of privacy, aid that protection against all governmental invasion “of the sanctity of a man’s home and the privacies of life” was fundamental. He further said that the inquiry is whether a right involed “is ‘of such a character that it cannot -be -denied without violating those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions’ and that ‘privacy is a fundamental personal right, emanating from the totality of the constitutional scheme under which we (Americans) live.

In his dissenting opinion, Mr. Justice Black berated the majority for discovering and applying a constitutional right to privacy. His reading of the Constitution failed to uncover any provision or provisions forbidding the passage of any law that might abridge the ‘privacy’ of individuals.

In Jane Roe v. Henry Wade(“), an unmarried pregnant woman who wished to terminate her pregnancy by abortion instituted an action in the United State strict Court for the Northern District of Texas, seeking a declaratory judgment that the Texas criminal abortion statutes, which prohibited abortions except with respect to those procured or attempted by medical advice for the purpose of saving the life of the mother, were unconstitutional. The Supreme Court said that although the Constitution of the U.S.A. does not explicitly mention any right of privacy, the United States Supreme Court recognizes that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution, and “that the roots of that right may be found in the First Amendment, in the Fourth and Fif, Amendments. in the penumbras of the Bill of Rights, in the ninth Amendment, and in the concept of liberty guaranteed by the first section of the Fourteenth Amendment” and that the “right to privacy is not absolute”, The usual starting point in any discussion of the growth of legal concept of privacy, though not necessarily the correct one, is the famous article,”The Right to Privacy” by Charles Warren and Louis D. Brandeis (2).What was truly creative in the article was their insistence thatprivacy,- the right to be let alone-was an interest that man should be able to assert directly and not derivatively from his efforts to protect other interests. To Protect man’s “inviolate Personality” against the intrusive behaviour so increasingly evident (1) [1973] USSC 43; 410 U. S. 113.

(2) See 4 Harvard Law Rev. 193.

953 in their time, Warren and Brandeis thought that the law should provide both a criminal and a private law remedy.

“Once a civilization has made a distinction between the ‘outer’ and the ‘inner’ man, between the life of the soul and the life of the body, between the spiritual and the materials between the sacred and the profane, between the realm of God and the realm of Caesar, between Church and state, between rights inherent and inalienable and rights that are in the power of government to give and take away, between public and private, between society and solitude, it becomes impossible to avoid the idea of privacy by whatever name it may be called- the idea of a ‘private space in which man may become and remain ‘himself”(11).

There can be no doubt that the makers of our Constitution wanted to ensure conditions favourable to the pursuit of happiness. They certainly realized as Brandeis, J. said in his dissent in Olmstead v. United State(2) the significance of man’s spiritual nature. of his feelings and of his intellect and that only a part of the pain, pleasure, satisfication of life can be found in material things and therefore they must be deemed to have conferred upon the individual as against the government a sphere where he should be let alone.

“The liberal individualist tradition has stressed, in particular, three personal ideals, to each of which corresponds a range of ‘private affairs’. The first is the ideal of personal relations; the second, the Lockean ideal of the politically free man in a minimally regulated society; the third, the Kantian ideal of the morally autonomous man, acting on principles that he accepts as rational”(8).

There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior.

If the Court does find that aclaimed right is entitled to protection as a fundamental privacy right,a law infringing it must satisfy the compelling state interest test. Then the question would be whether a state interest is of such paramount importance as would justify an infringement of the right. Obviously, if the enforcement of morality were held to be a compelling as well as a permissible state interest, the characterization of a claimed rights as a fundamental privacy right would be of far less significance. The question whether enforcement of morality is a interest- sufficient to justify the infringement of a fundamental right need not be considered for the purpose of this case and therefore we refuse to enter the controversial thicket whether enforcement of morality is a function of state.

Individual autonomy, perhaps the central concern of any system of limited government, is protected in part under our Constitution by (1) see “privacy and the Law: A philosophical prelude” by Milton R. Konvitz in 31 Law & Contemporary Problems (1966) p. 272, 273.

(2) [1928] USSC 133; 277 U. S. 438, 471.

(3) see Benn, “Privacy, Freedom and Respect for Persons” in J. Pennock & J. Chapman, Eds., Privacy Nomos XIII, 115-16.

954 explicit constitutional guarantees. “In the application of the Constitution our contemplation cannot only be of what has been but what may be.” Time works changes and brings into existence new condition Subtler and far reaching means of invadings privacy will make it possible to be heard in the street what is whispered in the closet. Yes too broad a, definition of privacy raises serious questions about this propriety of judicial reliance on a right that is not explicit in the Constitution of course, privacy primarily concerns the individuals. I therefore relates to and overlaps with the concept,of liberty. The most serious advocate of privacy must confess that there are. serious problems of defining the essence and scope of the right.

Privacy interest in autonomy must also be placed in the context of other right and values.

Any right to privacy must encompass and protect the personal intimacies of the home, the family marriage, motherhood, procreation .and child rearing. This catalogue approach to the question is obviously .not as instructive as it does not give analytical picture of that distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty.

Rights and freedoms of citizens are set forth in the Constitution in order’ to guarantee that the individual, his personality and those things stamped. with his personality shall be free from official interference except where a reasonable basis for intrusion exists. ‘Liberty against government” a phrase coined by Professor Corwin expresses this idea forcefully. In this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy.

As Ely says : “There is nothing to prevent one from using the word privacy’: to mean, the freedom to live one’s life without governmental interference. But the Court obviously does not so use the term. Nor could it for such a right is at stake in every case”(“) There are two possible theories for protecting privacy of home The first is that activities in the home harm others only to the extent that they cause offence resulting from the mere thought that individuals might engaging in such activities that such’ harm’ is not constitutionally protectible by the state. The second is that individual,, need a place of sanctuary where they can be free from societal control The importance of such a sanctuary is that individuals can drop the mask. desist for a while from projecting on the world the lmage they want to be accepted as themselves, an image that may,reflect the values of their peers rather than the realities of their natures (2).

The right to privacy in any event will necessarily have to go through a process of case-by se ‘development. Therefore, even assuming, (1) see “The Wages of Crying Wolf: A Commert on Roe v.

Wade, 82 Yale L. J. 920, 932.

(2) see 26 Standford Law Rev. 1161 at 1187.

955 that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute.

The European Convention on Human Rights, which came Into, force \on 3-9-1953, represents a valiant attempt to tackle the new problem. Article 8 of the Convention is worth citing:(1).

“1. Everyone has the right to respect for his private andfamily life, his home and his correspondence.

“2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.” Having reached this conclusion, we are satisfied that drastic inroads directly into the privacy and indirectly into the fundamental. rights, of a citizen will be made if Regulations 855 and 856 were to be read widely. To interpret the rule ‘m harmony with the Constitution is therefore necessary and canalisation of the powers vested in the police by the two Regulations earlier read becomes necessary, if they are to be saved at all. Our founding fathers were thoroughly opposed to a Police Rajeven as our history of the struggle for freedom has borne eloquent testimony to it. The relevant Articles of the Constitution we have adverted to earlier, behave us therefore to narrow down the scope for play of the two Regulations. We proceed to give direction and restriction to the application of the said regulations with the caveat that if any action were taken beyond the boundaries so set, the citizen will be, entitled to attack such action as-unconstitutional and void.

Depending on the character and antecedents,of the person subjected to surveillance as also the objects and the limitation under which surveillance is made, it cannot be said surveillance by domiciliary visits. would always be unreasonable restriction upon the right of privacy. Assuming that the fundamental rights explicitly guaranteed to a citi- zen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest As regulation 856 has the force of law, it cannot be said that the fundamental right of, the petitioner under Article 21 has been violated by the provisions contained in it for, what is guaranteed under’ that Article is that no person shall he deprived of his life or personal liberty except by the (1) see “Privacy- Human Rights”, ed. A. H. Robertson p.

956 procedure established by ‘law’. We think that the procedure is reasonable having regard to the provisions of Regulations 853 (C) and 857. Even if we hold that Article 19(1)(d) guarantees to a citizen a right to privacy in his movement as an emanation from that Article and is itself a fundamental right, the question will arise whether regulation 856 is a law imposing reasonable restriction in public interest on the freedom of movement falling within Article 19 (5); or, even if it be assumed that Article 19(5) does not apply in terms, as the right to privacy of movement cannot be absolute, a law imposing reasonable restriction upon it for compelling interest of State must be upheld as valid.

Under clause (c) of Regulation 853, it is only persons who are suspected to be habitual criminals who will be subjected to domiciliary visits. Regulation 857 provides as follows:

“A comparatively short period of surveillance, if effectively maintained, should suffice either to show that the suspicion of criminal livelihood was unfounded, or to furnish evidence justifying a criminal prosecution, or action under the security sections. District Superintendents and their assistance should go carefully through the histories of persons under surveillance during their inspections, and remove from the register the names of such as appear to be earning an honest livelihood.

Their histories will there upon be closed and surveillance discontinued. In the case of person under surveillance, who has been lost sight of and is still untraced, the name will continue on the register for as long as the District Superintendent considers necessary.” Surveillance is also confined to the limited class of citizens who are determined to lead a criminal life or whose antecedents would reasonably lead to the conclusion that they will lead such a life.

When there are two interpretations, one wide and unconstitutional, the other narrower but within constitutional bounds, this Court will read down the overflowing expressions to make them valid. So read, the two regulations are more restricted than counsel for the petitioner sought to impress upon us. Regulation 855, in our view, empowers surveillance only of persons against whom reasonable materials exist to induce the opinion that they show a determination, to lead it life of criminal in this context being confined to such as involve public peace or security only and if they are dangerous security risks.

Mere Convictions in criminal cases where nothing gravely imperilling saftey of 957 society cannot be regarded as warranting surveillance under this Regulation. Similarly, domiciliary visits and picketing by the police should be reduced to the clearest cases of danger to community security and not routine follow-up at the end of a conviction or release from prison or at the whim of a police officer. In truth, legality apart, these regulations ill-accord with the essence of personal freedoms and the State will do well to revise the- se old police regulations verging perilously near unconstitutionality.

With these hopeful abservations, we dismiss the writ petition.

V. P. S. Petition dismissed.

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